Table Of ContentTECHNOLOGY, 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
