Does the world need a grand theory of law and technology? That’s the question posed at a new blog-based symposium hosted by sometime Madisonian blogger Frank Pasquale and his Seton Hall colleague Gaia Bernstein. From the opening post:
The goal of this symposium is to inquire whether we should continue to assess and react to each new technology in isolation or whether we could also implement a broader approach. In other words, should we have a general theory of law and technology that will formulate principles of how the law should react to technological change? Particularly, we would like to focus on whether it is possible to formulate a generalized legal approach to the use and adoption of new technologies. Is it possible to formulate a uniform approach to these instances where new technologies threaten existing social institutes and social values?
I count myself among the skeptics that Gaia anticipates. Do we really need a broad theory of law and new technology? Even if we do, is such a general theory possible?
Here are two bases for skepticism:
One is pragmatic: It seems to me that there needs to be a working definition of “technology” (as opposed to science, on the one hand, and as opposed to the arts, and/or the liberal arts, on the other hand), and there also needs to be a working definition of what counts as a “new” technology. What differentiates a theory of law and new technology from a theory of law and evolutionary cultural change? Or, for that matter, from a theory of evolutionary cultural change?
Two is conceptual: The last decade’s worth of scholarship has been profoundly theoretical, and often ahistorical and acontextual as well. Does society benefit from more theorizing today, or do scholars need to start the hard work of excavating history and practice?
Thank you for mentioning it! Your “things” article came in handy as I was trying to deal with the “definition of technology” issue at one point, but I hope I used it correctly. I am still working my way through it.
A couple of responses:
1) Pragmatically: Yes, the definition of technology is a contested area. I’m hoping that we can at least settle on some set of “family resemblances” that cover a significant portion of the innovations we seek to address.
2) Conceptually: You are right to say it is important to grasp with actual history and practice. But I think it’s also good to try to get one’s theoretical presuppositions on the table, and exposed to critique from a group of scholars who think of themselves as trying to understand a common set of phenomena.
To give an example: I read a paper by a well-regarded scholar today that simply “took for granted” the legitimacy of an assumption that legal regulation is always inferior to tax as a way of addressing inequality. There are a couple of ways of dealing with this: one is to try to show the theoretical inconsistencies (or undesirable assumptions) in the normative vision of which this is a part, another is to show via the intricacies of some practice that ideal theory does not map very well onto the world. The enemy is bad theory, not theory per se.
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