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.
Citations
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TL;DR: In this paper, a judge in some representative American jurisdiction is assumed to accept the main uncontroversial constitutive and regulative rules of the law in his jurisdiction and to follow earlier decisions of their court or higher courts whose rationale, as l
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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01 Apr 2001
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References
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Journal Article•
[...]
TL;DR: The case of Leonardus and his seven-year sentence in the galleys of the Supreme Court of Sicily was investigated in this article, where the case was cited twice by Desiderius Spreti in his defence of Guido Franceschini.
Abstract: In March 1617 Marius Muta, a Judge of the Supreme Court of Sicily, sentenced a certain Leonardus to seven years in the galleys. It seems that Leonardus had lured his unfaithful wife outside the city walls, where he killed her, and where her body was later partially eaten by dogs. Over eighty years later, this case was cited twice by Desiderius Spreti in his defence of Guido Franceschini, a Tuscan nobleman on trial in Rome for the murder of his wife. More than two and a half centuries later the case found its way into English literature in Robert Browning's The Ring and the Book (1868-9),4 a poem based on the Franceschini trial as recorded in contemporary legal documents discovered by the poet. Browning's defence lawyer, Dominus Hyacinthus de Archangelis (in the actual case Spreti had been his junior), cites the case of Leonardus:
For pregnant instance, let us contemplate
The luck of Leonardus, - see at large
Of Sicily's Decisions sixty-first.
This Leonard finds his wife is false: what then?
He makes her own son snare her, and entice
Out of the town-walls to a private walk:,
Wherein he slays her with commodity.
They tmd her body half-devomed by dogs:
Leonard is tried, convicted, punished, sent
To labour in the galleys seven years long:
Why? For the murder? Nay, but for the mode! (VID. 809-19)
Just as Spreti gave Muta's judgment new life by citing it in the context of a new case, so Browning's version brings the case to life again, and gives it new discursive and linguistic vitality by translating it, not just from Latin into English (for Browning did not have the benefit of Gest's translation), but also from legal discourse into poetry. The poem pushes the citation in the general direction of narrative fiction, and in so doing it brings law and literature into mutually illuminating relationship. The two citations, in the Franceschini trial and in Browning's poem, tell the same story in different ways, and to look at them in relation to each other is to observe law and literature grappling and communicating with each other.
34 citations
Additional excerpts
...71 Dworkin (1982)....
[...]
TL;DR: In this paper, the authors introduce uninitiated readers to the emerging, interdisciplinary field of law and film, while presenting them with the framework of one formulation of this new area of research.
Abstract: This article's modest goal is to introduce uninitiated readers to the emerging, interdisciplinary field of law-and-film, while presenting them with the framework of one formulation of this new area of research. The article's first part opens with a brief overview of law-and-film scholarship and proceeds to outline my own suggested conceptualization of the law-and-film terrain. This framework defines three distinct perspectives on law-and-film that, I believe, capture much of the law-and-film enterprise. These perspectives rely on three fundamental premises: that some films' modes of social operation parallel those of the law and legal system; that some films enact viewer-engaging judgment; and that some films elicit popular jurisprudence. Parts B, C and D of this article present and explore these perspectives in more detail, illustrating them with specific law-film examples. The paper concludes with a brief reference to the benefits of using law-and-film in teaching.
33 citations
"Technical Legality: Law, Technology..." refers background in this paper
...On the emergence of law and film, see Kamir (2005), pp 255– 256....
[...]
TL;DR: Borgmann as mentioned in this paper, Holding on to Reality: The Nature of Information at the Turn of the Millennium, University of Chicago Press, 2000, p. 5.1.1
Abstract: Albert Borgmann, Holding on to Reality: The Nature of Information at the Turn of the Millennium, University of Chicago Press, 2000.
33 citations
Book•
01 Feb 2001
TL;DR: Kamir as mentioned in this paper traces the evolution of notions of stalking and stalkers from ancient mythology through medieval folklore and nineteenth-century literature to contemporary film and social science, and suggests that such stories serve social functions, enforcing traditional gender roles within the patriarchal social order.
Abstract: "Every Breath You Take" traces the evolution of notions of stalking and stalkers from ancient mythology through medieval folklore and nineteenth-century literature to contemporary film and social science Critically analyzing stories of stalking within a wide range of historical and cultural discourses, the book suggests that such stories serve social functions, enforcing traditional gender roles within the patriarchal social order It reveals how stories of stalking have facilitated moral panics that have fueled the persecution of "stalkers" as social deviants It argues that a contemporary "stalking moral panic" led to America's anti-stalking laws, laws that actually address mythological images and stereotypes and are therefore inadequate in their treatment of the actual social phenomenon of stalking It concludes by suggesting an alternative legal treatment of stalking, one that relies on an informed, critical reading of both moral panics and cultureThe study shows how Lilith--Jewish mythology's Queen of Demons--as Western culture's archetypal female stalker, eventually inspired the construction of the images of the medieval witch and nineteenth-century prostitute Similarly, the vampire--our culture's archetypal male stalker--can be seen in Frankenstein's creature, in Mr Hyde, and in Dracula, as well as in more contemporary images of male stalkers (such as Robert DeNiro's taxi driver and "Halloween"'s Michael) Orit Kamir posits that in the twentieth century, film was the major force in developing images of male and female stalkers, leading to a moral panic that resulted in the 1980s anti-stalking laws Careful reading of these laws reveals that they address cultural images of archetypal stalkers rather than the actual social phenomenon of stalking, which involves ordinary men and women, not mythological monstersThe book is unusual in its combination of cultural studies with a sociological perspective and legal analysis It argues that legal analysis can be greatly informed by close, critical textual reading of both relevant stories and social phenomena It will be of keen interest to those in critical legal studies as well as scholars in film, literature, and folkloreOrit Kamir is Professor of Law, Hebrew University in Jerusalem
33 citations