Human Autonomy, Law, and Technology

Scholars of technology have long puzzled over the question of the relationship between human societies and their technologies. Technological determinism suggests that the technologies present in a society have a determining effect on the structure of that society. Critics of this idea point out that the technologies are themselves developed by people within societies and so are themselves determined by the characteristics of those societies. It may be that the influence flows in both directions. The concept of the autonomy of technology suggests that human societies do not have very effective mechanisms to control and direct their technologies. Instead, those societies are more apt to adapt their structures and values to accommodate any efficient technologies that develop. The themes of autonomy and control thus arise in various ways in the consideration of the place of technology in human societies. While the ideas of technological determinism and the autonomy of technology tend to focus on the effects of technology at the social level, it is possible to consider the questions of control and autonomy at the individual level as well. At the level of the individual, it seems clear that many technologies support human autonomy and promote freedom by expanding human capacities for action. At the same time, individual human beings paradoxically come to feel obliged to adopt particular technologies in a manner that undermines their autonomy and freedom. This series of short articles addresses the theme of human autonomy, law, and technology. In the winter of 2009, Arthur Cockfield invited a group of scholars of law and technology to continue their joint conversation on the Law and Technology Theory Blog (http://techtheory.blogspot.com/). Each of us wrote a short piece containing reflections on this theme. The short articles have been revised for inclusion here in the Bulletin and are presented in the order in which they appeared on the Blog. In the rest of this short introduction, I provide a sketch of the main themes emerging from each article. Arthur Cockfield describes the competing views, first, that technologies are merely neutral instruments that humans choose or not and, second, that technologies have pervasive and unintended effects that undermine human autonomy. He explores how these two competing views might tend to lead legal policy makers in different directions in the context of the government deployment of surveillance technologies. Frank Pasquale explores the extent to which “neurocosmetic” pharmaceuticals challenge our understanding of human liberty and autonomy. He considers the external pressures that may limit a person’s freedom to reject cognitive enhancement. More fundamentally though, he points out that to the extent that these drugs interfere with the recognition of difficult truths and feelings, they may undermine the foundation of personal autonomy. Jennifer Chandler looks at the effect of technology on human autonomy through two lenses. First, she looks at collective self-determination, as expressed in the laws that we choose for self-governance. Here, the question is whether technological ideology tends to determine legal doctrines and outcomes rather than that the law controls technology. Second, she suggests various mechanisms to explain the sense that individuals may feel constrained to adopt specific technologies whether they wish to or not. Kieran Tranter approaches the relationship between human autonomy, law, and technology using three stories. The technological story of “human as tool user” suggests that technology is the essence of humanity and emancipates humans from natural limits. The legal story tells a tale of anarchy overcome through a social contract that enabled, among other things, the flowering of technology. He proposes a critique of both these stories—the autonomy story—and argues that we have choice and responsibility for the cultural narratives that we adopt to understand our technologies. Lyria Bennett Moses turns her gaze upon legal scholars and how they have responded to technological innovation as a field of legal study. She speculates about the reasons that lawyers may rush to publish on the legal implications of the latest technology. Lawyers may be dazzled by an exciting technology, but they may also be rushing to assert the continuing relevance and importance of the law (and themselves) in a rapidly changing technological society. Lisa Austin traces the evolution of the philosophy of technology and identifies the mutual enrichment that the philosophy of technology and legal scholarship might draw from one another. She discusses a recent skirmish in the “control wars” over personal information on the Internet and proposes a reimagining of the value of privacy that is inspired by the approach of the early philosophers of technology. Sam Trosow argues that it is essential to consider economics in seeking to understand the relationship between law, technology, and other social phenomena. He addresses the important role of economic analysis in the field of intellectual property law—a field that is central to the interaction of law and technology.

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