Three factor model : some ideas about the relationship between law, science and technology

Abstract

This paper argues that the relation between law, science and technology cannot be understood without taking into account a number of intervening factors, identifying which makes it necessary to approach the question from the standpoint of disciplines other than law and science themselves. Understanding this relationship would help us to explain why the law takes some scientific and technological advances into account while discounting others. I present three such intervening factors, namely (a) paradigm shifts, (b) socioeconomic consequences, and (c) public debate, which I package into a model that brings out their interrelations: the more a particular technology goes through the stages described by these factors, the likelier it is to become the subject of regulation by law. In the second part of this paper I address the role that law plays once a public debate on specific technology is underway: I postulate the view that the law seeks as far as possible to retain its old forms in implementing the view or policy forged, tending to pour new wine into old bottles rather than find new bottles for the new wine. A number of reasons account for this, but the one I focus on is law’s specific mode of reasoning, that is, law reasons from analogy and metaphor, tending to preserve continuity with the past rather than breaking with it. I illustrate these ideas with the help of different cases related to IT law, in particular patent law and copyright law as they evolved in the US.