This contribution is published as part of the UNRISD Think Piece Series, From Disruption to Transformation? Linking Technology and Human Rights for Sustainable Development, launched to coincide with the 37th Session of the UN Human Rights Council and the 70th anniversary of the Universal Declaration of Human Rights. In this series, experts from academia, think tanks and civil society engage with the topic of linking technology and human rights, and share their experience at the front lines of policy-driven research and advocacy aimed at leaving no one behind in an increasingly digital, automated world.
The popular view holds that, when it comes to new technologies, law either dawdles or moves too soon. This think piece argues that we should see law differently and that if we want to govern technology wisely, legal literacy is as important as scientific and digital literacy.
is Professor of Law and Director of the Health & Human Rights Unit at Queen’s University Belfast
Hopelessly out of sync?
The popular view holds that, when it comes to new technologies, law either dawdles or moves too soon. The slowness is said to stifle innovation; meanwhile its counterpart, speediness, produces laws that target improbable, never-to-be technologies. In essence, when it comes to new technologies, law is said to deter the wrong things, at the wrong times, in the wrong ways. There is also a sense that technology, once invented, has a life of its own—a sort of unstoppable momentum that law could never match.
The popular view leads to a stark conclusion: we can and should dismiss, or at least side line, law. This think piece challenges that conclusion. It argues that we should see law differently. More specifically, it argues that legal literacy ought to be seen as an essential complement to its better-known counterparts, digital and scientific literacy.
Legal literacy: a modest move
I want to be clear: to argue for legal literacy is not to argue for more law. It is a thoroughly modest move, not a ruse to put law ‘on top’. Essentially it says we should be more willing than we have been to explore law’s capacities.
To do that we need to take a stand against the popular view, which has been spinning law out of the picture by presenting technology as too rapid, too complex and too unpredictable, and also too full of the potential for miracles. I think that view has damaged our capacity to think creatively, or at all, about law's capacities. And legal literacy, I argue, is one way to reverse the damage.
Simply put, legal literacy is a process through which legal understanding vis-à-vis technology is developed and articulated. Here are five examples of what I have in mind.
First, legal literacy would help us to think carefully about how law is positioned in the mechanisms we use to evaluate the ethical implications of new technologies. It may be conventional to refer to the ethical, legal and social implications of new technologies (also known by the acronym ELSI), but it is hard to avoid the sense that law is widely viewed as a tool that will bring to life what has been decided by experts, such as ethicists, sociologists and scientists, and the public.
Sandwiched between ethics and society, law seems constrained; confined to a technical role—something that will be ‘on tap’ once the guiding principles have been discerned by others. This dulls the edge of a rights-based approach to science and technology. And it puts law in a double bind: considered to have none of the potential of ethical frameworks such as the European Union’s Responsible Research and Innovation approach
, law is nonetheless expected to be a top-class translator, giving true, lasting effect to what has been decided by others. Law deserves better than this; we deserve more from law than this.
Second, legal literacy could be used to flag inequality and to work towards developing the participatory aspect of the human right to science. A few years ago a UN human rights expert wrote a report on this right in which she said: "Access must be to science as a whole, not only to specific scientific outcomes or applications
." It’s a crucial point, which continues to be under-appreciated: the right to science includes not just a right of access to technological advances, but also to scientific knowledge and information. Put differently, our field of vision needs to include not just access to extant technologies, but also access to aspiration or what has been described as ‘positive anticipation’—that is, access to the opportunity to be part of what gets imagined, designed and developed.
Third, legal literacy with respect to technology isn’t simply about the question: ‘Should it be invented?’ It would focus just as much on technology in use—on the actual, not just the aspirational; on embedded technologies, not just emerging ones. It would include, for instance, the obligations and responsibilities of state and non-state actors in the aftermath of a nuclear disaster.
Fourth, legal literacy would help us to face the rising potential, and challenge, of technological management. We are starting to notice that technology has the ability to rule us as much as laws do. We are accustomed to debating how law rules us; we now need to debate how and if technology should rule us. Encouragingly, this is already a live issue for the UN’s expert on extreme poverty and human rights. Calling for written submissions
ahead of a visit to the United Kingdom in November 2018, this expert nominated new technologies in the welfare system as one of the issues of particular interest. His questions included: What use is being made of new technologies (including algorithms and automated decision making) in the welfare system, and with what impacts on the human rights of those living in extreme poverty?
Fifth and finally, for legal literacy with respect to technology, the time is now. We must cut through claims that, as regards particular technologies, it is either too late or too early. A former UN human rights expert on extrajudicial, summary or arbitrary executions seems to agree, and I give him the final word. In a report discussing lethal autonomous robotics and the protection of life
, he said: "The current moment may be the best we will have."