Law and Technology Realism

Paper by Thibault Schrepel: “One may identify two current trends in the field of “Law and Technology.” The first trend concerns technological determinism. Some argue that technology is deterministic: the state of technological advancement is the determining factor of society. Others oppose that view, claiming it is the society that affects technology. The second trend concerns technological neutrality. some say that technology is neutral, meaning the effects of technology depend entirely on the social context. Others defend the opposite: they view the effects of technology as being inevitable (regardless of the society in which it is used).

<p><em><strong>Figure 1</strong></em></p>
Figure 1

While it is commonly accepted that technology is deterministic, I am under the impression that a majority of “Law and Technology” scholars also believe that technology is non-neutral. It follows that, according to this dominant view, (1) technology drives society in good or bad directions (determinism), and that (2) certain uses of technology may lead to the reduction or enhancement of the common good (non-neutrality). Consequently, this leads to top-down tech policies where the regulator has the impossible burden of helping society control and orient technology to the best possible extent.

This article is deterministic and non-neutral.

But, here’s the catch. Most of today’s doctrine focuses almost exclusively on the negativity brought by technology (read Nick Bostrom, Frank Pasquale, Evgeny Morozov). Sure, these authors mention a few positive aspects, but still end up focusing on the negative ones. They’re asking to constrain technology on that sole basis. With this article, I want to raise another point: technology determinism can also drive society by providing solutions to centuries-old problems. In and of itself. This is not technological solutionism, as I am not arguing that technology can solve all of mankind’s problems, but it is not anti-solutionism either. I fear the extremes, anyway.

To make my point, I will discuss the issue addressed by Albert Hirschman in his famous book Exit, Voice, and Loyalty (Harvard University Press, 1970). Hirschman, at the time Professor of Economics at Harvard University, introduces the distinction between “exit” and “voice.” With exit, an individual exhibits her or his disagreement as a member of a group by leaving the group. With voice, the individual stays in the group but expresses her or his dissatisfaction in the hope of changing its functioning. Hirschman summarizes his theory on page 121, with the understanding that the optimal situation for any individual is to be capable of both “exit” and “voice“….(More)”.