Technical Legality: Law, Technology and Science Fiction
01 Jan 2010-
TL;DR: In this article, the intersections of law and technology, referred to here as technical legality, are explored through taking science fiction seriously, and it is argued that reflection on technical legality reveals the mythic of modernity.
Abstract: This thesis concerns the intersections of law and technology, referred to here as
‘technical legality’. It argues that reflection on technical legality reveals the
mythic of modernity. The starting point for the argument is that the orthodox
framing of technology by law – the ‘law and technology enterprise’ – does not
comprehend its own speculative jurisdiction – that is, it fails to realise its oracle
orientation towards imagining the future. In this science fiction as the modern
West’s mythform, as the repository for projections of technological futures, is
recognised as both the law and technology enterprise’s wellspring and cipher.
What is offered in this thesis is a more thorough exploration of technical
legality through taking science fiction seriously. This seriousness results in two
implications for the understanding of technical legality. The first implication is
that the anxieties and fantasies that animate the calling forth of law by technology
become clearer. Science fiction operates as a window into the cultural milieu that
frames law-making moments. In locating law-making events – specifically the
making of the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car
Act 1909 (Vic) – with the clone ‘canon’ in science fiction (specifically Star Trek:
Nemesis (2002)) and H.G. Wells’ scientific romances, what is offered is a much
richer understanding of how the cultural framing of technology becomes law than
that provided by the ‘pragmatic’ positivism of the law and technology enterprise.
The second implication arises from the excess that appears at the margins
of the richer analyses. Exploring technical legality through science fiction does
not remain within the epistemological frame. Each of the analyses gestures
towards something essential about technical legality. The law and technology
enterprise is grounded on the modern myth, which is also the myth of modernity – Frankenstein. It tells a story of monstrous technology, vulnerable humanity and
saving law. The analyses of the Prohibition of Human Cloning Act 2002 (Cth) and
the Motor Car Act 1909 (Vic) show that this narrative is terrorised, that the saving
law turns out to be the monster in disguise; that the law called forth by technology
is in itself technological. In extended readings of two critically acclaimed science
fictions, Frank Herbert’s Dune cycle (1965–83) and the recent television series
Battlestar Galactica (2003–10), the essential commitments of technological law
are exposed. Dune as technical legality makes clear that technological law is truly
monstrous, for behind its positivism and sovereignty its essence is with the
alchemy of death and time. Battlestar Galactica as technical legality reduces
further the alchemical properties of technical law. Battlestar Galactica moves the
metaphysical highlight to the essence of technology and very nearly ends with
Heidegger’s demise of Being in ‘Enframing’: monstrous technology and
monstrous law reveal a humanity that cannot be saved. However, at the very
moment of this fall, Battlestar Galactica collapses the metaphysical frame,
affirming technological Being-in-the-world over empty ordering, life over death.
This free responsibility to becoming that emerges from Battlestar
Galactica reunites technical legality with the mythic of modernity. The modern
denial of myth, which allowed Frankenstein to narrate technical legality, has been
challenged. Free responsibility to becoming means a confidence with myths; it clears the way for the telling of new stories about law and technology.
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Journal Article•
TL;DR: The Code and Other Laws of Cyberspace by Lawrence Lessig as discussed by the authors is perhaps the most original book yet written about cyberspace law, focusing on the relationship between law, economic markets, norms, and an intriguing category he calls "architecture".
Abstract: Code and Other Laws of Cyberspace. Lawrence Lessig. New York: Basic Books, 1999. 230 pp. $21 hbk. Lawrence Lessig's Code and Other Laws of Cyberspace is perhaps the most original book yet written about cyberspace law. With an accessible style that is rich in anecdotes and metaphors and surprisingly low on legal and technical jargon, Lessig, a constitutional law scholar at Harvard and a consultant on the Microsoft antitrust case, writes for a wide scholarly audience. Even more than the recent The Control Revolution (New York: Century Foundation, 1999) by Andrew Shapiro, Lessig has managed to write about a rapidly evolving subject at a level of abstraction and theoretical sophistication that ensures that his contribution will long remain relevant. Central to Lessig's theoretical framework is his breakdown of four modalities of regulation: law, economic markets, norms, and an intriguing category he calls "architecture." Architecture includes constraints that the natural world imposes or that people construct-for example, speed bumps on roads. The architecture in cyberspace is computer code: code constructs the cyber-world. Consider the example of pornography regulation. Lessig contrasts how these four modalities of regulation control access to pornography in "real space" and in cyberspace, vividly demonstrating why a simple translation of existing law from "real space" to cyberspace is often impossible. In real space, pornography is extensively regulated through all four modalities, in ways that limit children's access to it. Laws require that vendors sell pornography only to adults. Markets prevent children from accessing pornography because it costs money. Norms help limit children's access to pornography, both by stigmatizing pornography and stigmatizing dealers who would sell it to children. In the category of real space "architecture," there is the simple matter of how a child is: even if a child attempted to disguise himself as an adult, he would probably notbe successful at fooling a salesperson. These four kinds of constraints may be imperfect, but are reasonably effective in limiting children's access to pornography in real space, Lessig contends. In cyberspace, however, the modalities of regulation of pornography operate differently and less effectively. Law is unsettled. Markets are different in at least two ways: distribution of digital files is much cheaper than distribution of printed material or videos, and though there are plenty of commercial pornography sites, much pornography can be accessed at no cost through newsgroups. Differences in the "architecture" of cyberspace are crucial because they allow faceless transactions. Faceless transactions may make disguising identity and age simple, therefore allowing a child to avoid the restrictions of law and norms. Thus the "real space" regulatory regime is upset, making pornography generally more available to children in cyberspace. Ways of filtering content or zoning the Internet are now extensively debated, but no simple transfer of the offline constraints to cyberspace seems possible. As he applies his theory to pornography regulation and the regulation of intellectual property and privacy, Lessig emphasizes that not only the codes of law but computer codethe "architecture" of cyberspace-an "embed" values and enable government and private actors to control behavior. …
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235 citations
References
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TL;DR: In this article, the authors present the logic of sovereignty and the paradox of sovereignty in the form of the human sacer and the notion of potentiality and potentiality-and-law.
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TL;DR: Fukuyama as mentioned in this paper identifies two powerful forces guiding our actions: the logic of desire (the rational economic process); and the desire for recognition, which he describes as the very motor of history.
Abstract: Fukuyama considers whether or not there is a direction to the history of mankind. He identifies two powerful forces guiding our actions: the logic of desire (the rational economic process); and the desire for recognition, which he describes as the very motor of history.
7,215 citations
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01 Jan 1936
TL;DR: One of the most important works of cultural theory ever written, Walter Benjamin's groundbreaking essay explores how the age of mass media means audiences can listen to or see a work of art repeatedly and what the troubling social and political implications of this are as mentioned in this paper.
Abstract: One of the most important works of cultural theory ever written, Walter Benjamin's groundbreaking essay explores how the age of mass media means audiences can listen to or see a work of art repeatedly - and what the troubling social and political implications of this are. Throughout history, some books have changed the world. They have transformed the way we see ourselves - and each other. They have inspired debate, dissent, war and revolution. They have enlightened, outraged, provoked and comforted. They have enriched lives - and destroyed them. Now Penguin brings you the works of the great thinkers, pioneers, radicals and visionaries whose ideas shook civilization and helped make us who we are.
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