Emerging legal concepts at the nexus of law, technology and society: a case study in identity

Abstract

The aim of this thesis is to investigate and further the understanding of the interaction between law, technology and society. My original contribution to this understanding lies in an account and analysis of the process of emergence (or potential emergence) of new legal concepts and of how new and developing technologies and social responses influence that process. Specifically, the work focuses on identity, which I argue is a currently emerging legal concept, and the ways in which identity, variously understood, is impacted by new technologies and changes in the social landscape, what those impacts on identity might be, and the relationship of those changes to the representation (or otherwise) of identity in law. In the literature looking at law and technology and the legal responses to the issues of regulating technology, I critique the conceptualisation of law as “lagging behind” novel advances in technology. By drawing upon work in philosophy of technology, sociology and science and technology studies it is argued that emerging technologies have a modulating effect upon social values and moralities and that equally the modulation of society by technology and the complex dynamics of social change or resistance may also have an impact upon the law itself. In turn developments in law may be part of the ongoing process of the identification, conceptualisation, recognition and contestation over specific social issues and the way in which they should be addressed. Such dynamics and conflicts can lead to the shifting of accountability regimes and the recognition of new values, harms and interests and their own conceptualisation and justification. Studying the emergence of new legal concepts provides a link in to understanding this mutual coproducing relationship between law/regulation, technology and society. My approach to this study seeks to better understand the factors that precipitate formal recognition in law of specific concepts, an aspect of legal development that is not well considered by the existing literature in law and that in Science and Technology Studies (STS). In so doing it contributes a novel conceptualisation of an “emerging legal concept” and a conceptual analysis of identity as an emerging legal concept specifically as currently modulated by novel biotechnologies.