Technology, Law, and Ethics

It is frequently observed that developments in technology run ahead of law and ethics, which never quite catch up. This may be true, but not in the way it is usually imagined. What follows is a series of loosely related considerations that might help us see the matter more clearly.

When people claim that technology outstrips law and ethics, they are usually thinking more about the rapid advance of technology than they are about the structures of law and ethics. If we were to unpack the claim, it would run something like this: new technologies which empower us in novel ways and introduce unprecedented capacities and risks emerge so quickly that existing laws and ethical principles, both of which are relatively static, cannot adapt fast enough to keep up.

Thought of in this way, the real pressure point is missed. It is not merely the case that new technologies emerge for which we have no existing moral principles or laws to guide and constrain their use; this is only part of the picture. Rather, it is also the case that modern* technologies, arising in tandem with modern political and economic structures, have undermined the plausibility of ethical claims and legal constraints, weakened the communities that sustained and implemented such claims and constraints, and challenged the understanding of human nature upon which they depended.

To put the matter somewhat more succinctly, contemporary technologies emerge in a social context that is ideal for their unchecked and unconstrained development and deployment. In other words, technology appears to outstrip ethics and law only because of a prior hollowing out of our relevant moral infrastructure.

Social and technological forces contribute to the untethering and deracination of the human person, construing her primarily and perhaps even exclusively as an individual. However, valuable this construal may be, it leaves us ill-equipped to cope with technologies that  necessarily involve us in social realities.

From the ethics side of the ledger, it is also the case that modern ethics (think Kant, for example) also construed ethics chiefly as a matter of the individual will. A project undertaken by autonomous and rational actors without regard for moral and political communities. Political philosophy (Locke, et al) and economic theory (Smith, etc.) follow similar trajectories.

So, in theory (political, philosophical, and economic) the individual emerges as the basic unit of thought and action. At the center of this modern theoretical picture is a novel view of freedom as individual autonomy. The individual no longer bends their will to the shape of a moral and communal order; they now bend the world to the shape of their will.

In practice, material conditions, including new technologies, sustain and reinforce this theoretical picture. Indeed, the material/technological conditions likely preceded the theory. Moreover, technology evolves as a tool of empowerment that makes the new understanding of freedom plausible and seemingly attainable. Technology is thus not apprehended as an object of moral critique; it is perceived, in fact, as the very thing that will make possible the realization of the new vision of the good life, one in which the world is the field of our own self-realization.

While certain social and material realities were isolating and untethering the individual, by the mid-19th century technologies arose that were, paradoxically, embedding her in ever more complex technical systems and social configurations.

Paradoxically, then, the more we took for granted our own agency and assumed that technology was a neutral tool of the individual autonomous will, the more our will and agency were being compromised and distributed by new technologies.

Shortest version of the preceding: Material conditions untether the individual. Modern theoretical accounts frame this as a benign and desirable development. Under these circumstances, technology is unbridled and evolves to a scale that renders individual ethical action relatively inconsequential.

Moreover, the scale of these new technologies eclipsed the scale of local communities and traditional institutions. The new institutions that arose to deal with the new scale of operation were bureaucracies, that is to say that they themselves embodied the principles and values implicit in the emerging technological milieu.

It may be better, then, to say that it is the scale of new technologies that transcends the institutions and communities which are the proper sites for ethical reflection about technology. The governing instinct is to scale up our institutions and communities to meet the challenge, but this inevitably involves a reliance on the same technologies that generate the problems. It never occurs to us that the answer may lie in a refusal to operate at a scale that is inhospitable to the human person.

Something other than individual choices and laws are necessary. Something more akin to a renewal of cultural givens about what it means to be a human being and how the human relates to the non-human, givens which inform ethical choices and laws but cannot be reduced to either, and the emergence of institutions that embody and sustain individual lives ordered by these givens. It is hard, however, to see how these emerge under present circumstances.

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*Throughout the post I use "modern" to refer to Western modernity emerging c. 1600 or so (which date is certainly subject to a great deal of debate).