Cyborg Imaginary

• NON-Imaginary Encounter on the Clapham Omnibus

What was on its owner's mind? Feeling the sea breeze caress his cheeks at the Luquillo Beach, maybe. Knocking on the door of a dearly missed relative in the picturesque Old San Juan neighbourhood, maybe. All such dreams must have evaporated the moment the powered mobility assistance device was returned to him from the cargo hold after the flight to Puerto Rico in October 2009, wrecked and of no use whatsoever. Worse, the nearly quadriplegic war veteran, previously leading a fairly independent life, was left bedridden for the next eleven months, until a replacement for the device reached him. 

When he sought compensation for the pressure ulcers developed as a result and costs incurred in hiring people to run errands only his device and no manual wheelchair would empower him to, the airline compared his case to an automobile accident with an absent vehicle owner—they did not inflict damage on him, only on his device. The suffering he went through, they argued, was unforeseeable to them. To this, his attorneys asserted that the device was a vital extension of him and so harming the former was harming the latter. They proposed to test in court the reasoning that substituting bodily parts with machines would not make the resulting human-machine hybrid a different person from the human. Probably thinking them crazy, the airline's representative gave out a compensation sum which satisfied the device owner. One attorney detailed this account for posterity—humans, human-assistive device cyborgs, human-iPhone cyborgs alike—in a journal article.*1

• What is Cyborg Imaginary?

The cyborg imaginary is one of the rare, exciting instances where legal strategising intersects with science fiction and brushes shoulders with the phantasmagorical. Enveloped within the term, as conceptualised in this article, is a constellation of theories expanding with the onset of the Fourth Industrial Revolution while united by not only their connections to cybernetic organisms but also their admission of room for hybridity in issue conceptualisation and problem-solving in the humanities. The most prominent among them, at the time of writing, is that published by feminist scholar Donna Haraway in her 1985*2 essay 'A Cyborg Manifesto', which repudiates notions of divides between organism and machine, man and animal, self and other, nature and culture, male and female, truth and illusion, etc.*3 Her ideas have apparently inspired scholarly expositions in diverse disciplines.*4

Strains of cyborg theories proffered by legal thinkers include:

1. Bundling flesh and machines—Several legal theorists argue that the increasing incorporation of mechanical parts such as pacemakers, bionic prostheses and microchips into our bodies necessitates reforms to current laws, which have been shaped by a long history of Homo sapiens existence in which needs and vulnerabilities were nowhere as intimately connected to technology.*5*6*7 Venturing further, some commentators like technology law professor Timothy Wu, based in the United States, suggest that incorporation is not necessary for a mechanical item to warrant greater human rights scrutiny—its pervasiveness, our dependence on it, and its richness of information about us, as is the case for smartphones, are sufficient cause for concern.*8*9
2. Mutualism between the natural and the artificial—Michael Burger, an environmental law academic also in the United States, advocates the treatment of nature as neither a colony of Man nor a realm separate from humans.*10 Instead, narratives shaping our laws should recognise that the two sides rely on and can benefit from each other.*11
3. Working like a computer system—In the eyes of Finnish civil law professor Mika Vlijanen, human bodies, psyches, data, knowledge, technological equipment, and the ways they are organised function in various combinations like amenable computer systems with organic components under a minority of regulatory approaches.*12 In this sense, groups of people working together and individual humans, augmented or unaugmented by technology, are akin to cyborgs as long as they are capable of capturing, processing and generating output (e.g. behavioural adjustment) from information.
4. Groundlessness—Bradley Bryan, an associate counsel and academic in Canada, sees particular similarities between modern positive law (i.e. laws laid down by human authorities, not invoked as natural moral principles) and Haraway's rejection of preordained natures.*13 Modern positive law has in place of direct moral grounds the mandate to coordinate and look after the interests of a jurisdiction's members, whatever these interests are determined to be.*14

• How Can Cyborg Management be Realised?

1. Bundling flesh and machines—Details about possible solutions are scant at the time of writing but would likely include curtailing merchants' and third parties' rights to exploit and intervene in mechanical implants/accessories in use while extending users' rights to bodily integrity, privacy, autonomy, etc. to those mechanical items. So far, the point of this approach lies more in highlighting the need to address severe threats posed by the items to human rights.
2. Mutualism between the natural and the artificial—In contrast to associations of nature conservation with keeping natural entities the way they are or restoring them to the way they were, assisted migration under the US Fish and Wildlife Service regulations, for one, can entail relocating endangered species to a habitat that has grown suitable as a result of climate change or even a man-made, tailored habitat.*15 In our daily lives, a parallel would arguably be upholding or salvaging ideals through updating traditions instead of clinging on to rituals which have turned impractical or ineffective with time or been found ethically problematic. To take the example of celebrating relationships on Christmas, that might mean sending environmentally friendly e-cards instead of paper Christmas cards and performing volunteer activities together instead of laying out lavish, wasteful dinners an affluent family has lost feelings for.
3. Working like a computer system—By dictating, for instance, what a committee should investigate and the types of people (with their varying education resources,*16 general life experiences and sensitivities, as one may add) who should make up that committee, a statute controls the information inputs that the cyborg these people constitute receives.*17 Further rules, such as thresholds for action*18 and analytical frameworks to adopt,*19 serve as algorithms that, along with mundane systems architecture elements like computing equipment and seating arrangements,*20 help determine how the committee cyborg processes the information to generate societally desirable outputs. Notably, many stipulations are actually framed broadly.*21 Just as a fictional cyborg usually enjoys some amount of autonomy, human group cyborgs are, on the whole, permitted margins within which to make their own decisions and develop their own style of working. In the case of humans who each constitutes cyborgs in and of herself, information inputs can be engineered psychological triggers (see 'Nudge') firing off cognitive circuitry,*22 while information processing units can include cultural software plugins that codes of conduct seek to cultivate,*23 to name some examples. 
4. Groundlessness—To reduce uncertainty about the management of interests in the absence of direct moral grounds,*24 modern positive law is said to tacitly adhere to what British legal philosopher H.L.A. Hart called a 'rule of recognition', which dictates general features that mark legitimate and valid legal rules.*25 Such features may include origins in a certain law-making body,*26 constituting long-held customs,*27 compatibility with a constitution,*28 etc. Support for inclusion of a feature stems from common acceptance among officials and, sometimes, ordinary subjects.*29
   
   
   

•  Strengths of the Cyborg Imaginary

1. Bundling flesh and machines—The 'cyborg' label obviously leaves a deep impression, and getting a problem its deserved attention is one major step towards attracting solutions. Neither is this label merely flashy rhetoric, because present technological reality and trends do require us to break away from deep-rooted dichotomous thinking in which machines are automatically regarded as distinct from our bodies and thus generally deserving of smaller penalties than organic body parts when damaged, possibly even if they serve vital functions.*30
2. Mutualism between the natural and the artificial—This mentality accommodates flexibility and pragmatism. Nature, after all, does not stand still even without human interference, let alone in the face of environmental disruptions which have already been set into motion. Simply stepping aside might facilitate the shifting of blame to natural forces as pollutants and already upset ecological balances slowly exert their effects in the decades to come. It is more realistic and important to rescue lives such as endangered species than to preserve the whole picture.*31 
3. Working like a computer system—Viljanen claims that, compared to incentives and sanctions, strategies compatible with this perspective have the potential to infiltrate and modify legal subjects' fundamental mentality.*32 In addition, whereas other methods may pinpoint the desired end-states but do not show the way, these strategies create processes that would lead to the end-states.*33 Strengths of the 'Nudge' approach also apply. 
4. Groundlessness—Modern positive law's relative freedom from any fixed set of priorities and beliefs offers the flexibility to (i) seek harmony among conflicting needs and values as well as (ii) evolve with changing circumstances and thought over time. Where freedom is curtailed, the metaphor of a cyborg struggling to escape pre-existing natures even as its thinking has long been unconsciously steeped in one can remind ourselves of law's detected and undetected limitations.*34 Read along with the next section, that metaphor would be something to really chew on for a morally agnostic corporate manager who wants to operate an analogous microsystem honest about its aspirationally pure motive of business efficiency. 

• Vulnerable Spots

1. Bundling flesh and machines—Legal thinkers have determined that the actual boundary between body and mechanical bodily extensions / implants is fuzzy, but when exactly does a boundary exist (i.e. what properties and functions warrant body-like, or at least closer, protection?) and what about the boundary between mechanical bodily extensions and pure mechanical objects in the environment? Exactly how pervasive, depended upon and rich in personal information should something be to be seen as bodily extensions? Should an apartment's intelligent air purification system be deemed an extension of its occupants' respiratory system, especially in a heavily polluted city? What about a black-box-equipped car in a town with poor public transportation services? Since there is a spectrum along which mechanical entities are coupled to our bodies and support our functioning, the boundaries eventually decided upon may well be arbitrary. Even though arbitrary cutoffs have not obstructed the success of many regulations, they do result in some amount of injustice. Indiscriminate application and development of the concept may also stretch credulity and thereby diminish stakeholder support. In many cases, mechanical and biological parts are unlikely to possess the same moral status. A wheeled mobility device or detachable prosthetic arm, for instance, does not carry inherent risks of blood loss, although damage to them is still reprehensible. Devastating as the loss of a wheeled mobility device is, the loss of limb function in the first place is normally far more excruciating. What makes the attention-grabbing qualities of the 'cyborg' term a double-edged sword as well is the potential for this label to compromise rational deliberation and even exacerbate prejudice against disabled technology users, depending on an audience's associations ('cool', 'creepy', etc.) with the term. One last pitfall is a narrow focus on individuals that neglects societal level effects and individual-society interactions, possible instances of which are, respectively, neuroprosthetics arms races and mainstream academic/work cultures with no room for disabled persons' technology-mediated extra-sensory modalities of analysis (e.g. a blind critic's review of paintings' aural qualities based on musical maps some novel gadget translates them into). 
2. Mutualism between the natural and the artificial—Eternal coupling of the two will upset those who dream of a return to unadulterated states, liberation from technology, or stability.*35 With the artificial, care often has to be taken to ameliorate or overcome repugnance towards entities too evolutionarily unfamiliar to human society.
3. Working like a computer system—The achieved computational setup induces a proclivity to act in a desired manner, but whether it will indeed do so is very uncertain in Viljanen's view.*36 Successful modification of legal subjects' fundamental mentality is not an unqualified good either, because it diminishes their autonomy,*37 including the ability to critique or reject the regulatory goal when it is unwise or unjust. Caution has to be paid as well to scenarios where the potentially dehumanising image of a person as a mechanical being, albeit an elaborate one, gradually warps holistic attitudes of decisionmakers consciously adopting such strategies, turning off supporters in the long term regardless of unprotested mental colonialism in a few localised areas.*38 At the end of the day, both fictional cyborgs and humans stray from the computer metaphor in that they deserve rights, have dignity and emotional needs, and are generally capable of original thought and inventing new cultural software. Weaknesses of the 'Nudge' approach also apply. 
4. Groundlessness—Flexibility is a double-edged sword. The ideological rootlessness of modern positive law translates into a vagueness and openness to revision that undermine its ability to offer precise certainty and any stakeholder group's ability to maintain legal protection of any particular cause. At the same time, the law is not thoroughly rootless. In depending on the rule of recognition, which is in turn dependent on official and, sometimes, public acceptance, it is rooted in the will of those holding relevant power, be they a democratic or otherwise overwhelming majority, a judiciary, recognised lawmakers, or more disorderly but no less politically influential figures in a state's history who, for instance, colonise territories, nominate judges and lobby for legislative changes. That subjects law to potential arbitrariness, oppressive usage, vested interests, and where the will for reflection is lacking, outdated and out-of-place customs. Notably, too, it is probably difficult for any system of administration to be truly free of biases, insofar as biases, known and unknown to mankind, penetrate human consciousness everywhere. Hence, unspoken ideologies can perhaps still run through the veins of legal systems freely (e.g. beliefs about relationships between certain character traits and witness credibility), subject to little scrutiny and counteraction. One set of roots that is not only transparent but also acknowledged as a basis for action does exist: modern positive law, the grounds for itself.*39 While the transparency and legitimacy support troubleshooting and autonomy, they also entrench legal stipulations on rule permanency and revision procedures, posing potential great difficulties for radical yet necessary reforms.  

• Food for Thought

For all their appeal, fancifully 'packaged' scholarly concepts may attract derision for a variety of suspected intentions: attention-seeking, using unusual presentation styles to camouflage lack of thought innovativeness and/or substance, deliberately weaving in elements from popular culture or an unrelated discipline out of boredom with one's own discipline, etc. Intentions are not irrelevant—knowledge of possible ulterior motives behind a piece of communication helps one guard against unapparent influences and understanding what makes a theorist tick can assist counter-persuasion efforts. However, it is unfair to make accusations of such motives without concrete evidence. Furthermore, even if theorists start off for the wrong private reasons, robust reasoning techniques may still bring them to the correct places by coincidence or the sheer force of logic. The soundness of their arguments has to be evaluated on its own merits. Commenters who focus on the possible emotional bases of arguments at the expense of intellectual engagement with the points raised may not realise that they are patronising the opinionators.

One way of evaluating those merits without undue influence from style is to substitute arresting terms with plain words and search for more straightforward means, if available, of explaining the ideas. It would probably also help to acquire perspective by (i) generating and evaluating alternative theories and (ii) applying the spirit of the fancy-sounding approach to similar but excluded subject matter. What if, for instance, life-saving pills and donated blood waiting to be transferred are also considered parts of the body just as shreddable skin cells and existing blood are? Would a relatively literal cyborg model, reminiscent as it may be of some beloved science fiction work, appear too narrow in scope or awkward? To their credit, more abstract versions of the cyborg model, in banking on the notion of fluid identities/boundaries, possess admirable versatility. Even so, do not forget to ask ourselves, too, whether a concept under examination is merely dressed-up common sense or established knowledge. Stylistic novelty, while sometimes of public benefit, should be credited as what it is, not as content novelty.

Overall, a wholesome reading diet and a socially conscious communications portfolio should not cover only fanciful ideas and omit mundane yet crucial topics. For readers, systematic navigation of key topics would be a more commonsensical approach to self-improvement than fun factor-led media consumption habits, through which exposure to important concepts occurs by chance. All the same, useful takeaways should be cherished, whichever route someone happens to find them on. We may even agree that some critical exploration of unconventional ideas is necessary, as these ideas, even when overrated or unsound, can stimulate the intellectual creativity and energy to work out viable solutions for the many problems in our lives and societies. For theorists following a long line of traditions and working in institutions, in particular, cross-breeding of disciplines and thoughts from different realms of society may encourage questioning of assumptions and ameliorate organisational groupthink. 

Now, the question for non-legal organisations is, if legal scholarship, with its staid reputation, acknowledges and embraces cyborgs, are you living up to your possibly more vibrant image by accepting thought diversity?

• More Servings

www.springer.com

*1:Linda MacDonald Glenn, 'Case Study: Ethical and Legal Issues in Human Machine Mergers (Or the Cyborgs Cometh)' (2012) 21 Annals Health L 175.

*2:Jackie Orr, 'Materializing a Cyborg's Manifesto' (2012) 40 Women's Stud Q 273.

*3:Donna Haraway, Manifestly Haraway (University of Minnesota Press 2016) 10-12, 32, 59-60.

*4:See e.g. Matthew Gandy, 'Cyborg Urbanization: Complexity and Monstrosity in the Contemporary City' (2005) 29 Int J Urban Reg Res 26, 27, Tommaso Bertolotti, Selene Arfini and Lorenzo Magnani, 'Of Cyborgs and Brutes: Technology-Inherited Violence and Ignorance' (2017) 2(1) Philosophies <https://doi.org/10.3390/philosophies2010001> accessed 6 September 2018 and N Katherine Hayles, 'Unfinished Work: From Cyborg to Cognisphere' (2006) 23 Theory Cult Soc 159.

*5:Woodrow Barfield, Cyber-Humans: Our Future with Machines (Springer 2015).

*6:Muireann Quigley and Semande Ayihongbe, 'Everyday Cyborgs: On Integrated Persons and Integrated Goods' (2018) 26 Med Law Rev 276.

*7:Woodrow Barfield and Alexander Williams, 'Law, Cyborgs, and Technologically Enhanced Brains' (2017) 2(1) Philosophies <https://doi.org/10.3390/philosophies2010006> accessed 6 September 2018.

*8:Anderson Court Reporting, 'Constitution 3.0: Freedom, Technological Change and the Law' (Brookings Institution, April 2012) <https://www.brookings.edu/wp-content/uploads/2012/04/20111213_constitution_technology.pdf> accessed 7 September 2018.

*9:Benjamin Wittes and Jane Chong, 'Our Cyborg Future: Law and Policy Implications' (Brookings Institution, September 2014) <https://www.brookings.edu/research/our-cyborg-future-law-and-policy-implications/> accessed 7 September 2018.

*10:Michael Burger, 'Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization' (2013) 46 Akron L Rev 909, 927.

*11:Burger, 927.

*12:Mika Viljanen, 'A Cyborg Turn in Law' (2017) 18 German LJ 1277.

*13:Bradley Bryan, 'The Constitution and the Program: Haraway and the Politics of Cyborg Emancipation' (2003) 19 Austl Feminist LJ 93.

*14:Bryan, 99.

*15:Burger, 928.

*16:Viljanen, 1293.

*17:Viljanen, 1289.

*18:Viljanen, 1297.

*19:Viljanen, 1295.

*20:Viljanen, 1293.

*21:Viljanen, 1290 and 1296.

*22:Viljanen, 1299.

*23:Viljanen, 1300-03.

*24:HLA Hart, The Concept of Law (3rd edn, Oxford University Press) 92 (noting that the need for a rule of recognition arises in communities that lack, among other things, shared beliefs).

*25:HLA Hart, The Concept of Law (3rd edn, Oxford University Press) 94 and 105.

*26:Hart, 95.

*27:Hart, 95.

*28:Stephen V Carey, 'Comment: What is the Rule of Recognition in the United States?' (2009) 157 U Pa L Rev 1161, 1192-95.

*29:Hart, 116-17.

*30:Quigley and Ayihongbe, 289-91 and 298.

*31:Burger, 927-28.

*32:Viljanen, 1283.

*33:Viljanen, 1308.

*34:Bryan, 111.

*35:Burger, 931.

*36:Viljanen, 1308.

*37:Viljanen, 1308.

*38:Such localisation could be true under the assumption that Viljanen's observation about the strategies' limited usage so far is indication of their future applicability.

*39:Bryan, 108. Bryan, however, is of the view that modern positive law's circularity is not transparent to itself—see Bryan, 102. In contrast, the transparency in this paragraph refers to the visibility of legal instruments and clauses.