this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

The LIV is currently closed to all visitors.

We are working remotely to deliver member services. For more information visit our 

COVID-19 Hub
Select from any of the filters or enter a search term
Calendar
Calendar

Technology theory: The law and techno-think

Technology theory: The law and techno-think

By Fabian Horton

Practice Management Technology 

0 Comments


Technology has infiltrated our lives. Being able to recognise when it is advantageous and when it is harmful is a skill required by all legal practitioners.

Snapshot
  • Technology is a way of modern thought. It can be a beneficial and a harmful way of thinking.
  • Techno-think infiltrates every facet of our connected world to the extent that is difficult to see when it is harmful.
  • Lawyers must recognise when techno-think is problematic and learn to collaborate with other experts in the protection of society.

In our continuing analysis of technology’s impact on the law, we know that technology is best understood in its broadest conceptualisation.1 This requires us to see technology as more than just devices (such as computers and phones) and moves technology into the realm of data, processes, procedures, and systems. The broadening of our conceptualisation of technology opens a way for us to see technology’s impact on how we physically interact with our world and how we perceive, interpret, and respond to our world. Further, it is technology’s impact on our cognitive functions that lawyers need to understand better to more appropriately deal with many of the problems that technology brings to society. 

This requirement was illustrated in a 2018 Twitter conversation between two prominent legal professionals when they reflected on their concerns about Robodebt. They noted that the scheme instrumentalised individuals and that those with legal or organisational knowledge (privilege) did not act against the scheme in time. They further noted that Robodebt represented a “paradigm shift that traditional modes of response were ill-adapted to deal with”. In terms of understanding technology, Robodebt’s conceptualisation and implementation was born from what we might call “techno-think”. So what is techno-think? And what are the benefits and problems that arise from its use?

Technology as techno-think

A broadened conceptualisation of technology accepts that our day-to-day comprehension of technology is inadequate and does not appreciate the extent to which technology infiltrates our thinking. It further acknowledges that the essence of technology goes beyond the mere physical manifestations and into the way we perceive and interact with the world. Techno-think is a term that can be used to describe this ordering of the mind. It is a way of thinking that is grounded in and wedded to the technological. And it is not just the way an individual might think. Techno-think is also a relational and social phenomenon. 

The notion that “the technological” is part of the way humans perceive and interact with their world has been around since the ancient Greeks.2 It came back into prominence at the start of the 20th century. At this time, the philosophy of technology was gaining momentum in response to the rapid technological developments of the two world wars. Two philosophers who took part in this revival were Martin Heidegger and Jacques Ellul.

Heidegger noted that we mainly look at technology as either a means to an end – instrumentums, or as a human activity – anthropological. And these concepts are correct representations of technology. But, he argues, these concepts of technology do not show the truth of technology. The true essence of technology lies in its social aspects, the way we use it, the way it is sold to us, the way we are instructed to use it, the technology underlying the technology (in as much as many new technologies presuppose use of prior technologies), the way we learn about technology, the technological language we use, and the way the technology “speaks” to us. This effectively conditions the way we approach our world by forcing us to relate to everything in a technological way; from a technological point of view. For Heidegger, technology is more than a device, or even how we relate to something. Technology is the way of modern thought. He describes this as “calculative” thinking. And, according to Heidegger, the problem with calculative thinking is that we approach the world in such a calculated way that we fail to see the true (or other) aspects of any given issue. This calculative thinking problem is further compounded in that any problem created due to our calculative thinking is only made worse because we continue to use calculative thinking to solve the problem.3

Ellul, too, suggested that humans were captured by a type of techno-think. Specifically, his concept of “technique” describes how humans engage in and are consumed by a type of thinking that is bound to the technological. It sees its ultimate expression in modern machines, information, and systems. Ellul explains it as: “Technique is the totality of methods rationally arrived at and having absolute efficiency (for a given stage of development) in every field of human activity”.4 To assist us, industrialist John Wilkinson restates what Ellul means by technique: “Technique refers to any complex of standardised means for attaining a predetermined result. Thus, it converts spontaneous and unreflective behaviour into behaviour that is deliberate and rationalised”.5

According to Ellul, technique is so ubiquitous in modern thinking that nothing at all escapes it.6 He notes that technique can be broken into subdomains of mechanical technique (machines/electronics), intellectual technique (information management), economic technique (production, organisation of labour and economic planning), organisational technique (business, government, military) and human technique (medicine, propaganda, pedagogy, publicity).7 To Ellul, the concept of total domination of methods towards efficiency encapsulates not only our individual perspectives but also the captivity of society to the technological. 

 “Technology”, therefore, can be characterised as including a propensity (whether dominant or not) towards technicity and an ordering of everything. It includes cultural and organisational aspects as part of the general meaning and incorporates the activity commonly labelled “technology practice”. This perspective sits within the concept of sociomateriality; the theory of “constitutive entanglement of the social and the material in everyday life”.

Technology philosophers such as Langdon Winner and Jerry Mander also recognised that our social systems necessarily become technological systems. Here, the technological becomes agentive by virtue of the prominence that it is given. Modern humans give the “technological approach” such power that it is, at the very least, reflective of a type of technological autonomy (the ability to determine social change). The attributes of technological efficiency, speed, and productivity are then seen as desired values in many of our core legal concepts such as democracy and social justice.

The concept of the technological mindset has found a utility in describing how we approach the organisation of our connected society and the connected world. Understanding how the technological impacts the social and then the regulatory and, in reverse, how regulatory systems act as part of the socio-techno machinery, is vital for all lawyers as we operate within the modern “legal enterprise”. For lawyers, underestimating the connectedness of the elements will limit the ability to see into the heart of any issue or question presented. Knowledge of the extent to which we think in a technological manner will enable a clearer interrogation and analysis of the issues we face individually and as a society. Conversely, an inability to understand our propensity towards techno-think invariably leads to situations where the manifestations of the problems are misunderstood due to the tendency of the technological to obscure the real issue.

The legal enterprise in a techno-society 

The challenges in the way we understand and interact with law and technology are not just limited to functional skills or technical knowledge. They are tied to the much deeper issue of legal-technical domain conceptualisation. This is the understanding of how technological thinking impacts on the ways that law is conceived, developed, administered, and ultimately adjudicated. 

This conceptualisation is taken from the perspective of those who operate within what could be called the legal enterprise. The legal enterprise goes beyond the legal profession. It includes politicians, policymakers, lawyers, judges and others within the broader legal community. The legal enterprise encompasses the creation of law, including policy development, through to the drafting of legislation. It continues through to the administration and practice of law, and on to the enforcement and judgment of the law, and finally to law review and reform. Often accompanied by specific technologies such as data processing and artificial intelligence, this technologicalisation is embedded into all levels of the legal enterprise, from the government to the judiciary (and indeed affecting every lawyer and paralegal in between). The entire expression of law, including its agents, processes, mechanism, norms, and culture are contained in the legal enterprise. It is the legal enterprise that is dominated by techno-think by virtue of its existence in a techno-society. The more technologically bound society becomes, the more technological law becomes. 

It is expected that complex systems such as the legal enterprise will operate at a level of technological maturity relevant to the time in which they exist. This sophistication permeates the tools, processes, procedures, culture and relationships that all combine and work together. No one expects a nuclear reactor to be run by a single person, or even as a democracy. It has experts that operate in specific areas, utilising specific tools and methods to achieve specific outcomes. And it is this type of technocracy that has engulfed law and the legal enterprise. Winner’s description of the links between the technological, social, and political demonstrates the degree to which the technological extends into our thinking, the effects it has on society, and how it establishes itself as a self-perpetuating system.10 

Techno-think is not inherently bad. Society has achieved much because of it. What is problematic is our inability to recognise our technological propensity. This can lead us down paths where our technicity results in ideas and actions that are poorly expressed or employed. The problem compounds when, because of our technological nature, we fail to recognise mistakes when they occur. This failure can lead to further issues when problems persist and multiply or conversely, we attempt to apply a solution (technological of course) which ends up treating the symptoms and not the cause. As Winner correctly notes, it is within these political-social institutions the attributes of technological efficiency, speed, and productivity, are successfully changing or replacing our more human of values; even those of freedom, democracy, and social justice.11

Manifestations of techno-think in law

A reductive example based on the failed Robodebt scheme can be used to illustrate the concerns brought on by unrestrained technologicalisation. It was techno-think that concluded that the use of technology in the form of data matching was an appropriate way to enhance what was essentially a debt recognition and recovery system.12 Along the way, legislation and practices were introduced that further streamlined and systematised the interactions contained in the process. The result saw processes such as the limiting of human interactions in favour of machines and the restructuring of legal norms in favour of convenience, as seen in the change in the burden of proof.13 These decisions were made to further the aim of recovering money for the government in a cost-effective manner that, one would hope, made legal and economic sense at the time of being instigated. In totality however, it was shown that the system had “no lawful basis”.14 The question for our purposes is – when did techno-think triumph as the basis of rationalisation and why were we unable to guard against its failings?

Looking at other aspects of the legal enterprise we can see more effects of technologicalisation. Probably the most recognisable is seen in the evolution of legal practice and the technology that has enabled this. This issue has been well covered by Richard Susskind in his many books.15 Automated legal services and the NewLaw phenomenon are all part of the ongoing development which is refashioning the notion of what it means to provide legal services. In adapting to this, lawyers have changed the way they conceptualise the practice of law. They have acquired new skills and have implemented different ways of operating their businesses. New questions are now being asked as to the ethical underpinnings of legal practice. To this, lawyers must re-evaluate how it is we understand our role in a techno-society.16 In addition, the technologicalisation of the lawyer’s role is more than just that which occurs in the lawyer’s practice. For example, legal AI decision-making, which can create a legal process (such as within government) or a precedent (such as within the judiciary). This demonstrates how legal reasoning and the legal process can be subsumed into one technological process.17 

Conclusion

The extent to which techno-think has infiltrated our lives means that we must be alive to its benefits and its detriments. The world is an ever increasingly complex place. Technology will remain as both an instigator of and a navigator through that complexity. We need to find ways of responding to that complexity without losing sight of our purpose as lawyers. 

Perhaps the most effective way to arm ourselves against the determinants of technologicalised law is through education. Digital fluency and, more importantly, collaboration are essential if we are to work together against the problems associated with an over-reliance on the technological. Being able to recognise techno-think and cooperate with other experts will help us gain a clearer understanding of the issues we face. 

Another approach is to “dial-down” our exuberance for and belief in techno-solutions to our problems. We need to get back in touch with the human side of law and reconsider what successful law looks like. In some situations, this may call for inefficiency to be preferred over efficiency, for slow to be preferred over quick, and for justice to be preferred over economics. 

Humans must be able to let go of technology in as much as we are able to pick it up. Being able to recognise when technology is advantageous and when it is harmful is a skill required by all, but particularly lawyers who are charged with the protection of our fundamental rights. If those who are entrenched in the legal enterprise are unable to protect society from faulty techno-systems legitimised by the law, we should expect to see more catastrophes like Robodebt in the future. ■


Dr Fabian Horton is a legal educator and principal solicitor at ConnectLaw. He is foundation chair of the LIV Technology and Innovation Section and a director at the Australasian Cyber Law Institute. He regularly presents on topics such as legal AI, techno-legal ethics and digital fluencies for lawyers and was the lead author of the Law Council of Australia’s cyber-security initiative Cyber Precedent.

*This article reproduces and reuses sections and research from the author’s PhD dissertation “A conceptual framework for the law and technology knowledge domain”, (2021) DOI: 10.25918/thesis.123.

  1. Fabian Horton, “Unpacking the Technology Question” (2018) 92(9) LIJ 23.
  2. Val Dusek, Philosophy of Technology, An Introduction (Blackwell Publishing, 2006) 35 citing Steven Kline, “What is technology” (1985) Bulletin of Science, Technology and Society 1, 215–218.
  3. Martin Heidegger, “Conversation on a Country Path about Thinking’ in Discourse on Thinking”, Harper and Row, 1966, 46.
  4. Jacques Ellul, The Technological Society (Wilkinson trans, Vintage Books, Random House, 1964), xxvi.
  5. Note 3 above, vi.
  6. Note 3 above, p21.
  7. Note 3 above, p22.
  8. Wanda J Orlikowski, “Sociomaterial Practices: Exploring Technology at Work”, (2007) 28(9) Organization Studies 1435, 1436.
  9. Langdon Winner, The Whale and the Reactor: A Search for Limits in an Age of High Technology (Chicago: University of Chicago Press, 1986) 55 and 155. For a collection of essays on technology and democracy see also Corien Prins et al (eds), Digital Democracy in a Globalized World (Edward Elgar Publishing Ltd, 2017).
  10. Note 8 above, p55.
  11. Note 8 above, p155.
  12. One of the prime acts was the Data‑matching Program (Assistance and Tax) Act 1990.
  13. Jordan Hayne and Matthew Doran, Government to pay back $721m as it scraps Robodebt for Centrelink welfare recipients (29 May 2020), Australian Broadcasting Corporation (online), https://www.abc.net.au/news/2020-05-29/federal-government-refund-robodebt-scheme-repay-debts/12299410.
  14. Luke Henriques-Gomes, “All Centrelink debts raised using income averaging unlawful, Christian Porter concedes”, (31 May 2020) The Guardian (online), https://www.theguardian.com/australia-news/2020/may/31/all-centrelink-debts-raised-using-income-averaging-unlawful-christian-porter-concedes.
  15. For example, see Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future, Oxford University Press, 2nd edn, 2017 and Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology will Transform the Work of Human Experts, Oxford University Press, 1st edn, 2015.
  16. See Fabian Horton, “Law, Technology and New Ethics” (2016) 90(6) Law Institute Journal 29.
  17. Also see Sora Park and Justine Humphry, “Exclusion by design: intersections of social, digital and data exclusion” (2019) 23(17) Information, Communication & Society 934.

Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment