Epimetheus's Gift: Getting Critical about Law and Technology in Legal Education (Bileta 2021)
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Keynote address to the British & Irish Law Education and Technology Association Annual Conference, April 2021 (c)
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Epimetheus's Gift: Getting Critical about Law and Technology in Legal Education (Bileta 2021)
- 1. Epimetheus’s Gift: Getting Critical about Law and Technology in Legal Education Julian Webb Melbourne Law School BILETA Annual Conference 2021
- 3. Epimetheus This Photo by Unknown Author is licensed under CC BY-SA
- 4. Epimetheus and technology • Bernard Stiegler – • Technics and Time, vols 1 and 2 (Stanford UP, 1998; 2009) • Automatic Society: The Future of Work (Wiley, 2017) • Nanjing Lectures 2016-2019 (Open Humanities Press, 2020)
- 5. Technology in the curriculum: where the action isn’t? “In policy and regulatory terms, curricular debate in legal education has tended, historically, to have been dominated by profession- or state-led interventions focused on subject prescription and doctrinal content. This has given the ‘core’ of common law legal education internationally a relatively homogeneous form, reflecting often questionable assumptions about the necessary building blocks of the curriculum that may owe more to the weight of history and attitudes of (conservative) incrementalism than to any epistemological necessity” - Kate Galloway et al, (2019). The Legal Academy’s Engagements with Lawtech: Technology Narratives and Archetypes as Drivers of Change. Law, Technology and Humans, 1, 27-45. https://doi.org/10.5204/lthj.v1i0.1337
- 6. Mind the gap: regulation and professional competence in technology
- 8. Law inscribed in the digital Why ‘law and technology’ is not enough
- 13. an ‘onlaw’ curriculum? … like the [American] West of 1787, cyberspace poses some hard questions, and could use some new ideas, about governance, and law, and order, and scale…. The problem is the one that Jefferson and his contemporaries faced: How do you build “republican” institutions – institutions that respect equal worth of all individuals and their right to participate in the formation of the rules under which they live – that scale? David Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Oxford University Press, 2009) 116-7
- 14. Pervasiveness INTERDISCIPLINARITY design thinking ETHICS & GOVERNANCE
Editor's Notes
- For me, here is Ballarat, the largest city in regional Victoria, about 120 kms out of Melbourne. I’d like to begin by acknowledging that I am speaking to you from the traditional lands of the Wadawurrung and Dja Dja Wurrung People, and I pay my respects to their elders, past, present and emerging.
- I have sought to respond to Paul’s provocative theme by stepping away from the immediate concerns of the pandemic, even though the very medium of this lecture is in itself a constant reminder of the ways in which technology has become the medium not just de rigour of the plague time, but also lege requiratur, required by law. In his call for paper’s, Paul has reminded us of Berlant’s “cruel optimism’ (Berlant 2011), whereby those things we most desire may become the obstacles to our flourishing. I propose that we take this as the starting point to thinking critically about technology in the curriculum. Technology is both that which we desire, and has or at least threatens to become a very real obstacle to our flourishing. How does law protect both the desire for technology and human flourishing? How do we express that double bind in the curriculum? I start by taking the figure of Epimetheus as a metaphor for Berlant’s cruel optimism. Epimetheus is one of the lesser known figures of Greek mythology, largely overshadowed by his brother Prometheus, Epimetheus, whose name means ‘after-thought’ was charged by the gods to gift all living things with a positive trait. Unfortunately, he left humans to the last, and his lack of foresight meant that there was nothing left for us! So it was left to Prometheus to step in to give mankind fire – as Bernard Stiegler observes, the first technics. The gods also gave Pandora to Epimetheus, and of course we all know how that one ended.
- One of the most interesting modern engagements with Epimetheus is to be found in the work of French philosopher Bernard Stiegler. The story of Epimetheus stands in Stiegler’s work for our essential boundedness to technics. Human beings are in Epimethean terms marked by an originary flaw (défaut d’orgine): a lack of qualities that serves to construct us as ‘accidental beings’. We are, he says, “the who is nothing without the what” (Technics and Time 2, 6). Since humanity is fundamentally constituted and conditioned by technics, it is thus technics that give rise to the invention of the human, an understanding of our condition that has been fundamentally repressed by Western philosophy up until the present time. This state of need is, in a particular twist of Berlant’s knife, accompanied by an “unquenchable desire” (Howell’s and Moore, 2013:5) for technology. Desire is thus “the inner correlate of our externalisation in technics, the affect emerging in response to our technical organisation” (id). Epimetheus’s gift is thus intrinsically double-edged; it has paved the way for the systematic industrialisation and proletarianization of mind and body through the anaesthetising gadgetry of the digital, and what Stiegler calls the “industrial hyper-division of intellectual labour” (2020: 289), but it also creates a space for new forms of social organisation and new ways to rethink technology that counter its proletarianizing force. It is thus, in Stiegler’s adoption of the Greek term Pharmakon, both poison and remedy. So, what does this have to do with legal education? I will argue that the law and technology relation, as a substantive relation that is a subject of the law curriculum (so I’m not engaging with educational technology here), presently reflects an Epimethean lack of forethought, which we need to address by new form of critical engagement. I aim to support this contention by reference to three features of the curriculum. First there is the extent to which the curriculum is too often marked by digital technology’s absence, or afterthought: relegated to specialisations and higher level courses, leaving it neglected in the core curriculum. Second, there is a tendency to adopt a rather crudely materialist perspective on law and technology: to see technology as a problem to be solved by law (or not), rather than a thing co-constituted with law Thirdly, it follows that we need also to address a failure to appreciate the extent to which law in general is increasingly inscribed in the digital.
- Empirically we have only a limited idea of how law schools collectively are engaging with technology in the curriculum. It would in fact be an interesting and useful piece of empirical research to find out just what law schools are doing. My sense is that we are seeing two trends: one is a growing emphasis on law and tech pathways or concentrations, particularly in the US – Harvard for example has a large cluster of what it defines as ‘law, science and technology’ subjects framed broadly around IP law, or Internet law, or Health law themes; on a more contained scale, QUT launched a law, technology and innovation minor (of four subjects) in 2019) – ie LLB250 Law, Privacy and Data Ethics LLB251 Law and Design Thinking LLB341 Artificial Intelligence, Robots and the Law LLB345 Regulating the Internet, and of course in Australia we are seeing a proliferation of IT and law double degrees, though how much the two disciplines talk to each other in those structure is highly moot. The other trend I think has involved a narrower focus on legal tech: coding, hackathons, law apps, single subjects on legal practice and its digital disruption. While Lawtech is not irrelevant, I have some reservations – (i) any training in the use of real world systems hits problems of accessibility, cost, and lack of proper context – when we first set up our new subject of Disputes & Ethics at Melbourne in 2018, we tried to embed platform technology into the ways the students learned about civil disputes and interacted with each other. We found ourselves falling between two stools: off the shelf LMSs lacked the gloss and some of the professional tools that we wanted to use (eg around billing, and embedded client information and communication), to bring verisimilitude to the simulation of practice, while professional collaboration platforms, like HighQ, which we experimented with for the first year, struggled with some of the kinds of learning collaboration we also needed to build-in – and it was also fiendishly expensive. (ii) At this stage too as a researcher looking at legal tech, I’m bothered by the relative absence of research and high quality academic literature, for example, around its affordances and impacts on the culture and economics of legal services. My underlying concern here is that curriculum itself is a bit of a fugitive and constraining concept. In law it is heavily contingent on its historical and cultural norms, rather than open to a more ‘blank slate’ enquiry. There is a real liklihood therefore of ‘technology issues’ being ignored or simply retrofitted or bolted-on to the existing curriculum. As will become apparent, I think that is a matter of some concern, insofar as it potentially underplays the significance of the law-technology relation to the future of law itself. The introduction of standards of professional competence in technology, at least as currently understood, are also not an answer to the deeper questions I want us to ask
- The importance of technological competence to practice has been increasingly highlighted in many jurisdictions. The ABA introduced a rule on technology competence nearly a decade ago, [Comment 8 to Model Rule 1.1 now reads, in relevant part: “Maintaining Competence — To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” (emphasis added)] and the need for improved tech competence has since been highlighted in reviews and enquiries undertaken, for example, by the Law Institute of Victoria (2015) and the Law Society of NSW (2017) and by Adam Wyner’s work last year for the English Legal Services Board which calls for research-led teaching and learning of LegalTech. This is of course a rather narrow and functional conception of competence; there is no syllabus, and given the dynamic nature of legal tech, and the segmented nature of practice, there may never be one. The risk is that, in so far as the topic is addressed at all, whether at academic, vocational or continuing stages of training, the primary focus will be drawn to a smorgasboard of hot topics (see Wyner). Competence for what is of course a moot point, particularly given the growing multiplicity of tech-related roles that are emerging in the legal services sector, a point recognised by Wyner, for example, who sees the distinguishing quality between lawyer as legal domain expert and lawyer as legal tech professional as lying in the latter’s possession of a core of ‘theory’, defined primarily as a sufficient understanding of maths, logic and computational theory to move beyond the role of domain expert. This narrowly technical and largely functional view of theory has its place, but it potentially neglects both the wider social understanding of technology and its effects, and the value of a more specific theory of law and technology.
- I want to avoid here a crude binary view of tech as good or bad, but what we do have to acknowledge is the idea that technologies in the wild are never neutral: they always already have normative effects. This insight is critical. Peter-Paul Verbeek in his work Moralizing Technology: Understanding and Designing the Morality of Things argues technologies can be considered “moral mediators” that shape the way we perceive and interact with the world and thus reveal and guide possible behaviours. Since every technology affects the way in which we perceive and interact with the world, and even the way we think, no technology is morally neutral – it mediates our lives Similarly Mireille Hildebrandt argues (in ‘Smart Technologies and the End(s) of Law’) that the view of technology as neutral in itself encourages an instrumental focus on the costs and benefits of tech, and particularly from the perspective of law and technology, a focus on technology’s harms. This, she argues takes our attention away from a technology’s affordances and the question how it reconfigures “the fabric of human society”, and I would emphasise law as part of that fabric. What makes modern digital technology normatively so interesting is the depth of its imbrication in the social fabric that is implicit in constructs like Luciano Floridi’s ‘onlife’ a hyperconnected state of being in which the distinctions between online and ofline existence are increasingly blurred or dissolved.. This conceptual frameworks all recognize, of course, that technology does not act alone, it is part of a complex sociotechnical system. Much of that complexity resides in the very conglomeration of ‘actants’ (drawing on Bruno Latour’s conception of actor-network theory), that causes sociotechnical systems to have less predictable outcomes than simple technical artifacts. In addition, they generate a greater difficulty to prevent unintended consequences, and to hold agents liable in case of harm, since the technological action, reflected in the sociotechnical system, is a sum of actants’ actions, entangled in the network in an intra-relation
- Just as Zygmunt Baumann saw ‘floating responsibility as a key ethical challenge created by the scale and bureacratisation of modern human institutions, so the entanglements of complex sociotechnical systems exacerbate the risks of distributed responsibility. We likely face increased occurances of complex liability problems where it is difficult to identify the causal nexus between an actant’s conduct and the damage caused among the different actants involved in the process. How and to what extent we attribute liability to humans behind the technology, or to non-human ‘intelligent’ agents (the reasonable robot), or need to rethink our bases of liability and remediation that better manage distributed irresponsibility is, in short, an ongoing big question for law. There are also interesting questions about risk and the role of precautionary approaches to algorythmic failure – such as occurred in the financial markets in the run up to the GFC
- Rise of techno-regulation or what Roger Brownsword calls technological management of society – techno-regulation often operates as a choice reduction mechanism that limits by technical means the possibility of certain outcomes or behaviours. The extent to which normative decisions can be hardwired into and often hidden in technology is an interesting trend in regulation. I’m not suggesting its necessarily a bad thing – lots of situations where failsafe systems have significant value, but we also need to acknowledge the extent to which the use of persuasive technologies, nudges and hard-stop techno-regulation impacts human agency and moves us as a society into a realm of more rather than less functionally non-normative control
- A further corollary of automation, which has also been thoughtfully addressed by Brownsword in his latest book – highly recommended (declare interest!), is the rise of normative redundancy as technologies increasingly take humans and human decision making out of the loop, eg: IoT and the rise in automated consumption – traces of contract and transactionalism become increasingly thin; the ability and need for competition law to keep pace with new digital (and potentially self-regulating) forms of market control and manipulation; the extent to which preventative and precautionary technologies will replace tort-like remediation with technological protections
- The opportunity for law schools can be seen an emergent quality of and a response to the threat of technology. David Post puts it, how do we build ‘republican institutions that scale’ to meet the challenges of the digital world? >>Can we recreate the law school as a laboratory that actually seeks to address these real questions that are, in a sense, at the edge of law as we have known it? What do we need as a starting point? Roger Brownsword in his recent books, Law, technology & Society and Law 3.0, points to a number of key possibilities: Brownsword highlights the classical dominance of a ‘coherentist’ account of law in legal scholarship and legal education. That is, an account that focuses primarily on: Whether the law is internally consistent, both as a matter of doctrine and as a matter of coherence with the aims and constitutive values of the given legal order Where and how new problem situations fit with or map onto existing legal forms, categories and principles These coherentist questions have increasingly been supplemented by a more functional and often empirical concern with the law’s fitness for purpose, recognising that does it work?, rather than ‘does it fit? is an important public policy question’. If coherentism is Law 1.0, then coherentism + functional instrumentalism gives us law 2.0. But what if law 2.0 itself is increasingly being overtaken by events? What if we are moving into a yet more complex law 3.0 world? Brownsword persuasively concludes that that is indeed where we are heading, drawing his exemplars quite specifically from the ways in which scientific innovation and the digital revolution have disrupted not just specific legal categories but perhaps the concept of law itself. Brownsword’s response is to broaden our basic focus of enquiry, so as to understand and present law from the outset as part of a broader regulatory conversation, recognising that an increasing amount of the heavy lifting is being done by forms other than law properly so-called – soft law, techno-regulation and other techniques of non-normative control, including bare power. These are of course material and perform useful and legitimate functions, but may also be problematic, as we have seen, because they may significantly challenge our standards of legality, and the place of law in the social structure. Second, we do need to continue asking the functional question of these forms of regulation: are they fit for purpose? But we also do our discipline and our students a disservice if we stop here, and let utility be the only measure of ‘good’ regulation. Therefore, thirdly and perhaps more radically, I suggest we also need to ask whether the form and functions of regulation are, in a sense, fit for law more generally, recognising and reflecting on Mireille Hildebrandt’s observation that the “challenge facing modern law is to reinvent itself… without giving up on the core achievements of the Rule of Law” Smart Technologies and the End(s) of Law (2015), 17. More pragmatically….
- We need to build socio-technical expertise in technology, not just create students or lawyers who are passive users of technology, anesthetised by the digital. What might this involve? For a starter, I suggest four things: A. Pervasiveness As I have sought to show, the real problem for ‘law and technology’ is neither wholly law nor technology, but how we conceive of the ‘and’ that connects and divides them. ‘Onlaw’ obliges us to confront both the extent to which law is always already technology, and the ways in which digital technology is increasingly becoming law. In this light, the conversation about information technology is too important to be peripheral; it must be understood and problematised pervasively across the curriculum. Underpinning any such a pervasive approach there is also a core need for digital literacy, and an understanding of how digitisation fundamentally affects the qualia of information. For example, understanding the ways in which the move to digital makes information more dynamic, malleable, persistent and (paradoxically) vulnerable to destruction, and harder to authenticate, and the implications of these characteristics for regulation.. B. Inter-disciplinarity It is striking the extent to which the most pressing or ‘wicked’ problems of society do not fit neatly within conventional academic boxes – they are complex, normatively and often spatially fluid, trans-scientific, and also trans-legal. They will not be solved by law, science or technology working alone. At a practical level, the ability of individual lawyers to work with other professions and disciplines has long been recognised as important in both the professional and research worlds, yet that insight still seems too often to translate poorly to much of the law student experience. Given the likely increasing fluidity of professional knowledge and professional roles, the need ito develop some core inter- or trans-disciplinary competences s surely more pressing, not less. The justification for greater inter-disciplinary skills and understanding moreover, is not just pragmatic. Working in and with a range of disciplines is critical to treating the phenomenon of law (including ‘onlaw’) as a proper field of inquiry, rather than as a discipline that is, to some degree, isolated by its own epistemological assumptions. If we look at the law in this light, why should we not become more like other professional schools (in business, design, public health and medicine), where anthropologists, sociologists, computer scientists, ethicists, economists, organisational theorists, and others, could teach and work alongside lawyers in the work of both theory-building, and resolving real-world problems? C. Design thinking If lawyers are to function as Fuller’s active “architects of social structure”, then we need to take legal design seriously. Thinking explicitly about law as a design problem matters, and that includes bringing a critical legal perspective to the role of technology. Eg (1) in thinking about the relative merits of human in the loop vs wholly automated design…. (2) Lawtech is being widely touted as a design solution, and there is no doubt that much effort and good work is going in to using technology to address real world problems. However, my intuition is that much of that work is going into producing localised fixes for very specific problems. While such fixes are undoubtedly valuable if they make an appreciable difference to individual lives, what are the systemic consequences of re-constructing the justice system around disparate and quite often disconnected tech solutions? Who is making sure that we ask the deeper questions about what law does, independent of what lawyers do, and how we build rule of law solutions not just instrumental fixes. Problem- and tool-oriented, agile design is welcome, but it should not displace the bigger policy conversations about rule and institutional design. Design itself needs to be a deeply critical and reflexive conversation, not just a methodology. Manzini defines design as “a way of thinking and behaving… combining three human gifts: critical sense (the ability to look at the state of things and recognize what cannot, or should not be, acceptable), creativity (the ability to imagine something that does not yet exist), and practical sense (the ability to recognise feasible ways of getting things to happen)” D Ethics and governance Manzini also observes that when a new functional technology emerges, the driving force shaping the design of services and systems tends to be the technology, not social need. This highlights a core ethical challenge that we face, and one that Heidegger saw as intrinsic to the nature of technology itself: its tendency to seek greater flexibility and efficiency for its own sake. In a hyperconnected world we are, consequently, often not the subjects using technology, we are being used by it. In this space we don’t just need lawyers who can use technology, we need leaders who are interested in and empowered to ask the big institutional and intersubjective questions about what it means to be human, and a legal subject in a time of brilliant, but also powerful technologies.