«This article argues that scholarship on law and technology is a thoroughly speculative activity. The textual signifiers of this speculative ...»
THE SPECULATIVE JURISDICTION
The Science Fictionality of Law and Technology
This article argues that scholarship on law and technology is a
thoroughly speculative activity. The textual signifiers of this
speculative orientation are the multiple incursions of science
fiction that locate and justify lawyers writing about technology.
Through a detailed examination of three law and technology
literatures – on early space technology, IVF and virtual worlds – it will be shown that science fiction is the storehouse of images and imaginings that substantiate the legal projection of technological futures. When law confronts technology, science fiction is its speculative jurisdiction. The suggestion is that through a more through-going engagement with science fiction as the speculative jurisdiction, law could engage more adequately with the complexities and contingencies of technological change.
This article argues that legal writing on technology is science fictional. As such, it is suggested that much more engaging and critical legal scholarship on technology is possible through a taking seriously of its inherent science fictionality. The nexus between legal scholarship on technology and science fiction is in the inherent speculation by lawyers of technological futures that orientate and legitimate the project of law and technology.
This argument is presented in three stages. The first considers science fiction as the West’s mythform – that it is the dreaming place for the West’s technological futures. The second stage examines in detail how science fiction functions as the speculative grounding to legal scholarship on technology. Three literatures on technology are analysed: first-generation space law scholarship (1956–65), IVF and law scholarship (1978–85) and virtual worlds and law (2004–08). In each scholarship, science fiction provides the location for a conception of technological futures that need law.
In this, science fiction forms the speculative jurisdiction. The third section of the article reflects on the limited nature of the legal engagement with science fiction. The science fictions that inform the speculative jurisdiction are socially conservative. The technological futures charted by lawyers’ writing about technology are visions that invoke anxiety, horror and concern at the loss of the ‘natural’ from the possibility of technological change. Science fiction as Western mythform is not so limited. This final section draws briefly on Octavia E Butler’s Xenogenesis trilogy to form a different speculative jurisdiction from which rather different technological futures can * Senior Lecturer, Griffith Law School, Gold Coast and Editor of the Griffith Law Review.
818 GRIFFITH LAW REVIEW (2011) VOL 20 NO 4 be drawn that provide more engaging and critical narrations of law and technology.
Science Fiction as the Westʼs Mythform This stage argues that science fiction is the West’s mythform. It is the dreaming site for the West’s technological futures, a place for working through both the anxieties and promises of technological change. The term ‘mythform’ itself has science fiction origins. Coined by William Gibson in
Mona Lisa Overdrive (1988), it is described as follows:
The mythform is usually encountered in one of two modes. One mode assumes that the cyberspace matrix is inhabited, or perhaps visited, by entities whose characteristics correspond with the primary mythform of a ‘hidden people’. The other involves assumption of omniscience, omnipotence and incomprehensibility on the part of the matrix itself.1 Gibson’s casual deployment of the mythform is suggestive. It is the place where myths, stories, accounts and dreams are located. Western culture dreams, feels and thinks technological change through science fiction as the repository of images and ideas concerning technological futures. This cultural function of science fiction can be glimpsed as a constant within the contested debates of what exactly science fiction is.
A common starting point in the quest for the definition of science fiction is Isaac Asimov’s definition of it as belonging to a culture responding
to industrial technology and concerned about its technological future:
[Science fiction] should glory in the fact that it is the literary response to humanity’s crowning triumph – modern science and technology. It should trumpet the fact that it deals with the great truth of contemporary times – rapid change. Science fiction is young because it is today’s literature; and, more than that, tomorrow’s.2 This conceptualising of science fiction amounts to what can be seen as the ‘external’ definition of science fiction. Both editors credited with developing the genre in North America presented analogous definitions.
Hugo Gernsback in the first issue of Amazing Stories in April 1926 set out the magazine’s publication policy of ‘scientification’: ‘By “scientification” I mean the Jules Verne, HG Wells, and Edgar Allan Poe type of story – a charming romance intermingled with scientific fact and prophetic vision.’ 3 In a similar vein, John W Campbell’s definition was that: ‘Science fiction tries to … write up, in story form, what the results look like when [technological 1 Gibson (1988), p 129.
2 Asimov (1981), p 12, italics in original.
3 Hugo Gernsback, cited in Westfahl (2007), p 20.
TRANTER: THE SPECULATIVE JURISDICTION 819change] is applied not only to machines, but to human society as well.’ 4 However, these definitions of science fiction concerned with the external shape of technological futures proved unsatisfactory to the emerging discipline of science fiction criticism in the 1970s. The critics’ deployment of more formal literary criticism protocols and their need to theorise ‘new wave’ writers5 tended to focus less on the technological meta-text and more on science fiction’s unique modus. It was from this context that Darko Suvin’s 1972 definition of science fiction as the ‘literature of cognitive estrangement’ 6 became popular.7 Suvin saw in science fiction not just technological dreaming on an external scale, but a deeper project of thinking the internal of human existence and potential through the ‘strangeness’ of science fiction.8 Following Suvin, definitions of science fiction multiplied – the offspring of the promiscuous tension between external and internal registers. In his 1986 study, Gary K Wolfe documents 33 different definitions from authors, editors and critics.9 The flowering of definitions of science fiction had provoked cynical reactions. As early as 1952, Damon Knight claimed that science fiction ‘means what we point to when we say it’,10 and more recently Paul Q Kincaid suggested that the best that could be found when it came to a definition of science fiction was a collection of texts bearing a ‘family resemblance’.11 Notwithstanding this pragmatic approach, the Australian
critic and author Damien Broderick offered a more expansive definition:
[Science fiction] is that species of storytelling native to a culture undergoing, the epistemic changes implicated in the rise and supersession of technical-industrial modes of production, distribution, consumption and disposal. It is marked by (i) metaphoric strategies and metonymic tactics, (ii) the foregrounding of icons and interpretative schemata from a collectively constituted generic ‘mega text’ and the concomitant de-emphasis of ‘fine writing’ and characterisation, and (iii) certain priorities more often found in scientific and postmodern texts than in literary models: specifically attention to the object in preference to the subject.12 Broderick’s definition has been cited increasingly,13 possibly because it seems to bridge the external register of Asimov’s technology and future, and
Suvin’s literary and internal emphasis, while avoiding content through labels such as ‘metaphoric strategies and metonymic tactics’ and ‘mega text’.
However, what Broderick captured was the common thread that can be discerned through the contested history of science fiction definitions.
Science fiction is where the contemporary Western culture story tells about technological futures – about how ‘objects’ will change life – not just the external forms and institutional arrangements, but the expression and possibility of human life itself.
In his recent Seven Beauties of Science Fiction, Istan Csicsery-Ronay Jr
provides a neat summary of science fiction as Western mythform:
It is from sf’s thesaurus of images that we draw many of our metaphors and models for understanding our technologized world, and it is as sf that many of our impressions of technologically-aided desire and technology-riven anxiety are processed back into works of imagination. It is impossible to map the extent to which the perception of contemporary reality requires and encourages sciencefictional orientations.14 While Csicsery-Ronay might be claiming the impossibility of mapping the totality of science fiction as the West’s mythform, the next stage of this article draws a small corner of such a cartography.
Science Fiction as Speculative Jurisdiction in Law and Technology Notwithstanding the classic vision of the Western lawyer detached from the world that – to use the traditions preferred pronoun – he serves, lawyers, and indeed legal scholars, are not monads.15 It is trite and banal to point out the even legal scholars participate in, and are connected and engage with, popular culture. Since the 1970s, the law and literature movement, and the more recent law and popular culture movement, have repeatedly made the point of the permeability and reflectivity between law and Western culture.16 The wider, grubbier popular cultural context manifests repeatedly within what once was seen as separate realm of law.
This is especially so when legal scholars direct their thoughts to technology. Technology is considered a problem that warrants legal exegesis because it is anticipated that a technology, or the popular discussion of a potentially emergent technology, will affect the future.17 Therefore, legal scholarship on technology is kind of an applied futurology – its starting point is images of technological futures that call for law. This is a speculative activity, a creative process of looking at what is and projecting, imaging and dreaming what could be.
It is precisely at this location of technological futures that science fiction as the West’s mythform manifests in legal discourse. This is the junction where the law and literature/law and popular culture claim of the permeability of law and popular culture is manifest within law and technology scholarship. To ground the analysis that is to come, lawyerscholars need to sketch the technological future. They need to state the worries, promises, risks, benefits and anxieties that are suggested by the chosen technology, and in so doing make the case for law. They need a speculative jurisdiction. And, as will be seen in the analysis of firstgeneration space law, IVF and law, and virtual worlds and law, the source of this speculative jurisdiction is science fiction.
In what follows, each literature is analysed discretely. What will be shown is the function of science fiction as law and technology’s speculative jurisdiction. The lawyer-scholars dip into the West’s mythform at three points. The first is the actual texts are named and circulate invoking popular meanings and receptions. The second is the incorporation into legal discourse of images, narratives and tropes popularly associated with science fiction. The third is the invocation of ‘science fiction’ itself as a carrier of meaning about technological futures.
First-Generation Space Law The successful launch of Sputnik in 1957 triggered a large body of legal discourse concerned with legalising outer space. In this first-generation space law scholarship, Sputnik is represented as anticipating space technology and space law. This movement had several facets. The first was excitement about the progress to come: ‘It daily grows more certain that the space rocket, like the horse, the automobile, and the airplane before it, has come to stay.’ 18 Myres S McDougal and Leon Lipson believed that in 1958 it
not too early to contemplate the use of unmanned orbital satellites for radio and television relays, for photographic observation of the weather, and for photographic reconnaissance of events on the earth’s surface; rocket landings on the moon; the landing of scientific instruments on the moon in working condition; manned flight in an orbital satellite that can return its human passengers alive to the earth;
manned flight to the vicinity of the moon and back.19 In their 1959 text, Philip C Jessup and Howard J Taubenfeld thought that ‘man may reach the moon by 1963 or 1966 and might even send an eight man rocket to Mars by 1970 or 1980’.20 Further along this technological future, lawyers were perceiving leaps in rocket technology – ‘thermodynamic nuclear rockets, electrical ion rockets and the ultimate, the
photon rocket’ 21 – allowing ‘satellite platforms … exploration teams will land on the Moon or on a planet’22 and the use of satellites to control weather
as a weapon.23 Even more speculatively was: