The Technology of Law, The Law of Technology





By Sam Vaknin


Author of "Malignant Self Love - Narcissism Revisited"





"The juvenile sea squirt wanders through the sea searching for a


suitable rock or hunk of coral to cling to and make it its home for


life. For this task, it has a rudimentary nervous system. When it


finds its spot and takes root, it doesn't need its brain anymore, so


it eats it. (its rather like getting tenure)."


Daniel Dennet - Quoted in Paul Thagard's Mind - An Introduction to


Cognitive Science





"Everything in nature, in the inanimate as well as the animate


world, happens according to rules, although we do not always know


these rules."


Immanuel Kant, Logic





"The fuzzy principle states that everything is a matter of degree." Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic





"When one admits that nothing is certain one must, I think, also add


that some things are more nearly certain than others."


Bertrand Russell, "Am I an Atheist or an Agnostic?"





"Most of us can learn to live in perfect comfort on higher levels of


power. Everyone knows that on any given day there are energies


slumbering in him which the incitements of that day do not call


forth. Compared with what we ought to be, we are only half awake. It


is evident that our organism has stored-up reserves of energy that


are ordinarily not called upon - deeper and deeper strata of


explosible material, ready for use by anyone who probes so deep. The


human individual usually lives far within his limits."


William James





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.





Mankind is coming back a full circle - from ideograms through


alphabet to ideograms. Consider computers. They started as pure


alphabet beasts. I recall my programming days with ASSEMBLY, COBOL


and PL/1 on a clunky IBM 360 and later, IBM 370. We used Hollerith


punch cards. It was all very abstract and symbol-laden. The user


interface was highly formal and the formalism was highly


mathematical. Computers were a three-dimensional extension of formal


logic which is the set of RULES that govern mathematics.





Then came the Macintosh and its emulation, the windows GUI (Graphics


User Interface). I remember geeks and hackers sneering at the


infantilism and amateurism of it all. Taming your computer by


lashing DOS commands at it was still the thing to do. But,


gradually, we were all converted. Today, the elite controls both the


alphabet (machine and high level programming languages) and the


ideograms (GUIs) - the masses have access only to the ideograms. But


it seems that the more widespread the use of the ideograms (graphic


interface operating systems and applications), the "wiser" (self- learning, self-diagnosing, self-correcting) they become - the less


needed, indeed, the more obsolete the elite is. Finally, it will all


be ideograms, the "alphabet" buried under hundreds of layers of


graphics and imagery and accessible only to the machine itself.





It is then that we should begin to lose sleep. It is when ONLY the


machine has access to its alphabet that we, humans, will find


ourselves at the mercy of technology. Having access to one's


alphabet is possessing self-consciousness and intelligence (in the


Turing sense). Don't misunderstand me: self-awareness and


intelligence can be perfectly mediated through images. But access to


an alphabet and to the RULES of its meaningful manipulation is


indispensable to survival, at least to the survival of intelligence.


By "meaningful" I mean: generating a useful and immediately


applicable representation of the world, of ourselves and of our


knowledge about the world, ourselves and our interactions with the


world. When no longer capable of generating such meaningful


representations (because technology has hidden our alphabet - the


RULES - from our sight) - that day, technology, philosophy and law- making will be one and the same and humans will have no place in


such a world - at least, they will have no MEANINGFUL place in it.





It is false that science generates technology - the reverse has


always been true. All the big and important technological advances,


the Promethean breakthroughs - were achieved by ENGINEERS and


technicians, not by scientists. Engineers manipulate the world -


scientists manipulate rules, the laws of nature. What computers did


is MERGE this two activities and make them indistinguishable.


Writing a new software application is both composing rules and


engaging in technology. This is because the substance upon which


technological innovation is exercised is no longer MATERIAL. Both


technology and laws deal with INFORMATION now. This is the


convergence of the real and the abstract, the Platonic ideal and its


inferior shadow, matter and energy. It is no less revolutionary than


E=MC2.





So, technology leads science. Both technology and science start with


images. Kekula dreamt the structure of the Benzen molecule, Einstein


envisioned the geometry of space and so on. But, in the past,


technology ended up generating objects - while science ended up


generating rules and embedding them or expressing them in


formalisms. The big revolution of the second half of this passing


century is that now both science and cutting age technology produce


the same: rules, formalisms, abstract entities. In other words:


information and its manipulation - RULES - have become the main


product of modern society. Some of the output is hard to classify as


rules. Is a television show a rule or a set of rules? The


deconstructivists will say: definitely so and I will second that. a


television show, a software application, a court procedure, a text -


are all repositories and depositories of rules, thousands of them:


social rules, cultural rules, physical laws of nature, narratives


and codes and myriad other guidelines.





This leads us to cybernetics.





At first - during the 50s and 60s - an artificial distinction was


drawn between cybernetic systems (such as biological ones) and


programmable computers (or universal Turing machines). The former


were considered limited by the rigidity of the repertoire of their


responses to their feedback loops. Computers, on the other hand,


were considered infinitely flexible by virtue of their


programmability. This view was shattered by the unexpected enormous


complexity of biological organisms and even automata. Gradually,


cybernetics was subsumed under computing (rather, vice versa) and


computers were considered to be a class of cybernetic systems. I


recommend to you to read "Cybernetics and the Philosophy of Mind" by


Sayre published in London in 1976).





They all contain information stored, a set of rules to regulate


behaviour and feedback loops. Yet, few people - if any - noticed how


politically subversive this model was. If the "center's" behaviour


is potentially profoundly alterable by feedback from


the "periphery" - then centre and periphery become equipotent. More


accurately, the very notions of centre and periphery disintegrate


and are replaced by a decentralized, loosely interacting system of


information processing and information storage "nodes". The


Internet, to regurgitate the obvious, is an example of such a


decentralized system. The simultaneous emergence of mathematical


theories (fractals, recursiveness) that de-emphasized centrality


helped to give birth to the inevitably necessary formalism - the


language of networks (neural, computers, social and other).





Decentralization removes the power of law-making from any particular


node in the system. Each node is a law unto itself. The system, as a


whole, as long as it wishes to remain a system and continue to


function as such, reaches a "legislative equilibrium". It is a


Prigogine type thermodynamic trajectory: it is dynamic, unstable,


ever-changing, fluctuating but, by and large, it is identity- preserving and it is functional. The new systems are systems of


INFORMAL law as opposed to the older systems which are mainly and


mostly systems of FORMAL law.





The clash between these two models was and is unavoidable. The


internet, for instance, regulates itself imposing a set of unwritten


rules vaguely called the "Netiquette". Part mores and part habits,


it is amorphic and always debatable. Yet it functions much better


than drug-related laws in formal law systems (like modern states).


With no effective enforcement mechanisms, no netiquette-enforcement


agencies to speak of - the netiquette maintains an iron grip over


netizens. There are other examples outside the internet: the self


regulating financial industry in Britain has a better record of


compliance that the heavily regulated, SEC-threatened financial


community in the USA. Efforts top tax the Internet and to regulate


the City are examples of turf wars between formal law systems and


informal law systems.





Informal law system will win, there is no question in mind. Not only


because they constitute a better organizational model but because


they are more adept at processing the raw material of the next


millennium, information. Thus, they are better positioned to


guarantee the survival of our race.





But there is a price to pay and it is the ever growing fuzziness of


our laws. The more complex the world, the more demanding the raw


material, the more probabilistic the output - the fuzzier the logic,


the less determinate the answers.








==============================================================


AUTHOR BIO (must be included with the article)





Sam Vaknin ( http://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 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 http://samvak.tripod.com