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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Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l
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References
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TL;DR: This paper looks at the universe of these virtual worlds and how virtual world providers compete with each other, trace the likely development of regulatory interdependence and suggest how real-world lawmakers may want to facilitate virtual world self-governance.
Abstract: More than a decade ago John Perry Barlow envisioned a cyberspace free from real-world regulation. His vision was flawed. But virtual worlds, in which millions of users around the world spend significant amounts of their time (and money) interacting and transacting with each other, may prove Barlow right after all. In this paper, we look at the universe of these virtual worlds and how virtual world providers compete with each other, trace the likely development of regulatory interdependence and suggest how real-world lawmakers may want to facilitate virtual world self-governance. As virtual world providers transform themselves from offering content to offering a virtual space in which users can settle with their intellectual property, they begin to compete over the regulatory frameworks they offer their users. Users free to take their property and move to a different virtual world at relatively low cost, unleash intriguing regulatory dynamics between the virtual worlds. Will they engage in touch regulatory competition? Will pockets of cooperation develop and if so why and where? Or will virtual world providers much like Tiebout suggested differentiate based on user preferences, and will the virtual world universe hence reach a stable equilibrium? A similar dynamic may ensue among real-world lawmakers attempting to regulate virtual worlds. Virtual world providers may relocate to more welcoming jurisdictions, taking revenue streams with them. Coordination among real-world regulators may offer reprieve from a potential regulatory race to the bottom, but only temporarily. The more real-world lawmakers are tempted to reign in virtual worlds, the likelier that virtual worlds will become decentralized like peer-to-peer networks, leaving real-world jurisdictions without an easily identifiable entity to regulate. To avoid the birth of such a Barlowian virtual space, we suggest real-world lawmakers are better off facilitating the inculcation of real-world governance values into the nascent virtual worlds of self-governance.
46 citations
Journal Article•
TL;DR: In the last few years, the deconstructionist critique against intellectual property has been renewed by a critical zeitgeist in which legal institutions which were widely taken to be neutral are scrutinized for bias against disenfranchised or less enfranchised groups as mentioned in this paper.
Abstract: Intellectual property is traditionally justified as an ex ante incentive structure to produce social wealth by "promot[ing] the Progress of Science and the useful Arts"1 It has also been observed that intellectual property can be a means to protect the personality interest or "personhood" of individual creators2 A person may view her intellectual creations as a statement or manifestation of her spirit, creativity, and identity This "personality theory" naturally leads to concern that laws protect the integrity of, and the creator's prerogatives over, intellectual products In this vein, personhood proponents should occupy the vanguard of "moral rights" for authors3 and publicity rights for celebrity performers4 In the last few years, this generally pro-property personhood theory has been met with a scholarly reply specific to intellectual property: that owners' rights to control their intellectual property are really rights about who controls social meaning For example, one commentator has noted that disputes over unauthorized uses of copyrighted photographs tend to reduce to one question: "At what point, courts must decide, does a change in context or use transform an image's meaning?"5 For this deconstructionist perspective,6 changes in meaning are welcome and property rights should be limited to give non-owners greater breadth to shape their own messages and, thereby, increase the personhood benefits that intellectual creations brings to those non-owners In other words, true solicitude for personal development calls for weakening some of the barriers created by intellectual property Along these lines it is argued that authors need greater latitude to quote existing texts, that performing artists need more liberty to interpret theatrical works, that minority groups need greater liberty to manipulate or "recode" existing cultural symbols like celebrity images, and that the Internet opens up a bold new world in which "author" and "work"-cornerstones of copyright theory-lose their very meaning7 This demarche against intellectual property is informed by, and forms part of, a critical zeitgeist in which legal institutions which were widely taken to be neutral are scrutinized for bias against disenfranchised or less enfranchised groups But this critique of intellectual property is more than just the application of current intellectual fashions to a set of well-known legal doctrines-it is more precisely because the critique comes at a time when the legal devices are themselves in vogue There is no question that intellectual property is a "hot" practice area, that the United States sees the extension and stabilization of intellectual property rights as one its main goals in international commerce, and that property notions are being applied-implicitly and explicitly-to a wider variety of social issues Property law language now appears even in First Amendment jurisprudence8 When grappling with problems like welfare reform or immigration, people in the late 1990s speak less of "interest groups" and more of "stakeholders,"9 as though everyone who has an interest in a problem is a settler on the Western frontier Although this makes the deconstructionist critique timely, it does not make it correct or even complete Long before Foucault, Montaigne offered the first conceptual step in this argument when he observed that "the word is half his that speaks and half his that hears it"10 If the word is so shared, why should the "speaker"-the original artist, composer, or author-have such powerful control over the word's fate? The deconstructionist would liberate the word from the speaker's control and give everyone more freedom to recode intellectual property The problem with the deconstructionist argument for "recoding freedom" is that it does not consider the recipient of a cultural image as a listener It focuses on the recipient as a new speaker-or a secondary user-someone who will "utter" the cultural object again for her own act of communication …
45 citations
TL;DR: There are at least two Translation Studies approaches to translation: a narrower and a broader one that actually allows any kind of human activity to be included into the translational sphere.
Abstract: Justice as translation: an essay in cultural and legal criticism, by James Boyd White, Chicago and London, The University of Chicago Press, 1994, 313 pp., US$27.00 (paperback), ISBN 0-226-89496-7 T...
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Book•
31 Dec 2007
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Additional excerpts
...177 Brenner (2007), pp 2–3....
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