WEBVTT 00:00:05.990 --> 00:00:08.689 Welcome to the Oxford Undergraduate Law Podcast, 00:00:09.029 --> 00:00:11.029 where we discuss the law, its relationship with 00:00:11.029 --> 00:00:13.630 our society, and its implications on our lives. 00:00:14.210 --> 00:00:16.190 My name is Chum Sdiq, and I'm one of your 00:00:16.190 --> 00:00:18.809 podcast editors for this year. This series was 00:00:18.809 --> 00:00:20.870 made possible by the generous support of Crown 00:00:20.870 --> 00:00:23.190 Office Chambers, one of the leading London sets 00:00:23.190 --> 00:00:25.870 of Chambers specialising in civil and commercial 00:00:25.870 --> 00:00:28.829 work. This episode is a particularly special 00:00:28.829 --> 00:00:31.149 one. In November, I was honoured to be joined 00:00:31.149 --> 00:00:34.000 by Professor Sheila Jasanoff. Professor Jasanoff 00:00:34.000 --> 00:00:36.380 is Pforzheimer Professor of Science and Technology 00:00:36.380 --> 00:00:39.359 Studies (STS for short) at the Harvard Kennedy 00:00:39.359 --> 00:00:42.299 School. She is a pioneer in her field, having 00:00:42.299 --> 00:00:45.659 authored more than 130 articles and chapters 00:00:45.659 --> 00:00:48.579 and being author or editor of more than 15 books, 00:00:48.820 --> 00:00:51.359 with the most recent being: The Ethics of Invention 00:00:51.359 --> 00:00:54.140 and Can Science Make Sense of Life? Her work 00:00:54.140 --> 00:00:56.179 explores the role of science and technology in 00:00:56.179 --> 00:00:58.899 the law, politics and policy of modern democracies. 00:00:59.219 --> 00:01:01.619 She founded and directs the STS Program at Harvard, 00:01:01.899 --> 00:01:03.759 and prior to this, she was the founding chair 00:01:03.759 --> 00:01:06.579 of the STS department at Cornell. All of this 00:01:06.579 --> 00:01:09.480 led to her being the 2022 Holberg Prize holder 00:01:09.480 --> 00:01:11.659 for her prolific and pioneering efforts in the 00:01:11.659 --> 00:01:13.780 field. Now, why is this episode a particularly 00:01:13.780 --> 00:01:16.500 special one? Well, in November, the Oxford Law 00:01:16.500 --> 00:01:18.620 Faculty ran its Clarendon Law Lecture Series 00:01:18.620 --> 00:01:20.859 for this year. For those who may not know, each 00:01:20.859 --> 00:01:23.120 year the Oxford Law Faculty invites a distinguished 00:01:23.120 --> 00:01:25.480 guest speaker to deliver three lectures over 00:01:25.480 --> 00:01:27.799 the span of three days on their specialised area 00:01:27.799 --> 00:01:30.299 of law. Well, this year our Clarendon Law Lecturer 00:01:30.299 --> 00:01:32.840 was none other than Professor Jasanoff, delivering 00:01:32.840 --> 00:01:35.700 three lectures together entitled 'Science, Technology 00:01:35.700 --> 00:01:38.450 and the Constitution of Modernity.' As part of 00:01:38.450 --> 00:01:40.969 a collaboration with the Law Faculty, I sat down 00:01:40.969 --> 00:01:42.750 with Professor Jasanoff on the morning of her 00:01:42.750 --> 00:01:45.290 second lecture to have a discussion both supplementing 00:01:45.290 --> 00:01:47.750 and extending beyond her three lectures. The 00:01:47.750 --> 00:01:49.890 first portion of our discussion elucidates the 00:01:49.890 --> 00:01:52.609 key conceptual ideas pertinent to STS thinking 00:01:52.609 --> 00:01:54.730 and its relation to law, and the latter portion 00:01:54.730 --> 00:01:56.730 questions the more specific positions Professor 00:01:56.730 --> 00:01:58.750 Jasanoff has voiced in her works with regard 00:01:58.750 --> 00:02:00.969 to intellectual property, especially in relation 00:02:00.969 --> 00:02:03.590 to the most recent legal developments, such as 00:02:03.590 --> 00:02:06.790 the environment, AI, and the concept of personhood. 00:02:06.859 --> 00:02:09.759 This episode is therefore complementary to the 00:02:09.759 --> 00:02:12.340 Clarendon Lecture Series, all publicly available 00:02:12.340 --> 00:02:14.759 on the Oxford Faculty of Law website and YouTube 00:02:14.759 --> 00:02:16.560 channel, and we therefore encourage our listeners 00:02:16.560 --> 00:02:19.319 to also look at these lectures. I truly hope 00:02:19.319 --> 00:02:21.460 you enjoyed this conversation as much as I did, 00:02:21.539 --> 00:02:23.719 and please note that as we are moving towards 00:02:23.719 --> 00:02:26.520 video podcasts, the video and audio quality will 00:02:26.520 --> 00:02:30.240 only improve in subsequent episodes. 00:02:30.240 --> 00:02:34.520 Thank you Professor Jasnoor for joining us today. For the 00:02:34.520 --> 00:02:37.189 benefit of our listeners. I guess the first foundational 00:02:37.189 --> 00:02:39.330 question would be to ask about your specialty 00:02:39.330 --> 00:02:43.469 in STS. You've mentioned in the past that you've 00:02:43.469 --> 00:02:46.629 had quite a broad range in coming to STS, you 00:02:46.629 --> 00:02:49.389 did a PhD in linguistics and you were also in 00:02:49.389 --> 00:02:52.250 environmental law when you came across STS. So, 00:02:52.250 --> 00:02:54.050 could you outline for the benefit of our listeners 00:02:54.050 --> 00:02:57.990 what STS is and moreover, what in particular 00:02:57.990 --> 00:03:02.439 drew you to STS as a lawyer? First of all, let 00:03:02.439 --> 00:03:05.680 me thank you for welcoming me to this show. It's 00:03:05.680 --> 00:03:08.120 an absolute pleasure to be with you this morning. 00:03:09.280 --> 00:03:12.099 So, of course, it's a complicated question. How 00:03:12.099 --> 00:03:16.539 does one land on anything at all? And one irony 00:03:16.539 --> 00:03:19.500 of my being in STS is that STS didn't really 00:03:19.500 --> 00:03:23.300 exist as a field when I landed in it. So, it was 00:03:23.300 --> 00:03:26.180 in some sense trying to make sense of a place 00:03:26.180 --> 00:03:28.379 that you've arrived in without knowing what that 00:03:28.379 --> 00:03:33.009 place is. But I think that the preparatory steps 00:03:33.009 --> 00:03:36.289 were actually far more to do with law than with 00:03:36.289 --> 00:03:38.889 science and technology, because to some extent, 00:03:39.069 --> 00:03:42.370 I think the law asks questions about human experience 00:03:42.370 --> 00:03:45.210 that are quite similar to the questions that 00:03:45.210 --> 00:03:47.770 STS scholars ask about science and technology. 00:03:48.189 --> 00:03:51.849 And I think at the core of it is why do we believe 00:03:51.849 --> 00:03:55.250 the things that we do, and what authorizes us 00:03:55.250 --> 00:03:59.259 or compels us, as the case may be, to act in 00:03:59.259 --> 00:04:02.039 particular ways? I think that those questions 00:04:02.039 --> 00:04:05.520 can be asked just as much about science and technology 00:04:05.520 --> 00:04:09.240 as they are continually asked about law. I fell 00:04:09.240 --> 00:04:13.680 into this somewhat by accident because I had 00:04:13.680 --> 00:04:16.639 been practicing environmental law, but for family 00:04:16.639 --> 00:04:19.879 reasons we ended up at Cornell University, which 00:04:19.879 --> 00:04:23.160 is a major university that likes to say that 00:04:23.160 --> 00:04:27.029 it's centrally isolated. It's in upstate New 00:04:27.029 --> 00:04:30.370 York in a very beautiful region. It is part of 00:04:30.370 --> 00:04:33.569 the Ivy League of American universities, but 00:04:33.569 --> 00:04:36.870 there's nothing around. Miles of corn fields 00:04:36.870 --> 00:04:41.329 and to some extent wineries these days. So, there 00:04:41.329 --> 00:04:45.470 was this big university sitting in a place where 00:04:45.470 --> 00:04:49.490 I couldn't practice the field that I had landed 00:04:49.490 --> 00:04:52.629 in when I finished law school, namely environmental 00:04:52.629 --> 00:04:56.819 law. So then the question arose: where in that 00:04:56.819 --> 00:05:00.779 university could I sit? And people found this 00:05:00.779 --> 00:05:04.120 program on science, technology and society. There 00:05:04.120 --> 00:05:07.560 was nothing there in a sense, that is, you know, 00:05:07.639 --> 00:05:10.120 it was a program and so it didn't have a discipline, 00:05:10.360 --> 00:05:13.579 it didn't have faculty and to some extent it 00:05:13.579 --> 00:05:16.779 was groping in the dark to figure out, well, 00:05:17.100 --> 00:05:20.740 what are the questions to ask here anyway? But 00:05:20.740 --> 00:05:23.399 because my work was about the environment, I 00:05:23.399 --> 00:05:28.540 was quickly led into a comparative project. And 00:05:28.540 --> 00:05:30.980 that was comparing the way in which different 00:05:30.980 --> 00:05:34.379 countries, three European countries and one, and 00:05:34.379 --> 00:05:38.439 America, regulate substances that are suspected 00:05:38.439 --> 00:05:42.000 of causing cancer. So in political science at 00:05:42.000 --> 00:05:44.759 that time, people thought that this was an uninteresting 00:05:44.759 --> 00:05:48.139 project because these four countries were very 00:05:48.139 --> 00:05:50.660 similar: they were all democracies, they all 00:05:50.660 --> 00:05:53.259 had a chemical industry, they all had public 00:05:53.259 --> 00:05:55.920 health and safety movements, governments were 00:05:55.920 --> 00:05:58.680 committed to protecting the public welfare. So, 00:05:58.680 --> 00:06:01.420 what could go wrong? Nobody wanted to have cancer 00:06:01.420 --> 00:06:04.500 -causing chemicals. And the first big insight 00:06:04.500 --> 00:06:07.459 of my research career was that that was all nonsense. 00:06:07.879 --> 00:06:11.459 That, in fact, there was a science about different 00:06:11.459 --> 00:06:14.240 chemicals, but countries nevertheless came to 00:06:14.240 --> 00:06:17.120 very different positions. And that puzzle is 00:06:17.120 --> 00:06:20.970 what set me off on my research career. But it's 00:06:20.970 --> 00:06:23.350 important to recognise that it came out of a 00:06:23.350 --> 00:06:26.769 project out of comparative regulation, and not 00:06:26.769 --> 00:06:31.069 science and technology studies as such. 00:06:31.069 --> 00:06:33.629 Yes, that is indeed very interesting and I think it 00:06:33.629 --> 00:06:37.069 does make us think about the sort of very integral 00:06:37.069 --> 00:06:40.529 relationship between STS and looking at the law 00:06:40.529 --> 00:06:46.490 as well. What do you think makes the insights of 00:06:46.490 --> 00:06:49.290 STS a particular point of relevance to law [and] 00:06:49.290 --> 00:06:51.149 legal thinking. I know you kind of alluded 00:06:51.149 --> 00:06:54.750 to it, but just in particular, as a general conceptual 00:06:54.750 --> 00:06:59.750 point. Yes, well, thanks for that question. I mean, 00:06:59.750 --> 00:07:04.550 my own answer to that has been evolving with my 00:07:04.550 --> 00:07:08.470 attempts to define and redefine the field of 00:07:08.470 --> 00:07:11.970 STS in a way that makes sense. So, at the very 00:07:11.970 --> 00:07:15.199 most abstract level, you can think of legal studies 00:07:15.199 --> 00:07:18.180 is having to do with, you know, how is there 00:07:18.180 --> 00:07:20.360 such a thing as law that people believe in? I 00:07:20.360 --> 00:07:22.420 mean, why does everybody have a mental image 00:07:22.420 --> 00:07:25.959 of what it means to be lawful or lawless? And, 00:07:25.980 --> 00:07:27.819 you know, we couldn't live in modern societies 00:07:27.819 --> 00:07:30.680 without a sense of that. So now if you just transpose 00:07:30.680 --> 00:07:32.600 that and say, what makes us think that there 00:07:32.600 --> 00:07:35.399 are such things as scientific truths and, you 00:07:35.399 --> 00:07:37.839 know, that what is a scientific fact? I mean, 00:07:37.839 --> 00:07:41.259 it's a commonplace. Everybody kind of understands 00:07:41.259 --> 00:07:44.750 what a scientific fact is. But people don't stop 00:07:44.750 --> 00:07:47.829 to think how either thing gets to be what it 00:07:47.829 --> 00:07:51.209 is. I mean, how does a legal decision become a legal 00:07:51.209 --> 00:07:55.910 decision? I still remember the boot camp environment 00:07:55.910 --> 00:07:59.129 of first year Harvard Law School when you were 00:07:59.129 --> 00:08:02.610 told that you more or less had to shed any preconceptions 00:08:02.610 --> 00:08:06.269 about what the law is and sort of re-learn the basics 00:08:06.269 --> 00:08:10.029 of how one gets to a legal decision. You're not 00:08:10.029 --> 00:08:13.600 born knowing what a holding is in the law. It's 00:08:13.600 --> 00:08:16.259 something that's a result of training. But people 00:08:16.259 --> 00:08:18.860 take scientific facts much more for granted, 00:08:18.860 --> 00:08:22.420 and I think that the kind of revolutionary move 00:08:22.420 --> 00:08:26.300 in STS was to say that scientific authority is 00:08:26.300 --> 00:08:30.839 really not different from other kinds of authority, 00:08:30.839 --> 00:08:34.139 in the sense that we can study how it's made. 00:08:34.659 --> 00:08:37.500 So, I think that the points of contact, the law 00:08:37.500 --> 00:08:40.440 part I was already used to – mind you, nobody 00:08:40.440 --> 00:08:43.379 ever teaches that. And of course, like jurisprudence, 00:08:43.440 --> 00:08:46.360 it's much more formal. So, I had to reflect on 00:08:46.360 --> 00:08:49.940 it. I had to reflect on the fact that I was learning 00:08:49.940 --> 00:08:53.299 how to do law in ways that no classroom course 00:08:53.299 --> 00:08:57.340 was teaching me. But then the transposition to 00:08:57.340 --> 00:09:00.799 the fields of science and technology became easier 00:09:00.799 --> 00:09:04.279 in a sense, because I had already experienced 00:09:04.279 --> 00:09:09.240 something like that process of taking apart authoritative 00:09:09.240 --> 00:09:13.200 statements, asking how they got to achieve that 00:09:13.200 --> 00:09:17.700 authority status, and recognising as well that 00:09:17.700 --> 00:09:20.840 there's both a kind of technological dimension 00:09:20.840 --> 00:09:24.059 behind it, that is rules by which you must operate. 00:09:24.779 --> 00:09:28.259 After all, lawyers and judges have a deep understanding 00:09:28.259 --> 00:09:31.379 and a shared understanding of what is not a legal 00:09:31.379 --> 00:09:34.559 case. You couldn't have a law of standing unless 00:09:34.559 --> 00:09:37.019 you had some sense who is allowed to come before 00:09:37.019 --> 00:09:40.059 the court. So, similarly, you can ask exactly 00:09:40.059 --> 00:09:42.720 the same questions about science. How do people 00:09:42.720 --> 00:09:45.919 know that this is a scientific method or not? 00:09:46.419 --> 00:09:50.440 So, I think that once you start seeing both science 00:09:50.440 --> 00:09:55.679 and law as effectively grand machines for producing 00:09:55.679 --> 00:10:01.649 types of authority, then the intellectual transition 00:10:01.649 --> 00:10:04.070 between the one field and the other, legal studies 00:10:04.070 --> 00:10:07.789 and science and technology studies, becomes almost 00:10:07.789 --> 00:10:13.230 natural. And I think in relation to that actually - 00:10:13.490 --> 00:10:16.909 sorry - the concept of co-production kind of 00:10:16.909 --> 00:10:19.169 bleeds through much of your work, and I think is very 00:10:19.169 --> 00:10:23.009 relevant to what you've mentioned here. So, talking 00:10:23.009 --> 00:10:25.110 about this notion of co-production that you 00:10:25.110 --> 00:10:27.870 also use as a framework throughout your lectures, 00:10:28.279 --> 00:10:30.879 could you explain to us what the term co-production 00:10:30.879 --> 00:10:34.179 means, and kind of what its significance is in 00:10:34.179 --> 00:10:35.899 looking at this relationship between science 00:10:35.899 --> 00:10:40.059 and law? This question about co-production is 00:10:40.059 --> 00:10:43.600 really at the centre of my academic work as you 00:10:43.600 --> 00:10:45.860 point out, but first I should say that there 00:10:45.860 --> 00:10:48.659 are two rather different meanings of co-production, 00:10:48.659 --> 00:10:51.220 a broad in the world, and I want to set the one 00:10:51.220 --> 00:10:55.000 aside as not sufficient, relevant but not sufficient. 00:10:55.340 --> 00:10:58.409 I call that the Miramax version of co-production. 00:10:58.830 --> 00:11:01.889 If you go to see a film and the credits are running, 00:11:02.190 --> 00:11:06.029 at the end, it'll often say, 'This is a co-production 00:11:06.029 --> 00:11:10.110 of', and then it'll say Dolby sound systems and, 00:11:10.110 --> 00:11:14.169 you know, whatever other technical production systems were 00:11:14.169 --> 00:11:17.429 in play. And that co-production simply means that 00:11:17.429 --> 00:11:22.490 the project needed the input from a number of 00:11:22.490 --> 00:11:27.440 different fields. So, in regular everyday usage. 00:11:28.179 --> 00:11:30.419 it's often translated to mean that different 00:11:30.419 --> 00:11:33.899 interest groups came together, sat around a table 00:11:33.899 --> 00:11:39.299 and co-produced a common statement or a common 00:11:39.299 --> 00:11:42.460 position that they all could believe in. I think 00:11:42.460 --> 00:11:45.500 that the STS version of co-production is stronger 00:11:45.500 --> 00:11:49.019 than that, because it's not only about coming 00:11:49.019 --> 00:11:52.379 to a shared conclusion about a set of propositions 00:11:52.379 --> 00:11:54.700 or statements that you can make about the world, 00:11:55.100 --> 00:11:59.019 but it's also at the same time, in a sense bringing 00:11:59.019 --> 00:12:02.879 that world into existence in a full-blown way. 00:12:03.220 --> 00:12:07.000 Now, that is a kind of abstract statement, so 00:12:07.000 --> 00:12:11.480 I prefer, like any good common lawyer, to give 00:12:11.480 --> 00:12:15.039 an example and say what we mean. So, before the 00:12:15.039 --> 00:12:17.919 late 1980s, people were not talking about climate 00:12:17.919 --> 00:12:20.539 change. In fact, in American policy, you can 00:12:20.539 --> 00:12:24.259 almost date it to a particular summer of 1988. 00:12:24.559 --> 00:12:29.559 when a particular person who worked for a NASA 00:12:29.559 --> 00:12:35.480 agency on space and the atmosphere broadly who 00:12:35.480 --> 00:12:38.820 testified before the US Congress that such a 00:12:38.820 --> 00:12:41.960 thing as climate change existed. You know, that doesn't 00:12:41.960 --> 00:12:44.679 mean that there wasn't a climate change before, 00:12:45.759 --> 00:12:48.279 nor that weather has stopped existing—you couldn't 00:12:48.279 --> 00:12:51.379 have British everyday converse on this weather 00:12:51.379 --> 00:12:55.409 continue to be coagulating word for all kinds 00:12:55.409 --> 00:13:00.730 of positions. But once you displace whether with 00:13:00.730 --> 00:13:05.429 its vagaries of changeability and day-to-day 00:13:05.429 --> 00:13:09.350 prediction with an idea like climate, you've 00:13:09.350 --> 00:13:12.590 suddenly created a new state of the world, a 00:13:12.590 --> 00:13:15.769 state of the world that demands in a sense that 00:13:15.769 --> 00:13:19.990 you think differently about it. You produce different 00:13:19.990 --> 00:13:23.659 facts about it. You ask questions about climate 00:13:23.659 --> 00:13:27.539 change that you might not ask about any other 00:13:27.539 --> 00:13:30.120 kind of atmospheric phenomenon, certainly weather. 00:13:31.059 --> 00:13:33.559 One doesn't talk about climate prediction on 00:13:33.559 --> 00:13:36.700 one's telephone app. One does look at weather 00:13:36.700 --> 00:13:41.639 predictions. So this transposition has a temporal 00:13:41.639 --> 00:13:44.299 dimension, which is profoundly technical, but 00:13:44.299 --> 00:13:47.299 it also has a political dimension, and therefore 00:13:47.299 --> 00:13:50.419 also legal dimension. So, 'how is one going to 00:13:50.419 --> 00:13:54.460 make an accord over the climate?' now suddenly 00:13:54.460 --> 00:13:57.399 becomes a normative question in the world. If 00:13:57.399 --> 00:14:01.139 we've learned to recognize that there is this 00:14:01.139 --> 00:14:03.399 big set of changes to which we've now given a 00:14:03.399 --> 00:14:06.480 new name, we have new ways of studying it, new 00:14:06.480 --> 00:14:09.620 facts we're generating about it, what is the 00:14:09.620 --> 00:14:14.659 simultaneous set of obligations upon us as a 00:14:14.659 --> 00:14:18.879 human species? And I'll just end with talking about this slew 00:14:18.879 --> 00:14:22.480 of cases that have arisen recently about the 00:14:22.480 --> 00:14:25.259 future, the long-term future. Sometimes, these 00:14:25.259 --> 00:14:28.419 are brought by children's groups who are saying 00:14:28.419 --> 00:14:31.559 that we in the present, the grown-ups of the 00:14:31.559 --> 00:14:34.879 moment, Greta Thunberg, the climate activist 00:14:34.879 --> 00:14:39.779 loves to excoriate, that we are imposing burdens 00:14:39.779 --> 00:14:43.440 that take away the people who are as yet unborn 00:14:43.440 --> 00:14:46.759 and who are children right now to live in a 00:14:46.759 --> 00:14:50.519 stable world as stable as their parents may have 00:14:50.519 --> 00:14:54.679 inherited. So, this is moving obligations down 00:14:54.679 --> 00:14:59.759 the line to a kind of, a set of questions and 00:14:59.759 --> 00:15:03.080 a kind of argumentation that people would have 00:15:03.080 --> 00:15:05.899 dismissed as speculative only a short time ago. 00:15:06.720 --> 00:15:10.320 So, I think that recognizing that there are these 00:15:10.320 --> 00:15:12.779 metaphysical changes in our understandings of 00:15:12.779 --> 00:15:17.460 the world that bring with them that entail corresponding 00:15:17.460 --> 00:15:21.279 normative shifts about responsibility, about 00:15:21.279 --> 00:15:24.240 the locus of responsibility—whose job is it 00:15:24.240 --> 00:15:29.299 anyway?—about the locus of responsibility to 00:15:29.299 --> 00:15:32.919 whom, who are the harmed parties? These are all 00:15:32.919 --> 00:15:35.480 profound and fundamental questions for the law. 00:15:36.279 --> 00:15:39.409 And so I think that the understanding co-production 00:15:39.409 --> 00:15:42.889 in that sense, that it is a shift, a shift of 00:15:42.889 --> 00:15:46.029 position, a shift of attitude with regard to 00:15:46.029 --> 00:15:49.789 questions of how should we live together and 00:15:49.789 --> 00:15:53.730 apart, along with, well, what is the world like 00:15:53.730 --> 00:15:56.049 that we're choosing to respond to it in this 00:15:56.049 --> 00:16:00.629 way and not in others? That is indeed very interesting, 00:16:00.629 --> 00:16:03.309 and I think it's at the heart, as you said, of 00:16:03.309 --> 00:16:07.169 STS. Thank you for that clarification. So, in 00:16:07.169 --> 00:16:10.330 your work, you highlight this broader slippage 00:16:10.330 --> 00:16:13.990 of power from law to science, where we may have 00:16:13.990 --> 00:16:16.850 in ways tacitly granted science and expertise 00:16:16.850 --> 00:16:20.250 a higher role as sitting above the normal fray 00:16:20.250 --> 00:16:23.590 of politics, and therefore also law. What causes 00:16:23.590 --> 00:16:26.710 this sort of inclination? And if we ought to 00:16:26.710 --> 00:16:28.929 push back against this, how can we effectively 00:16:28.929 --> 00:16:33.500 do it? Again, you raise really interesting 00:16:33.500 --> 00:16:36.139 questions about why it is that we've delegated 00:16:36.139 --> 00:16:38.559 this decision-making power, this overarching 00:16:38.559 --> 00:16:42.559 decision-making power to science, and then what 00:16:42.559 --> 00:16:45.139 can we do to regain it? I think that my work 00:16:45.139 --> 00:16:48.500 is more ambivalent about both of these questions. 00:16:48.620 --> 00:16:51.980 So, in a lot of my work on law, I talk about the 00:16:51.980 --> 00:16:56.399 kinds of games that legal thought plays. On the 00:16:56.399 --> 00:17:00.019 one hand, according a kind of supremacy to science, 00:17:00.200 --> 00:17:02.820 but on the other hand, retaining so much discretion 00:17:02.820 --> 00:17:06.660 to say what counts as science in a given context, 00:17:07.119 --> 00:17:11.880 that, actually, the law's judgment retains a great 00:17:11.880 --> 00:17:16.339 deal of decisive power. So let's take again an 00:17:16.339 --> 00:17:18.740 example that is very current in American policy 00:17:18.740 --> 00:17:23.240 right now. In 1970, we enacted at the national 00:17:23.240 --> 00:17:27.180 level the Clean Air Act. That was the first major 00:17:27.180 --> 00:17:30.740 federal law regulating something in the environment, 00:17:30.920 --> 00:17:35.380 but 1970 was well before the 1980s when we started 00:17:35.380 --> 00:17:38.579 recognizing climate change as a phenomenon. So 00:17:38.579 --> 00:17:43.119 American environmental law has no specific legislation 00:17:43.119 --> 00:17:46.839 that is geared to dealing with the problem that 00:17:46.839 --> 00:17:50.500 most people consider the most urgent in environmentalism 00:17:50.500 --> 00:17:53.359 today, namely climate change. So, we don't have 00:17:53.359 --> 00:17:57.299 a law that addresses that. In between, American 00:17:57.299 --> 00:17:59.920 politics has become so fractured and polarized 00:17:59.920 --> 00:18:04.279 that we seem to not be able to muster consensus 00:18:04.279 --> 00:18:07.500 on anything short of the Epstein files, which, 00:18:07.700 --> 00:18:11.259 as you may know, yesterday got a ringing endorsement 00:18:11.259 --> 00:18:14.779 from the US Congress. I think this was the - most - 00:18:14.779 --> 00:18:17.900 closest to unanimous consensus that we've seen. 00:18:18.579 --> 00:18:21.619 So on environment, we don't have anything approaching 00:18:21.619 --> 00:18:25.059 that sort of a consensus. So it's clear that 00:18:25.059 --> 00:18:28.240 we cannot enact new legislation to confront a 00:18:28.240 --> 00:18:31.460 very important problem. What does the law do? 00:18:31.880 --> 00:18:36.000 The law uses its ingenuity to say, well, are 00:18:36.000 --> 00:18:38.180 there ways that we can stretch the meaning of 00:18:38.180 --> 00:18:42.599 the old words to cover a new problem? For that, 00:18:42.700 --> 00:18:44.480 of course, you have to go to the wording of the 00:18:44.480 --> 00:18:48.819 law, and the Clean Air Act has this word 'endangerment'. 00:18:49.099 --> 00:18:52.480 So anything that endangers public health and 00:18:52.480 --> 00:18:55.960 to some degree public welfare and is airborne 00:18:55.960 --> 00:19:00.000 can be regulated under the Clean Air Act. So, 00:19:00.000 --> 00:19:03.960 in 2009, the Environmental Protection Agency 00:19:03.960 --> 00:19:09.819 finds that six greenhouse gases endanger public 00:19:09.819 --> 00:19:14.359 health. That sleight of hand, if you will, or 00:19:14.359 --> 00:19:16.920 bowing to scientific consensus, if you will, 00:19:17.549 --> 00:19:20.670 brings the problem of climate change within the 00:19:20.670 --> 00:19:24.029 regulatory ambit of the Clean Air Act. It's no 00:19:24.029 --> 00:19:26.869 longer ultra-virus in any sense. It becomes 00:19:26.869 --> 00:19:29.769 part of the implementation of the Clean Air Act. 00:19:30.950 --> 00:19:33.490 So lawyers are intelligent and they recognise 00:19:33.490 --> 00:19:36.009 that if there's a hook on which you're hanging 00:19:36.009 --> 00:19:38.769 a set of obligations, if you destroy the hook, 00:19:38.890 --> 00:19:42.630 the obligation disappears. So, in the Trump administration 00:19:42.630 --> 00:19:47.519 now, there is an effort to get EPA to deny and 00:19:47.519 --> 00:19:53.420 pull back its endangerment declaration. So, it's 00:19:53.420 --> 00:19:58.380 sobering in a sense that the entire regulatory 00:19:58.380 --> 00:20:03.579 might of the largest economy in the world to 00:20:03.579 --> 00:20:06.700 deal with a problem that is confronting all of 00:20:06.700 --> 00:20:11.720 humankind rests on a scientific finding ratified 00:20:11.720 --> 00:20:15.630 in law. And it's a declaration. I mean, that's 00:20:15.630 --> 00:20:18.269 even one could ask, well, what kind of legal 00:20:18.269 --> 00:20:20.710 beast is this anyway? What is a declaration? 00:20:21.490 --> 00:20:25.250 But everybody recognizes that if you want to 00:20:25.250 --> 00:20:28.269 build a lawful world, you really can't hack away 00:20:28.269 --> 00:20:31.630 at that declaration. And if you remove it, it 00:20:31.630 --> 00:20:36.190 will dismantle the US government's capacity to 00:20:36.190 --> 00:20:39.529 deal with climate change without new legislation. 00:20:39.990 --> 00:20:44.299 So that is a big deal, yet hanging on a triviality 00:20:44.299 --> 00:20:47.539 in a sense. And it's that sort of contradiction 00:20:47.539 --> 00:20:51.480 that I find truly fascinating in the sort of 00:20:51.480 --> 00:20:56.359 joint study of STS and legal studies. Yeah, I 00:20:56.359 --> 00:20:59.440 guess what I pick up from that is that there's 00:20:59.440 --> 00:21:03.059 this importance in two things: in terms of language 00:21:03.059 --> 00:21:05.640 and the use of, I guess, word and language to 00:21:05.640 --> 00:21:08.259 determine something, and then from that, it's 00:21:08.259 --> 00:21:11.819 kind of categorising something as being scientific 00:21:11.819 --> 00:21:15.240 or political, and kind of those being seen as 00:21:15.240 --> 00:21:17.440 separate aspects. And I guess what you say is 00:21:17.440 --> 00:21:19.359 that science is seen as something that we can 00:21:19.359 --> 00:21:23.720 accede to, and then they can, kind of, allow us 00:21:23.720 --> 00:21:29.160 to push forth certain regulations. But would you 00:21:29.160 --> 00:21:32.180 say then, maybe, perhaps, judges may be inclined 00:21:32.180 --> 00:21:35.579 to categorise certain things as scientific if 00:21:35.579 --> 00:21:39.579 they want to see certain results? I think the 00:21:39.579 --> 00:21:42.940 judges can both declare something to be scientific 00:21:42.940 --> 00:21:48.940 and undeclare it as well. So, if a judge is persuaded 00:21:48.940 --> 00:21:51.279 that a certain kind of testimony should not be 00:21:51.279 --> 00:21:54.039 allowed into court, there's a great deal of discretion 00:21:54.039 --> 00:21:57.039 to say that the person bearing that expert judgment 00:21:57.039 --> 00:22:01.839 is not qualified on a number of grounds. That's 00:22:01.839 --> 00:22:04.039 a very obvious and everyday kind of occurrence: 00:22:04.119 --> 00:22:06.759 are going to let this expert come in? And, 00:22:06.759 --> 00:22:08.859 you know, it's one of the talents of modernity 00:22:08.859 --> 00:22:11.259 that we figured out how to generate experts for 00:22:11.259 --> 00:22:13.819 almost anything. So, in the waning days of the 00:22:13.819 --> 00:22:16.420 COVID pandemic, when we had nothing better to 00:22:16.420 --> 00:22:19.000 do other than sitting at home and reading newspapers 00:22:19.000 --> 00:22:23.140 or whatever, I was quite amused at the sheer 00:22:23.140 --> 00:22:26.539 inventiveness of the category of 'expert'. So, I 00:22:26.539 --> 00:22:29.579 remember one article talking about the effects 00:22:29.579 --> 00:22:34.240 of the pandemic on [ethnically] and racially mixed 00:22:34.380 --> 00:22:37.160 couples. Now, it had not occurred to me that 00:22:37.160 --> 00:22:40.160 this was a problem to even think about. But what 00:22:40.160 --> 00:22:44.859 left out of me from that fluff piece was that 00:22:44.859 --> 00:22:48.720 they had consulted experts. So, who would have 00:22:48.720 --> 00:22:51.740 known before the pandemic that there were experts 00:22:51.740 --> 00:22:55.940 on how a pandemic affects mixed couples? You 00:22:55.940 --> 00:22:59.819 know, so it struck me that that was a brilliant 00:22:59.819 --> 00:23:04.869 example of our inventiveness in saying, give 00:23:04.869 --> 00:23:07.289 me a problem, any problem, and I'll find you 00:23:07.289 --> 00:23:09.769 somebody who can speak with authority about it. 00:23:09.769 --> 00:23:12.970 That is the expert. But equally, the law is extremely 00:23:12.970 --> 00:23:15.970 good at deconstruction. So, the law can take apart 00:23:15.970 --> 00:23:19.390 the qualifications and say, you know, you're 00:23:19.390 --> 00:23:21.569 doing nothing more than what a lay person would 00:23:21.569 --> 00:23:24.710 have done, or you didn't have the qualifications 00:23:24.710 --> 00:23:28.710 you say you had, or this particular type of problem 00:23:28.710 --> 00:23:31.460 is not within your domain of expertise. And the 00:23:31.460 --> 00:23:33.880 law continually, judges continually make those 00:23:33.880 --> 00:23:36.200 moves. So in a sense, I think that the upper 00:23:36.200 --> 00:23:40.160 hand very often remains in the court system, 00:23:40.240 --> 00:23:43.680 in the legal system, to allow in or not allow 00:23:43.680 --> 00:23:47.900 in people that would be considered experts. And 00:23:47.900 --> 00:23:50.640 sometimes it's a very good thing and other times 00:23:50.640 --> 00:23:54.000 it's problematic. So there are definitely forms 00:23:54.000 --> 00:23:57.859 of expertise that are not relevant to the normative 00:23:57.859 --> 00:24:00.660 question that should be asked. And then it becomes 00:24:00.660 --> 00:24:05.700 dangerous to rely on the separate authority of 00:24:05.700 --> 00:24:09.500 science and technology to sidestep, in a sense, 00:24:09.700 --> 00:24:17.059 the normative question, and substitute an alleged 00:24:17.059 --> 00:24:23.500 shared respect for science and technology to 00:24:23.500 --> 00:24:25.799 override what should have been the normative 00:24:25.799 --> 00:24:29.710 question being asked. So one sees risks in either 00:24:29.710 --> 00:24:32.869 direction, either setting aside what should be 00:24:32.869 --> 00:24:37.049 given respect within science or invoking scientific 00:24:37.049 --> 00:24:40.730 authority to sidestep a question. And one sees 00:24:40.730 --> 00:24:43.109 both of these kinds of dynamics playing out. 00:24:43.710 --> 00:24:47.490 So, you know, my message to legal scholars is, 00:24:47.529 --> 00:24:50.809 you know, become attuned to those particular 00:24:50.809 --> 00:24:53.549 dances. It'll make you a better advocate for 00:24:53.549 --> 00:24:56.140 the positions that you want to stand for. It'll 00:24:56.140 --> 00:24:59.180 also make you a better social critic about when 00:24:59.180 --> 00:25:03.180 not to over-rely or not to under-rely on the 00:25:03.180 --> 00:25:06.279 achievements of science and technology. A lot 00:25:06.279 --> 00:25:10.140 to think about there, thank you. I think we should 00:25:10.140 --> 00:25:12.779 move on to the discussion of issues in the realm 00:25:12.779 --> 00:25:15.319 of intellectual property and inventions, which 00:25:15.319 --> 00:25:17.980 you've written much about in the context of STS. 00:25:18.299 --> 00:25:20.279 And I think the discussion will be illuminating 00:25:20.279 --> 00:25:22.140 for viewers to appreciate the broader positions 00:25:22.140 --> 00:25:25.559 you put forth as well. So, looking at, with regard 00:25:25.559 --> 00:25:28.160 to patents, you pointed out that as a society 00:25:28.160 --> 00:25:31.539 we act with the implicit assumption that invention 00:25:31.539 --> 00:25:34.099 is necessarily aligned with the public good. 00:25:34.779 --> 00:25:37.259 What is the danger of this and what role do the 00:25:37.259 --> 00:25:43.359 courts play? So, I think that the danger of patents 00:25:43.359 --> 00:25:46.460 as a guardian of the public good goes way back 00:25:46.460 --> 00:25:49.240 to the theory of patents themselves. So, the 00:25:49.240 --> 00:25:52.359 idea has somehow been that if you give somebody 00:25:52.599 --> 00:25:56.319 exclusive power to benefit economically from 00:25:56.319 --> 00:25:59.720 their intellectual property, this will lead to 00:25:59.720 --> 00:26:04.460 greater inventiveness in society. Plus, there's 00:26:04.460 --> 00:26:08.819 a kind of Lockean argument that the inventor's 00:26:08.819 --> 00:26:12.099 labour went into producing the good in question, 00:26:12.099 --> 00:26:14.160 and therefore they should be allowed to benefit 00:26:14.160 --> 00:26:17.720 from that. There's very little evidence that 00:26:17.720 --> 00:26:23.059 inventiveness works for that reason. I teach at 00:26:23.059 --> 00:26:26.099 Harvard, but down the street in Cambridge, Massachusetts 00:26:26.099 --> 00:26:29.519 is this other great university, the Massachusetts 00:26:29.519 --> 00:26:33.380 Institute of Technology—MIT. And MIT's self 00:26:33.380 --> 00:26:38.359 -image is that it is the school for nerds. And 00:26:38.359 --> 00:26:40.420 nerds are defined as people who love to tinker 00:26:40.420 --> 00:26:44.019 with things, not because they necessarily have 00:26:44.019 --> 00:26:47.619 dollar signs dancing over their heads, but because 00:26:47.619 --> 00:26:52.450 in today's undergraduate parlance, it makes cool 00:26:52.450 --> 00:26:56.990 things. So I think that there's a lot of sociological 00:26:56.990 --> 00:26:59.849 evidence that people do like to tinker, that 00:26:59.849 --> 00:27:02.609 they do get ideas and they make cool things, 00:27:03.670 --> 00:27:07.710 as much in legal argument as in technology, by 00:27:07.710 --> 00:27:10.930 the way. So, it's not clear that the economic 00:27:10.930 --> 00:27:15.029 theory underlying patent law is, in fact, something 00:27:15.029 --> 00:27:19.440 that stands up to sociological analysis. But 00:27:19.440 --> 00:27:24.180 setting even that aside, patents can become a 00:27:24.180 --> 00:27:27.099 safeguard or a safe place for people to retreat 00:27:27.099 --> 00:27:31.460 to, to avoid inventiveness. So, the phenomenon 00:27:31.460 --> 00:27:34.880 of evergreening in the pharmaceutical industry 00:27:34.880 --> 00:27:39.079 has been cited as one of these places that could 00:27:39.079 --> 00:27:42.500 be seen as a pathology of IP law, that you can 00:27:42.500 --> 00:27:46.119 take a drug and tinker with things that have 00:27:46.119 --> 00:27:49.750 very little to do with novelty. So, you can, for 00:27:49.750 --> 00:27:52.289 instance, change the delivery. It used to be 00:27:52.289 --> 00:27:56.150 an inoculation and now it's a pill, or the pill 00:27:56.150 --> 00:27:59.250 itself is configured in a way that alters its 00:27:59.250 --> 00:28:02.089 uptake into the body. Nothing new has been learned 00:28:02.089 --> 00:28:05.210 about biochemistry of the cure itself, but something 00:28:05.210 --> 00:28:09.890 has been done enough to give people an added 00:28:09.890 --> 00:28:13.970 length of time to essentially skim the profits 00:28:13.970 --> 00:28:17.890 from that invention. So, this is an entire industry 00:28:17.890 --> 00:28:22.349 where the argument has been made that from an 00:28:22.349 --> 00:28:24.769 economic standpoint, the incentive structure 00:28:24.769 --> 00:28:28.349 just isn't working in a way that would produce 00:28:28.349 --> 00:28:31.269 public benefit. And then, last but not least, 00:28:31.349 --> 00:28:34.069 you can actually, if you have a powerful entity 00:28:34.069 --> 00:28:37.670 with intellectual property rights, it can keep 00:28:37.670 --> 00:28:40.869 other people out of that domain of experimentation. 00:28:41.430 --> 00:28:47.849 So, this was shown legally in connection with 00:28:47.849 --> 00:28:51.390 the patent on breast cancer genes that a company 00:28:51.390 --> 00:28:54.910 called Myriad owned for a time. Their argument 00:28:54.910 --> 00:28:57.309 was that since their scientists had isolated 00:28:57.309 --> 00:29:00.950 the gene, they were entitled to hold intellectual 00:29:00.950 --> 00:29:03.529 property rights. But they were very vigorous 00:29:03.529 --> 00:29:06.690 about enforcing those intellectual property rights, 00:29:07.190 --> 00:29:11.470 and they didn't want anybody else to do work 00:29:11.470 --> 00:29:18.880 on breast cancer diagnostics or cure or therapies, 00:29:18.980 --> 00:29:22.279 and in effect they were creating a monopoly on 00:29:22.279 --> 00:29:26.019 how this major prevalent disease, one of the 00:29:26.019 --> 00:29:29.559 biggest killers, especially of women, could be 00:29:29.559 --> 00:29:31.619 approached, because their intellectual property 00:29:31.619 --> 00:29:34.819 rights were setting up a kind of high barrier 00:29:34.819 --> 00:29:39.180 over which very few people could climb. So, that's 00:29:39.180 --> 00:29:43.130 a fairly recent and rather poignant example of 00:29:43.130 --> 00:29:45.890 the way in which intellectual property not only 00:29:45.890 --> 00:29:49.529 prevents inventiveness inside of the allegedly 00:29:49.529 --> 00:29:52.950 inventive institutions, but actually keeps out 00:29:52.950 --> 00:29:56.390 people who have a better idea how to do this 00:29:56.390 --> 00:30:01.150 quicker, cheaper, differently. Yeah, that is 00:30:01.150 --> 00:30:03.009 very interesting, I guess, in a sort of way 00:30:03.009 --> 00:30:05.809 you might consider potentially that the rights 00:30:05.809 --> 00:30:08.269 of intellectual property is not an outright right, 00:30:08.269 --> 00:30:10.329 that potentially it may need to be balanced against 00:30:10.329 --> 00:30:13.410 other social interests, and I guess that goes 00:30:13.410 --> 00:30:15.549 into a lot of underlying political theories then 00:30:15.549 --> 00:30:19.609 as well. I was considering when looking at your 00:30:19.609 --> 00:30:22.369 book The Ethics of Invention, I believe published 00:30:22.369 --> 00:30:26.829 in 2016, you state that new technologies have, 00:30:26.829 --> 00:30:29.630 and I quote, 'muddied the line between persons 00:30:29.630 --> 00:30:32.539 of property by allowing persons in effect to 00:30:32.539 --> 00:30:34.440 distribute aspects of their selfhood in ways 00:30:34.440 --> 00:30:37.240 that were once unthinkable.' [See Chapter 7]. And indeed, questions 00:30:37.240 --> 00:30:40.299 surrounding the object of property—kind of, what 00:30:40.299 --> 00:30:44.000 we can create as an invention or the sort or 00:30:44.000 --> 00:30:46.920 what we can disperse—and ownership are difficult 00:30:46.920 --> 00:30:49.259 and evolving, especially in light of biotechnological 00:30:49.259 --> 00:30:52.420 developments. However, there's another aspect 00:30:52.420 --> 00:30:54.720 that I think has been very recently discussed 00:30:54.720 --> 00:30:58.259 and debated, which is that since your book, there's 00:30:58.259 --> 00:31:01.299 a rise in the question of the subject, other than 00:31:01.299 --> 00:31:04.259 the human subject, regarding inventions and patents. 00:31:05.240 --> 00:31:07.799 So, there was this case, just to outline for our listeners, 00:31:08.680 --> 00:31:10.880 of Thaler v Comptroller-General, which was 00:31:10.880 --> 00:31:15.140 in the Supreme Court in 2023. Dr Stephen Thaler, 00:31:15.140 --> 00:31:18.380 he put forth many, many cases internationally 00:31:18.380 --> 00:31:21.799 and a lot of international courts. This was that 00:31:21.799 --> 00:31:26.319 apparently - allegedly - his AI machine had created 00:31:26.319 --> 00:31:29.799 an invention, and instead of claiming for a patent 00:31:29.799 --> 00:31:33.759 for himself, he claimed that the AI should be 00:31:33.759 --> 00:31:36.519 recognised as the owner of the invention. And 00:31:36.519 --> 00:31:39.779 this was rejected in the UK Supreme Court. However, 00:31:39.980 --> 00:31:42.140 this raises a lot of questions potentially in 00:31:42.140 --> 00:31:45.440 the future of intellectual property and technological 00:31:45.440 --> 00:31:47.619 developments. So, I guess my question for you 00:31:47.619 --> 00:31:50.259 in light of that case is: what challenges, 00:31:50.259 --> 00:31:53.380 if any, may this debate present to what society 00:31:53.380 --> 00:31:56.180 thinks about the rights and values attached to 00:31:56.180 --> 00:31:58.799 being human, potentially even, which is a lot 00:31:58.799 --> 00:32:01.180 more broad of a question, and could this maybe 00:32:01.180 --> 00:32:03.619 even challenge our moral basis for recognising 00:32:03.619 --> 00:32:07.180 inventions? Quite a heavy question. I think that 00:32:07.180 --> 00:32:11.859 the entire AI area, even more than the biotechnological 00:32:11.859 --> 00:32:14.990 developments of the past few decades, raises 00:32:14.990 --> 00:32:17.309 the question of what are the boundaries of the 00:32:17.309 --> 00:32:20.369 human in a very frontal way. And there's no question 00:32:20.369 --> 00:32:23.490 that we're delegating to these machines to some 00:32:23.490 --> 00:32:28.190 degree aspects of history and memory that operate 00:32:28.190 --> 00:32:31.049 differently in the mechanical environment or 00:32:31.049 --> 00:32:33.609 in the computerized environment from the way 00:32:33.609 --> 00:32:38.009 they do in human minds. So, I by now have a repository 00:32:38.009 --> 00:32:42.329 of, you know, a couple of decades of photographs 00:32:42.329 --> 00:32:46.210 and calendar entries and so forth, and recently 00:32:46.210 --> 00:32:48.910 I had to fill out a very complicated set of forms 00:32:48.910 --> 00:32:51.769 that wanted to know everywhere that I had travelled 00:32:51.769 --> 00:32:54.950 for the last ten years, and it would have been 00:32:54.950 --> 00:32:57.309 impossible to remember most of these things, but 00:32:57.309 --> 00:33:00.470 of course we have these aids that now allow us. 00:33:00.650 --> 00:33:03.630 Now, I think that one thing that's not often discussed 00:33:03.630 --> 00:33:06.730 but should be is that it actually changes one's 00:33:06.730 --> 00:33:09.089 understanding of what your responsibility is. 00:33:11.149 --> 00:33:13.769 I mean, forgetfulness might have been okay at a certain 00:33:13.769 --> 00:33:17.109 point, but it's perhaps harder to maintain if 00:33:17.109 --> 00:33:19.450 there are records and anybody could have access 00:33:19.450 --> 00:33:22.750 to those records. So, I think that in legal cases 00:33:22.750 --> 00:33:27.470 where, you know, some kinds of falsification or misstatements 00:33:27.470 --> 00:33:31.650 might have been allowable, as long as memory 00:33:31.650 --> 00:33:36.009 was human, there may be slippages where people 00:33:36.009 --> 00:33:41.450 are, where the standards of responsibility for human 00:33:41.450 --> 00:33:44.109 beings will change. Now, I realize that you're 00:33:44.109 --> 00:33:46.690 asking the opposite question: when is it that 00:33:46.690 --> 00:33:50.529 we - I mean - is it the case that we will be attributing 00:33:50.529 --> 00:33:54.569 increasing ideas of human-ness to technology? 00:33:54.990 --> 00:33:59.470 So there's a part of, you know, my ironic sensibility 00:33:59.470 --> 00:34:02.849 that says, well, in medieval times, we used to 00:34:02.849 --> 00:34:07.589 do this, in the sense that creatures like termites 00:34:07.589 --> 00:34:10.469 were held responsible for the eating away of 00:34:10.469 --> 00:34:13.530 the foundations of buildings, and people actually 00:34:13.530 --> 00:34:16.929 had excommunication ceremonies to get rid of 00:34:16.929 --> 00:34:20.690 pests, because they were given, in a sense, responsibility 00:34:20.690 --> 00:34:24.949 and, you know, the comic poem, 'The Jackdaw of 00:34:24.949 --> 00:34:28.750 Rheims' has a corresponding sort of thing. And 00:34:28.750 --> 00:34:31.929 it's also a little bit ironic that right now, 00:34:32.349 --> 00:34:35.420 one of the big movements in environmental law 00:34:35.420 --> 00:34:38.900 is rights of nature. And people somehow don't 00:34:38.900 --> 00:34:43.820 put rights of nature—where the left-leaning, progressive 00:34:43.820 --> 00:34:47.679 youthful idea is of course we should be conferring 00:34:47.679 --> 00:34:51.219 rights to nature—together on the same page as 00:34:51.219 --> 00:34:54.699 should we make the AI a human agent. But it's 00:34:54.699 --> 00:34:57.000 a similar sort of question: to what extent should 00:34:57.000 --> 00:35:01.289 we take an idea of agency that we have previously 00:35:01.289 --> 00:35:04.610 located phenotypically inside of human bodies 00:35:04.610 --> 00:35:08.030 and human minds, and say, well, now it's distributed? 00:35:08.909 --> 00:35:12.369 It could affect our expectations of humans, as 00:35:12.369 --> 00:35:15.429 I was saying already before, that your obligation 00:35:15.429 --> 00:35:18.889 to remember and keep track of things may be subtly 00:35:18.889 --> 00:35:21.889 shifting when you have all these records. I mean, 00:35:22.010 --> 00:35:25.269 you know, in social media, there's a kind of 00:35:25.269 --> 00:35:29.820 validation of this because people are often pilloried 00:35:29.820 --> 00:35:34.179 and lose their positions and their livelihoods 00:35:34.179 --> 00:35:38.280 because it's found that 10 years ago they may 00:35:38.280 --> 00:35:43.000 have written something that they today would 00:35:43.000 --> 00:35:47.420 repudiate. So, can you repudiate it if you've 00:35:47.420 --> 00:35:51.369 put it in a machine, then is that now with you? I 00:35:51.369 --> 00:35:54.570 mean, imagine the picture of Dorian Gray if the 00:35:54.570 --> 00:35:57.690 picture instead of being up in an attic is actually 00:35:57.690 --> 00:36:00.429 side by side with you all the time. You know, 00:36:00.550 --> 00:36:03.989 if you're joined at the hip and you and your 00:36:03.989 --> 00:36:08.190 alter image, the digital subject, the digital 00:36:08.190 --> 00:36:10.889 'you' is accompanying you throughout your life. 00:36:11.130 --> 00:36:14.269 I mean, you know, it's a metaphysically interesting 00:36:14.269 --> 00:36:16.630 set of propositions. And I think the question 00:36:16.630 --> 00:36:21.170 of agency goes both ways. I mean, when does it 00:36:21.170 --> 00:36:25.409 get transferred from the human subject into something 00:36:25.409 --> 00:36:29.610 that is so humanoid? And of course, we are creating 00:36:29.610 --> 00:36:32.550 these empathy bots. I mean, we're purposefully 00:36:32.550 --> 00:36:36.929 blurring the lines. Now, I think it's an open 00:36:36.929 --> 00:36:40.610 question what the answer is. And in my future 00:36:40.610 --> 00:36:43.190 work for the next four or five years, I actually 00:36:43.190 --> 00:36:45.849 hope to be exploring this in a multicultural 00:36:45.849 --> 00:36:50.170 way. Because I think that human values are different 00:36:50.170 --> 00:36:53.710 depending on what legal and philosophical traditions 00:36:53.710 --> 00:36:57.010 people are coming from. What is the nature of 00:36:57.010 --> 00:37:00.630 the self? And the word 'self', we're used to that, 00:37:01.230 --> 00:37:08.510 but when I write two words in prose, 'our' and 00:37:08.510 --> 00:37:12.889 'selves' as separate words, my spell check is always 00:37:12.889 --> 00:37:15.909 trying to discipline me into writing it as one 00:37:15.909 --> 00:37:19.130 word because it recognizes 'ourselves' as one word, 00:37:19.130 --> 00:37:23.309 and not 'our selves' as two words. So, you know, 00:37:23.309 --> 00:37:26.309 it's a very subtle reminder that we're actually 00:37:26.309 --> 00:37:30.429 putting questions on the table about which - you 00:37:30.429 --> 00:37:33.429 know - 'Is my spell check actually entitled to 00:37:33.429 --> 00:37:35.960 agency?' that we haven't asked those questions 00:37:35.960 --> 00:37:39.420 before. I think that people coming out of simply 00:37:39.420 --> 00:37:41.780 even a common law and civil law tradition may 00:37:41.780 --> 00:37:44.239 have very different ideas about this, because 00:37:44.239 --> 00:37:47.320 you were talking about property before, and property 00:37:47.320 --> 00:37:50.400 is understood in a different way in the common 00:37:50.400 --> 00:37:53.619 law and the civil law. For instance, in the common 00:37:53.619 --> 00:37:56.679 law, the idea of a bundle of rights, that it's 00:37:56.679 --> 00:38:00.119 a set of, you know, sticks tied together and you can give 00:38:00.119 --> 00:38:04.840 away a piece of it or a piece of that. And that's 00:38:04.840 --> 00:38:07.780 not quite the same way that civil law traditions 00:38:07.780 --> 00:38:10.519 think about it. Similarly, I was never taught 00:38:10.519 --> 00:38:13.860 in my common law property class that the right 00:38:13.860 --> 00:38:17.940 to destroy the object is actually an inalienable 00:38:17.940 --> 00:38:21.000 part of your property rights, but in the civil 00:38:21.000 --> 00:38:23.860 law tradition that is somehow built in. So, I 00:38:23.860 --> 00:38:25.960 think there are interesting discussions. I mean, 00:38:25.960 --> 00:38:28.019 you mentioned that you're going to be studying 00:38:28.019 --> 00:38:31.260 French law, and I think you'll discover that 00:38:31.670 --> 00:38:35.269 even a question like this on what basis might 00:38:35.269 --> 00:38:39.750 you record rights to a non-human object, but 00:38:39.750 --> 00:38:43.030 then is it non-human when you've actually built 00:38:43.030 --> 00:38:47.929 it to track humanness? To what extent are we 00:38:47.929 --> 00:38:53.250 already sharing responsibilities that to some 00:38:53.250 --> 00:38:59.110 degree are precursors of the digital world? If 00:38:59.110 --> 00:39:04.280 you just think of ordinary negligence law. We 00:39:04.280 --> 00:39:08.440 try to make it natural, but in effect, if you 00:39:08.440 --> 00:39:11.719 have a car accident and you're blaming - you're 00:39:11.719 --> 00:39:14.739 choosing whether to blame the manufacturer of 00:39:14.739 --> 00:39:18.380 the car or the conduct of the driver, you're 00:39:18.380 --> 00:39:21.639 already doing that kind of bifurcation because 00:39:21.639 --> 00:39:24.760 back of the manufacturer of the car are designers. 00:39:25.820 --> 00:39:30.559 So, recently in the US when Volkswagen Corporation 00:39:30.559 --> 00:39:37.519 was discovered to have defeated EPA's environmental 00:39:37.519 --> 00:39:41.920 tests by building in an algorithm into its cars, 00:39:42.880 --> 00:39:45.219 there was a question: was there liability for 00:39:45.219 --> 00:39:50.599 this? So, just for our listeners, the algorithm 00:39:50.599 --> 00:39:54.889 faked the performance of the car. The algorithm 00:39:54.889 --> 00:39:58.070 recognized when the car was in test conditions, 00:39:58.070 --> 00:40:01.309 and in those test conditions it behaved better 00:40:01.309 --> 00:40:04.550 in terms of fuel efficiency, and when it was out 00:40:04.550 --> 00:40:07.849 on the road it behaved worse. So, you would have 00:40:07.849 --> 00:40:12.409 more emissions in actual road driving than in 00:40:12.409 --> 00:40:15.429 test conditions; you could pass the test and 00:40:15.429 --> 00:40:18.250 then you would be polluting. Well an engineer 00:40:18.250 --> 00:40:22.000 was held responsible for this. But one could 00:40:22.000 --> 00:40:24.699 have imagined the situation. I mean, in other 00:40:24.699 --> 00:40:27.940 words, there was a case where do you attribute 00:40:27.940 --> 00:40:30.980 it to the machine, and that road conditions are 00:40:30.980 --> 00:40:33.440 always different from test conditions anyway? 00:40:33.900 --> 00:40:37.920 Or do you attribute agency to this algorithm, 00:40:38.320 --> 00:40:40.699 but not to the algorithm, but to its designer? 00:40:41.239 --> 00:40:44.559 So, in a sense, we've trodden this pathway already, 00:40:44.559 --> 00:40:47.909 and we have a set of answers. which are in a 00:40:47.909 --> 00:40:51.389 sense precedents, but one has to - where the ingenuity 00:40:51.389 --> 00:40:54.389 of the legal imagination will come in, is partly 00:40:54.389 --> 00:40:57.010 in deciding what are the analogies, which are 00:40:57.010 --> 00:40:59.789 the things that we will mobilize to address these 00:40:59.789 --> 00:41:03.630 sets of questions that look all new. We should 00:41:03.630 --> 00:41:06.849 always relate them back to some experiential 00:41:06.849 --> 00:41:10.989 precursor. Yeah, no, absolutely fascinating. 00:41:11.349 --> 00:41:14.630 I actually noted that you talked about nature 00:41:14.630 --> 00:41:17.329 and personhood. And personally, I have actually 00:41:17.329 --> 00:41:19.190 been looking at these two questions. And I find 00:41:19.190 --> 00:41:22.530 it very interesting that AI and personhood, that's 00:41:22.530 --> 00:41:25.050 sort of still currently in discussion. But the 00:41:25.050 --> 00:41:27.250 idea of nature and attributing personhood to 00:41:27.250 --> 00:41:31.039 nature, for example, rivers and trees, that was 00:41:31.039 --> 00:41:34.059 kind of a big thing in 2017 when New Zealand 00:41:34.059 --> 00:41:38.840 first attributed the Wanganui River to be a legal 00:41:38.840 --> 00:41:41.739 person, that kind of really quickly died off 00:41:41.739 --> 00:41:45.039 as like a very feasible idea in environmental 00:41:45.039 --> 00:41:46.780 law, at least from what I've seen, especially 00:41:46.780 --> 00:41:49.739 in the culture in English environmental law. 00:41:50.260 --> 00:41:53.139 But I do find it interesting that—I'm not sure, 00:41:53.199 --> 00:41:55.320 I'm just posing this to you—that potentially 00:41:55.320 --> 00:41:58.679 our interest in attributing personhood to 00:41:58.760 --> 00:42:02.559 AI is because it's our creation and kind of we're 00:42:02.559 --> 00:42:04.739 trying to make it more human or humanoid. Whereas 00:42:04.739 --> 00:42:07.119 for nature, some may argue that actually personhood 00:42:07.119 --> 00:42:10.619 for nature may be more important because ultimately 00:42:10.619 --> 00:42:13.380 humans cannot exist without nature, and nature 00:42:13.380 --> 00:42:15.860 should have standing in our legal system if anything. 00:42:16.400 --> 00:42:20.960 But it's the fact that it's not kind of in essence 00:42:20.960 --> 00:42:24.420 related to us and our creations and what we do 00:42:24.420 --> 00:42:28.260 that we might be less willing, potentially, to 00:42:28.260 --> 00:42:30.860 go down the avenue, unless you bring up indigenous 00:42:30.860 --> 00:42:33.460 rights in different cultures' understanding of 00:42:33.460 --> 00:42:36.760 how nature operates in society. I wonder what 00:42:36.760 --> 00:42:40.480 you think of that? Well, I think that the I was 00:42:40.480 --> 00:42:43.860 talking before about comparative law is a way 00:42:43.860 --> 00:42:47.809 into different sensibilities about about the 00:42:47.809 --> 00:42:50.309 kinds of questions you're raising about where 00:42:50.309 --> 00:42:52.730 do we feel differently about rights for nature 00:42:52.730 --> 00:42:55.849 because we're dependent on nature. The category 00:42:55.849 --> 00:43:00.710 of nature itself depends on where you're situated. 00:43:01.730 --> 00:43:04.590 If one were to talk about rights of nature in 00:43:04.590 --> 00:43:08.460 any historical sense, first of all, in America, 00:43:08.500 --> 00:43:10.800 there was a very famous law article written in 00:43:10.800 --> 00:43:14.679 1972 called 'Should Trees Have Standing?' So, this 00:43:14.679 --> 00:43:17.719 was written by a lawyer. This is way before New 00:43:17.719 --> 00:43:21.599 Zealand grants rights to a river. And also, if 00:43:21.599 --> 00:43:23.739 you look at other countries like the Ecuador 00:43:23.739 --> 00:43:26.539 Constitution, or, for that matter, even the Indian 00:43:26.539 --> 00:43:31.380 Constitution, you find elements of rights to 00:43:31.380 --> 00:43:34.579 nature thinking going back already several decades. 00:43:35.839 --> 00:43:41.199 Since 2000, it's become current and popular in 00:43:41.199 --> 00:43:43.639 environmental discourse. We're talking about 00:43:43.639 --> 00:43:47.800 the Anthropocene, which is a term that recognizes 00:43:47.800 --> 00:43:50.599 that humans and nature or society and nature 00:43:50.599 --> 00:43:56.329 are completely linked and interwoven. So that, then, from 00:43:56.329 --> 00:43:59.889 a legal analytics standpoint, what becomes interesting 00:43:59.889 --> 00:44:03.590 is the separation. You know, in a way, we're 00:44:03.590 --> 00:44:05.789 so driven to new things. Rights of nature is 00:44:05.789 --> 00:44:08.230 a new phrase and everybody runs off talking about 00:44:08.230 --> 00:44:11.150 rights of nature. But supposing we instead talked 00:44:11.150 --> 00:44:14.150 about the dislocation, when is it and how is 00:44:14.150 --> 00:44:15.949 it that we started thinking about this thing 00:44:15.949 --> 00:44:19.250 called nature as being out there anyway and 00:44:19.250 --> 00:44:22.130 separate? And people might relate it to the scientific 00:44:22.130 --> 00:44:25.730 revolution when it became possible for us as 00:44:25.730 --> 00:44:29.230 human agents to 'other' this thing called nature 00:44:29.230 --> 00:44:32.110 and treat it as different. So what you could 00:44:32.110 --> 00:44:36.869 be seeing now is a grand course correction that 00:44:36.869 --> 00:44:40.309 says what happened at the Enlightenment was a 00:44:40.309 --> 00:44:43.730 kind of faulty separation, largely in Western 00:44:43.730 --> 00:44:47.489 and Northern societies that bought into experimental 00:44:47.489 --> 00:44:50.840 science. as a way of knowing the human condition, 00:44:51.300 --> 00:44:53.800 but that for the vast majority of humanity this 00:44:53.800 --> 00:44:58.280 is not a separation that ever took place that 00:44:58.280 --> 00:45:02.739 completely anyway, that the world is in a sense 00:45:02.739 --> 00:45:07.539 much more hybrid, and that it is therefore a kind 00:45:07.539 --> 00:45:11.760 of product of a way of thinking that creates 00:45:11.760 --> 00:45:14.900 these boundaries in the first place. Thank you, 00:45:14.900 --> 00:45:17.300 so much for that wonderful conversation with 00:45:17.300 --> 00:45:20.099 us, Professor Jasanoff. As our final question, 00:45:20.219 --> 00:45:23.400 we'd like to ask if you could communicate one 00:45:23.400 --> 00:45:26.219 idea from your lecture series to a public audience, 00:45:26.659 --> 00:45:32.719 what would that be? I'm here in Oxford delivering 00:45:32.719 --> 00:45:36.679 the Clarendon Lectures on law. So, I think that 00:45:36.679 --> 00:45:40.880 the first message is about the mystery and power 00:45:40.880 --> 00:45:46.159 of the law as a creative instrument, as an instrument 00:45:46.159 --> 00:45:51.960 that is every bit as important to us as science 00:45:51.960 --> 00:45:54.840 and technology are. I think as a society, or as 00:45:54.840 --> 00:45:59.389 modern societies, we have tended to get a bit 00:45:59.389 --> 00:46:01.909 seduced by the power of science and technology— 00:46:01.909 --> 00:46:05.670 we often talk about law as if it is an also round 00:46:05.670 --> 00:46:08.789 entity. One often talks about how the law is 00:46:08.789 --> 00:46:11.929 lagging behind science and technology. The sense 00:46:11.929 --> 00:46:15.170 I want to restore to people is that law is more 00:46:15.170 --> 00:46:18.010 ancient than science and technology. How we live 00:46:18.010 --> 00:46:21.369 together is ultimately of greater concern to 00:46:21.369 --> 00:46:25.679 us than facts that we know. And I think I would 00:46:25.679 --> 00:46:29.300 like people to recover their sense of law, not 00:46:29.300 --> 00:46:32.860 just as an instrument that makes it easier for 00:46:32.860 --> 00:46:35.719 people to make money or for people to retain 00:46:35.719 --> 00:46:37.860 rights to the things that they have invented, 00:46:38.340 --> 00:46:41.239 but as a vehicle through which people assert 00:46:41.239 --> 00:46:44.900 their moral agency over the ways in which the 00:46:44.900 --> 00:46:48.440 world is changing. In short, I would like law 00:46:48.440 --> 00:46:53.940 to be seen as an inventive, creative, and morally 00:46:53.940 --> 00:46:58.239 essential space, and not delegate those capacities 00:46:58.239 --> 00:47:02.239 to science and technology, above all not to AI. 00:47:03.300 --> 00:47:06.500 Thank you so much, Professor Jasanoff. 00:47:06.500 --> 00:47:09.480 Thank you for listening to our podcast episode for today.