Wed, 12/16/2020
This blog post supplements Tech Refactored episodes 4 and 5, titled "What is Law and Technology." Listen to the discussion here.
The question “what is law and technology?” presupposes that we will be knitting two disparate fields together. But law is technology, a specific kind. Stanislaw Lem wrote: “technology is the domain of problems and their solutions.”1 Law is as much technology as any other field of human endeavor. It is a solution to a specific kind of problem: how should humans cooperate in the task of living together?
Humans work out how to live together through language. As Edward Wilson and Yuval Harari write from completely different directions, language is humans’ cooperative superpower.2 Our ability to cooperate at a billion-person scale depends on our ability to use language to create cooperative fictions like gods, tribes, nations, time, money, and of course, laws. Our ability to create new such legal fictions, laws, phrases, or other centering objects of culture, will determine our ability to address problems of the future. Law is language, and specifically, it is the refined language of human cooperation. Technology law is the business end of that cooperation: developing a rich and life-giving language of cooperation that helps us talk about the problems of the future.
Fields often define themselves by method, so let’s take a look at law’s method. Labcoat scientists observe experiments, mathematicians proceed by logic. Legal method relies on interpretation of what is said, and the crafting of new cooperative loci, ones like #MeToo and #BLM. Those cooperative sigils did not have meaning before they were located in a webwork of linguistic and cultural meaning. Now they do, and they do the normative work of giving us what Bob Cover calls a “nomos,” a normative universe that orients us to the work of living together.3
Law’s method is as scientific as any other, but it is neither empirical nor logical-mathematical. It is interpretive, like that of cultural anthropologists. Lawyers construct a language for cooperating on the problems of the future, a way of talking about problems we have not talked about before. That’s law’s job. In common law countries, we create the language of the future by grounding it in narratives, in rich contexts, in cases. Language is generated by communities of meaning within some context and with respect to some task that the community is trying to accomplish. That’s what technology cases are: narratives of some new capability or solution that needs to be brought within the ways humans interact.
Legal academics tend to adopt the method from after the and in any “Law and” combination, with neoclassical economics being the most obvious historical example. Law-and-technology is little different. The methodological poverty, or perhaps flexibility, of law as a discipline is very strongly marked in the field of law and technology, because of a vague intuition that the relevant skills to help us understand how to build a cultural-technological interface must somehow be hard- or natural- technological. I do not mean to suggest that learning to code, or econometrics, or the method of any other discipline isn’t a wise investment, it simply does not help so much more with understanding how humans ought to live together in a shifting technological landscape than does an understanding of the history and practical experience of subjecting human conduct to rules through narrative and analogy -- the legal method. Humans are what matter here, and how they use technology must take pride of place. It often does not help to understand what a technological feature is, what matters is how humans use it and interact using it. Is cryptocurrency money? It is if the humans use it that way, and it is not if they do not. The underlying “truth” of the technological implementations matters little if at all.
Where the discipline after the and brings often too much to the table, lawyers bring too little of their own discipline to the mix. Cross-disciplinary efforts are often a success because of what each discipline brings to the table. Law’s contribution has too often been its output, providing a pathway to moving insights originating within technological disciplines (coding, data science, robotics, what have you), into law. But for the endeavour to succeed, the law part of law-and-technology must contribute beyond offering a path for engineer’s insights to enter the law. It must offer its own tools of analogy and normative generation. It is no mistake that law review articles must offer normative progress, not merely observation and description.
Law exists to bridge what we as humans can do and what we believe we should do. The first is a matter of hard technology, the second of social technology. That process of generating norms for handling the problems of the future is a matter of shaping cooperative fictions, centering and coordinating flecks of culture like firms and constitutions and concepts like “all people are created equal” or even the rule of law itself. Law is the social technology we create, using language, to orient ourselves to the cooperative task of achieving the future. It is the result of selecting goals and means of cooperation.
We sometimes know fields by their fruits. The fruit of neoclassical law and economics, for example, has been the shaping of law toward the optimization of productivity and aggregate welfare (and those are flawed goalposts). The goals that I believe define law and technology are those of human viability and human thriving. Our relationship with technology encompasses our ability to follow paths that get us all killed, as well as our ability to expand our capabilities and thrive beyond our current means of measuring. No other discipline is so concerned with our survival, and beyond our survival, our means of making our vision of how we can live together real by expanding our technological capabilities. Viability and capability are the twin touchstones of the language that we have to build, ways of speaking about what we face, that will help us cooperate in our usual massively parallel human fashion to generate innovative solutions to unprecedented problems.
[1] Stanislaw Lem, Imaginary Magnitude (Houghton Mifflin 2012).
[1] Edward O. Wilson, The Social Conquest of Earth (2012); Yuval Harari, Sapiens: A Brief History of Humankind (2015).
[1] Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 53 (1983).
Tags: Guest and Fellow Post
