The laws of technology and the technology of law

Tranter, K. (2011). The laws of technology and the technology of law. Griffith Socio-Legal Research Centre Research Paper, (101). Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2137445

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@article{Tranter2011The-laws,
annote = {Extracted Annotations {(Fri} Feb 14 11:19:29 {2014)"This} article maps responses to the question of law and technology. While there is much literature that considers law and technology, deeper connections have been underappreciated. In particular, the general and historical dimension of the legal engagement with technology, the cultural and social mediations between law and technology, and the technology of law itself have been neglected. Through mapping where these connections have been made, the following contributions to this special issue of the {GLR} on {'The} Laws of Technology and the Technology of Law' can be appreciated." {(Tranter} {2011:1)"In} particular, three trajectories of law and technology have mostly been ignored. The first is in its populist focus on the future impacts of an emergent technology, where there has been a restriction on wider considerations of technology generally as well as historical perspectives. The second is that the positivist rules and gaps focus of the law and technology enterprise has not allowed exploration of the cultural and social mediations between law and technology. Third, the way in which technology seems to bring out the law as a form of technology has been ignored." {(Tranter} {2011:2)"Most} writing on law and technology follows populist hopes or anxieties for a specific technology. The focus has been on a specific technology within a specific moment. The volumes of cyberlaw scholarship from the midto late 1990s, or the similar volumes on cloning after the announcement of the birth of Dolly from the late 1990s to early 2000s, stands as testament to the tendency." {(Tranter} {2011:2)"Cyberlaw} considered the growth of {ICT} in the late 1990s and projected an {ICT} future whose legality needed thinking about in the then present.3 The cloning literature considered Dolly the herald of future human cloning for therapies and reproduction that needed prohibiting and regulating.4 Rarely were both considered together as two contemporary technological crisis events challenging existing forms of law, ethics and governance." {(Tranter} {2011:2)"The} excitement and concern of the internet in early cyberlaw as something beyond the jurisdiction of state law mirrors similar anxieties that space lawyers wrote about in the immediate aftermath of Sputnik, yet whatever lessons could be seen in the process whereby outer space became legalised were not considered by cyberlawyers in their debates on the jurdification of cyberspace." {(Tranter} {2011:3)"Culture/society} is the place where law and technology meet. However, the positivism of the law and technology enterprise has not presented a sophisticated lens through which the social and cultural mediations of law and technology can be appreciated. Instead, the focus has been on the old legal science of finding and commenting on the law that is." {(Tranter} {2011:3)"How} technology calls law, or how law calls technology, or how the controls of law and technology influence and/or are confounded by human doing in the world have not been considered by legal scholars." {(Tranter} {2011:3)"What} can be seen is that the law called forth by technology is too often a technologicalised form of law.22 The predominant theory of law in the orthodox scholarship is instrumental and sovereign. At a fundamental level, law is conceived as a process, a machine that can be deployed. This creates a series of under-thought dimensions for law and technology. The foremost is the suitability of law as technology to deal with technology. From this, a whole set of complications can be identified {\textendash} ranging from the essential technicity of the contemporary West to the politics, ethics and correspondence to the real of a vision of law as technology." {(Tranter} {2011:4)"See}, for example, Cockfield (2005) (using macro-accounts of society and technology from technology studies); Bernstein (2006) (using studies of technology diffusion); Mandel (2005) (using sociological data on public attitudes to technologies); Tranter (2010) (using media analysis on cloning and stem cell research in Australia)." {(Tranter} {2011:4)"It} is this fragility of the nature/culture divide within the contemporary West that can be seen within the contributions of Charles Lawson, Karen {O{\textquoteright}Connell} and Jennifer Chandler. In pursuing what can be seen as interdisciplinary law and technology scholarship, each draws upon technology studies to position technology as radically mediating the established nature/culture divide to show that law does not necessarily need to catch up in a doctrinal sense, but that law and technology continually remake becoming." {(Tranter} {2011:5)"The} horizons of the future and the lived of the present change through the creative interactions of law and technology." {(Tranter} {2011:5)"Through} considering the ways that economic, social/cultural and legal networks render the use and adoption of certain technologies {\textquoteleft}obligatory{\textquoteright}, Chandler constructs a much more embedded, cybernetic image of the agent of biomedical ethics." {(Tranter} 2011:6)"the technicity of law, the ramifications of the technical substrata of law and the legal substrata of technology." {(Tranter} {2011:6)"Pugliese} shows that the technicity of drones combines with the technical necessities of the law of war to achieve parentheses {\textendash} a bracketing off in time, space and responsibility for the taking of life, for the drones, satellites, control stations and the {US-based} human {\textquoteleft}pilots{\textquoteright}." {(Tranter} {2011:6)"Yet} for Pugliese the total ensemble of a killing entity arching across half the globe suggests prosthetics {\textendash} a cyborg entity where, notwithstanding states of technical lags and exceptions, the human and technology and law are coexistent." {(Tranter} {2011:6)Drones} are not about Law trying to catch up (comp. Weizmann). But on a whole complex of law and technology being the killing entity. This does not neglect the fact that another law/technology netoerk, that on international human rights and its advocates, are not keeping up. (note on p.7)"allows law and technology to be seen more clearly as intertwining constitutes of the biopolitical West." {(Tranter} 2011:7)"disrupts the established mechanics of notice and identity that allow agency in the place of law. In their contribution, Mohr and Contini emphasise the assemblages of law, technology and the social." {(Tranter} {2011:7)"Lyria} Bennett Moses (2003) {{\textquoteleft}Adapting} the Law to Technological Change: A Comparison of Common Law and Legislation{\textquoteright} 26 University of New South Wales Law Journal 394. Lyria Bennett Moses (2007a) {{\textquoteleft}The} Legal Landscape Following Technological Change: Paths to Adaption{\textquoteright} 27 Bulletin of Science, Technology and Society 408. Lyria Bennett Moses (2007b) {{\textquoteleft}Recurring} Dilemmas: The Law{\textquoteright}s Race to Keep Up with Technological Change{\textquoteright} 7 Journal of Law, Technology and Policy 239. Lyria Bennett Moses (2008) {{\textquoteleft}The} Application of Property Law in New Contexts: From Cells to Cyberspace{\textquoteright} 30 Sydney Law Review 639." {(Tranter} {2011:9)"Roger} Brownsword (2008a) Rights, Regulation and the Technological Revolution, Oxford University Press." {(Tranter} {2011:9)"Roger} Brownsword (2008b) {{\textquoteleft}So} What Does the World Need Now? Reflections on Regulating Technologies{\textquoteright}, in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes, Hart." {(Tranter} {2011:9)"Arthur} J Cockfield (2005) {{\textquoteleft}Towards} a Law and Technology Theory{\textquoteright} 30 Manitoba Law Journal 382." {(Tranter} {2011:9)"Arthur} J Cockfield and Jason Pridmore (2007) {{\textquoteleft}A} Synthetic Theory of Law and Technology{\textquoteright} 8 Minnesota Journal of Law, Science and Technology 475." {(Tranter} {2011:9)"Bert-Jaap} Koops (2008) {{\textquoteleft}Criteria} for Normative Technology: The Acceptability of {{\textquotedblleft}Code} as Law{\textquotedblright} in Light of Democratic and Constitutional Values{\textquoteright}, in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes, Hart." {(Tranter} {2011:10)"Kieran} Tranter (2007a) {{\textquoteleft}{\textquotedblleft}Frakking} Toasters{\textquotedblright} and Jurisprudences of Technology: The Exception, the Subject and Techn\'{e} in Battlestar Galactica{\textquoteright} 19 Law and Literature 45." {(Tranter} {2011:10)"Kieran} Tranter (2007b) {{\textquoteleft}Nomology}, Ontology and Phenomenology of Law and Technology{\textquoteright} 8 Minnesota Journal of Law, Science and Technology 449." {(Tranter} {2011:10)"Kieran} Tranter (2011) {{\textquoteleft}The} Law and Technology Enterprise: Uncovering the Template to Legal Scholarship on Technology{\textquoteright} 3 Law, Innovation and Technology 31." {(Tranter} {2011:10)"Mitchell} Travis (2011) {{\textquoteleft}Making} Space: Law and Science Fiction{\textquoteright} 23 Law and Literature 241." {(Tranter} {2011:10)"Laurence} H Tribe (1973) {{\textquoteleft}Technology} Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality{\textquoteright} 46 Southern California Law Review 616." {(Tranter} 2011:10)},
author = {Tranter, Kieran},
date-added = {2014-02-16 15:59:59 +0000},
date-modified = {2014-02-16 16:00:51 +0000},
journal = {Griffith {Socio-Legal} Research Centre Research Paper},
keywords = {bibdesk, cybernormer, information, read},
number = {101},
title = {The laws of technology and the technology of law},
url = {http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2137445},
year = {2011},
bdsk-url-1 = {http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2137445},
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}

Key ideas.

This article is a litterature review over responses to the question of law and technology as part of a special issue of Grffith law review on the topic.

The article argues that three aspects of the relation between law and technology has been ignored in research and states the reason for this.

1) [I]n its populist focus on the future impacts of an emergent technology, where there has been a restriction on wider considerations of technology generally as well as historical perspectives.

An example of such a historical perspective is that similar considerations of legal scholars in the early days of cyberspace happened with the launch of the Sputnik satellite and the notion of technology literally in space.

Implicit in the focus on legal implications are the idea that technology pushes and law tries to catch up. This is also related to point 2) below

2) [T]he positivist rules and gaps focus of the law and technology enterprise has not allowed exploration of the cultural and social mediations between law and technology.

3) [T]he way in which technology seems to bring out the law as a form of technology has been ignored.

The perspective the article favors is one where law and technology both shape the “horizons of the future and the lived of the present”. An example in the article is drone warfare where law and technology combine to create the space (or rather non-space) where the responsibility for the taking of lives can be bracketed off. If we compare this to Weizmanns work we can also see that different legal regimes align with different technological regimes to compete for a construction of the horizon of the possible.

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Highlights (27%)

This article maps responses to the question of law and technology. While there is much literature that considers law and technology, deeper connections have been underappreciated. In particular, the general and historical dimension of the legal engagement with technology, the cultural and social mediations between law and technology, and the technology of law itself have been neglected. Through mapping where these connections have been made, the following contributions to this special issue of the GLR on ʻThe Laws of Technology and the Technology of Lawʼ can be appreciated. p. 1

In particular, three trajectories of law and technology have mostly been ignored. The first is in its populist focus on the future impacts of an emergent technology, where there has been a restriction on wider considerations of technology generally as well as historical perspectives. The second is that the positivist rules and gaps focus of the law and technology enterprise has not allowed exploration of the cultural and social mediations between law and technology. Third, the way in which technology seems to bring out the law as a form of technology has been ignored. p. 2

Most writing on law and technology follows populist hopes or anxieties for a specific technology. The focus has been on a specific technology within a specific moment. The volumes of cyberlaw scholarship from the midto late 1990s, or the similar volumes on cloning after the announcement of the birth of Dolly from the late 1990s to early 2000s, stands as testament to the tendency. p. 2

Cyberlaw considered the growth of ICT in the late 1990s and projected an ICT future whose legality needed thinking about in the then present.3 The cloning literature considered Dolly the herald of future human cloning for therapies and reproduction that needed prohibiting and regulating.4 Rarely were both considered together as two contemporary technological crisis events challenging existing forms of law, ethics and governance. p. 2

The excitement and concern of the internet in early cyberlaw as something beyond the jurisdiction of state law mirrors similar anxieties that space lawyers wrote about in the immediate aftermath of Sputnik, yet whatever lessons could be seen in the process whereby outer space became legalised were not considered by cyberlawyers in their debates on the jurdification of cyberspace. p. 3

Culture/society is the place where law and technology meet. However, the positivism of the law and technology enterprise has not presented a sophisticated lens through which the social and cultural mediations of law and technology can be appreciated. Instead, the focus has been on the old legal science of finding and commenting on the law that is. p. 3

How technology calls law, or how law calls technology, or how the controls of law and technology influence and/or are confounded by human doing in the world have not been considered by legal scholars. p. 3

What can be seen is that the law called forth by technology is too often a technologicalised form of law.22 The predominant theory of law in the orthodox scholarship is instrumental and sovereign. At a fundamental level, law is conceived as a process, a machine that can be deployed. This creates a series of under-thought dimensions for law and technology. The foremost is the suitability of law as technology to deal with technology. From this, a whole set of complications can be identified – ranging from the essential technicity of the contemporary West to the politics, ethics and correspondence to the real of a vision of law as technology. p. 4

See, for example, Cockfield (2005) (using macro-accounts of society and technology from technology studies); Bernstein (2006) (using studies of technology diffusion); Mandel (2005) (using sociological data on public attitudes to technologies); Tranter (2010) (using media analysis on cloning and stem cell research in Australia). p. 4

It is this fragility of the nature/culture divide within the contemporary West that can be seen within the contributions of Charles Lawson, Karen O’Connell and Jennifer Chandler. In pursuing what can be seen as interdisciplinary law and technology scholarship, each draws upon technology studies to position technology as radically mediating the established nature/culture divide to show that law does not necessarily need to catch up in a doctrinal sense, but that law and technology continually remake becoming. p. 5

The horizons of the future and the lived of the present change through the creative interactions of law and technology. p. 5

Through considering the ways that economic, social/cultural and legal networks render the use and adoption of certain technologies ‘obligatory’, Chandler constructs a much more embedded, cybernetic image of the agent of biomedical ethics. p. 6

the technicity of law, the ramifications of the technical substrata of law and the legal substrata of technology. p. 6

Pugliese shows that the technicity of drones combines with the technical necessities of the law of war to achieve parentheses – a bracketing off in time, space and responsibility for the taking of life, for the drones, satellites, control stations and the US-based human ‘pilots’. p. 6

Yet for Pugliese the total ensemble of a killing entity arching across half the globe suggests prosthetics – a cyborg entity where, notwithstanding states of technical lags and exceptions, the human and technology and law are coexistent. p. 6

allows law and technology to be seen more clearly as intertwining constitutes of the biopolitical West. p. 7

Drones are not about Law trying to catch up (comp. Weizmann). But on a whole complex of law and technology being the killing entity. This does not neglect the fact that another law/technology netoerk, that on international human rights and its advocates, p. 7

disrupts the established mechanics of notice and identity that allow agency in the place of law. In their contribution, Mohr and Contini emphasise the assemblages of law, technology and the social. p. 7

Lyria Bennett Moses (2003) ‘Adapting the Law to Technological Change: A Comparison of Common Law and Legislation’ 26 University of New South Wales Law Journal 394. Lyria Bennett Moses (2007a) ‘The Legal Landscape Following Technological Change: Paths to Adaption’ 27 Bulletin of Science, Technology and Society 408. Lyria Bennett Moses (2007b) ‘Recurring Dilemmas: The Law’s Race to Keep Up with Technological Change’ 7 Journal of Law, Technology and Policy 239. Lyria Bennett Moses (2008) ‘The Application of Property Law in New Contexts: From Cells to Cyberspace’ 30 Sydney Law Review 639. p. 9

Roger Brownsword (2008a) Rights, Regulation and the Technological Revolution, Oxford University Press. p. 9

Roger Brownsword (2008b) ‘So What Does the World Need Now? Reflections on Regulating Technologies’, in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes, Hart. p. 9

Arthur J Cockfield (2005) ‘Towards a Law and Technology Theory’ 30 Manitoba Law Journal 382. p. 9

Arthur J Cockfield and Jason Pridmore (2007) ‘A Synthetic Theory of Law and Technology’ 8 Minnesota Journal of Law, Science and Technology 475. p. 9

Bert-Jaap Koops (2008) ‘Criteria for Normative Technology: The Acceptability of “Code as Law” in Light of Democratic and Constitutional Values’, in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes, Hart. p. 10

Kieran Tranter (2007a) ‘“Frakking Toasters” and Jurisprudences of Technology: The Exception, the Subject and Techné in Battlestar Galactica’ 19 Law and Literature 45. p. 10

Kieran Tranter (2007b) ‘Nomology, Ontology and Phenomenology of Law and Technology’ 8 Minnesota Journal of Law, Science and Technology 449. p. 10

Kieran Tranter (2011) ‘The Law and Technology Enterprise: Uncovering the Template to Legal Scholarship on Technology’ 3 Law, Innovation and Technology 31. p. 10

Mitchell Travis (2011) ‘Making Space: Law and Science Fiction’ 23 Law and Literature 241. p. 10

Laurence H Tribe (1973) ‘Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality’ 46 Southern California Law Review 616. p. 10

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