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
More filters
2,927 citations
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
2,050 citations
599 citations
01 Apr 2001
371 citations
369 citations
References
More filters
Posted Content•
TL;DR: In this article, a discussion on the development of legal analysis that broadly considers the interplay between law and technology is presented, with a focus on three non-traditional areas of technology law: contracts, tax, and privacy.
Abstract: This Article seeks to begin a discussion on the development of legal analysis that broadly considers the interplay between law and technology. Part I provides background on the need for the development of this theory, which could draw from and inform traditional legal scholarship that studies discrete areas of technology law like intellectual property law. Part II scrutinizes cases and policy decisions within three non-traditional areas of technology law - contracts, tax, and privacy - to show how legal analysis in light of technological change can be broken down into two broad categories: (1) a 'liberal' approach that is more sensitive to the ways that technological change affects interests, while often seeking legal solutions that are less deferential to legal precedents and traditional doctrine; and (2) a 'conservative' approach that relies more on traditional doctrinal analysis and precedents. Part III elaborates on general principles of analysis that can be drawn from the liberal approach, which: (a) recognizes that the interplay between law and technology is complex and interactive; (b) requires flexible legal solutions when it is determined that technological developments are undermining interests ("law is technology"); (c) recognizes that the direct regulation of technology provides opportunities to indirectly regulate behaviour to promote optimal social policy ("technology is law"). In summary, the liberal approach scrutinizes whether, given current or anticipated technological settings, a legal rule will promote the attainment of policy objectives ("is the legal rule scientific?"). Part IV offers tentative observations on the ways that a law and technology theory can provide insight into the whole law by revealing that, for instance, during times of technological change the entire law adapts by becoming a more flexible and forward-looking system. A downside of this transformation is that the liberal approach destabilizes the law by undermining the usefulness of precedents, making it more difficult for lawyers to predict the outcome of cases for their clients.
17 citations
Additional excerpts
...319 Riles (2005), pp 975–976; Cockfield (2005), p 402....
[...]
01 Jan 2004
TL;DR: The authors examined the relationship between trust and public attitudes towards new technologies in Australia and found a positive relationship for the majority of respondents between trust in government, business and media and comfort with technologies.
Abstract: This study examines the relationship between trust and public attitudes towards new technologies in Australia. Using data from the 2003 and 2004 Swinburne National Technology and Society Monitors, we ask: does the trustworthiness of the key institutions and people behind new technologies have an impact on how comfortable people are with new technologies? Our analysis shows that, for the majority of Australians, levels of trust in science are predictive of levels of comfort with new technologies, and the relationship is particularly strong for biological technologies, including stem cell research. We also found a positive relationship for the majority of respondents between trust in government, business and media and comfort with technologies. We expected that Australians would be more trusting of public than private institutions, and that their levels of trust in institutions might vary across different demographic groups, in particular gender, religiosity, and occupational category. We found evidence to support these expectations.
17 citations
Journal Article•
TL;DR: The importance of forgetting is also found in the mythology of Athens as discussed by the authors, where the first prohibition on memory was introduced by Xenophon and Herodotus in 403 BCE, when the Peloponnesian War had ended and the Athenian Democrats defeated the 30 tyrants who were ruling Athens subsequent to a coup.
Abstract: [This essay offers eight theses in the style of Walter Benjamin's 'Theses on the Philosophy of History'. Law constructs time as linear, turns history into legal procedure and uses it to create the authorised record of the past, to legitimise the present and prevent radical change in the future. Heidegger's ontological and Benjamin's messianic conceptions of time can be used to undermine dominant legal temporality. But only a return to Athens and politics promises resistance and reconciliation.] CONTENTS Thesis I Thesis II Thesis III Thesis IV Thesis V Thesis VI Thesis VII Thesis VIII In his Hellenica, Xenophon relates an extraordinary story. (1) In 403 BCE, when the Peloponnesian War had ended, the Athenian Democrats defeated the 30 tyrants who were ruling Athens subsequent to a coup. Cleocritos, the representative of the Democratic Party, could have acted as a vengeful conqueror and demanded the punishment of his enemies for the brutalities they had committed. Instead, his call to the Athenians was, 'let us forget the evils of the past.' (2) The demos passed a decree banning the recollection of these traumatic events and the raising of lawsuits related to them, and the citizens took the oath: me mnesikakein--not to remember the evils but also not to use memory as a tool for evil. (3) A clause in the decree exempted only the 30 tyrants and 31 of their henchmen. Instead, these 61 were executed. When one of the Democrats objected to the imposed forgetting, he was brought before the demos by the Democrat Archinos and sentenced to death. (4) After that, the evils of the past were forgotten. There are clear precedents to this story. Herodotus relates the first prohibition on memory. (5) The Persians put down a rebellion of the Ionians in Asia Minor in 494 BCE. They conquered and pillaged the city of Miletos and set fire to its altars and temples. The Athenians were devastated by the catastrophe that had befallen their brothers in Miletos. When the earliest tragedian Phrynichus produced The Taking of Miletus, the Athenians were deeply moved; they cried and mourned and hated it. They fined Phrynichos 1000 drachmas because he had reminded them of their own misfortunes. It was decreed that the play should never be performed again, because it recalled the pathe, the passion of their kin, the Ionians and their polis; ie, the destruction of political identity. (6) The tragedy was condemned to Lethe, the fiver of oblivion. The importance of forgetting is also found in the mythology of Athens. According to Plutarch, when Poseidon lost his contest with Goddess Athena to become the protector of Athens, he did not express a desire for revenge. The grateful Athenians deleted from their calendar the day of the battle, the second day of the month of voidromionos (September), because it was a sad memory for Poseidon, and they built an altar to Lethe on Acropolis. (7) The banned day initiated the institution of what the Romans called Dies Fasti and Nefasti--banned days, days of mourning on which only certain religious and legal acts could take place. The Greek word is imera apofras--the day that cannot be spoken. We can say that the lost day, the second of voidromionos, is the day of the polis, the time of politics, a time intimately linked with the origins of tragedy, the beginning of Western literature. Aristotle agrees, arguing that politics is what gives rise to revenge, or brings an end to it. (8) Some 23 centuries later, the great historian of the French Revolution, Jules Michelet, wrote: each death leaves something good behind, and demands that it be recalled. The magistrates must supply friends to those who have none. Because law and justice are more certain than our forgotten tenderness because our tears are shed so quickly, this magistracy is History ... I have exhumed the dead for a second life ... they live now with us who have become their parents, their friends. …
17 citations
TL;DR: The process of motorisation in Australia has received little attention from historians as discussed by the authors, which is surprising given Australia's rapid adoption of the motor car and its long-held position as one of the world's most popular tourist destinations.
Abstract: The process of motorisation in Australia has received little attention from historians. This is surprising given Australia's rapid adoption of the motor car, and its long‐held position as one of th...
16 citations