Welcome to the Oxford Undergraduate Law Podcast,
where we discuss the law, its relationship with
our society, and its implications on our lives.
My name is Chum Sdiq, and I'm one of your
podcast editors for this year. This series was
made possible by the generous support of Crown
Office Chambers, one of the leading London sets
of Chambers specialising in civil and commercial
work. This episode is a particularly special
one. In November, I was honoured to be joined
by Professor Sheila Jasanoff. Professor Jasanoff
is Pforzheimer Professor of Science and Technology
Studies (STS for short) at the Harvard Kennedy
School. She is a pioneer in her field, having
authored more than 130 articles and chapters
and being author or editor of more than 15 books,
with the most recent being: The Ethics of Invention
and Can Science Make Sense of Life? Her work
explores the role of science and technology in
the law, politics and policy of modern democracies.
She founded and directs the STS Program at Harvard,
and prior to this, she was the founding chair
of the STS department at Cornell. All of this
led to her being the 2022 Holberg Prize holder
for her prolific and pioneering efforts in the
field. Now, why is this episode a particularly
special one? Well, in November, the Oxford Law
Faculty ran its Clarendon Law Lecture Series
for this year. For those who may not know, each
year the Oxford Law Faculty invites a distinguished
guest speaker to deliver three lectures over
the span of three days on their specialised area
of law. Well, this year our Clarendon Law Lecturer
was none other than Professor Jasanoff, delivering
three lectures together entitled 'Science, Technology
and the Constitution of Modernity.' As part of
a collaboration with the Law Faculty, I sat down
with Professor Jasanoff on the morning of her
second lecture to have a discussion both supplementing
and extending beyond her three lectures. The
first portion of our discussion elucidates the
key conceptual ideas pertinent to STS thinking
and its relation to law, and the latter portion
questions the more specific positions Professor
Jasanoff has voiced in her works with regard
to intellectual property, especially in relation
to the most recent legal developments, such as
the environment, AI, and the concept of personhood.
This episode is therefore complementary to the
Clarendon Lecture Series, all publicly available
on the Oxford Faculty of Law website and YouTube
channel, and we therefore encourage our listeners
to also look at these lectures. I truly hope
you enjoyed this conversation as much as I did,
and please note that as we are moving towards
video podcasts, the video and audio quality will
only improve in subsequent episodes.
Thank you Professor Jasnoor for joining us today. For the
benefit of our listeners. I guess the first foundational
question would be to ask about your specialty
in STS. You've mentioned in the past that you've
had quite a broad range in coming to STS, you
did a PhD in linguistics and you were also in
environmental law when you came across STS. So,
could you outline for the benefit of our listeners
what STS is and moreover, what in particular
drew you to STS as a lawyer? First of all, let
me thank you for welcoming me to this show. It's
an absolute pleasure to be with you this morning.
So, of course, it's a complicated question. How
does one land on anything at all? And one irony
of my being in STS is that STS didn't really
exist as a field when I landed in it. So, it was
in some sense trying to make sense of a place
that you've arrived in without knowing what that
place is. But I think that the preparatory steps
were actually far more to do with law than with
science and technology, because to some extent,
I think the law asks questions about human experience
that are quite similar to the questions that
STS scholars ask about science and technology.
And I think at the core of it is why do we believe
the things that we do, and what authorizes us
or compels us, as the case may be, to act in
particular ways? I think that those questions
can be asked just as much about science and technology
as they are continually asked about law. I fell
into this somewhat by accident because I had
been practicing environmental law, but for family
reasons we ended up at Cornell University, which
is a major university that likes to say that
it's centrally isolated. It's in upstate New
York in a very beautiful region. It is part of
the Ivy League of American universities, but
there's nothing around. Miles of corn fields
and to some extent wineries these days. So, there
was this big university sitting in a place where
I couldn't practice the field that I had landed
in when I finished law school, namely environmental
law. So then the question arose: where in that
university could I sit? And people found this
program on science, technology and society. There
was nothing there in a sense, that is, you know,
it was a program and so it didn't have a discipline,
it didn't have faculty and to some extent it
was groping in the dark to figure out, well,
what are the questions to ask here anyway? But
because my work was about the environment, I
was quickly led into a comparative project. And
that was comparing the way in which different
countries, three European countries and one, and
America, regulate substances that are suspected
of causing cancer. So in political science at
that time, people thought that this was an uninteresting
project because these four countries were very
similar: they were all democracies, they all
had a chemical industry, they all had public
health and safety movements, governments were
committed to protecting the public welfare. So,
what could go wrong? Nobody wanted to have cancer
-causing chemicals. And the first big insight
of my research career was that that was all nonsense.
That, in fact, there was a science about different
chemicals, but countries nevertheless came to
very different positions. And that puzzle is
what set me off on my research career. But it's
important to recognise that it came out of a
project out of comparative regulation, and not
science and technology studies as such.
Yes, that is indeed very interesting and I think it
does make us think about the sort of very integral
relationship between STS and looking at the law
as well. What do you think makes the insights of
STS a particular point of relevance to law [and]
legal thinking. I know you kind of alluded
to it, but just in particular, as a general conceptual
point. Yes, well, thanks for that question. I mean,
my own answer to that has been evolving with my
attempts to define and redefine the field of
STS in a way that makes sense. So, at the very
most abstract level, you can think of legal studies
is having to do with, you know, how is there
such a thing as law that people believe in? I
mean, why does everybody have a mental image
of what it means to be lawful or lawless? And,
you know, we couldn't live in modern societies
without a sense of that. So now if you just transpose
that and say, what makes us think that there
are such things as scientific truths and, you
know, that what is a scientific fact? I mean,
it's a commonplace. Everybody kind of understands
what a scientific fact is. But people don't stop
to think how either thing gets to be what it
is. I mean, how does a legal decision become a legal
decision? I still remember the boot camp environment
of first year Harvard Law School when you were
told that you more or less had to shed any preconceptions
about what the law is and sort of re-learn the basics
of how one gets to a legal decision. You're not
born knowing what a holding is in the law. It's
something that's a result of training. But people
take scientific facts much more for granted,
and I think that the kind of revolutionary move
in STS was to say that scientific authority is
really not different from other kinds of authority,
in the sense that we can study how it's made.
So, I think that the points of contact, the law
part I was already used to – mind you, nobody
ever teaches that. And of course, like jurisprudence,
it's much more formal. So, I had to reflect on
it. I had to reflect on the fact that I was learning
how to do law in ways that no classroom course
was teaching me. But then the transposition to
the fields of science and technology became easier
in a sense, because I had already experienced
something like that process of taking apart authoritative
statements, asking how they got to achieve that
authority status, and recognising as well that
there's both a kind of technological dimension
behind it, that is rules by which you must operate.
After all, lawyers and judges have a deep understanding
and a shared understanding of what is not a legal
case. You couldn't have a law of standing unless
you had some sense who is allowed to come before
the court. So, similarly, you can ask exactly
the same questions about science. How do people
know that this is a scientific method or not?
So, I think that once you start seeing both science
and law as effectively grand machines for producing
types of authority, then the intellectual transition
between the one field and the other, legal studies
and science and technology studies, becomes almost
natural. And I think in relation to that actually -
sorry - the concept of co-production kind of
bleeds through much of your work, and I think is very
relevant to what you've mentioned here. So, talking
about this notion of co-production that you
also use as a framework throughout your lectures,
could you explain to us what the term co-production
means, and kind of what its significance is in
looking at this relationship between science
and law? This question about co-production is
really at the centre of my academic work as you
point out, but first I should say that there
are two rather different meanings of co-production,
a broad in the world, and I want to set the one
aside as not sufficient, relevant but not sufficient.
I call that the Miramax version of co-production.
If you go to see a film and the credits are running,
at the end, it'll often say, 'This is a co-production
of', and then it'll say Dolby sound systems and,
you know, whatever other technical production systems were
in play. And that co-production simply means that
the project needed the input from a number of
different fields. So, in regular everyday usage.
it's often translated to mean that different
interest groups came together, sat around a table
and co-produced a common statement or a common
position that they all could believe in. I think
that the STS version of co-production is stronger
than that, because it's not only about coming
to a shared conclusion about a set of propositions
or statements that you can make about the world,
but it's also at the same time, in a sense bringing
that world into existence in a full-blown way.
Now, that is a kind of abstract statement, so
I prefer, like any good common lawyer, to give
an example and say what we mean. So, before the
late 1980s, people were not talking about climate
change. In fact, in American policy, you can
almost date it to a particular summer of 1988.
when a particular person who worked for a NASA
agency on space and the atmosphere broadly who
testified before the US Congress that such a
thing as climate change existed. You know, that doesn't
mean that there wasn't a climate change before,
nor that weather has stopped existing—you couldn't
have British everyday converse on this weather
continue to be coagulating word for all kinds
of positions. But once you displace whether with
its vagaries of changeability and day-to-day
prediction with an idea like climate, you've
suddenly created a new state of the world, a
state of the world that demands in a sense that
you think differently about it. You produce different
facts about it. You ask questions about climate
change that you might not ask about any other
kind of atmospheric phenomenon, certainly weather.
One doesn't talk about climate prediction on
one's telephone app. One does look at weather
predictions. So this transposition has a temporal
dimension, which is profoundly technical, but
it also has a political dimension, and therefore
also legal dimension. So, 'how is one going to
make an accord over the climate?' now suddenly
becomes a normative question in the world. If
we've learned to recognize that there is this
big set of changes to which we've now given a
new name, we have new ways of studying it, new
facts we're generating about it, what is the
simultaneous set of obligations upon us as a
human species? And I'll just end with talking about this slew
of cases that have arisen recently about the
future, the long-term future. Sometimes, these
are brought by children's groups who are saying
that we in the present, the grown-ups of the
moment, Greta Thunberg, the climate activist
loves to excoriate, that we are imposing burdens
that take away the people who are as yet unborn
and who are children right now to live in a
stable world as stable as their parents may have
inherited. So, this is moving obligations down
the line to a kind of, a set of questions and
a kind of argumentation that people would have
dismissed as speculative only a short time ago.
So, I think that recognizing that there are these
metaphysical changes in our understandings of
the world that bring with them that entail corresponding
normative shifts about responsibility, about
the locus of responsibility—whose job is it
anyway?—about the locus of responsibility to
whom, who are the harmed parties? These are all
profound and fundamental questions for the law.
And so I think that the understanding co-production
in that sense, that it is a shift, a shift of
position, a shift of attitude with regard to
questions of how should we live together and
apart, along with, well, what is the world like
that we're choosing to respond to it in this
way and not in others? That is indeed very interesting,
and I think it's at the heart, as you said, of
STS. Thank you for that clarification. So, in
your work, you highlight this broader slippage
of power from law to science, where we may have
in ways tacitly granted science and expertise
a higher role as sitting above the normal fray
of politics, and therefore also law. What causes
this sort of inclination? And if we ought to
push back against this, how can we effectively
do it? Again, you raise really interesting
questions about why it is that we've delegated
this decision-making power, this overarching
decision-making power to science, and then what
can we do to regain it? I think that my work
is more ambivalent about both of these questions.
So, in a lot of my work on law, I talk about the
kinds of games that legal thought plays. On the
one hand, according a kind of supremacy to science,
but on the other hand, retaining so much discretion
to say what counts as science in a given context,
that, actually, the law's judgment retains a great
deal of decisive power. So let's take again an
example that is very current in American policy
right now. In 1970, we enacted at the national
level the Clean Air Act. That was the first major
federal law regulating something in the environment,
but 1970 was well before the 1980s when we started
recognizing climate change as a phenomenon. So
American environmental law has no specific legislation
that is geared to dealing with the problem that
most people consider the most urgent in environmentalism
today, namely climate change. So, we don't have
a law that addresses that. In between, American
politics has become so fractured and polarized
that we seem to not be able to muster consensus
on anything short of the Epstein files, which,
as you may know, yesterday got a ringing endorsement
from the US Congress. I think this was the - most -
closest to unanimous consensus that we've seen.
So on environment, we don't have anything approaching
that sort of a consensus. So it's clear that
we cannot enact new legislation to confront a
very important problem. What does the law do?
The law uses its ingenuity to say, well, are
there ways that we can stretch the meaning of
the old words to cover a new problem? For that,
of course, you have to go to the wording of the
law, and the Clean Air Act has this word 'endangerment'.
So anything that endangers public health and
to some degree public welfare and is airborne
can be regulated under the Clean Air Act. So,
in 2009, the Environmental Protection Agency
finds that six greenhouse gases endanger public
health. That sleight of hand, if you will, or
bowing to scientific consensus, if you will,
brings the problem of climate change within the
regulatory ambit of the Clean Air Act. It's no
longer ultra-virus in any sense. It becomes
part of the implementation of the Clean Air Act.
So lawyers are intelligent and they recognise
that if there's a hook on which you're hanging
a set of obligations, if you destroy the hook,
the obligation disappears. So, in the Trump administration
now, there is an effort to get EPA to deny and
pull back its endangerment declaration. So, it's
sobering in a sense that the entire regulatory
might of the largest economy in the world to
deal with a problem that is confronting all of
humankind rests on a scientific finding ratified
in law. And it's a declaration. I mean, that's
even one could ask, well, what kind of legal
beast is this anyway? What is a declaration?
But everybody recognizes that if you want to
build a lawful world, you really can't hack away
at that declaration. And if you remove it, it
will dismantle the US government's capacity to
deal with climate change without new legislation.
So that is a big deal, yet hanging on a triviality
in a sense. And it's that sort of contradiction
that I find truly fascinating in the sort of
joint study of STS and legal studies. Yeah, I
guess what I pick up from that is that there's
this importance in two things: in terms of language
and the use of, I guess, word and language to
determine something, and then from that, it's
kind of categorising something as being scientific
or political, and kind of those being seen as
separate aspects. And I guess what you say is
that science is seen as something that we can
accede to, and then they can, kind of, allow us
to push forth certain regulations. But would you
say then, maybe, perhaps, judges may be inclined
to categorise certain things as scientific if
they want to see certain results? I think the
judges can both declare something to be scientific
and undeclare it as well. So, if a judge is persuaded
that a certain kind of testimony should not be
allowed into court, there's a great deal of discretion
to say that the person bearing that expert judgment
is not qualified on a number of grounds. That's
a very obvious and everyday kind of occurrence:
are going to let this expert come in? And,
you know, it's one of the talents of modernity
that we figured out how to generate experts for
almost anything. So, in the waning days of the
COVID pandemic, when we had nothing better to
do other than sitting at home and reading newspapers
or whatever, I was quite amused at the sheer
inventiveness of the category of 'expert'. So, I
remember one article talking about the effects
of the pandemic on [ethnically] and racially mixed
couples. Now, it had not occurred to me that
this was a problem to even think about. But what
left out of me from that fluff piece was that
they had consulted experts. So, who would have
known before the pandemic that there were experts
on how a pandemic affects mixed couples? You
know, so it struck me that that was a brilliant
example of our inventiveness in saying, give
me a problem, any problem, and I'll find you
somebody who can speak with authority about it.
That is the expert. But equally, the law is extremely
good at deconstruction. So, the law can take apart
the qualifications and say, you know, you're
doing nothing more than what a lay person would
have done, or you didn't have the qualifications
you say you had, or this particular type of problem
is not within your domain of expertise. And the
law continually, judges continually make those
moves. So in a sense, I think that the upper
hand very often remains in the court system,
in the legal system, to allow in or not allow
in people that would be considered experts. And
sometimes it's a very good thing and other times
it's problematic. So there are definitely forms
of expertise that are not relevant to the normative
question that should be asked. And then it becomes
dangerous to rely on the separate authority of
science and technology to sidestep, in a sense,
the normative question, and substitute an alleged
shared respect for science and technology to
override what should have been the normative
question being asked. So one sees risks in either
direction, either setting aside what should be
given respect within science or invoking scientific
authority to sidestep a question. And one sees
both of these kinds of dynamics playing out.
So, you know, my message to legal scholars is,
you know, become attuned to those particular
dances. It'll make you a better advocate for
the positions that you want to stand for. It'll
also make you a better social critic about when
not to over-rely or not to under-rely on the
achievements of science and technology. A lot
to think about there, thank you. I think we should
move on to the discussion of issues in the realm
of intellectual property and inventions, which
you've written much about in the context of STS.
And I think the discussion will be illuminating
for viewers to appreciate the broader positions
you put forth as well. So, looking at, with regard
to patents, you pointed out that as a society
we act with the implicit assumption that invention
is necessarily aligned with the public good.
What is the danger of this and what role do the
courts play? So, I think that the danger of patents
as a guardian of the public good goes way back
to the theory of patents themselves. So, the
idea has somehow been that if you give somebody
exclusive power to benefit economically from
their intellectual property, this will lead to
greater inventiveness in society. Plus, there's
a kind of Lockean argument that the inventor's
labour went into producing the good in question,
and therefore they should be allowed to benefit
from that. There's very little evidence that
inventiveness works for that reason. I teach at
Harvard, but down the street in Cambridge, Massachusetts
is this other great university, the Massachusetts
Institute of Technology—MIT. And MIT's self
-image is that it is the school for nerds. And
nerds are defined as people who love to tinker
with things, not because they necessarily have
dollar signs dancing over their heads, but because
in today's undergraduate parlance, it makes cool
things. So I think that there's a lot of sociological
evidence that people do like to tinker, that
they do get ideas and they make cool things,
as much in legal argument as in technology, by
the way. So, it's not clear that the economic
theory underlying patent law is, in fact, something
that stands up to sociological analysis. But
setting even that aside, patents can become a
safeguard or a safe place for people to retreat
to, to avoid inventiveness. So, the phenomenon
of evergreening in the pharmaceutical industry
has been cited as one of these places that could
be seen as a pathology of IP law, that you can
take a drug and tinker with things that have
very little to do with novelty. So, you can, for
instance, change the delivery. It used to be
an inoculation and now it's a pill, or the pill
itself is configured in a way that alters its
uptake into the body. Nothing new has been learned
about biochemistry of the cure itself, but something
has been done enough to give people an added
length of time to essentially skim the profits
from that invention. So, this is an entire industry
where the argument has been made that from an
economic standpoint, the incentive structure
just isn't working in a way that would produce
public benefit. And then, last but not least,
you can actually, if you have a powerful entity
with intellectual property rights, it can keep
other people out of that domain of experimentation.
So, this was shown legally in connection with
the patent on breast cancer genes that a company
called Myriad owned for a time. Their argument
was that since their scientists had isolated
the gene, they were entitled to hold intellectual
property rights. But they were very vigorous
about enforcing those intellectual property rights,
and they didn't want anybody else to do work
on breast cancer diagnostics or cure or therapies,
and in effect they were creating a monopoly on
how this major prevalent disease, one of the
biggest killers, especially of women, could be
approached, because their intellectual property
rights were setting up a kind of high barrier
over which very few people could climb. So, that's
a fairly recent and rather poignant example of
the way in which intellectual property not only
prevents inventiveness inside of the allegedly
inventive institutions, but actually keeps out
people who have a better idea how to do this
quicker, cheaper, differently. Yeah, that is
very interesting, I guess, in a sort of way
you might consider potentially that the rights
of intellectual property is not an outright right,
that potentially it may need to be balanced against
other social interests, and I guess that goes
into a lot of underlying political theories then
as well. I was considering when looking at your
book The Ethics of Invention, I believe published
in 2016, you state that new technologies have,
and I quote, 'muddied the line between persons
of property by allowing persons in effect to
distribute aspects of their selfhood in ways
that were once unthinkable.' [See Chapter 7]. And indeed, questions
surrounding the object of property—kind of, what
we can create as an invention or the sort or
what we can disperse—and ownership are difficult
and evolving, especially in light of biotechnological
developments. However, there's another aspect
that I think has been very recently discussed
and debated, which is that since your book, there's
a rise in the question of the subject, other than
the human subject, regarding inventions and patents.
So, there was this case, just to outline for our listeners,
of Thaler v Comptroller-General, which was
in the Supreme Court in 2023. Dr Stephen Thaler,
he put forth many, many cases internationally
and a lot of international courts. This was that
apparently - allegedly - his AI machine had created
an invention, and instead of claiming for a patent
for himself, he claimed that the AI should be
recognised as the owner of the invention. And
this was rejected in the UK Supreme Court. However,
this raises a lot of questions potentially in
the future of intellectual property and technological
developments. So, I guess my question for you
in light of that case is: what challenges,
if any, may this debate present to what society
thinks about the rights and values attached to
being human, potentially even, which is a lot
more broad of a question, and could this maybe
even challenge our moral basis for recognising
inventions? Quite a heavy question. I think that
the entire AI area, even more than the biotechnological
developments of the past few decades, raises
the question of what are the boundaries of the
human in a very frontal way. And there's no question
that we're delegating to these machines to some
degree aspects of history and memory that operate
differently in the mechanical environment or
in the computerized environment from the way
they do in human minds. So, I by now have a repository
of, you know, a couple of decades of photographs
and calendar entries and so forth, and recently
I had to fill out a very complicated set of forms
that wanted to know everywhere that I had travelled
for the last ten years, and it would have been
impossible to remember most of these things, but
of course we have these aids that now allow us.
Now, I think that one thing that's not often discussed
but should be is that it actually changes one's
understanding of what your responsibility is.
I mean, forgetfulness might have been okay at a certain
point, but it's perhaps harder to maintain if
there are records and anybody could have access
to those records. So, I think that in legal cases
where, you know, some kinds of falsification or misstatements
might have been allowable, as long as memory
was human, there may be slippages where people
are, where the standards of responsibility for human
beings will change. Now, I realize that you're
asking the opposite question: when is it that
we - I mean - is it the case that we will be attributing
increasing ideas of human-ness to technology?
So there's a part of, you know, my ironic sensibility
that says, well, in medieval times, we used to
do this, in the sense that creatures like termites
were held responsible for the eating away of
the foundations of buildings, and people actually
had excommunication ceremonies to get rid of
pests, because they were given, in a sense, responsibility
and, you know, the comic poem, 'The Jackdaw of
Rheims' has a corresponding sort of thing. And
it's also a little bit ironic that right now,
one of the big movements in environmental law
is rights of nature. And people somehow don't
put rights of nature—where the left-leaning, progressive
youthful idea is of course we should be conferring
rights to nature—together on the same page as
should we make the AI a human agent. But it's
a similar sort of question: to what extent should
we take an idea of agency that we have previously
located phenotypically inside of human bodies
and human minds, and say, well, now it's distributed?
It could affect our expectations of humans, as
I was saying already before, that your obligation
to remember and keep track of things may be subtly
shifting when you have all these records. I mean,
you know, in social media, there's a kind of
validation of this because people are often pilloried
and lose their positions and their livelihoods
because it's found that 10 years ago they may
have written something that they today would
repudiate. So, can you repudiate it if you've
put it in a machine, then is that now with you? I
mean, imagine the picture of Dorian Gray if the
picture instead of being up in an attic is actually
side by side with you all the time. You know,
if you're joined at the hip and you and your
alter image, the digital subject, the digital
'you' is accompanying you throughout your life.
I mean, you know, it's a metaphysically interesting
set of propositions. And I think the question
of agency goes both ways. I mean, when does it
get transferred from the human subject into something
that is so humanoid? And of course, we are creating
these empathy bots. I mean, we're purposefully
blurring the lines. Now, I think it's an open
question what the answer is. And in my future
work for the next four or five years, I actually
hope to be exploring this in a multicultural
way. Because I think that human values are different
depending on what legal and philosophical traditions
people are coming from. What is the nature of
the self? And the word 'self', we're used to that,
but when I write two words in prose, 'our' and
'selves' as separate words, my spell check is always
trying to discipline me into writing it as one
word because it recognizes 'ourselves' as one word,
and not 'our selves' as two words. So, you know,
it's a very subtle reminder that we're actually
putting questions on the table about which - you
know - 'Is my spell check actually entitled to
agency?' that we haven't asked those questions
before. I think that people coming out of simply
even a common law and civil law tradition may
have very different ideas about this, because
you were talking about property before, and property
is understood in a different way in the common
law and the civil law. For instance, in the common
law, the idea of a bundle of rights, that it's
a set of, you know, sticks tied together and you can give
away a piece of it or a piece of that. And that's
not quite the same way that civil law traditions
think about it. Similarly, I was never taught
in my common law property class that the right
to destroy the object is actually an inalienable
part of your property rights, but in the civil
law tradition that is somehow built in. So, I
think there are interesting discussions. I mean,
you mentioned that you're going to be studying
French law, and I think you'll discover that
even a question like this on what basis might
you record rights to a non-human object, but
then is it non-human when you've actually built
it to track humanness? To what extent are we
already sharing responsibilities that to some
degree are precursors of the digital world? If
you just think of ordinary negligence law. We
try to make it natural, but in effect, if you
have a car accident and you're blaming - you're
choosing whether to blame the manufacturer of
the car or the conduct of the driver, you're
already doing that kind of bifurcation because
back of the manufacturer of the car are designers.
So, recently in the US when Volkswagen Corporation
was discovered to have defeated EPA's environmental
tests by building in an algorithm into its cars,
there was a question: was there liability for
this? So, just for our listeners, the algorithm
faked the performance of the car. The algorithm
recognized when the car was in test conditions,
and in those test conditions it behaved better
in terms of fuel efficiency, and when it was out
on the road it behaved worse. So, you would have
more emissions in actual road driving than in
test conditions; you could pass the test and
then you would be polluting. Well an engineer
was held responsible for this. But one could
have imagined the situation. I mean, in other
words, there was a case where do you attribute
it to the machine, and that road conditions are
always different from test conditions anyway?
Or do you attribute agency to this algorithm,
but not to the algorithm, but to its designer?
So, in a sense, we've trodden this pathway already,
and we have a set of answers. which are in a
sense precedents, but one has to - where the ingenuity
of the legal imagination will come in, is partly
in deciding what are the analogies, which are
the things that we will mobilize to address these
sets of questions that look all new. We should
always relate them back to some experiential
precursor. Yeah, no, absolutely fascinating.
I actually noted that you talked about nature
and personhood. And personally, I have actually
been looking at these two questions. And I find
it very interesting that AI and personhood, that's
sort of still currently in discussion. But the
idea of nature and attributing personhood to
nature, for example, rivers and trees, that was
kind of a big thing in 2017 when New Zealand
first attributed the Wanganui River to be a legal
person, that kind of really quickly died off
as like a very feasible idea in environmental
law, at least from what I've seen, especially
in the culture in English environmental law.
But I do find it interesting that—I'm not sure,
I'm just posing this to you—that potentially
our interest in attributing personhood to
AI is because it's our creation and kind of we're
trying to make it more human or humanoid. Whereas
for nature, some may argue that actually personhood
for nature may be more important because ultimately
humans cannot exist without nature, and nature
should have standing in our legal system if anything.
But it's the fact that it's not kind of in essence
related to us and our creations and what we do
that we might be less willing, potentially, to
go down the avenue, unless you bring up indigenous
rights in different cultures' understanding of
how nature operates in society. I wonder what
you think of that? Well, I think that the I was
talking before about comparative law is a way
into different sensibilities about about the
kinds of questions you're raising about where
do we feel differently about rights for nature
because we're dependent on nature. The category
of nature itself depends on where you're situated.
If one were to talk about rights of nature in
any historical sense, first of all, in America,
there was a very famous law article written in
1972 called 'Should Trees Have Standing?' So, this
was written by a lawyer. This is way before New
Zealand grants rights to a river. And also, if
you look at other countries like the Ecuador
Constitution, or, for that matter, even the Indian
Constitution, you find elements of rights to
nature thinking going back already several decades.
Since 2000, it's become current and popular in
environmental discourse. We're talking about
the Anthropocene, which is a term that recognizes
that humans and nature or society and nature
are completely linked and interwoven. So that, then, from
a legal analytics standpoint, what becomes interesting
is the separation. You know, in a way, we're
so driven to new things. Rights of nature is
a new phrase and everybody runs off talking about
rights of nature. But supposing we instead talked
about the dislocation, when is it and how is
it that we started thinking about this thing
called nature as being out there anyway and
separate? And people might relate it to the scientific
revolution when it became possible for us as
human agents to 'other' this thing called nature
and treat it as different. So what you could
be seeing now is a grand course correction that
says what happened at the Enlightenment was a
kind of faulty separation, largely in Western
and Northern societies that bought into experimental
science. as a way of knowing the human condition,
but that for the vast majority of humanity this
is not a separation that ever took place that
completely anyway, that the world is in a sense
much more hybrid, and that it is therefore a kind
of product of a way of thinking that creates
these boundaries in the first place. Thank you,
so much for that wonderful conversation with
us, Professor Jasanoff. As our final question,
we'd like to ask if you could communicate one
idea from your lecture series to a public audience,
what would that be? I'm here in Oxford delivering
the Clarendon Lectures on law. So, I think that
the first message is about the mystery and power
of the law as a creative instrument, as an instrument
that is every bit as important to us as science
and technology are. I think as a society, or as
modern societies, we have tended to get a bit
seduced by the power of science and technology—
we often talk about law as if it is an also round
entity. One often talks about how the law is
lagging behind science and technology. The sense
I want to restore to people is that law is more
ancient than science and technology. How we live
together is ultimately of greater concern to
us than facts that we know. And I think I would
like people to recover their sense of law, not
just as an instrument that makes it easier for
people to make money or for people to retain
rights to the things that they have invented,
but as a vehicle through which people assert
their moral agency over the ways in which the
world is changing. In short, I would like law
to be seen as an inventive, creative, and morally
essential space, and not delegate those capacities
to science and technology, above all not to AI.
Thank you so much, Professor Jasanoff.
Thank you for listening to our podcast episode for today.