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TECHNOLOGY, GOVERNANCE AND RESPECT FOR THE LAW In the context of the technological disruption of law and, in particular, the prospect of governance by machines, this book reconsiders the demand that we should respect the law, simply because it is the law. What does ‘the law’ need to look like to justify our respect? Responding to this question, the book takes the form of a dialectic between, on the one side, the promise of the prospectus for law and, on the other, the discontent provoked by the performance of law in practice; this is followed by a synthesis. Four pictures of law are considered: two are traditional pictures – law as order and law as just order; and two are prompted by the technological disruption of law – law as governance by machines and law as self-governance by humans. These pictures are tested in five performance areas: contract law, criminal law, biolaw, information law, and constitutional law. The synthesis, revealing the complexity of the demand for respect, highlights three particular points. First, the only prospectus for law that clearly commands respect is one that is committed to protecting the global com mons (the preconditions for humans to form their own communities with their own forms of governance); second, any form of governance by humans will invite reservations and push-back against the demand for respect; and, third, governance by machines is not so much a superior form of governance as a radically different form in which questions about respect are redundant. This book will appeal to scholars and students with interests in the broad and burgeoning field of law, regulation and technology, as well as to legal theorists, practitioners, and others interested in the impact of new technology on law. Roger Brownsword is Professor of Law at King’s College London and at Bour nemouth University. TECHNOLOGY, GOVERNANCE AND RESPECT FOR THE LAW Pictures at an Exhibition Roger Brownsword Cover image: Natali_Mis First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 A GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Roger Brownsword The right of Roger Brownsword to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-032-32550-7 (hbk) ISBN: 978-1-032-32548-4 (pbk) ISBN: 978-1-003-31559-9 (ebk) DOI: 10.4324/9781003315599 Typeset in Bembo by Taylor & Francis Books CONTENTS PART1 Preliminaries 1 1 Invitation 3 2 A Guide to the Exhibition 10 PART A Technology, Governance, and Respect for the Law 13 3 The Main Exhibits 15 4 Law and its Discontents 24 PART B Side Gallery I 27 5 Contracts, Consumers, and Commerce 29 6 Back to the Main Exhibits 45 PART C Side Gallery II 49 7 Criminal Law and Criminal Justice 51 vi Contents 8 Back to the Main Exhibits 69 PART D Side Gallery III 73 9 Biolaw and Bioethics 75 10 Back to the Main Exhibits 108 PART E Side Gallery IV 111 11 Information Law 113 12 Back to the Main Exhibits 135 PART F Side Gallery V 137 13 Constitutional Law 139 14 Back to the Main Exhibits 157 PART G After the Exhibition 159 15 Reflections on Law’s Governance: Prospectus, Promise and Performance 161 16 The Law of the Global Commons 177 17 The Laws of the Communities 184 18 Respect Relaxed, Respect Reimagined 192 19 Long Story Told Short 201 Index 205 PART 1 Preliminaries 1 INVITATION This book is an invitation to an exhibition, the theme of which is ‘Technology, Governance and Respect for the Law’. It comprises some 35 ‘pictures’. These exhibits, it should be said, are pictures only in the loosest sense; this is not a book of artwork, of paintings or sketches or images. Readers will not find a Kandinsky to provoke thoughts about the delicate tensions in the law or a Dali to prompt thoughts of disruption and reimagination;1 nor will they find a Max Ernst to evoke human ambivalence towards technology in general, let alone governance by technology.2 However, the text that represents these pictures is intended to convey various images and to wrap a commentary around them. Stated shortly, the purpose of the exhibition (and the book) is to invite reconsideration of the demand that we should respect the law, simply because it is the law, and even if we have reservations about it. The central question is whether this demand is either plausible or meaningful when there is the prospect of governance by technologies and when such governance might be viewed as outperforming rule-based human governance by law. Broadly speaking, there are three phases in the book. First, the main exhibits are introduced (Chapters 3–4). These exhibits are four pictures, each of which sets out its own distinctive prospectus for the governance of human communities, pictures that purport to give reasons for respect for a particular type of governance. Second, there are groups of pictures, placed in five side galleries at the exhibition, each probing and provoking doubts about the promise of law as well as discontent with 1 For some thoughts about the former, see Roger Brownsword, ‘Law, Technology, and Society: In a State of Delicate Tension’ (2020) 36 Politeia 137, 26. 2 Compare Anna Beckers and Gunther Teubner, Three Liability Regimes for Artificial Intel ligence (Oxford: Hart, 2021), the cover and opening pages of which feature Max Ernst’s ‘Figure ambigue’, an image that is seen as being emblematic of human ambivalence in relation to technology. DOI: 10.4324/9781003315599-2