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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2,927 citations
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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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13 citations
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TL;DR: In this paper, the authors analyse the structure mythique du recit du film The Matrix des freres Wachowski, and find that le recit resiste fortement au mythe de l'autochtonie, alors que son imagerie et ses techniques recreate the prediction fondamentale du myhte.
Abstract: Analysant la structure mythique du recit du film The Matrix des freres Wachowski, l'A. suggere que ce film de science-fiction pourrait bien contribuer a elucider certains aspects du mythe de l'autochtonie, de cet ancien principe cosmologique de l'origine chtonienne de l'etre humain. Selon l'A. la notion d'autochtonie traverse et informe l'ensemble du film The Matrix, qui evoque une geographie culturelle caracteristique d'une epoque archaique, un passe autochtone commemore dans le mythe d'une origine asexuee. Cependant, The Matrix est ambivalent quant a ses elements mythiques, affirmant et deniant simultanement les motifs autochtones. En particulier, le recit du film resiste fortement au mythe de l'autochtonie, alors que son imagerie et ses techniques recreent la prediction fondamentale du myhte. Le resultat en est une tension puissante qui revele la logique etrange de l'autochtonie, la maniere dont ce concept denie le contexte reproductif de l'existence humaine afin de concevoir une autre destinee pour l'humanite. Selon l'A., une partie du film The Matrix (re)connait ce que son recit officiel ne sait pas : que le futur n'appartient pas a l'espece humaine
13 citations
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TL;DR: In this paper, the authors present some legal policy proposals for the regulation of gestational contracts in order to safeguard the best interests of the child, to ensure the informed consent of surrogate mothers and to protect intentional parents from the surrogate's opportunistic or reckless behavior.
Abstract: Gestational surrogacy is a form of artificial insemination whereby a doctor implants the fertilized eggs of a woman into the surrogate's uterus. Gestational surrogacy contracts are unenforceable almost everywhere in the world. In this paper, we support the thesis that these contracts should be enforceable. Our approach is informed by the economic analysis of contract law and is predicated on the assumption that law should serve social welfare (as a function of individuals' well being). We discuss and rebut the arguments most often invoked against surrogacy: immorality, commodification and exploitation. Finally, we present some legal policy proposals for the regulation of gestational contracts in order to safeguard the best interests of the child, to ensure the informed consent of surrogate mothers and to protect intentional parents from the surrogate's opportunistic or reckless behavior.
12 citations
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TL;DR: The making of the 1909 motor traffic act in New South Australia is discussed in this article, where Speed, modernity and the motor car: the making and evolution of the car.
Abstract: (1994). Speed, modernity and the motor car: The making of the 1909 motor traffic act in New South Wales. Australian Historical Studies: Vol. 26, No. 103, pp. 221-241.
12 citations
Additional excerpts
...249 Nemes (2008), p 142 250 Sinclair and Schofield (2007), pp 221–222; Cooper (2006), pp 29–40; Otlowski (2006); McPhee (2006)....
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...249 Nemes (2008), p 142 250 Sinclair and Schofield (2007), pp 221–222; Cooper (2006), pp 29–40; Otlowski (2006); McPhee (2006). 251 Nemes (2008), pp 143–144. 252 Nemes (2008), pp 147, 153–154....
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...249 Nemes (2008), p 142 250 Sinclair and Schofield (2007), pp 221–222; Cooper (2006), pp 29–40; Otlowski (2006); McPhee (2006). 251 Nemes (2008), pp 143–144....
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