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The Technology of Law and The Law of Technology - Part II

[ Posted On: 2006-04-25 ]

An Epistolary Dialogue Between Roberto Calvo Macias and Sam Vaknin Author of "Malignant Self Love - Narcissism Revisited"

Dear RCM,

No amount of self-deprecation will suffice to hide the fact that you are an original thinker. One does not to be a lawyer to discuss the law, the way one has to be a quantum physicist to discuss string theory. The law has one thing in common with technology: it is all-pervasive, it permeates every minutest aspect of our existence, it is the embodiment of (social and economic) philosophies and it evolves constantly (though, as you say, less speedily than technology does).

Before I explore to your various points (probably in my next letter, not to render this one too long) - let me be the nitpicker and set up the framework for our intellectual Christmas adventure.

One can discern the following relationships between the Law and Technology:

1. Sometimes technology becomes an inseparable part of the law. In extreme cases, technology itself becomes the law. The use of polygraphs, faxes, telephones, video, audio and computers is an integral part of many laws - etched into them. It is not an artificial co-habitation: the technology is precisely defined in the law and forms a CONDITION within it. In other words: the very spirit and letter of the law is violated (the law is broken) if a certain technology is not employed or not put to correct use. Think about police laboratories, about the O.J. Simpson case, the importance of DNA prints in everything from determining fatherhood to exposing murderers. Think about the admissibility of polygraph tests in a few countries. Think about the polling of members of boards of directors by phone or fax (explicitly required by law in many countries). Think about assisted suicide by administering painkillers (medicines are by far the most sizeable technology in terms of money). Think about security screening by using advances technology (retina imprints, voice recognition). In all these cases, the use of a specific, well defined, technology is not arbitrarily left to the judgement of law enforcement agents and courts. It is not a set of options, a menu to choose from. It is an INTEGRAL, crucial part of the law and, in many instances, it IS the law itself.

2. Technology itself contains embedded laws of all kinds. Consider internet protocols. These are laws which form part and parcel of the process of decentralized data exchange so central to the internet. Even the language used by the technicians implies the legal origin of these protocols: "handshake", "negotiating", "protocol", agreement" are all legal terms. Standards, protocols, behavioural codes - whether voluntarily adopted or not - are all form of Law. Thus, internet addresses are allocated by a central authority. Netiquette is enforced universally. Special chips and software prevent render certain content inaccessible. The scientific method (a codex) is part of every technological advance. Microchips incorporate in silicone agreements regarding standards. The law becomes a part of the technology and can be deduced simply by studying it in a process known as "reverse engineering". In stating this, I am making a distinction between lex naturalis and lex populi. All technologies obey the laws of nature - but we, in this discussion, I believe, wish to discuss only the laws of Man.

3. Technology spurs on the law, spawns it, as it were, gives it birth. The reverse process (technology invented to accommodate a law or to facilitate its implementation) is more rare. There are numerous examples. The invention of modern cryptography led to the formation of a host of governmental institutions and to the passing of numerous relevant laws. More recently, microchips which censor certain web content led to proposed legislation (to forcibly embed them in all computing appliances). Sophisticated eavesdropping, wiring and tapping technologies led to laws regulating these activities. Distance learning is transforming the laws of accreditation of academic institutions. Air transport forced health authorities all over the world to revamp their quarantine and epidemiological policies (not to mention the laws related to air travel and aviation). The list is interminable.

Once a law is enacted - which reflects the state of the art technology - the roles are reversed and the law gives a boost to technology. Seat belts and airbags were invented first. The law making seat belts (and, in some countries, airbags) mandatory came (much) later. But once the law was enacted, it fostered the formation of whole industries and technological improvements. The Law, it would seem, legitimizes technologies, transforms them into "mainstream" and, thus, into legitimate and immediate concerns of capitalism and capitalists (big business). Again, the list is dizzying: antibiotics, rocket technology, the internet itself (first developed by the Pentagon), telecommunications, medical computerized scanning - and numerous other technologies - came into real, widespread being following an interaction with the law. I am using the term "interaction" judiciously because there are four types of such encounters between technology and the law:

1.. A positive law which follows a technological advance (a law regarding seat belts after seat belts were invented). Such positive laws are intended either to disseminate the technology or to stifle it.
2.. An intentional legal lacuna intended to encourage a certain technology (for instance, very little legislation pertains to the internet with the express aim of "letting it be"). Deregulation of the airlines industries is another example.
3.. Structural interventions of the law (or law enforcement authorities) in a technology or its implementation. The best examples are the breaking up of AT&T in 1984 and the current anti-trust case against Microsoft. Such structural transformations of monopolists release hitherto monopolized information (for instance, the source codes of software) to the public and increases competition - the mother of invention.
4.. The conscious encouragement, by law, of technological research (research and development). This can be done directly through government grants and consortia, Japan's MITI being the finest example of this approach. It can also be done indirectly - for instance, by freeing up the capital and labour markets which often leads to the formation of risk or venture capital invested in new technologies. The USA is the most prominent (and, now, emulated) example of this path.

4. A Law that cannot be made known to the citizenry or that cannot be effectively enforced is a "dead letter" - not a law in the vitalist, dynamic sense of the word. For instance, the Laws of Hammurabi (his codex) are still available (through the internet) to all. Yet, do we consider them to be THE or even A Law? We do not and this is because Hammurabi's codex is both unknown to the citizenry and inapplicable. Hammurabi's Laws are inapplicable not because they are anachronistic. Islamic law is as anachronistic as Hammurabi's code - yet it IS applicable and applied in many countries. Applicability is the result of ENFORCEMENT. Laws are manifestations of asymmetries of power between the state and its subjects. Laws are the enshrining of violence applied for the "common good" (whatever that is - it is a shifting, relative concept). Technology plays an indispensable role in both the dissemination of information and in enforcement efforts. In other words, technology helps teach the citizens what are the laws and how are they likely to be applied (for instance, through the courts, their decisions and precedents). More importantly, technology enhances the efficacy of law enforcement and, thus, renders the law applicable. Police cars, court tape recorders, DNA imprints, fingerprinting, phone tapping, electronic surveillance, satellites - are all instruments of more effective law enforcement. In a broader sense, ALL technology is at the disposal of this or that law. Take defibrillators. They are used to resuscitate patients suffering from severe cardiac arrhythmia's. But such resuscitation is MANDATORY by LAW. So, the defibrillator -
a technological medical instrument - is, in a way, a law enforcement device.

But, all the above are superficial - phenomenological - observation (though empirical and pertinent). There is a much more profound affinity between technology and the Law. Technology is the material embodiment of the Laws of Nature and the Laws of Man (mainly the former). The very structure and dynamics of technology are identical to the structure and dynamics of the law - because they are one and the same. The Law is abstract - technology is corporeal. This, to my mind, is absolutely the only difference. Otherwise, Law and Technology are manifestation of the same underlying principles. To qualify as a "Law" (embedded in external hardware - technology - or in internal hardware - the brain), it must be:

1.. All-inclusive (anamnetic) - It must encompass, integrate and incorporate all the facts known about the subject.
2.. Coherent - It must be chronological, structured and causal.
3.. Consistent - Self-consistent (its parts cannot contradict one another or go against the grain of the main raison d'être) and consistent with the observed phenomena (both those related to the subject and those pertaining to the rest of the universe).
4.. Logically compatible - It must not violate the laws of logic both internally (the structure and process must abide by some internally imposed logic) and externally (the Aristotelian logic which is applicable to the observable world).
5.. Insightful - It must inspire a sense of awe and astonishment which is the result of seeing something familiar in a new light or the result of seeing a pattern emerging out of a big body of data. The insights must be the logical conclusion of the logic, the language and of the development of the subject. I know that we will have heated debate about this one. But, please, stop to think for a minute about the reactions of people to new technology or to new laws (and to the temples of these twin religions - the scientist's laboratory and the courts). They are awed, amazed, fascinated, stunned or incredulous.
6.. Aesthetic - The structure of the law and the processes embedded in it must be both plausible and "right", beautiful, not cumbersome, not awkward, not discontinuous, smooth and so on.
7.. Parsimonious - The structure and process must employ the minimum number of assumptions and entities in order to satisfy all the above conditions.
8.. Explanatory - The Law or technology must explain or incorporate the behaviour of other entities, knowledge, processes in the subject, the user's or citizen's decisions and behaviour and an history (why events developed the way that they did). Many technologies incorporate their own history. For instance: the distance between two rails in a modern railroad is identical to the width of Roman roads (equal to the backside of two horses).
9.. Predictive (prognostic) - The law or technology must possess the ability to predict future events, the future behaviour of entities and other inner or even emotional and cognitive dynamics.
10.. Transforming - With the power to induce change (whether it is for the better, is a matter of contemporary value judgements and fashions).
11.. Imposing - The law or technology must be regarded by the citizen or user as the preferable organizing principle some of his life's events and as a guiding principle.
12.. Elastic - The law or the technology must possess the intrinsic abilities to self organize, reorganize, give room to emerging order, accommodate new data comfortably, avoid rigidity in its modes of reaction to attacks from within and from without. Scientific theories should satisfy most of the same conditions because their subject matter is Laws (the laws of nature). The important elements of testability, verifiability, refutability, falsifiability, and repeatability - should all be upheld by technology. But here is the first important difference between Law and technology. The former cannot be falsified, in the Popperian sense.

There are four reasons to account for this shortcoming:

1.. Ethical - Experiments would have to be conducted, involving humans. To achieve the necessary result, the subjects will have to be ignorant of the reasons for the experiments and their aims. Sometimes even the very performance of an experiment will have to remain a secret (double blind experiments). Some experiments may involve unpleasant experiences. This is ethically unacceptable.
2.. The Psychological Uncertainty Principle - The current position of a human subject can be fully known. But both treatment and experimentation influence the subject and void this knowledge. The very processes of measurement and observation influence the subject and change him.
3.. Uniqueness - Psychological experiments are, therefore, bound to be unique, unrepeatable, cannot be replicated elsewhere and at other times even if they deal with the SAME subjects. The subjects are never the same due to the psychological uncertainty principle. Repeating the experiments with other subjects adversely affects the scientific value of the results.
4.. The undergeneration of testable hypotheses - Laws deal with humans and with their psyches. Psychology does not generate a sufficient number of hypotheses, which can be subjected to scientific testing. This has to do with the fabulous (=storytelling) nature of psychology. In a way, psychology has affinity with some private languages. It is a form of art and, as such, is self-sufficient. If structural, internal constraints and requirements are
met - a statement is deemed true even if it does not satisfy external scientific requirements. Thus, I am forced to conclude that technology is the embodiment of the laws of nature is a rigorous manner subjected to the scientific method - while the law is the abstract construct of the laws of human and social psychology which cannot be tested scientifically. While the Law and technology are structurally and functionally similar and have many things in common (see the list above) - they diverge when it comes to the formation of hypotheses and their
falsifiability.

Ciao,
Sam

(continued)

Article Source: http://www.afroarticles.com/article-dashboard

Sam Vaknin ( samvak.tripod.com ) is the author of Malignant Self Love - Narcissism Revisited and After the Rain - How the West Lost the East. He served as a columnist for Global Politician, Central Europe Review, PopMatters, Bellaonline, and eBookWeb, a United Press International (UPI) Senior Business Correspondent, and the editor of mental health and Central East Europe categories in The Open Directory and Suite101. Until recently, he served as the Economic Advisor to the Government of Macedonia. Visit Sam's Web site at samvak.tripod.com

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