Saturday, February 25, 2017
Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World"
I should clarify at the outset that this comment deals mainly with the book by Richard and David Susskind, even if some links will be made to the book by Gillian K. Hadfield. I should also clarify that I am broadly in agreement with the key theses that underlie these two excellent books, and for that reason my reflections my reflections will seek to build upon them rather than to take issue on their core arguments.
Richard and David´s book starts off in a provoking way, by taking for granted that technology shall replace, in an amount of time yet to be determined, most professionals by less expert people and high-performing systems. For the authors, this claim will have profound implications on the “grand bargain” that is still at the bottom of modern, capitalist, and democratic societies, according to which we essentially have decided to trust professionals´ expertise through the mediation of a system of institutions, norms, rules and procedures that ensures that they perform their professional duties not just for their benefit but for the benefit of society (p.22). In essence, the grand bargain means that big privileges derive big responsibilities towards society.
The authors suggest that the grand bargain is in crisis, because the balance between privileges and responsibilities has been altered dangerously towards the former. There however claim that rapid advances in technology may hold the key to a new rebalancing, in that it will open up many hitherto inaccessible knowledge and expertise to vast amounts of population, that will no longer need to confer so many privileges—if at all—to the expertise controlled now by the professions.
One obvious question is: will technology enable the appearance of a new grand bargain that is even more unbalanced than the previous one? This could happen if the exponentially growth in knowledge and expertise generated by technology would remain in the hands of a very small elite, which could extract enormous power and rent from it. How to avoid this predicament? The authors are refreshingly clear about their own preferences by suggesting that existing gatekeepers should be removed and as many people as possible should be given as much access as possible to the generated collective knowledge and experience generated in that transformation. In this way, many more people than currently would be able to live happier and healthier lives.
The analysis is fascinating, the arguments well made, the narrative engaging, and the recommendations clear and thought provoking. This enables the reader to formulate new questions, for which the book offers no clear answers while calling for much more debate on them. In what follows I try to suggest three issues that seem to me to merit some debate.
First, given the wide number of professions that are analysed by the authors (health, education, divinity, law, journalism, management consulting, tax and audit, and architecture), it quickly becomes clear that the challenges they are pointing at go well beyond the professions and actually impact on entire societies and the institutions and rules that govern them. So, alongside the impact on professions, there will be enormous impacts on the systems within which they are nested. And one obvious question is how will the avalanche caused by technology, as they call it, affect constitutional democracies and other forms of government. If one applies the same logic the authors apply to the professions, it´s easy to see that the grand bargain linking citizens and the state is in a state of deep crisis and it is not yet clear how it will transition to a different one. This is an observation that links this book with Hadfield´s book, but more on that later.
Second, and more conceptually, what political philosophy underlies the normative argument put forward by the authors? In other words, how do they move from the “is” of technological progress towards the “ought” of humans response to it, and what implications follow from that?
As mentioned above, the authors suggest that the “grand bargain” as currently framed not only will change as a matter of fact, but society must actually actively reconsider it so that it works better for everyone. To reach this new grand bargain, the authors suggest that we adopt a very specific methodology, the so-called the Rawlsian “veil of ignorance”. In particular, the authors suggest that tool to ask themselves, given that technology shall replace much of the work carried out by human professionals, whether they would want those systems and machines to be held in common for many or controlled by a few, whether they would prefer practical expertise to be made available at little cost or at greater expense, and whether it should be liberated or enclosed. The authors moreover venture that, from behind a veil of ignorance, most people would choose an open system rather than a closed one with new, ever more powerful, gatekeepers. In that future, most medical help, spiritual guidance, legal advice, latest news, business assistance, accounting insight, and architectural know-how would be widely available, at low or no cost. They become excited imagining, in the near future, human beings across the world, whether rich or poor, having access to all those resources so that they can live healthier and happier lives.
At least three comments arise from this analysis:
To start with, the invitation to adopt the Rawlsian´s veil of ignorance appears to raise more questions than it answers. Rawl´s veil of ignorance focuses on reasonable citizens acting as free individuals, rather than on communities (families, intermediate groups of society) as the main decision-making actors. In so doing, it promotes a highly specific approach, that of political liberalism, to respond to future challenges; the assumption is that, if we know nothing about ourselves, and yet we need to choose about the preferred future, we will want a future in which we have full freedom to choose the best instruments to succeed, as well as a safety belt in case the road turns out to be bumpy. One difficulty with this method is that it would seem that the Rawlsian reasonable citizen has been parachuted into this world from some external planet, and is thus alone, detached, afraid and distrustful of others. Even better, it´s a paradigm of the modern man within liberal democracies, as Chantal Delsol suggests in Icarus Fallen. But can such a human being really be able to join others to devise commonly accepted solutions to the enormous challenges imposed by technology on society as a whole? For communitarians, one difficulty with Rawl´s political philosophy is that it does not focus enough on the common good, or rather that it promotes a certain view of the common good, that of “politics of neutrality”, which considers that preferences from all citizens should be counted equally to determine the public good. On the contrary, communitarians would tend to argue that societies need a substantive conception of the good life, and this can be used as a benchmark to evaluate citizens´ preferences. And of course there are different political philosophies that would suggest different approaches to determining the common good. The authors are proposing their own view about what would constitute a good future, and ask the readers to reach that conclusion by adopting Rawl´s veil of ignorance. But this begs the question of whether applying that methodology would really reach the result preferred by the authors, or whether other political philosophies would be more fit. So it seems to me that this is an interesting area for further research and debate. And the authors indeed seem to agree, since they issue an urgent call for public debate on all moral issues arising from technology.
Another comment has to do with the suggestion that technological development itself can be considered a fact rather than an intensely moral choice; this brings to mind the ongoing debate around techno-determinism, of which the authors are perfectly aware (p.304). The authors in fact address one common criticism of techno-determinism by making clear that they differentiate between facts and norms, between the “is” and the “ought”. In other words, the fact that technology develops fast does not mean should be used without limitations; rather, we must as a society decide whether there are uses that should not be allowed (one example the authors use is allowing to a machine to decide whether to turn-off a life-supporting system). Another area in need of moral guidance is that of deciding who should own and control practical expertise in a technology-based internet society.
But this argument would to seem to imply that technology itself is neutral, and that the key normative issues are whether and how to use it in concrete instances (as in the life-support system example) and who should control it. Such views would seem to ignore other criticisms that have been levelled against techno-determinism, which claim that technology itself is never value neutral, because it is always developed with certain aims and goals in mind, on the basis of certain ideologies or worldviews, and put to use on the basis of certain normative considerations (e.g. Langdon Winner, “Do Artifacts have Politics”). These criticisms are part of the postmodernism reaction to modernism faith on technology. Postmodernism arises in good measure from a widespread disenchantment with technology that, while bringing together undeniable goods, has also enabled massive destruction through the use of nuclear weapons, widespread damage to the natural environment, and relentless experimentation with human beings, criticized by many as involving their reification as a necessary step towards their full incorporation into liberal markets as objects that can be bought and sold (e.g. IVF techniques, surrogated maternity, etc). Some authors go as far as suggesting that postmodern man is intensely disenchanted with technology and afraid of its own powers, while at the same time unable to think deeply about humanity´s common future. In this light we should ask what´s the book authors´ own political philosophy? The book considers that technology may have, on the whole, a positive effect on the grand bargain, as long as we avoid the consolidation of new, even more powerful, gatekeepers. But there´ little consideration of postmodern criticisms of technology, which in this context may include the effect that negative impacts on employment brought about by technology may have on professional´s own sense of worth and dignity. To be sure, the authors make an important effort to appraise the impacts of the technological revolution on employment, but do not consider the impacts on human beings qua human beings. This can be contrasted with the more anthropological bent of the recent, and heated, discussion about the pros and cons of Universal Basic Income (UIB) as a possible solution to the massive unemployment issue that technology may generate.
Last but not least, and connected to the previous issue, it may be interesting to point to the somewhat utopian connotations underlying the core argument. In short, and at the risk of building a straw man, the book suggests that technology will enable most of us to have more access to information, to receive more help, more guidance, more learning, more easily and moreover at no or lower cost. (p. 307). But to conclude from this that we will be healthier and happier seems to me a non-sequitur. The debate on whether current generations are happier than those living one hundred years ago, or two hundred years ago, or two millennia ago is not one that can be ever be settled. Technological progress has always accompanied and shaped humanity, and is pretty much unrelated to happiness except in a very limited way: it enhances, materially, freedom of choice. And clearly, a human being is not reducible to matter. Questions such as the purpose of one´s life and job, and what should one do and how should one live, cannot be answered any better through the use of technology. Thus, the fundamental questions about how to live better together and within the environment cannot be answered by technology, even if technology enables having the ability to process much more information much faster. And yet those things are essential to the notion of happiness. It is an enormous merit of the book that it allows readers to raise such questions, and only for that it is worth reading even by those not narrowly interested with the impact of technology in the professions.
To conclude, I would like to connect these three considerations takes us to Hadfield´s book “Rules for a flat world”. In this important book, the author contends that legal infrastructure as developed over the centuries is not fit for the modern world, rapidly transformed by technology and subject to enormous challenges often at a global scale. Moreover, the traditional makers of law are not able or willing to provide the right solutions at the required pace. One possible solution is to open up a market for legal rules, so that demand for new laws and regulations can be met by a number of suppliers in competition among themselves. Technology is already facilitating the generation of competitive pressure and that is something we should be celebrating. The core argument is more straightforward in a way that the argument in the “Future of the Professions”, but no less important, and largely compatible with the latter´s analysis of the legal profession but complementing it in important ways. Indeed the need for new rules for a flat world forces us to rethink the foundations of our democracies, the distribution of power therein and our tasks as legal academics or lawyers to ensure that law is fit for purpose in a very complex economy and society. The book calls for universities to promote this debate and to contribute to opening up spaces for innovation around legal systems. Together, both books provide a very strong corrective to our work as lawyers, law professors, and regulators. Let´s hope we all take good note of their recommendations.
On a concluding note, I would like to wholeheartedly thank Dean Dan Rodriguez for inviting me to engage in this fascinating symposium!