The Technology of Law, The Law of Technology

The Technology of Law, The Law of Technology				railroad is identical to thewidth of Roman roads (equal
				to the backside of two horses).
Author of "Malignant Self Love - Narcissism Revisited"				9.. Predictive (prognostic) - The law or technology
"The juvenile sea squirt wanders through the sea				must possessthe ability to predict future events, the
searching for asuitable rock or hunk of coral to cling				future behaviour ofentities and other inner or even
to and make it its home forlife. For this task, it has a				emotional and cognitive dynamics.
rudimentary nervous system. When itfinds its spot				10.. Transforming - With the power to induce change
and takes root, it doesn't need its brain anymore, soit				(whether it isfor the better, is a matter of
eats it. (its rather like getting tenure)."				contemporary value judgements andfashions).
Daniel Dennet - Quoted in Paul Thagard's Mind - An				11.. Imposing - The law or technology must be
Introduction to				regarded by thecitizen or user as the preferable
Cognitive Science				organizing principle some of hislife's events and as a
"Everything in nature, in the inanimate as well as the				guiding principle.
animateworld, happens according to rules, although				12.. Elastic - The law or the technology must possess
we do not always knowthese rules."				theintrinsic abilities to self organize, reorganize, give
Immanuel Kant, Logic				room toemerging order, accommodate new data
"The fuzzy principle states that everything is a				comfortably, avoid rigidity inits modes of reaction to
matter of degree." Bart Kosko, Fuzzy Thinking: The				attacks from within and from without.
New Science of Fuzzy Logic				Scientific theories should satisfy most of the same
"When one admits that nothing is certain one must, I				conditionsbecause their subject matter is Laws (the
think, also addthat some things are more nearly				laws of nature). Theimportant elements of testability,
certain than others."				verifiability, refutability,falsifiability, and repeatability -
Bertrand Russell, "Am I an Atheist or an Agnostic?"				should all be upheld bytechnology.
"Most of us can learn to live in perfect comfort on				But here is the first important difference between
higher levels ofpower. Everyone knows that on any				Law andtechnology. The former cannot be falsified, in
given day there are energiesslumbering in him which				the Popperian sense.
the incitements of that day do not callforth.				There are four reasons to account for this
Compared with what we ought to be, we are only				shortcoming:
half awake. Itis evident that our organism has				1.. Ethical - Experiments would have to be conducted,
stored-up reserves of energy thatare ordinarily not				involvinghumans. To achieve the necessary result, the
called upon - deeper and deeper strata ofexplosible				subjects will have tobe ignorant of the reasons for
material, ready for use by anyone who probes so				the experiments and their aims.
deep. Thehuman individual usually lives far within his				Sometimes even the very performance of an
limits."				experiment will have toremain a secret (double blind
William James				experiments). Some experiments mayinvolve
One can discern the following relationships between				unpleasant experiences. This is ethically unacceptable.
the Law and				2.. The Psychological Uncertainty Principle - The
Technology:				current positionof a human subject can be fully
1. Sometimes technology becomes an inseparable				known. But both treatment andexperimentation
part of the law. Inextreme cases, technology itself				influence the subject and void this knowledge.
becomes the law. The use ofpolygraphs, faxes,				Thevery processes of measurement and observation
telephones, video, audio and computers is anintegral				influence the subjectand change him.
part of many laws - etched into them. It is not				3.. Uniqueness - Psychological experiments are,
anartificial co-habitation: the technology is precisely				therefore, boundto be unique, unrepeatable, cannot
defined in thelaw and forms a CONDITION within it.				be replicated elsewhere and atother times even if
In other words: the very spiritand letter of the law is				they deal with the SAME subjects. The subjectsare
violated (the law is broken) if a certaintechnology is				never the same due to the psychological uncertainty
not employed or not put to correct use. Think				principle.
aboutpolice laboratories, about the O.J. Simpson case,				Repeating the experiments with other subjects
the importance of				adversely affects thescientific value of the results.
DNA prints in everything from determining fatherhood				4.. The undergeneration of testable hypotheses -
to exposingmurderers. Think about the admissibility of				Laws deal withhumans and with their psyches.
polygraph tests in a fewcountries. Think about the				Psychology does not generate asufficient number of
polling of members of boards of directorsby phone				hypotheses, which can be subjected toscientific
or fax (explicitly required by law in many countries).				testing. This has to do with the fabulous
Think about assisted suicide by administering				(=storytelling)nature of psychology. In a way,
painkillers (medicinesare by far the most sizeable				psychology has affinity with someprivate languages.
technology in terms of money). Thinkabout security				It is a form of art and, as such, is self- sufficient. If
screening by using advances technology				structural, internal constraints and requirements
(retinaimprints, voice recognition). In all these cases,				aremet - a statement is deemed true even if it does
the use of aspecific, well defined, technology is not				not satisfyexternal scientific requirements.
arbitrarily left to thejudgement of law enforcement				Thus, I am forced to conclude that technology is the
agents and courts. It is not a set ofoptions, a menu				embodiment ofthe laws of nature is a rigorous
to choose from. It is an INTEGRAL, crucial part ofthe				manner subjected to the scientificmethod - while the
law and, in many instances, it IS the law itself.				law is the abstract construct of the laws ofhuman
2. Technology itself contains embedded laws of all				and social psychology which cannot be tested
kinds. Considerinternet protocols. These are laws				scientifically.
which form part and parcel of theprocess of				While the Law and technology are structurally and
decentralized data exchange so central to the				functionallysimilar and have many things in common
internet.				(see the list above) - theydiverge when it comes to
Even the language used by the technicians implies the				the formation of hypotheses and theirfalsifiability.
legal originof theseprotocols: "handshake",				Mankind is coming back a full circle - from ideograms
"negotiating", "protocol", "agreement" areall legal				throughalphabet to ideograms. Consider computers.
terms. Standards, protocols, behavioural codes -				They started as purealphabet beasts. I recall my
whethervoluntarily adopted or not - are all form of				programming days with ASSEMBLY, COBOLand PL/1
Law. Thus, internetaddresses are allocated by a				on a clunky IBM 360 and later, IBM 370. We used
central authority. Netiquette isenforced universally.				Hollerithpunch cards. It was all very abstract and
Special chips and software prevent rendercertain				symbol-laden. The userinterface was highly formal
content inaccessible. The scientific method (a codex)				and the formalism was highlymathematical. Computers
ispart of every technological advance. Microchips				were a three-dimensional extension of formallogic
incorporate insilicone agreements regarding standards.				which is the set of RULES that govern mathematics.
The law becomes a part ofthe technology and can				Then came the Macintosh and its emulation, the
be deduced simply by studying it in a processknown				windows GUI (Graphics
as "reverse engineering". In stating this, I am making				User Interface). I remember geeks and hackers
adistinction between lex naturalis and lex populi. All				sneering at theinfantilism and amateurism of it all.
technologiesobey the laws of nature - but we, in this				Taming your computer bylashing DOS commands at
discussion, I believe,wish to discuss only the laws of				it was still the thing to do. But,gradually, we were all
Man.				converted. Today, the elite controls both thealphabet
3. Technology spurs on the law, spawns it, as it				(machine and high level programming languages) and
were, gives itbirth. The reverse process (technology				theideograms (GUIs) - the masses have access only
invented to accommodate a lawor to facilitate its				to the ideograms. Butit seems that the more
implementation) is more rare. There arenumerous				widespread the use of the ideograms
examples. The invention of modern cryptography led				(graphicinterface operating systems and applications),
to theformation of a host of governmental				the "wiser" (self- learning, self-diagnosing,
institutions and to the passingof numerous relevant				self-correcting) they become - the lessneeded,
laws. More recently, microchips which censorcertain				indeed, the more obsolete the elite is. Finally, it will
web content led to proposed legislation (to forcibly				allbe ideograms, the "alphabet" buried under hundreds
embedthem in all computing appliances). Sophisticated				of layers ofgraphics and imagery and accessible only
eavesdropping,wiring and tapping technologies led to				to the machine itself.
laws regulating theseactivities. Distance learning is				It is then that we should begin to lose sleep. It is
transforming the laws ofaccreditation of academic				when ONLY themachine has access to its alphabet
institutions. Air transport forced healthauthorities all				that we, humans, will findourselves at the mercy of
over the world to revamp their quarantine				technology. Having access to one'salphabet is
andepidemiological policies (not to mention the laws				possessing self-consciousness and intelligence (in the
related to airtravel and aviation). The list is				Turing sense). Don't misunderstand me:
interminable.				self-awareness andintelligence can be perfectly
Once a law is enacted - which reflects the state of				mediated through images. But access toan alphabet
the arttechnology - the roles are reversed and the				and to the RULES of its meaningful manipulation
law gives a boost totechnology. Seat belts and				isindispensable to survival, at least to the survival of
airbags were invented first. The lawmaking seat belts				intelligence.
(and, in some countries, airbags) mandatory came				By "meaningful" I mean: generating a useful and
(much) later. But once the law was enacted, it				immediatelyapplicable representation of the world, of
fostered theformation of whole industries and				ourselves and of ourknowledge about the world,
technological improvements. The				ourselves and our interactions with theworld. When
Law, it would seem, legitimizes technologies,				no longer capable of generating such
transforms theminto "mainstream" and, thus, into				meaningfulrepresentations (because technology has
legitimate and immediate concernsof capitalism and				hidden our alphabet - the
capitalists (big business). Again, the list isdizzying:				RULES - from our sight) - that day, technology,
antibiotics, rocket technology, the internet itself				philosophy and law- making will be one and the same
(firstdeveloped by the Pentagon),				and humans will have no place insuch a world - at
telecommunications, medical computerizedscanning -				least, they will have no MEANINGFUL place in it.
and numerous other technologies - came into				It is false that science generates technology - the
real,widespread being following an interaction with the				reverse hasalways been true. All the big and
law. I am usingthe term "interaction" judiciously				important technological advances,the Promethean
because there are four types ofsuch encounters				breakthroughs - were achieved by ENGINEERS
between technology and the law:				andtechnicians, not by scientists. Engineers manipulate
1.. A positive law which follows a technological				the world -scientists manipulate rules, the laws of
advance (a lawregarding seat belts after seat belts				nature. What computers didis MERGE this two
were invented). Such positivelaws are intended either				activities and make them indistinguishable.
to disseminate the technology or to stifleit.				Writing a new software application is both composing
2.. An intentional legal lacuna intended to encourage a				rules andengaging in technology. This is because the
certaintechnology (for instance, very little legislation				substance upon whichtechnological innovation is
pertains to theinternet with the express aim of				exercised is no longer MATERIAL. Bothtechnology
"letting it be"). Deregulation ofthe airlines industries is				and laws deal with INFORMATION now. This is
another example.				theconvergence of the real and the abstract, the
3.. Structural interventions of the law (or law				Platonic ideal and itsinferior shadow, matter and
enforcementauthorities) in a technology or its				energy. It is no less revolutionary than
implementation. The bestexamples are the breaking				E=MC2.
up of AT&T in 1984 and the current anti- trust case				So, technology leads science. Both technology and
against Microsoft. Such structural transformations				science start withimages. Kekula dreamt the structure
ofmonopolists release hitherto monopolized				of the Benzen molecule, Einsteinenvisioned the
information (for instance,the source codes of				geometry of space and so on. But, in the
software) to the public and increasescompetition -				past,technology ended up generating objects - while
the mother of invention.				science ended upgenerating rules and embedding
4.. The conscious encouragement, by law, of				them or expressing them informalisms. The big
technological research				revolution of the second half of this passingcentury is
(research and development). This can be done				that now both science and cutting age technology
directly throughgovernment grants and consortia,				producethe same: rules, formalisms, abstract entities.
Japan's MITI being the finestexample of this				In other words:information and its manipulation -
approach. It can also be done indirectly - forinstance,				RULES - have become the mainproduct of modern
by freeing up the capital and labour markets which				society. Some of the output is hard to classify
oftenleads to the formation of risk or venture capital				asrules. Is a television show a rule or a set of rules?
invested in newtechnologies. The USA is the most				Thedeconstructivists will say: definitely so and I will
prominent (and, now, emulated)example of this path.				second that. atelevision show, a software application,
4. A Law that cannot be made known to the				a court procedure, a text -are all repositories and
citizenry or that cannotbe effectively enforced is a				depositories of rules, thousands of them:social rules,
"dead letter" - not a law in thevitalist, dynamic sense				cultural rules, physical laws of nature, narrativesand
of the word. For instance, the Laws of				codes and myriad other guidelines.
Hammurabi (his codex) are still available (through the				This leads us to cybernetics.
internet) toall. Yet, do we consider them to be THE				At first - during the 50s and 60s - an artificial
or even A Law? We do not andthis is because				distinction wasdrawn between cybernetic systems
Hammurabi's codex is both unknown to the				(such as biological ones) andprogrammable computers
citizenryand inapplicable. Hammurabi's Laws are				(or universal Turing machines). The formerwere
inapplicable not because theyare anachronistic. Islamic				considered limited by the rigidity of the repertoire of
law is as anachronistic as Hammurabi'scode - yet it IS				theirresponses to their feedback loops. Computers,
applicable and applied in many countries.				on the other hand,were considered infinitely flexible
Applicability is the result of ENFORCEMENT. Laws are				by virtue of theirprogrammability. This view was
manifestationsof asymmetries of power between				shattered by the unexpected enormouscomplexity of
the state and its subjects. Laws arethe enshrining of				biological organisms and even automata.
violence applied for the "common good"				Gradually,cybernetics was subsumed under computing
(whateverthat is - it is a shifting, relative concept).				(rather, vice versa) andcomputers were considered
Technology plays an indispensable role in both the				to be a class of cybernetic systems. Irecommend to
dissemination ofinformation and in enforcement				you to read "Cybernetics and the Philosophy of Mind"
efforts. In other words, technologyhelps teach the				by
citizens what are the laws and how are they likelyto				Sayre published in London in 1976).
be applied (for instance, through the courts, their				They all contain information stored, a set of rules to
decisions andprecedents). More importantly,				regulatebehaviour and feedback loops. Yet, few
technology enhances the efficacy oflaw enforcement				people - if any - noticed howpolitically subversive this
and, thus, renders the law applicable. Police cars,court				model was. If the "center's" behaviouris potentially
tape recorders, DNA imprints, fingerprinting, phone				profoundly alterable by feedback fromthe "periphery"
tapping,electronic surveillance, satellites - are all				- then centre and periphery become equipotent.
instruments of moreeffective law enforcement. In a				Moreaccurately, the very notions of centre and
broader sense, ALL technology is atthe disposal of				periphery disintegrateand are replaced by a
this or that law. Take defibrillators. They are usedto				decentralized, loosely interacting system ofinformation
resuscitate patients suffering from severe cardiac				processing and information storage "nodes". The
arrhythmia's.				Internet, to regurgitate the obvious, is an example of
But such resuscitation is MANDATORY by LAW. So,				such adecentralized system. The simultaneous
the defibrillator -a technological medical instrument - is,				emergence of mathematicaltheories (fractals,
in a way, a law enforcementdevice.				recursiveness) that de-emphasized centralityhelped to
But, all the above are superficial - phenomenological -				give birth to the inevitably necessary formalism -
observation				thelanguage of networks (neural, computers, social
(though empirical and pertinent). There is a much				and other).
more profoundaffinity between technology and the				Decentralization removes the power of law-making
Law. Technology is the materialembodiment of the				from any particularnode in the system. Each node is a
Laws of Nature and the Laws of Man (mainly				law unto itself. The system, as awhole, as long as it
theformer). The very structure and dynamics of				wishes to remain a system and continue tofunction
technology are identicalto the structure and dynamics				as such, reaches a "legislative equilibrium". It is a
of the law - because they are one andthe same. The				Prigogine type thermodynamic trajectory: it is
Law is abstract - technology is corporeal. This, to				dynamic, unstable,ever-changing, fluctuating but, by
mymind, is absolutely the only difference. Otherwise,				and large, it is identity- preserving and it is functional.
Law and				The new systems are systems of
Technology are manifestation of the same underlying				INFORMAL law as opposed to the older systems
principles. Toqualify as a "Law" (embedded in external				which are mainly andmostly systems of FORMAL law.
hardware - technology - orin internal hardware - the				The clash between these two models was and is
brain), it must be:				unavoidable. Theinternet, for instance, regulates itself
1.. All-inclusive (anamnetic) - It must encompass,				imposing a set of unwrittenrules vaguely called the
integrate andincorporate all the facts known about				"Netiquette". Part mores and part habits,it is amorphic
the subject.				and always debatable. Yet it functions much
2.. Coherent - It must be chronological, structured and				betterthan drug-related laws in formal law systems
causal.				(like modern states).
3.. Consistent - Self-consistent (its parts cannot				With no effective enforcement mechanisms, no
contradict oneanother or go against the grain of the				netiquette-enforcementagencies to speak of - the
main raison d'être) andconsistent with the observed				netiquette maintains an iron grip overnetizens. There
phenomena (both those related to thesubject and				are other examples outside the internet: the
those pertaining to the rest of the universe).				selfregulating financial industry in Britain has a better
4.. Logically compatible - It must not violate the laws				record ofcompliance that the heavily regulated,
of logicboth internally (the structure and process				SEC-threatened financialcommunity in the USA.
must abide by someinternally imposed logic) and				Efforts top tax the Internet and to regulatethe City
externally (the Aristotelian logicwhich is applicable to				are examples of turf wars between formal law
the observable world).				systems andinformal law systems.
5.. Insightful - It must inspire a sense of awe and				Informal law system will win, there is no question in
astonishmentwhich is the result of seeing something				mind. Not onlybecause they constitute a better
familiar in a new light orthe result of seeing a pattern				organizational model but becausethey are more adept
emerging out of a big body of data.				at processing the raw material of the nextmillennium,
The insights must be the logical conclusion of the				information. Thus, they are better positioned
logic, thelanguage and of the development of the				toguarantee the survival of our race.
subject. I know that we willhave heated debate				But there is a price to pay and it is the ever growing
about this one. But, please, stop to think for aminute				fuzziness ofour laws. The more complex the world,
about the reactions of people to new technology or				the more demanding the rawmaterial, the more
to newlaws (and to the temples of these twin				probabilistic the output - the fuzzier the logic,the less
religions - the scientist'slaboratory and the courts).				determinate the answers.
They are awed, amazed, fascinated,stunned or				========================
incredulous.				AUTHOR BIO (must be included with the article)
6.. Aesthetic - The structure of the law and the				Sam Vaknin ( ) is the author of Malignant
processesembedded in it must be both plausible and				Self Love - Narcissism Revisited and After the Rain -
"right", beautiful, notcumbersome, not awkward, not				How the West
discontinuous, smooth and so on.				Lost the East. He served as a columnist for Central
7.. Parsimonious - The structure and process must				Europe Review,
employ theminimum number of assumptions and				PopMatters, Bellaonline, and eBookWeb, a United
entities in order to satisfy allthe above conditions.				Press International
8.. Explanatory - The Law or technology must explain				(UPI) Senior Business Correspondent, and the editor
orincorporate the behaviour of other entities,				of mental healthand Central East Europe categories in
knowledge, processes inthe subject, the user's or				The Open Directory and
citizen's decisions and behaviour and anhistory (why				Suite101.
events developed the way that they did).				Until recently, he served as the Economic Advisor to
Manytechnologies incorporate their own history. For				the Governmentof Macedonia.
instance: thedistance between two rails in a modern

Quantum Biotech

The Technology of Law, The Law of Technology