Law, Technology and Science Fiction

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Technical Legality: Law, Technology and Science Fiction

Author Tranter, Kieran

Published 2010

Thesis Type Thesis (PhD Doctorate)

School Griffith Law School

DOI https://doi.org/10.25904/1912/2422

Downloaded from http://hdl.handle.net/10072/366905

Griffith Research Online https://research-repository.griffith.edu.au

Technical Legality: Law, Technology and Science Fiction

Kieran Tranter

Bachelor of Science (Griffith University)

Bachelor of Laws (Hon 1) (Griffith University)

Socio-Legal Research Centre,

Griffith Law School, Griffith University, Queensland

Submitted in fulfilment of the requirements of

the degree of Doctor of Philosophy

11 May 2010

For Sophia and Alexander

ii Abstract

This thesis concerns the intersections of law and technology, referred to here as

‘technical legality’. It argues that reflection on technical legality reveals the mythic of modernity. The starting point for the argument is that the orthodox framing of technology by law – the ‘law and technology enterprise’ – does not comprehend its own speculative jurisdiction – that is, it fails to realise its oracle orientation towards imagining the future. In this science fiction as the modern

West’s mythform, as the repository for projections of technological futures, is recognised as both the law and technology enterprise’s wellspring and cipher.

What is offered in this thesis is a more thorough exploration of technical legality through taking science fiction seriously. This seriousness results in two implications for the understanding of technical legality. The first implication is that the anxieties and fantasies that animate the calling forth of law by technology become clearer. Science fiction operates as a window into the cultural milieu that frames law-making moments. In locating law-making events – specifically the making of the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car

Act 1909 (Vic) – with the clone ‘canon’ in science fiction (specifically Star Trek:

Nemesis (2002)) and H.G. Wells’ scientific romances, what is offered is a much richer understanding of how the cultural framing of technology becomes law than that provided by the ‘pragmatic’ positivism of the law and technology enterprise.

The second implication arises from the excess that appears at the margins of the richer analyses. Exploring technical legality through science fiction does not remain within the epistemological frame. Each of the analyses gestures towards something essential about technical legality. The law and technology enterprise is grounded on the modern myth, which is also the myth of modernity –

Frankenstein. It tells a story of monstrous technology, vulnerable humanity and saving law. The analyses of the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car Act 1909 (Vic) show that this narrative is terrorised, that the saving law turns out to be the monster in disguise; that the law called forth by technology is in itself technological. In extended readings of two critically acclaimed science fictions, Frank Herbert’s Dune cycle (1965–83) and the recent television series

Battlestar Galactica (2003–10), the essential commitments of technological law are exposed. Dune as technical legality makes clear that technological law is truly monstrous, for behind its positivism and sovereignty its essence is with the alchemy of death and time. Battlestar Galactica as technical legality reduces further the alchemical properties of technical law. Battlestar Galactica moves the metaphysical highlight to the essence of technology and very nearly ends with

Heidegger’s demise of Being in ‘Enframing’: monstrous technology and monstrous law reveal a humanity that cannot be saved. However, at the very moment of this fall, Battlestar Galactica collapses the metaphysical frame, affirming technological Being-in-the-world over empty ordering, life over death.

This free responsibility to becoming that emerges from Battlestar

Galactica reunites technical legality with the mythic of modernity. The modern denial of myth, which allowed Frankenstein to narrate technical legality, has been challenged. Free responsibility to becoming means a confidence with myths; it clears the way for the telling of new stories about law and technology.

Declaration of Originality

This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself.

Kieran Tranter

11 May 2010

Contents

Abstract...... iii Declaration of Originality ...... v Acknowledgments ...... x 1 Technical Legality...... 1 1. Technical Legality and the Mythic of Modernity 1 Argument and Motifs...... 8 Chapter Summaries...... 13 2. Science Fiction as Law and Culture 18 From Law and Literature to Law and Culture ...... 18 The Laws of Science Fiction ...... 26 Stage I: The Law of Technology ...... 37 2 The Law and Technology Enterprise...... 39 1. Lawyers on Technology 40 2. Fifty Years of the Law and Technology Enterprise 45 Sputnik...... 45 In Vitro Fertilisation ...... 56 Virtual Worlds ...... 70 3. The Occupation of Technical Legality 90 3 Speculative Jurisdiction and Mythform ...... 97 1. Speculative Jurisdiction 98 Science Fiction Texts...... 100 Science Fiction Images, Narratives and Tropes...... 104 Science Fiction as Meta-Emblem ...... 113 2. Western Mythform 115 Science Fiction as Western Mythform...... 116 Taking Science Fiction Seriously ...... 130 Stage II: Law and Technology Cultures ...... 135 4 Clone Hysteria and Star Trek: Nemesis...... 137 1. Clone Hysteria in Australia 138 Public Culture of Clone Hysteria 1997–2002...... 139 Australian Law and Cloning Scholarship and the Clone Canon...... 158 2. Anxieties of Cloning in Star Trek: Nemesis 170 Star Trek: Nemesis ...... 170 Clone as Double...... 173 Clone as Artefact ...... 178 Essence ...... 183 3. Monstrous Shadows 187 2006 Amendments...... 188 Law as Technology...... 195

vii

5 Motor Cars and Progressive Modernism 201 1. ‘The History of the Haste-Wagons’ 203 Motor Cars 1897–1914...... 203 Motor Car Act 1909 (Vic) ...... 210 2. Explaining the Dissociation 220 Class and the Parliamentary Debates...... 221 United Kingdom Template ...... 229 Lobbying by the Automobile Club of Victoria...... 232 3. Progressive Modernism 237 Future and Rationalism in H.G. Wells’ Scientific Romances...... 237 Legislating for the Future ...... 246 Rational Law...... 251 Law as Technology (Reprise)...... 257 Stage III: Technologies of Law ...... 261 6 Dune as Technical Legality ...... 263 1. Sand, Spice and Empire 266 2. Thematics of Dune 276 Messianism...... 277 Machiavelli...... 282 Ecology...... 287 Western Buddhism ...... 292 3. Sovereignty as the Alchemy of Death and Time 297 Leviathan ...... 298 Death...... 311 Time...... 319 Decisionism ...... 326 7 Battlestar Galactica as Technical Legality...... 329 1. Sovereigns and Subjects in Battlestar Galactica 330 Space Ships, Killer Robots and the End of Worlds ...... 331 Schmitt in Space ...... 339 Starbuck as Post-Feminist...... 353 2. The Metaphysics of Technology 363 Representations of Technology in Battlestar Galactica ...... 363 Heidegger’s Last Gleaming ...... 371 Earth ...... 380 8 Sojourn’s Ends ...... 389 1. Sojourning 389 2. The Free Space of Destining 395 Appendixes...... 402 Appendix 1: Table of JOLTs and JOLSTs 402 Appendix 2: Norman Bayles MLA (Toorak) and his Family 409

viii

Bibliography 410 Secondary Sources 410 Primary Sources 506 Legislation, Bills and Regulations...... 506 International Law...... 507 Cases...... 508 Parliamentary Debates...... 509 Historical Sources...... 510 Newspapers...... 511 Films...... 518 Television Shows...... 520 Albums ...... 527

Acknowledgments

This project has been the culmination of various intellectual endeavours over the past six years. Many people have been involved. First and foremost, I wish to thank Lyndal Sleep, whose companionship, encouragement and interest in ‘speculative fiction’ have seen the project from beginning to end. I wish to also thank my supervisors William P. MacNeil and Paula Baron, who have supported and encouraged the project. Thanks also to Shaun

McVeigh, who has supported me, along with this project, over a long period. I am also

indebted to Bronwyn Statham, who assisted with the initial analysis of the material in

Chapter 4. Finally, I wish to thank my colleagues within Griffith Law School, and also

within the wider academy, who assisted with the development of the project; in particular

Allan Ardill, Maria Aristodemou, Sandra Berns, Art Cockfield, Lillian Corbin, Rosemary

Hunter, Rob McQueen, Lyria Bennett Moses, Martha Merrill Umphrey and Vicky Saker

Woeste. I gratefully acknowledge the assistance of the Royal Automobile Club of

Victoria for allowing access to its private archive.

Several chapters of this thesis have been developed from published articles.

Elements of Chapters 2, 6, 7 and 8 first appeared as Kieran Tranter, ‘Nomology,

Ontology and Phenomenology of Law and Technology’ (2007) 8(2) Minnesota Journal

of Law, Science and Technology 449–474. A very early version of Chapter 4 was

published as Kieran Tranter and Bronwyn Statham, ‘Echo and Mirror: Clone Hysteria,

Genetic Determinism and Star Trek Nemesis’ (2007) 3(3) Law, Culture and Humanities

361–380. Much of Chapter 5 was published as Kieran Tranter, ‘“The History of the

Haste-Wagons”: The Motor Car Act 1909 (Vic), Emergent Technology and the Call for

Law’ (2005) 29(3) Melbourne University Law Review 843–877. An early version of

Chapter 7 appeared as Kieran Tranter, ‘“Frakking Toasters” and Jurisprudences of

Technology: The Exception, the Subject and Techné in Battlestar Galactica’ (2007)

19(1) Law and Literature 45–75.

I am indebted to the editors of these journals for finding excellent anonymous

referees for my manuscripts; this thesis has emerged from sustained reflection on and development from the referees’ comments.

xii

1 Technical Legality

No technology without rules, without signatures, without bureaucracies and

stamps. Law itself is no different from the world of technologies: it is the set

of the modest technologies of writing, registering, verifying, authenticating

that make it possible to line up people and statements. It is a world of flexible

technologies coming to the aid of even more flexible technologies of interest

in order to allow slightly more solid technologies to harden a bit.

— Bruno Latour, Aramis or The Love of Technology, 19961

1. Technical Legality and the Mythic of Modernity This thesis argues that technical legality exposes the mythic of modernity. This statement

requires elaboration of ‘technical legality’ and ‘mythic of modernity’. ‘Technical

legality’ is a purposely minted neologism to cover the interface of law and technology.

Law and technology interface constantly and at multiple sites, from the obvious of the

law confronting an emergent technology in the legislative moment,2 to lawyers

excessively worrying and writing about law in technological futures,3 to the less obvious

of the lawyer’s daily task of operating within a environment of ‘flexible technologies’ of

communication and information,4 to the dark secret whispered by contemporary

jurisprudence that law’s modern essence is technology.5 However, the totality of these

1 Latour (1996), p 45. 2 See, for example, Bennett Moses (2007). 3 See, for example, Beebe (1999). 4 See, for example, Vismann (2008). 5 See, for example, Wolcher (2004).

interfaces has been under-appreciated by law. The occupying paradigm of ‘law and technology’ has been the legislative moment encased by a voluminous secondary literature ‘practically’ speculating on law ‘catching up’6 with technology. Technical legality is used in this thesis to signify the totality of the law technology interface in distinction to the limited vista and, as will be seen, limited disciplinary frame of ‘law and technology.’

‘Mythic of modernity’ seems more problematic. Myth suggests the primitive and the irrational. For Bronislaw Malinowski:

Myth is not a savage speculation about the origins of things born out of a

philosophic interest. Neither is it the result of the contemplation of nature – a

sort of symbolical representation of its laws. It is the historical statement of

one of those events which once and for all vouch for the truth of a certain

form of magic.7

Stated as such, talk of the mythic of modernity appears a contradiction. Modernity, the triumphant of reason, has been defined as the negation of myths.8 Bruno Latour emphasised that to talk of modernity is to postulate a ‘rupture’ in time and a staging of a

‘contest’ between the ‘Ancients’ and the ‘Moderns’, where the myth-bound Ancients are vanquished to history by the rational Moderns.9 The claim that technical legality exposes the mythic of modernity seems particularly outlandish given that the narrative of rupture between myth and reason is specifically re-enacted in the established articulations of both technology and law as modern phenomena.

6 Drahos (1985). 7 Malinowski (1954), pp 83–84; see also Watts (1954), pp 6–17. 8 Latour (1993), p 13; Fitzpatrick (1992), p 14. 9 Latour (1993), p 11.

Technology, the orthodox story goes, occupies the pinnacle of modernity.

Technology is considered the material manifestation of science, of reason applied both to itself and to a de-mythised ‘nature’. Technology is human knowing and making in a world stripped of meaning and reduced to facts and resources.10 This denial of the mythic can be glimpsed in Martin Heidegger in ‘The Question of Technology’ (1953). While famously declaring ‘the essence of modern technology … is nothing technological’, he located technology as the occupation of Being by way of ordering beings as ‘standing- reserve’.11 Technology, in this reading, is the ultimate anti-myth. It represents human reason actively making the world into something else, unconstrained by the past, or by gods or tradition.

Modern law, Max Weber lectured, was to be considered the endpoint of a process of increased rationalisation in the practical and normative regulation of human conduct.

Weber’s four epochs of legality saw myth and irrationality, violence and charisma gradually giving way to positivism, codification and abstract authority.12 In parallel with the orthodox account of technology, Weber’s foundational account of modern law involved a rupture from a myth-drenched past.13

This narrative of the rupture of modernity from myth, embodied by technology and modern law, has been challenged. In ‘Magic, Science and Religion’ (1954),

Malinowski began the critical project of seeing through science’s myth-less rationalism by conceiving science as having a social function that involves the mythic work of

10 Feenberg (2002), pp 6–7. 11 Heidegger (1977b), p 20. 12 Weber (1968), p 848. 13 Murphy (1991), p 198.

describing and confronting the unknown with a yearning for security and control.14 For

Peter Fitzpatrick, the line that modern law has no myth is itself myth.15 In The Mythology

of Modern Law (1992), he argues that modern law has its origins and consolidation in

myth – specifically Western myths involving progress, nature and race.16 Through this

critical reimagining, modernity has been conceived not so much as the absence of myth,

but as a meta-myth that the moderns have no myth. If modernity was meant to be the

break from myth, then Latour’s reply was ‘we have never been modern’.17

The phrase ‘modernity has no myths’ is the label that adorns the trapdoor on the

modern stage behind which the mythic apparatus of modernity can be glimpsed.

However, venturing through this portal – down the rabbit hole – is dangerous. Latour’s

argument was that the ‘Modern Constitution’ had been constructed through erasure –

denial of the complexities that did not fit modernity’s neat categories.18 To open the

trapdoor of modernity’s myths means meeting these erased complexities and coming face

to face with modernity’s illicit offspring; literally, the warning accompanying the label

‘modernity has no myths’ is ‘here be monsters’.19

The pre-eminent monster of modernity, the original monster whose shadow

engulfs the braying crowd, is well known. Indeed, its name is eponymous – monster,

precisely the monster – first given form by Mary Shelley in Frankenstein: Or the Modern

Prometheus (1818).20 The formal elements of Frankenstein are well known: scientist

14 Malinowski (1954), p 86; Sobchack (1997), p 63. 15 Fitzpatrick (1992), pp 1–2. 16 Fitzpatrick (1992), pp 44–145. 17 Latour (1993), p 46. 18 Latour (1993), p 14. 19 Latour (1993), p 47. 20 Shelley (1965).

creates monster and immediately rejects monster,21 monster learns about humanity and its

own monstrousness,22 monster becomes pathological,23 climaxing with monster

destroying scientist.24 This familiarity has allowed critics to argue that Frankenstein is

mythic rather than textual,25 suggesting that reception of this modern novel erases the

supposed rupture between the oral and the written, myth and modernity. Compounding

this is what has been called the ‘Frankenstein archive’.26 The 1818 text has formed the

fountainhead for an immense catalogue of popular cultural material that has invoked,

recycled, parodied and extrapolated from Shelley’s text.27 It is also this archive that has

allowed Frankenstein to be regarded as a myth, manifesting differently in different articulations, yet still possessing a stable symbolic content.28

However, Frankenstein is not just a problematic modern myth; it is the myth of modernity.29 It is common ground among literary, cultural and technologies studies that

the ‘Frankenstein myth’ enacts the quintessential modern relationship of humans and

technology.30 In this common reading, Frankenstein provides what amounts to a series of

interlinked characterisations and associations concerning scientists, technology and

society. Victor Frankenstein, the protagonist, becomes the epitome of the rational

scientist too preoccupied with his techniques to consider the wider context of his

21 Shelley (1965), pp 56–58. 22 Shelley (1965), pp 98–129. 23 Shelley (1965), pp 136–190 24 Shelley (1965), pp 205–211. 25 Baldick (1987), pp 1–9; Turney (1998), pp 26–28; Campbell (2003), pp 343–344. 26 See generally Glut (1984) compiling a variety of works derived from the story of Frankenstein, including novels, translations, adaptations, series, stage plays, films, and musical recordings. 27 Forry (1990); Glut (2002); Picart (2003). 28 Ong (1982), p 12. 29 Baldick (1987), p 5. 30 Gaylin (1976); Levine (1979), pp 16–17; Aldiss (1988), p 51; Botting (1991), pp 164–84; Turney (1998), pp 2–3; Cranny-Francis (1998), pp 64–66; Caudill (2002b), p 253.

creating.31 As a metaphor for technology, the monster is ambiguous. It has the potential

for good:32 rescuing a child33, not stealing from the De Lacey’s meagre stores,34 appreciating classical literature and history such as Goethe, Plutarch and Milton.35 It also

has the potential for evil:36 murdering Frankenstein’s young brother William,37 framing

Justine for that murder,38 and murdering Henry Clerval39 as well as Frankenstein’s bride

Elizabeth.40 The monster is a thing to be both pitied and feared, and in most

commentaries Victor, with his acontextual rationalism, bourgeois irresponsibility and

petty revulsion, is revealed as the true monster.41 The monster’s ‘thing-ness’, its status as external to humanity, is repeatedly emphasised through its exclusion from human society42 and its desire for a mate of its own kind.43 In this, the monster animates an

amoral and non-human conceptualisation of technology. Frankenstein also shows the

vulnerability of human society to the revolutionary, and often bloody, product of science.

The scientist concocts in his private rooms, while society remains passive and impotent

against the depravity of his monstrous creation.

Frankenstein is therefore a modern myth, not just because of its cultural archive,

but for its articulation of anxieties about technology – indeed, it is the myth of modernity.

It speaks to modernity’s doubts, the ghosts and fears that haunt reason’s making of the

31 Winner (1977), p 313. 32 Olorenshaw (1994), p 165. 33 Shelley (1965), p 134. 34 Shelley (1965), p 106. 35 Shelley (1965), pp 122–124. 36 Turney (1998), pp 38–39. 37 Shelley (1965), p 136. 38 Shelley (1965), p 137. 39 Shelley (1965), p 169. 40 Shelley (1965), p 186. 41 For example see Milner’s description of Frankenstein’s ‘bad faith’ in reneging on his promise to build a companion for his creation. Milner (1996), p 155. 42 Shelley (1965), pp 128–131 (rejected by the De Lacey’s), p 135 (shot by the father of the child the monster rescued). 43 Shelley (1965), p 137.

world.44 To return to technical legality, Frankenstein appears to inhabit the ‘technical’ but not the ‘legality’. Absent from Shelley’s text is any institutional counterforce; there are no Inquisition, Royal Society or ethics committees to control the scientist and creation. As William P. MacNeil has acknowledged, there is law work occurring throughout the text. There is excessive talk of crime and murders and guilt,45 and some

obvious institutional legal moments; the trial of Justine for the murder of the child

William,46 Frankenstein’s subjection to Irish legal process47 and Frankenstein’s

‘confession’ to the Genevan magistrate.48 However, Shelley presents an impotent law:

Justine’s trial is a farce, Ireland frees Frankenstein without asking harder questions and the Genevan magistrate reluctantly agrees to hunt the monster with the caveat that it will be ‘impracticable’.49 Faced with the monster’s campaign of terror, law does not respond,

and the monster and creator are left to chase on the northern ice, alone.50 However,

through negation law becomes included. Shelley’s core elements – irresponsible scientist,

ambiguous monster and vulnerable society – call out for a hero to thwart Frankenstein

and control the monster in society’s name. A continuing feature of the Frankenstein

archive has been the provision of this heroic supplement through policeman, ‘good’

scientists, monster hunters, super heroes and/or enraged townsfolk.51 In this, the

Frankenstein myth provides the basic representations of technology, scientists and society

44 Ellul (1964), pp 387-394; Marcuse (1964), p 6. 45 MacNeil (1999), pp 23–24. 46 Shelley (1965), pp 78–85. 47 Shelley (1965), pp 168–174. 48 Shelley (1965), pp 189–190. 49 Shelley (1965), p 190. 50 Huet (1993), pp 143–144. 51 Winner (1977), p 307; Glut (2002).

that ground desire for the heroic supplement on which the routine and frequently heard claim that a saving law must ‘catch up’ with technology has been made.52

So the claim that modernity is beyond myth hides the continuation of myth, and

Frankenstein – with its popular archive of mythic material concerning reason, technology, law and anxiety – lurks as the primary myth of modernity. As such,

Frankenstein suggests the treatment of technical legality in this thesis: that technical legality must be considered, and already is considered, within the mythic field nurtured by science fiction.53 Having journeyed through modernity and myth to Frankenstein, the vista that opens is to state in more detail the thesis’ argument and motifs.

Argument and Motifs To return to the beginning, this thesis argues that technical legality exposes the mythic of modernity. Like the Saturn IV rocket that launched the Apollo capsule on its journey to the Moon, this argument has three stages.

The first stage – ‘Law of Technology’ (Chapters 2 and 3) – addresses the now of technical legality. It is argued that consideration of the relations between law and technology is occupied by a specific framework, the ‘law and technology enterprise’, which conceptualises technology as problematic, requiring public policy decisions concerning the effects and implications of technology; these decisions are then implemented through positive law. This framework, with its veneer claims to be practical, dominates consideration of the relations between law and technology.

However, as critical accounts of modernity and myths suggest, the appearance of the

52 One of the clearest critiques of the phrase ‘law must catch-up with technology’ was Drahos (1985). See also Shapiro (1999). Another often cited imagery has been ‘Law marching with medicine but in the rear and limping a little’: Windeyer J Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395 see Cowen (1985); Bennett Moses (2005), p 516. 53 The relationship between Frankenstein and science fiction as a genre is considered in Chapter 3.

mythic is immediate in this seemingly modern project, for the law and technology

enterprise’s basic elements enact the Frankenstein myth. Further, the mythic appears not

just in the elemental form of the law and technology enterprise, but infuses the very

substance of the literature produced. The legal imagining of technological futures of promises and perils – the speculative jurisdiction that calls forth scholarship founded on

the law and technology enterprise – has its wellspring in the ‘mythform’ of the modern

West: science fiction. This stage concludes with a call to take science fiction seriously

within two registers – the epistemological and the ontological – in thinking about

technical legality.

The second stage, ‘Law and Technology Cultures’ (Chapters 4 and 5) addresses

technical legality through a taking seriously of science fiction’s epistemological register

of knowing technological futures. Two studies are presented focusing on Australian law-

making in response to emergent technology. The first argues that the Prohibition of

Human Cloning Act 2002 (Cth) only makes sense as a legal intervention nurtured and

sustained by science fiction’s clone canon. Through what can be regarded as unexpected

silences and excesses, the Commonwealth Parliament legislated against a hysterical vision of the clone. This placing of law-making within a cultural context given form by science fiction is then replicated through looking at the gestation of what became the

Motor Car Act 1909 (Vic). It is argued that the pro-motorist regime established by the

Act only makes sense within a culture of ‘progressive modernism’ given form by

H.G. Wells’ late nineteenth century ‘scientific romances’. However, a suggestion raised by the making of the clone law and revealed more deeply in consideration of the Motor

Car Act 1909 (Vic) was a return of technology. The spectre of the technical was present

in both the way these Acts were made and their very substance. This return of the

monster is the fuse that ignites the third stage.

The third stage, ‘Technologies of Law’ (Chapters 6, 7 and 8), considers technical legality through taking science fiction’s ontological register seriously. Frank Herbert’s

Dune cycle (1965–85)54 is read as technical legality to reveal the essential commitments

behind the technical production of law in technology’s wake. Through Dune, the innocent

plans of the law and technology enterprisers for positive law to ensure the future become

revealed as emanating from the alchemy of death and time. This bloody existence of bare

life in history becomes both clarified and contested in reading the SciFi Channel’s recent

award-winning Battlestar Galactica (2003–10)55 as technical legality. Battlestar

Galactica brings Being to a precipitous fall, exposing the occupation of Being by

technology. However, it then collapses the metaphysical frame. In this complicated movement, it bequeaths to technical legality technological Being-in-the-world, union with the monster, as a challenge to the primacy of Frankenstein. The conclusion is not just the revelation of the mythic of modernity, but an embrace of the mythical of technical legality.

At this stage, two motifs recurring through the argument require elaboration. The first is ‘monster’. Shelley’s Frankenstein describes the monster thus:

How can I describe my emotions at this catastrophe, or how delineate the

wretch whom with such infinite pains and care I had endeavoured to form?

54 Herbert (1965, 1969, 1976, 1981, 1984, 1985a). 55 Spanning from the mini-series in 2003 (Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 8–9 December 2003)) to the final episode in Season 4 (Rymer, Daybreak Part II: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 20 March 2009)) and the one-off telemovie (Olmos, The Plan: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, 10 January 2010)).

His limbs were in proportion, and I had selected his features as beautiful.

Beautiful! Great God! His yellow skin scarcely covered the work of muscles

and arteries beneath; his hair was of a lustrous black and flowing; his teeth of

a pearly whiteness; but these luxuriances only formed a more horrid contrast

with his watery eyes, that seemed almost of the same colour as the dun-white

sockets in which they were set, his shrivelled complexion and straight black

lips.56

Shelley’s monster is a parody of a human, something rendered more obvious in the

Frankenstein archive with the stock twentieth century image of the monster – established

by the actors Boris Karloff and Glen Strange – tall, flat-toped, neck electrodes and

cragged face.57 The monster’s physical appearance, in both Frankenstein and the archive,

emphasises its manufactured-ness, facilitating the monster’s primary role in the

Frankenstein myth as representing technology as something not human and capable of

monstrous actions.

However, the monster as partly anthropomorphised technology opens to an

alternative imagining. The monster has been rehabilitated in the work of Donna Haraway

and Latour to be not the demonic being of technology, but a celebratory figure of what

N. Katherine Hayles has termed the ‘posthuman’.58 In this alternative literature, the

monster becomes the symbol for hybrids that ‘be’ in the contemporary West: the cyborg

and the trickster.59 In this sense, the monster is not the destroyer of a passive society but

56 Shelley (1965), p 56. 57 Glut (2002), pp 35–36. 58 Hayles (1999). 59 See Haraway (1985); Penley and Ross (1990), p 9; Latour (1993), p 47.

an agent that creates the world. In merging the monster and trickster, the monster’s

mythic credentials are confirmed. Joseph Campbell writes:

This ambiguous, curiously fascinating figure of the trickster appears to have

been the chief mythological character of the palaeolithic world of story. A

fool, and a cruel lecherous cheat, an epitome of the principle of disorder, he is

nevertheless the cultural bringer also.60

As trickster, the monster as technology is not the danger to human society of the

Frankenstein myth, but the creator and innovator of social relations.

Having recourse to Campbell emphasises the second motif, that of the journey or

quest. In A Hero with a Thousand Faces (1949), Campbell attempts to dissect the totality of human myth to identify a common structure for ‘hero’ tales.61 His resulting description

of the monomyth emphasised questing, particularly the necessity for the hero to journey

beyond the physical realm to the metaphysical, so as to return changed.62 The monomyth

has particular significance for science fiction studies, with critics like David E. Palumbo

producing an opus of work elaborating that much science fiction – George Lucas’s Star

Wars franchise (1977–2005)63 being an obvious example64 – has been grounded on the

monomyth.65 The essential arc of the monomyth of journey to the beyond can also be

glimpsed within the argument of this thesis. Technical legality is examined as a journey,

60 Campbell (1959), p 273. 61 Campbell (1968). 62 Campbell (1968), p 30. 63 Lucas, Star Wars: A New Hope Star Wars (Twentieth Century Fox, 25 May 1977); Kershner, The Empire Strikes Back: Star Wars (Twentieth Century Fox, 21 May 1980); Marquand, The Return of the Jedi: Star Wars (Twentieth Century Fox, 25 May 1983); Lucas, Phantom Menance: Star Wars (Twentieth Century Fox, 19 May 1999); Lucas, Attack of the Clones: Star Wars (Twentieth Century Fox, 16 May 2002); Lucas, Revenge of the Sith: Star Wars (Twentieth Century Fox, 19 May 2005). 64 Tiffin (1999); Mackay (1999); Lawrence (2006). 65 Palumbo (2008, 2004, 2002, 1997, 1998).

beginning with its current occupation by the law and technology enterprise and then

moving beyond this comfortable valley to the neighbouring lands of historical cultural

analysis to explain and know laws called forth by specific technologies. However, this

familiar questing then crosses over from the epistemological to ontological register, from

knowing to being, raising the stakes and also the rewards of the quest, which are then

returned to inform technical legality. Emphasising the thesis as quest opens the need to

summarise the chapters in more detail.

Chapter Summaries

Chapter 2, ‘The Law and Technology Enterprise’, argues that technical legality has been

occupied by the law and technology enterprise. This means that law talk about

technology has been limited. Through a detailed examination of the legal literatures that

were responses to three ‘technological events’ – Sputnik (1957), Louise Brown (1978)

and virtual-worlds (2004–08) – it is argued that a common narrative frames their legal reception. All three were considered harbingers of problematic technological futures.

They were perceived as potentially promising benefits as well as threatening harms, and this future uncertainty required law in the present to ensure benefits and regulate harms.

The goal of the law and technology enterprise is positive law doing public policy work.

This chapter goes on to argue that grounding the law and technology enterprise, and tying its key components together, is the Frankenstein myth. Its story of problematic technology, future and positive law emanates from the Frankenstein mise-en-scène of the threatening monster, vulnerable society and saving law.

Chapter 3, ‘The Speculative Jurisdiction and Mythform’, builds upon the analysis of the three law and technology enterprise literatures from Chapter 2. It is argued that

speculation about technological futures has been driving the governing pretensions of

these literatures. Further, it is argued that the origin of this ‘speculative jurisdiction’ is

science fiction. The traces of science fiction texts in the three sample literatures are canvassed, opening to a broader argument examining science fiction as Western mythform. It is suggested, through discussion of critical accounts of science fiction, that

science fiction as mythform has two registers. The first concerns knowing the

externalities of technological future, speculating on future technologies, societies, politics

and worlds. This epistemological register is supplemented by a more essential mythic

role, an ontological register open to mediation on being in these futures. The conclusion

is a suggestion that technical legality should take seriously the law and technology

enterprise’s speculative jurisdiction through a more sustained engagement with science

fiction as mythform in both the epistemological and ontological registers.

Chapter 4, ‘Clone Hysteria and Star Trek: Nemesis’, takes science fiction

seriously as mythform in its epistemological register to examine a recent case study of

law-making in response to emerging technology in which the speculative jurisdiction was

at one level obvious. It argues that the public account of cloning that began with the

announcement of Dolly the Sheep in February 1997 and ending with the Prohibition of

Human Cloning Act 2002 (Cth) reveals ‘clone hysteria’ – a monstrous fear of human

cloning. The human clone, newspapers, government reports and parliamentarians

declared, must be stopped. However, there was no examination of the evils of cloning

beyond referencing the ‘clone canon’ in science fiction. Taking this referencing as

encouragement, this chapter examines clone hysteria through the last cinema adventure of

the Star Trek Next Generation crew, Star Trek: Nemesis (2002),66 which can be read as a summary of the clone canon. It is argued that the horrors that the Act prohibited in 2002 were made explicit in the film. In particular, two basic narratives concerning the wrongness of clones are articulated: the clone as double and the clone as artefact. Driving these anxieties is a fundamental concern with essence. What is shown through the reuniting of the Prohibition of Human Cloning Act 2002 (Cth) and its speculative jurisdiction is a far richer account of technical legality than the nomology offered by the

Australian scholarship welded to the law and technology enterprise frame. Further, while the film’s attempt to tell a counter-narrative involving acceptance, difference and life history is only partially successful, the analysis opens to glimpses of another monster: law as technology in the shadows.

Chapter 5, ‘Motor Cars and Progressive Modernism’, continues within science fiction’s epistemological register, but moves the thesis away from the obvious meeting of technology, law and science fiction, and also away from a seemingly monolithic public reaction against a technology. It considers the making of one of the first Australian laws regulating the motor vehicle, the Motor Car Act 1909 (Vic). At one level, the arrival of motor vehicle on the roads of Victoria during the pioneering period of motoring (1897–

1914) was greeted with anxieties about death and ‘ends’ similar to those that framed the public reception of Dolly the Sheep. However, the called for law did not correspond to the public anxieties. Instead of restrictions, the Act established a regulatory scheme of registries, licensing and policing that was pro-motorist. This dislocation between the Act and the popular mood cannot immediately be explained by purely political influences such as the availability of UK templates or lobbying by the Automobile Club of Victoria

66 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002).

(ACV). Instead, H.G. Wells’ ‘scientific romances’ of the late nineteenth century can be

identified as the mythform that tied together future and reason in a way that drove the

Act. This ‘progressive modernism’ allowed the motor vehicle to be conceived as offering the potential for a better future; however, this was not inevitable. It mandated rational action in the present if this future was to come about – there was legislating for the future.

Further, the form of the Motor Car Act 1909 (Vic) was also influenced by progressive modernism: in providing a regime for executive regulation, the most modern and rational instruments were deployed to secure the desirable future. This reveals what was suggested in Chapter 4: that the law called forth by technology is modern law – that is, law as technology. A fundamental irony is exposed in the Frankenstein myth: the monster is truly a trickster, for it seems that the saving law returns as the monster.

Chapter 6, ‘Dune as Technical Legality’, presents an extended analysis of Frank

Herbert’s Dune cycle as technical legality. The register has changed. The epistemological analysis ends in what seemed to be a black hole with all as technology. This begs the question of what it might mean for law as technology, and represents a movement to the ontological register. In this chapter, it is argued that the received secondary literature on

Dune as involving a triumph of chaos over rationality in public activities – religion, politics and ecology – concluding with the message of self-care and Zen calm in coping with an uncertain universe, sells Herbert’s imagining short. Instead, through reading

Dune as a story of tyrants and leviathan sandworms, the public re-emerges. Dune, it is revealed, is an account of the metaphysics of sovereignty and positive law. It is argued that the themes of the Dune secondary literature can be rewoven into a critical elaboration of Hobbes’ ‘mortal God’, which exposes the essential commitments of sovereignty and

its technical law. These commitments are death and time. Located in its origin with the

bloody alchemy of modernity, the true monstrousness of the law as technology is

revealed – the consumption of bare life in history. This brutal realisation seems to end

with Carl Schmitt’s representative sovereign deciding to make the world.

Chapter 7, ‘Battlestar Galactica as Technical Legality’, continues the ontological

examination of technical legality through a detailed analysis of Battlestar Galactica.

Where Chapter 6 interrogated the metaphysics of law as technology, this chapter grapples directly with the ontology of technology. Like Chapter 6, which moved from the public to the personal and back to the public, this chapter opens with the deciding sovereign of

Schmitt and moves to the personal. However, Battlestar Galactica does not return to the public. The personal turns out to be technical. Unlike Star Trek: Nemesis, in Battlestar

Galactica the distinction between essence and artefact has been completely blurred. Here,

Battlestar Galactica seemingly performs the ‘end’ of Western metaphysics in the

occupation of Being by Enframing. However, in this very defeat lies redemption.

Battlestar Galactica in its apocalyptic sensibilities gestures elsewhere, indicating that

living remains after the end. As technical legality, Battlestar Galactica’s lasting message

is that technology collapses the received Western metaphysics, but Being continues as

technological Being-in-the-world, exposing free responsibility to becoming. This chapter

ends with this express preference for Haraway over Heidegger and a call for an essential

confidence with myth.

Chapter 8, ‘Sojourn’s Ends’, concludes the thesis. It returns to the triad of

monster, modernity and myth that opened this introduction. In reviving the stages of this

journey, it will be shown that technological Being-in-the-world not only gifts a direct

engagement with science fiction as mythform for technical legality, but also reveals the

myth of modernity – not the Frankenstein myth, but the persistence of myth. The over-

arching narrative of technical legality confirms the suspicion that modernity was not

about the negation of myth; rather, in removing myth from the sacred, modernity released

myth into the profane. Technical legality exposes the mythic of modernity and opens the

free space of destining for responsibility to becoming.

2. Science Fiction as Law and Culture

Before this argument can begin, two preliminary checks are required. The first is a direct

discussion of where this thesis fits within law. At a simple level, this thesis develops out

of the body of scholarship that has been termed ‘law and literature’. However, what

occurs in this thesis is far removed from the humble literary origins of law and literature.

More precisely, this thesis can be located in the monstrous mutations of law and literature

to law and culture. The second involves locating law in science fiction, and examining

the limited scholarship within law and culture concerned with science fiction.

From Law and Literature to Law and Culture

Law and literature began as a modest project using literature and literary studies to respond to two lines of inquiry: ‘law in literature’ and ‘law as literature’.67 Law in

literature asked questions about the representation of lawyers within literature. Its scope

was limited, with cautious findings about lawyers in the text, and any claims concerning

wider cultural impact or parallels that could legitimately have been drawn between the

text and the real of lawyering were narrowly made. In this early research, the distinction

67 The phrases ‘law in literature’ and ‘law as literature’ are from Weisberg (1988), p 1. They have been widely adopted – see, for example, Caudill (2003), p 3.

between fictional law and real law was maintained. The second line of inquiry, law as

literature, ran in several directions. Richard A. Posner urged lawyers to read good

literature to help with their writing and structuring arguments.68 James Boyd White

sketched legal education as a task fruitfully undertaken through literature, and conceived

the lawyer as a ‘special sort’ of writer.69 Peter Goodrich opened to the English legal academy the use of literary methods to examine legal texts as literature70 and Ronald

Dworkin famously asked jurisprudence to consider judicial decision-making as akin to writing a chain novel.71 The governing motif was analogy. Literature and law were

considered parallel tasks concerned with representing, and more specifically writing, and

the lawyer and legal theorist could profit from the explicit consideration of law as

analogy of literature.

By the late 1980s, two linked innovations entered into the field of law and

literature. The first was recognition that popular media, not just novels, contained

worthwhile material for legal analysis.72 Films and television shows like NBC’s L.A. Law

(1986–94)73 came to be seen as offering insights into law and lawyers to supplement the

received literary canon. Talk of a sub-field of ‘law and film’ began.74 Further, this

extension of the analytical scope to visual media was accompanied by the second

innovation: greater confidence regarding the breadth of conclusions that could be made

68 Posner (1988), p 359. 69 White (1973), p 3. See also White (1985a, 1990). 70 Goodrich (1985, 1990). For Goodrich as foundation in law and literature, see Dolin (1999), pp 9– 10. 71 Dworkin (1982). 72 Macaulay (1989), p 1552. 73 See, for example, Rosen (1989); Gillers (1989). 74 Machura and Robson (2001), p 3. On the emergence of law and film, see Kamir (2005), pp 255– 256.

from this material.75 Analysis of populist and contemporary cultural texts allowed for

conclusions about law and lawyers within popular culture.76 Scholarship began to be

liberated from the distinction between fiction and fact that circumscribed the findings of

law in literature. This concern with the knowledge, images and conceptions of law

belonging to mass popular culture possessed a jurisprudential pedigree. H.L.A. Hart

opened the theory of law to concerns with the mechanisms through which a population

‘accepts’ a legal system.77 Through bringing cultural studies to law and literature,78 law and film – or law and popular culture – began to find cultural solutions to the

‘sociological’79 – the ‘law in everyday life’80 – question that Hart’s positivism prevented

him from answering.

From the mid-1990s through to the present, law and literature as law and popular

culture expanded.81 However, much of this expansion remained concerned with the law

in literature question of lawyers in various media texts.82 A development of the law in

literature scope was an expansion of seeing not just lawyers and the legal process, but

legal content animated within popular culture.83 What increasingly emerged was a

method of reading law within a specific historical and cultural milieu. In this analysis,

literature and law became to be regarded as cultural resources for making sense of

historical events. For example, Richard Weisberg attempted to make sense of the

75 Dunlop (1991), p 68. 76 Friedman (1989), pp 1598–1603. 77 Hart (1961), pp 109–112. 78 On the development of law and culture from the emergence of cultural studies, see Sarat et al (2005), p 3. 79 Hart (1961), p v; Hutchinson (1995), p 788. 80 Macaulay (1987), p 186. 81 MacNeil ‘maps’ many of the key scholars during this period. See MacNeil (2007), pp 6–8. 82 A point made by Leslie Moran, Emma Sandon, Elena Loizidou and Ian Christie in their recent edited volume: Moran et al (2004), p xiii. 83 For example Christine A. Corcos (1997b) examined Ghostbusters (1984) (Reitman, Ghostbusters, (Columbia Pictures, 1984)) as informing the popular attitudes to environmental regulation.

complicity of the Vichy lawyers with the Holocaust through reading Kafka’s The Trial

(1935)84 as symptomatic of a European legality capable of rendering the grotesque

mundane.85 Kieran Dolin examined the literature and law surrounding the turn of the

twentieth century as revealing a tension between the triumphs and growing anxieties

within modernity.86 At its best, this analysis organised detailed archival material

(correspondences, letters, reports), legal sources (cases, legislation, parliamentary

debates) and popular material (newspapers, novels, poems, films, television) to explain,

illuminate and ultimately tell a story about the cultural context of complex happenings.87

However, the jurisprudential potential of law and culture remained under-explored. The

North American law as literature increasingly circled around important, yet narrow concerns, of literature ennobling a republican ideal that could sustain professional legal life88, while the law and popular culture literature tended to merge with cultural studies.

In so doing, law become another artefact through which to understand the cultural

world.89 The guiding motifs of this research became understanding, explaining and

making sense.90

A recent – mutant – strain of law and popular culture has been the embrace of the

legal of popular culture, without the empirical tendency of the cultural studies-informed law and popular culture, by Australian cultural legal theorist William MacNeil.91

Drawing upon feminist and psychoanalytical incursions into law and literature,92 he has

84 Kafka (1999). 85 Weisberg (1992), pp 127–175. See also Weisberg (1984). 86 Dolin (1999), pp 43–44. 87 Cotterell (2006), p 101. 88 Weisberg (1988), pp 8–18. 89 MacNeil (2007), pp 1–2. 90 Reichman (2008), pp 493–494. 91 See Tranter (2007). 92 See Young (1997); Sherwin (2000).

presented a radical series of analyses of populist cultural texts. MacNeil’s revolution has

occurred on two fronts. First, his material ranges beyond the court-room crime genre still beloved by law and popular culture to embrace seemingly non-legal texts such as Harry

Potter and the Goblet of Fire (2000),93 Joss Weldon’s Buffy the Vampire Slayer (1997–

2003),94 Fight Club (1999),95 the Lord of the Rings film trilogy (2001, 2002, 2003)96 and

Minority Report (2002).97 Further, unlike the law and popular culture’s residual preference for a single text, MacNeil is concerned with – to draw upon a term from

Frankenstein studies – the ‘archive’ surrounding these stories. The books, the films, cultural spin-offs and the secondary literature by fans and critics are woven into his analysis. MacNeil’s second front is a direct reaction to the cultural studies turn in law and popular culture. His governing frame is the theory of law. MacNeil aims to reinvigorate jurisprudence as a discipline through reading popular cultural texts jurisprudentially.98

The claim is not just that popular cultural texts present analogies of jurisprudential concepts – for example, authority, justice, rules, rights, subject, sovereign and decision – but that they energise, animate and critique these pure forms.

93 Rowling (2000). See MacNeil (2002); MacNeil (2007), pp 11–27. 94 Spaning Smith, Welcome to the Hellmouth: Buffy the Vampire Slayer (Warner Bros, 10 March 1997) to Whedon, Chosen: Buffy the Vampire Slayer, (United Paramount Network, 20 May 2003). See MacNeil (2003); MacNeil (2007), pp 28–43. 95 Fincher, Fight Club (20th Century Fox, 1999). See MacNeil (2007), pp 44–60. 96 Jackson, The Lord of the Rings: Fellowship of the Ring (New Line Cinema, 2001); Jackson, The Lord of the Rings: The Two Towers (New Line Cinema, 2002); Jackson, The Lord of the Rings: The Return of the King (New Line Cinema, 2003). See MacNeil (2004); MacNeil (2007), pp 61– 79. 97 Spielberg, Minority Report (20th Century Fox, 2002); See MacNeil (2005); MacNeil (2007), pp 80–96. 98 MacNeil (2007), p 2. Italics in original.

In Lex Populi (2007),99 MacNeil presents a blueprint for reading popular culture jurisprudentially. His method involves three layers. The first is to embrace the incredulity of the jurisprudential content of the subject text. For example:

Where is the law in Fight Club? ‘Beaten to a pulp’ might be the wry retort of

some critical legal wag. For Fincher’s film goes out of its way to stress its

lawlessness. Certainly the film complies quite a rap sheet of summary and

indictable offences worthy of any convicted felon: from jaywalking to grand

larceny. However, these criminal transgressions occur within, and issue from

a context that is recognizable as lawful(l), meaning law saturated. That

context is established in what I take to be the film’s paradigmatic scene …

when Tyler Durden … proclaims for the first time to the punch-hungry men

assembled there, ‘The first rule of fight club is – you do not talk about fight

club.’100

Having voiced and replied to the obvious objection, MacNeil moves to the second layer of presenting a reading of the text, drawing from either established secondary literature or an obvious theoretical companion. For example, in Fight Club ‘the legal lynchpin of

Tyler’s “declaration of fights,” his core nomological element is none other than the sine qua non of positivism: namely, the rule.’101 This allows MacNeil to consider Fight Club in association with Hart’s Concept of Law (1961),102 facilitating a reading of Fight Club that animates central precepts of Hartian jurisprudence.103 However, this animation goes

99 MacNeil (2007). 100 MacNeil (2007), p 45. 101 MacNeil (2007), p 46. 102 MacNeil (2007), p 47. 103 MacNeil (2007), pp 48–51.

beyond analogy. MacNeil shows that in breathing bloody life into Hart’s careful and

restrained text, Fight Club exposes a critical, and fatal, gap in Hart’s conceptualisations:

[S]ince the usual positivist mark of such validity – physical violence or

sanction – has been dissolved by Hart into an inner compulsion to be obeyed

… this dissolution has the effect of rendering all obligation-imposing rules –

morals and otherwise – potentially, law.104

In using a cultural text to animate, and in animating rendering a theory of law,

MacNeil suggests that the text presents more. From this intermediate reading, what is then revealed is a third, essential, reading that subsumes the previous two. MacNeil suggests Fight Club’s twist that Tyler and Jack are one, that the fight scenes are self- abuse, mirrors Hart’s recognition in the postscript to the second edition of the Concept of

Law (1994), where he dealt a ‘near-fatal blow’105 to his rule of recognition in

acknowledging the link that internal acceptance allows the illicit incursion of morality

into his supposed positivist framework.106 Flight Club goes further than Hart: it makes

the necessary statement of the need for violence to safeguard ‘some inner space free’,107 space where the legal subject can have ‘the mental distance necessary for an inner dissensus, for an internal point of view that is thoroughly reflective and truly critical’.108

MacNeil presents popular culture texts as jurisprudence, as sophisticated contributions to the theory of law that circulate and ‘recall jurisprudence to life’.109 The guiding motif for

104 MacNeil (2007), p 52. 105 MacNeil (2007), p 57. 106 Hart (1994), p 247; MacNeil (2007), p 57. 107 MacNeil (2007), p 59. 108 MacNeil (2007), p 60. 109 MacNeil (2007), p 156.

reading popular culture jurisprudentially is that the reading does not impose jurisprudence, but rather it is excavated, exposed and revealed.110

It can be shown that law and literature have given form to quite different projects.

Law in literature can be seen to have morphed to law and popular culture, begetting a style of analysis informed by cultural studies and concerned with law as a cultural text to be used in conjunction with other cultural texts to explain historical moments. Law as literature cross-fertilised by law and popular culture has returned to jurisprudence through MacNeil’s work. For convenience, both methods can be located under the label

‘law and culture’. This thesis performs both. The second stage, ‘Law and Technology

Cultures’ (Chapters 4 and 5), which addresses technical legality through taking science fiction’s epistemological register of knowing technological futures seriously, draws upon the law and popular culture’s cultural studies-informed method of making sense of a specific historical moment (the making of a law in response to an emergent technology) as a cultural happening. The third stage, ‘Technologies of Law’ (Chapters 6, 7 and 8), which considers technical legality through taking science fiction’s ontological register seriously, draws upon MacNeil’s method of reading jurisprudentially to reveal technical legality’s essential commitments.

Having established the pedigree for the analysis that follows within the mutating of law and literature to law and culture, a final check needs to be undertaken; this relates to the laws of science fiction.

110 Reichman (2008), pp 495–496.

The Laws of Science Fiction

There has yet to be a study of the law in science fiction.111 Indeed, within science fiction

law plays a very distant part.112 Lawyer protagonists are few – as Paul R. Joseph has suggested, ‘Buck Zeal: Space Lawyer’ has yet to grace cable television, the paperback shelves or the multiplexes.113 The best known of science fiction’s lawyers, ‘Jubal

Harshaw LL.B, M.D., Sc.D.’, from Robert A. Heinlein’s Stranger in a Strange Land

(1961),114 is less lawyer and more Heinlein’s ego ideal, allowing his opinions to be writ

large in the text.115 More promising is Frederik Pohl’s and C.M. Kornbluth’s Gladiator-

at-Law (1955),116 which opens with a fabulous scene of mechanised justice – ‘The jury

box hummed and twinkled’117 – and the persistence of the elitism in legal culture:

He hadn’t inherited one of the great hereditary corporation law practices and

he never would. Even grinding through Harvard Law School can’t get you

conveniently reborn into the Root, or Lincoln or Dulles, or Choate families.

Not for [Charles Mundin, the protagonist] the great reorganizations,

receiverships, and debenture issues. Not for [him] the golden showers that fell

when you pleaded before human judges and human juries.118

After this promising opening, Gladiator-at-Law then settles into a similar dystopian narratives of social decay and corporate excess to Pohl’s and Kornbluth’s more

111 This is implicit in Bruce L. Rockwood’s introduction to the first (of two) journal symposiums dedicated to law and science fiction, where he writes that such a project has ‘limitless potential.’ Rockwood (1999), p 272. 112 Per Schelde suggests that the two dominate personas in science fiction film are the scientist and the ‘everyman’ – ‘lawyers’ does not make it to the list. See Schedle (1993), pp 27-37. 113 Joseph (1998), pp 156-157. See also Joseph and Carton (1995). 114 Heinlein (1978), p 75. 115 Scholes and Rabkin (1977), p 58. 116 Pohl and Kornbluth (1964). On the possibility of this text in teaching law see Joseph (1997). 117 Pohl and Kornbluth (1964), pp 6-7. 118 Pohl and Kornbluth (1964), p 7.

celebrated Space Merchants (1952).119 However, both Heinlein’s Harshaw and Pohl’s

and Kornbluth’s Mundin do suggest a baseline representation of the lawyer in science

fiction. Both Harshaw and Mundin do little obvious law work – courtroom scenes,

counselling clients in offices and drafting documents are rare. Instead, these fictional

lawyers are politically savvy realists, organising, working connections and politicking

behind the scenes. Lawyers, this casting suggests, are masters of human nature: they

know the social, they know people, and they get things done. This representation of

lawyer as political operator can be seen in other ‘Golden Age’ North American science

fictions.120 One of Isaac Asimov’s early Robot stories, ‘Evidence’ (1946)121 features a

lawyer-cum-politician. A more contemporary descendent of the lawyer/politician/master

of human nature is the kleptomaniac Romo Lampkin (Mark Sheppard), introduced in

season three of Battlestar Galactica.122 Lampkin, who goes on to become President in the season four finale,123 lies and manipulates, but gets the various legal and political jobs

assigned to him done.124

One of the reasons for this image of lawyers in science fiction is that it merges

with two far more common images of legal actors within the genre. Ever since Asimov

119 Pohl and Kornbluth (2003). On the critical literature on Pohl and Kornbluth as a writing team, see Knight (1967), pp 146–147; Hassler (1997); Baker (2005). 120 On the ‘Golden Age’ of North American science fiction, and the debates around the label, see Roberts (2005), pp 195–229. 121 ‘Evidence’ first published in Astounding Science Fiction in 1946. Reproduced in Asimov (2008), pp 170–197. 122 Young, The Son also Rises: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 11 March 2007). 123 Rymer, Daybreak Part II: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, 20 March 2009). 124 Successfully defends Baltar (Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007)); Tasked with finding a emergency replacement President (Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 27 May 2008)); Appointed to represent Adama by the mutineers (Rose, Blood on the Scales: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, 6 February 2009)).

mixed his robots with the detective novel to create Caves of Steal (1953)125 and the

Naked Sun (1957),126 science fiction has given birth to a range of universe-weary,

cynical, flawed but skilled space/robot/time detectives, crystallised in the popular

consciousness with Philip K. Dick’s short stories127 and especially Harrison Ford as

Dick’s Deckard in Ridley Scott’s Blade Runner (1982).128 In this fusion literature, the predominately ‘lawman’ has access across the futuristic social spaces, but especially inner knowledge of the outcasts and the underclasses.129 In these zones, the science

fiction detective engages with the other more common legal actor, the outlaw. Science

fiction, particularly space opera,130 loves the outlaw. From Asimov’s ‘Foundation’ series,

where rogue traders ship technological contraband to regressing planets,131 to Harrison

Ford (again) as Han Solo in the Star Wars franchise, to Roj Blake (Gareth Thomas) in

Terry Nation’s Blake Seven (1978–81),132 to Malcolm Reynolds (Nathan Fillion) in Joss

Weldon’s Firefly (2002),133 there can be glimpsed a repetitive narrative of heroic

resistance against an ‘evil empire’. Yet it is interesting that the law against which space

opera’s heroes are rendered outlaw has rarely been represented.

This absence of law continues into another legal zone that sometimes appears in

science fiction: the courtroom. When disgraced President Gaius Baltar (James Callis) is

125 Asimov (1983). 126 Asimov (1960). 127 Do Android’s Dream of Electric Sheep (1969), Dick (1972); Minority Report (1956), Dick (2002). 128 Scott, Blade Runner (Warner Bros, 16 December 1982). 129 See Desser (1999), pp 92–95. 130 ‘Space Opera’ is defined and discussed in more detail in Chapter 3. 131 Asimov (1995). 132 Spaning Briant, The Way Back: Blake 7 (BBC, 2 January 1978 1978) to Ridge, Blake: Blake 7, (BBC, 21 December 1981). 133 Firefly had a brief run of thirteen episodes before it was cancelled (Spaning Whedon, Serenity: Firefly (Fox, 20 December 2002 2002) to Whedon, Objects in Space: Firefly (Fox, 13 December 2002)). The cancellation arose from animosity between Whedon and Fox, part of which stemmed from Fox’s decision not to show the episodes in narrative order. As such, episode 1 was not the first screened, nor episode 13 the last. See DeCandido (2004). See also Whedon’s follow-up film Whedon, Serenity ( Universal Pictures, 30 September 2005).

represented by Romo Lampkin in Battlestar Galactica, what he is charged with and under what law remain vague.134 Similarly, in Star Trek: The Next Generation, when

Data (Brent Spiner) is the subject of a Star Fleet JAG hearing to determine whether he could be disassembled, argument and submissions revolve around ethical conjuncture about souls and the person/property distinction rather than the citing of ‘hard law’.135 To continue the television emphasis, both times The Doctor from BBC’s Doctor Who is brought to account for his actions by his species (before they were killed off in the Time

War that separated the ‘classic’ Dr Who from ‘contemporary’ series),136 the images were of crime and punishment rather than indictments, procedure and alleged transgression of specific provisions.137 This might not be a fault solely of science fiction’s imagining of court-room drama; as law and literature has discerned, court-room dramas tend to focus on the emotions of witness testimony and the play of advocates in cross-examination, rather than audience alienating pages on precedent, or screen time on procedural argument.138 This absence of law in science fiction was seemingly enacted upon by Frank

Herbert in his little-known ConSentiency series,139 which featured the ‘Bureau of

Sabotage’ (BuSab), the constitutional function of which was to inhibit the workings of

134 Young, The Son Also Rises: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 March 2007); Rymer, Crossroads Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 March 2007); Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007). 135 Scheerer, Measure of Man: Star Trek: The Next Generation (Paramount Television, 12 March 1989). See Joseph and Carton (1992), pp 72–73; Short (2003); Nesteruk (1999). 136 See Cranny-Francis (2009). 137 The finale of the 1969 season, culminating in the Doctor’s regeneration (from Patrick Troughton to Jon Pertwee) and banishment to earth. Maloney, The War Games: Doctor Who (BBC, 19 April– 21 June 1969). The 1986 season comprised a single story arc, ‘The Trial of a Time Lord’. See Clough et al, The Trial of a Time Lord: Doctor Who (BBC, 6 September–6 December 1986). 138 Rafter (2001), pp 22–23. See also Corcos (1997a); Berets (1998). 139 The ConSentiency series spanned the 1964 short story in Galaxy Science Fiction, ‘The Tactful Saboteur’ (Herbert 1985b, pp 159–190) and the novels Whipping Star (Herbert 1970) and The Dosadi Experiment (Herbert 1977b).

planetary and galactic government, thus saving ‘sentiency’ from the oppression of hyper- legality.140

Herbert’s BuSab, while presenting a surface, structural hostility to law, betrays a deeper legality that at times can be glimpsed within science fiction. Herbert’s anxiety about hyper-legality mirrors Lon L. Fuller’s mid-twentieth century reaction against rapidly changing law,141 and as a consequence of this return of law, Herbert’s chief protagonist ‘saboteur extraordinary’ Jorj X. McKie is presented as a lawyer, the only human who has mastered the complex legality of the froglike alien species the

Gowachin.142 Herbert’s suggestion of jurisprudence has earlier echoes. Yevgeny

Zamyatin’s We (1921)143 has not only been recognised by critics as forging some of the familiar tropes of dystopian science fiction,144 but offers a critique of liberal rights.145

This talk of law in science fiction leads to the two best-known of science fiction’s laws,

140 Herbert (1977a), p 6. 141 Fuller (1969), pp 50–51. 142 William F. Touponce has suggested that The Dosadi Experiment is ‘a satire on legalism’ but suggests it is a failure as he perceives Herbert having to ‘make up’ a new exception in Gowachin law to get McKie out of trouble. Touponce (1988), pp 116–117. 143 Zamyatin (1972). 144 ‘Dystopian’ science fiction is defined and discussed in more detail in Chapter 3. On Zamyatin’s influence on George Orwell, see Roberts (2005), p 167. 145 Zamyatin (1972), pp 101–102: ‘Suffering punishment is my right in relation to the One State and I will not yield that right. We, the numbers of our State, must not give up that right – the only, and therefore the most precious, right that we possess … My thoughts tick quietly, with metallic clarity. An unseen areo carries me off into the blue heights of my beloved abstractions. And there, in the purest, most rarefied air, I see my idea of “right’ burst with the snap of a pneumatic tire. And I see clearly that it is merely a throwback to one of the absurd prejudices of the ancients – their notion of “rights” … Well, then, suppose a drop of acid is applied to the idea of “rights.” Even among the ancients, the most mature among them knew that the source of right in might, that right is a function of power. And so, we have the scales: on one side, a gram, on the other a ton; on one side “I,” on the other “We” the One State. Is it not clear, then, that to assume that the “I” can have some “rights” in relation to the State is exactly like assuming that a gram can balance the scale against the ton? Hence, the division: rights to the ton, duties to the gram. And the natural path from nonentity to greatness is to forget that you are a gram and feel yourself instead a millionth of a ton.’

Asimov’s ‘Three Laws of Robotics’146 and the Star Trek franchise’s ‘Prime Directive’.147

Both appear and disappear within their respective texts. Asimov’s laws are static,148 hardwired into the ‘positronic brain’, and the action in the short stories and the detective novels comes from the ambiguity of application. Consequently, the profession called forth by Asimov’s ‘roboticus lex’ is not the positronic lawyer, but the robopsychologist, suggesting that the laws are immutable149 and the only opportunity for professional – indeed clinical – intervention involves understanding the manifestations of pathology to avoid dangerous situational exposure. For Dr Asimov, one-time Assistant Professor in

Chemistry at Columbia,150 the laws of robotics seem more akin to ‘laws of nature’ than

‘law properly called’.151 The Star Fleet’s Prime Directive has a more substantial jurisprudential aura. There has emerged a small legal literature concerned with law in

Star Trek, and specifically the contradictory articulations and functions of the Prime

Directive throughout the franchise.152 The Directive emerges from these discussions as a

146 The first ‘Robot’ short story, ‘Robbie’, was published in Astonishing Stories in 1940. Reprinted in I, Robot (1950) Asimov (2008), pp 1–24. 147 First mentioned in the second season episode of Star Trek ‘Bread and Circuses’: Senensky, Bread and Circuses: Star Trek (Paramount Television, 15 March 1968). 148 Asimov (1967), p 1: ‘A robot may not injure a human being or through in-action allow a human being to come to harm. A robot must obey the orders given it by human beings except when such orders would conflict with the First Law. A robot must protect its own existence as long as such protection does not conflict with the First and Second Law.’ 149 In the millennia over which Asimov traces his future history of robots, the laws remain static. There are stories involving robots with incomplete laws (‘Little Lost Robot’, published in Astounding Science Fiction in 1947. Reprinted in I, Robot (1950) Asimov (2008), pp 112–143) or the formulation of a ‘Zero Law’ hinted by Dr Susan Calvin in ‘The Evitable Conflict’ (first published in Astounding Science Fiction in 1950 and reprinted in I, Robot (1950) Asimov (2008), pp 222–224) and directly articulated much later by Asimov in the bloated 1980s ‘sequels’. See Asimov (1985), p 504. 150 Asimov (1979), p 641. 151 Austin (1998), p 130. 152 Joseph and Carton (1992); Scharf and Roberts (1994); Wingfield (2001); Chaires and Chilton (2003); Peltz (2003).

Captain’s fiat, a way of rationalising chosen actions against what manifests as a fairly

vague standard of non-interference, ‘unless …’153

This small literature on law in Star Trek turns out to be the largest body of law

and culture material on science fiction. There is no sustained monograph, and the only

collection of essays is the four paper symposium in Legal Studies Forum from 1999, and

a 2007 seven-paper special issue of Law, Culture and the Humanities. Within the

literature as it is, the focus is predominately the law in science fiction. Paul Joseph’s and

Sharon Carton’s popularly received154 analysis pieces together the ‘domestic’ Law of the

Federation155 from Star Trek: The Next Generation episodes, while Michael P. Scharf’s

and Lawrence D. Robert’s follow-on article concerns the Federation’s ‘international

law’.156 These articles map how law operates within the Star Trek universe, with only

modest findings concerning how this reflects back on 1990s United States law and

culture. This law in literature focus was repeated by Walter A. Effross who undertook a

detailed cataloguing of the image of lawyer to come from the core texts of cyberpunk.157

There are some contributions that do utilise a science fiction text to draw broader law and popular culture conclusions. In a short book chapter, Joseph, drawing on his earlier mapping project, sketches how a variety of science fictions, particularly the Star Trek franchise, could illuminate substantive issues facing North American law and lawyers.158

More specifically, Christine Alice Corcos has produced catalogues of science fiction texts concerned with cloning and imprisonment as contributions to the legal debates

153 Peltz (2003), pp 639–652. See also Scharf and Roberts (1994), pp 608–610; Wingfield (2001), p 96; Haffner (1996), pp 217–218. 154 Scharf and Roberts document the media interest in Joseph and Carton: Scharf and Roberts (1994), pp 577–578. 155 Joseph and Carton (1992). 156 Scharf and Roberts (1994). 157 Effross (1997). ‘Cyberpunk’ is defined and discussed in more detail in Chapter 3. 158 Joseph (1998), pp 157–166. See also Joseph and Carton (1995); Joseph (1997).

surrounding human cloning and contemporary surveillance and penal technology.159

Kieran Tranter has examined science fiction in the 1940s as providing the cultural background informing the development of international space law.160 Juliet Rogers

considers The Matrix (1999)161 and The Matrix Reloaded162 as exposing the cultural legality behind the Iraqi war.163 This law and popular culture engagement with science

fiction has official backing. In his foundational account of law and popular culture,164

Lawrence Friedman suggests that science fiction’s aliens and alien invasion narratives provide a window into political and legal controversies surrounding both immigration and race.165

Following the republican emphasis in the law as literature scholarship, Anna

Lorien Nelson and John S. Nelson examine feminist science fiction, and particularly

Ursula Le Guin’s Left Hand of Darkness (1969),166 to ‘suggest that post-modern institutions have no need to embrace the modern pathos of bureaucracy’.167 The two

papers that expressly engage with Asimov’s laws of robotics take the analysis in a further

jurisprudential direction. Both Timothy D. Peters and Sage Leslie-McCarthy consider

Asimov’s robot stories within a jurisprudential frame, rather than a substantive popular

culture one.168 This reading science fiction jurisprudentially appears to be an Australian

159 Corcos et al (1999, 1997a). 160 Tranter (2002). 161 Wachowski and Wachowski, The Matrix (Warner Bros, 31 March 1999). 162 Wachowski and Wachowski, The Matrix Reloaded (Warner Bros, 31 March 2003). 163 Juliet Rogers (2007). 164 See Carrillo (2007), p 11. 165 Friedman (1989), pp 1590–1591. 166 Le Guin (1973). 167 Nelson and Nelson (1999), p 653. With a similar agenda, Rosemary J. Coombe examined fanzine and slash literature surrounding Star Trek to talk about culture, identity, gender and free speech. See Coombe (1992), pp 1260–1266. 168 Peters (2008); Leslie-McCarthy (2007).

phenomenon directly facilitated by MacNeil.169 As a consequence, a small group of

Australia-based scholars have published research that has read specific science fiction texts jurisprudentially: Kristy Duncanson exposes the continuing legal order of The

Matrix,170 Mark Rosenthal examines the images of violence in Paul Verhoeven’s Starship

Troopers (1997)171 and Peter J. Hutchings considers the fate of the legal subject post 9/11

through revisiting Blade Runner.172

This survey has revealed a very limited engagement with science fiction by law

and culture. Arguably, the lack of law and lawyers has placed science fiction outside the

purview of law and culture scholars. Also, possibly the mass, juvenile and down-market

status of much science fiction173 has excluded it from serious engagement by legal scholars. Law and literature/law and culture has long expressed insecurity about its place in the legal academy,174 and turning analysis to science fiction could be seen as an

exercise in double marginalisation. However, while not much science fiction has

appeared in law and culture, that does not mean science fiction is absent from legal

scholarship. Indeed, the opposite is true. Legal discourse has, and does, engage with

science fiction texts, images, narratives and tropes. The catalyst that facilitates this

engagement has been technology. For example, in 1976, Laurence H. Tribe – one of the

founders of thinking about law and technology as a general category175 – considered the

future of law and technology with a focus on technologically mediated lives of ‘Clones,

169 MacNeil was the primary editor of the 2007 special issue ‘Galactic Jurisprudence’ in Law, Culture and the Humanities. Peters and Leslie-McCarthy were mentored by MacNeil. 170 Duncanson (2001). 171 Verhoeven, Starship Troopers (TriStar Pictures, 7 November 1997); Rosenthal (2001). 172 Hutchings (2007). 173 Broderick (1995), pp 8–11. 174 Sarat et al (2005), p 4. See Anthony Chase, who places this concern within post-war contempt for commoditised mass culture by the intellectual left: Chase (1986), pp 539–540. 175 See Chapter 2 on Tribe’s impact of law and technology.

Cyborgs and Chimeras’.176 Another, more recent, example is Susan W. Brennen’s

science fiction-derived vision of future humanity of intimate association of humans and

communication technologies, of virtual work and sentient non-biological entities in her

opening to Law in an Era of ‘Smart’ Technology (2007).177 This discovery of science

fiction in legal discourse, beyond law and culture, means the preliminary checks have

been completed, and almost without notice this thesis’s journey has begun. Not with a

shuddering roar but, like many quests, with a gentle step. Recourse to Tribe and Brennen,

to law and technology, suggests it is time to introduce the occupation of technical legality by the law and technology enterprise.

176 Tribe (1976), cited by Smith (1983), p 120. 177 Brenner (2007), pp 2–3.

Stage I: The Law of Technology

The Law and Technology Enterprise

The dazzling advances of scientists and technologists seem to have gone

beyond the comprehension of ordinary people … Scientific and technological

discoveries tumble out of the minds of these modern wizards. Slow-moving

legal institutions find it hard to catch up. Occasionally the law is called on to

provide a response. Instruments such as the Australian Law Reform

Commission are sometimes called into activity to help parliament cope with

the pressures of change. These are not issues confined to scientists and the

medical profession. They present the problems of adapting democratic

institutions developed in the age of the longbow and the horse-drawn cart to

the world of interplanetary flight, computications and bio-technology.

– Michael Kirby, Reform the Law: Essays on the Renewal of the Australian

Legal System, 19831

This chapter argues that technical legality has been occupied by the ‘law and technology enterprise’. This argument is presented in three sections. The first section establishes that lawyers, mirroring popular culture in the West, have increasingly become concerned with

technology, and that this concern can be seen in a growth of scholarship and more

avenues for disseminating scholarship on law and technology. The second section argues that this scholarship is structured by ‘the law and technology enterprise’, a set of

1 Kirby (1983b), pp 236–237.

foundational commitments concerning technology, law and future. This is established

through a detailed examination of the legal literatures that have emerged in response to satellites, in vitro fertilisation (IVF) and ‘virtual-worlds’ over the last 50 years. It will be shown that these literatures share a common structure, the elements of which are: a problematic technology representing the future; existing law considered inadequate; the need for new law; and the lawyers’ task being to describe, analogise and apply policy.

The third section argues that the law and technology enterprise occupies technical legality.

1. Lawyers on Technology

Lawyers, it seems, have a long history of writing about law and technologies. Reflecting

the attitudes that David Nye identified as informing the industrialisation of the United

States from 1850 to 1900,2 the inaugural issue of the Yale Law Journal (1891–92)

contained an article by Harry G. Day that congratulated United States courts for getting it

right by not awarding damages to property owners whose street outlook has been

changed by the construction of electric tramways.3 Day’s lodestar was ‘progress’:

Rapid transit in particular is as indispensable to their [American cities’]

progress as light, sewerage and water, and a system which is clean, quiet,

cheap, easily controlled and occupying as little space as possible is

universally demanded.4

The appearance of motor vehicles inspired Xenophon P. Huddy – also in the Yale Law

Journal – to examine automobiles and the existing road rules in 1905. He concluded that,

2 See Nye (1997). 3 Day (1892). 4 Day (1892), p 267.

‘the automobile [is] one of the least dangerous of conveyances if properly driven’, and

maintained it not require specific restrictive regulation.5 The nascent aviation industry

prior to 1918 generated legal scholarship concerned with the sovereignty of airspace,6 liability arising from aeroplanes7 and the aeronautical laws of war.8 Similarly, the

commercialisation of radio in the 1920s called into being legal writing on radio and the

law of war,9 ownership of radio waves10 and broadcasting regulation.11

These discrete literatures provide evidence for a historical claim that lawyers have

identified and written about the legal challenge of emerging technologies. These were

isolated incidents. The law reviews were not inundated with lawyers writing about

technology. However, Barton Beebe has observed that contemporary lawyers seem to

write excessively about technology.12 The table in Appendix 1 shows there are at least 92 specialist law journals dedicated to law and technology (JOLTs, or Journals of Law and

Technology) and also journals focused on the law of specific technologies (JOLSTs).13

The existence of these journals discloses an active research community publishing on technical legality. Furthermore, many general law journals print articles on technical legality. For example, a brief survey of the contents of leading law reviews in the United

States, United Kingdom and Australia discloses lawyers writing about technology.

Volume 121 of the Harvard Law Review (2007–08) includes a note concerning

5 Huddy (1905), p 86. Huddy’s argument echoed the contemporaneous arguments of the Automobile Club of Victoria which are set out in Chapter 5. 6 Baldwin (1910a); Kuhn (1910); Sperl (1911); Valentine (1912); Myers (1912); Leech (1912); Blewett (1913). 7 Baldwin (1910b); Aviation and the Law (1918). 8 Heinselman (1913). 9 Rodgers (1923). 10 Zollmann (1926); Rowley (1927); Taugher (1928). 11 Davis (1927). 12 Beebe (1999), pp 1772–1773. 13 I would like to take credit for the acronym JOLT but cannot. It seems to be emerging as common parlance within the United States student-run law and technology journals. See http://jolt.law.harvard.edu, accessed 26 November 2008.

biotechnology and the challenge of ‘liberal eugenics’,14 two notes and three case notes

dealing with internet law15 and a case note concerning the evidential status of computer-

generated reports.16 Volume 71 of the Modern Law Review (2008) contains an article

examining the human rights implication from the deployment by state agencies of ethic

profiling technologies,17 while volume 32 of the Melbourne University Law Review

(2008) features an article examining the use of data-matching and surveillance

technologies in social security administration.18

It is possible to argue that the incidence of legal scholarship on technology is

increasing. Table 1 shows that, of the total of 92 JOLTs and JOLSTs, 51 (55%) were established after 1994 and, of a total of 40 JOLTs, 32 (80%) were established after 1994, providing greater opportunities for lawyers to publish on technology. Tempering this argument is the fact that law reviews have proliferated over the last twenty years, with the entry into the legal publishing market of new law schools publishing journals as a way of

establishing and developing research credibility,19 and the reduction of production costs

allowing the publishing of more focused, specialised journals. It seems that concerns in

the late 1990s with the decline of the law review as a forum for the dissemination of legal

research in the digital age have been misplaced.20 While this general expansion of law

reviews could explain the increase of JOLTs and JOLSTs, it does not explain why the

14 Regulating Eugenics (2008) 15 ‘Leegin’s Unexplored “Change in Circumstance”: The Internet and Resale Price Maintenance’ (2008); ‘The Principles for User Generated Content Services: A Middle-Ground Approach to Cyber-Governance’ (2008); ‘Internet Law – Communications Decency Act’ (2007); Internet Law – Communications Decency Act’ (2008); ‘Intellectual Property – Eighth Circuit Holds that the First Amendment Protects Online Fantasy Baseball Providers’ Use of Baseball Statistics in the Public Domain’ (2008). 16 Evidence – Confrontation Clause (2008). 17 De Schutter and Ringelheim (2008). 18 Tranter et al (2008). 19 Gava (1994), p 460. 20 Hibbitts (1996), p 687; Voon and Mitchell (1998).

topic of law and technology (as opposed to self-reflective scholarship on legal

scholarship, for example)21 has specifically been an area of expansion. A parallel

explanation could be found in the ‘corporatist’22 turn within law schools, which now put

increased pressure on legal academics to publish.23 However, because the simple fact that there are more legal academics doing more writing with more opportunity to publish does not explain why legal writing on technology has increased.

Lawyers are writing more about technology because ‘technology’ has become a site of conscious popular concern in the West. The field of technology studies (itself a product of this concern)24 has identified that ‘technology’ entered public discourse in the

Anglo-American West during the 1950s surrounded by a complex of narratives relating to progress and also destruction.25 Three elements of this public reckoning with

technology can be identified. The first is that ‘technology’ emerged as a term and

category for the material manifestation of applied scientific knowledge.26 Technology

was in the world as a concept that was tied to material objects, but also encompassed the

human networks that surrounded and gave life to the thing.27 Second, technology was

problematic.28 It was viewed as good as the celebration of material prosperity of an

21 That is not to say that there has been no scholarship on this topic in Australia. See Ramsay and Stapledon (1997); Smyth (1999b, 1999a, 2002); Stone (2002); Kirby (2002). 22 Thornton (2004), pp 18–19; James (2004), p 592. 23 Gava (1999), p 599; Gava (2002), pp 572–574. 24 Feenberg (1999), p 6. 25 At one level, the Anglo-American West was catching up with the philosophical and political assessment of technology that characterised Weimar thought. This Germanic origin for technological anxiety in the philosophical and political realms is explored in more detail in Chapter 6 when considering Carl Schmitt’s critique of Thomas Hobbes and then is the central focus of Chapter 7 in the consideration of Martin Heidegger’s ontology of technology. On the Weimar impact on technology studies, see Feenberg (2005). 26 Leo Marx argues that ‘technology’ in its contemporary sense only began to enter United States public discourse after 1918. He warns scholars of attempting to reify ‘technology’ and push it back in history. Marx (1997), pp 967, 981–984. 27 Mazur (2004), pp 10–21. 28 Winner (1997).

emerging suburbia of domestic appliances;29 however, it was also bad in terms of the fallout blowing from Hiroshima and Nagasaki,30 which eventually registered in the popular cultural souring of technology, beginning with the counterculture of the late

1960s.31 The third was change. The general category of technology was needed as the

machines were, to borrow from Bob Dylan, ‘a-changin’32 – seemingly evolving

independently of human agency.33 These features framed the emerging public discussion

about technology: technology was newsworthy and any announcement of a new

technology – a breakthrough, a crisis event – would see the generation of public

discussion, in the form of media reports, opinion pieces, feature articles, statements by

political and cultural leaders, new journals, television documentaries and films, grounded on these three features.34 Lewis Mumford, one of the founders of technology studies

articulated the genesis of this concern:

… ungoverned creativity in science and invention has reinforced unconscious

demonic drives that have placed our whole civilisation in a state of perilous

unbalance: all the more because we have cast away at this critical moment, as

an affront to our rationality, man’s earliest forms of moral discipline and self-

control.35

In Chapter 1, this narrative complex of modernity and myth, demons and peril was

located in the Frankenstein myth: this modern and rational world that claimed to have moved beyond tradition and myth had paradoxically unleashed demons. Further, in

29 Henthorn (1997); Rothschild (1983); Bose et al (1984). 30 Boyer (1985), Gamson (1989), p 12. 31 Roszak (1968), Mazur (1981), p 99. 32 Dylan, ‘The Times They Are a-Changin’, The Times They Are a-Changin’ (Columbia, 13 January 1964). 33 Rieger (2003). 34 Hilgartner (1990); Horning (1992); Horning Priest (1994, 1993); Conrad (1997). 35 Mumford (1966), p 57–58.

Mumford the Frankenstein archive’s supplement is directly stated. This monstrous threat

required willed order and control. This is exactly Francis Fukuyama’s much more recent

argument. For Fukuyama, the possible monsters that might be spawned by biotechnology

in ‘our posthuman future’ demand law to prohibit and regulate them, to ensure that such

demons remain fictions.36 It was here in this need to leash the demon and save

civilisation that lawyers found a role.

2. Fifty Years of the Law and Technology Enterprise

In the following, I argue that the law and technology enterprise parallels this identified public concern with technology, a concern that has become increasingly more noticeable since the 1950s with a succession of crisis events framed as involving ‘technology’ as

‘problematic’ and ‘changing’. It will be shown how three specific crisis events – Sputnik

(1957), Louise Brown (1978) and virtual real estate in Second Life (2006) – generated legal scholarship. What is shown is that the three literatures share a common structure, in which the crisis event was captured within a net of positive law doing public policy work.

The elements of this structure – problematic technology, inadequate existing law and the call for new law – encased in a voluminous scholarship of description and analogy; comprises the ‘law and technology enterprise’.

Sputnik

The legal scholarship that followed the launch of Sputnik I by the Soviet Union on

4 October 1957 can be read as providing an early articulation of the elements of the law

and technology enterprise. Lawyers responding to Sputnik saw through the rather modest

36 Fukuyama (2002), pp 197–194.

satellite to focus on a general concern with future space technology that had both positive

and negative potential. This claim of founding status to the Sputnik literature – or, more

precisely, ‘first-generation space law scholarship’, is made in preference to the literature

that surrounded that other post-war technological crisis: nuclear armaments. The legal

literature on the bomb had a deadly serious tone; there was no need for the devastating

potential of that technology to be anticipated – it had been demonstrated.37 The

whimsical theme within first-generation space law scholarship was absent.

In first-generation space law scholarship, Sputnik circulates as anticipation of space

technology and anticipation of space law. It was not so much that the Soviet Union

launched a satellite, but resounding within Sputnik’s radio beeps were the challenge and promise of a new world for lawyers. This had several facets. The first was excited anticipation about the feats and technologies to come: ‘It daily grows more certain that

the space rocket, like the horse, the automobile, and the airplane before it, has come to

stay.’38 Eugène Pépin argued that ‘other satellites will be launched in the more or less near future’.39 Myres S. McDougal and Leon Lipson believed that in 1958 it was:

…not too early to contemplate the use of unmanned orbital satellites for radio

and television relays, for photographic observation of the weather, and for

photographic reconnaissance of events on the earth’s surface; rocket landings

on the moon; the landing of scientific instruments on the moon in working

condition; manned flight in an orbital satellite that can return its human

passengers alive to the earth; manned flight to the vicinity of the moon and

37 See, for example, Newman (1947); Bathurst (1947); Haydock Jr (1948); Shils (1948). 38 Wurfel (1959), p 270. See also Lyons (1961), p 279: ‘but man has not yet, unless unreported, ventured into space. The time cannot be far distant, nevertheless, when efforts will be made to launch a manned satellite.’ 39 Pépin (1958), p 230.

back; and the use of outer space for the part of the trajectory of peaceful

missiles delivering (say) mail or cargo between distant points on earth.40

In their 1959 text, Philip C. Jessup and Howard J. Taubenfeld thought that ‘man may reach the moon by 1963 or 1966 and might even send an eight man rocket to Mars by

1970 or 1980’.41 Further along this technological future, lawyers were perceiving leaps in rocket technology – ‘thermodynamic nuclear rockets, electrical ion rockets and the ultimate, the photon rocket’42 – allowing ‘satellite platforms … exploration teams will land on the Moon or on a planet’43 and the use of satellites to control weather as a weapon.44 Even more speculatively was:

the acquisition of economic resources now know or unknown, such as solar

energy, new forms of radiation, and ultimately mineral or other resources that

are present, and may conceivably become available, on the moon, or other

celestial bodies; and finally, discussed with all casualness of a confident

scientific era, the encounter with sentient or intelligent beings on other

planets.45

Sputnik signified this technological future; however, this signification was coloured by danger. This was the second representation of Sputnik in first-generation space law scholarship. Stephen Gorove saw Sputnik as ‘bondless aspirations, infinite promise, and challenge-ridden perspectives, represent[ing] a panoramic phase with hardly

40 McDougal and Lipson (1958), pp 408–409. 41 Jessup and Taubenfeld (1959), p 200. 42 Haley (1958a), p 269. 43 Pépin (1958), p 233. See also Lyons (1961), p 279 and Gorove (1958), p 306. 44 Gorove (1958), p 307. 45 McDougal and Lipson (1958), pp 408–409, referring specifically to the pre-Sputnik anticipation of Andrew G. Haley. See Haley (1956b, 1956a).

a parallel in our history’.46 John C. Cooper worried that scientific ‘progress [may] have loosed forces which, uncontrolled, may well destroy the civilisation which has created them’.47 Sputnik’s Cold War parentage and its nuclear sibling were never far from the

surface.48 Sputnik represented the promise of a space-faring future, but also a possibility for earth bound destruction: ‘Will it prove a boon to humanity, or are we getting nearer to the day of destruction?’49 For lawyers, Sputnik was problematic technology. This reveals

the third representation of Sputnik as the need for law. Andrew G. Haley, General

Counsel of the American Rocket Society and Chairman of the International Affairs

Committee of the International Astronautical Federation, believed:

Never before in the history of mankind has the necessity arisen so quickly to

state legal parameters in connection with a vast new area of social change.

The legal problems presented by the advent of space flight have been

climacteric and technology has far outstripped the formulation of legal rules.

The gap has widened to the point that the peace of the world is dependent

upon our ability to contain the remarkable and precipitous advance of the

science of technology of space flight within an effective system of laws.50

Haley was not alone. Seymour W. Wurfel suggested that ‘an effective space

jurisprudence may just possibly save the earth from destruction, conserve the solar

system in its present form, and make the universe a bit safer’.51 Gorove believed that at

46 Gorove (1958), p 305. 47 Cooper (1958b), p 218. 48 Wohlstetter (1959); Gorove (1958), pp 305, 327; Editors (1958), p 7; Ward (1959), pp 21–27; McDougal and Lipson (1958), pp 410–411; Jessup and Taubenfeld (1959), pp 222–224. 49 Anfuso (1959), p 1. 50 Haley (1958a), p 262. 51 Wurfel (1959), p 287.

the ‘dawn of the Cosmic Age … technological progress poses a serious threat if the

respective legal problems are not settled beforehand’.52

So in Sputnik, first-generation space law scholars saw visions of a problematic

technological future that needed law today. This put into circulation a series of images and phrases that went on to become established components of the law and technology enterprise’s lexicon: technology had ‘outstripped’ law;53 technology had created a legal

‘vacuum’;54 lawyers should ‘speculate’55 on issues that can be ‘anticipated’;56 and the

proper reception of Sputnik was within the legal ‘imagination’.57 After triggering legal

imaginings of space future that needed law, Sputnik orbited out of first-generation space

law scholarship. Replacing it in the focus of the legal telescope was a more geostationary

concern: the making of positive law. Sputnik explained why the lawyers were writing,

but having justified the project, it was replaced by more orthodox discussions concerning

the making of law.

Sputnik called for law. This was revealed through three approaches in first-

generation space law scholarship. The first was analysis showing that satellites were

outside of legal regimes. It was a common claim that the then existing international law

did not define the upper limit of sovereign territory.58 ‘Rockets’ and ‘satellites’, it was

noted, were not classified as aircraft in the Annexes to the Chicago Convention on

52 Gorove (1958), p 308. 53 Cooper (1956), p 85; Haley (1958a), p 262; Gorove (1958), p 308. 54 Ward (1959), p 11; Lyons (1961), p 271; Simeone Jr (1962). 55 Hogan (1957), p 348 56 Jacobini (1958), p 97. 57 McDougal and Lipson (1958), p 428; Gorove (1958), p 305. 58 Cooper (1957), p 380; Jaffe (1959), pp 377–378; Lyons (1961), pp 273–277; McDougal and Lipson (1958), pp 421–426.

International Civil Aviation of 1944.59 Rhetorical questions were asked about whether

Sputnik interfered with sovereign airspace,60 and generally answered in the negative.61

The second approach involved an imaginative cataloguing of further gaps that space law must fill. These included liability for damage on earth from space borne debris,62 an international system for registering launches and inspections of launch sites,63 regulation

of radio frequencies broadcasted to satellites64 prohibiting the orbital placement of

nuclear armaments,65 ‘road rules’ for an anticipated cluttered orbit,66 property law for

celestial real estate67 and whether ‘the concept of the “Reasonable Spaceman” will be

applied to cases of negligence in the law of Space-Torts’.68 Kenneth B. Keating,

Republican Congressman and a member of the House Select Committee on Astronautics and Space Exploration, suggested that:

Lawyers have their work cut out for them. They must begin to think now of a

space navigation code, a space radio communication code and even a space

rescue code. It may be that in our lifetime, we will be drafting agreements

governing the carriage of goods and passengers in space … Specific attention

59 Convention on International Civil Aviation opened for signature 12 July 1944 [1957] ATS 5 (Chicago Convention) entered into force 4 April 1947; Pépin (1956), p 74; Pépin (1957), p 68; Feldman and Sheldon II (1958); Smirnoff (1958). 60 Cooper (1958a), pp 88–89; Haley (1958b) pp 8–14. 61 Haley (1958a), pp 265–274; Cooper (1958b), pp 319–320; Jacobini (1958), pp 108–110; Pépin (1958), p 229. 62 Pépin (1956), p 75; Editors (1958), p 6; Lyons (1961), pp 283–286; de Rode-Verschoor (1958), pp 103–104. 63 McDougal (1957), p 77; McDougal and Lipson (1958), p 430. 64 Haley (1959a) 65 McDougal and Lipson (1958), pp 430-431. 66 McDougal and Lipson (1958), p 415. 67 Hogan (1957), p 348. 68 Hogan (1957), p 348.

should be given to establishing law school courses devoted to these legal

questions.69

The third approach, for which the other two were preparatory, was the outlining of the process for making space law. There was near-uniform agreement among space

lawyers that the forum for space law was international law: ‘lawyers are of the opinion

that a worldwide agreement – a truly worldwide one – is necessary’.70 However, there

was dispute about whether such an agreement should provide a comprehensive legislative

framework dealing with all the anticipated issues or a more narrow focus on the

immediate issues surrounding the limit of sovereignty with the more speculative issues to

be addressed when, and if, they become urgent.71 McDougal and Lipson favoured the

incremental strategy and argued against a ‘mechanical translation’ of existing legal

concepts to space in the absence of how space exploration and exploitation would

proceed:72

The conquest of space has barely begun. Yet the law of space, instead of

lagging behind the astronauts as some lawyers fear, is threatening to outfly

the attraction of the earth’s gravity. Before legal speculation reaches escape

velocity, we should perhaps remind ourselves of the specific problems that

may confront us soon, the earthly origin of much of our law, and the earthly

ways in which for some time we shall have to continue to think about law in

outer space.73

69 Keating (1958), p 191. 70 Pépin (1958), p 232. See also Pépin (1957), p 68; McDougal and Lipson (1958), p 412; Jacobini (1958), p 117; Feldman (1958); Lipson and deB Katzenbach (1961), p 32. 71 This division was observed in the Staff Report of the United States Select Committee on Astronautics and Space Exploration, Feldman and Sheldon II (1958), p 5. 72 McDougal and Lipson (1958), p 420. This was also the position of Gorove (1958), p 309. 73 McDougal and Lipson (1958), p 407.

Wurfel articulated the alternative argument that a future-focused comprehensive space

law was needed to legalise space exploitation in advance:

Suppose that the first ‘soft’ landing on the moon proves it to be made not of

green cheese, but of pure platinum and radium in alternative layers. Suppose

that space travel discloses that meteor particles provide a sure cure for cancer.

Once consumer demand for space products exists, whether engendered by the

free enterprise system or for the good of the commune, it will be too late to sit

down and work out a dispassionate property law for space.74

Unifying both incremental and comprehensive approaches to positing space law was a belief in the rule of law in outer space. Emphasis was given to the fact that space technology demanded international cooperation, and in that cooperation there lay the possibility for lasting peace.75 Haley argued that:

… space flight is likely to contribute indirectly more to material and spiritual

improvements in living standards all over the planet than any single economic

of social measure. It brings this about simply by creating gradually a more

intense feeling of belonging to the same planetary community.76

President Eisenhower’s several public endorsements of outer space for peace were cited with approval.77 Western lawyers included the opinion of Soviet jurists in their

analysis,78 and the 1959 Space Law Symposium prepared by the Special Committee on

Space and Astronautics of the US Senate contained translated papers by Soviet lawyers

74 Wurfel (1959), p 286. See also Jenks (1956). 75 McDougal and Lipson (1958), p 410; Keating (1958), pp 189–192; Lyons (1961), p 286. 76 Haley (1959b), p 440. 77 Wurfel (1959), p 281; Gorove (1958), p 316; Haley (1959b), p 445; Lipson and deB Katzenbach (1961), p 5. 78 McHahon (1962), pp 345–348; Crane (1962).

Sergei Krylov and G. Zadorozhnyi.79 This linking of space, the rule of international law and peace was challenged by a hawkish minority who saw in the Soviet Union an enemy that was lawless in its actions. According to Rear Admiral Chester Ward, Judge Advocate

General of the United States Navy:

… can peace be enforced through law, regardless of the communists

determination to conquer the world, or else do the leaders of International

Communism do desire peace? … Failure to face this fundamental fact of

twentieth centaury life on planet Earth can distort space law from a sensible

source of hope for a far future in space, to a series of psychological and

military traps to divert, anesthetize, and ultimately destroy the forces of

freedom in this world.80

While Ward, as a Cold War warrior, explains his hostility to space law, his opposition

disclosed a lasting feature of the law and technology enterprise: that there was always a

small minority challenging the mainstream call for law on what amounted to a different

assessment of the technology involved. Ward did not share the common assumption that

Sputnik heralded a problematic technological future that needed law to ensure peace.

Instead, he saw in space technology a highly advantageous field for United States

superiority that should be militarised to defeat global communism.81

Ward’s minority perspective also throws into relief a characteristic of first-

generation space law scholarship that was commented on by its predominately military

critics – that it was a verbose and wordy literature: ‘the pages of law reviews and political

journals have been drenched with writings,’ expressed Lieutenant Colonel Hal H.

79 Kislov and Krylov (1959); Zadorozhnyi (1959). 80 Ward (1959), p 12. 81 Ward (1959), pp 21–27.

Bookout.82 Indeed, as early as 1956 John C. Hogan published the first space law

bibliography, taking up eight pages in the Journal of Air Law and Commerce.83 Hogan’s second iteration, published in 1958, had grown to 54 pages of the St Louis University

Law Journal.84 By 1962, there were several textbooks on space law,85 including

McDougal, Lasswell and Vlasic’s 1103 page (excluding appendixes) opus, Law and

Public Order in Space.86

First-generation space law scholarship provided the foundation for the analysis

that followed in later generations of space law. Each subsequent event – Yuri Gagarin’s

flight, the race to the moon and the United States landing, commercial communication

satellites, the first launch of the space shuttle to much more recently SpaceShipOne and space tourism – were used by lawyers to write about the need for law.87 Further, the

enacting of this called for law – whether national law like the National Aeronautics and

Space Act (1958)88 that established NASA, or the hoped-for international legal regime

that eventually comprised the Outer Space Treaty of 1967,89 the Rescue Agreement of

1968,90 the Liability Convention of 197291 and the Registration Convention of 197692 –

82 Bookout (1960), p 25. See also Quigg (1958), p 95; McDougal and Lipson (1958), pp 411–412; Simeone Jr (1962), p 44. 83 Hogan (1956). 84 Hogan (1958). 85 For example Jessup and Taubenfeld (1959). 86 McDougal et al (1962). 87 Gagarin: Lipson (1961); Delascio (1961); Johnson (1963)); Moon (McDougal et al (1963); Cooper (1966); commercial communication satellites: Chayes and Chazen (1970); Busak (1973); Rankin III (1974); Space Shuttle: Mossinghoff and Sloup (1978); Wolcott (1980); Gorove (1979); SpaceShipOne and space tourism: Freeland (2005); Parsons (2006); Adolph (2006). 88 Public Law #85-568, 72 Stat., 426. 89 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967). 90 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968). 91 Convention on the International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972).

provided further opportunities for scholarly inspection.93 This subsequent literature built

upon the positive foundations, expressed in first-generation space law scholarship, that

law is a way of achieving public policy goals (peace, non-militarisation, fair frameworks

for future exploitation) and the purpose of legal writing was to facilitate this function

through exposing the gaps within existing regimes, describing new laws and assessing the

effectiveness of new laws according to public policy goals. This positivism of space law scholarship rarely went unchallenged. The military opponents questioned the need for law to restrict militarisation because they believed that future victory over the communists lay in space war. They did not question the more fundamental assumption

that law, if appropriate, should be made. In this, George S. Robinson was a lone voice in

his opposition to the positivism of international space law and space law scholarship:

Jurisprudentially inclined minds should be ripe for the opportunity, not

simply to extend the usual anthropocentric legal positivism into the arena of

man-in-space, but to grasp the significance of viewing and evaluating the

social relationships of man in a totally controlled environment.94

Robinson’s law and [cybernetic]society re-conceptualising found little support.95 It stands

as testimony to what space law scholarship was not: it was not a literature that engaged

with technical legality and questioned modern law in technology’s light. Indeed, outside

of moments of imaginative conjuncture concerning futures, its description and analysis

92 Convention on Registration of Objects Launched into Outer Space, opened for signature 12 November 1974, 1023 UNTS 15 (entered into force 15 September 1976). 93 NASA: Teller (1958); Dembling (1959); Outer Space Treaty: Vlasic (1967); Gorove (1969); Adams (1968); Rescue Agreement: Hall (1969); Clute (1970); Gorove (1971); Liability Convention: Foster (1972); Smirnoff (1973)); Registration Convention (Martin (1980). 94 Robinson (1972), p 292. 95 Robinson is only cited by one other author, and then for a ‘blackletter’ proposition regarding contracts made between orbiting astronauts and earth based parties. See March (1983), p 229.

could hardly be called imaginative. It was a practical project concerned with making laws

to regulate.

In summary, first-generation space law scholarship arose as a legal reaction to

Sputnik I that took the satellite as a harbinger of an emerging problematic technology that

needed law. This was a literature where technology called forth law, and the law that was

called was positive law. After all, there was a lawless cosmos to be juridified. This

foundation gave two characteristics to space law scholarship. The first was that lawyers

wrote to show how existing law ‘failed’ to adequately address the challenge of space

technology. The second was description. The lawyer’s role was to describe laws; either existing laws to highlight inadequacies or new laws. Lawyers (again and again, as the volume of space law scholarship attests) confidentially assumed the practical role of describing and assessing the adequacy of posited law within an over-arching public policy framework of desirable and undesirable technological futures. It is these features of first-generation space law scholarship – problematic technology calling forth positive law to secure desirable futures encased in a voluminous legal literature of describing and gap finding – that are replicated in other legal literatures surrounding subsequent technologies.

In Vitro Fertilisation

The announcement by Patrick Steptoe and Robert Edwards in the Letters to the Editor

pages of the Lancet of the birth of the first in vitro fertilisation (IVF) child, Louise

Brown, on 25 July 197896 was immediately regarded by lawyers as a crisis event. The

media images of the newborn were received by lawyers as the next step towards the

96 Steptoe and Edwards (1978), p 366.

problematic future of artificial human reproduction. It was a future that needed law and

needed lawyers to voluminously describe and identify gaps in the existing law. In the

‘IVF and law scholarship’ the positivism that had sustained first-generation space law

became more obvious. The link between rule of law and peace, which for positivists has

been an illicit source of values within their supposedly formal conception of law,97 meant

that early space lawyers (except from the military) tended to agree on the public policy

aims of international space law. With IVF, the public policy values to be secured by law

were more contested. In this context, lawyers cited the ‘ethical issues’, but focused more

on identification of gaps and the abstract call for law.

The reception of IVF by legal scholarship was not accompanied by the lyrical descriptions of new horizons that greeted Sputnik. Lawyers acknowledged that Louise

Brown’s birth was a major ‘media event’ in 1978;98 however, in their own writing IVF

was received as another development within what was called the ‘New Biology’.99 As such, IVF was located as the next step in a continuum of ‘artificial human reproduction’100, which began with artificial insemination (AI), then recombinant DNA

(rDNA), then IVF, embryo transfer (ET) and surrogate motherhood, and would end with

cloning and ectogenesis.101 Indeed, IVF was already allocated into this future history by

97 This comment gestures towards H.L.A. Hart’s ‘basic truisms’ of human existence that ‘arguably’ provide the foundations for the minimum content of natural law: Hart (1961), pp 189–195. The law as the remedy to war has its clear origins in the forging of positivism in the social-contract thought of the seventeenth century, especially Thomas Hobbes. This relationship between law, war and the ‘sovereign’s peace’ is examined in significant detail in Chapter 6. 98 ‘Legal Implications of In Vitro Fertilisation of Human Eggs’ (1978), p 657; Wadington (1983), p 465. See also Cowen (1985), p 563; Cohen (1979), p 319; Turner (1981), p 471. 99 Smith (1976), p 698. 100 Clapshaw (1980–83); Steeves (1979). 101 See, for example, Tuchler (1978); Humphreys (1979), p 429; Turner (1981), p 460; Davies (1984), p 354; Venturatos Lorio (1984), pp 1665–1672; Smith and Iraola (1984).

lawyers in the early 1970s.102 In 1974, Mary Anne Oakley located IVF in a technological

future that involved AI (present), IVF (near future) and cloning (more distant).103 In these

early writings, IVF was anticipated as a further, and troublesome, step towards a

problematic future of artificial human reproduction.

As a consequence, IVF in the law scholarship was considered more of a peril than a promise. Paula Diane Turner in 1981 asked, with the ‘dangers of toxic pesticides and air

pollution, and with so many other technological developments visibly damaging the

quality of life, how is society to react to scientific manipulation of man’s inner

nature?’104 David G. Dickman in 1985 suggested that the ‘clinical application of IVF opens up a Pandora’s Box of problems’.105 This registering of IVF as predominately a

‘peril’106 occurred even when acknowledging its promise in addressing infertility:

Although IVF offers hope to infertile couples, it presents significant hazards.

Because IVF is still experimental, most of the conceptuses fertilized in vitro

will not survive to term. Those who do reach full term may face abnormally

high risk of being born with severe defects.107

IVF as peril opened the way for the call for law. The law was ‘outpaced’.108 In

1979, Sharon M. Steeves predicated that: ‘Our existing legal framework may be inadequate to protect either society or the individual from the consequences of artificial

102 Green (1973), pp 562–563; see also Munson (1975), p 136; Smith (1976), p 711. 103 Oakley (1974), p 385. The Australian Law Reform Commission report into human tissue transplantation in 1977 anticipated IVF and ET, and suggested a separate and dedicated inquiry. See Australian Law Reform Commission (1977), [38], [41]–[42]. 104 Turner (1981), p 459. 105 Dickman (1985), p 826. 106 Davies placed IVF into the same category of concern as nuclear technology, Davies (1984), p 374. 107 Cohen (1979), p 320. Another technique of turning the promise into a peril was to invoke the spectre of the commercialisation of children in the suggestion: ‘Baby-making by noncoital means has become a booming business’. See Hollinger (1986), p 870. 108 Venturatos Lorio (1984), p 1641.

reproductive technology.’109 Sarah A.L. Humphreys argued that the ‘the strides being made in these areas have not been accompanied by similar advances in the law to deal with the unique legal situations these processes [rDNA, cloning, IVF and ET] may produce’.110 Bernard M. Dickens wrote that the ‘biomedical realities of in vitro

fertilization and embryo transfer show the extent of legal lag in Canada’.111 Indeed, most

IVF and law scholars were of the opinion that ‘no direct legal regulation has yet been

imposed on IVF’.112

In making this assessment, lawyers did have to describe the existing law that

concerned IVF. Del Zio v Manhattan’s Columbia Presbyterian Medical Center113 arose from a compensation claim made when an IVF program was terminated. Del Zio was considered inadequate by IVF and law scholarship as the judgment only related to damages arising from the trauma to Mrs Del Zio of having the program cancelled.114 The later decision of Smith v Hartigan115 similarly was described as not providing a

determinative decision on the legalities of IVF.116 Further, the ‘soft-law’ in the United

States that was directed to regulating IVF research – namely the 1976 moratorium and the

revised 1979 guidelines imposed by the federal Department of Health, Education and

Welfare (HEW) – were described.117 However, this description usually focused on the

109 Steeves (1979), p 1077. 110 Humphreys (1979), p 430. 111 Dickens (1980), p 242. 112 Cohen (1979), p 324. See also Lane et al (1983), pp 323, 327; Venturatos Lorio (1982), pp 984– 996; Crabtree (1983), p 902; Bernholz and Herman (1984), pp 9–16; Hollinger (1986), p 867; Annas and Elias (1983), p 208; Steeves (1979), pp 1046-1047; Crabtree (1983), p 902. 113 No 74-3588 (S.D.N.Y., filed Apr 12, 1978). 114 Lane et al (1983), pp 321–323; Venturatos Lorio (1984), p 1670; Dickman (1985), pp 837–839; Frey (1982), p 318. 115 556 F. Supp. 157 (N.D. Ill. 1983). 116 Crabtree (1983), p 911; Dickman (1985), pp 839–841; Venturatos Lorio (1984), p 1669. 117 Katz (1979), p 363; Turner (1981), pp 477–478.

limits of the guidelines to research funded by HEW.118 The conclusion of these surveys

was that the existing law was regarded as inadequate. This justified the demand that IVF

be ‘properly controlled’119 through the making of tailor-made law in the present:

…the question whether science is moving beyond our social and political

ability to deal with the fruits and consequences of its discoveries is highly

relevant. Since technology tends to develop a momentum of its own, then

early legal regulation is necessary so that society is not presented with one

technological fait accompli after another.120

In 1981, not long after the birth of Australia’s first IVF baby, Candice Reed,

Justice Michael Kirby – then Chairman of the Australian Law Reform Commission

– wrote:

Statute law and common law are silent on the profound questions raised by

this new technology. Should we tolerate such a silence, allowing scientists

and technologists to take society where they will, with no prior opportunity

for us as a nation, indeed as a species, to consider the implications and to lay

down the acceptable rules within which these developments will occur?121

In short, the IVF and law scholarship established that IVF was a peril that needed law.

In common with the first-generation space law scholarship, the IVF and law scholarship had an imaginative dimension. Having identified gaps and called for law, the lawyers saw it as their role to consider the implications of IVF. In this, the lawyers were

118 For example, see Katz (1979), p 360; Venturatos Lorio (1984), p 1667; McCartan (1986), p 699. 119 Oakley (1974), p 386 120 Davies (1984), p 354. 121 Kirby (1981), p 1. Similar the editors of the Australian Law Journal wrote in the December issue for 1978 of ‘the necessity for legal controls in regard to these processes of laboratory fertilisation and of subsequent in utero implantment’. See ‘Legal Implications of In Vitro Fertilisation of Human Eggs’ (1978), pp 657–658.

called upon to ‘of necessity be speculative’.122 They were encouraged to ‘brainstorm’123 and be ‘creative’.124 It was suggested that the ‘prescience of the law in the area of IVF

will preclude abuses of this novel technology’125 and ‘a concerted effort should be made

to regulate the foreseeable problems generated by currently available procedures’.126

Having established IVF as a problem that called for law today, the IVF and law scholarship turned to the speculative task of identifying the ‘range of possible legal problems’.127

These were confidently foreseen. In this, the continuum of artificial human

reproduction suggested that the known problems with AI would be replicated with IVF.

By 1978, there was a dedicated literature considering law and AI that stretched back to

the 1940s. This literature established that artificial human reproduction threw up three

sets of issues: the first concerning the legitimacy of artificially conceived children;128 the second on medical liability;129 and the third a quaint (at least to twenty-first century

sensibilities) discussions of whether AI amounted to adultery at common law.130 Louise

Brown represented an opportunity to revisit these concerns. This return had two

122 Mahlon Blow (1982), p 169 123 Wadington (1983), p 467. 124 Wadington (1983), p 477. 125 McCartan (1986), p 727. 126 Steeves (1979), p 1077. 127 McNabb (1984), p 11. 128 This involved discussion of a line of authority in common law jurisdictions that began with the UK divorce case R.E.L v E.L. [1949] 1 All Eng LR 141. Schock (1942); Masters (1953), p 379; Levisohm (1959), pp 22, 24–26; Verkauf (1966), pp 302–306; Dienes (1968), pp 276–284; Weinstock (1971), p 384; Carr IV (1973), pp 131–140. 129 Koerner (1948), p 494; Verkauf (1966), pp 282–285, 306–307; Carr IV (1973), p 128. 130 This involved discussion of a line of authority in common law jurisdictions that began with the Canadian divorce case Orford v Orford 58 DLR 251 (1921). Koerner (1948), p 495; Masters (1953), pp 377–378; Levisohm (1959), p 20; Massey Jr (1963), pp 78–80; Verkauf (1966), pp 294–297, 299–302; Dienes (1968), pp 260–276; Smith (1968), pp 134–141; Weinstock (1971), pp 380–384; Oakley (1974), pp 386–390; De Stoop, writing in Australia made the point that the passing of the Family Law Act 1974 (Cth) removed adultery as a concern for AI and Australian family law: De Stoop (1976), p 300.

manifestations. The first manifestation was that IVF and law scholarship focused on the

question of legitimacy of IVF children,131 medical liability arising from harm to the

children or women132 and, to a lesser extent, adultery.133 As it was believed that ‘Legal

clarification of AI [wa]s a necessary prerequisite for regulating IVF and embryo

transplanting’,134 most papers had a dedicated section, usually towards the beginning,

reviewing the legal response to AI.135

This did not exhaust the legal imagination. Reflection on the possible legal dilemmas of IVF threw up a series of more novel concerns. In order for Louise Brown to be conceived in a test tube, viable ovum had to be extracted from Lesley Brown, and ET was needed to place the embryo into her womb. In this, IVF also made possible ovum donation, gamete and embryo freezing, and gestational surrogacy (that is, where the birth mother would have no genetic relationship to the child). While sperm donation and the spectre of ‘sperm banks’ was a feature in the earlier AI and law scholarship, it was discussed in legitimacy terms of ensuring that the male donor’s identity be kept confidential and that no legal relationship be imposed between the donor and biological

131 Steeves (1979), pp 1077–1079; Flannery et al (1979), pp 1319–1321; Humphreys (1979), pp 446– 448; Andrews (1982), p 209; Frey (1982), pp 334–341; Crabtree (1983), pp 917–928; Mason (1982), pp 347–348, 351–352; Lupton (1985), pp 290–295; Atherton (1986). 132 Katz (1979), pp 357–360; Cohen (1979), pp 328–335; Flannery et al (1979), pp 1333–1345; Dickens (1980), pp 262–267; Turner (1981), pp 473, 478–479; Mahlon Blow (1982), pp 175–183; Venturatos Lorio (1982), pp 996–1010; Lane et al (1983), pp 334–344; Frey (1982), pp 996–1006; Bernholz and Herman (1984), pp 19–43; Davies (1984), pp 363–366; Robertson (1986), pp 991– 1000. 133 Venturatos Lorio (1982), pp 987–988. 134 Oakley (1974), pp 390–391; see also Smith (1976), p 715. 135 Katz (1979), pp 353–356; Steeves (1979), pp 1050–1051, 1071–1076; Scott (1981), pp 199–214; Turner (1981), pp 460–471; Andrews (1982), p 206; Mason (1982), pp 348, 350; Frey (1982), pp 312–316 Crabtree (1983), pp 912–916; Wadington (1983), pp 468–473; Clapshaw (1980– 1983), pp 255–262; Venturatos Lorio (1984), pp 1643–1653; Lupton (1985), pp 277–289; Priest (1988), p 537.

children.136 The possibility of ovum donation raised more fundamental questions about law’s role in maintaining concepts such as ‘motherhood’ and ‘family’ in a situation where they no longer seemed as ‘natural’ as before.137 The possibility of gamete and embryo freezing gave rise to two imagined concerns. The first was with the rights of children to be138 – a concern that became topical with the 1984 ‘orphaning’ of two frozen embryos due to the death of their ‘parents’ in an aeroplane accident.139 The second, related to the destruction of surplus embryos, was analysed as analogous to the laws and ethics surrounding abortion.140 Further, gestational surrogacy opened the way for questions on the proper regulation of the ‘womb market’,141 an area of inquiry that was later to be occupied by Richard A. Posner and his critics.142

At this point, a difference can be seen between the IVF and law scholarship and first-generation space law scholarship. Sputnik registered in international law; Louise

Brown in domestic law. This domestic location created opportunities for lawyers, as specific literatures were called for, analysing specific technologies according to laws of specific jurisdictions. It also opened the way for comparative literatures comparing

136 For example, see Verkauf (1966), pp 304–306; De Stoop (1976), pp 303–304. The issue of incest arising through the wide spread use of AI by donor from confidential sperm banks was discussed by some writers (e.g. Smith, 1968, p 133) The fact that the pre-1978 writers on AI and law were male might explain the framing of this issue in terms of ensuring that sperm donors remain separate, autonomous and not responsible for offspring. 137 Annas and Elias (1983), pp 214–216; Lane et al (1983), pp 329–330; Davies (1984), pp 373–374; Robertson (1986), pp 1001–1010, 1024–1033. 138 Annas and Elias (1983), p 210; Scott (1984), p 409. 139 Smith II (1985); Dickman (1985), p 834. 140 King (1979), pp 1650–1687; Cohen (1979), pp 329–332; Dickens (1980), pp 242–245, 251–252; Venturatos Lorio (1982), p 981; Dickman (1985), p 831; Bernholz and Herman (1984), p 17; Davies (1984), pp 367–373; Robertson (1986), pp 977–981. 141 Humphreys (1979), p 442. See also Porte (1979), p 85; Dickens (1980), pp 259–262; Scott (1981), pp 217–220; Venturatos Lorio (1982), p 983; Annas and Elias (1983), pp 216–223; Wadington (1983), pp 474–477; Sappideen (1983), pp 85–87; Clapshaw (1980–1983), p 266; Venturatos Lorio (1984), pp 1673–1674; Hollinger (1986), pp 870–928. 142 Posner (1989); Posner (1992), pp 420–429; Williams (1994), p 914; Hatzis (2003).

jurisdictional responses.143 In the IVF and law scholarship, while the speculative task of

predicting the legal implications of IVF was common, the analysis of that impact needed

to be repeated for each jurisdiction. Therefore, United States scholars also considered

IVF in relation to the Constitution and whether the right of privacy – particularly as it

was explained in Roe v Wade144 – suggested a ‘right of reproductive freedom’ that might

limit federal and state regulative powers.145 This mingling of IVF with rights was not

prominent in the Canadian and Australian scholarship, where competency to regulate was assumed, and the constitutional issue, when it was addressed, was concerned which tier in the federal structure had legislative authority.146 In unitary jurisdictions such as the

United Kingdom, Northern Ireland, New Zealand and France, executive and legislative authority was a non-issue and the specific IVF literature was limited to the established artificial human reproduction concerns of legitimacy, liability and adultery, together with discussion of the most appropriate regulative agency and model.147

It is at this point, after establishing an absence of law within national jurisdictions

to deal with ‘specific legal problems raised by existing or possible reproductive

technology’,148 that the positivism of the IVF and law scholarship becomes evident. It

might be expected that all this talk of needed law would ground specific proposals.

143 For examples of IVF and law literature that presented a comparative analysis, see Scott (1984), p 413; Litterio (1986). 144 Roe v Wade 410 US 113 (1973). 145 Ethics Advisory Board (1979), pp 63–71; Steeves (1979), pp 1052–1061; Cohen (1979), pp 325– 327; Flannery et al (1979), pp 1302–1319; Porte (1979), pp 69–73; Turner (1981), p 475; Robertson (1983); Dickman (1985), p 845; Eccles (1985), pp 1040–1046. Robertson (1986), pp 954–966. 146 In Australia: Mason (1982), pp 353–354; Kirby (1983a), p 2; Family Law Council (1985), pp 12– 13). In Canada, Dickens’ analysis progressed on the assumption that IVF was a provincial responsibility: Dickens (1985), pp 281–286. See also the Ontario Law Reform Commission (1985), p 111. In Australia, Kirby expressed concern in 1983 that IVF as a state responsibility created obstacles to uniform national IVF laws: see Kirby (1983a), p 8. 147 United Kingdom: Cusine (1979); Brahams (1983); Priest (1988); Northern Ireland: Davies (1984); New Zealand: Clapshaw (1980–83); France: Revillard (1974), pp 386–396. 148 Drahos (1985), p 270.

Instead, there was a desire to make law but a reluctance to state the values that such law

should posses. The called for law was, in the main, empty. The sign of this absence was

the phrase ‘ethical issues’.

Most IVF and law scholarship had a section titled ‘Ethical Issues’.149 In that

section, the lawyer surveyed the competing positions on IVF. What was remarkable was

that this survey remained only a mapping of the ethical landscape. It usually made

mention of Leon Kass’s project of establishing ‘bioethics’ as a brake on biomedical

research, and particular mention was made of his 1971 article decrying IVF as

unethical.150 Similarly, the Catholic position – especially Pope Pius XII’s 1956 decree

condemning artificial human reproduction – was documented.151 Parallel with these were statements by IVF pioneers, like Robert Edwards152 or Alan Trounson,153 on the positive

application of IVF technology.154 The lawyer wrote in order to appear even-handed to

these competing positions: ‘Some even suggested that such research be monitored or

possibly even banned. Others greeted the successful birth as a humanitarian milestone

that could open the way to childbirth for many women previously unable to conceive.’155

Indeed, the imagery of the hand was prominent. The cataloguing of different positions was often smoothed over with phrases such as ‘on the other hand.’156 Lawyers noted that

positions regarding the ethics of IVF depended on the ‘legal and moral definitions of

149 For example, Venturatos Lorio (1982), pp 978–984; Lane et al (1983), pp 316–321; Scott (1984), p 415; Dickman (1985), pp 830–833; McCartan (1986), pp 701–710. 150 Kass (1971). For examples, see Cohen (1979), p 320; Eccles (1985), p 1038; Davies (1984), p 354. 151 Pius XII (1956), p 42. For examples, see Turner (1981), p 463; Scott (1984), p 408; Lane et al (1983), p 319. 152 Edwards (1974). 153 Leeton et al (1982). 154 For example, Mahlon Blow (1982), p 169; Venturatos Lorio (1982), p 979. 155 Wadington (1983), p 465. 156 Cohen (1979), p 324.

humanity, life and person’,157 and the answering of questions like ‘Is sterility an

illness?’158 and ‘When is the origins of human life?’159 However, these were not

questions that the IVF and law scholarship answered. In this, it played a curious role. It established a problematic technology – indeed, the existence of competing positions was cited as evidence of its vexed nature160 – and from this problematic technology it called

for law and then speculated on the problems that law might regulate. But at the critical

moment of considering the substance of this called for law – on whether IVF should be

banned, when embryos acquire legal personality, whether IVF should be limited to de

jure married couples, whether frozen embryos should be destroyed – it fell mostly silent.

The only area where lawyers were confident to posit the substance of law was in regard

to the inheritance rights of AI and IVF children where it was agreed that equality

demanded legislation to declare such children legitimate.161

This aversion to values is what is to be expected of positivist legal scholarship in

which the law is regarded as a tool to secure policy goals, but the lawyer remains aloof as

to the value of those goals.162 As was glimpsed in the first-generation space law, the only

direction for legal writing, once problem, gaps and speculation were catalogued, was a

description of law-making and a description of made law. This meant that, as IVF

became more widespread over the early 1980s, lawyers could only turn to descriptions of

the emerging law-making processes and laws within the national jurisdictions. The UK

157 Turner (1981), p 474. 158 Revillard (1974), p 385. 159 Dickens (1980), pp 245–257; Venturatos Lorio (1984), p 1668; McCartan (1986), pp 702–705. 160 Brahams (1983), p 859. 161 Two writers go so far as to print the text of their suggested legislation: see Frey (1982), pp 334– 341; Crabtree (1983), p 925. 162 Tamanaha (2006), p 104; Hart (1963), p 2.

Warnock Inquiry and subsequent report163 was widely covered.164 Indeed, even in United

States literature, Warnock – as a documentation of the ‘ethical issues’ – became the standard reference for the vexed and difficult nature of IVF.165 In Australia, the various

jurisdictional inquiries and reports were described,166 with particular emphasis given to

the Waller Reports in Victoria167 and the subsequent Status of Children (Amendment) Act

1984 (Vic) and Infertility (Medical Procedures) Act 1984 (Vic).168

Most contributors to the IVF and law scholarship were unreflective about this

‘end’ to their scholarship, with the exception of Justice Michael Kirby. As Chairman of the Australian Law Reform Commission, Kirby occupied a privileged position in relation to the legal response to IVF. For Kirby, IVF was not a challenge to law or ethics, but rather a challenge to the ‘health of our democratic institutions’.169 He regarded IVF as:

… not a matter for doctors and scientists only, or for lawyers alone …

Neither legal imperialism nor medical paternalism, nor even scientific

inevitability should carry the day. Where issues of life and death are involved,

we must seek out an informed community consensus.170

It is Kirby who expressly draws a political justification for the positivism that framed the

IVF and law scholarship. He cites the Hart/Delvin debate – ‘it seems to me that the old

163 Warnock (1984). 164 Davies (1984), pp 373–374; Cowen (1985); Priest (1988), pp 535–537; Kirby (1986), pp 204–210. 165 See, for example, Annas and Ellis (1985), p 147; Robertson (1986), pp 967–1032. 166 ‘Australian Inquiries into Legal Aspects of In Vitro Fertilisation’ (1982); Drahos (1985), p 283; Family Law Council (1985), pp 18–24, 124–125. 167 Waller (1983, 1984). 168 Kirby (1983a), pp 6–7; Corns (1984); Kennan (1985), pp 489–490; Skene (1985), pp 385–389; Sappideen (1986). The Victorian legislation was also held up as a model by the Ontario Law Reform Commission: see Ontario Law Reform Commission (1985), pp 131–37. 169 Kirby (1983a), p 10. 170 Kirby (1981), p 2.

debate is now relevant to the pressing issues of bioethics’171 – and declares Hart’s

preference for plastic law that is not beholden to morality the winner.172 This affirmation

of posited law was justified by an over-arching commitment to a liberal democratic

framework for law-making procedure. Kirby celebrated that the various Australian law reform commissions inquiring and reporting on medico-legal dilemmas were considered world leading.173 He described the institutional process of law reform commission

inquiries → reports → law-making → law as a worthy ‘technique of law

development’174:

… with its procedures for interdisciplinary consultation, public hearings,

discussion on the media and widespread community involvement, [the law

reform commission] provides legislators with a well fashioned instrument by

which to tackle the ‘too hard basket’ of legal change.175

There are two things worth noting in Kirby’s position. The first was the

technological metaphors – ‘technique’ and ‘procedures’. The second was Kirby’s

implicit account of law as the handmaiden to policy, which is properly to be

decided elsewhere.

In summary, the IVF and law scholarship followed commitments that were laid

down in first-generation space law scholarship: problematic technology, call for law,

speculation of future legal problems, emphasis of gaps in existing law, and description of

emerging laws and law-making processes. Further, like the Sputnik-era literature, the IVF

171 Kirby (1983a), p 5. 172 Kirby (1983a), p 10. 173 Citing Harvard (1983), p 165. It was argued that the United States should follow the United Kingdom and Australia in having commissions to investigate and recommend the regulation of IVF. See McCartan (1986), p 726. 174 Kirby (1983a), p 10. 175 Kirby (1982), p 14.

and law scholarship was accompanied by bibliographies176 and comments regarding

bulk.177 It also shared a very small minority literature that questioned the orthodox

narrative. Anita C. Porte, like the military critics of first-generation space law

scholarship, argued against the need for legislation, based on an assumption that IVF was

not problematic and it was best left to the market (and contract, consumer and medical

negligence laws) to allow choice.178 However, Porte was not anti-law. She merely believed existing private law was adequate.

Through the IVF and law scholarship, some features of the law and technology enterprise that were only traces in the earlier Sputnik scholarship can be seen more clearly. The most prominent is the positivist frame – the aversion to values and the emphasis on gaps, description and law-making. The second is the inclusion of an

‘Overview of the Technology’ section in which the lawyer, with a degree or otherwise of comprehension, summarises the technical dimensions of AI, IVF and ET.179 The third is

the emergence of law student authors. There were law student contributors to first-

generation space law;180 however, by 1978–86 the number of student contributors seemed

to be increasing.181 Read together, first-generation space law scholarship and IVF and

law scholarship reveal the key characteristics of law and technology enterprise.

Problematic technology grounded analysis concerned with speculation about future use,

176 For example McNabb (1984). 177 Annas and Elias (1983), p 207; Drahos (1985), p 270. 178 Porte (1979), p 87. 179 Katz (1979), pp 351–353; Humphreys (1979), pp 431–434; Cohen (1979), pp 321–323; Frey (1982), pp 170–171; Venturatos Lorio (1982), pp 975–978; Annas and Elias (1983), pp 201–206; Lane et al (1983), pp 313–316; Davies (1984), pp 355–356; Bernholz and Herman (1984), pp 6–9; Dickman (1985), pp 820–925, Eccles (1985), pp 1034–1036; Robertson (1986), pp 947–951. 180 See, for example, Cerny (1958); Bookout (1960). 181 See, for example, Cohen (1979); Dickman (1985). This increase in student authorship between 1950 and 1980 was a pattern identified by Stadler in her analysis of the Harvard Law Review from 1946 to 2003. See Stadler (2006).

identification of gaps and the call for law, leading to descriptions of law-making and of laws as made, all against a positive backdrop of the lawyer (or law student) agnostic to the competing value positions, and concerned with the ‘practical’182 task of implementing public policy that has been decided elsewhere.

Virtual Worlds

Online virtual gaming environments, or ‘virtual-worlds’,183 became a subject of popular concern in 2006. This was the year that BusinessWeek in the United States ran a cover story featuring Anshe Chung, an avatar from Linden Lab’s Second Life who had successfully speculated on virtual property, and in the process made a ‘real-world’184 income for her ‘player’,185 Ailin Graef.186 As with Sputnik and Louise Brown, the media attention quickly translated into copy in law journals,187 and lawyers – in what will be called the ‘virtual-worlds and law’ scholarship – compounded reports on virtual real estate with other reports concerning virtual theft and fraud,188 virtual sexual abuse,189

182 Humphreys (1979). 183 There are multiple terms to cover these environments. ‘Virtual-worlds’ is the most common in the legal literature. Edward Castronova objects to the use of ‘virtual’, as it conjures unhelpful imaginary of full-body immersion ‘virtual reality’ as it was anticipated in the 1990s. Instead, Castronova advocates for the term ‘synthetic worlds’: Castronova (2006), pp 9–22. A more technical description from computer gaming is MMORPG (Massively Multiplayer Online Role- Playing Games), reflecting their genealogy in paper and dice role-playing games, like Dungeons and Dragons (D&D) and the first-generation, text-based online translations of D&D, MUDs (Multi-User Dungeon): see Dovey and Kennedy (2006), p 95; Taylor (2006), pp 21–29). 184 The term for the non-virtual-world is contested; however, the consensus in the legal and sociological literatures appears to be ‘real-world’. See Boellstorff (2008), pp 20–21. 185 Again, the term for the human who controls the avatar is contested with no clear consensus of ‘user’, ‘resident’ or ‘player’. While Boellstoff, as a virtual anthropologist, prefers the term ‘resident’, which merges human and avatar identity, this chapter will use the term ‘player’ to keep the real-world human separate from the virtual existence. See Boellstorff (2008), p 22. 186 ‘My Second Life’ (2006); see also Meadows (2008), p 64. 187 Hunt (2007), p 143; Chin (2007), p 1306; Keupink (2007), p 168. 188 Chen (2006), pp 1067–1068; Holdaway (2007), p 2; de Zwart (2008), p 79; Brenner (2008), pp 58–60. 189 Abrahams (2007b), p 298; Meek-Prieto (2008), pp 90, 102–104; Brenner (2008), pp 90–92.

virtual financial collapses190 and reports of real-world concerns of addiction,191 money

laundering192 and murders arising from virtual-world disputes193 to suggest a crisis event

that needed law. Virtual-worlds and law scholarship manifested the same basic structure

as first-generation space law scholarship, and the IVF and law scholarship. Lawyers

established that virtual-worlds heralded a problematic technological future that was

inadequately regulated by existing law. As in the earlier literatures, law was perceived as

needing to catch up. This call for law was, again, founded on speculation and descriptions

of technologies, law and law-making, encased in a voluminous scholarship involving

significant amounts of student authorship. While lawyers were bolder in the virtual-

worlds and law scholarship when it came to espousing and adopting diverse policy

positions, the underlying positive frame of instrumental law remained.

For lawyers, virtual-worlds were problematic because the boundaries between the

‘game’ and the real-world were permeable. This permeability was mapped in several

directions. First, the ‘cross-border problem’194 – the connection between the real economy and the virtual economy – was noted.195 The primary representation of this was

the formal exchange mechanism available for converting real-world currency into L$

(Linden dollars, the currency in Second Life) and L$ into real-world currency.196 The

secondary representation was the existence of virtual property and player accounts for

190 Rosette (2008), pp 284, 287–288; Kunze (2008), p 103; White (2008), pp 237–238; Stoup (2008), p 342. 191 Lastowka (2008), p 907; Rosette (2008), pp 293–294. 192 Abrahams (2007b), p 299; Rosette (2008), pp 290–293. 193 Abrahams (2007b), p 305; Chen (2006), p 1059. 194 Jankowich (2005), pp 184–186. 195 Lastowka and Hunter (2004), p 9. 196 Mayer-Schönberger and Crowley (2006), p 1789; Caramore (2008), p 11; Mack (2008), pp 753– 755; White (2008), pp 231–232.

sale on eBay,197 and the citing of Edward Castronova’s foundational 2001 study on the

virtual and real economics of Sony’s EverQuest.198 Virtual-worlds had become a ‘multi-

billion dollar economy’,199 and it was commonly noted that in 2007 many transnational

corporations had acquired a virtual presence.200 The second permeability related to the

real property–virtual property relationship. Linden Lab’s declaration that players

possessed ‘rights’ in objects that the player created within Second Life was

documented,201 and questions were being asked about protecting that property from real

or virtual appropriation, as well as the question of appropriation of real-world intellectual

property within virtual-worlds.202 The third issue related to the crossover between virtual

behaviour and real-world crimes, particularly theft203 and child pornography.204 The fourth was the practice of ‘gold farming’ in Mexican and Chinese sweatshops, where lowly paid workers toiled online to amass virtual property which their employers sold for real-world currency.205 However, balancing these concerns were more optimistic

assessments. Jerry Kang, writing in the Harvard Law Review in 2000, saw in the

emergence of avatars the possibility for ‘cyber-passing’:206 the potential for players to

197 Lastowka and Hunter (2004), p 38; Schwarz and Bullis (2005), p 16; Saunders (2007), p 229. 198 Castronova (2001), cited by Jankowich (2005), p 176; Fairfield (2005), p 1050; Blazer (2006), p 138; Kayser (2006), p 60; Glushko (2007), p 507; Archinaco (2007), p 25; Sheldon (2007), p 754; Holdaway (2007), pp 1–2; Reuveni (2007), p 267; Macrae (2008), p 325. 199 Abrahams (2007b), p 295; Kane and Duranske (2008), p 10. 200 Chin (2007), p 1314; Kane and Duranske (2008), p 10. 201 Lessig (2006), p 111; Hunt (2007), p 150; Chin (2007), pp 1321–1323; Caramore (2008), pp 1–2, 4; de Zwart (2008), p 81. 202 Dougherty and Lastowka (2008); Lastowka (2008); Kane and Duranske (2008), p 1. 203 For example, see Saunders (2007), pp 234–240; Arias (2008), p 1304. These accounts drew upon the 2005 study by Chen et al documenting Taiwanese police investigations of virtual-world theft. See Chen et al (2005), pp 249–258. 204 Keupink (2007), p 167; Meek-Prieto (2008), p 89. 205 Lastowka and Hunter (2004), pp 39–40; Saunders (2007), p 230; Arias (2008), p 1303. A final example of the problematic nature of the virtual-worlds was that Richard A. Posner had used Second Life as a forum for book promotion. See Chin (2007), p 1315; Kane and Duranske (2008), p 9. 206 Kang (2000), p 1179.

experience living as a different gender or race and the hope that such experiences could facilitate greater empathy and understanding.207 Notwithstanding Kang’s early optimism, however, the balance of the virtual-worlds and law scholarship framed virtual-worlds as problematic.

Parallel to the documenting of these concerns was legal analysis that current real- world law did not adequately regulate the virtual-world–real-world nexus. This task of examining the law was framed and rendered urgent by a belief that virtual-worlds were the future. Bettina M. Chin elaborated this vision:

With the world paying close attention to the technological advancements in

Internet usage and the opportunities that virtual worlds can offer, the law

must do the same in order to protect the livelihood of Second Life residents.

As more users participate and find innovative ways to make full use of the

virtual platforms, Second Life will eventually evolve from a digital medium

of social interaction to an actual, organic culture.208

This inevitable framing of virtual-worlds as destiny was repeated: ‘Data indicate that virtual environments of all types, not just Second Life, will continue to play an increasing role in modern society and more and more users join and bring increasing amounts of capital into the online world.’209 For some lawyers, virtual-worlds were to become increasingly used in the future as an escape from the problems of the real-world:

The real world is increasingly expensive, crowded, and legislated. The only

place where many people can experience personal freedom is in the virtual

207 Kang (2000), p 1181. 208 Chin (2007), pp 1315–1316. 209 Mack (2008), pp 755–756; see also Jacob Rogers (2007), p 411.

world, where they can manifest their fantasies and explore the wide-open

expanses that were once commonly available in the real-world.210

Often the inevitability of a virtual future was associated with technological speculation:

Bearing in mind the commercial applications [of virtual-worlds] and the

astounding and rapid uptake of technologies such as Google Earth, it is not

out of the question that these technologies may fuse, and produce some kind

of hybrid; a place where one wanders the globe through an avatar, walking

into clothes stores in Paris or Rome, chatting to the assistant, and trying on

virtual clothes (‘I’ll take two: a real one for me and a virtual one for my

avatar’).211

Lawyers were convinced that virtual-worlds would get more realistic,212 and that

motion sensor technology would eventually develop and merge with high-resolution and

complex virtual-worlds to deliver the dream of virtual reality.213 Woodrow Barfield

foresaw the ‘intelligent avatar’ that would ‘create works independent of human input’.214

More immediately, lawyers anticipated the development of the ‘universal avatar’215 and

portable virtual property216 that would allow avatars to move between worlds and retain

their virtual possessions. Other lawyers saw virtual-worlds as the future for legal

210 Kayser (2006), p 62. 211 Holdaway (2007), pp 6–7. 212 Lin (2008), pp 86–88. 213 Meek-Prieto (2008), pp 95–97. 214 Barfield (2006), pp 653, 662. 215 Meek-Prieto (2008), p 97. 216 Fairfield (2005), p 1059; Kane and Duranske (2008), p 14.

education217 or as a simulation environment for assessing of legal, political and economic

responses to normative structures.218

Having framed virtual-worlds as harbingers of a virtual future, the virtual-worlds

and law scholarship saw law as an inevitable aspect of this future: ‘As governments and

other real-world agencies and regulators become cognizant of the personal risks involved,

notably fraud and money laundering, they are certain to step in.’219 F. Gregory Lastowka

and Dan Hunter, in an extensively cited 2004 article,220 wrote: ‘In the far future, as the

world’s communities increasingly begin to operate through avatar agents in persistent

virtual communities, courts will surely need to recognize cyborg rights in some form or

another.’221 As human occupation of virtual-worlds increased, so would real law’s

engagement: ‘In those increasingly common instances where a player utilizes the virtual-

world as his primary means of income, a court may strike terms directly impinging the player’s ability to earn a living.’222 David R. Johnson wrote: ‘If the affordance of online

games … enable[s] us to create new kinds of organizations, then we’ll face the question

[of] whether and to what degree to grant these organizations legal personhood.’223

Further, because the ‘traditional problems of human nature and conflict persist’,224 there

217 Chen (2006), p 1082; Ward (2007), p 44; Kunze (2008), p 107; Murley (2008); Horowitz (2008), pp 230–240; Townsend Gard and Goda (2008). 218 Mnookin (1996); Grimmelmann (2004); Bradley and Froomkin (2004); Lastowka and Hunter (2004), p 11; Ward (2007), p 43. 219 Rosette (2008), p 299. 220 Lastowka and Hunter (2004), cited by Katsh (2004), p 289; Jankowich (2005), p 176; Kayser (2006), p 60; Blazer (2006), p 139; Mayer-Schönberger and Crowley (2006), p 1801; Glushko (2007), p 512; Chin (2007), p 1305; Lederman (2007), p 1621; Sheldon (2007), p 760; Holdaway (2007), p 2; Reuveni (2007), p 264; Zack (2007), p 228; Kerr (2008), p 416. 221 Lastowka and Hunter (2004), p 72. 222 Reuveni (2007), p 302. 223 Johnson (2004), p 59. 224 Mayer-Schönberger and Crowley (2006), pp 1790–1791. Also: ‘But the onslaught of real-world politics and law into the virtual space is, and should be, inevitable. As the next step in technology, virtual-worlds “are where video and VCRs were in the early 1980s, or where the Web was in

would be the need for law to resolve disputes: ‘Criminal sanctions imposed offline for …

in-world conduct are not outside of the realm of possibilities.’225 A cohort of lawyers

anticipated the inevitability of taxation on virtual transactions and property.226 Jack M.

Balkin, in another widely cited piece from 2004,227 was particularly insistent on the

inevitability of real law in virtual-worlds: ‘As people spend more and more time in virtual worlds, and as their senses of self become increasing bound up with them, these sorts of

arguments [assault, theft, defamation] may become more plausible.’228 However, this speculation was not limited to real law; lawyers also were dreaming of the need for in- game virtual law. Virtual-worlds were like a ‘new state’:229

Websites and other prior technologies of cyberspace served as remarkable

tools for communication, but they did not build truly independent and self-

governing communities. By contrast, avatar existence and avatar community

only occurs within virtual worlds, making the emergence of virtual law within

those worlds much more likely.230

So the virtual-worlds and law scholarship saw a problematic technology that was

anticipated to be increasingly important in the future, and as such would inevitably

involve law – both real-world law and virtual law. This call for laws grounded analysis of

the inadequacies of the existing law. As with the Sputnik and IVF literatures, this analysis

1993”, and the politicians and legislators in the United States have already taken sharp notice of this particular metaverse.’ See Chin (2007), p 1348. 225 Meek-Prieto (2008), p 98; Keupink (2007), p 167. 226 Cockfield (2002), p 355; Glushko (2007), pp 507–508; Kane and Duranske (2008), p 10; Arias (2008), p 1303. 227 Balkin (2004b), cited by Jankowich (2005), p 187; Mayer-Schönberger and Crowley (2006), p 1801; Reuveni (2007), p 264; Jacob Rogers (2007), p 412; Chin (2007), p 1307; Zack (2007), p 242; Kerr (2008), p 416; Passman (2008), p 262. 228 Balkin (2004b), p 2068. See also: ‘One might see the day when a platform owner is losing money, and the players petition a bankruptcy court to take over the game and keep it going, so that the players’ virtual property interests will not be destroyed.’ Balkin (2004b), p 2071. 229 Davis (2007), p 199. 230 Lastowka and Hunter (2004), p 69. See also Mayer-Schönberger and Crowley (2006), p 1791.

was a hybrid of speculation and description. Its speculative basis was acknowledged directly: articles were described as ‘thought experiment[s]’231 and as involving

‘hypotheticals’.232 This description ran in two directions: first, controversies involving virtual-worlds were described; and second, the inadequacies of law in addressing the controversies were canvassed. The controversies and inadequacies can be grouped under three headings: ‘property’, ‘contract’ and ‘wrongs’.

Lawyers were particularly concerned with the fate of property in virtual-worlds, and several controversies were described that demonstrated the problem of virtual property. The 2006 bank scam within CCP’s EVE Online, where a player established an in-game bank and then ‘vanished’ with billions in virtual currency, was used to show the failure of both real law and the game owners to protect virtual property.233 Sony’s attempts to stop sale of EverQuest items, which were defeated by the threats of a class action by players,234 along with the inconclusive litigation concerning gold farming (the aborted Blacksnow Interactive litigation235 and the class action Antonio Hernandez and others v Internet Gaming Entertainment)236 were evidence of the uncertainty surrounding

‘ownership’ of virtual property and also the difficulty of getting virtual property into real- world courts.237 Bragg v Linden Research Inc,238 litigation arising from a decision by

Linden Labs to exclude Bragg from Second Life because of improper virtual real estate

231 Chen (2006), p 1061. 232 Saunders (2007), p 188. 233 Glushko (2007), pp 522–523; Abrahams (2007b), p 300; Rosette (2008), pp 284, 287–288. 234 Kayser (2006), p 66; Westbrook (2006), p 787. 235 Lastowka and Hunter (2004), pp 39–40; Kayser (2006), pp 65–66; Abrahams (2007b), p 304. 236 Case No 07-21403-Civ-Cohn/Snow (S.D. Fla Ahug 29, 2007) 237 Lawrence (2008), p 530 238 487 F. Supp. 2d 593 (E.D. Pa. 2007)(No. 06-04925).

transactions, was regularly described.239 However, its resolution in an out-of-court

settlement, the restoration of Bragg’s Second Life account and only an advisory opinion

on the non-enforcement of the arbitration provision in Linden Lab’s End User Licence

Agreement (EULA) meant that it was considered unclear authority concerning ownership

of virtual property and the respective rights of players and game owners in real-world

law.240 Similarly, Marvel Enterprises Inc v NCSoft,241 litigation concerning the alleged

infringement of Marvel’s intellectual property in caped crusaders by the Korean

production house NCSoft, makers of the superhero virtual-world City of Heroes, was described. However, like Bragg, Marvel Enterprises was settled out of court and was cited as evidence of the difficulty of arguing virtual infringement of real-world intellectual property.242

The inconclusiveness of existing case law to point to how controversies involving

virtual property should be resolved allowed virtual-worlds and law scholarship to

speculate and analogise. Indeed, the bulk of virtual-worlds and law scholarship

comprised an assessment of how existing real law regimes might respond to virtual

property controversies. Like the IVF and law scholarship, this assessment was one to be

made according to the real laws of specific jurisdictions. The ground for this analysis –

and one that was rarely acknowledged – was that in virtual-worlds, ‘[p]rivate property is

defaulted’:243

239 Gervassis (2004); Glushko (2007), pp 524–526; Abrahams (2007b), p 304; de Zwart (2008), pp 85–86. 240 Kunze (2008), pp 102–103; Lawrence (2008), pp 528–530; Horowitz (2008), pp 225–226; Caramore (2008), pp 7–9, 15. 241 US District Court No 04 CV 9253 Unreported (10 Nov 2004). 242 Jankowich (2005), p 214; Abrahams (2007b), p 305; Lastowka (2008), pp 913–914. 243 Lastowka and Hunter (2004), p 30.

Perhaps the most striking feature of the property system of the virtual-worlds

is how closely they mirror the real world, or at least the subset known as the

Western capitalist economy. No virtual-world, not even a community-

conscience, social MUD like LambdaMoo, has an entirely communal

property system.244

Even in virtual-worlds inspired by fantasy or science fiction, the ‘transfer of virtual

chattels occurs in very familiar ways’.245 Lawyers found this parallel reassuring, and a

regularly repeated exercise was to assess virtual property according to Lockean and

Hegelian theories of property to demonstrate the philosophical rightness246 of the

emergence of private virtual property.247 Having established a conceptual similarity

between virtual and real-world property, the analysis morphed into speculative analogies on dealing with the in-game appropriation of virtual property and the appropriation of real-world property in game.

The controversy of in-game appropriation of virtual property was assessed according to a diverse array of laws. Daniela Rosette, taking as her case study the EVE

Online bank scam, concluded that the existence of the ‘poker’ defences in United States

fraud law – that courts deferred to the rules of the game – meant that fraud law would not

protect virtual property from appropriation.248 Other writers noted that in 2007 a scam

involving unauthorised access to player accounts and the selling of virtual furniture

244 Lastowka and Hunter (2004), p 30. 245 Lastowka and Hunter (2004), p 32. 246 Indeed, Jankowich argued that without virtual property rights, players in virtual-worlds are ‘serfs’. Jankowich (2005), p 216. 247 This analysis was first undertaken in detail by Lastowka and Hunter (2004), pp 44–51 and Fairfield (2005), pp 1093–1095, and repeated in less detail by some of the student authors Westbrook (2006), pp 791–801; Sheldon (2007), pp 758–760; Horowitz (2007), pp 450–458; Reuveni (2007), pp 277–280; Caramore (2008), pp 11–14. 248 Rosette (2008), pp 289–290; see also White (2008), pp 239–240; Arias (2008), pp 1318–1327; Kerr (2008), p 420

(which could only be purchased with real-world money) in Sulake’s Habbo Hotel was prosecuted as fraud in Holland.249 Susan W. Brenner, after an exhaustive survey of

applicable United States property crime laws, suggested that ‘we could extrapolate the

principles of criminal liability to encompass the conduct that inflicts … “virtual harms”.

The real issue is whether we should do so.’250 Moving on to torts, United States lawyers

argued that domestic tort law as it related to chattels was inconclusive concerning virtual

infringements,251 and were divided on whether the federal Computer Fraud and Abuse

Act (1986)252 would allow standing and a remedy to a player deprived of virtual

property.253 In Australia and New Zealand, it was argued that intellectual property

regimes would have difficulty with virtual property.254 These antipodean conclusions

mirrored the finding concerning United States intellectual property law – which, on

balance, would not protect virtual property.255

Similar conclusions were reached concerning the appropriating of real-world property in game. In Australia, Lucy Davis concluded that:

It is uncertain whether the Australian law relating to trade marks would assist

either a physical world trade mark owner preventing misuse in Second Life or

249 Kerr (2008), pp 422–423; Dougherty and Lastowka (2008), pp 763–764; Stoup (2008), p 340; Brenner (2008), p 57. 250 Brenner (2008), p 75. 251 Arias (2008), pp 1337–1338 252 18 U.S.C. § 1030. 253 Lawrence (2008), pp 532–541. 254 Australia: Davis (2007), pp 186–193; Bennett Moses (2008), pp 646, 661; Macrae (2008), pp 326– 329. See also Abrahams (2007b); Abrahams (2007a). New Zealand: Holdaway (2007), pp 8–14, 17–22). 255 Miller (2003), p 456; Balkin (2004b), p 2064; Schwarz and Bullis (2005), p 25; Marcus (2007), pp 78–85; Kane and Duranske (2008), p 13. Including the image of the avatar: see Barfield (2006), pp 672–680.

a Second Life owner taking action against misappropriation in Second Life, in

another virtual world, or the real world.256

This conclusion mirrored United States analysis. In the United States, it was argued that

use of trademarks in virtual-worlds would be a technical breach;257 however, the defences

available to players,258 and pragmatic constraints relating to proof, would render virtual

breach of trademarks unenforceable in real-world courts. The perceived failure of real

law to adequately respond to virtual property stimulated Dan E. Lawrence to argue that

contract law should be explored in the context of virtual property controversies.259 Again,

this analysis was contested. Andrew Jankowich argued that virtual property could not be

considered ‘goods’ or virtual sales considered ‘sales’ under the Uniform Commercial

Code.260 The conclusion from these analyses was that virtual property remained under-

regulated by real-world law. A constant consideration in these analyses was the rights and

obligations as set out in the EULA.

The Ludlow controversy and Bragg circulate in the virtual-worlds and law

scholarship as representing the ‘godlike’261 powers of game owners vis-à-vis players as

established by EULAs.262 In the Ludlow controversy, Peter Ludlow established within

Electronic Arts’ Sims Online a virtual newspaper, the Alphaville Herald. Within that

forum, he ‘published’ a report on children controlling avatars engaging in sex talk with

adults for in-world currency. In response, Electronic Arts terminated his account.263 For virtual-world lawyers, the EULA represented what amounted to existing legal regulation

256 Davis (2007), p 199. 257 Dougherty and Lastowka (2008), pp 778–798. 258 Dougherty and Lastowka (2008), pp 798–807. 259 Lawrence (2008), pp 521–524, 542. See also Kriegshauser (2008), p 1088. 260 Jankowich (2006), pp 271–273. See also Passman (2008). 261 On game owners, see Kunze (2008), p 107; Archinaco (2007), p 27. 262 Balkin (2004b), pp 2075–2076; Kayser (2006), p 64; Goldman (2005). 263 For a detailed account from Ludlow’s perspective, see Ludlow and Wallace (2007), pp 145–162.

of virtual-worlds and that regulation was massively balanced in-favour of the game

owner.264 Several studies described in detail the EULA for various worlds, and the

common conclusion was the finding that: ‘With unlimited discretion found in the EULA

signed by all virtual-world inhabitants, the game [owner] wields extreme power over

virtual-world inhabitants.’265 The game owner could terminate a player’s account, as

happened in Ludlow and Bragg, without compensation,266 and further, the game owner

had the right to turn off, or massively change, the world.267 Even Linden Lab’s

declaration of players’ intellectual property was not sustained in an analysis of the

Second Life EULA, as Linden Lab – in reserving its godlike powers over Second Life –

retained veto.268 Within this framework, it was unsurprising that lawyers found virtual property was not protected by EULAs.269 In addition, the suggestion in Bragg that the

arbitration provisions in Linden Lab’s EULA was unconscionable270 meant that,

‘although EULA that govern the virtual worlds provide a method for resolving disputes,

their unenforcement and uncertainty … do not provide an adequate framework to protect

players’ investments’.271 Having found that EULA do not protect players’ virtual

property, lawyers examined wider laws relating to contract that might allow players

greater rights, such as unconscionability, misrepresentation, promissory estoppel and

264 Balkin (2004b), p 2049. 265 Kayser (2006), p 63. Other studies were undertaken by Sheldon (2007), pp 766–771 and Jankowich (2006), pp 12–48. On Linden Lab’s EULA, see Caramore (2008), pp 4–6; Abrahams (2007b), p 302; Christ and Peele (2008), p 3; Jarrett (2008), p 53. 266 Mayer-Schönberger and Crowley (2006), p 1793. 267 Lastowka and Hunter (2004), pp 55–56 268 Lederman (2007), p 1641; Caramore (2008), p 2. 269 Chen (2006), p 1089; Hunt (2007), pp 150–153; de Zwart (2008), pp 84–85. 270 Kane and Duranske (2008), p 11. 271 Glushko (2007), p 508

consumer protection laws.272 Indeed, for Sean F. Kane and Benjamin T. Duranske, the

advisory opinion in Bragg ‘may be the first chink in the EULA armor and may call into

question the validity of some of the other general provisions’.273 However, notwithstanding Lastowka’s and Hunter’s optimism that there were strong policy grounds for EULAs to be struck down,274 most commentators were cautious as to how courts

would balance the policy grounds in favour of striking out the EULA against considering

virtual-worlds as ‘only a game’, which players could choose to leave.275

Another line of analysis concerning EULA was the regulation of avatar conduct in-world. The virtual-worlds and law scholarship used the well-documented virtual sexual assault that occurred in LambdaMOO in the early 1990s276 as evidence of the

possibility of virtual wrongs and the remedy of removing the offending avatar.277

However, this example showed the limits of game administration. LambdaMOO was a

‘community-based’ virtual-world that was ‘owned’ by a handful of dedicated programmers collectively known by the old-MUD term ‘wizards’.278 With arguments

raging between LambdaMOO citizens concerning process and punishment, one of the

wizards made the decision to ‘toad’279 the offending avatar.280 The scholarship noted that

contemporary virtual-worlds were commercial activities, and while EULAs imposed

272 Hunt (2007), pp 153–155; see also Sheldon (2007), pp 773–785; Reuveni (2007), pp 274–303; Kriegshauser (2008), pp 1094–1107. 273 Kane and Duranske (2008), p 11. 274 Lastowka and Hunter (2004), p 50. 275 For example see Jankowich (2006), p 48. 276 The details of this event have been documented by Dibbell. See Dibbell (1996); Dibbell (1998), pp 11–30. 277 Lastowka and Hunter (2004), p 67; Balkin (2004b), pp 2062–2063; Mayer-Schönberger and Crowley (2006), pp 1798–1799; Brenner (2008), pp 75–77. 277 Chen (2006), p 1059; Abrahams (2007b), p 305. 278 Curtis (1996), pp 358–360. 279 This was an early MUD term, meaning that the avatar had been turned into an immobile and incoherent toad. In LambdaMOO, the offender, ‘Mr Bungle’, was deleted. 280 Dibbell (1998), p 25; Lessig (1999), p 78; Lastowka and Hunter (2004), p 70.

‘Community Standards’ with which players were expected to comply, it was argued that

the absence of functional investigatory, dispute-resolution and punishment processes

rendered these insufficient to address inter-avatar harassment.281 Indeed, the power to

close player accounts, as demonstrated by the Ludlow and Bragg controversies, appeared

only to be exercised by game owners when players upset the game owners’ interests.282

For United States scholars, the regulation of inter-avatar conduct raised problems regarding the protection of speech by the First Amendment. This cut two ways: first, whether game owners were restricted in exercising EULA exclusion power as a form of censorship; and second, whether the First Amendment prevent federal or state regulation of virtual conduct. While it was noted that, as private entities, game owners were not prima facie subject to the First Amendment,283 it was argued that their quasi- governmental role might suggest some limit. To this end, First Amendment decisions looking at censorship activities by private universities, shopping malls, company towns and the Boy Scouts were examined, but were considered inconclusive concerning game owners.284 On stronger ground was analysis considering restrictions on United States governmental regulation of virtual conduct. It was agreed that the First Amendment would prevent regulations that attempted to censor virtual-worlds,285 unless the

regulation was directed towards one of the First Amendment exemptions, such as harm to

children.286 Some United States writers went on to examine the reach of the Child

Pornography Protection Act (2000)287 as explained in Ashcroft v Free Speech

281 Lastowka and Hunter (2004), pp 51–52; Chin (2007), pp 1319–1321. 282 Katsh (2004), p 281; Mayer-Schönberger and Crowley (2006), pp 1794–1797. 283 Bartholomew (2007), p 772. 284 Balkin (2004b), pp 2076–2078, 2083–2090; Zack (2007), pp 239–252. 285 Saunders (2007), pp 192–227. 286 Saunders (2007), pp 215–227. 287 18 USC §§ 1466, 1466A (2000 & Supp. IV 2004).

Coalition288 to argue that pornography involving ‘child avatars’289 was not sufficiently

real harm to real children to be subject to that law.290 In Australia, the issue of the

application of real law to virtual wrongs produced a different outcome. Nick Abrahams

argued that virtual assault could be addressed using Commonwealth laws concerning

harassment and stalking via electronic communications, and sexualised actions by child

avatars would be considered child pornography.291 The one area where the virtual-worlds and law scholarship was clear on the application of real-world to virtual-world disputes was when actions within a virtual-world led to real-world crimes. The example given was the Qui Chengwei matter from China, where a player in the real-world murdered another player who had stolen virtual property.292

The virtual-worlds and law scholarship had established virtual-worlds as a

problematic technology of the future that suggested controversies involving property,

contract and wrongs – controversies that current real-world law of specific jurisdictions

seemed inadequate to resolve. This survey grounded the call for law – or, more precisely,

like the first-generation space law scholarship and the IVF and law scholarship, it

grounded a call for law-making; thus the tension that was evident in the Sputnik-era

scholarship concerning piecemeal versus comprehensive legislating was revisited. In this

respect, the virtual-worlds and law scholarship represented an ongoing debate within

cyberlaw scholarship between the ‘exceptionalists’, who regarded cyberspace as new and

radically different, and felt it should be allowed to develop its own laws, and the

288 535 U.S. 234 (2002). 289 By ‘child avatars’, the literature meant an avatar that looked like a child. 290 Meek-Prieto (2008), pp 91–95; Saunders (2007), pp 218–219; Barfield (2006), p 688; Brenner (2008), pp 92–94 291 Abrahams (2007b), p 298. 292 Chen (2006), p 1059; Abrahams (2007b), p 305; Jacob Rogers (2007), pp 409–410.

‘unexceptionalists’, who argued the unproblematic application of existing law to

cyberspace.293 In the virtual-worlds and law scholarship, Lastowka and Hunter articulated

the exceptionalist position:

Given the complexity of ascertaining a virtual world’s emerging legal rules

and balancing them with avatar rights and wizardly omnipotence, the

prospect of real-world courts entertaining virtual disputes is in some ways not

very appealing. Perhaps, therefore, it would be best to require that the law of

virtual worlds develops within their own jurisdiction … the wiser course may

be for courts to keep their distance.294

Part of this position was influenced by Lawrence Lessig’s well-known synthesis of the

exceptionalist thesis and unexceptionalist antithesis in the catch-phrase ‘Code is law’295 that cyberspace is a lawful realm; it is governed by the code in which it is written. So while some authors conceded ‘that criminal law provides a terribly blunt and awkward instrument for social control’296 and ‘[v]irtual worlds at bottom are computer games, and

games are artificial structures better regulated by game administrators’,297 there were

concrete suggestions for better code to deal with identifiable controversies.298 Phillip

Stoup argued for more surveillance and recording of avatar conduct to be built into

virtual-worlds,299 while Viktor Mayer-Schönberger and John Crowley argued that the

universal avatar and portable property would necessitate game owners developing better

governance structures, including code and in-game law aimed at preventing objectionable

293 These terms were coined by Post (2009), pp 166–168. 294 Lastowka and Hunter (2004), p 71. 295 Lessig (1999), p 6, italics in original. 296 Kerr (2008), p 425. 297 Kerr (2008), p 417. 298 On examples of code developed by game owners to direct avatar conduct in contemporary virtual- worlds see Castronova (2007), pp 109–133. 299 Stoup (2008), p 336.

conduct and also adequate resolution of in-game disputes, to attract and retain players.300

Although not a lawyer, Castronova – writing in the New York Law School Law Review in

2004 – presented a novel justification for the exceptionalist policy position and its relation to real-world law. For Castronova, the application of real-world law relating to property, contract and wrongs to virtual-worlds would destroy their utopian potential:

The recent appearance of massively immersive play spaces … is a

tremendous gift to us all, a great moment of liberation, and a drastically

powerful reconnection between human beings and the artists who sustain

them. The technology to create these play spaces now exists. If deployed

properly, it will spread joy and self-esteem across the planet.301

However, Castronova did not argue against real-world law per se; instead, he argued for

an ‘Act of Interration’, a ‘general statement that play spaces are a unique form of

commons, a unique collective good, whose value can only be sustained under certain restrictions on individual behaviour’.302 For Castronova, real-world law was needed that

‘grants EULAs a legal status robust enough to allow them to preserve synthetic worlds as play spaces’.303 Castronova wanted real-world law to declare virtual-worlds an exception.

The exceptionalist policy position of code and in-game law was directly

challenged by Balkin: ‘the single most important reason why it is unreasonable to regard

virtual-worlds as separate jurisdictions untouched by real-world law is the accelerating

real-world commodification of virtual worlds’.304 Balkin conceived virtual controversies

300 Mayer-Schönberger and Crowley (2006), pp 1802–1803, 1805–1808. See also Stoup (2008), p 338; Kane and Duranske (2008), p 9. 301 Castronova (2004), p 202. 302 Castronova (2004), p 200. 303 Castronova (2004), p 201. 304 Balkin (2004b), p 2070.

as a complex mat of conflicting rights: of individual players’ ‘right to play’ conflicting

and players’ right to play conflicting with game owners’ ‘right to design’.305

Appropriating Castronova’s ‘Act of Interration’,306 Balkin argued that there should be

legislative intervention providing for EULAs and game owner governance, which also fixed basic rights concerning conduct and property.307 Following from Balkin and

adopting the unexceptionalist perspective, various authors argued for ‘comprehensive

legislative solution[s]’.308 Another activity by the unexceptionalist virtual-worlds and law

scholars was description of the unexceptional regulation of virtual-worlds by various

jurisdictions. The decision of Li Hongchen v Beijing Arctic Ice Technology Development

Co,309 where the Beijing Chaoyang District People’s Court enforced the return of virtual

objects, was described310 along with the South Korean first step towards an Act of

Interration in legislating for player intellectual property.311 The final argument by the

unexceptionalists was the adequacy of existing real-world laws to accommodate virtual

controversies. Andrea Vanina Arias argued that, in the United States, virtual theft could

be prosecuted under ‘current theft penal statutes’ and tax lawyers in the United States and

Australia were convinced that existing tax law applied to real-world income realised

when ‘cashing out’ of virtual-worlds.312

305 Balkin (2004b), pp 2047–2051; Balkin (2004a), pp 63–67. 306 Balkin (2004b), p 2090. 307 Balkin (2004b), p 2091–2092 308 Passman (2008), p 285 (arguing for a Sales of Virtual Goods Act). See also Marcus (2007), pp 90– 91; Hunt (2007), pp 169–173; Kunze (2008), pp 112–118 (arguing for a legislated-for, standard- form EULA); Westbrook (2006), pp 810–811 (arguing for a statutory ban on real money trading of virtual property); Meek-Prieto (2008), pp 107–109 (arguing for laws prohibiting child avatar pornography); Caramore (2008), p 19 (arguing for legislation making compensation for the deprivation of virtual property when a player is excluded from a game or the game is terminated). 309 Beijing Chaoyang District People’s Court, 19 December 2003; Abrahams (2007b), p 304. 310 Westbrook (2006), pp 805–806; Kayser (2006), p 67; Glushko (2007), pp 518–519; Arias (2008), p 1342. 311 Abrahams (2007b), p 303. 312 United States: Lederman (2007), p 1671; Mack (2008), pp 762–764; Australia: Macrae (2008).

However, notwithstanding the policy disagreement driving the differences

between the exceptionalists and the unexceptionalists, they shared the now-familiar

account of instrumental law that can be posited. Both wanted law, whether code, in-game

law, new real-world law or the application of existing real-world law; law was the

instrument through which problematic dimensions of virtual-worlds should be addressed.

Whether it was problems with property, contract or wrongs, the solutions were better

laws. The disagreements concerned the perceived effectiveness of various species of law

to achieve the desired public policy ends.

This commonality with first-generation space law and IVF and law scholarship

was mirrored in more superficial ways. First, there was the belief that virtual-worlds and

law scholars were being ‘practical’;313 they were planning for a smooth and inevitable virtual future. Second, there were charges of ‘bulk’: ‘Virtual-worlds have been the

subject of much legal writing during the past few years’314 caused by significant numbers

of student authors315 reiterating much of the substance of either Balkin or Lastowka and

Hunter. Finally, virtual-worlds and law scholarship possessed the seemingly mandatory

‘technical’ section in which virtual-worlds, their origins and the current experience of

playing them was described. 316

313 Chen (2006), p 1059. 314 Lastowka (2008), p 903. 315 Miller (2003); Grimmelmann (2004); Jankowich (2006); Westbrook (2006) Blazer (2006); Chen (2006); Horowitz (2007); Holdaway (2007); Jacob Rogers (2007); Hunt (2007); Chin (2007); Marcus (2007), Sheldon (2007); Caramore (2008); Meek-Prieto (2008); Rosette (2008); Kunze (2008); Passman (2008); Lawrence (2008); White (2008); Arias (2008); Stoup (2008); Mack (2008); Horowitz (2008); Kriegshauser (2008). 316 Lastowka and Hunter (2004), pp 14–29; see also Lederman (2007), pp 1625–1630; Caramore (2008), pp 3–4; Lin (2008), pp 82–87; Chen (2006), pp 1064–1066; Glushko (2007), pp 509–511; Chin (2007), pp 1308–1311; Zarsky (2004), pp 236–238; Castronova (2004), pp 192–196; Macrae (2008), pp 325–326; Holdaway (2007), pp 4–7; Reuveni (2007), pp 264–270; Bartholomew (2007), pp 741–744; White (2008), pp 230–231; Dougherty and Lastowka (2008), pp 757–773; Bradley and Froomkin (2004), pp 121–128; Saunders (2007), pp 190–193; Sheldon (2007),

In summary, the virtual-worlds and law scholarship manifested the same basic

structure as had been evident 50 years earlier in the first-generation space law scholarship

and also 30 years earlier in the IVF and law scholarship. The primary commitments were

a problematic technology of the future; existing law that did not adequately address the

anticipated future problems; and the call for law – or, more precisely, law-making to

enact public policy goals. These explain the features common to the three literatures: a hybrid of speculation and description, and a tendency to talk of law-making processes and abstract discussions of effectiveness of various legal rules, rather than hard

commitments to the exact substance of the called for law. It is this structure – the law and

technology enterprise – that occupies technical legality.

3. The Occupation of Technical Legality

The three literatures examined have a common underpinning structure. Notwithstanding

the time and technological differences, there is a structure that understands and ties

together technology, law and future in a specific and stable way. Unsurprising, given its

celebration as the mega-myth of modernity, this structure is informed by Frankenstein: technology is problematic – a monster promising gifts and well as death; and the future is contested, it was human destiny but in the future the monster would be sovereign. These elements of the myth ground the initial characteristics identified in the review of the literatures: a problematic technology (satellites, IVF, virtual-worlds), representing an inevitable future (space colonisation, artificial human reproduction, virtual reality) that had promises (lasting peace on earth, freedom to and from reproduction, untrammelled

pp 756–757; Chin (2007), pp 1303–1306, 1311–1313; Ondrejka (2004), pp 87–90; Stoup (2008), pp 315–320; Brenner (2008), pp 19–51.

expression and experiences) and perils (space warfare, the diminishment of humanity in

mechanised reproduction, replication of violence and inequalities in virtual-worlds).

However, at this point there is a departure from the essence of the Frankenstein myth.

The supposed passive humanity heading into the monster’s future, turns out not to be

entirely helpless. Law is championed, it is called forth to legislate and regulate for

desirable technological futures, and to prohibit and ban undesirable ones. Law is modern

humanity’s reinstatement of Mumford’s ‘earliest forms of moral discipline and self-

control’.317 The three literatures confidentially suggest that human law could direct the

future, or at least mitigate some of the worst fears. International space law could legislate

for space-faring peace and prosperity; national regulation could balance the competing

ethical concerns surrounding IVF; and laws, whether code, in-game virtual law, new real-

world law or application of existing real-world law, could address the concerns of

property, contract and wrongs in virtual-worlds.

Having constructed these relationships, the literatures then turn to the practical tasks of description and analogy. Existing laws are shown to be inadequate. The merits of

alternative law-making approaches are considered. Analogies of doctrines and precedents

from existing law are assessed, and law-making processes and new laws are described.

The lawyer tries to save the future through a hybrid of speculation and description.

In summary, the lawyers who were writing about technology were thoroughly positivist: law was seen as a tool to secure a desirable future, to direct a problematic technology’s impact according to values decided elsewhere. This is profoundly unsurprising. As James Boyd White expressed in 1985, this is what law and legal scholarship have become in the modern era:

317 Mumford (1966), pp 57–58.

Law then becomes reducible to two features: policy choices and techniques of

implementation. Our questions are ‘What do we want?’ and ‘How do we get

it?’ In this way, the conception of law as a set of rules merges with the

conception of law as a set of institutions and processes. The overriding

metaphor is that of the machine.318

The law and technology enterprise merely expressed the foundational conceptions of law

in modernity: law as policy choice and techniques of implementation. Kirby’s

deployment of mechanistic imagery to describe the legal response to technology as a

process concerned with technique was an acknowledgement of this origin. This raises the

spectre – to be explored more fully in the chapters to come – that the monster was not

leashed by law; rather, law itself had become possessed, monstrous and ironic. The law that responds to technology is itself technological.319

However, this jumps the argument ahead. At this point, the three examined

literatures have revealed a positivist structure for legal writing on technology that builds

upon the essential components of the Frankenstein myth. My claim is that this structure,

the law and technology enterprise, occupies technical legality – that is, when lawyers

think and write about technology, their thinking and writing are framed by stable

assumptions: technology is problematic, the future is at stake, law is positive, existing

law is inadequate, law is called, and the ‘lawyer-technician’s’ role is gap identification,

analogy, description and discussion of most appropriate law-making methods through

which already determined policy should be legalised.

318 White (1985b), p 686. 319 Riles (2005), pp 975–976; Cockfield (2005), p 402.

This is the structure that is repeated through the vast caverns of the JOLTs,

JOLSTs and generalist law reviews. For example, in a 2003 article about

nanotechnology, Glenn Reynolds canvassed its potential future benefits and harms,320 and concluded with law: ‘such capabilities [of nanotechnologies] would undoubtedly lead to considerable discussion and calls for regulation’.321 Having established a problematic

technology of the future, Reynolds devotes the bulk of his paper to assessing legal

responses to nanotechnology.322 The question became one of selecting the right

instrument. For Reynolds, this involved describing and assessing alternative legal

regimes. He rejected prohibition, as ‘the drawbacks are too great, the advantages too few

and the difficulties too involved’.323 Also rejected was limiting nanotechnology to

military purposes, as that would seemingly facilitate some of the feared military

applications of nanotechnology while failing to allow for potential civilian benefits.324 In response to these ‘failed’ directions for law, Reynolds affirmed a compound approach of guidelines and licensing as the most facilitative regulatory structure.325 Another example

is the Australian law and cloning scholarship, which is shown in Chapter 4 to be

grounded on the law and technology enterprise. In short, considering the intersections of

law and technology, technical legality has been occupied by seemingly concrete

understandings of technology, law and future.

This occupation is almost complete. There are two much smaller literatures that,

at least on the surface, appear to be outside of the law and technology enterprise. The first

320 Reynolds (2003), pp 185–187. 321 Reynolds (2003), p 187. 322 Reynolds (2003), p 187–209. 323 Reynolds (2003), p 192. 324 Reynolds (2003), p 197. 325 Reynolds (2003), pp 197–209.

is scholarship that attempts to address technical legality through considering ‘technology’

as a general category. Most law and technology writing has been about specific

technologies and law326 – for example, satellites, IVF, virtual-worlds, nanotechnologies,

mammalian cloning and therapeutic applications of human stem cells. However, the

technology as a category literature, although more abstract, does not depart from the

essential elements of the law and technology enterprise frame. Indeed, its abstractness

renders this frame more visible.

Laurence H. Tribe, writing in the early 1970s, has generally been credited with the first systemic attempt to articulate a relationship between technology as a general category and law.327 Tribe drew upon the ambient souring of technology of the late 1960s

and early 1970s to suggest that legal and political institutions needed to develop greater

sophistication in the assessing and regulation of technological risks.328 A direction in

Tribe’s account can be seen as manifesting the key tenets of the law and technology

enterprise. In Tribe’s Channelling Technology Through Law (1973), technology offers

problematic futures329 that positive law can regulate.330 At this level, Tribe – like

Kirby331 and C.G. Weeramantry332 in Australia – articulates institutional structures and

general techniques through which legal-political-social solutions to technological

problems can be produced.333 Tribe makes explicit the law and technology enterprise’s commitment to law as a form of technology.334 However, Tribe also recognises the irony

326 Drahos (1985), p 271. 327 Bernstein (2007), p 442. 328 Tribe (1973a). 329 Tribe (1973a), pp 6–9. 330 Tribe (1973a), pp 634–640. 331 Kirby (1982). 332 Weeramantry (1983). 333 Tribe (1973a), pp 592–633. 334 For other articulations of this scholarship, see Friedman (2001).

in instrumental thinking addressing instrumentality. Parallel to his ‘pragmatic’ work on

technology assessment Tribe also questioned instrumentality. In doing so he affirmed a

very counter-culture notion of human intellectual transcendence of the material.335 In this

Tribe escapes the law and technology enterprise; however, his exit vector was not

followed by subsequent scholars.336

A second literature has a more recent pedigree. This literature initially arose from

reflection on the sheer volume of cyberlaw literature that emerged in the mid-1990s, then

from the internal cyberlaw debates on the ‘exceptionalist’ and ‘unexceptionalist’

responses to the internet.337 The defining characteristic was recognition that technical

legality has a past.338 While the law and technology enterprise tended to be concerned

with technological futures, this scholarship began to think about technical legality as a successive series of engagements by law with technology. What was established was a research agenda of using social scientific methods to provide a more sophisticated understanding of the effectiveness of rules and models of regulation.339 This literature appeared as the ‘law and society’ supplement to the more basic ‘legal science’ of description and analogy.340 However, as with ‘pragmatic’ Tribe, the essential

commitments of the law and technology enterprise within this ‘law, technology and

society’ scholarship remained stable; technology still represented problematic futures that

law could control. The differences between the two concerned disciplinary method: in

addition to the legal science of positivism, the ‘law, technology and society’ scholarship

335 Tribe (1973b), p 652; Tribe (1974), pp 1338–1346. 336 An Australian scholar who did follow in Tribe’s metaphysical direction was Bell (1999), pp 277– 279. 337 Price (2001), pp 1888–1889. See also Hughes (2003), p 157. 338 Mandel (2007), p 552. See also Pottage and Sherman (2007). 339 See, for example, Bennett Moses (2003); Bennett Moses (2007). 340 Collier (2004); See an acknowledgement of this by Bernstein in her title ‘socio-legal’: Bernstein (2002).

drew upon history,341 technology studies342 and social research343 to gain better understandings of the relationship between law, technology and society, in order to better regulate technology. The project remained the same – only the methods changed.

The end-point of these summaries is the simple proposition that technical legality has been occupied by the law and technology enterprise – even in literatures that take as their subject technology generally, or attempt to think about technology, law and society from social scientific perspectives, the essential elements of the law and technology enterprise – problematic technology, future, positive law – remain. Wider considerations of technical legality – for example, why certain laws were actually adopted, or the irony of law as technology to control technology – are, in Lyria Bennett Moses’ words, ‘left for another day’.344

The emphasis on temporality within the law, technology and society scholarship, hinting that technical legality has a past as well as a future, suggests something more about the law and technology enterprise: that its founding moment lies within a speculative jurisdiction.

341 See, for example, Yu (2006); Bernstein (2004); Sherman and Bently (1999); Dworkin (1996). 342 See, for example, Cockfield and Pridmore (2007) (looking at macro-accounts of society and technology from technology studies); Bernstein (2006) (looking at studies of technology diffusion); Mandel (2005) (looking a sociological data on public attitudes to technologies). 343 For example, Caudill used interviews with scientists and other stakeholders involved in pollution controversies. See Caudill (2009), p 266; Caudill and Curley (2009). Caudill also uses textual analysis in examining ‘sociotechnical’ arguments in tobacco litigation. See Caudill (2005). While Caudill’s focus is on the circulation of scientific evidence within legal areas, this use of social scientific methods and his conception of science within a more sophisticated ‘technoscience’ frame locate these studies within ‘law, technology and society’ scholarship. 344 Bennett Moses (2007), p 247.

Speculative Jurisdiction and Mythform

Courts cannot always, in the manner of Star Trek’s Captain Jean-Luc Picard,

say ‘Make it so!’

– Justice McHugh and Justice Kirby, Phonographic Performance Company

of Australia v Federation of Australian Commercial Television Stations, High

Court of Australia, 19981

This chapter argues that the law and technology enterprise is founded on a ‘speculative

jurisdiction’. What this means is that behind the calls for positive law to regulate

technology lies a legal imagination that is both terrorised and excited by technological

futures. Further, this speculative jurisdiction – the fears, narratives, images and motifs that drive the law and technology enterprise – is given form by science fiction. This means that hidden within the pages of law journals that talk of the ‘grown-up’ concerns of translating policy to law lurk seemingly incongruent fantasies of wondrous machines, brave new worlds, apocalypse, mutants and aliens.2

This argument is presented in two sections. The first peers deeper into the three

literatures examined in Chapter 2 to perceive that the law and technology enterprise possesses a founding preoccupation with time. Its orientation is the future; the lawyer in the now desires law to secure certain technological futures. This dreaming of future is the

1 Phonographic Performance Company of Australia v Federation of Australian Commercial Television Stations (1998) 195 CLR 158 at 181, per McHugh and Kirby JJ. 2 David Hartwell’s oft-repeated phrase, ‘the golden age of science fiction is twelve’. Hartwell (1996), p. 13; Disch (1998), p 1.

speculative jurisdiction, and its origin lies in the images of technological futures encoded

and made popular by science fiction. This is demonstrated within the three literatures

through the direct referencing of science fiction texts, the indirect referencing of science

fiction images and narratives, and the deployment of the term ‘science fiction’.

The second section explains that these glimpses of science fiction foundations

within the law and technology enterprise are to be expected. Notwithstanding science

fiction’s marginal place within the literary establishment, critics have acknowledged

science fiction as the ‘mythform’ of the modern West. That is, it is the Dreaming site for

the West’s technological futures – a place for working through, at an epistemological and

also an ontological level, the anxieties and promises of technological change. This section

goes on to show the influence of science fiction as a Western mythform within legal

theory, and concludes by inscribing science fiction as mythform into the law and

technology enterprise to articulate the question, ‘What would it mean for technical

legality if science fiction were taken seriously?’

1. Speculative Jurisdiction

The law and technology enterprise was concerned with time. In Chapter 2, the essential

character of the law and technology enterprise was revealed as problematic technological futures that could be regulated, modified or prohibited through positive law made in the now. The future and the present were the operational dimensions. Concerning the individual literatures discussed, first-generation space law envisioned a desirable human future of space conquest to be legislated for, and preserved, by international space law, against the dark alternative future of space borne nuclear war; the IVF and law scholarship needed to preserve humanity within a future of artificial reproduction; and

virtual-worlds and law scholarship wanted property rights and good governance for the

inevitable virtual future. The technology as a category and law scholarship desired a

future where processes and institutions were identified and assessed, and where the risks

of emergent technologies were regulated, while the law, technology and society literature

began to ask questions about past engagements of law with technology within the

familiar framework of trying to find effective legal instruments through which to craft

desirable technological futures.

In all this talk, assessment and calling forth, the future was paramount. As was

seen in Chapter 2, the law and technology enterprise was often articulated as a project

involving ‘speculation’, ‘anticipation’, ‘prescience’ and ‘foreseeing’. Behind the urgency

of the practical task of description, gap identification and law-making were dreams and

nightmares of technological futures. Indeed, in contrast to the pragmatic agenda, there

was the glimmer of creativity. Lawyers in the late 1950s were quick to see beyond the

rather small Soviet satellite to a future of everyday human space habitation. In the late

1970s, lawyers saw beyond one child born from an expensive and still revolutionary

technique to a ‘brave new world’ of artificial reproduction, and very recently lawyers

regarded virtual-worlds – notwithstanding their marginal status within the entertainment

economy – as harbingers of a parallel universe of digitally rendered human freedom.

It is at this point of fantastic futures that the law and technology enterprise’s origin is located. The law and technology enterprise binds the present to technological futures with law because of its ‘speculative jurisdiction’ – that is, the law and technology enterprise only has meaning through its quite vivid imagination of how contemporary technologies hold within the germ of a future form of human existence (space-faring

humans, humans ‘freed’ from biological reproduction, virtual humans). However, the

speculative jurisdiction was not an original project. Much like the positivist desire at the

law-making end of the law and technology enterprise, the content of the speculative

jurisdiction emerged from elsewhere. This elsewhere was not the pronouncement of

technical agencies like law reform commissions, nor specialist professionals like futurists

and bioethicists, nor social scientific data concerning the community’s anticipations and

concerns. The source of the images, narratives and tropes that form the technological

futures in the speculative jurisdiction was science fiction.

The location of the speculative jurisdiction within science fiction can be seen at

three sites within scholarship grounded on the law and technology enterprise. The first is

through the direct referencing of science fiction texts. The second is the circulation of

science fiction-sourced images, narratives and tropes. The third is the deployment of

‘science fiction’ as a meta-emblem for the speculative jurisdiction.

Science Fiction Texts

The most obvious evidence of the speculative jurisdiction is the direct citing of science

fiction texts as emblems of technological futures. An example from first-generation space

law comes from the editors of the International and Comparative Law Bulletin, who

located Sputnik within a literary tradition that had projected human-made satellites,

particularly Edward Everett Hale’s proto-science fiction short story3 ‘The Brick Moon’

(1870),4 along with Jules Verne, and Russian rocket scientist and science fiction author

Kostantin Tsiolovsky.5 Other contributors to first-generation space law cited H.G. Wells’

3 Hale (1970). 4 Editors (1958), p 4. 5 Editors (1958), p 4.

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The First Men in the Moon (1901),6 War of the Worlds (1898)7 and Verne’s From Earth

to Moon (1865)8 as ‘prophetic’9 of humanity’s space-faring future.10 Indeed, Verne was

mentioned as the embodiment of speculating on technological futures.11 However, the

most frequently cited science fiction text in first-generation space law scholarship was

not from the pen of Verne or Wells; it was the 1930s pulp space opera Buck Rogers.12

Some first-generation space lawyers referenced science fiction texts, but did so negatively. Morton S. Jaffe dismissed the excited speculation of Andrew E. Haley through an association with science fiction: ‘I yield this field to Mr. Haley, much as I do not presume to trespass even on Lewis Carroll’s “Wonderland,” and Aldous Huxley’s

“Brave New World,” visited or revisited, or Mr. George Orwell’s “1984.”’13

While Jaffe marginalised the excessive speculation of first-generation space law

scholarship with Huxley’s Brave New World (1932)14 and Orwell’s Nineteen Eighty-Four

(1949),15 citing both these dystopian texts was a prerequisites for the IVF and

scholarship. In 1968 George P. Smith II located artificial insemination and the future

prospect of IVF in ‘[t]he shadowy predictions of Huxley and Orwell [that] can no longer

be dismissed as blurred and unrealistic’.16 George J. Annas and Sherman Elias expressed more expansively that:

6 Wells (1954). 7 Wells (1975). 8 Verne (2005); Jenks (1956), p 99; Lee (1964), p 185. 9 Simeone Jr (1962), p 43. 10 The First Men In The Moon: Jenks (1956), p 99; Lee (1964), p 1580; War of the Worlds: Simeone Jr (1962), p 43. 11 Dembling (1959); Smirnoff (1962), p 385; Menter (1963), p 3. 12 Wurfel (1959), p 269; Teller (1958), pp 283–284; Keating (1959), p 56. 13 Jaffe (1959), p 375. 14 Huxley (1977). 15 Orwell (1949). 16 Smith (1968), p 127. See also Smith (1982), p 63.

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Modifications in reproductive methods have long been viewed as science

fiction and have occasioned both fear and amazement. With 1984 less than a

year away, we are reminded of Orwell’s world in which AID (artificial

insemination by donor) was mandatory, and sexual pleasure and the family

were destroyed to help maintain the tension necessary in a society dedicated

to perpetual warfare. In Aldous Huxley’s Brave New World, the family was

also destroyed; but he portrayed a society controlled not by fear, but by

gratification and reinforcement. Abolition of the family was followed by

complete sexual freedom; but reproduction was handled by the state.17

Within the IVF and law scholarship, Huxley and Brave New World functioned as

predominate tropes, representing both the immediacy and the perils of artificial human reproduction: ‘Artificial insemination is no longer just part of a Huxleian view of the

future; it is with us now.’18 Michael Kirby quoted from Huxley,19 and in 1986 used

‘Brave New World’ as a heading for a section within an article on artificial human

reproduction.20 Orwell and Nineteen Eighty-Four also circulated. IVF, it was suggested,

had an ‘Orwellian connotation’,21 and even Julius Stone located IVF within an Orwellian

authoritarian future.22

17 Annas and Elias (1983), pp 200–201. 18 Carr IV (1973), p 123. See also Porte (1979), p 103; Lorio (1982), p 983; Clapshaw (1980–1983), p 254; Wadington (1983), p 264; Lane et al (1983), p 320; Scott (1984), p 405; Dickman (1985), p 817; McCartan (1986), p 727; Robertson (1986), pp 951, 1023. 19 Kirby (1981), p 1. 20 Kirby (1986), p 211. 21 Oakley (1974), p 386. 22 Stone (1973), p 244; See also Steeves (1979), p 1051; Favre and McKinnon (1981), p 691; Skene (1985), p 379.

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Orwell and Nineteen Eighty-Four were deployed briefly in virtual-worlds and law

scholarship concerning the issue of information privacy within virtual-worlds.23

However, unlike the IVF and law scholarship that circulated Orwell and Huxley, the heavy hitters of old-school dystopian science fiction,24 the virtual-worlds and law

scholarship found its speculative jurisdiction within Neal Stephenson’s Snow Crash

(1992)25 and William Gibson’s Neuromancer (1984).26 Snow Crash, with its virtual-

world the ‘Metaverse’, peopled by ‘avatars’, was regularly referenced.27 Gibson’s

Neuromancer – celebrated in cyberlaw scholarship as coining the name ‘cyberspace’28 – recurred in the virtual-world and law scholarship.29 Scott Holdaway went so far as to suggest that virtual-worlds were ‘a future that William Gibson, back in the early eighties, anticipated, and one that may soon be with is’.30 This appreciation of aesthetics of

cyberpunk continued with the referencing of the Wachowski brothers’ 1999 film The

Matrix:31 ‘Second Life … is perhaps the first attempt by Internet users and programmers

to make the digital realm of The Matrix come to life.’32 However, this citing of science

fiction texts heralded a more expansive engagement with science fiction. Not only were

23 Zarsky (2004), p 233. 24 Berger (1976), p 89; Howe (1982). 25 Stephenson (1992). 26 Gibson (1984). 27 Lastowka and Hunter (2004), p 6; Balkin and Noveck (2006), p 3; Hunt (2007), p 145; Lederman (2007), p 1621; Chin (2007), p 1306; Sheldon (2007), p 786; Zack (2007), p 225; Lin (2008), p 87; Brenner (2008), p 32; Dougherty and Lastowka (2008), p 758. 28 See, for example, Katsh (1993), p 414; Byassee (1995), p 198; Kirby (1998), p 324. Contrary to the cyberlaw assumption that ‘cyberspace’ first appears in the Neuromancer, the term to describe graphically interactive computer networks was first coined by Gibson in the 1981 short story ‘Burning Chrome’, reprinted in Gibson (2000). 29 Cockfield (2002), pp 354–355 n. 103; Holdaway (2007), p 1; Bartholomew (2007), pp 739–740; Miller (2003), p 437; Blitz (2008), p 1157. 30 Holdaway (2007), p 30. 31 Wachowski and Wachowski, The Matrix (Warner Bros, 31 March 1999). On The Matrix as cyberpunk, see Barnett (2000). 32 Chin (2007), p 1303. See also Jankowich (2005), p 174; Blitz (2008), p 1129. In Dougherty and Lastowka (2008), ‘Neo’ and ‘Trinity’ were avatar names in a series of hypotheticals involving virtual property.

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science fiction texts cited, but lawyers delved more deeply into the texts, extracting images, narratives and tropes to sketch the promises and perils of technological futures.

Science Fiction Images, Narratives and Tropes

While direct referencing of science fiction texts was limited in first-generation space law

scholarship, it was sown through with images, narratives and tropes of space-faring

futures that emerged from the sub-genre of space opera.33 E.E. (Doc) Smith, in Skylarks

of Space (1928)34 and the ‘Lensman’ cycle (1934–1950)35 (published in Hugo

Gernsback’s pioneering ‘pulp’ science fiction magazine Amazing Stories), has generally

been credited as the creator of the ‘archetypical space opera’,36 while it has been argued

that the Buck Rogers and Flash Gordon comic, print, radio and film franchises from the

1930s diffused space opera sensibilities through popular culture.37 Gary Westfahl

articulates the core elements of the sub-genre:

First space opera involves a ‘space-ship’: like the nautical fiction from which

it borrows terminology and tropes, space opera depicts journeys through

uncharted realms in vessels bringing humans into contact with the mysterious

stuff separating their safe harbours … Second, space opera is a ‘yarn’ – an

exciting adventure story. Typically posting a universe filled with humans or

33 The term ‘space opera’ was coined by Bob Tucker, writing in 1941 in his self-published science fiction fanzine Le Zombie. Tucker wrote: ‘For the tacky, grinding, stinking, outworn space-ship yarn, or world-saving for that matter, we offer “space opera”.’ Tucker (1941), p 9. As a sub-genre of science fiction, see Westfahl (1994), p 177. 34 Smith (1984). 35 The first ‘Lensman’ story, later republished as a novel Triplanetary (Smith (2008), was published in four parts in Amazing Stories in 1934. The other five stories we published in Amazing Stories over a period from 1937 to 1948: Aldiss (1988), pp 259–260). The final ‘instalment’, The First Lensman (a ‘prequel’ linking Triplanetary to the Lens proper stories) was published as a separate novel in 1950: Smith (1995). 36 Monk (1992), p 310. See also Landon (2002), p 50; Pringle (2000), p 41. 37 Kalish et al (1988), p 303; Westfahl (2003), pp 200–201. On the Buck Rogers and Flash Gordon film serials of the 1930s, see Kinnard (1998), pp 30–40, 43–60, 69–76, 84–90.

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alien spacefarers – some hostile, some friendly – space opera is a literature of

conflicts, usually with violent resolutions.38

Space opera, with its spaceships, planets, galactic civilisation, aliens and conflicts, provided the context through which first-generation space lawyers saw within Sputnik a

human space-faring future. In was Haley’s 1956 ‘metalaw’ speech that prioritised this

vision of the future within the legal consciousness. Haley saw it as inevitable that ‘new

propulsive systems will be found which will reduce the cost of construction and

operation, commercial enterprises will demand access to space, emigration will

commence, meteorite mining will become an industrial object’39 and ‘other stars have

planets … other planets inhabited by intelligent beings’.40 Following E.E. Smith, whose

human space civilisation needed the ‘Galactic Patrol’ to enforce order,41 Haley

anticipated the need for a ‘metalaw’ to regulate conflicts from human/alien interactions,

and Haley’s articulation of the basic principles of respect and non-interference42 seemed very similar to a later space opera’s metalaw: the ‘Prime Directive’ from the Star Trek franchise.43 Also following E.E. Smith’s lead, Haley saw this future as ennobling

humanity:

… we believe space exploration will dignify and enrich mankind, erasing

forever devastating economic problems and affording vistas of mysteries of

creation immeasurably more challenging and interesting than we now

38 Westfahl (2003), pp 197–198. 39 Haley (1956b), p 448. 40 Haley (1956b), p 438. 41 Aldiss (1988), p 260. 42 Haley (1956b), pp 437–441. 43 As discussed in Chapter 1.

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conceive of, and so engender a measure of tolerance and compassion that

man will rise above his past.44

In the more immediate time-scale, Haley believed the first human steps into space would

stimulate international law and set humanity on the path to another space opera staple,

unified human government on earth and in the stars.45

While Haley represented a fully realised space opera-grounded legal analysis, as shown in Chapter 2, space lawyers wrote enthusiastically about the inevitable interplanetary destination for humanity, feared future conflicts that needed law and anticipated the promise in space travel of global cooperation and peace. This context of space opera – of spaceships, planets, galactic civilisations, aliens and conflicts – infusing legal scholarship explains the remarkable set of images and tropes within Martin

Menter’s 1963 hypothetical:

There has been an accident on a flight to Mars. Survivors parachuted to the

planet where they were hospitably received by the Martians who had been

watching with interest the developments on Earth since Martians are several

eons ahead of Earth in progress … The relatives of those lost in the Martian

flight employ counsel to recover damages owing to the death of passengers

on the flight because of the faulty construction of the flight vehicle or its

faulty operation. A lawyer must go to Mars to investigate the accident to take

depositions or for pre-trial examination. How does he get there? What

44 Haley (1956b), p 449. 45 Haley (1956b), p 449. An unified human government forms the backdrop to E.E. Smith’s ‘Lensman’ saga. It also appears as a standard feature in Robert A. Heinlein’s stories. In Starship Troopers (1959), the ‘Terran Federation’ defends itself against an alien civilisation (Heinlein 1986), while in Stranger in a Strange Land (1961), the protagonist comes to terms with the ‘World Federation of Free States: Heinlein (1978), p 66.

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language does he use? Where will the litigation be instituted; where and when

tried; what laws will govern, Earth’s or Mars’s, or entirely new inter-

planetary laws subscribed to by Earth’s nations, the Martians and dwellers on

other heavenly bodies with whom communication has been established?46

Menter shows space opera as first-generation space law scholarship’s speculative

jurisdiction. Sputnik might have called forth public international law, but it primarily

summoned from the pages of the pulps the space opera ensemble of space-faring

humanity and transmitted that stylised technological future into legal discourse.

This transmitting of science fiction images, narratives and tropes into legal

discourse as representations of technological futures was exactly what the IVF and law

scholarship did. Indeed, the repeated referencing of Brave New World and Nineteen

Eighty-Four represented the tip of a dystopian pyramid of images, narratives and tropes

throughout the scholarship. Central to the dystopian sub-genre is a horror of loss

surrounding the free human of modernity, and particularly anxieties concerning technical

intervention in human birth and bodies for malevolent purposes.47 The dystopian tropes of manufactured humans of varying capacities in the ‘Central London Hatchery and

Conditioning Centre’ from Huxley’s opening chapters48 appear throughout the IVF and

law scholarship. Sir Zelman Cowen in 1985 saw: ‘At the end of this [IVF] road [humans]

graded, produced to political, social, and economic specifications in laboratories and

factories, with the process of gestation taking place outside the human body.’49 Sharon

Steeves saw IVF as raising the Brave New World spectre of state control over human

46 Menter (1963), p 3. 47 On dystopian science fiction, see Moylan (2000), p 121; Pierce (1987), pp 167–168; Mohr (2005), pp 27–33. 48 Huxley (1977), pp 15–38. 49 Cowen (1985), p 569; see also Robertson (1986), p 1023.

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reproduction.50 The mentioning in the IVF and law scholarship of artificial wombs suggested Huxley’s ‘Bottling Room’ where, with Fordist precision, conveyer belts of bottled sow’s peritoneum received a human embryo, later to be ‘decanted’.51 Further along the dystopian continuum was the concern with the ‘[g]rowth of embryos for spare parts [as] … one of the futuristic possibilities introduced by IVF’.52 Also, as shown in

Chapter 2, by imagining a future of artificial human reproduction, IVF and law literature saw human cloning in that future, conjuring Huxley’s dystopian vision of mindless, mechanised uniformity:

‘Ninety-six identical twins working ninety-six identical machines!’ The voice

was almost tremulous with enthusiasm. ‘You really know where you are. For

the first time in history.’53

Julius Stone, peering into what he saw as an inevitable future of artificial human reproduction, sets out the central Huxley tropes – of power elites, diminished individuality and the end of history – behind clone hysteria:54

Careful planning could use the principles involved to produce multiple

identical copies of Adolf Hitler, Mussolini, or Al Capone … The threats from

such quasi-vegetative reproduction, even when not manipulated by power

elites, also include the danger of bringing society to an evolutionary dead end.

Under manipulation it could enslave individuality to the needs of breeding

reliable workers, soldiers, astronauts (or even scientists), creating children

50 Steeves (1979), p 1051; see also Smith (1982), p 68; Robertson (1983), p 426. 51 Huxley (1977), pp 19–20; Lorio (1982), p 923; Robertson (1983), p 432; Davies (1984), p 360; Robertson (1986), p 1025. 52 McCartan (1986), p 711. 53 Huxley (1977), p 18. 54 ‘Clone hysteria’ is discussed in detail in Chapter 4.

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who know they are preordained, freaks who can already see their future

mirrored in another person.55

Huxley’s dystopia provided the basic material through which lawyers speculated on the problematic future of artificial human reproduction that framed the pragmatic task of law’s response to IVF.

Beyond the obvious recognition that various virtual-worlds, such as CCP’s EVE

Online and Sony’s Starwars Galaxies, draw their content from science fiction,56 it was an established feature of the virtual-worlds and law scholarship to weave cyberpunk images, narratives and tropes within the analysis. The term ‘cyberpunk’ was first deployed by

Bruce Bethke as the title of a 1983 short story, published in Amazing Stories about a young hacker;57 however, it was soon deployed to cover near-future fiction from the

1980s concerned with developments in:

… cybernetic and genetic engineering, in organ transplants, and artificial

intelligence re search; the equally significant developments having to do with

information storage-and in particular, the ways that computerized data,

microstorage and developments of data banks are controlled and owned by

multi-nationals (in short, the increasing monopolization by private business of

information, and the ways this monopolization is used for the purpose of

wielding power and control over nation-states and individuals); the social,

psychic, political, and behavioral impact resulting from the shift that has

55 Stone (1973), p 248. 56 See, for example, Jankowich (2006), p 2. More precisely, these worlds draw from space opera. 57 Clute (2003), p 67.

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taken … away from the older industrial technologies to the newer

informational and cybernetic ones.58

For critics, many of whom reduced cyberpunk to Gibson’s ‘sprawl’ trilogy59 –

Neuromancer (1984)60 Count Zero (1986)61 and Mona Lisa Overdrive (1988)62 – the sub-

genre involved a masculine fascination with intimate technologies of the body that

enhance, replace or render superfluous the ‘wetware’ of human existence.63 In the virtual-

worlds and law scholarship, Gibson’s low-life characters from the digital wastelands of

hyper-capitalism, opportunistically hacking corporate databases, become the virtual-

world ‘griefers’64 who destroy and appropriate virtual property. It is the existence of lawless contemporary ‘console cowboys’65 that drives the need for law to protect

property and play spaces. Beyond Gibson’s narrative of data and hackers, his tropes

reappear at other points in the virtual-worlds and law scholarship. His now-famous

description: ‘Cyberspace. A consensual hallucination experienced daily by billions of

legitimate operators … A graphic representation of data abstracted from the banks of

every computer in the human system’,66 which is cited repeatedly by cyberlawyers,67 became in virtual-worlds and law scholarship, ‘Perhaps one day, not far in the future, every computer connected to the Internet will be a little piece of 3D virtual real estate’.68

58 McCaffery (1988), p 9. 59 Csicsery-Ronay (1988), p 269; Easterbrook (1992), p 379. 60 Gibson (1984). 61 Gibson (1986). 62 Gibson (1988). 63 A point emphasised in Bruce Sterling’s preface to Mirrorshades: The Cyberpunk Anthropology (1985): see Sterling (1985), p xiii. See also Csicsery-Ronay (1988), pp 272–273. 64 Grimmelmann (2004), pp 169–170; Zack (2007), p 238; Chin (2007), p 1323; Lastowka (2008), p 913. 65 Easterbrook (1992), p 378. 66 Gibson (1984), p 67. 67 See for example Katsh (1995), p 1684; Horning (1997), p 109; Burke (1996), p 89; Cockfield (2002), p 348; Dan Hunter (2003), p 472. 68 Chen (2006), p 1090.

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However, as feminist critics of Gibson emphasise, Gibson’s cyberspace is bodiless.69

Data are represented geometrically, the familiar ‘stepped scarlet pyramid of the Eastern

Seaboard Fission Authority burning beyond the green cubes of Mitsubishi Bank of

America’,70 but users float without location; indeed, for Gibson to be given a body in

cyberspace causes the death of a real body.71

While a small band of feminist cyberpunk writers imagined a ‘peopled’

cyberspace over the 1980s,72 it was Stephenson’s satirical Snow Crash, which presented a

strangely familiar Metaverse with its Street populated by anthropomorphic avatars – of

cyberspace just like reality, only better – that was often invoked by the virtual-worlds and

law literature. Stephenson’s description of avatars – ‘If you are ugly, you can make your

avatar beautiful. You can look like a gorilla or a dragon, or a giant talking penis in the

Metaverse. Spend five minutes walking down the Street and you will see all of these.’73 – provided the template for virtual-worlds and law scholars’ descriptions of virtual-worlds:

‘She lives in a modest house on a popular island with her husband. They enjoy shopping, fishing, and going dancing. Like everyone else in her town, Ava flies, teleports to work, and talks to animals.’74 Stephenson’s comment that his primary character, the obviously

named Hiro Protagonist, ‘has a nice big house in the Metaverse but has to share a 20-by-

30 in Reality. Real estate acumen does not always extend across the universes’75 became

the quote when considering virtual property.76

69 Cadora (1995), p 364. 70 Gibson (1984), pp 68–69. 71 Gibson (1984), p 290. 72 Cadora (1995), p 365. 73 Stephenson (1992), p 36. 74 Meek-Prieto (2008), p 88. 75 Stephenson (1992), p 26. 76 See Sheldon (2007), p 786.

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Another cyberpunk image in the virtual-worlds and law scholarship was the

cyborg. While the intimate fusion of body and technology has a pedigree in science fiction stretching back to Well’s Martians from War of the Worlds,77 Gibson’s stories

involve a cavalcade of cyborgs: the hacker Case, who only feels whole when he is plugged into a ‘deck’ accessing the matrix; Molly, the cybernetic enhanced razor-girl with optical implants and retractable blades behind burgundy fingernail; and Armitage, the empty ex-army officer whose mind and personality have been constructed by the

Tessier-Ashpool artificial intelligence ‘Wintermute’. Indeed, it can be argued that

cyberpunk’s popularising of the cyborg as commonplace and ordinary, yet still other and

transgressive, explains some of the attraction of the term to 1980s and 1990s

technofeminism, particularly the reception of Donna Haraway’s iconic 1985 ‘A

Manifesto for Cyborgs’.78 This connects with the virtual-worlds and law scholarship in

Lastowka’s and Hunter’s introduction into the literature of the cyborg as a conceptual tool to conceive of the player/avatar construct79 and their development of ‘cyborg

rights’80 to frame consideration of the legal concerns surrounding virtual-worlds.81

In summary, lawyers not only referenced science fiction texts, but extracted from

science fiction images, narratives and tropes to imagine technological futures. First-

generation space lawyers saw a future coloured by space opera; IVF and law scholars

77 Rieder (2008), p 111. 78 Haraway (1985). Although, as discussed below, Haraway’s direct inspiration draws on 1970s feminist science fiction. On the cyborg for technofeminism, see Cadora (1995), p 370; Lykke (1996), pp 13–29; Ben-Tov (1995), pp 135–166; Bailey and Telford (2007), pp 255–258. 79 Lastowka and Hunter (2004), pp 63–65. 80 Lastowka and Hunter (2004), pp 67–72. 81 When introducing the cyborg, Lastowka and Hunter parade several of science fiction’s more popular cyborgs: the ‘Six Million Dollar Man’ from the 1970s television series of the same name, and the ‘Borg’ from the Star Trek franchise. They also acknowledge Haraway as the portal for the cyborg to move from popular culture to scholarly discourse. See Lastowka and Hunter (2004) p 64, n 339.

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conceived the future of artificial human reproduction according to Huxley’s dystopian

vision; and lawyers writing about virtual-worlds saw virtual futures through cyberpunk’s

mirrorshades. The circulation of science fiction content points to the meta-emblem for

technological futures in the law and technology enterprise’s speculative jurisdiction –

‘science fiction’ itself.

Science Fiction as Meta-Emblem

The meta-emblem for the speculative jurisdiction was the term ‘science fiction’. Science

fiction’ was used repeatedly by lawyers to talk about technological futures. Sputnik was greeted by space lawyers with phrases that have gone on to become hackneyed: ‘science fiction is now fact’;82 ‘the problems raised by science fiction may soon become reality’;83 and ‘[space travel] is no longer in the realm of science fiction’.84 ‘Science fiction’ was

also deployed by IVF and law scholars to signpost the future of artificial human

reproduction: ‘[y]esterday’s science fiction, however, is today’s reality’,85 and:

The term in vitro fertilization probably does not mean much to most people,

but the common name, test-tube baby, does. To the naïve, the latter term

conjures up visions of babies cultured in laboratories. To the more

sophisticated, either term represents a major advance in biological science

82 Editors (1958), p 4. See also Jacobus (1959), p 671; Hammarskjöld (1994), pp 332–333. 83 Cerny (1958), p 98. 84 Smythe (1960), p 191. See also Dembling (1959), p 16; Johnson (1963), p 75; Jaffe (1960), p 68: ‘Just three years ago shooting the moon was the highly improbable concern only of science fiction writers.’ 85 Dickman (1985), p 817. In a similar vein, see also Favole (1979), p 799; Annas and Elias (1983), pp 199–200; Lorio (1984), pp 1275–1276; Tuchler (1978), p 310: ‘Consider also the creature of science fiction – the totally fabricated person.’

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and presents opportunities to shape men’s lives in ways that until now were

only possible in science fiction novels.86

Virtual-worlds and law scholars were more circumspect in their deployment of ‘science

fiction’ as a meta-emblem, although it was noted that: ‘Technology makes things possible

today that were unimaginable or at the very least science fiction in the 1960s.’87 Within

the literatures, science fiction was occasionally deployed in a disparaging way. In this

context, ‘science fiction’ signified hysteria and unwarranted over-speculation: ‘The

effects of these biotechnologies are frequently fantasized in a science-fiction like manner

by the media and, as a result, are rarely examined in a rational, systemic manner.’88

However, this signification of ‘science fiction’ was minor, and remained secondary to its dominant deployment as the meta-emblem for a repository of technological futures.

Science fiction as texts, images, narratives and tropes, and ultimately as a meta- emblem for imagining the contours of technological futures, functioned as the wellspring for legal writing on technology. It was science fiction that informed the law and technology enterprise’s speculative jurisdiction. So while the pragmatics of the positivist legal scholarship of the law and technology enterprise emerged from speculation on technological futures, this speculative jurisdiction had its origins in, and was sustained by, science fiction. This apparent dissidence between the fantastic and the practical, and the union of the two in the law and technology enterprise, are not unexpected. The next section will argue that the law and technology enterprise emerges from science fiction precisely because of science fiction’s role as the West’s mythform.

86 Eccles (1985), p 1033. 87 LeBlanc (2008), p 277. 88 Porte (1979), p 67. See also Jaffe (1959), p 375.

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2. Western Mythform

This section argues that science fiction forms the West’s mythform. It is the dreaming site for the West’s technological futures, a place for working through both the anxieties and promises of technological change. The term ‘mythform’ itself has science fiction

origins. Coined by Gibson in the third sprawl novel, Mona Lisa Overdrive, it was described as:

The mythform is usually encountered in one of two modes. One mode

assumes that the cyberspace matrix is inhabited, or perhaps visited, by entities

whose characteristics correspond with the primary mythform of a ‘hidden

people’. The other involves assumption of omniscience, omnipotence and

incomprehensibility on the part of the matrix itself.89

Drawing upon this quote in his attempt to render Gibson performative for virtual reality

technology research, Ken Hills argues that Gibson’s novels suggest ‘virtual technologies

… fill a vacuum in meaning left by the explanation, and hence denigration, of the old

Christian God’.90 This resonates with the revelation of modernity in Chapter 1 as the

myth-ridden era beyond myth.91 God might be dead, but as Mary Shelley showed, myths

remain. Remembering Frankenstein is important. The celebration of Shelley’s creation as

the myth of modernity opens to the claim that science fiction as a genre encases the

mythform of the West. This claim is pursued in two sections. The first section examines

science fiction as a genre, cataloguing claims made for science fiction’s pre-eminence as a repository for Western dreaming of future and future Being, and a documenting of

89 Gibson (1988), p 129. 90 Hills (1996), p 91. 91 Paul Carter uses the term ‘mythform’ to mean the raw material of myths, as the title to his volume describing the making of the text-heavy Nearamnew artwork in Melbourne’s Federation Square. See Carter (2005).

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science fiction as mythform in the unlikely place of jurisprudence. The second section

reinscribes science fiction as mythform into the law and technology enterprise to frame

the question, ‘What would it mean for technical legality if science fiction were taken seriously?’

Science Fiction as Western Mythform

Starting with Frankenstein again, there is dispute about whether ‘science fiction’ begins with Shelley.92 Don Idhe and Robert Adams both argue that the substantive origins of

science fiction lie with the interstellar journey texts of the seventeenth century, of which

Cyrano de Bergerac’s are the best known,93 while Darko Suvin regards Thomas More’s

Utopia (1516)94 as a key text in the formation of the genre.95 However, these claims are

contested within science fiction criticism.96 Isaac Asimov, for instance, argues that

science fiction proper must be seen as having emerged during the nineteenth century.97

However, this search for foundations turns not so much on the chronology of authors but, as Fredric Jameson acknowledges, on the definition of science fiction as a genre.98

Asimov’s preference for science fiction beginning in the nineteenth century arises

from his definition of science fiction as belonging to a culture responding to industrial

technology and concerned about its technological future:

[science fiction] should glory in the fact that it is the literary response to

humanity’s crowning triumph – modern science and technology. It should

92 Brian Aldiss is generally cited as the lead proponent that science fiction begins with Frankenstein: Aldiss (1988), p 25. On contesting this canonisation, see Pierce (1987), p 20. 93 Ihde (2002), pp xiii–ix; Roberts (2005), pp 48–49. Both also document antecedent literatures concerning social and technical speculation and fantastic journeys back to Plato’s Republic. 94 More (1965). 95 Suvin (1979), p 92; Suvin (2003), p 188. 96 Kincaid (2003). 97 Asimov (1981), pp 11–12. 98 Jameson (2005), p 18, n 11.

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trumpet the fact that it deals with the great truth of contemporary times –

rapid change. Science fiction is young because it is today’s literature; and,

more than that, tomorrow’s.99

This conceptualising of science fiction amounts to what can be seen as the

‘epistemological’ definition of science fiction. Both editors credited with developing the genre in North America presented analogous definitions. In the first issue of Amazing

Stories in April 1926, Hugo Gernsback set out the magazine’s publication policy of scientification’: ‘By “scientification” I mean the Jules Verne, H.G. Wells, and Edgar

Allan Poe type of story – a charming romance intermingled with scientific fact and prophetic vision.’100 In a similar vein, John W. Campbell’s definition was that: ‘Science fiction tries to … write up, in story form, what the results look like when [technological change] is applied not only to machines, but to human society as well.’101 However, these definitions of science fiction concerned with the external shape of technological futures proved unsatisfactory to the emerging discipline of science fiction criticism in the 1960s.

The science fiction critics who were drawing on literary criticism protocols and attempting to reconcile ‘new wave’ writers102 to the earlier less literary opus tended to focus less on the editorial subject-matter and more on science fiction’s unique modus. It is from this context that Darko Suvin’s 1972 definition of science fiction as the ‘literature of cognitive estrangement’103 became popular.104 Suvin saw in science fiction not just

99 Asimov (1981), p 12, italics in original. 100 Hugo Gernsback, cited in Westfahl (2007), p 20. On Gernsback’s legacy as an editor, see Siegel (1988); Westfahl (2007). 101 John W. Campbell, quoted in Nicholls et al (1979), p 159. 102 Landon (2002), pp 149–158. 103 Reprinted in Suvin (1979), p 4. 104 Scholes (1975), p 46; Moylan (2000), p 24; Freedman (2000), p 16. On the absorption of Suvin’s estrangement as the critical framework for science fiction studies over the 1970s and 1980s, see Broderick (1995), pp 32–34.

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technological dreaming on an epistemological scale, but a deeper ontological project of thinking Being through the ‘strangeness’ of science fiction.105 Following Suvin and the arrival of academic science fiction critics, definitions of science fiction multiplied – the offspring of the promiscuous tension between epistemological and ontological registers.

In his 1986 study, Gary K. Wolfe documents 33 different definitions from authors, editors and critics.106

The flowering of definitions of science fiction had provoked cynical reactions.

Damon Knight, as early as 1952, claimed that science fiction ‘means what we point to when we say it’,107 and more recently Paul Q. Kincaid suggested that the best that could be found when it came to a definition of science fiction were a collection of texts bearing a ‘family resemblance’.108 Notwithstanding this pragmatic approach, the Australian critic and author Damien Broderick offered a more expansive definition:

[Science fiction] is that species of storytelling native to a culture undergoing,

the epistemic changes implicated in the rise and supersession of technical-

industrial modes of production, distribution, consumption and disposal. It is

marked by (i) metaphoric strategies and metonymic tactics, (ii) the

foregrounding of icons and interpretative schemata from a collectively

constituted generic ‘mega text’ and the concomitant de-emphasis of ‘fine

writing’ and characterisation, and (iii) certain priorities more often found in

105 Suvin (1979), p 14: ‘modern SF is analogous to modern polycentric cosmology, uniting time and space in Einsteinian worlds with different but covariant dimensions and time scales’. 106 Wolfe (1986), pp 109–111. 107 Reprinted in Knight (1967), p 1. 108 Kincaid (2003), p 417; see also Rieder (2008), pp 16–17.

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scientific and postmodern texts than in literary models: specifically attention

to the object in preference to the subject.109

Broderick’s definition has been increasingly cited,110 possibly because it seems to bridge the epistemological register of Asimov’s technology and future, and Suvin’s literary and ontological emphasis, while avoiding content through labels such as ‘metaphoric strategies and metonymic tactics’ and ‘mega text’. However, what Broderick captured was the common thread that can be discerned through the contested history of science fiction definitions. Science fiction is where contemporary Western culture storytelling about technological futures – about how ‘objects’ will change life, not just the external forms and institutional arrangements (epistemological), but the expression of Being itself

(ontological).

It is this relationship of science fiction to the contemporary West that is trumpeted by Fredric Jameson in the conclusion to his influential Postmodernism, or, The Cultural

Logic of Late Capitalism (1991).111 For Jameson:

Might it not still be possible, however, to generate history out of the present

itself and to endow today’s fantasy projections and wish fulfilments with the

force if not a reality, then at least of what grounds and inaugurates realities, as

Heidegger liked to say (stiften). These projections run in opposite directions,

even though they can be detected in the most substantial corpus of such

symptoms – contemporary science fiction.112

109 Broderick (1995), p 155. 110 Roberts (2000), p 12. 111 Jameson (1991). 112 Jameson (1991), p 376, italics in original.

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From a rather different perspective to Jameson’s grand theorising on the decline of the

grand comes Joanna Russ, who argues that, at their best: ‘The myths of science fiction run along the lines of exploring a new world conceptually (not necessarily physically), creating needed physical or social machinery, assessing the consequences of technological or other changes … they are myths of human intelligence and human adaptability.’113 Russ captures the idea that science fiction in its epistemological and

ontological registers constitutes the Western mythform – providing the materials to

explore the external and internal of technological futures. That science fiction provides

for explorations of technology and Being across epistemological and ontological planes is

perhaps best recognised in science fiction criticism when critics invoke ‘myth’ in the

analysis.114 Indeed, C.S. Lewis suggested that the strength of science fiction (along with

fantasy of which he considered superior) was that it provided opportunity for myths and

myth-making within the mythless modernity.115 However, this recognition of science

fiction as mythform is not widely shared outside the quite closed community of science

fiction authors and critics.

Broderick captures a sense of inferiority that surrounds science fiction when, in

his definition, he alludes to a ‘de-emphasis of “fine writing”’ and ‘certain priorities more

often found in scientific and postmodern texts than in literary models’. Samuel R. Delany

observes that science fiction criticism has been beset by insecurities that science fiction is

113 Russ (1995), p 91. 114 For the study of myth in science fiction studies generally, see Scholes and Rabkin (1977), pp 165– 169; George (2000) (frontier myths in 1950s films). For myth and specific franchises, see Star Trek – Tyrrell (1977); Reid-Jeffery (1982); Baker (2001); Star Wars – Tiffin (1999); Lawrence (2006); Mackay (1999); The Matrix – Kimball (2001). The leading specialist science fiction critic on myth in science fiction is Palumbo, with his extended studies of the monomyth in a variety of science fiction texts. See Palumbo (2008, 2004, 2002, 1998, 1997). 115 Lewis (2000), p 52.

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not ‘literature’.116 There is some substance to this insecurity. Science fiction texts rarely become canons of Western literature.117 Within film studies, science fiction does

somewhat better. Fritz Lang’s Metropolis (1927),118 Stanley Kubrick’s 2001: A Space

Odyssey (1968),119 Ridley Scott’s Blade Runner (1982)120 and even George Lucas’s Star

Wars (1977)121 regularly make it on to critics’ lists.122 As Susan Sontag observed in

1965, it seems that that science fiction is more at home with the moving image than with

the written word.123 For Annette Kuhn, this wider acceptance of science fiction cinema

comes because of the medium’s visual and visceral enactment of technological futures:

‘the medium fitting, if not exactly being, the message’.124 This dimension of science

fiction seems to be encapsulated in Broderick’s definition of science fiction as involving

‘specific … attention to the object in preference to the subject’. Reflection on the

‘success’ of science fiction film, notwithstanding critical marginalisation, points to a key feature of science fiction that allows it to function as Western mythform: it is popular.

Science fiction is a ‘democratic’ genre. It belongs not to literary or cultural elites,

but is diffuse across the Western popular consciousness. While science fiction –

especially its populist manifestations on film and television and in paperbacks – might be considered cheesy and juvenile, Western consumers keep buying the product.

Sociological research on science fiction audiences has provided specific explanations for

116 Delany (1989), p 10. This is a concern that Delany does not share. Delany argues that science fiction has the possibility to transform and transgress the literary tradition. He does not want science fiction to be ‘literature’. 117 Milner (1996), pp 150–151. 118 Lang, Metropolis, (Universum Film A.G., 10 January 1927). 119 Kubrick, 2001: A Space Odyssey (Metro-Goldwyn-Mayer, 6 April 1968). 120 Scott, Blade Runner (Warner Bros, 16 December 1982). 121 Lucas, Star Wars: A New Hope Star Wars, (Twentieth Century Fox, 25 May 1977). 122 For example, see American Film Institute (2007); Roberts and Wallis (2002); Schrader (2006). 123 Reprinted as Sontag (2004), p 41. 124 Kuhn (1990), p 7; See also Sobchack (2004), pp 157–158; Abbott (2006).

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the attraction of science fiction to inhabitants of the modern West. There is an image of

science fiction fans as under-employed, cultist ‘losers’ who emotionally and financially

over-invest in specific franchises.125 While this account of the science fiction fan has a

cultural life of its own through films like Trekkies (1997),126 Galaxy Quest (1999)127 and

William Shatner’s notorious 1986 appearance on Saturday Night Live, where he famously told Trekkies to ‘get a life’,128 it has been contested by studies of science fiction

audiences.129 The general conclusion from this research is that science fiction has its

heartland in the speculative life of the West’s technological classes. Appreciation of

science fiction, while popular, is particularly strong within sections of the ‘middle class’

who have a professional or semi-professional relationship with technology.130 Constance

Penley found enthusiastic enjoyment of Star Trek was seemingly a prerequisite for

employment at NASA in the 1990s.131

In short, science fiction is not only the product of ‘a world of culture which has

virtually replaced nature, remade it, and stands at the edge of destroying it’,132 but is the

culture of that culture, and particularly the culture of the technological literate. To adapt a

phrase from Donna Haraway, science fiction comes from ‘inside the belly of the

monster’,133 belonging to and reflecting on technology. In this context, it is not surprising that her critical insights concerning cyborg, gender and technology in both ‘A Manifesto

125 Berger (1977), p 235; Jenkins (1992), pp 10–12; 126 Nygard, Trekkies (Paramount Classics, 18 October 1997). 127 Parisot, Galaxy Quest (Dreamworks, 25 December 1999). 128 Jenkins (1992), pp 9–10. 129 Tulloch and Jenkins (1995), p 4. 130 Berger (1977), pp 238–243; Elkins (1977), p 228: ‘[Science fiction] is the world view of the technologically minded petty bourgeoisie and the professional section of the bourgeoisie.’ See also Tulloch and Jenkins (1995), pp 235–236. 131 Penley (1997), pp 18–21. See also Anijar (2000). 132 Broderick (1995), p 156. 133 Penley and Ross (1990), p 12.

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for Cyborgs’ (1985) and the later Modest_Witness@Second_Millennium.FemaleMan©

_Meets_OncoMouse™ (1997) emerged from analysis of feminist science fiction.134 Nor is it surprising that studies looking into the origins of specific technologies have found that these technologies were initially called forth by science fiction. For example, in his extended study of the ‘Spaceflight Movement’, William Bainbridge argues that science fiction is its ‘public culture’; not only did science fiction prime the United States public for the space program,135 but ‘early [science fiction] authors had a direct and significant

influence on the rocket pioneers and on the development of their ideas’.136 Another

example is Christopher Haley’s suggestion that basic research into laser technology was

driven by senior United States military officers fixated on Wells’ ‘heat ray’ and its space

opera descendent the ‘ray gun’.137 A final very recent example is computer game designers directly crediting Snow Crash with inspiring contemporary social virtual-

worlds like Linden Lab’s Second Life.138

That the form and direction of technology and technology studies have been influenced by the mythform of science fiction is not unexpected, given the identified connection between science fiction and the technological sections of Western society.

However, the claim that science fiction is the Western mythform lies in its formation of the dream space about the future – even for projects that prima facie do not appear to be concerned with technology. A good example is jurisprudence.

134 Haraway (1985), pp 92–99 (discussing Joanna Russ, James Tiptree Jr, Octavia Butler and Samael R. Delany); Haraway (1997), pp 69–74 (discussing Russ’s FemaleMan (1975)). On Haraway’s appropriation of science fiction, see Csicsery-Ronay (1998). 135 Bainbridge (1976), p 222. 136 Bainbridge (1976), p 198. It is a common point in science fiction criticism that Robert A. Heinlein ‘was perhaps more than any other single person, responsible for the popularization in America of the concepts of space travel’: Franklin (1980), p 68. 137 Haley (2001), p 40. 138 Ondrejka (2004), pp 81–82; Taylor (2006), p 26.

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It is probably unsurprising that the science fiction explicitly enters into

jurisprudential scholarship with the ‘rock’ legal philosophy of the North American

Critical Legal Studies (CLS) Movement. A mark of difference for the Baby Boomer

generation was the cheeky inclusion of populist texts and culture into the rarefied spaces

of the law reviews. Peter Gabel’s and Duncan Kennedy’s notorious dialogue ‘Roll Over

Beethoven’ (1984) in the Stanford Law Review139 epitomises the style and challenge of

CLS to the traditional legal culture, and also ruminates on central CLS dilemmas. Gabel and Kennedy touch on whether CLS should be considered a philosophical or pragmatic political movement; whether ‘trashing’ constitutes a CLS method; and the troublesome relation of rights to progressive politics.140 In the article, Kennedy adopts the image of

‘pods’ from Invasion of the Body Snatchers (1956).141 Invasion of the Body Snatchers is

regarded by many critics as the best representation of the Cold War ‘takeover’ sub-genre,

where nefarious aliens duplicate and replace innocent humans.142 The image is deployed

flexibly by Kennedy. Early in the dialogue, ‘pods’ and ‘cluster of pods’ are used to label

the traditions and forms of scholarly activity that appropriate ‘lucid’ and ‘clear’

statements through criticism, and in this reification undermine and usurp the original

utterance.143 Later, the term ‘pods’ is used seemingly interchangeable with ‘robots’ to refer to the automatism of professional roles.144 In both instances the term ‘pods’ is

deployed as representative of a lifeless and less-than-human existence.

139 Gabel and Kennedy (1984). 140 Davies (2008), pp 194–195. 141 Siegel, Invasion of the Body Snatchers (Allied Artists Pictures Corporation, 5 February 1956). Remade to critical disclaim in Kaufman, Invasion of the Body Snatchers (United Artists, 20 December 1978). Gabel and Kennedy (1984), pp 7–9, 13, 38 and 43. 142 Telotte (2001), pp 19–24; Sobchack (1997), pp 121–125. 143 Gabel and Kennedy (1984), pp 7–9. 144 Gabel and Kennedy (1984), pp 42–43.

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Kennedy’s engagement and integration of science fiction into legal theorising and

scholarship were performative. In ‘Roll Over Beethoven’, he exulted legal scholars to

‘operate in the interspace of artefacts, gestures, speeches and rhetoric, histrionics, drama,

all very paradoxical, soap opera, pop culture’.145 In this generational and institutional context, it appears uncontroversial when later critical legal scholars like Pierre Schlag and Costa Douzinas deploy narratives and tropes from science fiction in their writings.146

However, the theory of law was stewing in the Western mythform when Kennedy was only watching Invasion of the Body Snatchers at a matinee in his teens.147

In Chapter 9 of The Concept of Law (1961), H.L.A. Hart attempts,

controversially, to delineate a function for natural law as a theory of acceptance. Hart

postulates that if a legal system contains some basic content, ‘it may gain and retain the

allegiance of most for most of the time and will accordingly be stable’.148 This requisite

basic content of a legal system is summarised as ‘fair and caters genuinely for the vital interests of all those from whom it demands obedience’.149 The phrase ‘vital interests’ is

the key. Hart, following the social contract tradition, articulates a ‘natural’ conception of

human vital interests within ‘five truism’ that capture ‘the salient characteristics of

145 Gabel and Kennedy (1984), p 9. 146 Schlag (1997), p 20 ‘Indeed, consider [how] these mythic creations [paramount norms of American constitutionalism] might function well in a Star Wars movie: “May the Authoritative Material be with you,” or “May you always follow the Master Rule of Recognition.” Douzinas (2000), pp 187–188 ‘From Aristotle’s slaves to Cyborgs and Blade Runner, the boundaries of humanity have been shifting.’ An altogether ‘left-field’ deployment of science fiction in legal theory was Milner S. Ball’s critique of Christopher Stone’s argument for an ecological informed legal ethos utilising Doctor Who. See Ball (1988). Stone’s reply, after expressing ignorance of Doctor Who, was a classic example of mainstream legal academy’s criticism of law and culture: ‘one of the problems of employing myth (literature?) as a medium (device?) for conveying information (advancing an argument?): the myth may be freighted with insights that the communicator could not otherwise convey so well. But it is also a technique that may freight fewer insights than sought.’ Stone (1988), p 232. 147 According to Kennedy’s self-published biography, he would have been fourteen in 1956. See http://duncankennedy.net/biography/index.html, accessed 16 July 2009. 148 Hart (1961), p 197. 149 Hart (1961), p 197.

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human nature’.150 These are ‘human vulnerability’, ‘approximate equality’, ‘limited altruism’, ‘limited resources’ and ‘limited understanding of strength and will’.151

It is at this point of articulating the five truisms that Hart turns to science fiction

as the Western mythform for his explanations. Hart’s imagery is from pre-war British

science fiction. His mode of argument is to define the truisms as absences, raising a

fantastic alternative as a fantasy that evaporates, leaving the salty residual as human

nature. Concerning the first truism, human vulnerability – the fact that humans can kill

each other – Hart explains:

Yet though this is a truism it is not necessarily true; for things might have

been, and might one day be otherwise. There are species of animals whose

physical structure (including exoskeletons or a carapace) renders them

virtually immune from attack by other members of their species … If men

were to lose their vulnerability to each other there would vanish one obvious

reason for the most characteristic provision of law and morals: Thou shalt not

kill.152

Hart deploys heavy imagery: biology, time and human nature tumble together. The

inclusion of the phrases ‘one day be otherwise’ and ‘if men lose their vulnerability’

references Darwinian evolution: the intersection of biology, time and natural section.

Hart does not need to raise the point that human physiognomy, when seen in biological

time, is only a transient moment comprising shifting attributes. In fact, it complicates his

arguments. If he wanted to distance his claims from transcendent statements, he could

have scaled his time to recorded history and made the claim that it exists ‘as long as it is

150 Hart (1961), p 189. 151 Hart (1961), pp 190–193. 152 Hart (1961), p 190.

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remembered’. Also problematic is Hart’s recourse to hard defensive armour, exoskeletons

and carapace: he could have chosen species – like earthworms, for example – that possess

no obvious offensive weapons able to cause harm to other members of the species;

alternatively, he could have chosen sentient animals like corals that do not have the

animation to exchange violent blows; or, in a more radical challenge, discussed entities

composed of collectives of singular cell organisms, where the individuals depend on the

collective for survival. The choice of defensive exoskeletons and carapaces appears, at

first instance, random – maybe manifesting a deep desire for a thicker hide!153 However,

this running together of evolution, human nature and hard shells has a literary pedigree

and one that Hart himself acknowledges in the 1958 essay in the Harvard Law Review that became Chapter 9 of The Concept of Law, were he writes that the ‘details [are] left to

science fiction’.154

The concluding chapter of H.G. Wells’ The Time Machine (1895) has the Time

Traveller lurching into the far future. The Traveller faces humanity’s distant descendant:

I saw that, quite near, what I had taken to be a reddish mass of rock was

moving slowly towards me. Then I saw the thing was really a monstrous

crab-like creature. Can you imagine a crab as large as yonder table, with its

many legs moving slowly and uncertainly …?155

This haunting image, ‘[t]he final glimpses of a dying planet … the most sublime vistas in

English literature’,156 is the image referenced by Hart in his use of evolution and

exoskeletons: Wells even describes the carapace: ‘Its back was corrugated and.

153 Hart’s insecurities and sensitivity to criticism are well documented by Lacey (2004). 154 Hart (1958), p 623. 155 Wells (1995), p 73. 156 Alkon (2002), p 54.

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ornamented with ungainly bosses, and a greenish incrustation blotched it here and

there.’157

Hart also reaches for science fiction when outlining the truism of ‘limited

resources’. He circles around the concept that humans require certain resources for

sustenance:

Again, in this respect, things might have been different. The human organism

might have been constructed like plants, capable of extracting food from air,

or what it needs might have grown without cultivation in limitless

abundance.158

This imagery of plant-like beings can be found in Olaf Stapleton’s Starmaker (1937).159

Stapleton sketches a vision of ‘vegetable humanities’ who reject the dynamism of industrialisation for photosynthesis, leading to a spiritual and peaceful society.160

The argument is not to expose science fiction as something else hidden in Hart’s

closet, but to show how science fiction as Western mythform functions. At key moments

in The Concept of Law, when Hart wants to ‘prove’ being, science fiction offers the resources that come to hand161 (and in doing so, demonstrates Suvin’s observation

concerning science fiction’s cognitive estrangement as opening a window on to the

ontological). The relationship between modern jurisprudence and science fiction has an

157 Wells (1995), p 74. 158 Hart (1961), p 192. 159 Stapledon (1972). 160 Stapledon (1972), p 130-131. 161 That is not that Hart did not use more familiar material from philosophy, but even then he added a speculative edge. In outlining the truism of ‘approximate equality’, Hart acknowledges the debt that this truism owes to Hobbes: ‘Social life with its rules … is irksome at times; but is at any rate less nasty, less brutish and less short than un-restrained aggression for beings of approximate equal strength.’ Then he adds Jonathan Swift’s Lilliputian image of the ‘fantasy of giants among pygmies’: Hart (1961), p 191. On Swift as a forbearer of science fiction, see Roberts (2005), pp 68–72.

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even earlier pedigree. In 1919, Carl Schmitt wrote a short fiction, ‘Der Buribunken’.162

Anticipating his later critique of the state as infected by bureaucratic technocrats,163

Schmitt envisaged a future of the ‘Buribunken … scribes and record keepers who had merge[d] with the machines that they use and the documents that they keep’.164 While

Schmitt’s vision of a future humanity ‘plugged’ into a mega-machine was prefigured by

E.M. Forster’s ‘The Machine Stops’ (1909),165 Schmitt, in a Hartian step, was concerned

with describing the ‘internal point of view’ of the Buribunken as beings belonging to the

machine:

I write myself. Who writes me? I write myself. What is the content of my

writing? I write that I am writing myself. What is the great motor that lifts me

out of this self-satisfying circle of ‘I’-ness? History! I am a key on the

typewriter of history.166

Schmitt’s ‘Der Buribunken’ is quite remarkable, not because its imagery of the intimacy

of the body and information technology predates cyberpunk by 60 years, or for its dystopian accents – Forster’s ‘The Machine Stops’ is the better work – but for its illumination of science fiction as Western mythform. Schmitt, whose Weimar career engaged with the valuelessness of technological existence as legal and political reality, first grappled with the theme through penning a science fiction.167

162 Schmitt (1919). 163 McCormick (1997), pp 42–46. 164 Kennedy (2004), p 44. 165 Forster (1909). On Forster’s proto-dystopia, see Moylan (2000), pp 111–121. 166 Schmitt (1919), quoted in Kennedy (2004), p 45. 167 Schmitt is not the only legal theorist to have turned to science fiction. Critical race theorist Derrick Bell has penned a satirical short science fiction story concerned alien first contact, ‘The Space Traders’ Solution’ (1992), to reflect on race and citizenship. See Derrick Bell (1999) for the text of the story and Bell’s account of its critical impact.

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The endpoint is that science fiction is the Western mythform, the Dreaming site

for consideration of the structure of technological futures and the future of Being in those futures. With science fiction located in this pre-eminent role, its presence as the speculative jurisdiction of the law and technology enterprise can be explained. Law and technology scholars, located within Western culture, were irresistibly drawn to science fiction as the repository for shared imaginings of technological futures. This meant that the writings of the law and technology enterprisers were justified and legitimated through the mythform. This writing constitutes truly modern, deeply mythic narratives about future and BFeing, which forget it is myth under the guise of technical erudition.

Taking Science Fiction Seriously

The previous section concluded with a demonstration of science fiction as Western

mythform in jurisprudence. This reminds of one of Ronald Dworkin’s lasting aesthetic

contribution to legal scholarship, his title ‘Taking Rights Seriously’.168 This piece of

‘pseudo-Dworkinism’,169 first used by Dworkin in 1970,170 has been adopted and adapted

by legal scholars who wish to take their work, and be taken, seriously.171 The narrative

arc in Chapter 2 and this present chapter has been to identify that technical legality has

been occupied by the law and technology enterprise. In turn, the law and technology

enterprise was shown to have its founding moment in the speculative jurisdiction

concerning technological futures that was grounded in science fiction as the Western

mythform. It has been shown that technical legality, thinking at the intersection of law

168 Dworkin (1977). 169 MacNeil (2007), p 48. 170 Dworkin (1970). 171 See, for example, Twining (1984); West (1990); Coppel and O’Neill (1992); Tribe (1995); Balkin and Levinson (1999); Menkel-Meadow (2007).

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and technology, has been occupied by a discourse that has its originary location in

science fiction. To think technical legality through science fiction, therefore, is not novel,

nor particularly radical, as science fiction is already the modus through which technical

legality is thought. It is just the practitioners of the law and technology enterprise are

unreflective on the founding commitments of their project; while occupying an

imaginative universe given form by science fiction, their eyes are cast downwards to the

technicalities of posited law doing policy work.

The task for technical legality is to take science fiction seriously as Western

mythform; to adopt well worn phrases – this time from science fiction criticism; to go ‘in

search of wonder’172 and experience ‘the new maps of hell’.173 As was identified above,

science fiction as Western mythform occupies two registers. The immediate one is of the

material – the epistemological register associated with Asimov’s definition of science

fiction as the projection of social, political and technological structures into the future.

The second register, highlighted by Suvin, is the ontological – the strangeness of science

fiction opening to a mediation on Being. It is the complex tension between these two that

allows science fiction to be the mythform of the modern West. As such, taking science fiction seriously as the progressing of technical legality becomes two tasks.

The first task is taking science fiction seriously in its epistemological mode. How

can science fiction as the mythform that surrounds legal engagement with technology better help to understand the relationship between law and technology? A form of this

question was asked by the recent law, technology and society literature examined in

Chapter 2. However, the continual emphasis on attempting to distil useful generalisations

172 Knight (1967). 173 Amis (1960).

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for the future regulation of technology has kept that scholarship from exploring, in its

own right, the relationships between law and technology. In what follows, this taking

science fiction seriously is undertaken at two moments in Australian political life when law-making occurred around an emergent technology: the passing of the Prohibition of

Human Cloning Act 2002 (Cth) and its subsequent amendment in 2006; and the passing of the Motor Car Act 1909 (Vic). The analysis shows how the calling forth of these laws, and the very content of the laws themselves, came from and were infused with science fiction. As highlighted in Chapter 1, the method for taking this seriously is derived from the cultural studies turn in law and culture of considering law material as a cultural artefact in conjunction with other cultural artefacts to gain an understanding of a specific historical event.

However, in presenting what amounts to a historical and cultural analysis can only take technical legality so far. As will be seen, what is not explained through seeing the legal responses to cloning and motor vehicle technologies as participating in science fiction is that something deeply technological can be glimpsed in the very form of the called forth laws. Something about Being lurks within these technical laws. This pushes the narrative into science fiction’s ontological register. In what follows, two specific science fictions – Frank Herbert’s Dune cycle and Battlestar Galactica – expose, question and reconstruct the legality and the technical of technical legality. The method of these analyses follows MacNeil’s tri-layered jurisprudential reading of popular culture.

But how to begin? The seemingly innocent phrase ‘law and technology enterprise’ that has been deployed so far possesses a second meaning. Within the Western mythform, ‘enterprise’ suggests not just a ‘project undertaken or to be undertaken,

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especially one that is of some importance or that requires boldness or energy’,174 but

Gene Roddenberry’s indelible mark on science fiction. It seems only appropriate that taking the Western mythform seriously first involves considering Australian law’s response to human cloning through Star Trek.

174 Yallop et al (2005), p 474.

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Stage II: Law and Technology Cultures

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Clone Hysteria and Star Trek: Nemesis

I saw by the light of the moon the demon at the easement. A ghastly grin

wrinkled his lips as he gazed on me, where I sat fulfilling the task which

he had allotted to me. Yes, he had followed me in my travels; he had

loitered in forests, hid himself in caves, or taken refuge in wide and desert

heaths; and he now came to mark my progress and claim the fulfilment of

my promise.

– Mary Shelley, Frankenstein: Or, the Modern Prometheus, 18181

This chapter utilises the epistemological register of science fiction to piece together an understanding of the Prohibition of Human Cloning Act 2002 (Cth). This occurs in three sections. The first section replicates the methods of the cultural studies strand in law and culture to argue that the public archive of cloning in Australia that began with the announcement of ‘Dolly the Sheep’ and ended with the Prohibition of Human Cloning

Act 2002 (Cth) reveals ‘clone hysteria’. Further, the Australian legal literature on cloning, following the law and technology enterprise template, did not critically engage with this monstrous fear of human cloning. However, both the public archive and Australian law and cloning scholarship locate clone hysteria in science fiction’s ‘clone canon’. The second section takes this speculative jurisdiction seriously. It is argued that Star Trek:

1 Shelley (1965), p 159.

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Nemesis (2002)2 can be read as a capstone of the clone canon. Two narratives concerning

the wrongness of clones are articulated in the film: the clone as double and the clone as

artefact. Driving these anxieties is concern with essence. In reuniting the Prohibition of

Human Cloning Act 2002 (Cth) with its speculative jurisdiction, a far richer

understanding of the Act as a cultural event can be traced. The third section deploys this

cultural framing of technical legality to explain the 2006 amendments to the Prohibition

of Human Cloning Act 2002 (Cth). However, in so doing, the analysis opens to glimpses

of another monster in the shadows – law as technology – in the primacy of procedure in

both the law and law-making that follow cloning.

1. Clone Hysteria in Australia

This section traces the hysteria surrounding cloning in Australia from the announcement

of the birth of Dolly the Sheep in February 1997 to the assent of the Prohibition of

Human Cloning Act 2002 (Cth) in December 2002. Through examining the public

archive of cloning, the debates in the Commonwealth Parliament, the governmental

reports and newspaper items, what emerges is that the clone and cloning were considered

monstrous. However, beyond this hysteria, consideration of cloning was mostly absent

within the public discourses. Cloning was the evil extreme against which the moral

ambiguity of embryonic stem cell research could be debated and the eventual

compromise enacted. This absence was mostly shared by the Australian law and cloning

scholarship. What was acknowledged in this literature was that the self-evident evil of cloning was demonstrated by the science fiction’s ‘clone canon’. Furthermore, the entire public discussions of cloning clearly acknowledged the ‘clone canon’ as the source of

2 Baird, Star Trek Nemesis, (Paramount Pictures, 13 December 2002).

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proof for the evil of clones and cloning. However, beyond citing specific texts from the clone canon, serious reflection on clones and cloning remained absent.

Public Culture of Clone Hysteria 1997–2002

In Australia, it was not until 19 December 2002 – nearly six years after the news of

Dolly3 – that the Prohibition of Human Cloning Act 2002 (Cth) became law.4 As law, the

Act was elegant in its simplicity. It prohibited the creation or importation into Australia

of a human clone with a maximum penalty of fifteen years’ imprisonment.5 It prohibited,

with the lesser maximum penalty of ten years’ imprisonment, other reproductive and

genetic manipulations: creating a chimeric embryo (a human embryo into which animal

DNA has been added); creating a hybrid embryo (an embryo created from the cross-

fertilisation of a human and animal gamete); the harvesting of and trading in human

embryos; and creating a human embryo from the genetic material of more than two

persons.6 Assuming that the more morally repugnant the offence, the greater the penalty, it appeared from the Act that leading the army of dangerous beings marching menacingly out from cyberpunk7 was the clone.8

But why did the clone attract this opprobrium? Textbooks define a clone as an

entity with an identical genetic sequence to another individual.9 However, this definition

3 Kolata (1998), p 32. It must be remembered that 23 February 1997 was the public announcement of Dolly. It was born 5 July 1996. 4 This is the national legislation. As was uncovered in the Australian Health Ethics Committee report of 1998, several of the Australian states had, at the time of the announcement of Dolly, legislation prohibiting human cloning. See Australian Health Ethics Committee (1998), pp 32–38. 5 Prohibition of Human Cloning Act 2002 (Cth), ss 9, 11. 6 Prohibition of Human Cloning Act 2002 (Cth), ss 10, 15, 20(1), 20(2), 19, 22 and 23. 7 Sterling (1985). 8 In discussing the penalties for cloning in the Second Reading Speech of the Bill, the Prime Minster indicated: ‘This is a severe penalty and indicates the seriousness of the crime.’ Commonwealth Parliamentary Debates, House of Representatives, 27 June 2002, p. 4542 (John Howard, Prime Minister). 9 Lodish et al (2000), p G-4.

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fails to explain the extreme penalties for cloning in the Prohibition of Human Cloning Act

2002 (Cth). There are natural ‘clones’. Normal cellular reproduction by mitosis involves

the splitting of a single cell into two identical daughter cells. Plant propagation by cutting

produces siblings with the same genes as the parent, and identical twins also satisfy the

definition.10 Clearly, the clones that the Act fearfully anticipated possessed something

more than genetic sameness.

The Prohibition of Human Cloning Act 2002 (Cth) can be seen as the endpoint of nearly six years of a public reckoning of which clones and cloning were a feature. During this time, there were significant technological developments as well as significant institutional activity. To better locate the argument concerning clone hysteria, a chronology of technology, actors and institutions is required. However, this chronology is not innocent. It establishes a narrative arc that has cloning all but disappearing from the public record.

Chronology 1997–2002 This public reckoning began on 24 February 1997, with page one stories concerning

Dolly.11 The initial reporting perceived three applications for the technology Dolly represented. The first was animal cloning, allowing breeders to maintain genetic lines through successive generations.12 During 1997, the Australian media reported on

10 On natural or ‘gecko’ cloning, see David and Kirkhope (2005), p 368. On the problems with using ‘clone’ as a legal definition, see Gogarty (2003). 11 ‘Cloning of Sheep Stuns Scientists’, The Age (Melbourne), 24 February 1997, p 1; Amalfi, ‘Breakthrough Set to Create Legal, Ethical Free-for-all’, The West Australian (Perth), 25 February 1997, p 9; Kotulak ‘Scientists Clone Lamb from Cell to Make History’, Courier-Mail (Brisbane), 24 February 1997, p 1. 12 See Beale ‘Forget the Elvis Scenarios, It’s Time for Sensible Debate’, Sydney Morning Herald, 25 February 1997, p 8. The Dolly technology was developed within the context of genetically engineering sheep to produce pharmaceuticals in their milk. Cloning was needed to ensure successive generations of the genetically modified animal. See Wilmut et al (2000).

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announcements of cloned monkeys13 and cows.14 The second was the revival of

endangered species through cloning.15 The third was human reproductive cloning:

creating a child who would have the same nuclear genetic material as another human.16

At a political-legal level, 1997 witnessed the first attempts at regulating cloning with the

Clinton Administration’s decision to prohibit federal funds for cloning research17 and the

adoption by the General Conference of UNESCO on 11 November 1997 of the Universal

Declaration on the Human Genome and Human Rights, which states that the cloning of

humans is ‘contrary to human dignity’ and ‘shall not be permitted’.18

A significant development occurred in 1998, in terms of the complexity and

urgency within the public representations. In January 1998, the Australian media reported

what would become a regular occurrence: the announcement of commercial human

cloning by a fringe scientist or group.19 Seemingly in response to these reports, on 14

January 1998 the Commonwealth Health Minister requested the Australian Health Ethics

Committee (AHEC) to review the science, ethics and law of human cloning.20 In

November 1998 came the first reports of the successful propagation and manipulation of

13 Weiss and Schwartz, ‘US Cloning Experts Attend to Some Serious Monkey Business’, The Age (Melbourne), 3 March 1997, p 11. 14 Reed, ‘Super Cattle Made to Order’, The West Australian (Perth), 15 March 1997, p 40. 15 See, for example, Amalfi, ‘ Rare Species Clone Risk’, The West Australian (Perth), 5 March 1997, p 9. 16 See, for example, Dow ‘Ethicists Predict Human Cloning’, The Age (Melbourne), 25 February 1997, p 7. 17 ‘Cuts on Cloning’, The Australian (Sydney), 3 June 1997, p 8. 18 Universal Declaration on the Human Genome and Human Rights, UNESCO, 29th General Conference, 11 November 1997, Art 11. 19 The Australian media reported maverick fertility scientist Richard Seed’s December 1997 comments on attempting to clone a human using Dolly technology in early January 1998. Weiss and Delvecchio, ‘Scientist “90% Ready” to Clone First Human’, Sydney Morning Herald, 8 January 1998, p 3; Ferrari ‘Softly, Softly in Footsteps of Dolly’, The Australian, 9 January 1998, p 5. On Seed’s impact on the cloning debate in America, see Bonnicksen (2002), pp 54–55. 20 Australian Health Ethics Committee (1998), p viii.

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human embryonic stem cells,21 with the claim that the research could lead to cures for cancer, Parkinson’s disease and other fatal conditions.22 The initial reports claimed that embryonic stem cell propagation and manipulation could be combined with the Dolly technology to allow for ‘therapeutic cloning’ – the creation of stem cells genetically similar to a patient allowing the possibility of growing rejection-free therapies.23 The

AHEC report was presented on 16 December 1998. In it, the AHEC urged a national ban on human cloning and a national approach to research on human embryos.24

The following year, 1999, was characterised by an overall positive assessment of embryonic stem cells in the Australian media,25 and the widespread adoption in the media of the terms ‘therapeutic cloning’ as distinct from ‘reproductive cloning’.26 It also witnessed the announcement of successful propagation of adult stem cells.27 Adult stem cells were championed as avoiding the politics of reproduction associated with embryonic stem cells.28 At the political level, on 10 August 1999 the Commonwealth government requested the House of Representatives Standing Committee on Legal and

Constitutional Affairs to review the AHEC report.29

21 These announcements were made almost simultaneously by two different United States-based research teams: The University of Wisconsin team (Thomson and Marshall 1998; Thomson et al 1998); and the Johns Hopkins University team (Shamblott et al 1998). 22 See, for example, Gray, ‘Legalise Cloning: Scientists’, The Age (Melbourne), 10 December 1998, p 5. 23 See, for example, Smith ‘ Call to Set Up Ape Cloning Centre’, Sydney Morning Herald, 12 December 1998, p 3. See also Australian Health Ethics Committee (1998), pp 17–19. 24 Australian Health Ethics Committee (1998), p 43 (recommendations 1, 2 and 3). 25 See, for example, Lunn and Kerin, ‘They May Be Cloning Around Again … but It Could Help Paraplegics Walk’, The Australian, 17 March 1999, p 1; Spinks, ‘Cloning of Spare Parts Step Closer’, The Age (Melbourne), 17 March 1999, 1; Hickman ‘The Growing Strain of Stem Cells’, The Australian (Sydney), 20 March 1999, p 22. 26 Editorial ‘Cloning Cells Requires Consideration’, The Australian, 20 March 1999, p 18 is a good example of the positive reception of embryonic stem cells and the use of the terms ‘therapeutic’ and ‘reproductive’ cloning. 27 Bjornson et al (1999); Clarke et al (2000). 28 ‘Changing Cells Stun Scientists’, The Australian, 5 February 1999, p 40. 29 Gray, ‘MPs Will Review Human Cloning’, The Age (Melbourne), 20 August 1999, p 8.

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In terms of media, 2000 was similar to 1999, with most items relating positively to embryonic stem cells.30 Politically, 2000 saw the bulk of the evidence-gathering associated with the House of Representative inquiry, including public hearings in

March.31 It also saw amendments added to the Gene Technology Bill 2000 (Cth) in the

Senate, banning human cloning as a stop-gap measure pending the House Committee report and a national response.32

An increase in the tempo of the controversy occurred in 2001. There were more items in the Australian media that were negative about embryonic stem cells,33 and greater awareness of the differences between adult and embryonic stem cells.34 Also, the relationship between embryonic stem cells and ‘surplus’ IVF embryos became clearer following the Bush Administration’s announcement allowing funding for research only on existing embryonic stem cell lines.35 With regard to cloning, there were further – false

– announcements of human cloning by fringe groups.36 The House Committee delivered its report on 20 September 2001. The report, which became known as the ‘Andrews report’ after the chair, then Liberal backbencher Kevin Andrews, recommended that

30 See, for example, Dobson and Leake ‘Organ Repair only a Cellular Clone Call Away’, The Australian, 1 May 2000, p 10; Bagwell, ‘Inhuman Condition ‘, The Australian Financial Review, 26 August 2000, p 26. 31 House of Representatives (2001), p 7. 32 Commonwealth Parliamentary Debates, Senate, 1 December 2000, 20464 (Grant Tambling, The Parliamentary Secretary to the Minister for Health and Aged Care). On this ‘eleventh hour’ amendment, see. Nicol et al (2001), p 29. 33 For example, Pell, ‘Another Lamb to Slaughter’, The Australian, 22 August 2001, p 11; Cook, ‘Cell Ethics Down the River for a Song’, The Australian, 15 September 2001, p 50; Abboud, ‘Where Strict Ethics and Good Science Intersect’, Sydney Morning Herald, 17 August 2001, p 12. 34 Following reporting of adult stem cell cultivation and manipulation: Smith ‘Human Brain Cells Offer Hope on Diseases’, Sydney Morning Herald, 16 August 2001, p 1. 35 Temman, ‘Embryos Created for Stem Cell Tests’, Courier-Mail (Brisbane), 13 June 2001, p 17; Metherell et al, ‘Embryos Join the War on Disease’, Sydney Morning Herald, 11 August 2001, p 1. 36 Reports of both the fringe UFO religion the Raelian Cloneaid project and the syndicate of Zanos and Antinori: Stern ‘Human Clone `Only 18 Months Away’, Adelaide Advertiser, 31 January 2001, p 22; Simpson, ‘Well Hello, Dolly!’, The West Australian (Perth), 13 January 2001, p 4. On Cloneaid, see Agar (2002), pp 109–114; Palmer (2004), pp 177–194.

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Commonwealth legislation (with mirror legislation from the states) be introduced.37 The majority recommended the banning of reproductive and therapeutic cloning, regulated access to surplus IVF embryos for embryonic stem cell research, a prohibition on the creation of embryos for research and a three-year review.38 The minority recommended a

total ban on cloning and limiting research on existing embryonic stem cell lines.39

The climax of the controversy was reached in 2002. On 25 February, it was

reported in the media that Commonwealth Cabinet had considered the Andrews report

and was favouring the minority’s recommendation.40 In response, supporters of

embryonic stem cell research were widely reported lobbying for the research.41

Responding to this, then Prime Minister John Howard announced that Cabinet would make a final decision after consultation with stakeholders.42 Between 28 February and 4

April 2002, the Australian media contained many items from both supporters and

opponents of embryonic stem cell research.43 On 4 April, Cabinet decided to follow the majority’s recommendations from the Andrews report.44 This proposal was endorsed by

37 House of Representatives (2001), p 224. 38 House of Representatives (2001), pp xix–xxi. 39 House of Representatives (2001), pp xii, 224. 40 See ‘Embryo Work Banned’, Courier-Mail (Brisbane), 26 February 2002, p 1; Dodson and Gray, ‘Embryo Ban Hits Research’, The Age (Melbourne), 26 February 2002, p 1 41 See, for example, Wroe et al, ‘Embryo Ban Shocks Premiers’, The Age (Melbourne), 27 February 2002, p 4; Savulescu, ‘An Ethical Outcome Hijacked’, Sydney Morning Herald, 28 February 2002, p 14; Pera, ‘Allow Research, for Our Health’s Sake’, The Australian Financial Review, 28 February 2002, p 79. 42 Grattan and Smith, ‘Howard to Study Stem Cell Research Before Ban’, Sydney Morning Herald, 27 February 2002, p 7. 43 See, for example, Burke and Grattan, ‘Let Embryos Be Adopted, Archbishop Tells Howard’, Sydney Morning Herald, 3 April 2002, p 1; Brock ‘Whose Life and Suffering is It Anyway?’, The Australian, 1 April 2002, p 12; Kerin and Henderson, ‘Premiers Approve Stem-Cell Research: Leaders Approve Research’, The Australian, 1 April 2002, p 7. 44 Parnell, ‘Go-ahead on Embryos – PM Supports Cell Research’, Courier Mail (Brisbane), 4 April 2002, p 1.

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the state premiers at the Council of the Australian Governments (COAG) meeting on 5

April.45

The Research Involving Embryos and Prohibition of Human Cloning Bill 2002

(Cth) was introduced to the House of Representatives on 27 June 2002.46 On 21 August, the Senate referred the Bill to the Senate’s Community Affairs Legislation Committee

(Senate Committee). On 29 August 2002, due to agitation in the House concerning the

Bill’s joining together of the prohibition of human cloning with the regulation of embryonic stem cell research, it was split into the Prohibition on Human Cloning Bill

2002 (Cth) and the Research Involving Human Embryos Bill 2002 (Cth).47 The

Prohibition on Human Cloning Bill 2002 (Cth) passed the House on 29 August 200248 and the Research Involving Human Embryos Bill 2002 (Cth) passed on 25 September

2002.49 During the debate in the House, there was significant media coverage of parliamentary speeches,50 lobbying by researchers51 and a concentrated campaign by the

45 Council of Australian Governments Communiqué, 5 April 2002, www.coag.gov.au/meetings/050402/index.htm, accessed 9 December 2004 and Council of Australian Governments, Arrangements for Nationally Consistent Bans on Human Cloning and Other Unacceptable Practices, and Use of Excess Assisted Reproductive Technology (Art) Embryos, 5 April 2002, www.coag.gov.au/meetings/050402/cloning.htm#1, accessed 9 December 2004. 46 Commonwealth Parliamentary Debates, House of Representatives, 27 June 2002, p 4541 (John Howard, Prime Minister). 47 Commonwealth Parliamentary Debates, House of Representatives, 21 August 2002, p 6192 (Bruce Billson); Metherell, ‘Split Vote Puts Stem-cell Backers in Double Jeopardy’, Sydney Morning Herald, 30 August 2002, p 4; Sherd (2007), p 189. 48 Commonwealth Parliamentary Debates, House of Representatives, 29 August 2002, p 6197. 49 ‘In the House: Stem Cells’, The Australian, 27 September 2002, p 2. 50 Parnell, ‘Embryo Bill Fires Rivalries’, Courier-Mail (Brisbane), 22 August 2002, p 2; Schubert, ‘Debate Livens Up Canberra’, The Australian, 21 August 2002, p 4. 51 Hope, ‘Stem-Cell Treatment Advance’, The Australian, 10 August 2002, p 9; ‘Stem-Cell Joy for Leukaemia Battler and His Best Mate’, Adelaide Advertiser, 16 August 2002, p 26; Baker, ‘Local Stem Cell Expertise Will be Lost, Warns Expert’, Sydney Morning Herald, 19 August 2002, p 2.

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opponents of embryonic stem cell research against the lead Australian researcher, Alan

Trounson.52

The Prohibition on Human Cloning Bill 2002 (Cth) was introduced to the Senate

on 18 September 2002, and the Research Involving Human Embryos Bill 2002 (Cth) on

15 October 2002.53 After receiving 1851 public submissions and conducting six days of

hearings, the Senate Committee reported on 24 October 2002.54 The Prohibition on

Human Cloning Bill 2002 (Cth) passed the Senate on 14 November 2002, and the

Research Involving Human Embryos Bill 2002 (Cth) passed on 5 December 2002. The

House agreed to the Senate’s minor amendments on 11 December 2002,55 and the Bills were given assent on 19 December 2002.

This chronology does more than just map the events behind the making of law. It shows how cloning seemingly disappeared from the agenda; it was swamped by the politicking of embryonic stem cell research, with its images of curing the incurable and

‘little babies being dismembered’.56 At this level, the Prohibition of Human Cloning Act

2002 (Cth) can be understood as part of a legislative response to the politics surrounding

stem cell research. However, this does not explain the severity of the prohibitions in the

Act. Within the public record from 1997 to 2002, the clone was a hysterical image.

52 The attacks on Trounson ranged from his criticism of the Catholic Church (Hope, ‘Trounson Labels Catholics Irrational’, The Australian, 1 August 2002, p1), his admission to using aborted foetus tissue in research (Robotham and Smith, ‘Abortions Set to Fuel Stem Cell Research’, Sydney Morning Herald, 5 August 2002, p 1) and his disclosures concerning his personal investment in embryonic stem cell research (Tingle, ‘News – Singapore Link Another Problem for Trounson’, The Australian Financial Review, 2 September 2002, p 3). The most damaging attacks arose from Trounson’s presentation to the Liberal-National joint party room, where he showed a video of a crippled rat that he claimed had been cured using embryonic stem cells. Opponents argued that the rat was cured with embryonic germ cells (a successor cell to a stem cell), suggesting that Trounson misled the parliamentarians (Shanahan, ‘Trounson “Rat Trick” Backfires’, The Australian, 27 August 2002, p 5. 53 ‘In the House: Stem Cells’, The Australian, 27 September 2002, p 2. 54 Senate Community Affairs Legislation Committee (2002), p 1. 55 Commonwealth Parliamentary Debates, Senate, 14 November 2002, p 6342. 56 Bruce (2002), p 327.

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Cloning did not invoke a rational response – unlike the rational debates and

rationalisations surrounding embryonic stem cell research and access to excess IVF

embryos. The clone was a wrong. The place to begin this examination of a public culture

of clone hysteria is with the debates in the Commonwealth Parliament that accompanied

passage of the Prohibition of Human Cloning Act 2002 (Cth).

Clones in Parliament

Cloning was not directly addressed in the Commonwealth Parliament. This avoidance can

be seen in Howard’s second reading speech for the Research Involving Embryos and

Prohibition of Human Cloning Bill 2002 (Cth) on 27 June 2002:

I do not underestimate the sensitive nature of the subject matter assessed in

this legislation, nor the strength of views that many will have on these issues

… This Bill, in my view, successfully balances respect for human dignity,

ensures that community standards and ethical values are upheld and enables

the enormous potential of embryonic stem cell research to be explored.57

Howard’s speech amounted to a careful defence of Cabinet’s decision to adopt the

majority’s recommendations from the Andrews report and subsequent COAG agreement

to allow access to surplus IVF embryos for stem cell research, and his references to

‘balance’ must be seen in that light. As to cloning, Howard was much less circumspect:

‘Like many in the community, I am opposed to any form of human cloning, both reproductive and therapeutic, and consider that now is the time to prohibit such practices

57 Commonwealth Parliamentary Debates, House of Representatives, 27 June 2002, p 4543 (John Howard, Prime Minister).

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from occurring in Australia.’58 Howard carefully justified the stem cell compromise, but

the prohibition on cloning was announced without any justifications or explanations.

Instead, Howard joined with ‘many in the community’ who do not need to explain why

their opinions should form law.

In the lengthy debate in the House that accompanied the passage of the Bill,

members repeated this pattern. Embryonic stem cell research was a matter of controversy

requiring justification, argument and rhetorical ploys, while prohibiting cloning was the

point of commonality. Labor opposition members were allowed a conscience vote on

stem cell research, but the then leader Simon Crean made it clear that: ‘Our policy does

not support human cloning.’59 When members from both government and opposition

benches turned their minds to the prohibition of cloning, its prohibition was described as

‘self-evident’,60 through statements like ‘we say no’61 and that cloning threatened the

‘sanctity of human life’.62 Members commented that the provisions in the Bill dealing

with cloning had ‘unanimous support’,63 and ‘[the Bill] seeks to ban cloning human beings, which is an action I very strongly support – and I do note there is a universal will to do this across the community’.64 Ultimately, it fell to Liberal backbencher Bronwyn

Bishop to express what seemed obvious: ‘All are in agreement that cloning should be

58 Commonwealth Parliamentary Debates, House of Representatives, 27 June 2002, p 4541 (John Howard, Prime Minister). 59 Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5242 (Simon Crean, Leader of the Opposition). 60 Commonwealth Parliamentary Debates, House of Representatives, 21 August 2002, p 5317 (David Cox). 61 Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6053 (Kim Beazley). 62 Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6044 (Danna Vale, Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence). 63 Commonwealth Parliamentary Debates, House of Representatives, 21 August 2002, p 6068 (Alexander Downer, Minister for Foreign Affairs). 64 Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, 5866 (John Forest). See also Commonwealth, Parliamentary Debates, House of Representatives 21 August 2002, p 5306 (Ann Corcoran).

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outlawed.’65 Evidence of this was that the Prohibition of Human Cloning Bill 2002 (Cth), freed from the provision relating to research on human embryos, immediately passed.66

A similar pattern followed in the Senate. Cloning was to be prohibited because it

‘transgresses normal and reasonably acceptable ethical and moral bounds … This is simply a reasonable argument about what people would accept as reasonable.’67 Cloning offended ‘human dignity’68 and: ‘We all support this Bill, of course, because it outlaws human cloning.’69 In urging the House to accept the minor amendments made by the

Senate, Labor frontbencher Stephen Smith summarised: ‘A ban on human cloning is sensible, is necessary and, on the basis of the debate here and in the Senate, has the universal and unanimous support of Parliament.’70 What was remarkable about the parliamentary debate was the lack of debate. Liberal Senator for Tasmania Guy Barnett presented one of the few attempts at justifying the prohibition of cloning. Cloning, the

Senator argued, threatened the continuation of the family and the stability of identity. He added: ‘Let us not just assume and take it as a fact that human cloning is wrong. We must put on the record the reasons why and make it clear to society as a whole that each person is important and that each individual is to be honoured and respected.’71 However, this task of recording the reasons against cloning was one he did not undertake.

65 Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5883 (Bronwyn Bishop). 66 Commonwealth Parliamentary Debates, House of Representatives, 29 August 2002, p 6197. 67 Commonwealth Parliamentary Debates, Senate, 11 November 2002, pp 5838–5839 (John Hogg). 68 Commonwealth Parliamentary Debates, Senate, 18 September 2002, p 4421 (Richard Alston, Minister for Communications, Information Technology and the Arts). 69 Commonwealth Parliamentary Debates, Senate, 11 November 2002, p 5843 (Christopher Ellison). 70 Commonwealth Parliamentary Debates, House of Representatives, 11 December 2002, p 10114 (Stephen Smith). 71 Commonwealth Parliamentary Debates, Senate, 11 November 2002, pp 5833–5834 (Guy Barnett).

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In summary, the parliamentary debates reveal a muffled silence about cloning.

Parliamentarians, when they did talk about cloning, did two things. First, the distinction,

between therapeutic and reproductive cloning was under-appreciated. The Prime Minister

condensed the two and most MPs followed in step.72 Second, their rejection of cloning

was tied up with some hysterical images. It was dismissed as ‘wrong’, ‘not supported by the community’ and ‘against human dignity’. Notwithstanding that 106 out of 150 parliamentarians spoke,73 there appeared to be a common sliding scale of moral

reprehensibility. Adult stem cell research was considered a good,74 even by the minority

of members who voted against embryonic stem cell research.75 Cloning occupied the

alternative pole: it was the wrong to be banished from Australia’s technological future. In

the middle was the ambiguous moral and political consternation of embryonic stem cells.

This scripting of the debate had a pedigree. The parliamentarians were enacting a script

set out by the AHEC report, the Andrews report and the Senate report.

Clones in Reports

The three Commonwealth reports can be read as successive redrafting of the script that

was performed in parliament. As three iteration of the same general story, the reports

72 See, for example, Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5256 (Nicola Roxon); Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5263 (Jenny Macklin); Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5851 (Andrew Southcott); Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5851 (Ron Barresi); Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5865 (Laurie Ferguson). 73 Sherd (2007), p 186. 74 See, for example, Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6102 (Daryl Williams, Attorney-General). 75 See, for example, Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6106 (Kevin Andrews, Minister for Aging); Commonwealth Parliamentary Debates, Senate, 11 November 2002, pp 5855–5856 (Stephen Hutchins).

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substantiate what was suggested when setting out the chronology: that, in the movement

from 1998 to 2002, talk of clones and cloning became more hysterical.

The starting point is the AHEC report of 1998, which contains a chapter that

attempts to set out ‘a series of ethical issues associated with human cloning.’76 After

making the distinction between ‘whole cloning’ and ‘part cloning’ of a human,77 prefiguring the terms ‘reproductive’ and ‘therapeutic’ cloning, the chapter progresses to canvass various consequential and deontological arguments for and against part-cloning, concluding ‘that the more convincing, weighty and cogent arguments support constraints on the use of cloning techniques which involve human embryos’.78 Discussion of whole

cloning considers but dismisses the use of cloning to create a child – either because of

infertility or same sex – as highly controversial, and something that ‘many would

question’.79 In essence, the AHEC report accepts that cloning threatens ‘human dignity’,80 as demonstrated by community standards:

The Working Group chose not to conduct public consultation as so many

International and National pronouncements from professional groups and

community groups indicated a consensus of opinion on prohibiting the

cloning of human beings.81

The AHEC report set the essential elements of clone hysteria into play. Consideration of

cloning was not a rational task. There was a basic emotional response of abhorrence

which it then legitimated with dignity claims and community consensus.82

76 Australian Health Ethics Committee (1998), p 23 [3.1]. 77 Australian Health Ethics Committee (1998), p 23 [3.2]. 78 Australian Health Ethics Committee (1998), p 31 [3.33]. 79 Australian Health Ethics Committee (1998), p 26 [3.16]. 80 Australian Health Ethics Committee (1998), p v. 81 Australian Health Ethics Committee (1998), p ii. 82 This criticism of the AHEC report was made by Blackford (1999).

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The Andrews report of 2001 followed the AHEC report. In the foreword, the

House Committee packaged the emotional responses of the AHEC with ‘xeroxing’ to

declare that:

… the notion of ‘photocopying’ a human being is contrary to human dignity,

confuses family and personal relationships and offends many of the deepest

understandings of our unique identity and individuality.83

The substance of the report did not explain these various points.84 Indeed, the chapter dedicated to discussion of reproductive cloning merely tallies small extracts from the

submissions by bioethicists, the churches and the biomedical research community, as to

why reproductive cloning was medically unnecessary,85 as well as how it offended human dignity,86 would undermine the family87 and would destroy identity.88 In doing so,

the report did ‘little more than a sociological description of the views of Australian individuals and organizations who have taken an interest in the issue’.89 It did not actively assess, evaluate or consider cloning beyond cataloguing the ‘no’ perspective.90 It further resisted authorising the distinction between reproductive and therapeutic cloning.91 What the Andrews report did do, with its transmitting of clone hysteria, was

formally cast cloning into the role of villain, to be the foil against which the majority’s

83 House of Representatives (2001), p x. 84 The Andrews report substantiated one position against reproductive cloning. In the chapter on science, the report canvassed researcher opinion that the then state of the science of reproductive cloning would expose mothers and any potential children to unacceptable risks. House of Representatives (2001), pp 34–35. 85 House of Representatives (2001), pp 78–79. 86 House of Representatives (2001), pp 79–82. 87 House of Representatives (2001), pp 82–86. 88 House of Representatives (2001), pp 86–87. 89 Little (2001), p 83. 90 Little (2001), p 86. 91 House of Representatives (2001), pp xxiv, 36–37.

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recommendation allowing embryonic stem cell research on existing surplus IVF embryos

could be a balanced and reasonable position.92

A final stage on which cloning played this role was in the Senate report. Like the

AHEC and Andrews reports, cloning received limited discussion:

Evidence before the Committee suggests that there is near uniform support

for the prohibition on reproductive cloning, and very strong support for a

prohibition or at least a moratorium on ‘therapeutic’ cloning. This support is

grounded in a strong consensus that such practices are ‘ethically

unacceptable’.93

The reference for this ‘strong consensus’ was to Howard’s second reading speech in the

House of Representatives, highlighting a circular dimension to the hysteria. The report did continue to emphasis what it considered as the basis of this consensus:

[It] is based on both direct consequentialist considerations, such as the risk of

creating abnormal or prematurely aged embryos or individuals, and on

broader concerns such as the threat to concepts of identity and kinship, fear of

eugenics, commodification of children and the implications for genetic

diversity.94

The reference given for these propositions was the Parliamentary Library Bill Digest for

the Research Involving Embryos and Prohibition of Human Cloning Bill 2002, which

perfunctorily canvassed opinions on these issues.95 Further, like the Andrews report and

92 House of Representatives (2001), pp 224–225. 93 Senate Community Affairs Legislation Committee (2002), p 37 (citations omitted). 94 Senate Community Affairs Legislation Committee (2002), p 37 (citations omitted). 95 Norberry (2002).

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the parliamentary debates, while the Senate report used the distinction between

reproductive and therapeutic, the terms were questioned.96

What the three reports bolstered was the hysterical treatment of cloning in the

parliamentary debates. This hysterical deployment and disappearance of the clone was

also a feature of the newspaper reporting

Clones in Print

The initial 1997 reports about Dolly presented cloning in two lights. Dolly, a rather average-looking Finn-Dorset ewe, was presented as reasonably innocuous, and as a subject for humour.97 However, beyond the bemusement, Dolly immediately was framed

98 as involving more than just cloned livestock, but as the harbinger of human cloning. In

light of the hysteria that came to surround clones, the tone of these initial reports appears

quite balanced. Indeed, there were calls not for hysteria, but rather for moderation and

reflection. Graeme Leech’s 25 February 1997 report in The Australian on Dolly’s

announcement directly countered the hysterical response to cloning through emphasising

that personality cannot be cloned.99 Steve Dow, writing on the same day in The Age,

included quotes from bioethicists that ‘people should remain calm and think’.100 Bob

Beale in the Sydney Morning Herald suggested: ‘how to resolve the issue initially: stop

96 Senate Community Affairs Legislation Committee (2002), p 17. 97 Holliman (2004), p 118; Lowe ‘Fun Starts in Two Shakes of a Lamb’s Tail’, Courier-Mail (Brisbane), 1 March 1997, p 31. A feature of the Australian media was a regular stream of humorist pieces between 1997 and 2002. See, for example, Switzer ‘Clone a Kennett or Two to Perk up the Economy’, The Australian, 1 March 1997, p 56; Dyson ‘Got a Problem? Send in the Clones’, Sunday Age (Melbourne), 6 April 1997, p 4; Hopkins ‘Cloning Around, You’ll Never Walk Alone’, The Australian, 12 April 2000, p 26. 98 See, for example, Kotulak, ‘Scientists Clone Lamb from Cell to Make History’, Courier-Mail (Brisbane), 24 February 1997, p 1; ‘Clones from Human Bodies’, The Australian, 28 February 1997, p 7. 99 Leech, ‘Scientists Deny Wolf in Sheep’s Cloning’, The Australian, 25 February 1997, p 3. 100 Dow, ‘Ethicists Predict Human Cloning’, The Age (Melbourne), 25 February 1997, p 7.

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the wild speculation about cloning babies for organ donors or bringing back Elvis, and encourage ethical, sensible medical and veterinary research to continue’.101 However, this balance was not reflected in the editorials. On the same day, 25 February, the editor of the Sydney Morning Herald was concerned:

The obvious question after this week’s announcement was: can humans be

cloned? ‘There is no reason in principle why you couldn’t,’ responded Dr Ian

Wilmut, the leader of the team that made the breakthrough. But, he added,

‘All of us would find that offensive.’ Other scientists and ethicists feel Dr

Wilmut’s reply was too glib. This eventuality has been anticipated for

centuries.102

On 16 March, the editor of The Sunday Age worried:

But will it be adapted to the human race? History teaches us that if something

can be done, it will be done if there is sufficient incentive for those who have

something to gain … As yet we can but fantasise about the possibilities of

human cloning, for good or for evil, and to worry about the seductive

prospects and horrific dangers. Already there is speculation about the

conceivable rise of another Adolf Hitler who not only dreams about breeding

a master race but could command an effective means of doing so. If that

sounds even faintly enticing, remember the ghastly downside: the systematic

101 Beale, ‘Forget the Elvis Scenarios, It’s Time for Sensible Debate’, Sydney Morning Herald, 25 February 1997, p 8. 102 Editorial, ‘The Gene is Out of the Bottle’, The Age (Melbourne), 25 February 1997, p 14.

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elimination of people stigmatised as useless, defective, subversive or racially

inferior.103

While the editors were sowing the seeds of clone hysteria, during 1997 and 1998 there were the occasional calls in the Australian press for human cloning in specific situations.104 For example, Deborah Smith writing in the Sydney Morning Herald on

1 March 1997 suggested, as a possible and desirable future, a family cloning a sick child

so that the ‘cloned’ sibling (delayed identical twin) could be could provide healthy tissue

or even organ donations.105 However, by 2001 these suggestions had disappeared and

opposition to human cloning became the common ground in the public debate

surrounding stem cell technology.106 In this debate, the spectre of human cloning was

deployed by opponents of stem cell research to persuade the public of the wrongs of stem

cell technology.107 This negative characterising of human cloning was also accepted by pro-stem cell research advocates, who were careful to distinguish their position from

support for reproductive cloning.108 This deployment of cloning was carefully managed

in the editorials, especially during the critical political period of March and April 2002.

On 6 April, the editor of the Courier-Mail congratulated Howard and the state premiers

for agreeing to the majority’s recommendations from the Andrews report as ‘offering

103 Editorial, ‘Sorting the Sheep from the Ethics’, The Sunday Age (Melbourne), 16 March 1997, p 20. 104 For example, see, Kerin and Collins, ‘Double Take’, The Australian, 24 January 1998, p 26; Amalfi, ‘Gene Expert Rejects Fear’, The West Australian (Perth), 22 July 1997, p 11. 105 Smith ‘Send in the Clones’, Sydney Morning Herald, 1 March 1997, p 36. 106 Malan, ‘Scientists Ignore Moral Issues’, The West Australian (Perth), 31 March 2001, p 16; Naik, ‘A Feat of Duplication’, The Australian Financial Review, 23 November 2001, p 53. 107 See, for example, Pell, ‘Decision a Pyrrhic Victory for Pragmatism’, Sydney Morning Herald, 9 April 2002, p 13. 108 See, for example, Yallop, ‘No Ban, Urges Stem Pioneer’, The Australian, 14 August 2002, p 5.

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hope for the future’, part of which involved the ‘banning of cloning’.109 This was backed

up by other editorials during 2002 that recycled, in response to reports of Dolly’s arthritis and the announcement of human reproductive cloning by the Raelians, the well- established tropes of community disgust and threats to human dignity from cloning.110 In unison with the parliamentary debate and the reports, the media from the period established and maintained clone hysteria.

The Public Culture of Clone Hysteria

What can be identified in the archive documenting the Australian response to cloning is a

public culture of clone hysteria. While beginning with the media event surrounding

reports of Dolly in 1997 and given a degree of focus in the AHEC report of 1998, cloning

was soon displaced within the public record by embryonic stem cells. This did not mean

that cloning disappeared. Instead, consideration of cloning became hysterical. Cloning

was an evil. It was, prima facie, contrary to both the collective and the individual. This

hysteria had a function. Together with the acclaimed good of adult stem cell research,

cloning was the evil frame of reference and as such delineated the parameters for the

embryonic stem cell debate.

At one level, this explains the serious penalties in the Prohibition of Human

Cloning Act 2002 (Cth). To function in the rhetorical role as the evil to be banished,

allowing less repugnant, but still morally contested, technologies to flourish, clones and

cloning needed symbolic weight. The threat of 20 years’ imprisonment to would-be

109 Editorial ‘Cell Research Offers Hope for Future’, Courier-Mail (Brisbane), 6 April 2002, p 22. See also Editorial ‘Case for Embryonic Stem-cell Research’, Sydney Morning Herald, 4 April 2002, p 10. 110 Editorial, ‘Dolly Continues to Raise Big Questions’, The Age (Melbourne), 8 January 2002, p 10; Editorial, ‘Human Clones Wrong Road for Science to Take’, The Australian, 30 December 2002, p 10.

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Australian cloners was not a rational response to an immediate threat of clandestine

‘meat-labs’ feeding a black-market of cloned children. Instead, it was the necessary end

of the clone’s hysterical function in the embryonic stem cell debate. Clones as evil had to

be banned with sufficient force as part of the package that would allow access to surplus

IVF embryos for stem cell research.

This explanation of the transmission of hysteria to law misses a critical element. It has explained through examining the political context why the Prohibition of Human

Cloning Act 2002 (Cth) possessed quite extreme penalties. But what has not been explained is why consideration of cloning became hysterical. Unsurprisingly, given our identification of the law and technology enterprise in Chapter 2, this explanation is not ostensibly provided by the Australian law and cloning scholarship. However, the beginnings of an explanation can be glimpsed in that literature’s engagement with its speculative jurisdiction: science fiction’s clone canon.

Australian Law and Cloning Scholarship and the Clone Canon

Investigating clone hysteria that became law with the Prohibition of Human Cloning Act

2002 (Cth) was not a strong feature of the Australian legal scholarship on cloning.

However, within the predominately descriptive project, a small number of contributors,

drawing upon bioethics, considered cloning in more significant detail. These represented

the discourse corrective to the public record. The specific arguments about human dignity

and community standards superficially raised in the public record were rationally

dissected and evaluated. However, what was not directly answered in this literature was the tendency to clone hysteria, beyond the referencing of science fiction’s clone canon as

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speculative jurisdiction. This tracing of clone hysteria to the mythform can also be glimpsed in the public archive.

Australian Law and Cloning Scholarship

Dolly functioned in the Australian law and cloning scholarship in the same way that

Sputnik, Louise Brown and Second Life did in the literatures analysed in Chapters 2 and

3, as a crisis event that anchored the legal project. It was an established ploy in the

Australian law and cloning scholarship to begin with a description of Dolly’s cultural impact.111 Having justified the task at hand, the literature then would offer several descriptive sections. There was description of the technologies involved, in more112 or less detail.113 Like the IVF and law scholarship, there was often a section titled ‘ethical issues’, in which various bioethical positions were summarised.114 There was description of existing legal regimes,115 and the invariable calling for law.116 There were descriptions of reform processes in Australia,117 internationally118 and in comparative jurisdictions.119

Finally, there were pieces that considered the impact of cloning on other legal fields.120

111 Lupton (1997), pp 125–128; Little (1998), p 57; Chalmers (1999), p 210; Chalmers (2000), p 41; Dean Bell (1999), p 202; Thomson (2000), pp 31–32; Chester (2001), pp 320–321; Ranson (2002), p 383; Lee (2004), p 351. 112 Nicol et al (2002), pp 33–41; Slabbert (2003), pp 515–518. 113 Lupton (1997), pp 123–124; Little (1998), pp 59–60; Thomson (2000), pp 31–32; Magri (2003), pp [3]–[7]; Then (2004), pp 189–190; Lee (2004), pp 352–354. 114 Little (1998), pp 60–62; Nicol et al (2001), pp 27–28; Nicol et al (2002), pp 41–43; Bruce (2002), pp 324–334. Gogarty (2003), pp 84–85; Slabbert (2003), pp 518–522. 115 Chalmers (1999), p 211; Thomson (2000), pp 40–41; Nicol et al (2001), pp 28–31; Bruce (2002), pp 323–324; Nicol et al (2002), pp 43–49, 51–54; Magri (2003), pp [9]–[50]; Slabbert (2003), pp 524–527; Lee (2004), pp 366–369; Then (2004), pp 190–195. 116 Nicol et al (2002), pp 54–59; Gogarty and Nicol (2002), pp [24]–[32]; Gogarty (2003), p 85; Then (2004), pp 203–204. 117 Nicol et al (2002), pp 49-51; Gogarty (2003), pp 86–87; Slabbert (2003), pp 522–524; Morley et al (2003). 118 Dean Bell (1999), pp 218–226; Magri (2003), pp [51]–[54]. 119 Ranson (2002), pp 384–385; Magri (2003), pp [55]–[68]. 120 Rimmer (2003); Then (2004).

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Like the other literatures based on the law and technology enterprise, the

Australian law and cloning scholarship was a practical project. Lawyers were writing

within a positivist modus of law as an instrument through which policy, generally

determined from elsewhere, could be implemented. As such, the scholarship focused on

technical issues: what formula of words would adequately achieve the policy outcome of

prohibiting cloning121 or whether ‘hard law’, as in detailed prescriptive legislation,

should be forgone in favour of ‘soft law’ of regulations able to quickly respond to a

developing research field.122 The examples from the scholarship that did this legal advising were at the more sophisticated end of the spectrum. The bulk did not engage as deeply as that. Instead, the positivist commitment manifested in an educational guise: the lawyer-instructor was writing to simply communicate a problem, a reform process or a new law, to busy communities of lawyers and health professionals.123 They were serving up the ‘is’ for easy digestion.

However, interspersed with the bland diet of description were tastes of flavour.

The first morsel was that the Australian law and cloning scholarship acknowledged its

speculative jurisdiction. Dolly was a concern because clones carried cultural baggage,

and the Australian law and cloning scholarship often cited texts from the clone canon –

Brave New World,124 The Boys from Brazil125(1976 novel,126 1978 film)127, Jurassic

121 Chalmers (1999), p 211; Nicol et al (2001), p 29; Ranson (2002), p 385; Gogarty and Nicol (2002), pp [7]–[12]; Gogarty (2003), p 87. 122 Magri (2005), pp 491–492. 123 See, for example, Taylor (2002); Puran (2002a, 2002c, 2002b); Szoke (2003); Morley et al (2003); Otlowski (2004). 124 Referenced by Norberry (2002), p 5; Chester (2001), p 321 n 3. 125 Referenced by Chalmers (1999), p 212; Dean Bell (1999), p 206; Chester (2001), p 321 n 3; Little (2001), p 62; Norberry (2002), p 5. 126 Levin (1994). 127 Schaffner, The Boys from Brazil (Twentieth Century Fox, 5 October 1978).

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Park128 (1990 novel,129 1993 film)130 – along with some of the familiar narratives and

tropes associated with these texts – eugenics,131 replicas132 mad scientist/dictator.133

Dolly called lawyers to write because she embodied a long-imagined technological future whose time had come.134

The second tidbit was that a small number of articles engaged with clones by

advocating for a position drawing upon bioethics. Reflecting divisions within bioethics,

there were two types of arguments made.135 One strain focused on fundamental values

and the establishment of limits,136 while the other was concerned with balance and

overall good.137

While expanding the analysis beyond description, these articles remained narrow in focus. They emphasised that the technologies were subject to public debate and that law-making would occur in the wake of this debate.138 In doing so, they presented an

idealised vision. By trying to engage in the debate at the level of ideas – reflecting on

ethics, dignity and utility – the suggestion was that rational arguments had influence. As

has been shown, reasoned argument and evaluation were not characteristics of the public

record when it came to cloning. The bioethical informed law scholarship presented

reasoned debate on the ethics of reproductive and therapeutic cloning that was mostly

128 Referenced by Dean Bell (1999), p 206; Chester (2001), p 321 n 3. 129 Crichton (1990). 130 Spielberg, Jurassic Park, (Universal Studios, 11 June 1993). 131 Lee (2004), p 352. 132 Gogarty (2003), p 84. 133 Lupton (1997), p 129; Weisbrot (2001), p 5. 134 Magri (2003), p [8]. 135 Root Wolpe (1998), p 39. For examples of deontological bioethical arguments in Australia on cloning and stem cells, see Fleming et al (2002); Uren (2002). For examples of utilitarian-based arguments, see Swanton (1998); Savulescu (1999); Pera (1999); Blackford (2003). In this, the Australian bioethics literature reflects divisions within international scholarship. See, for example, Harris (1998); Häyry (2003). 136 See, for example, Thomson (2000); Bruce (2002). 137 See, for example, Chester (2001); Lee (2004). 138 Thomson (2000), p 43; Bruce (2002), p 335.

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absent within the public record. However, an explanation of the discontinuity between the

professional and public discourses was under-formulated. Instead, the bioethics

contributions manifested an intellectual distaste for irrational hysteria that characterised

the public record on cloning, and championed the professional philosopher as the bringer

of light and reason to the issue:

It is, however, folly to oppose human cloning outright … It is necessary that

the debate on human cloning should continue, but in a civilised society it

must be free of subjectivity and zealous appeals to people’s emotions and

fears.139

What was to be feared in the clone hysteria was the hysterical fear.140 It is at this

point that an explanation for clone hysteria breaks into the texts. The public fears the

clone because science fiction’s clone canon has originated and nurtured clone hysteria.141

Not only can the clone canon be seen as the speculative jurisdiction inspiring the contributors to the Australian law and cloning scholarship, but it had been singled out as the mythform for clone hysteria.

Clone Canon

The clone canon manifested twice in the Australian law and cloning literature: as

speculative jurisdiction, and in a smaller number of articles as the explanation for clone

hysteria. This should come as no surprise. Human cloning possesses negative cultural

resonance. Between 1997 and 2005, the birth of a human clone was announced five

139 Swanton (1998), p 26. 140 See Blackford (2001b), p 246; Magney (2003). For a long discussion on clone hysteria as hysteria, see Harris (1999). 141 Dean Bell (1999), p 217.

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times, each time stimulating front-page reports carrying widespread condemnation.142 Jon

Turney has observed that human reproductive cloning has been a part of the cultural horizon for at least 50 years.143 There have been earlier media controversies concerning

human cloning, most notably the public debate that surrounded David Rorvik’s hoax

cloning novel In His Image (1978).144 Before Rorvik, there was a proto-bioethics

discourse concerned with the possibility of human cloning and the ethical dilemmas it posed.145 Indeed, human cloning as self-evidently repulsive was used by pioneering

bioethicists during the recombinant DNA and IVF controversies of the 1970s as the

extreme case of an out-of-control amoral science.146 By the 1970s, there existed enough

serious consideration of cloning to inspire law and technology enterprise articles on

human cloning147 and, as was seen in discussion of the IVF and law scholarship in

Chapter 2, by the time of Louise Brown’s birth in 1978, cloning featured on the

continuum of artificial human reproduction. By the mid-1980s, the prospect of cloning was regularly anticipated in law reviews148 and books,149 to the point – as noted by the

Commonwealth reports and many contributions to the Australian law and cloning

scholarship – that three Australian states – Victoria, South Australia and Western

Australia – possessed legislative prohibitions on cloning prior to 1997.150

142 Miah (2005). 143 Turney (1998), p 214. 144 Rorvik (1978); on this book and its media impact, see Kolata (1998), pp 93–119; Pence (1997), p 31. 145 See Klugman and Murray (1998), pp 11–12, commenting on the impact of Lederberg’s 1966 article on the dilemmas of human cloning. See Lederberg (1966). While Lederberg’s article is not in the most serious tone, it provoked a strong response from Ramsey (1970), pp 78–100. 146 Zaner (1998), p 116. See also Klugman and Murray (1998), pp 16-18; Jonsen (1998), p 306; Hartouni (1993). 147 See for example Pizzulli (1974); See also Stone (1973), p 233. 148 See for example Smith (1983). 149 See for example Carmen (1985). 150 Australian Health Ethics Committee (1998), p 32; House of Representatives (2001), p 132; Nicol et al (2002), p 46; Otlowski (2004), p 57; Magri (2005), p 485.

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For cultural scholars, the persistence of cloning in the public imagination was

precisely because of the clone canon in science fiction.151 From its dystopian origins in

Brave New World,152 the clone has featured within a variety of science fiction genres

across print, film and television: from The Boys from Brazil153 to celebrated texts in

feminist science fiction, such as Fay Weldon’s The Cloning of Joanna May (1989)154 and

James Triptree Jr’s novella Houston, Houston, Do You Read (1976);155 to space opera,156 cyberpunk157 and monster action films such as Jurassic Park;158 through to humour.159

Indeed, prior to Dolly, John Clute’s and Peter Nicholls’ Encyclopaedia of Science Fiction

(1993) suggested a non-conclusive list of the cloning canon running to over 40 entries.160

The clone joins the robot, spaceship, alien and cyborg as one of the icons of science fiction. Christine Corcos, Isabel Corcos and Brian Stockhoff suggest that, while the narratives and themes within the cloning oeuvre are diverse and complex, ‘most of them are negative’.161 Outside of some feminist science fiction, where critiques of

heterosexuality allowed more positive stories about clones (like in Houston, Houston, Do

151 Corcos et al (1999), pp 1045-1046; Hamilton (2003), p 267. 152 Poon (2000), p 166. 153 Levin (1994); Schaffner, The Boys from Brazil (Twentieth Century Fox United States of America, 5 October 1978); See also Le Guin (1978); Hamm, Godsend, (Lions Gate Entertainment, United States of America, 30 April 2004); Bay, The Island, (DreamWorks, United States of America, 22 July 2005). 154 Weldon (1989). 155 Tiptree Jr (1976). 156 Clarke (1976); Lucas, Attack of the Clones: Star Wars (Twentieth Century Fox, 16 May 2002). 157 In the Neuromancer, the Tessier-Ashpool family turn out to be hive of clones, mostly cryogenically frozen in their villa Straylight atop the Freeside orbital platform. Gibson (1984), pp 95–96. 158 Crichton (1990); Spielberg, Jurassic Park (Universal Studios, 11 June 1993). Other action fantasy science fictions featuring clones are Spottiswoode, The 6th Day (Columbia Pictures, 17 November 2000) and Bay, The Island (DreamWorks, 22 July 2005). 159 For example, Ramis, Multiplicity (Columbia Pictures, 17 July 1996) and Allen,The Sleeper (United Artists, 17 December 1973). 160 Clute and Nicholls (1993), pp 236–237. 161 Corcos et al (1999), p 1052.

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You Read),162 the clone has generally been a figure associated with disorder, war and

destruction. This distinguishes the clone from the robot, spaceship, alien and even

cyborg. The clone is tied to authoritarianism and mad scientists, as in The Boys from

Brazil.163 The clone invokes the manufactured and unnatural, as in Brave New World,164 and the clone usually features in narratives that involve a great deal of destruction and death, as in Jurassic Park.

These specific texts, and the narratives and tropes popularly attributed to them, were deployed in the Australian public record on cloning. In parliament, the then Foreign

Minister, Alexander Downer, clearly had The Boys from Brazil on his mind when he informed the House that:

I think all of us would agree that the implications of allowing human cloning

are uncertain and, to some of us, even somewhat frightening. It raises the

concept of eugenics … one particularly reflects here on the Nazis during the

1930s and the 1940s.165

So too did Warren Entsch, who ridiculed the linking of embryonic stem cell research to Nazi experiments.166 Similarly, Joe Hockey – then Minister for Small

Business and Tourism – opined that: ‘This debate is not furthered or enhanced by

comparing embryonic stem cell research to Nazi wartime medical testing.’167 Indeed, five

162 Wasson (2004), p 141. 163 McKale (1981). 164 Hartouni (1993), p 96; see also Blackford (2003). 165 Commonwealth Parliamentary Debates, House of Representatives, 21 August 2002, p 6068 (Alexander Downer, Minister for Foreign Affairs). See also Commonwealth Parliamentary Debates, Senate, 12 November 2002, p 6105 (Nick Sherry). 166 Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5253 (Warren Entsch, Parliamentary Secretary to the Minister for Industry, Tourism and Resources). 167 Commonwealth Parliamentary Debates, House of Representatives, 21 August 2002, p 5332 (Joe Hockey, Minster for Small Business and Tourism). See also Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5849 (Annette Ellis); Commonwealth

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parliamentarians felt it necessary to expressly distance embryonic stem cells from

‘unwarranted and unhelpful’ Nazi associations.168 With this weight of opinion against the

Nazi tropes, Bob Katter, who voted with the minority against embryonic stem cells, drew

upon other texts within the clone canon: ‘there are a lot of people who are pretty keen on

becoming Dr Moreau or Dr Frankenstein. We read a lot about them in the very famous

book Brave New World. That being the case, I think they should stop immediately.’169

Like the clone itself, these texts lay in the shadows of the parliamentary debate.

The clone canon signified the obvious wrong that most parliamentarians wished to be seen as rising above. Labor frontbencher Nicola Roxon enacted this. She ‘reject[ed] the idea that … we are on a slippery slope – a downward spiral into creating all sorts of

Frankenstein clones or other types of fears that people have’.170 However, in rejecting it

she acknowledged the influence of the Western mythform: ‘There are sections in that Bill

which prohibit the sorts of things that we read about in sci-fi books, including some of

the more extreme things, such as the creation of animal-human clones or placing part of

a human embryo into an animal womb.’171 This deployment of clone canon was more evident in the media.

Parliamentary Debates, House of Representatives, 27 August 2002, p 5876 (Brendan Nelson, Minister for Education, Science and Training); Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6042 (Alan Griffin). 168 Commonwealth Parliamentary Debates, Senate, 11 November 2002, p 5998 (John Faulkner); See also Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5849 (Annette Ellis); Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5876 (Brendan Nelson, Minister for Education, Science and Training); Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, 6042 (Alan Griffin); Commonwealth Parliamentary Debates, Senate, 12 November 2002, p 6070 (George Campbell). 169 Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6089 (Robert Katter). 170 Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5255 (Nicola Roxon). Also on the ‘unhelpfulness’ of Frankenstein allusion, see Commonwealth Parliamentary Debates, House of Representatives, 27 August 2002, p 5844 (Anna Burke). 171 Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5256 (Nicola Roxon).

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The Boys from Brazil was particularly the focus of Graeme Leech’s opinion piece

on 1 March 1997:

… a mad dictator or an unscrupulous government wanting to conduct a secret

experiment, or even a deranged billionaire, could, within a few years, have

the capacity to gather the necessary personnel and equipment to clone a

human. The frequently cited scenario contained in the movie The Boys from

Brazil, in which Nazi fanatics plot to clone copies of Hitler, is no more than

an entertaining piece of science fiction … But the fictional idea might still

hold sufficient fascination for someone to undertake the work in secrecy …

So who would deny with any confidence that someone such as Saddam

Hussein might not be tempted to clone himself?172

Indeed, as was later reflected in parliament, The Boys from Brazil (together with its tropes) was the predominate text on cloning through the five years.173 In addition, there were numerous suggestions that ‘Huxley’s Brave New World moves closer it’s

174 becoming even more frightening’, and some specific referencing to 1990s science

fiction television: ‘there will be no gruesome half-human, half-animals emerging from

laboratories in NSW, no real-life enactments of The X Files’.175 A significant feature in

172 Leech, ‘The Genetic Gene’, The Australian, 1 March 1997, p 22. 173 See, for example, Lane, ‘The Hard Copy’, The Sunday Age (Melbourne), 2 March 1997, p 14; Kolata, ‘Gene Genie’, The Australian, 3 January 1998b, p 14; Kerin and Collins, ‘Double Take’, The Australian, 24 January 1998, p 26; Devine, ‘Crackpot Reasoning Behind Ungodly Cloning Rush’, The Australian, 13 August 2001, p 13; Dowd ‘The Copy Cat: Science is Catching Up’, Sydney Morning Herald, 22 February 2002, p 11. 174 Dow, ‘Ethicists Predict Human Cloning’, The Age (Melbourne), 25 February 1997, p 7; Lane, ‘The Hard Copy’, The Sunday Age (Melbourne), 2 March 1997, p 14; Ragg, ‘Right or Wrong? – Cloning Ourselves’, The Australian, 8 June 1998, p 10; ‘Like It or Not, Cloning is Coming’, Adelaide Advertiser, 20 April 1998, p 18; Cassrels, ‘Research and Destroy’, Courier-Mail (Brisbane), 1 December 2001, p 27; McKenna ‘Cloning’s Dangerous Delivery’, Adelaide Advertiser, 17 August 2002, p 55. 175 Bernoth, ‘Goodbye Dolly: NSW Will Be a No Clone Zone’, Sydney Morning Herald, 18 April 1997, p 3.

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the media was that it was in discussion of cloning, and not stems cells, that science fiction

appeared, and this was across a range of voices, including opinion pieces by politicians176 and columnists,177 and also in the reporting of positions of bioethicists178 and researchers.179 However, when it came to embryonic stem cells, a difference in

deployment between participants was visible. Opponents of embryonic stem cell

research, especially over 2001–02, deployed the clone canon against embryonic stem cell

research.180 For example, Senator Ron Boswell – who later played a prominent role in the

attacks on Trounson181 – was reported in The Australian on 16 April 2002 as saying:

He [Boswell] warned politicians ‘must not be naïve’ in debating a Bill which

could create ‘a select group of millionaires’ from people promoting stem-cell

research … Senator Boswell said Ingenko, another biotech company was

similar to Ingen, the company in the Jurassic Park films.182

This linking of embryonic stem cells to the clone canon was directly countered in the

media by researchers. For example, John Smeaton, Chief Executive of Bresagen, argued

that:

When conversation turns to cloning, and the use of human embryos for

research, some people tend to throw up their hands in horror and declare the

176 ‘The stuff of nightmares and horror movies has come of age … a confirmation of our prejudices that mad scientists lurk in the shadows in their white coats with anti-social habits.’ Stott Despoja, ‘To Clone or Not to Clone’, The Australian, 26 February 1997, p 12. 177 ‘Carbon-copy Babies, “Cookie-cutter” Kids, Brave New World, The Boys from Brazil, bring back Elvis from the dead: so now it’s technically possible to clone human beings – aaargh!’ Beale, ‘Forget the Elvis Scenarios, It’s Time for Sensible Debate’, Sydney Morning Herald, 25 February 1997, p 8. 178 Meryment, ‘“Foetus Farming” Claim Disputed’, Courier-Mail (Brisbane), 19 March 1999, p 5. 179 Douez, ‘Genomes Hysteria Rather than History: Professor’, The Age (Melbourne), 15 May 2001, p 8. 180 Pell, ‘Another Lamb to Slaughter’, The Australian, 22 August 2001, p 11 (Brave New World). 181 Metherell, ‘Mistakes Put Stem Cell Funding at Risk’, Sydney Morning Herald, 29 August 2002, p 4. 182 Price ‘Boswell Warning on Clones’, The Australian, 16 May 2002, p 3.

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whole subject beyond the pale. Visions of mad professors creating vast

armies of freakish look-alike humans infiltrating suburban playgrounds

suddenly spring to mind. All very Hollywood and very off the mark.183

In summary, the public archive surrounding cloning reveals its mythform. Clones

belonged to science fiction, and in parliament and the media the clone canon was invoked

as evidence of the wrong of clones and cloning. So far the argument has not progressed

very far: clone hysteria has been identified and for the bioethics-informed legal literature,

the clone canon was responsible for the hysteria of cloning. Further, a review of the

public record reveals moments when the clone canon as mythform breaks the surface.

However, cultural anxieties that configured clone hysteria remained in the shadows.

While The Boys from Brazil, Brave New World and Jurassic Park appeared in the legal

literature, Hansard and the Australian media, observing their appearance does not explain

the popularity and persistence of clone stories in the first place. Indeed, on closer

inspection, all three texts are not really about clones. The Boys from Brazil belongs more

properly to a horror and ‘airport-paperback’/action sub-genre concerning the Nazi legacy

and ‘what if the Fuhrer had lived?’184 Critics tend to agree that the crushing of liberal

individuality by chemical, consumerist and sexual excess, and not the evil of cloning, are

the core theme of Brave New World,185 and the carnage in Jurassic Park was caused by hermaphroditic, hybrid dinosaurs – not even clones in the definitional sense!

So reports in the media about cloned sheep led five years later to the Prohibition of Human Cloning Act 2002 (Cth) via a cultural hysteria concerning cloning informed by

183 Smeaton, ‘Cloning’s Forte is to Save Life, Not Create It’, The Australian Financial Review, 12 June 2001, p 55. 184 McKale (1981), p 46. 185 Huxford (2000); Blackford (2003); Hartouni (1993).

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the clone canon. That there were shared cultural stories, which made it into the serious

business of law-making in response to emerging technology, points to something

horrifyingly fascinating about clones. However, the source of this hysteria emanated from something fundamental that the clone challenges, rather than the particular popularly manifested stories. The challenge, then, is ‘to boldly go’ beyond the public record and the professional glossators, beyond the archive methods of counting and documenting, to examine the deep origins of the clone hysteria. There is a need ‘to explore strange new worlds’ of the clone to unlock the fundamental cultural anxieties behind the Prohibition of Human Cloning Act 2002 (Cth).

2. Anxieties of Cloning in Star Trek: Nemesis

This section gets serious about clone hysteria through a detailed reading of a text that is focused almost exclusively on clones and cloning: Star Trek: Nemesis. Nemesis is a

complicated reflection on cloning: it separates out the two fundamental anxieties surrounding the clone – clone as double and clone as artefact – but then question both in a rejection of essence. However, this victory of ‘acceptance’ and ‘life’ is Pyrrhic. In winning the text for life, essence returns – and returns totally. This has salient implications for considering the fate of the Prohibition of Human Cloning Act 2002

(Cth).

Star Trek: Nemesis

It is possible to see 2002 as the unofficial ‘year of the clone’ in cinema. It was the year

that the two dominant American science fiction franchises, LucasArts’ Star Wars and

Paramount’s Star Trek, released films involving clones.

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While the clone featured in the title of Star Wars: Attack of the Clones (2002),186 clones were not at the forefront of this film’s telling of a story familiar to any science fiction reader aware of Isaac Asimov’s Foundation (1951),187 concerning the decline,

decay and corruption of a fading galactic system.188 When the clones battle on to the

screen, the issue is not that they are clones, but that they form an efficient army capable

of ordering a changed galaxy.189 Unlike its space opera rival, Star Trek: Nemesis is a

reflection on cloning and clone hysteria. The film is structured around a double set of clones: Captain Jean-Luc Picard (Patrick Stewart) and his younger clone, Shinzon (Tom

Hardy); and the android Commander Data (Brent Spiner) and his physically identical

‘prototype’, B4. The contours of the convoluted plot need to be summarised.

The film opens with Shinzon seizing control of the Romulan Empire through

assassinating the Romulan Senators and installing himself as Praetor. Shinzon then

requests a meeting with the Federation, ostensibly with the objective of making peace.

The Enterprise is the closest Federation ship, so the Next Generation crew begins what poor reviews and ratings dictated was to be their final adventure.190 However, the

overtures of peace turn out not to be as genuine as the offers made to an earlier

Enterprise Captain by the Klingons. In Star Trek VI: The Undiscovered Country,191

Shinzon is a clone with a history. He was created by the Romulans with the intention of having him impersonate the real Picard, thereby placing a Romulan agent at the heart of

Star Fleet. To fulfil his destiny, Shinzon is an intriguing piece of genetic engineering:

186 Lucas, Attack of the Clones: Star Wars (Twentieth Century Fox, 16 May 2002). 187 Asimov (1995). 188 On science fiction’s debt to ‘empire’, see Csicsery-Ronay (2003), pp 238–242. 189 McVeigh (2006), p 47. 190 Foundas (2002). 191 Meyer, Star Trek VI: The Undiscovered Country (Paramount Pictures, 6 December 1991); Cantor (2000), p 162.

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created using ‘temporal DNA’, he has been designed so his ageing could be accelerated

to match Picard’s age. For reasons unknown, this use of Shinzon was abandoned, and in

an attempt to destroy the evidence of the plot, Shinzon was condemned to die as a slave

in the dilithium mines of Romulus’s twin planet, Remus.192

But Shinzon did not die. Instead, he leads the Remans in an uprising against their

Romulan oppressors. With the support of the Remans, the collusion of the Romulan military and armed with the Scimitar, a battleship of unparalleled destructive power,

Shinzon has staged his coup. Predictably, there is rather more to Shinzon’s plan than liberating his ‘Reman brothers’ from the hell of Romulan oppression. First, like all Star

Trek villains, Shinzon’s ultimate goal is to destroy earth. Second Shinzon’s unique genetically engineered potential is also his fatal weakness: he needs a ‘DNA transfusion’ from Picard or he will die. It is no coincidence that it is Picard who is dispatched to negotiate with Shinzon. Shinzon has contrived to lure the Enterprise into close proximity to Romulus by planting B4 on a nearby planet, confident that the Enterprise would detect his ‘positronic’ signal and go to investigate.

The film concludes with a final confrontation between the Enterprise and the

Scimitar. The remarkably resilient Enterprise survives and Picard saves the earth from annihilation. When the space debris settles, the Scimitar has been destroyed, the

Federation saved and the Romulans are back in control of the Empire. Shinzon himself is dead, but so too is Data.

It is by prioritising clones through the paralleling of two sets of clones that the film presents itself as a reflection on clones and cloning. The film not only maps what is

192 Remus is reiteration of classic science fiction environment of the harsh prison planet where an intense survival of the fittest produces a tough, fanatical warrior population, most readily associated with Frank Herbert’s Dune cycle. See Chapter 6.

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absent in the public record on cloning – the key anxieties that make up clone hysteria – but also attempts to destabilise these concerns. Two constitutive anxieties of clone hysteria are identified: the clone as double and the clone as artefact. Underlying them both is essence. The clone as double links thinking about clones to other narratives of the twin and the double; the clone as artefact names the anxieties surrounding the manufactured status of the clone and the concerns of the status of the original and the

copy. What is at stake with both is the projection of an essential, material substance as

determinate of Being. This anxiety remains and corrupts the film’s attempt to pose a

counter-story of acceptance, difference and life.

Clone as Double

For Wendy Doniger, the cultural anxiety surrounding clones can be located in the

mythology of the double.193 The clone is a concern precisely because it promises an

undistinguished ‘twin’ of the original. Identical twins are problematic due to their

sameness and indistinguishableness, but also due to a perceived uncanny closeness. First,

twin narratives abound with stories of doppelgangers, the identical malevolent others who

substitute themselves for the innocent original.194 Juliana De Nooy and Bronwyn Statham

regard these substitution horrors as involving secondary themes depending on the gender

of the twins: stories of male doubles often involve a counter-narrative of loyalty that

invariably is absent from female twin stories; these predominately have a dichotomous

and sexualised good, virginal twin and a bad, promiscuous twin.195 A second archetypical

twin narrative involves an association of twins with the uncanny. Twins are often

193 Doniger (1998), p 115. 194 Rank (1971), pp 8–33; de Nooy and Statham (2004). 195 de Nooy and Statham (1998), pp 280–281.

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considered to have special psychic connections: shared memories, extra-sensory

perception (ESP) and other mental powers.196

In Nemesis, the Picard–Shinzon double faithfully reproduces the discursive

conventions of twin narratives. It can be seen that, notwithstanding the age difference,

Picard and Shinzon are strongly, even excessively, represented according to the classical

twin narratives of ‘good’ original and ‘evil’ double. Picard’s age signifies him as the

initial, while Shinzon’s youth demarcates him as the second. The plot is structured from

Picard’s perspective of discovering his clone. This is reinforced when Shinzon tells his

origin story (complete with gratuitous flashback) in the nefarious machinations of the

Romulan High Command. While Star Trek fans need little textual convincing of the

‘goodness’ of Picard,197 Shinzon is revealed as not only being conceived in evil but as

being evil: he bullies and dictates to his lackeys (in contrast to Picard’s leadership of his

crew); he treats the android B4 as a tool (in contrast to Picard’s respect for both androids); and ultimately he threatens the earth with a weapon of mass destruction (in

contrast to Picard’s sworn duty and repeated examples of protecting the earth, the

Federation and life itself). As in the substitution twin narrative, Shinzon is revealed as

obsessive towards the ‘original’, an obsession that leads to a compulsion to kill Picard.198

This coding of good and bad twin exceeds the established boundaries for male twin narratives by incorporating sexualisation, as in female twin narratives, of the distinction between Picard and Shinzon. At William Riker’s (Jonathan Frakes) and Deanna Troi’s

(Marina Sirtis) wedding, Picard plays respectable masculine roles of ‘father of the bride’ and also ‘best man’. Further, in established Star Trek canon, Picard is clearly established

196 Herdman (1991), p 3. 197 On Picard’s ‘hero’ qualities, see Palumbo (2008), p 118. 198 On this ‘fratricidal’ struggle of the good and bad twin, see de Nooy (2002), pp 75–76.

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as heterosexual and monogamous in his relationships,199 lacking even the macho conquest on every planet of James T. Kirk.200 In contrast, Shinzon is a deviant who

‘rapes’ Troi via a telepathic ménage à trois.201

In addition, through over-determining Picard–Shinzon as good–evil twins, the film also suggests the uncanny dimension of twin narratives. Having revealed himself as

Picard’s clone, Shinzon directly invokes the ‘two as one’ metaphor of twin narratives:

SHINZON: … I can see as well as you can. I can feel everything you feel. In

fact, I feel exactly what you feel, don’t I Jean-Luc? Come to dinner – just the

two of us; or, should I say, just the one of us.202

This referencing of the uncanny is reinforced when at times Picard and Shinzon do the classic twin double-act of finishing each other’s sentences:

SHINZON: Were we Picards always warriors?

PICARD: I think of myself as an explorer.

SHINZON: Well, were we always explorers?

PICARD: I was the first Picard to leave our solar system. It caused quite a stir

in the family, but I’d spent my youth …

SHINZON: … looking at the stars, dreaming about what was up there,

about …

PICARD: … new worlds.203

199 Booker (2004), p 95. 200 Tulloch and Jenkins (1995), p 232. On Kirk’s sexuality see Cranny-Francis (1985), pp 275–276; Ott and Aoki (2001), p 404; Helford (1996). 201 Following the television episode Wiemer, Violations: Star Trek: The Next Generation (Paramount Pictures, 3 February 1992). On Troi and rape, see Roberts (1999); Projansky (1996). 202 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002). 203 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002).

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The good–bad twin references, together with the uncanny twin suggestions,

highlight a key aspect of clone hysteria: clones are evil beings with an unnatural

connection to the original. This negative characterisation of the clone is counterbalanced

by Data–B4.

The Data–B4 double challenges the reading of clones according to the

conventions of twin narratives. Externally, they are perfectly identical and it could be

expected that they will be distinguished along similar lines, with B4 the malicious copy

actively seeking to subsume the original Data. However, they are not so coded. B4 is a

simpleton – in android terms, his ‘neural pathways are less advanced’;204 he is an

unconscious pawn in Shinzon’s scheming, rather than an active participant. This means that B4 responds no differently to Picard’s overtures of respect and friendship than to

Shinzon’s disregard and violence. Contrary to the doppelganger narratives, it is Data who successfully exploits his identicalness with B4 to infiltrate the Scimitar, rather than an

‘evil’ B4 impersonating Data. Further, notwithstanding the potential for android

connectivity to explain an uncanny link between Data and B4, the relationship is not so

burdened. Even during and after the two androids were hardwired together in Data’s

attempt to copy his memories to B4, there is no hint of the uncanny ‘two as one’

commonality suggested by Picard–Shinzon. In the film, the Data–B4 double resists the

over-arching twin narratives that frame the Picard–Shinzon double. It is possible that this

is because in the wider Star Trek story Data already has an evil twin in Lore. In the

television episodes dealing with the Lore–Data double, the established tropes of good–

bad twins are clearly evident.205 Lore attempts to destroy all the organic life forms on his

204 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002) (Data). 205 Corcos et al (1999), p 1086.

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home planet, in opposition to Data’s duties as a Star Fleet officer to protect life and his

internal commitments to the ‘Laws of Robotics’,206 and in the finale-opener ‘Decent’

between Seasons 6 and 7, Lore tries to destroy Data by disabling his ethical program and

‘feeding’ him a diet of emotions that he cannot resist.207 It is possible that the Data–Lore

double has exhausted the need for Data–B4 to be framed according to the twin

conventions.208 In doing so, the film challenges the treatment of clones that it articulates

so clearly with the Picard–Shinzon double. In the film, Data is Data, B4 is B4, and the

interaction is not one of good/evil, but one of kin. Data quickly labels B4 ‘brother’ and

soon accepts B4’s difference from him. So it is Data who decommissions B4 when he is

revealed as a pawn of Shinzon because Data accepts that B4 will never be any different

from what he is – manufactured as the unwitting accomplice to Shinzon’s plans.

In the Picard–Shinzon double, Nemesis suggests that clones are to be feared, that clones are evil, homicidal and interrupt the natural order in uncanny ways. Thus the film gives substance to the ‘community standards’ and ‘human dignities’ that regularly appeared in the public record surrounding the Prohibition of Human Cloning Act 2002

(Cth). However, the film also challenges this element of the clone hysteria. Through

Data–B4, the film suggest that clones need not be conceived according to the extreme

narratives of twin stories, but that surface similarities can be pierced, leading to more

complex assessments of difference. However, the clone as double is one only element of clone hysteria. Clones are not just twins; they are manufactured twins. The clone as artefact is the other element of the clone hysteria the film expresses and challenges.

206 Bowman, Datalore: Star Trek: The Next Generation (Paramount Pictures, 31 January 1988). On Data as an Asimov robot, see Short (2003). 207 Singer, Decent, Part 1: Star Trek: The Next Generation (Paramount Pictures, 21 June 1993) and Singer, Decent, Part 2: Star Trek: The Next Generation (Paramount Pictures, 20 September 1993). 208 Wagner and Lundeen (1998), p 71.

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Clone as Artefact

Clones are artificial twins. Inherent in the term ‘clone’ is the notion of intervention and

conscience-creation. The clone as an artefact is the second anxiety within the clone hysteria that Nemesis maps. Again, the Picard–Shinzon double excessively prioritises the dilemmas feared to arise from the manufactured nature of the clone, while the Data–B4 double can be read as providing a different account.

The struggle between Picard and Shinzon drives the plot in Nemesis. Picard as the original comes to face his copy in Shinzon. Immediately at stake in the film are the questions of identity and the consequences of destabilising identity. Returning to the

Enterprise after his initial encounter with Shinzon, Picard is clearly shaken and indignant at discovering he has a copy. For much of the film, Picard is given over to introspection.

He cradles a photograph of himself the same age as Shinzon, wonders at his own youthful over-confidence and muses on whether, had their situations been reversed, he might not have ended up precisely like Shinzon. The original script made Picard’s emotions blatant.

In a scene that was eventually not included in the cinema release, Picard confides in Troi:

TROI: … The strongest sense I had was that he’s very curious about you. He

wants to know you.

PICARD: Does he indeed!

TROI: Captain, your feelings are appropriate.

…

PICARD: Can you imagine what it was like standing there, looking at him?

TROI: What you’re feeling is a loss of self.

PICARD: It was as if part of me had been stolen.

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TROI: We cherish our uniqueness. We believe that there can only be one of

us in the universe.

PICARD: Now there are two.209

Even without that scene, Picard’s notion of self is clearly disrupted by Shinzon.

Picard quickly see Shinzon as violent, warlike and impulsive, the very opposite of

himself – the coolheaded, diplomatic peacemaker. The fundamental challenge that

Shinzon offers to Picard’s sense of self is evident to Shinzon. It is a weakness that

Shinzon attempts to exploit as relations deteriorate to armed conflict:

SHINZON: You are me! The same noble Picard blood runs through our

veins. Had you lived my life you’d be doing exactly as I am. So look in the

mirror. See yourself. Consider that, Captain. I can think of no greater torment

for you.210

While Picard is unsettled by the appearance of his evil clone, when the phasers start

flying and the Federation is in danger, he pulls himself together and wins the day. Picard

the original is tested, but survives. Shinzon the copy is not made of such durable stuff.

After meeting Picard, Shinzon descends into a full-blown crisis of identity. Shinzon, as

Picard’s clone, is a human who was raised by Romulans, but was rejected and disposed of on Remus. At times he characterises himself as Reman and refers to his ‘Reman brothers’. However, on another occasion he inserts himself into the Picard family history:

‘Were we Picards always explorers?’211 he asks Picard. Shinzon knows he is a clone. He

knows that he is not Reman; but understands equally that he is not quite human – he is an

209 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002). 210 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002). 211 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002) (Shinzon).

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experiment gone wrong – a steadily degrading copy of a human. The solution is obvious:

the copy can only possess an identity through destroying the original.

PICARD: What is all this about?

SHINZON: It’s about destiny, Picard. It’s about a Reman outcome.

PICARD: You’re not Reman.

SHINZON: And I’m not quite human. So what am I? My life is meaningless

as long as you’re still alive. What am I while you exist? A shadow? An echo?

…

PICARD: Shinzon, I’m a mirror for you as well.

SHINZON: Not for long, captain. I’m afraid you won’t survive to witness the

victory of the echo over the voice.212

The Picard–Shinzon double’s talk of echoes and mirrors dramatises the anxiety that comes from the manufactured nature of the clone, the fear that existence of a copy will challenge the original’s sense of self, and the fear that the copy must desire destruction of the original in order to claim an authentic identity. This emphasising of the originality of identity as opposed to the secondary nature of the copy is challenged by

Data–B4.

The existential angst of Picard and Shinzon is absent from Data–B4 in Nemesis.

Data’s identity is not thrown into crisis by the knowledge of the other. Conceivably, this

is because he already is cognisant that he is an artificial creation, the product of a not-

quite-sane scientist’s experiments.213 For Data, the potential that there are others of him is an established feature of his identity; indeed, Shinzon exploits his knowledge of Data’s

212 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002). 213 See Bowman, Brothers: Star Trek: The Next Generation (Paramount Pictures, 8 October 1990); Casimir (1997), p 280.

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openness to and active search for others like himself in using B4 as bait to lure the

Enterprise to the Romulan border. Having ‘rescued’ B4, Data embraces his ‘prototype’

with some enthusiasm. Indeed, rather than being troubled by their similarity, Data tries to

make B4 into an even more faithful copy of himself by having Chief Engineer Geordi La

Forge (LeVar Burton) download Data’s memory into B4, in an attempt to upgrade B4

into another Data:

LA FORGE: I still can’t believe the Captain went along with the memory

download.

DATA: Captain Picard agrees that the B4 was probably designed with the

same self-actualisation parameters as myself. If my memory engrams are

successfully integrated into his positronic matrix, he should have all my

abilities.

LA FORGE: Yeah but he would also have all of your memories as well. You

feel comfortable with that?

DATA: I feel nothing, Geordi. It is my belief that with my memory engrams

he will be able to function as a more complete individual.

LA FORGE: An individual more like you, you mean?214

Significantly, there is no question of Data downloading anything from B4. In this,

the dynamic between Data and B4 is quite unlike that between Picard and Shinzon. If

Shinzon insists that he is a mirror for Picard, Picard is only too ready to respond that he

too is a mirror for Shinzon. So whereas Picard–Shinzon plays out the feared loss of

identity and competition between the original and the copy, Data–B4 displaces these expectations. Data, unlike Picard begins the film without privileging himself as a unique

214 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002).

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creation of nature. He is an artefact, the product of a repeatable process of manufacture.

His identity and sense of self are not given by nature but have been hard won in ‘life’.

This is reinforced in the failure of Data’s memory to change B4. It suggests that identity lies beyond essences, whether genetic or positronic. In a significant exchange, as the

Enterprise races from Romulus, Picard and Data reflect on the recent interactions with their doubles:

PICARD: He says he is a mirror.

DATA: Of you, Sir?

PICARD: Yes.

DATA: I do not agree. Although you share the same genetic structure, the

events of your life have created a unique individual.

PICARD: If I had lived his life, is it possible that I would have rejected my

humanity?

DATA: The B4 is identical to me, although his neural pathways are not as

advanced. But even if they were, he would not be me.

PICARD: How can you be sure?

DATA: I aspire, Sir, to be better than I am. B4 does not; nor does Shinzon.215

In Nemesis, the Picard–Shinzon double articulates the fear that clones as artefacts lead to a loss of identity in a war for meaningful survival between the original and the cloned copy. Clones are not just evil doubles, but ultimately will be driven to seek destruction of the original. When twined with the clone as double, the anxiety and extraordinary public culture of hysteria that surrounded and were given voice in the

Prohibition of Cloning Act 2002 (Cth) make more sense. While some participants

215 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002).

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mentioned identity, what essentially was at stake was the relation of Being to essence. It

is this foundational anxiety, and the attendant fascinations and revulsions, that explain

both the endurance of the clone canon in science fiction and the public hysteria of cloning that became law. However, Nemesis also challenges these anxieties. The Data–B4 double suggests that identity lies beyond essence, and as such law is not needed to impose a

civilised veneer on dangerous nature. Ironically, it is the manufactured, identical androids that provide a critique of clone hysteria. The Data–B4 double suggests that essence is not determinative.

Essence

In exposing the two elements of the clone hysteria – clone as double and clone as artefact

– Nemesis can be read as articulating the anxieties that called forth the Prohibition of

Human Cloning Act 2002 (Cth). It is also a critique. It suggests alternative accounts of

clones that resonate with some of the arguments in the bioethical literature on cloning,

which emphasise acceptance, difference and the importance of life experience.216 In doing so, the film reveals the ambiguity at the very centre of clone hysteria – the relation of essence to Being.

Shinzon challenges Picard’s identity by continually suggesting that their common genetic heritage means Shinzon and his monstrous behaviour are internal to Picard; that

Picard would be Shinzon if the circumstances were reversed:

SHINZON: You don’t trust me.

PICARD: I have no reason to.

216 See Harris (1999), Blackford (2001b, 2001a).

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SHINZON: You have every reason. If you had lived my life and experienced

the suffering of my people, you would be standing where I am.

PICARD: And if you had lived my life, you would understand my

responsibility to the Federation. I cannot allow my personal feelings to

unduly influence my decisions.

SHINZON: All I have are my personal feelings. I want to know what it

means to be human. The Remans have given me a future; you can tell me

about my past.

PICARD: I can tell you about my past.217

For the Picard–Shinzon double, essence matters. In this, both are seen struggling with the conception that genes are a type of chemical fate that predetermines an individual. Hence the clone illicitly trespasses on another’s fate, bringing evil, loss of self and threatened annihilation. At stake is the position that an individual manifests a core essence that shines through the surface accretion of lived experience:

SHINZON: Not quite the face you remember?

PICARD: Not quite.

SHINZON: A lifetime of violence will do that. They broke my nose, my jaw.

But so much is the same. The eyes! Surely you recognize the eyes?

PICARD: Yes.

SHINZON: Our eyes reflect our lives, don’t they? And yours are so

confident.218

217 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002). 218 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002).

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Through the Data–B4 double, the film challenges the notion of determinative

essences. The download of Data’s memory into B4’s supposedly identical hardware does not produce the expected Data II. La Forge’s sceptical observation during the download that ‘maybe [B4] is not supposed to be like you, Data. Maybe he’s supposed to be exactly the way he is’219 seems correct. Therefore, it is Data, reflecting on that experience, who

suggests to Picard that identity lies beyond essences in the intangible life history and

aspirations of a being. It is the android that rejects a materialist basis for the self and

champions a spiritual commitment to aspiration.

In Data, the film attempts to go beyond essence. However, by the final shot of the

Enterprise undergoing repairs in dry dock above a blue earth, Nemesis does not confidently present the victory of spirit over material, aspiration over fate, for Data has been destroyed and with him goes a vision of non-essential being.

The Picard–Shinzon double does not stray from the expected narrative; in the inevitable final confrontation, the original restores the world through destroying the clone. There is little room for acceptance, difference and life in a knife brawl on the disintegrating bridge of a doomed ship. Data is one of the many sacrificed to the Picard–

Shinzon double. While Data becomes a martyr to life, the message is that living goes to those accepting the reality of essence. This message is communicated in one of the last scenes when it becomes apparent that B4’s earlier termination by Data was not permanent. Picard has reactivated B4. The exchange between Picard and B4 is frustrating. Picard is attempting to explain Data’s sacrifice; B4 does not understand and

Picard leaves. The camera follows Picard, and then swings back to B4. B4 is mumbling the words to a song in a voice like a faint AM radio station. But it is not any song; the

219 Baird, Star Trek Nemesis (Paramount Pictures, 13 December 2002).

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song is Irving Berlin’s ‘Blue Skies’, which Data sang at Riker’s and Troi’s wedding

many scenes earlier. Data is back! This suggests that the memory download has worked

and Data lives on.220

At this point, the film undermines previous attempt at challenging essence. If the

download worked, it means that essences matter. Donna Haraway has suggested that in the contemporary Western notions of individuality, freedom and future have become

dominated by genetic determinism.221 The nature/nurture debate of earlier generations

has become drowned in a helix of deoxyribonucleic acid. For Haraway, genetic

determinism has become a popular story in a conservative epoch, an epoch marked by an

abandonment of the social, a rejection of community over individuality, retribution over

rehabilitation, and the return to a naturalisation of social, ethnic and economic

inequality.222 As such, it is possible to see the public culture of clone hysteria – the fear

of ‘“photocopying” a human being’, as the Andrews report expressed it223 – as

articulating genetic determinism. Nemesis tells us that essence, the pure determination of

being by nature, is problematic but ultimately, in the promise of Data’s resurrection,

unassailable.

So Nemesis exposes the myth of essence at the centre of the hysteria that became

law with the Prohibition of Human Cloning Act 2002 (Cth). It became law not just to

220 This reading of the climax in Nemesis with Data’s survival has also been made by Short (2003), p 222. Her argument is that this is maintains consistency with the finale of the television series that has future Data, retired from Starfleet as a Professor at Cambridge (Kolbe, All Good Things ... Star Trek: The Next Generation, (Paramount Pictures, 23 May 1994)). This is a contested reading. In that episode, it is suggested that the glimpses of the future of the Next Generation Crew was an alternative future conjured by Q in his test of Picard and humanity. In the non-canonical comic series Star Trek: Countdown by IDW Publishers Data, set after Nemesis, Data is portrayed as alive and captain of the Enterprise. The explanation provided in the comic is that Data’s memories took hold and B4 transformed into Data. See Orci and Kurtzman (2009). 221 Haraway (1997), pp 145–149. 222 Haraway (1997), p 148; See also Nelkin and Lindee (1995). 223 House of Representatives (2001), p x.

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facilitate the embryonic stem cell regime, but to shore up Western individualism. The

ultimate essence at stake in the film is the essential difference of humanity and

technology. The clone, in conflating the two, in conceiving the human as a technological

artefact capable of replication and manipulation, leads to the wrong, the uncanny and

destruction. Yet, for the android – the machine born of technique – a double is

acceptable, indeed desirable. The Act can be understood as legislating for the Captain

Jean-Luc Picards and the John Winston Howards that they are self-made men, against the

fundamental reality of determinative essence. Seeing Nemesis as technical legality allows the Act to be understood as doing fundamental mythical work. The force of law was deployed to shield, at least in the realm of the social, Being from essence, to keep the human and the technological distinct.

As such, all is as it should be. Ultimately, Nemesis ends with a repaired

Enterprise captained by Picard, and Prohibition of Cloning Act 2002 (Cth) appears to be

preventing its mischief as the Australian media have yet to sensationally announce a

living human clone (or chimera or hybrid). But all is not as it seems in this peaceful and

ordered universe, for cloning is now legal in Australia.

3. Monstrous Shadows

This section examines the 2006 amendments through Nemesis as technical legality. It

traces how the amendments enacted the critique of clone hysteria identified in Nemesis.

In 2006, the prevailing image was of technically useful clones; essence was to be put to work. However, in so doing, the analysis opens to glimpses of another monster shadowing technical legality – law as technology – in the primacy of procedure in the law and law-making following cloning.

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2006 Amendments

In 2006, the Commonwealth Parliament passed the Prohibition of Human Cloning for

Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006

(Cth).224 The Bill retitled the Act as the Prohibition of Human Cloning for Reproduction

Act 2002 (Cth) and continued most of the prohibitions of the original. However, absent were the original section 9 ‘A person commits an offence if the person intentionally creates a human embryo clone’225 and the original section 13, which made it an offence

to create a human embryo ‘other than by fertilisation’.226 Included were new sections

allowing licences for the creation of an embryo other than by fertilisation,227 creating ‘a

human embryo containing genetic material provided by more than two persons’,228 creation of a new embryo from an embryonic stem cell229 and creating a hybrid

embryo.230 The purpose of these amendments was to allow for the legalisation and

regulation of therapeutic cloning.231

Why this sudden change of policy? Indeed, several parliamentarians expressed

surprise that they were debating a Bill allowing an activity that only four years earlier had

attracted universal condemnation.232 Senator Andrew Bartlett expressed the belief ‘that

224 Given assent 12 December 2006. 225 Prohibition of Human Cloning Act 2002 (Cth), s 9. 226 Prohibition of Human Cloning Act 2002 (Cth), s 13. 227 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 22. 228 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 23. 229 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 23A. 230 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 23B. 231 The Senate (2006), p 14; Commonwealth, Parliamentary Debates, Senate, 19 October 2006, pp 13–14 (Kay Patterson); Nemes (2008), p 147. 232 Commonwealth Parliamentary Debates, Senate, 19 October 2006, p 11 (Jan McLucas); Commonwealth Parliamentary Debates, Senate, 19 October 2006, p 17 (Helen Polly); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 134 (John Anderson, Deputy Prime Minister); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 70 (Patrick Secker); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 116 (Steven Ciobo); Commonwealth

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the legalising the creation of human embryos through cloning is a significant ethical shift

for our society’.233 Labor member Craig Emerson was more direct in demanding to know

‘What has changed since 2002?’234 Evidence of the change can be seen in the fact that in

2006, unlike 2002, the distinction between reproductive and therapeutic cloning had

become more widely accepted:

… the word ‘cloning’ is used to describe both the replication of a whole

human being or a whole being as well as the replication of single cells and

genetic material. It seems to me that one of the ways in which this debate has

been conducted is to conflate … those two concepts. The replication of a

whole human being is something that I do not believe anybody would

contemplate as being ethical and appropriate. Unfortunately some of the

conflation of these two concepts has, I fear, been utilised to try and gain the

response that I think all people would have to the prospect of cloning human

beings, when what we are talking about is cloning a single cell or the

replication of single cells, not a whole human being.235

This distinction was further emphasised in the debates with the adoption by supporters of the Bill of the more technically neutral sounding ‘SCNT (somatic cell nuclear transfer)

Parliamentary Debates, House of Representatives, 6 December 2006, 118 (John Howard, Prime Minister). 233 Commonwealth Parliamentary Debates, Senate, 19 October 2006, p 22 (Andrew Bartlett). See also Commonwealth Parliamentary Debates, Senate, 19 October 2006, p 35 (Santo Santoro); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 42 (Chris Hayes). 234 Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 48 (Craig Emerson). 235 Commonwealth Parliamentary Debates, Senate, 7 November 2006, p 5 (Penny Wong). See also Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 23 (Gary Nairn, Special Minister of State); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 29 (Ian MacFarlane, Minister for Industry, Tourism and Resources); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 152 (Sharman Stone).

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technology’.236 Indeed, supporters repeatedly distanced the Bill from cloning and its hysteria by emphasising ‘this Bill is not about cloning humans’,237 while opponents to the

Bill continued to call it cloning. 238

However, this semantic divergence does not explain the law that was passed. In many respects, the 2006 debates mirrored the 2002 debates. Again there was a conscience vote239 and again the Bill was prefigured by official reports. The primary report was the

2005 ad hoc Legislative Review Committee’s review of the Prohibition of Human

Cloning Act 2002 (Cth) and its twin, the Research Involving Human Embryos Act 2002

(Cth) (The Lockhart Review);240 the second was the Senate Standing Committee on

Community Affairs’ review of the Lockhart report’s recommendations.241 Also similar was the tone of the debate. This time around, SCNT technology/therapeutic cloning – like embryonic stem cell research in 2002 – was framed as offering hope for cures: ‘Too many lives can be saved or dramatically improved by the use of this revolutionary branch

236 See, for example, Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 53 (Martin Ferguson); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 142 (Julie Owens); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 23 (Annette Ellis); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, pp 129–130 (Malcolm Turnbull). Such substitution was criticised by opponents: see Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 123 (John Murphy). 237 Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 23 (Annette Ellis). See also Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 99 (Arch Bevis); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 105 (Jennie George). 238 Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 142 (Peter Garrett); Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, p 12 (Anthony Abbott, Minster for Health and Aging); Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, p 44 (Kay Elson). 239 See Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 16 (Julia Gillard) on the fact that all parliamentary parties allowed a conscience vote for their members on the Bill. 240 Australian Government (2005). 241 Senate Standing Committee on Community Affairs (2006).

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of health sciences for me as a legislator to stand in the way of its development.’242 For the majority of members, the ‘answer to the question of what has changed is that every single day our body of scientific knowledge expands’,243 and in this the majority were mirroring the justification given by the Lockhart report.244 Meanwhile a minority questioned the potential for medical progress from SCNT technology/therapeutic cloning245, and an even smaller number invoked the clone hysteria with texts246 and tropes.247 This explains how the change occurred but does not account for what did change.

The subsequent Australian legal literature, continuing the law and technology enterprise framing of description and positivism,248 does not offer an explanation beyond

242 Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 119 (Brendan O’Connor). 243 Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, pp 89–90 (Tanya Plibersek). See on the promise of medical progress, Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 16 (Julia Gillard); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 19 (Russell Broadbent); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 21 (Simon Crean); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 29 (Ian MacFarlane, Minister for Industry, Tourism and Resources); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 59 (Jenny Macklin); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 170 (Steve Gibbons); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 104 (Greg Hunt); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 112 (Wayne Swan); Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, p 29 (Brendan Nelson, Minister for Defence). 244 Australian Government (2005), p 58. 245 Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 158 (David Fawcett); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 172 (Sophie Mirabella); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 96 (Bob Baldwin); Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, pp 35–36 (Kay Hull). 246 Huxley, Brave New World: see Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 167 (Duncan Kerr); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 171 (Sophie Mirabella); Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, pp 35–36 (Robert Katter). Sixth Day: see Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, pp 95–96 (Jackie Kelly); 247 ‘Nazis’: see Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 158 (David Fawcett); ‘Greedy scientists’: Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 125 (John Murphy). See also Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, p 25 (Alan Cadman). 248 A recent challenge to the law and technology enterprise framing in Australia has been recent work by Isabel Karpin, drawing on feminist critics of biotechnology to examine Australian law-making

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documenting the change of law,249 the Lockhart report250 and the parliamentary

debates.251 The closest that it comes to doing so is in recognising that the 2006 amendments represented a victorious campaign by biomedical researchers252 and changing community attitudes.253 It is here that Nemesis as technical legality is insightful.

Nemesis suggests that clone hysteria is open to alternative stories. In Nemesis, the

obviously manufactured Data–B4 double, the technical objects, could save life. Data

saves Picard, the Enterprise and the Earth; and B4 ‘saves’ a well-loved character, allowing him to keep on trekking. Nemesis presents the template for the rehabilitation of clones and cloning. It traces how to avoid the cultural hysteria of cloning. First, there is clear avoidance of the hysterical term ‘clone’. Data and B4 are not clones, but brothers, and in the 2006 debates cloning and its cultural baggage were sublimated by the neutral sounding ‘SCNT technology’. The second similarity is the embrace of the clone’s artefact origins: clones are properly seen as things and techniques, not some uncanny manifestation of illicit tamped with essences. In the debates, SCNT technology was repeatedly emphasised as a ‘technique’,254 among other medical techniques. Third, there

in response technological mediated human reproduction. See Karpin (2006); Karpin and Bennett (2006). 249 Nemes (2008), p 142 250 Sinclair and Schofield (2007), pp 221–222; Cooper (2006), pp 29–40; Otlowski (2006); McPhee (2006). 251 Nemes (2008), pp 143–144. 252 Nemes (2008), pp 147, 153–154. 253 The Lockhart report references research commissioned by Biotechnology Australia documenting slight changes in Australian attitudes to therapeutic cloning between 2002 and 2005. See Australian Government (2005), pp 82–88. On research that suggests that the majority of Australians have a more progressive and accepting attitude to embryonic stem cell research and therapeutic cloning than was enacted in 2002, see Farquharson and Critchley (2004), p 137; Dodds and Ankeny (2006), p 105. See also Gilding and Critchley (2003); Barlow-Stewart et al (2005). 254 See, for example, Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 14 (Julia Gillard); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 47 (Cameron Thompson); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, pp 56–57 (Andrew Southcott); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 138 (Teresa Gambaro, Parliamentary Secretary Foreign Affairs); Commonwealth Parliamentary

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is a linking of these things and techniques to life: in the words of Labor backbencher

Annette Ellis, ‘Life’ was at the ‘heart’ of the debate of the Bill.255 While the members opposed to the Bill saw that what was at stake was the sanctity of human life and the definition of when life begins, the majority saw the Bill as supporting and enhancing life in the present; of offering hope, progress and cures.256

That cloning, which Nemesis tells us is entwined with essence, could properly be seen as a technique that could save life appears paradoxical. In Data–B4, there is a critique of clone hysteria. However, this critique is shadowed by essence and the essential maintenance of a distinction between human and machine. SCNT technology connected with life because the parliamentarians saw in it a stabilised technological field in which malfunctions in essence – cancer, Parkinson’s disease, Alzheimer’s disease, multiple sclerosis – could be remedied with techniques that work at an essential level. SCNT technology, like embryonic stem cells in 2002, promised hope because the promise was the classic promise of the technological – human mastery over nature.257 The Bill was supported not because it was about cloning, but because it embodied scientific progress.

In supporting the Bill in the House, liberal backbencher Russell Broadbent provided the basic elements of this argument:

Debates, House of Representatives, 4 December 2006, p 145 (Bruce Baird); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 100 (Arch Bevis); Commonwealth Parliamentary Debates, House of Representatives, 5 December 2006, p 105 (Greg Hunt); Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, p 10 (Laurie Ferguson). 255 Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 23 (Annette Ellis). See also Commonwealth Parliamentary Debates, House of Representatives, 6 December 2006, p 20 (Carmen Lawrence). 256 See, for example, Commonwealth Parliamentary Debates, Senate, 7 November 2006, p 12 (Jan McLucas). 257 This commitment and its metaphysics is the subject of Chapter 7.

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Five decades in terms of human history is a relatively short time, and the

advances that have been made have been remarkable. In addition to transplant

surgery, in-vitro fertilisation and surrogacy have meant much to couples who

in an earlier era would have gone through married life without the joy that

children bring … All of these advances were part of the evolution of medical

science that this bill seeks to further advance. All their development met with

degrees of ethical debate around well-founded, genuine concerns. However,

these hurdles were overcome and society today accepts these procedures as a

part of ethical medical practice.258

This is what Nemesis cleared the way for. It is perhaps unsurprising that a Star

Trek film promises a better world, but ultimately presents a conservative future.259 In working through the founding anxieties of clone hysteria to essence, Nemesis re-erects the divisions between humans and the technical and humans and nature. Nemesis as technical legality explains the 2006 amendments. The anxiety, threat and danger of cloning were repudiated in a reaffirmation of progress, of technical mastery of essence for human benefit. While in 2002 cloning was the monster in all its Shelley gothic, in

2006 cloning in the guise of SCNT technology was the affable, lovable, helpful Data.

However, the monster can still be glimpsed shadowing Australian law’s engagement with cloning. What was remarkable about the 2006 amendments was that they occurred without official support. Indeed, on receipt of the Lockhart report, Howard

258 Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 17 (Russell Broadbent). 259 The failure of Star Trek to offer an authentic progressive future is a common critique of the franchise. See, for example, Boyd (1996), p 111; Bernardi (1997), p 224; Heller (1997), p 226.

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expressly rejected its recommendations.260 The Bill entered parliament as Liberal Senator

Kay Patterson’s Private Member’s Bill, and is one of the very few Private Member’s

Bills to have become law.261 Notwithstanding the aura of the debate and conscience

votes, there was something almost mechanical about the 2006 amendments, as there was

with the 2002 Act. Both were laws produced by experts, by committees that claimed to

be distanced from the everyday of parliamentary politics. The 2006 amendments even

possessed sufficient momentum to be translated into law without the executive’s formal

support. The suggested image is of automatic law – law as the product of a legislative

factory.

Law as Technology

The amended Prohibition of Human Cloning for Reproduction Act 2002 (Cth) has in its

very text the hint of technicality. It is at one level a ‘neutral’ law. While much of it

comprises criminal prohibitions, the new (in 2006) Division 2 provides the basic

machinery for the licensing regime. What is mentioned is ‘licence’,262 which is defined in

section 8 as a licence granted under the Research Involving Human Embryos Act 2002

(Cth).263 In turn, Division 4 of that Act sets out the procedure through which an application for a licence by a ‘person’264 is decided by the ‘NHMRC Licensing

Committee’.265 In making the decision, the NHMRC Licensing Committee must ensure

that appropriate ‘protocols’ are in place concerning consent,266 verifying the origins of

260 Prime Minister of Australia, Media Release, Lockhart Review, 23 June 2006 , accessed 6 November 2006. 261 Dixon (2004). 262 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), ss 22, 23, 23A, 23B. 263 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 8. 264 Research Involving Human Embryos Act 2002 (Cth), s 20. 265 Established by section 13 of the Research Involving Human Embryos Act 2002 (Cth). 266 Research Involving Human Embryos Act 2002 (Cth), s 21(3)(a).

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embryos,267 and must consider the ‘likelihood of significant advance in knowledge’.268

Further, the committee needs to consider the report on the application by the Human

Research Ethics Committee,269 any relevant guidelines issued under the National Health and Medical Research Council Act 1992 (Cth) 270 and any matters specified by regulations.271 Here, the critical decision-making has been turned over to an expert body;

the legislation just provides for the mechanics for the decision. Further, the substance of

the decision – the nitty-gritty of what content and considerations through which these

experts should decide the application – is predominately left to other experts, the Human

Research Ethics Committee, guidelines and regulations. The law itself has been, in Carl

Schmitt’s 1929 term, ‘neutralised’,272 stripped of values, leaving only an apparatus

through which technicians can exercise power. In this, Schmitt was commenting on the

arrival of modern law, heralded by Max Weber. Weber’s analogy was with the

mechanised factory:

The fully developed bureaucratic apparatus compares with other

organizations exactly as does the machine with the non-mechanical modes of

production. Precision, speed, unambiguity, knowledge of the files, continuity,

267 Research Involving Human Embryos Act 2002 (Cth), s 21(3)(b). 268 Research Involving Human Embryos Act 2002 (Cth), s 21(4)(b). 269 Research Involving Human Embryos Act 2002 (Cth), s 21(3)(c). 270 Research Involving Human Embryos Act 2002 (Cth), s 21(4)(c). 271 Research Involving Human Embryos Act 2002 (Cth), s 21(4)(e). The Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 26 allows for executive regulations, as does section 48 of the Research Involving Human Embryos Act 2002 (Cth). There is a Research Involving Human Embryos Regulation 2003 (Cth) which regulation 2.3 specifies the committee under section 21 must also consider the ‘ART guidelines’ and the National Statement on Ethical Conduct in Human Research, issued by the CEO of the NHMRC in 2007 and as existing on 24 August 2007. 272 Schmitt (1993).

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discretion, unity, strict subordination, reduction of friction and of material

and personal costs – these are raised to the optimum point.273

For Weber, the arrival of ‘mechanised’ law was the ultimate step in the long process of rationalisation ending with a procedural framework for rational, efficient bureaucracy.274

However, for Schmitt the emergence of modern law as form, as a framework that experts can wield to specific ends, represented fundamental danger; it indicated that the law had become technology.275 Modern law, like the Prohibition of Human Cloning for

Reproduction Act 2002 (Cth) appears to substantiate Schmitt’s suggestion in Political

Theology (1922) that the modern state had not only become a ‘great machine’, but one in which ‘[t]he machine runs itself.’276

However, there is a deeper technicality to the Act. In The Crisis of Parliamentary

Democracy (1923), Schmitt writes that the alleged ‘intellectual foundations’277 for parliament in openness and debate have been contradicted in its modern manifestation where: ‘Small and exclusive committees of parties or of party coalitions make their decisions behind closed doors.’278 The Australian response to cloning can be seen as

taking Schmitt a step further.

The 2002 Act and the 2006 amendments enacted the recommendations of the

major reports, the Andrews report of 2001 and the Lockhart report of 2005.

Notwithstanding the media debates, subsequent Senate reports and conscience votes, the

laws corresponded with the expert reports. In Chapter 2, Michael Kirby described the

273 Weber (1968), p 973. 274 Weber (1968), p 848. 275 Schmitt (1922), p 28. 276 Schmitt (1922), p 48. 277 Schmitt (1923a), p 49. 278 Schmitt (1923a), pp 49–50.

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Australian institution of law reform commissions as a ‘technique of law development’279 using ‘procedures … to provide legislators with a well-fashioned instrument by which to tackle the “too hard basket” of legal change’.280 A common comment by parliamentarians was that responding to cloning was almost too hard. Many suggested it was ‘difficult’.281

Indeed, for Liberal Kerry Bartlett, the 2002 decision was:

For me and, I suspect, for many of my colleagues [the Bill] has been the most

difficult pieces of legislation I have had to consider … It is difficult because

of the immensity of the implications that flow from it and difficult because of

the strength of the arguments on both sides.282

Faced with difficulty, and without the ‘security blanket’ of party discipline,283 many parliamentarians deferred to the reports, as evidenced by the numerous comments commending and approving of the reports.284 As texts, the Andrews and Lockhart reports

279 Kirby (1983a), p 10. 280 Kirby (1982), p 14. 281 Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5255 (Nicola Roxon); Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5884 (Daryl Melham Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6087 (Bruce Scott). 282 Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6093 (Kerry Bartlett). 283 Jaensch, ‘More Conscience Voting to Shake Security Blankets’, Adelaide Advertiser, 11 April 2002, p 18. 284 See, for example, concerning the Andrews report, Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5242 (Simon Crean); Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5255 (Nicola Roxon); Commonwealth Parliamentary Debates, House of Representatives, 20 August 2002, p 5259 (Bruce Billson); Commonwealth Parliamentary Debates, House of Representatives, 21 August 2002, p 5319 (Trish Worth);Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6055 (Petro Georgiou); Commonwealth Parliamentary Debates, House of Representatives, 28 August 2002, p 6066 (Barry Wakelin). See, for example, the Lockhart report, Commonwealth Parliamentary Debates, Senate, 6 November 2006, p 1 (Ruth Webber); Commonwealth Parliamentary Debates, Senate, 6 November 2006, p 5 (Natasha Stott Despoja); Commonwealth Parliamentary Debates, Senate, 6 November 2006, p 19 (Kerry Nettle); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 11 (Mal Washer); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, pp 13–16 (Julia Gillard); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, pp 20–21 (Simon Crean); Commonwealth Parliamentary Debates, House of Representatives, 30 November 2006, p 25 (Julia Irwin); Commonwealth Parliamentary Debates,

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exude authority. Both present their recommendations as the outcome of a detailed inquiry

that has considered the science, the ethics and community standards.285 Both

acknowledge the complexity – indeed, the intransigent character – of the ethical

debate.286 In the Lockhart report, an attempt is made to apply a neutral technical approach

to the ‘processes’ of gathering and synthesising community attitudes.287 Finally, they

share the framing of their respective recommendations as ‘balance’.288

What can be glimpsed in the way Australian law responded to cloning in 2002

and 2006 is beyond Schmitt’s claim that the form of law in modernity had become

technological. If the ‘machine runs itself’ in terms of positive law providing a neutral

framework for the modern executive, in the Australian law-making in response to

cloning, it can be suggested that the very making of this law had become technical. The

machine runs itself, not just at the level of the everyday decision, but at the macro level

of institutional change. This is particularly so when considering the Lockhart report. The

Lockhart Committee was anticipated in the Andrews report in the recommendation for a

three-year review,289 and this was legislated for in section 25 of the Prohibition of

Human Cloning Act 2002 (Cth) and section 47 of the unamended Research Involving

Human Embryos Bill 2002 (Cth). In this context, the 2006 amendments, which followed in Lockhart’s wake, can be seen as autonomous, the cyclic operation of a self- maintaining machine.

House of Representatives, 30 November 2006, p 63 (Dick Adams); Commonwealth Parliamentary Debates, House of Representatives, 4 December 2006, p 135 (Warren Snowdon). 285 House of Representatives (2001), pp ix–x; Australian Government (2005), p v. 286 House of Representatives (2001), p 94; Australian Government (2005), p 161. 287 This was emphasised by the authors of the report in a separate journal article Skene et al (2008). On the technicality of the process see Parker (2009), p 583, 288 House of Representatives (2001), p 166; Australian Government (2005), p xiii. 289 House of Representatives (2001), p 235 recommendation 15.

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Otto Rank’s foundational study of the double considers shadow myths as part of the double oeuvre.290 Recognising that the law in response to cloning in Australia was technical in form, and was especially so in creation, substantiates the irony first seen in

Chapter 2, with the place of the Frankenstein myth in the law and technology enterprise.

Shadowing the clone was the institutional production of law. But law’s double in this drama of criminalising and then decriminalising the clone, law’s shadow through the plot

– possibly its mirror in which its essential nature can be seen – was the monster.

290 Rank (1971), pp 50-52.

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Motor Cars and Progressive Modernism

They were strolling along the high-road easily … when far behind them they

saw a small cloud of dust, with a dark centre of energy, advancing on them at

incredible speed, while from out of the dust a faint ‘Poop-poop!’ wailed like

an uneasy animal in pain. Hardly regarding it, they turned to resume their

conversation, when in an instant (as it seemed) the peaceful scene was

changed, and with a blast of wind and a whirl of sound that made them jump

for the nearest ditch, it was on them! The ‘Poop-poop’ rang with a brazen

shout in their ears, they had a moment’s glimpse of an interior of glittering

plate-glass and rich morocco, and the magnificent motor-car, immense,

breath-snatching, passionate, with its pilot tense and hugging his wheel,

possessed all earth and air for the fraction of a second, flung an enveloping

cloud of dust that blinded and enwrapped them utterly, and then dwindled to a

speck in the far distance.

– Kenneth Grahame, The Wind in the Willows, 19081

This chapter continues within science fiction’s epistemological register, but moves away from the obvious meeting of technology, law and science fiction that was seen with clones in Chapter 4. In common with Chapter 4, it continues to utilise cultural studies methods to explore the nexus between law and the cultural. Ultimately, this chapter

1 Grahame (2007), pp 38–39.

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argues that behind the making of the one of the first Australian laws regulating the motor vehicle, the Motor Car Act 1909 (Vic), is a substantiation of the modern conception of law as technology. The monster can be seen away from the shadows. This argument is in three sections.

The first section argues the Motor Car Act 1909 (Vic) did not correspond to publicly voiced concerns about motor vehicles during the pioneering period of motoring

(1897–1914). Instead of restrictions, the Act established a regulatory scheme of registries, licensing and policing that was pro-motorist. The second section seeks an explanation for this dislocation, but does not find it in the purely political and temporal influences such as the class politics of the era, the availability of UK templates or the lobbying by the

Automobile Club of Victoria (ACV).

The third section constructs a more adequate cultural explanation through locating the reactions to motor vehicles within the mythform of the age, as given form in the late nineteenth century ‘scientific romances’ of H.G. Wells. Wells gave form and voice to a

‘progressive modernism’ that can be seen as motivating both the members of parliament and the ACV. Progressive modernism conceived in the motor vehicle the possibility of a better future of mass automotive transport, but this future was not inevitable; it needed to be facilitated through rational law. Progressive modernism reveals that, as suggested in

Chapter 4, the law called forth by technology is itself technological.

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1. ‘The History of the Haste-Wagons’2

This section traces the cultural impact of the motor vehicle prior to World War I, with a

specific focus on the state of Victoria. What is identified in the work of popular

historians, and the primary cultural archive of newspapers, correspondence and

parliamentary debates, is a society seemingly antagonistic to this new form of transport.

However, this antagonism – unlike the clone hysteria in 2002 – was not translated into

law. An examination of the Motor Car Act 1909 (Vic) reveals a motorist-friendly regime

that allowed permissive use of ‘the haste-wagons’.

Motor Cars 1897–1914

A history of the motor vehicle in Australia has yet to be written.3 Notwithstanding recent

work by cultural historians,4 the documenting of the history of the motor vehicle in

Australia has tended to be undertaken by journalists and amateur historians, who frame

the events that led to the car’s ascendency according to a triumphant teleology.5 This

literature begins prior to World War I, when the motor vehicle was a dangerous novelty.6

It then moves through the expansion of ownership in the 1920s, to Chifley and

Australia’s Own in 1948,7 to the ‘Super-Car Scare’, oil crisis and industry decline of the

2 Andrew Barton Paterson, ‘Overland to Melbourne on an Automobile – The History of the Haste- Wagons No 1’, in Corp (1992), p 39. 3 Graeme Davison’s cultural account of the motor vehicle in Victoria is a solid step towards an Australian history of the motor vehicle. Unfortunately, his work is limited to Melbourne and begins in 1945, leaving the first 50 years of motor vehicles in Australia to only a few paragraphs. Davison (2004), pp 48–49, 114. It is arguable that such a project has been undertaken for the United Kingdom (Plowden 1973), Germany (Sachs 1992) and the United States (Flink 1970, 1976, 1988). 4 Knott (2000, 1994b); Clarsen (2006, 1997, 2000, 1999). There is an established international literature on ‘car culture’. See Wollen and Kerr (2002). 5 Knott (1994b), p 222. For examples of this type of scholarship, see Goode (1969); Cheney (1965); Martin (2001). 6 Birney (1984), p 42. 7 See Cheney (1965).

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1970s, and to the contemporary period of industry revitalisation and export.8 In this

literature, the motor vehicle is naturalised – its contemporary place within Australian

society is portrayed as the inevitable outcome of historical events.

The ‘pioneer period’ of motoring in Victoria, from 1897–1914, was marked by five key events. The opening event was the arrival of the first motor vehicle to Victorian

streets. Depending on the source, this vehicle was either the ‘Thomson Steamer’, a

homemade steam-powered contraption that supposedly first chugged up New Street,

Armadale, in May 1896, or the kerosene-powered Ridge-Austin machine developed for

the ‘Australasian Horseless Carriage Syndicate’ that took to the streets around Fitzroy in

February 1897.9 The second event was the formation of the ACV on 9 December 1903.10

The third was the 1905 Sydney-to-Melbourne reliability run that inspired A.B. Paterson’s

‘History of the Haste-Wagon’.11 The fourth was the arrival in 1909 of the Model T Ford.

The Ford had two advantages over its European contemporaries: it was cheaper and more

robust when it came to dealing with Australia’s poor roads.12 The fifth was the coming

into force of the Motor Car Act 1909 (Vic) in January 1910.

The popular history literature links these events together by conceiving the

pioneer period of motoring as a ‘dark age’, in which a vanguard of progressive motorists

faced a hostile society of Luddites, horse-loving reactionaries, regressive law-makers and

8 Irwin (2000), pp 4–10. 9 Winser (1954), pp 15–16. However, most secondary writers support the Ridge-Austin in early 1897. See Goode (1969); Haldane (1995), p 133. Blainey dates the Thomson Steamer to 1899, Blainey (1993), p 68. Alternatively, Knott refers to an imported Benz doing the rounds in Melbourne in late 1896: Knott (1994b), p 223. 10 Priestly (1983), pp 1–6. The Club was granted the prefix ‘Royal’ in 1916: Priestly (1983), p 38. 11 Corp (1992). 12 See Blainey (1993), p 80.

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over-zealous police.13 This understanding of the pioneer period of motoring by this

literature seems to be supported by the primary sources, which reveal significant

community anxieties concerning the new machines. As early as 1900, The Argus wrote:

The real truth is that when the motor comes into universal use life will not be

worth living … [T]o live in a city when motors have superseded horses will

be like living in a cotton mill, with a boiler factory on one side and a merry-

go-round with a steam organ on the other … A horse does not like to run a

man down if he can help it, but a machine of steel and brass will delight in

killing people.14

In 1905, the ‘blood thirst’ of the motor vehicle prophesised by The Argus had

come about, with the first recorded fatality occurring when a vehicle ran down and killed

a cyclist.15 In 1910, Sir Henry Weedon addressed the Legislative Assembly on a matter of ‘public urgency, namely the numerous motor car accidents occurring through reckless driving’.16 Weedon told the Legislative Assembly:

Deplorable accidents … have occurred, one as late as Sunday morning last,

when an innocent man, going home quietly from his work, was mown down.

… They are happening in various parts of the metropolis, and motor cars are

becoming a menace.17

13 Winser’s 1954 text could be regarded as the archetype of this characterisation. The prominence of that work as a source for later popular histories goes some way to explaining the uniformity of this characterisation: see Goode (1969), p 30. 14 ‘Horse v Motor’, The Argus (Melbourne), 12 December 1900, p 4. 15 ‘“Motor-Car Collision – A Cyclist Killed’, The Argus (Melbourne), 5 January 1905, p 5. At the subsequent inquest, the driver was found not to be at fault: ‘Motor-Car Collision – Verdict of Accidental Death’, The Argus (Melbourne), 12 January 1905, p 5. 16 Victorian Parliamentary Debates, Legislative Assembly, 20 September 1910, p 1230 (Sir Henry Weedon). 17 Victorian Parliamentary Debates, Legislative Assembly, 20 September 1910, p 1230 (Sir Henry Weedon).

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Weedon was not alone in his concern about the motor menace. In 1912, Robert Solly said

to the Legislative Assembly:

The other day a boy was knocked down in Fitzroy by a car, and the car went

on without doing anything to aid him. Hardly a day passes without one seeing

accounts in the press of serious accidents, and it is time that something was

done to protect life against motor hogs. Every one can see cars rushing

through the streets at speeds up to thirty miles an hour, and there seems to be

nobody to protect the people against them.18

It seemed that the motor vehicle did not discriminate in its bloody desire. In 1908, one member of the Victorian Parliament complained that another member had nearly run him over!19 Further, notwithstanding the Motor Car Act 1909 Amendment Act 1914 (Vic), it

again fell to Solly on 24 September 1914 to report to the Assembly that: ‘Nearly every

Monday morning we find reports in the newspapers of a number of motor accidents

which have occurred during the week-end, by which people are maimed and … killed.’20

From these sources, it appears uncontroversial that for the period 1897–1914, the motor vehicle’s undesirable consequences of turning people into ‘cold meat’21 was a focus for public anxiety.22

18 Victorian Parliamentary Debates, Legislative Assembly, 10 October 1912, p 1945 (Robert Solly). 19 Victorian Parliamentary Debates, Legislative Assembly, 23 July 1908, p 291 (Edward Warde). The accused was Norman Bayles, the Member for Toorak. 20 Victorian Parliamentary Debates, Legislative Assembly, 24 September 1914, p 1718 (Robert Solly). 21 To use the endearing phrase of the Member for Bendigo East: Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1295 (Alfred Bailes). 22 Although it must be kept in mind that the numbers of motor vehicle-related injuries and deaths were very low compared with the real killer on the streets of urban Australia at the time: the electric tram. In Sydney for the period 1903–14, there were 49 fatalities from motor vehicle- caused accidents compared with 130 for trams. Knott (1994b), p 226. See also Knott (1994a).

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However, the motor vehicle’s destructive nature was not the only cause of public anxiety. The Argus’s prophecy also anticipated the noise of motor vehicles shattering urban calm. Again, by 1907 The Argus’s concerns seemed well placed. In Sydney, The

Daily Telegraph reported that on Sundays a ‘procession of snorting and evil smelling

motor cars … regularly distort the features of the attendant worshippers’.23 As early as

1902, noise was the cause of the first litigation in Australia involving a motor vehicle. An

action was brought against a motorist in the Supreme Court of Victoria because his

vehicle frightened a racehorse, causing the horse a fatal injury.24 The mythology

surrounding the case tells that, at the close of the first day of sittings, Madden CJ stood

on William Street and observed (and heard) a staged re-enactment of the incident. The

Chief Justice agreed with the deceased horse concerning the noise of the machine, and

the horse owner was awarded £250 in damages.25

Another anxiety that surrounded motor vehicles before World War I was that they were the preserve of the wealthy.26 The 71 foundational members of the ACV comprised

representatives of the elite and wealthy of Melbourne, along with members of the medical

profession and representatives of the nascent motor vehicle industry.27 Susan Priestley’s

description of the ACV’s first rooms could be that of any gentlemen’s club from the era:

23 The Daily Telegraph (Sydney), 22 June 1907, cited in Hovenden (1983), p 146. 24 Madden CJ’s judgment was not reported. However, the application for costs was reported: Bloomfield v The Dunlop Tyre Company Ltd (1902) 28 VLR 72. The accident happened on 30 August 1901. The vehicle involved was a De Dion Bouton, purchased by Dunlop for promotional purposes: Blainey (1993), pp 69–72. For an account based on the recollection of the driver, see Winser (1954), pp 56–57. 25 Blainey (1993), p 70. While Madden CJ gave judgment against a motor vehicle in 1902, the vehicle must have left an impression, since he agreed to be the foundational President of the ACV in 1903: Priestly (1983), p 9. 26 Knott suggests that in 1905 an entry-level ‘Argyll’ would have cost 250 weeks’ income at minimum adult male wages, Knott (2000), p 7. This is only the purchase price. Hovenden suggests that in 1906 the weekly running costs of a motor vehicle were £5/7/3, at a time when £3/0/0 was considered a good wage for a tradesman: Hovenden (1983), p 139. 27 Priestly (1983), p 159.

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there was a reading and smoking room, a billiard room with two tables, a

committee room and an office, a refreshment bar, a fine balcony overlooking

Collins Street, and a cool well-lit luncheon room where a meal costing from

six pence to two shillings could be had from twelve to two.28

In a period when Victorian society was sensitive to class politics,29 the motor vehicle was a visible symbol of the well-off’s contempt for the worker: ‘To the cynic the car was just another rich man’s toy. To the envious, it was an emblem of class distinction and bloated capitalism owned by a snob who flashingly flaunted evidence of ill-gotten gains.’30

Together, the dangerous speed, noise pollution and class status meant that some in the community did more than just write letters to the editor or Members of Parliament voicing their concern about the new machines. One parliamentarian suggested that,

‘considering the way the drivers of motor cars act … the British public ought to be allowed to carry arms and shoot some of the beggars at sight’.31 There were no reports in

Australia of this extreme response to motor vehicles. However, there were reports of motorists being abused, pelted with rocks, and the malicious arranging of sharp objects on roads to puncture pneumatic tyres.32

Therefore, the primary sources from the period give voice to a public mood that displays significant anxiety, if not outright hostility, to the emerging motors. Indeed, in

1905 the report on a meeting of the ACV tells that the pioneering motorists were

28 Priestly (1983), p 12. 29 Bongiorno (1996), pp 58–61. 30 J.F.F. Reid, cited in Winser (1954), p 161. 31 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1212 (Alfred Outtrim). 32 Priestly (1983), p 22; Goode (1969), p 35. On violence in Australia against motorists in the pioneer period, see Knott (1994b); Winser (1954), p 163. Violence against motorists was not unique to Australia. Emsley documents similar incidents in England: Emsley (1993).

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concerned that a ‘“wave of hysteria” had swept over the community on the subject of motoring’.33 As this wave of hysteria was contemporaneous with the first motor vehicle

legislation, the popular history literature suggests that this law was a populist response,

pandering to the anxieties and hostilities of the non-motorist majority through the

introduction of low speed limits, exorbitant taxation and curfews.34 For example, Shane

Birney articulates this linking of public antagonism with regressive law:

The first cars were seen as little more than toys both by those who owned

them and those that did not. All manner of draconian laws were invoked to

suppress the ‘maniacal’ urges of this lunatic fringe. Very low speed limits

were fixed and police were encouraged to give close attention to the behavior

of motorists … In Melbourne any motorist who had the temerity to overtake a

cable tram (speed about 12km/h) was dealt with swiftly and severely by the

law.35

Birney is wrong. As will be shown, the Motor Car Act 1909 (Vic) cannot be

regarded as a regressive attempt at controlling a dangerous new technology. Even

Birney’s reference to motor vehicles passing trams is wrong. In 1912, the Supreme Court

of Victoria acquitted a convicted motorist who hit a child while overtaking a tram on the right.36 Further, the Motor Car Act 1909 (Vic) was not repealed and then replaced with a

more workable scheme after the initial public anxieties had dissipated – the fate of much

33 ‘Motor Traffic – Meeting of Motorists’, The Argus (Melbourne), 10 January 1905, p 5. 34 Birney (1984), pp 58–59. 35 Birney (1985), p 19. 36 Gillin v Malmgren [1912] VLR 26 at 28 (a’Beckett J). Birney is also wrong as to the speed of trams. Contemporary sources have the urban trams in Melbourne doing 12 mph, not the rather more sedate 12 km/h: Victorian Parliamentary Debates, Legislative Assembly, 5 September 1905, p 1350 (Henry Beard).

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populist law enacted in response to hysteria.37 Instead, the key elements of the Act –

registries, licensing, prescribed norms, and policing – remain the cornerstones of

contemporary motor vehicle regulation.

Motor Car Act 1909 (Vic)

The Motor Car Act 1909 (Vic) cannot be understood as a simplistic reaction to public

anxieties about the new motor vehicles. Instead, it provided a sophisticated scheme for

the regulation of such vehicles. A fuller understanding of the Act must begin with the pre-1910 regulation of motor vehicles and the Act’s own legislative history.

Prior to 1910, motor vehicles were subject to the established road rules. While the substance of the road rules had remained consistent during the 1800s, the key reform felt by early motorists was the emergence in the 1890s of police as the central traffic enforcement agency. For the control of motor vehicles before 1910, the police relied primarily on the offence of ‘furious or negligently riding or driving through any public place’ under section 5(17) of the Police Offences Act 1890 (Vic). From a police and motorist perspective, this was an unsatisfactory approach. ‘Furious driving’ related to

harnessed horses, and from the agitation, sweat and breathing of a horse, a police officer

could generally tell whether it had been driven furiously. Motor vehicles lacked such

telltale signs, and as such prosecution of a motorist for furious driving relied primarily on

the opinion of the police officer and any witnesses.38 Prosecution became dependent on

the competing credibility of the motorist and the police officer. Therefore, from an early

point, the police and the motorist were pitted at loggerheads, with claims of harassment

37 Morgan (1999). 38 On the problems of the application of ‘furious driving’ to motorists, see Plowden (1973), p 17; Emsley (1993), p 363.

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and bribery being made by both sides.39 Evidence of this conflict can be seen in the

ACV’s decision in 1906 to set up a fighting fund to provide legal representation to members accused of furious driving.40

The Victorian Parliament first addressed the issue of motor vehicles as early as

1900. The Traction Engine Act 1900 (Vic) excluded ‘motor cars and motor cycles’ from its reach.41 In doing so, this Act followed its United Kingdom precursor, the Locomotives on Highways Act 1896 (UK), which exempted light locomotives (defined as a self- propelled vehicle under 3 tonnes not used for haulage) from the restrictions placed on traction engines.42 The first legislative attempt to regulate motor vehicles was in 1905, when the government of (later Sir) Thomas Bent introduced the Motor Car Bill 1905

(Vic) ‘to secure and preserve the lives and limbs, not only of persons who have the right to use the public highways … but also to protect the lives and limbs of those persons who use these motor cars themselves.’43 Like the Traction Engine Act 1900 (Vic), the 1905

Bill was mostly a copy of an English law, the Motor Car Act 1903 (UK). The core elements of the 1905 Bill were the licensing of drivers and vehicles, the provision of a

39 ACV, Automobile Club of Victoria Annual Report 1909–1910 (1910), p 6; ACV, Automobile Club of Victoria Annual Report 1910–1911 (1911), pp 5, 10. Even the Governor’s chauffeur was not immune from prosecution. It is reported that chauffeur Arthur Benning was fined 40 shillings for furious driving, having previously been fined 20 shillings for a similar offence. See ‘Motor Traffic – Governor’s Chauffeur Again Fined’, The Argus (Melbourne), 24 January 1905, p 6. 40 Priestly (1983), p 22. Here the ACV followed the establishment of a similar fund by the English Automobile Club: Plowden (1973), p 19. However, the conflict between motorists and the police was not resolved by the 1909 Act. As early as 1910, the Commissioner of Police had to make public announcements defending the tactics and instruments used by the police in enforcing the Act, ‘Police and Motorists – Mr O’Callaghan’s Views’, The Argus (Melbourne), 17 November 1910, p 10. 41 Traction Engine Act 1900 (Vic) s 3. 42 The Locomotives on Highways Act 1896 (UK) released both traction engines and motor vehicles from the red flag requirement. However, ‘light locomotives’ were subject to a blanket speed limit of 14 mph: s 4. 43 Victorian Parliamentary Debates, Legislative Assembly, 23 August 1905, p 1146 (Sir Samuel Gillott, Chief Secretary). Bent was Premier from 1904–08. He succeeded William Irvine as Premier and as leader of the conservative free trade faction in the Legislative Assembly, referred to in the political history literature as ‘Ministerialists’: see Browne (1985), p vii. On Bent and his government, see Glass (1993).

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new criminal offence of driving a motor vehicle negligently, and maximum speed

limits.44 It was proposed that local councils were to be given responsibility for licensing

drivers and vehicles, while the police were to be responsible for traffic management and

prosecution.45 The Bill progressed mostly without controversy through committee with

only minor amendments. However, it did not become law. After committee had passed

amendments to the Bill, the Labor opposition proposed the addition of provisions fixing

an eight-hour working day and a set wage for drivers. Given the opposition’s

‘unacceptable’ proposal, Bent decided enough time had been spent ‘on this little Bill’,46 and it was discharged on 29 November 1905.47

Bent’s decision to withdraw the Bill seems unexpected. In 1905, Bent had the numbers in the Assembly to pass the Bill without support from Labor. Robert Haldane, in his history of the Victorian Police, suggests that the Bill was dropped because of

concerted lobbying by the ACV, which opposed the Bill outright.48 This over-simplifies

the ACV’s position regarding the 1905 Bill. The ACV was supportive of the Bill, but was

concerned that the speed limits and the powers proposed for the local councils could

unreasonably prejudice motorists.49 An alternative explanation for the abrupt discharge of

44 Motor Car Bill 1905 (Vic) cls 6, 8, 9. Initially, the Bill was introduced with the 1903 English limits of 20 mph generally, with local councils allowed to specify 10 mph in city streets. These were both increased in committee to 25 mph and 12 mph respectively see Victoria, Parliamentary Debates, Legislative Assembly, 5 September 1905, 1344–1350. 45 Motor Car Bill 1905 (Vic) cl 8. See the continual reference to police powers in the debate surrounding cls 6, 7 and 8: Victorian Parliamentary Debates, Legislative Assembly, 31 August, 1905, pp 1292–1309. 46 Victorian Parliamentary Debates, Legislative Assembly, 5 September 1905, p 1358 (Thomas Bent, Premier). 47 Victorian Parliamentary Debates, Legislative Assembly, 29 November 1905, p 3177. 48 Haldane (1995), p 133. 49 The provisions of the 1905 Bill were discussed at length at the 1905 Annual General Meeting of the ACV, and a detailed list of amendments was recommended to the Chief Secretary. The amendments were of a minor character – for example, suspension of licence for only three to six months, and a mechanism for unlicensed people to be taught to drive: ACV, Minutes of Annual General Meeting (1905), pp 37–38.

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the Bill can be found in Margaret Glass’s portrait of Bent. She suggests that by the time

Bent became Premier, he was suffering from mental deterioration that led to notorious

bouts of unpredictability and flash anger.50 Bent’s discharge of the Bill in a moment of

outrage seems consistent with this account of him.51 Indeed, the ACV expressed surprise

and disappointment that the Bill was dropped.52

Following the abandonment of the 1905 Bill, regulation of motor vehicles was not

raised again until 1908, when the Bent government introduced a new Motor Car Bill

1908 (Vic) in October.53 By 1908, Bent was governing with the support of the ‘Liberal’

faction and key Liberals, Sir Alexander Peacock and John Murray, were in the ministry.54

The 1908 Bill differed from the 1905 Bill in two important respects. First, the police, rather than the local councils, were given responsibility over licensing drivers and vehicles in order ‘to secure uniformity’.55 Second, the Bill did not legislate for speed limits. In doing away with speed limits, the government was following the advice of the

United Kingdom Royal Commission on Motor Cars, chaired by Lord Selby, which reported in 1906.56 There were three arguments used in the 1906 report, which were

adopted by proponents of the ‘no speed limit’ policy of the 1908 Bill. The first was that

50 It was Bent’s unpredictability (and a series of questionable land transactions) that led the ‘Liberals’, rallying around John Murray, to leave the government and support the 1908 no- confidence motion against Bent. See Glass (1993), pp 179–188. 51 Bent’s refusal to engage with the ‘chauffeur question’ was the explanation given for the abandonment of the 1905 Bill in an anonymous fifth year retrospective on the ACV: The Automobile Club of Victoria – An Historical Review (1908). 52 ACV, Automobile Club of Victoria Annual Report 1905–1906 (1906), p 11. 53 Victoria, Parliamentary Debates, Legislative Assembly, 23 July 1908, 368 (first reading); 14 October 1908, 1206 (second reading). 54 The decision of the ‘Liberals’ to align with Bent in February 1907 was to compensate for Bent losing the support of some rural ‘Ministerialists’ and to avert a no-confidence motion that might have resulted in a Labor government: Glass (1993), p 180. On the use of the term ‘Liberals’ to describe this group, see Browne (1985), p vii. 55 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1208 (Sir Alexander Peacock, Chief Secretary). 56 Royal Commission on Motor Cars (1906).

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drivers tended to treat prescribed speed limits as absolutes, regardless of road conditions.

The second was that it was difficult for a driver to know their speed when driving (this was before the development of dashboard-mounted speedometers) and third, it

‘detract[ed] from the dignity of the police who are employed in trapping drivers of motor cars’.57 Instead of a fixed speed limit, the Bill put the onus on the driver to drive responsibly, to be enforced through a new offence of reckless or negligent driving.58 Like the earlier Bill, the 1908 Bill passed through committee with few amendments.59 At third reading, the Labor opposition again attempted to add a provision regulating the pay and working hours of drivers, but this time the amendment was put to the vote and defeated.60

However, the 1908 Bill also did not make it on to the books. After being read a first time in the Legislative Council, ongoing tensions within the Bent government led to

Legislative Assembly elections on 29 December 1908.61

The aftermath of the 1908 elections was a new ‘Liberal’ ministry under John

Murray, with the Labor Party again the formal opposition.62 One of the first measures of the Murray government was to resurrect the text of the lapsed 1908 Bill as the Motor Car

57 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1210 (Sir Henry Weedon). 58 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1210 (Sir Alexander Peacock, Chief Secretary). This clause was amended in committee by Sir Henry Weedon inserting the words ‘Having regard to all the circumstances of the case, including the nature, condition, and use of the highway and to the amount of traffic’: Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1326. This section made it into the 1909 Act. On its interpretation and application (in section 10 of the 1909 Act), see Chammen v Gilmore [1914] VLR 455 at 457– 458 (Hodges J). 59 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, pp 1325–1334. 60 Victorian Parliamentary Debates, Legislative Assembly, 24 November 1908, pp 1550–1551. 61 Controversial to the last, Bent’s response to the vote of no confidence orchestrated by Murray in late 1908 was not the expected recommendation to the Governor to appoint Murray or Prendergast Premier, but rather to prorogue the Assembly: Glass (1993), p 188. 62 Murray was at one stage a member of the Labor Party. By 1909, he was leader of the ‘Liberals’, although he governed with the support of other non-Labor members: see Bongiorno (1996), p 81. Victoria’s first Labor government was formed in 1913 under George Elmslie for two weeks in December 1913: see Browne (1985), p 61.

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Bill 1909 (Vic). The Bill was introduced in the Legislative Council in July 1909.63 The

Council made amendments to the Bill concerning provisions for learner drivers, a regime for the temporary registration of interstate motor vehicles, and provisions for local councils to receive half of the fine revenue from prosecutions.64 In the Legislative

Assembly, the half-fine revenue amendment was rejected and opposition attempts to introduce speed limits were also defeated, but an opposition amendment concerning the establishment of a wages board for drivers was passed.65 The Legislative Council rejected the wages board provision and the Legislative Assembly voted not to insist on it.66

The Motor Car Act 1909 (Vic) became law on 4 January 1910. The Act prescribed norms regarding vehicles and driver behaviour – motorists were required to stop when there was an accident;67 all vehicles needed lights and a bell or a horn;68 all vehicles had to display a registration number;69 all drivers had to be over eighteen70 – as well as special motor vehicle-related offences.71 Importantly, the speed of motor vehicles was regulated through a new offence of ‘driving recklessly, negligently or at speed’ that

63 Victorian Parliamentary Debates, Legislative Council, 7 July 1909, p 100 (first reading); 20 July 1909, pp 256–68 (second reading). 64 Victorian Parliamentary Debates, Legislative Council, 3 August 1909, pp 506–518; 4 August 1909, pp 557–573; 10 August 1909, pp 632–640; 25 August 1909, pp 756–759. 65 Victorian Parliamentary Debates, Legislative Assembly, 16 September 1909, p 1157 (defeat of half-fine provision); 3 November 1909, p 1963 (defeat of Labor speed limits amendment); Victorian Parliamentary Debates, Legislative Assembly, 21 December 1909, p 3501 (passing of wage board amendment). 66 Victorian Parliamentary Debates, Legislative Council, 23 December 1909, p 3631 (Legislative Council agreeing to the Assembly’s amendments, with the exception of the wage board provisions); Victorian Parliamentary Debates, Legislative Assembly, 24 December 1909, p 3683 (at vote, the Assembly by a majority of three agreed not to insist on the wage board amendments). 67 Motor Car Act 1909 (Vic), s 14(2). 68 Motor Car Act 1909 (Vic), ss 12–13. 69 Motor Car Act 1909 (Vic), ss 4–5. 70 Motor Car Act 1909 (Vic), s 6(2). 71 Motor Car Act 1909 (Vic), section 4(4) (offences relating to registration of vehicles), section 8 (offences relating to licences), section 19 (fraud on registration or licences) and section 25 (drink- driving).

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was to be determined through a subjective test, having ‘regard to all the circumstances of

the case, including the nature, condition and use of the highway and to the amount of

traffic’.72 The Act established a statewide registry of ‘motor cars’73 and a state-wide

licensing scheme for drivers.74 It conferred on the police the separate tasks of enforcing

the norms, and the administrative responsibility for licensing. It gave wide power to the

Governor to make regulations dealing with motor vehicle construction, Sunday traffic, signage of roads and licence qualifications.75 The Act was not constituted by the

simplistic or populist restrictions to motor vehicles that might be anticipated, having

regard to the anxieties within the community or the characterisation of the first motor

vehicle laws in the popular literature. The Act did respond to the public mood. Concerns

about speed and danger were addressed by the reckless driving offence and the

requirements that drivers be of a certain age and be issued with a licence, vehicles be fitted with lights, drivers stop at an accident, and all vehicles be identified by unique number plates. While the Act imposed on motorists new and significantly more regulation, it did so under the guise of making the motor vehicle safer. The Act did not

regressively attempt to restrict motoring; there were no red flags, no speed limits, no

exorbitant taxation, no blanket bans enforced by drastic criminal penalties. Instead, the

lack of a speed limit, the reasonably affordable registration and licence fees and the

72 Motor Car Act 1909 (Vic), s 10. 73 The term ‘motor car’ was defined in the Act as ‘any vehicle propelled by steam, gas, oil, electricity or any mechanical power and used or intended to be used on a public highway’. Included in the definition were motorcycles. Excluded were trains, trams and traction engines: Motor Car Act 1909 (Vic), s 2(c). 74 This scheme charged 20 shillings for vehicle registration and 2/6 for a driver’s licence, Motor Car Act 1909 (Vic), ss 4, 6. 75 Motor Car Act 1909 (Vic), ss 15–16. The subsequent Regulations Under the Motor Car Act 1909 (Vic) came into force on 23 February 1910.

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subjective reckless driving provision suggested that, on the contrary, the Act was for

motor vehicles and was motorist-friendly.

That the Act was, on balance, motorist-friendly might appear at odds with the

statements of most parliamentarians during the pioneer period. The members who

engaged in debate around the Bills generally professed a dislike of motorists and motor

vehicles. For example, in 1905 Donald MacKinnon expressed: ‘We have not a great

many motor cars here, but we have, I think, developed one or two gentlemen who are

what are called in the old country “road hogs” – who drive their cars furiously and ought

to be stopped.’76 Similar thoughts were offered by Richard Toutcher in 1908:

The motor traffic is becoming a very great menace in the city, especially to

elderly people who have to cross the streets, and whose lives are in jeopardy

from day to day … Bicycles are bad enough, but it requires a great deal of

alertness nowadays to dodge the motor bicycles and motor cars.77

In 1910, Donald McLeod remarked: ‘It is scandalous to see the reckless way in which some motorists travel along the country roads … The law should come down so heavily on these offenders … that they must respect the rights of others.’78 Even in 1914,

William McPherson complained:

I have seen motor cycles, especially, going along Burwood-road [sic],

Hawthorn, at a terrific speed. The speed has been so great that every one in

76 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, p 1268 (Donald MacKinnon). 77 Victorian Parliamentary Debates, Legislative Assembly, 23 July 1908, p 291 (Richard Toutcher). 78 Victorian Parliamentary Debates, Legislative Assembly, 20 September 1910, p 1233 (Donald McLeod).

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the street has turned around and watched the vehicle … it is high time that

some regulation was made to bring such people to the scratch.79

The Act was not the regressive law that might be expected from this rhetoric; nor

was it subject to much revision. Between 1910 and 1914, many MPs noted ongoing

public concern regarding motor vehicles. For example, on 2 August 1911, Robert Stanley

asked:

… [whether] in view of the disregard for the safety of human life shown by

some of the drivers of motor cars, the Government will introduce an

amending Motor Cars Bill this session, in order to more effectively protect

the lives of the people?80

The Acting Premier’s response was that the 1909 Act was working well and only required minor amendments.81 Two minor changes were made to the motor vehicle

regime prior to World War I. The Vehicle Act 1912 (Vic) made it an offence to take a

motor vehicle for a ‘joy ride’.82 Further, the passing of the Motor Car Act 1909

Amendment Act 1914 (Vic) allowed for the issuing of temporary vehicle registration for

dealers, repealed the requirement for temporary registration of interstate motor vehicles

and tightened the drink-driving provisions.83 The success of the 1909 Act was even

mentioned by the Chief Secretary in the second reading speech for the 1914 amendment:

‘Upon the whole, one marvels, when one considers the matter, how fully the original Act

79 Victorian Parliamentary Debates, Legislative Assembly, 16 July 1914, p 457 (William McPherson). 80 Victorian Parliamentary Debates, Legislative Assembly, 2 August 1911, p 361 (Robert Stanley). 81 Victorian Parliamentary Debates, Legislative Assembly, 2 August 1911, p 361 (William Watt, Acting Premier). 82 Victorian Parliamentary Debates, Legislative Assembly, 20 November 1912, pp 2940–2945 (Norman Bayles). 83 Motor Car Act 1909 Amendment Act 1914 (Vic), ss 2, 4, 7. This Act also gave the Governor-in- Council power to make regulations dealing with horns (s 6), and included motorcycles with sidecars in the definition of motor car (s 8).

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has provided for the development of the motor car traffic which has since expanded to such a large extent.’84 Indeed, the regime regulating motor vehicles in Victoria has

remained remarkably consistent since the 1909 Act, with licensing registries and policing

being the cornerstones of the current legislation.85

In short, notwithstanding community anxiety about motor vehicles, observations to the contrary in the popular history literature and declared hostility to the motor vehicle by many parliamentarians, the Motor Car Act 1909 (Vic) did not impose regressive measures on motorists. The Act responded to the community’s anxieties concerning the danger of the motor vehicle, not with restriction and prohibition but through regulation and management. The anxieties and the Act cannot be regarded as a sealed hermeneutic.

While the anxieties called forth the Act, the Act cannot be explained solely as a response to the community’s concerns. There was dissociation between the community’s attitudes of hostility and restriction, and the Act’s regulative permissiveness. James Flink, summarising his review of the initial United States motor vehicle legislation, makes a similar finding that, ‘contrary to the popular myth [of regressive laws reflecting hostile community attitudes] however, early motor vehicle legislation appears in retrospect to have been extremely reasonable’.86 While Flink makes the observation, he does not offer

an explanation for the dissociation. This is the task of the next section.

84 Victorian Parliamentary Debates, Legislative Assembly, 16 July 1914, p 447 (John Murray, Chief Secretary). 85 See, for example, Road Safety Act 1986 (Vic); Road Safety (Procedures) Regulations 1988 (Vic); Road Safety (Vehicles) Regulations 1999 (Vic); Road Safety (Traffic) Regulations 1988 (Vic). 86 Flink (1970), p 166.

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2. Explaining the Dissociation

The previous section suggested that there was a dissociation between the Motor Car Act

1909 (Vic) and the historical anxieties about the motor vehicle. While the Act responded

to the community’s concerns regarding danger, speed and noise, it did not pander to the

popular mood by unduly restricting motorists. This section develops an explanation for

this dissociation through a closer review of the parliamentary debates on the Bills. Given the community’s anxieties about the motor vehicle and the fact that the motor vehicle was

new technology that in important respects exceeded, and could not be regarded as

analogous to, any of the existing transportation technologies (the horse, bicycle, railroad), it might be expected that the passage of the Bills would have been accompanied by robust debate and a wide spread of opinion about the motor vehicle and the appropriate legislative response. However, this was not so. While there was a spread of opinion about the utility of the motor vehicle and the morality of motorists, it was not hardened along class or faction lines. Furthermore, although there were some members who suggested very different ways to control motor vehicles and govern motorists, these opinions were not taken up or debated by the parliament.

Through focusing on the parliamentary debates, two other ‘political’ factors that influenced the Act can be discerned: the United Kingdom template and the lobbying of the ACV. However, it is argued that these factors do not, of themselves, explain how the

Victorian Parliament responded to the motor vehicle with registries, licensing and policing. While these factors offer partial explanations for the Act, they in turn disclose deeper understandings of how the Act emerged to regulate motor vehicles.

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Class and the Parliamentary Debates

The parliamentary debates that accompanied the Motor Car Bills were, as might be

expected given the public concern, full of rhetoric about the dangers and horrors of the

motor car. However, some members praised the potential of motorised transport, if not motor vehicles directly. This diversity of opinion seemed independent of the factional or

‘class’ loyalty of the members.87

It is generally assumed that, prior to the formation of modern non-Labor

parliamentary political parties in Australia, parliamentarians had greater freedom in

expressing opinions and the way in which they voted. The evidence often cited was the

churning of short-lived governments, brought about by unstable coalitions of individuals.

During the pioneering period of motoring, Victoria went against this trend, enjoying a

period of political stability.88 One cause of this stability was that the Legislative

Assembly was split into three clearly identifiable political groupings. The most visible

group was the Labor Party,89 whose parliamentary members post-Federation were nearly

exclusively drawn from the ranks of the union movement.90 The non-Labor side of

politics during the period was split between the Bent-led ‘Ministerialists’, a combination

of rural members in conjunction with wealthy members with social conservative

tendencies, and the smaller ‘Liberal’ grouping clustered around Sir Alexander Peacock,

87 Knott observes that the debates surrounding the regulation of motor vehicles in New South Wales during the pioneer period ‘crossed party lines’: Knott (1994b), p 236. 88 During the period 1905–08, there was only the one change of government, from Bent to Murray after the 29 December 1908 Legislative Assembly elections. Bent succeeded Irving as Premier and ‘Ministerialist’ leader in 1904, while Irving came to power in 1902: see Thomson and Serle (1972), pp 16, 101. 89 Prendergast was leader of the Labor Party from 1904–13: Thomson and Serle (1972), p 168. 90 Bongiorno (1996), pp 74–81.

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Donald MacKinnon and John Murray, consisting of the more socially progressive

members of the elite.91

From this identification of discernable class differentiation between Labor and

non-Labor members, it might be expected that the class prejudice surrounding the first

motor vehicles would have manifested in Labor members voicing strong anti-car

sentiment and opposing motorist-friendly provisions.

Robert Solly, first elected to the Legislative Assembly as a representative of the

railway workers and later as the Member for Carlton, conforms to this expectation.92 The union organiser and bootmaker93 seemingly took delight in documenting to the House

another bloody accident:

A terrible accident occurred at St Kilda a little while ago. A man was driving

a car at an enormous speed, and a young woman was killed. [Interjection –

He drove the motor car up a telegraph pole.] He must have been driving at a

very great speed. The woman [who] was sitting in the car with him was

thrown out and killed.94

However, Solly’s simple position of opposition was not shared by his parliamentary leader George Prendergast, the Member for North Melbourne.95 Prendergast’s initial

91 Browne (1985), p vii. Browne’s use of these terms of description for the non-Labor factions has been taken up in the historical literature: see Bongiorno (1996); Glass (1993). 92 See also Victorian Parliamentary Debates, Legislative Assembly, 16 September 1909, p 1152 (Robert Solly). A short-lived reform of the Irving government was the provision for direct representation of the public service in the Assembly through having four seats exclusively for the public service. It lasted from 1904 until 1906: Bongiorno (1996), p 75. 93 Bongiorno (1996), p 6. 94 Victorian Parliamentary Debates, Legislative Assembly, 3 December 1909, p 2741 (Robert Solly, interjection by John Billson). 95 There might be an argument that the difference of opinion between Solly and Prendergast could be explained by regarding bootmaker Solly as true working class, while Prendergast – who was a printer by trade and had also been a journalist before becoming the organiser of the Trades Hall- affiliated Typographical Association – possessed bourgeois intellectual leanings: see Thomson and Serle (1972), p 168; Browne (1985), p 197. However, Bongiorno, in his history of the

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comment concerning the 1905 Bill was that ‘some of the clauses are much too

stringent’,96 and in the debates of that Bill he appeared to be taking up the Chief

Secretary’s invitation to assist the government in passing a ‘measure which will not

unduly or harshly interfere with those who have these vehicles at their command’.97 To this end, Prendergast orchestrated the reduction in licence and registration fees,98 and supported a government amendment allowing a driver 48 hours to present their licence to the police, on the ground that Prendergast ‘wished to protect the drivers of these cars from the over-officiousness of any policeman’.99 Concerning the 1908 Bill, Prendergast

professed that ‘I do not believe in taking exception to every car in the street’,100 although

he was alarmed at the absence of speed limits and unsuccessfully attempted to introduce them.101 In 1909, he complained about the dust stirred up in his own street by motor

vehicles and described the noise from motor cycles as being ‘like that of a battery of

artillery’,102 but also supported the ACV’s position that the half-fine revenue clause had to be removed or else ‘owners and drivers of motor cars [would] be subjected to penalties for the mere purpose of providing revenue to the municipalities’.103 By 1913,

Victorian Labor Party for the period, does not document any criticisms of Prendergast as not truly representing ‘the workers’: see Bongiorno (1996). 96 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, 1268 (George Prendergast, Leader of the Opposition). 97 Victorian Parliamentary Debates, Legislative Assembly, 23 August 1905, p 1149 (Sir Samuel Gillott, Chief Secretary). 98 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, pp 1272–1273 (George Prendergast, Leader of the Opposition). 99 Victoria, Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1301 (George Prendergast, Leader of the Opposition). 100 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1218 (George Prendergast, Leader of the Opposition). 101 Victorian Parliamentary Debates, Legislative Assembly, 3 November 1909, pp 1959–1963. 102 Victorian Parliamentary Debates, Legislative Assembly, 16 September 1909, p 1152 (George Prendergast, Leader of the Opposition). 103 Victorian Parliamentary Debates, Legislative Assembly, 16 September 1909, p 1152 (George Prendergast, Leader of the Opposition). Both Prendergast and Premier Murray supported the amendment in committee: at 1156–1157.

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Prendergast’s concern regarding motor vehicles had become purely acoustic. In debate

regarding the amendment of the regulation power in the Motor Car Act 1909 (Vic) to provide for the standardisation of horns, Prendergast suggested: ‘I think it would be very desirable if in regulating these sounds we could obtain a sound that was not only suitable for its main object but was also euphonious.’104

Similarly, non-Labor members were not uniform in their opinions concerning

motor vehicles. The Member for the western rural seat of Lowan, Robert Stanley, often

voiced anti-motorist sentiments, notwithstanding his association with the governing

‘Ministerialists’.105 He told the House how his ‘blood boils on reading the death and destruction to children and the aged by the motor car … I am greatly surprised … that not

one of these [motorists] has been hanged.’106 During the third reading of the 1908 Bill,

Stanley moved an amendment that would deem a driver liable for damage arising from

any accident involving motor vehicles. He justified the amendment in the language of

radical class politics: ‘I want it to apply everywhere, and especially the Hamilton district,

where the swagmen have to get on the other side of the fence to get out of the way of the

squatter kings.’107 The ‘Liberal’ John Murray, Member for Warrnambool and Premier

from 1909 until 1912, initially shared with Stanley a class analysis of motoring.

Responding to the 1908 Bill’s adoption of the Royal Commission’s recommendation

against speed limits, Murray decried the Commission as biased. Having listed the

experience, past offices and peerages of the members of the Royal Commission, Murray

104 Victorian Parliamentary Debates, Legislative Assembly, 29 October 1913, p 2187 (George Prendergast). 105 Browne (1985), p 198. 106 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1331 (Robert Stanley). 107 Victorian Parliamentary Debates, Legislative Assembly, 24 November 1908, p 1553 (Robert Stanley).

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explained: ‘I thought I was going to ascertain that these gentlemen approved of the speed limit [but they do not] … I suppose every mother’s son of them has a garage full of cars.

Their sympathies were all with reckless driving.’108 However, by 1909 and as Premier,

Murray had changed his perspective on motor vehicles and he defended the no speed

limit policy on the ground of the technical difficulty of detection and enforcement.109

After 1909, Murray conformed to the expectation that the non-Labor members would support motor vehicles. Not all non-Labor members needed the premiership to have the expected class attitude towards the motor car. During the pioneering period, Norman

Bayles (see Appendix 2), the Member for Toorak, took upon himself to be the spokesperson for motor vehicles and motorists in parliament.110 It was Bayles who

defended motor vehicles, spoke for the ACV,111 became the personification of motoring

in the speeches of other members and introduced the joy-riding Bill.112

The diversity of opinion regarding motor vehicles, irrespective of class or

factional loyalty, continued more remarkably in the Legislative Council. In Victoria

during 1905–09, members of the Legislative Council had to possess over £500 in freehold property and represent an electorate that had either to own a minimum of £10 in

freehold property, or lease property worth more than £15.113 For Geoffrey Serle, these

limits explained the class homogeneity of the Council and its obstructionism towards

108 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1329 (John Murray). 109 Victorian Parliamentary Debates, Legislative Assembly, 3 November 1909, p 1958 (John Murray, Premier). 110 Bayles was an early member of the ACV and active in its management: Priestly (1983). 111 Bayles was specially thanked in the ACV’s 1908–09 Annual Report for his representation of the Club during the legislative process of the 1908 Bill: ACV, Automobile Club of Victoria Annual Report 1908–1909 (1909), p 6. 112 See, for example, Victoria, Parliamentary Debates, Legislative Assembly, 23 July 1908, pp 290– 291 (discussion in the Assembly of Bayles’ driver being acquitted of dangerous driving). 113 University graduates, barristers, medical doctors, the clergy, school teachers and military officers were franchised irrespective of their property holdings: see Browne (1985), p viii.

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progressive legislation during the period.114 Given the Council’s class bias, it might be

expected to be a pro-motoring chamber. However, motor vehicles and their regulation

also provoked a split of opinions in the Council. Alfred Hicks attacked the elitism of

motor cars: ‘Seeing … that they were owned mainly by bloated capitalists, those who had

them being nearly all millionaires.’115 Yet others members were favourable to motor

vehicles and the Bill. Frederick Brawn suggested ‘that the Bill as a whole would

commend itself to honourable members’.116 Some members thought that the utility of the

motorcycle for farmers meant they should be excluded from the Bill,117 while many

agreed with the sentiment that ‘there was no more unsafe vehicle used on the roads than

the motor cycle’.118 There was also clear disagreement between members who supported

the Municipal Association’s call for the local councils to directly receive an income from

motor vehicles as compensation for the damage that motor vehicles did to roads,119 and strong objections to this claim based on a different assessment of the impact of motor vehicles on road surfaces.120 Like in the Legislative Assembly, where opinions were not

dictated by class or factional loyalty, the representatives of the property-owning classes

in the Legislative Council were not unified in their opinions.

From this review of the diversity of opinions in the parliamentary debates

concerning motor vehicles and motorists, it might be expected that the debates

themselves were a lively affair, with strong opinions regarding the utility of motor

114 Serle (1953–55), p 200. 115 Victorian Parliamentary Debates, Legislative Council, 3 August 1909, p 515 (Alfred Hicks). 116 Victorian Parliamentary Debates, Legislative Council, 20 July 1909, p 266 (Frederick Brawn). 117 Victorian Parliamentary Debates, Legislative Council, 3 August 1909, p 507 (Richard Rees). 118 Victorian Parliamentary Debates, Legislative Council, 3 August 1909, p 507 (Thomas Payne). 119 Victorian Parliamentary Debates, Legislative Council, 4 August 1909, p 560 (Richard Abbott). 120 ‘Honorable members spoke about the damage done to the roads by motor cars, but a motor was like a man in slippers. How could a pneumatic tyre injure the road?’ Victorian Parliamentary Debates, Legislative Council, 4 August 1909, p 561 (Sir Edward Miller).

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vehicles translating into vigorous debates about the proposed scheme for their regulation.

However, if the parliamentary discussion is examined in this light, it comes up looking

decidedly ‘anaemic’, as one member described the debate in the committee stage of the

1905 Bill.121 There was very little debate concerning the basic issues. Nowhere was the

prohibition of motor vehicles suggested. Nor was there any significant disagreement

regarding the core elements of the regime for the regulation of motor vehicles; it was uncontroversial that the state should license drivers, keep a registry of vehicles, introduce unique motor vehicle offences and regulate for safety. During the debates on the Bills, the concern was with the details of these schemes, not the deployment of these techniques of regulation. For example, in 1905 some members questioned the need for owners to have a licence to drive their own vehicles on the grounds that an owner of a horse did not require a licence to ride it in public.122 However, by 1908 no members raised this objection.

Another was the spectre of the Eureka Stockade that haunted parts of the debate in the

Legislative Council during consideration of the power of police to demand production of

a licence.123 The solution, passed in committee, was not to remove the ‘licence on

demand’ provision, but amend the time period for production of a licence from 48 hours to seven days.124

This acceptance of the core elements of the regulatory regime can be seen in the

spectacular lack of support for the few suggestions that proposed to regulate motor

vehicles by different means. At several times, Prendergast proposed that, as an alternative

121 Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1307 (Donald MacKinnon). 122 Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, pp 1292–1293 (George Sangster). This aspect of the 1905 Bill prompted one letter of complaint by a motorist to the editor of The Argus: see ‘The Motor Bill’, The Argus (Melbourne), 4 August 1905, p 9. 123 Victorian Parliamentary Debates, Legislative Council, 20 July 1909, p 262 (Richard Rees). 124 Victorian Parliamentary Debates, Legislative Council, 4 August 1909, pp 565–566.

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to police-enforced speed limits, motor vehicles should be shod with solid rubber tyres, his idea being that it would be impossible for anyone to remain comfortable and in control of a vehicle travelling at over 20 mph on solid tyres.125 Notwithstanding the regularity of

Prendergast’s suggestion, it was not discussed or even mentioned by other members

(including any from the Labor Party).126 Another alternative was suggested by John Grey, who thought that motor vehicles, like ships, could be given legal personality and made liable for damage.127 However, like Prendergast’s solid tyres, this alternative was ignored, and the debate sailed on.

The extent to which the form of the regulation of motor vehicles appears predetermined can be seen in the remarkable 1905 speech of David Gaunson. Gaunson was the only voice that disputed the need for legislation, and with it licensing, regulation and policing. Instead, he championed the common law:

Because a man is rich is he to be permitted to drive as if he were going

headlong to the devil? Let him drive himself there if he likes … I strongly

protest against any legislation for the benefit of these gentlemen … If the

common law is applied to these offenders there is no necessity for this hare-

125 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1218 (George Prendergast, Leader of the Opposition); 20 September 1910, p 1232 (George Prendergast, Leader of the Opposition). 126 Prendergast was not alone in advising the government of mechanical approaches to regulating the motor vehicle. On 16 October 1908, Joe Millar of Armadale wrote to the Chief Secretary suggesting that the Bill should include three restrictions on motor vehicles: large wheels (to reduce rotational velocity and the amount of dust disturbed by the wheel); that bodies be hung on straight axles (giving the vehicle a high centre of gravity, reducing stability and speed of vehicles); and narrow tyre width (reducing the quantity of dust disturbed): Letter from Joe Millar to J.E. Mackey (Chief Secretary), 16 October 1908 (PROV, VPRS 3392/P0 Unit 1100 File D7335 letter re certain suggestions for a Motor Car Bill). 127 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1332 (John Grey).

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brained, helter-skelter, ridiculous legislation, in passing which we are going

at greater speed than the motorists do themselves.128

Gaunson was ignored. Nevertheless, his contribution throws into stark relief the fact that, for the Victorian legislators in the pioneering period, the issue of motor vehicles involved a surface debate reflecting the community’s anxieties. This debate did not, however, ground a more basic contest concerning how Victoria should respond to this emerging technology. Instead, the conclusion to be drawn from the parliamentary debates was that it was mostly assumed that motor vehicles required state regulation through licensing, registries and policing. This does not, in itself, explain the dissociation between the 1909 Act and the community’s concerns, but suggests that there were other factors influencing the Act. Two obvious political factors were the United Kingdom motor vehicle law as a template for the Victorian Act and the lobbying of the ACV.

United Kingdom Template

From 1905 onwards, it was made clear by the introducing ministers that the proposed

Bills were based on English experience, and further that the United Kingdom legislation was used as a template.129 Indeed, the parliamentary debates suggest a commonly held belief during the pioneering period that Victoria was a ‘British’ community, very much part of the Empire and inhabited by ‘liege subjects’.130 It is possible to argue that the

128 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, p 1271 (David Gaunson). 129 ‘This measure is based upon the experience that has been gained, not only in this and the sister States, but also in the Mother Country’: Victorian Parliamentary Debates, Legislative Assembly, 23 August 1905, p 1146 (Sir Samuel Gillo; Sir Alexander Peacock, Chief Secretary); Victorian Parliamentary Debates, Legislative Council, 20 July 1909, pp 256–257 (James Brown, Attorney- General and Solicitor-General). 130 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1212 (Alfred Outtrim); Victorian Parliamentary Debates, Legislative Assembly, 28 January 1914, p 3413 (William Watt).

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dissociation identified between the community’s anxieties and the permissive regulation of the Act was because the Bent and Murray governments slavishly followed the Imperial precedent, irrespective of local conditions.131 Reinforcing this argument was that the passage of the Motor Car Act 1903 (UK) was surrounded both in parliament and in the press by vocal objections to state-based regulation and the attendant surveillance and policing.132 However, the Motor Car Act 1909 (Vic) did not adopt the Imperial template, departing from it in critical respects: there was no speed limit; the registration of drivers and vehicles was centralised and not the responsibility of the local councils; and provision was made for drink-driving.133 There was strong evidence within the debates that the parliamentarians regarded Victoria not as an extension of England, but as a better

England.134 Rarely was the United Kingdom the ‘mother country’, but the more derisive

‘old country’, marked by crowding, archaic inefficiencies and wracked by class conflict.135 As such, Murray described the 1909 Bill as ‘better than the provision in the

English law’ because of the perceived efficient centralisation.136 For James Brown in the

Legislative Council, calls to decentralise the registration of vehicles and the licensing of drivers were misguided:

131 ‘I do not suppose that this measure will be very long in force. Probably before long we shall be engaged in imitating another English Act’: Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, pp 1269–1270 (Donald MacKinnon). 132 Plowden (1973), pp 30–45. 133 There was also the difference of the Victorian Act centralising prosecution, reflecting the differing institutional policing histories of Victoria and England: see Haldane (1995). 134 This observation resonates with MacIntyre’s finding on the perspective of Australian leaders during the late colonial and early federal period: see MacIntyre (1991). 135 Victorian Parliamentary Debates, Legislative Assembly, 23 August 1905, p 1147 (Sir Samuel Gillott, Chief Secretary); Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1307 (Donald MacKinnon); Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1330 (John Murray); Victorian Parliamentary Debates, Legislative Council, 20 July 1909, p 264 (William Evans). 136 Victorian Parliamentary Debates, Legislative Assembly, 14 September 1909, p 1085 (John Murray, Premier).

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It is not fair to compare this country with England, for the conditions were

quite different. In England there were millions of people, and the local bodies

or county councils who registered the cars had each more cars to deal with

than we had in the whole of Victoria.137

The formal relationship between Imperial law and Australian law, and the level of

local autonomy and innovation, is a contested point within Australian legal history

scholarship.138 While clearly the text of the final Act was based on a United Kingdom

template, it was not an uncritical adoption.139 This suggests that the Victorian legislature

was not beholden to Imperial precedent, but was prepared to depart from it when local

conditions or sentiment called for it.140 As such, the dissociation between the

community’s anxieties and the Act cannot be explained solely as reliance on the slavish

following of an imperial template that did not relate to local circumstances. The absence

of speed limits and the centralised, rather than localised, registries were not features of

the UK law. This suggests that local factors influenced the Act. The single obvious local influence was the lobbying by the ACV.

137 Victorian Parliamentary Debates, Legislative Council, 3 August 1909, p 511 (James Brown, Attorney-General and Solicitor-General). 138 Hunter (2003). See generally Castles (1982), pp 445–470; Castles and Harris (1987), pp 172–222; Kercher (1995), p 176. 139 Indeed, even in the wider community, the Imperial Act was subject to criticism. As early as 1903, Scientific Australian published an article that was critical of the speed limits of the Motor Car Act 1903 (UK): ‘Among the Auto-Mobilists’, Scientific Australian, 20 March 1904, p 55. 140 Castles suggests that, while commercial legislation tended to follow England, the Australian colonial and later state legislatures did innovate when it came to land regulation, mining and industrial relations: Castles (1982), pp 445–471. That said, Webb in 1892 reported that a significant portion of the legislation passed by the Victorian Parliament was a ‘transcription’ of provisions from Imperial statutes: Webb (1892), pp 79–107.

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Lobbying by the Automobile Club of Victoria

During the pioneering period, the ACV was a persistent influence on the Bent and

Murray governments’ deliberations that resulted in the Motor Car Act 1909 (Vic). It can be argued that the ACV’s lobbying was successful and that this explains the dissociation between the public anxiety surrounding motor vehicles and the motorist-friendly provisions of the Act, but it does not explain why the particular regimes of licensing, registries and policing were adopted.

The international literature concerning the first motor vehicle laws suggest that the newly formed automobile clubs were hostile to local, state or national attempts at regulation.141 This hostility did not mark the actions of the ACV;142 indeed, a resolution to oppose the 1905 Bill at the ACV’s annual general meeting was defeated.143 The ACV during the pioneer period did not act defensively to fend off attempts at regulation, but can be seen as energetically pursuing its foundational object of ‘securing rational legislation, and the formation of proper rules and regulations governing the use of motor- cars and motor-cycles in cities, towns, and country districts’.144

Between 1905 and 1909, the ACV sent repeated delegations to Premiers Bent and

Murray and the various Chief Secretaries, as well as sending circulars to all

141 Flink (1970); Plowden (1973), pp 29–36. In Australia, Knott has observed that the Automobile Club of Australia in New South Wales, if not outright hostile, did not actively lobby for regulation: see Knott (1994b), p 234. 142 ‘Motor Traffic – Meeting of Motorists’, The Argus (Melbourne), 10 January 1905, p 5; ‘Regulation of Motor Speed – Discussion at the Automobile Club’, The Age (Melbourne), 10 January 1905, p 4. 143 Automobile Club of Victoria, Minutes of Annual General Meeting (1905), p 35. 144 ‘The Automobile Club of Victoria – The Organisation Formed – An Enthusiastic Gathering’, Australian Cyclist and Motor-Car World, 17 December 1903, p 21.

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parliamentarians.145 The effect of this lobbying was significant. In 1908, Sir Alexander

Peacock concluded his recommendation of the Bill to the Legislative Assembly with:

I may mention that the Automobile Club have given me a great deal of

information and assistance in connexion with this Bill, and they have

circularised honourable members, intimating that if any honourable member

wishes to have a run to see how the motor cars are worked they will be glad

to afford every facility for the purpose …146

There is evidence that a similar run organised by the ACV in 1905 swayed at least one member to support the 1905 Bill.147 Indeed, throughout the debates the ACV is referred to not as a nefarious association drawn from the indulgent caste,148 but an important stakeholder whose opinion needed to be respected.149 At several stages, the

ACV was directly able to affect the final provisions. The ACV claimed that the removal in the Legislative Assembly of the fine revenue-sharing provisions was a victory for its

145 See generally the correspondence from the ACV in the Chief Secretary file for the Motor Act: Letters from Automobile Club of Victoria to J.E. Mackey (Chief Secretary) (PROV, VPRS 3992/P0 Unit 1143 File F9918); ACV, Minutes of General Committee of the Automobile Club of Victoria 1(1), 18 July 1905, p 42; 31 July 1905, p 45; ACV, Minutes of General Committee of the Automobile Club of Victoria 1(2), 7 August 1908, p 39; 11 September 1908, p 47; 1 July 1909, p 104; 4 November 1909, p 143; The Automobile Club of Victoria – An Historical Review (1908); The Automobile Club of Victoria (1909); The Automobile Club of Victoria – Motor Car Bill (1909). 146 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, p 1209 (Sir Alexander Peacock, Chief Secretary). Peacock was referring to the amended text of the proposed 1908 Bill that the ACV forwarded on 16 July 1908. Many of the recommendations suggested by the ACV are in the 1908 Bill: see Letter from E.L. Holmes to W.A. Callaway, 16 July 1908 (PROV, VPRS 3992/P0 Unit 1143 File F9918 letter re Automobile Club of Victoria suggested alteration to Bill). 147 Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1295 (James Boyd). 148 To paraphrase the words of John Murray prior to his elevation to the Premiership: Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1330. 149 See Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, pp 1294, 1304 (Sir Samuel Gillott, Chief Secretary); 23 July 1908, p 291 (Norman Bayles); Victorian Parliamentary Debates, Legislative Council, 4 August 1909, p 571 (William Brown); Victorian Parliamentary Debates, Legislative Assembly, 16 September 1909, p 1153 (George Prendergast, Leader of the Opposition); Victorian Parliamentary Debates, Legislative Council, 4 August 1909, p 557 (James Brown, Attorney-General and Solicitor-General).

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lobbying.150 It also was invited by Premier Murray to participate in the drafting of the

Regulations, and after several meetings with the Commissioner of Police it was reported

that ‘the main demands of the Club had been granted in the regulations which had just

been issued’.151 The ultimate evidence of the ACV lobbying was the coming into force of

the Act with no speed limit. From 1906 onwards, this objective had been the central

demand of the ACV.152 The ACV congratulated Murray for introducing the 1909 Bill

without speed limits, stating that this reflected the most modern thinking on motor

vehicle regulation,153 and the ACV’s magazine at the time, the Australian Motorist, commented that Labor’s attempt to reintroduce speed limits during the final Legislative

Assembly debates on the 1909 Bill ‘was so utterly absurd that it was promptly laughed out’.154

From this record of close and active involvement in the formation of the Act, it

could be said that the Motor Car Act 1909 (Vic) was motorist-friendly because the ACV

got the legislation it wanted.155 Indeed, H.W. Chenoweth, in the ACV’s Annual Report

1910–11, praised the Act: ‘The twelve months experience of our Victorian Motor Car Act

has proved that with proper and fair administration it is a capable and effective one.’156

This is not to suggest that the Act was entirely the product of the ACV. The ACV was

150 The Automobile Club of Victoria — Motor Car Bill (1909). 151 ACV, Minutes of General Committee of the Automobile Club of Victoria 1(2), 2 February 1910, p 168. 152 This policy objective was first declared in 1906 when a leading motorist was deputised by the ACV to attend the Municipal Conference and to ‘express the Club’s views that the Club is opposed to a Motor Bill and that it considered the law as it at present stands penalising for “driving to the common danger” is sufficiently explicit for the limit of speed’: ACV, Minutes of General Committee of the Automobile Club of Victoria 1(1), 28 September 1906, pp 100–101. 153 ACV, Interview with John Murray, Premier of Victoria (Melbourne, 7 July 1909) (PROV, VPRS 3992/P0 Unit 1143 File F9918 Notes of Minutes of Interview with Premier, 7 July 1909). 154 The Automobile Club of Victoria — Motor Car Bill (1909). 155 A similar conclusion was reached by Morton concerning the Motor Car Act 1904 (SA): Morton (1962), p 44. 156 ACV, Automobile Club of Victoria Annual Report 1910–1911 (1911), p 10.

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disappointed in two areas. First, it remained opposed to the general regulation-making

power in the Act and, while it was placated by involvement in the drafting of the

Regulations, it remained concerned that a ‘motor-phobic’ government could gazette repressive measures.157 Second, the ACV calls for ‘medical men’ to be exempt from the

Act did not make it into law.158 However, these are minor issues. Overall, the Act was for

the ACV, and enacted the ACV’s preferred vision of what a Motor Car Act should be like. Sir Samuel Gillott makes this plain as early as 1905:

With regard to certain suggestions which have been made by the automobile

clubs and others, I desire to say that there is no wish to pass an Act which will

be unduly harsh against persons who now use these machines, which, as I

said before have come to stay.159

The ACV’s influence explains the orientation of the Act as motorist-friendly.

However, this does not explain why the ACV’s lobbying was so effective. The Chief

Secretary’s file on the Act reads as a competition between the ACV and the Municipal

Association, each making submissions rebutting earlier proposals of the other.160 Indeed,

the ACV distinctly conceived its lobbying as a battle against the ‘anti-motorist’

157 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1333 (Norman Bayles). 158 ACV, Minutes of General Committee of the Automobile Club of Victoria 1(2), 10 July 1908, pp 29–30. In calling for special treatment of doctors, the ACV was joined by the British Medical Association (Victoria Branch): Letter from British Medical Association (Victorian Branch) to J.E. Mackey (Chief Secretary), 10 July 1908 (PROV, VPRS 3992/P0 Unit 1095 File D5791 letter re request that medical men be exempt from Motor Bill). 159 Victorian Parliamentary Debates, Legislative Assembly, 23 August 1905, p 1149 (Sir Samuel Gillott, Chief Secretary). 160 Letter from C. Teceadeu to A.O. Sache, 18 July 1908 (PROV, VPRS 3992/P0 Unit 1143 File F9918 letter re Municipal Association of Victoria suggested alteration to Bill); Letter from E.L. Holmes to J.E. Mackey (Chief Secretary), 24 November 1908 (PROV, VPRS 3992/P0 Unit 1143 File F9918 letter re Automotive Club of Victoria suggested alteration to Bill).

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Municipal Association.161 An initial explanation could be that, in bringing together the medical community, representatives of the emerging motor vehicle industry, the wealthy elite and Normal Bayles in the Legislative Assembly162 – with the combined tactics of letters, circulars, offers of rides in motor vehicles and having ‘quiet chats’ with the

Premier163 – the ACV just out-lobbied the less dynamic Municipal Association, which primarily relied on flooding the Chief Secretary with letters of complaint from the local councils. However, this does not explain the actual form of the Act. It just shifts the focus of inquiry from parliamentarians to the ACV. The same concern arises as to why the particular regimes of licensing, registries and policing in the Act were adopted. What was it that meant the provisions of the 1909 Act were sufficiently ‘rational’, to use the term from the ACV’s objectives?164

The key to a fuller explanation of why the Motor Car Act 1909 (Vic) regulated motor vehicles through licensing, registries and policing lies in the final words of the just-quoted closing statement of Sir Samuel Gillott, that motor vehicles ‘have come to stay’. There was a conception of the inevitability of a technological future compelling the legislators to Act.

161 The Municipal Association was described as ‘anti-motorist’: see The Automobile Club of Victoria (1908). 162 Priestly (1983), p 159. There were early concerns that the ACV, by involving both motorists and the motoring industry, might be too fractious an organisation to effectively lobby government. It seems from the ACV’s success that it managed to merge and adequately represent the various interests of its members: ‘Trade Influence and the Automobile Club’, Australian Cyclist and Motor-Car World, 28 January 1904, p 15. 163 ‘Having a quiet chat with the Premier’ was the description used in the ACV’s General Committee Minutes concerning the July 1909 interview with Murray: see ACV, Minutes of General Committee the Automobile Club of Victoria 1(2), 1 July 1909, p 110. 164 The idea of rational law was a common phrase used by the ACV. On the abandonment of the 1905 Bill, John Lang wrote in the Annual Report: ‘It is to be hoped that at no very distant date rational legislation will be introduced.’ Automobile Club of Victoria, Automobile Club of Victoria Annual Report 1905–1906 (1906), p 11.

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3. Progressive Modernism

This section draws upon the traces identified in section 2 to argue that the Motor Car Act

1909 (Vic) can best be understood as a manifestation of progressive modernism. The key elements of progressive modernism are identified and isolated through considering the late nineteenth century ‘scientific romances’ of H.G. Wells. In this, Wells is seen as articulating the mythform driving the Act. These elements are certainty of future, uncertainty about human well-being in this future, and a confidence about the capacity of rational human action in the present to shape that future. It will then be shown how progressive modernism was manifested in the fundamental desires to legislate for the future and to provide the most ‘modern’ law.

Future and Rationalism in H.G. Wells’ Scientific Romances

Herbert George Wells is universally acclaimed as major god in the science fiction pantheon.165 Long-lived (1866–1946) and prolific, Wells’ oeuvre can be divided into

three groups.166 The first are his late nineteenth century scientific romances, of which The

Time Machine (1895),167 The Island of Dr Moreau (1896),168 The Invisible Man

(1897),169 War of the Worlds (1898)170 and The First Men on the Moon (1901)171 are the

most well known and critically celebrated. The second are his ‘comic/mundane’ novels,

such as Love and Mr Lewisham (1900),172 Kipps (1905),173 Tono-Bungay (1909)174 and

165 Alkon (2002), pp 41–42; Roberts (2005), p 143; Kincaid (2003), p 417. 166 For a full survey and organisation of Wells’ fiction and non-fiction, see Mullen (1973). 167 Wells (1995). 168 Wells (1896). 169 Wells (1971). 170 Wells (1975). 171 Wells (1954). 172 Wells (1972). 173 Wells (1966).

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The History of Mr Polly (1910).175 The third group comprises his works of quasi-fiction

utopias concerned with mapping future, war, technology and political organisation, such

as Anticipations of the Reaction of Mechanical and Scientific Progress upon Human Life

and Thought (1902),176 A Modern Utopia (1905)177 and The Shape of Things to Come

(1933).178

Transmitted in the first group of late nineteenth century scientific romances are

the essential elements of progressive modernism that drove the Motor Car Act 1909

(Vic). However, this claimed use of these texts is not as straightforward as it might

appear. Wells’ scientific romances are on the romance side. Unlike Julies Verne, whose

plodding descriptions of nature and real science lent a technological prophetic sense to

his texts, Wells was much more speculative.179 Indeed, Wells himself claimed that his writing involved ‘[a]n ingenious use of scientific patter’,180 from which Darko Suvin

extracted: ‘The principle of a Wellsian structure of science fiction is mutation of scientific

into aesthetic cognition.’181 In other words, Wells’ romances do not provide a ‘blueprint’

for the future manifestations, and social impact, of mass motor vehicle transportation

nicely packaged for the Victorian legislators. Wells’ fiction on mechanised land transport

was limited to the 1903 short story, ‘Land Ironclads’, which prefigured World War I

174 Wells (1909). 175 Wells (1959). 176 Wells (1904). 177 Wells (1967). 178 Wells (1945). 179 Stableford (2003), p 24. This distinction between Wells and Verne was observed by Verne, who described Wells as a ‘purely imaginative writer’. See Compere (2000), p 42. 180 Wells (1980), pp 241–242. 181 Suvin (1979), pp 232–233, italics in original.

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tanks182 and belonged to the ‘Future War’ genre that was common in the United

Kingdom from the 1870s, abruptly ending in 1914.183

However, what Wells’ romances do provide for is thinking about the future. The

dominant and lasting image of The Time Machine is not the social commentary of class

with the dim-witted Eloi and subterranean Morlocks,184 but its Darwin via Thomas

Huxley vistas of evolution.185 The Time Traveller sees the ebb and flow of the material

world from the time machine as it travels into the future;186 he sees the decaying material

culture of eons of humanity in the Palace of Green Porcelain;187 and in the sublime

concluding images discussed in Chapter 3, he witnesses a dying planet and the crustacean of humans to come.188 Unlike Marx and the socialist tradition of the time,189 as well as

the Christological belief in a second coming,190 this was a future agnostic to the struggles,

hopes and dialectics of humanity: ‘The Time Machine confronts us with the shattering

implications of time’s inhuman duration.’191 It also confronted ‘British’ society from the

period of the Motor Car Act 1909 (Vic) with the implications for a secular and anti-

teleological future: the future will happen, there will be change, technology will change,

182 Wells (1903). 183 On the ‘Future War’ genre in the United Kingdom from 1870–1914, see Stableford (2003), pp 22– 23; Rieder (2008), pp 125–141. It can be seen that Wells’ 1902 quasi-fiction Anticipation does anticipate in quite some detail the mass use of private motor vehicles, the necessity for a national road network and the implications for allowing urban sprawl: see Wells (1904), pp 9–12. 184 Hillegas (1967), p 31; Huntington (1982), p 45. 185 Suvin (1979), p 223; Roberts (2005), pp 142–146; Hillegas (1961). 186 Wells (1995), p 17. 187 Wells (1995), p 59. 188 Wells (1995), pp 72–76. 189 On Wells’ engagement with Marxism and alternative future utopian thinking, see Parrinder (1973), pp 18–19; Crossley (1982), p 29. 190 McConnell (1981), p 72. 191 Alkon (2002), p 50; see also Laker (1979), p 78.

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society will change, the very being currently called human will change, but there is no

meaning, and no transcendence, beyond the material fact of change.192

This reading of The Time Machine, with time as the ultimate manifestation of

Social Darwinism’s cruel and indifferent nature, has nihilistic tendencies.193 This can also

be seen in The War of the Worlds. Emerging from the ‘Future War’ genre,194 and with its

direct referencing of the cataclysm of colonialism for the ‘Tasmanians’ in the opening

chapter,195 critics readily see it as manifesting anxieties concerning the civilising project

behind colonialism.196 Rightly described as ‘apocalyptic’,197 The War of the Worlds

presents a orgy of destruction: the heat-ray victims ‘charred and distorted beyond recognition’,198 the military vanquished, the civilised countryside burnt and then

smothered by the alien red weed, and the terrified English reduced to being refugees and

a food source for the vampiric Martians. The resolution, in the bacterial victory, offers little solace. The Martians are defeated, ‘after all man’s devices had failed’,199 by chance.

Such a sense of hopelessness can also be seen in The Island of Doctor Moreau, which opens with a cannibalistic pact,200 continues with the pathetic servitude of the Beast-Men

to Moreau and his ‘House of Pain’,201 and concludes with the ultimate failure of

Moreau’s interventions on to the ‘stubborn beast flesh’.202

192 Rose (1981), p 129. 193 McConnell (1981), p 61. 194 Alkon (2002), p 48. 195 Wells (1975), p 11. 196 Paudyal (2009), p 102; Rose (1981), p 132; Rieder (2005), p 380. 197 Malia (2009), p 96. 198 Wells (1975), p 32. 199 Wells (1975), p 179. 200 Wells (1896), pp 10–11. 201 Wells (1896), pp 76–112. 202 Wells (1896), p 164. On this reading of The Island of Doctor Moreau, see Philmus (1981).

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Further, it is tempting to see in Wells’ romances, as Mark Hillegas did, the origins

of a dystopian account of technology.203 Absent from them are the technological fetishes

of both Verne204 and also the ‘Future War’ genre. In The Time Machine, the workings of

time machine are not described; indeed, its physical presence seems domestic.205 The future machines in the Palace of Green Porcelain are mysterious objects, broken and meaningless.206 In The War of the Worlds, human technology is ineffective against the

heat-ray and fighting machines, and the Martians’ prosthetic technology does not save

them from microbial attack.207 Moreau, as template for fictive mad scientists in the century to come,208 is doubly destroyed. He is physically slaughtered by the Beast-

Men209 and his legacy is destroyed when the Beast-Men revert. In this, Wells seems to be

suggesting that technology fails. At this level, Wells’ scientific romances seem to offer

little hope in their vistas of empty futures, inhuman nature, technical incompetence and precarious civilisation. However, to paraphrase Mark Rose, Wells’ stories do suggest how to fill the void.210

Wells’ success came from his texts giving ‘the impression of hard science, by

employing the language of scientific discourse’.211 His narratives seemed ‘plausible’.212

Wells did not write of worlds and times sealed off from his own, but in his ‘mutation of scientific into aesthetic cognition’213 his stories were connected to his present. In the

203 Hillegas (1967), p 34; see also Manlove (1993), p 230. 204 Hillegas (1975), p 396. 205 Wells (1995), p 10. 206 Alkon (2002), 53. 207 Rieder (2005), pp 381–382. 208 McConnell (1981), p 93. 209 Wells (1896), p 140. 210 Rose (1981). 211 Abrash (2004), p 126. 212 Abrash (2004), p 126. 213 Suvin (1979), pp 232–233, italics in original.

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scientific romances, the link with the present was the narrators.214 All written in the first person – the unnamed Time Traveller from The Time Machine, the unnamed scientific journalist in The War of the Worlds and Edward Prendick in The Island of Doctor

Moreau – each presents the text as the journal of a rational observer. What is important is that the rational observer survives. Here, Wells presents the being that can survive this empty future: the rational-humanist. This is what fills the void.215

Wells’ romances encode the commitments of the rational-humanist at several levels. At an obvious level, there is the ‘scientific’ descriptions of events, landscapes and even self of the narrators; there is ‘no substitute for rationalism as a method’.216 Wells does not dispense with reason. Indeed, according to Istvan Csicsery-Ronay:

In H.G. Wells’ The War of the Worlds … antagonistic technological regimes

compete for dominance. Whatever their differences may be, however great

the gulfs between them, they operate in the same social-ontological

continuum, the most salient quality of which is the ability of sentient beings

to construct technological cultures to manipulate and extend their power over

the world.217

What does seem to be rejected by Wells is too much faith in ‘technological culture’. In

The War of the Worlds, the technological civilisation of the Martians fails at the moment of triumph; and the human equivalent, the artilleryman with his ‘not novels and poetry swipes, but ideas, science books’218 and dreams of a technological triumphant humanity,

214 Pagetti (1980), p 125. 215 McConnell (1981), pp 62–63. 216 Parrinder (1973), p 21. 217 Csicsery-Ronay (2003), p 241. 218 Wells (1975), p 168.

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is delusional and comic.219 Moreau, who rejects Prendick’s ethical objections, and can

offer no justification for why he chose the human form as the goal of his

manipulations,220 dies an animal death, torn apart by his creations.

Balanced against the excessive commitment to technology by the Martians,

the artilleryman and Moreau is the detached humanism of the narrators. They are

not blind to the suffering around them, even if their engagement in the narrative they relate is clumsy. The Time Traveller is not indifferent to the Weena, the Eloi or the Morlocks;221 the recorder of The War of the Worlds is not indifferent to the

human suffering that he documents, and does not gloat over the pitiful cries of the

dying Martians;222 Prendick is not indifferent to the Beast-Men and their economy of pain. There is, as Richard Tuerk identifies, an upper middle class sensibility and paternalism to Wells’ romances.223 This is not a rejection of rationalism but its

sublimation: the Traveller, armed with devices to measure and record the future,

sets off once more.224 Rationalism goes hand in hand with a civilising will. John

Huntington conceives Wells in the scientific romances as postulating the challenge

of ‘ethics’, for humans to be reflective in their dealings with each other and the

cosmos.225 In the conclusion of The Island of Doctor Moreau, Prendick describes

his life after the Island. In what could be read as post-traumatic shock, he cannot

shake the images of beasts projected on to the empty faces of urban humanity.226

He finds peace in the rational explorations of chemistry and astronomy, and in the

219 Paudyal (2009), p 111. 220 Wells (1896), p 69. 221 Huntington (1982), p 51. 222 Wells (1995), pp 179–180. 223 Tuerk (2005), pp 520–521. 224 Wells (1995), p 80. 225 Huntington (1982), p 84. 226 Wells (1896), p 175.

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‘glittering hosts of heaven. There it must be, I think, in the vast and eternal laws of

matter, and not in the daily cares and sins and troubles of men, that whatever is

more than animal within us must find its solace and its hope.’227 This conclusion bundles Wells’ challenge to modern ‘man’: to accept nature, future and technology, but to do so through the ‘whatever is more than animal within us’.228

In Wells’ quasi-fiction, this call becomes the call for a ‘modern utopia’, a rational

and humanist civilisation where:

… social order can be upheld in a utopia guaranteeing individual liberty,

freedom of movement, freedom of expression, privacy, freedom from

drudgery, and control of personal property … The framework of centralized

controls include a money economy, an advanced technology, a humane penal

system, regulated marriage, population planning, sanitation, heath-care, state

supported child-care, central data storage, institutionalized wage-

bargaining.229

However, again and again in his speculation, this modernity can only be guaranteed by a

small ruling elite of the technologically competent, the technical successors to Plato’s

philosopher kings.230 This political embodiment of the Time Traveller, the

journalist/survivor from the Martian invasion and Edward Prendick – of human-

rationalists in their technical manipulations, filling the void and allowing the rest of

humanity to live useful and happy animal lives – clearly carries proto-fascist elements.231

227 Wells (1896), p 176. 228 Philmus (1981), p 9. 229 Parrinder (1985), p 119. 230 Parrinder (1985), p 119. See Wells (1904), pp 107–122, Wells (1967), pp 258–317; Wells (1945), pp 269–304. 231 Roberts (2005), p 152.

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How Wells’ fusion of rationalism and humanism could be seen as pre-empting a darker

set of connections that was soon to set Europe ablaze is not the primary objective.

Instead, what Wells’ romances articulate are a set of quite sophisticated cultural commitments towards technology and future that were part of the intellectual milieu of late Victorian and Edwardian British society. And significantly, these can be seen as the engine of the Motor Car Act 1909 (Vic).

Wells’ romances connect the present with the future. Actions in the present – the class divisions of Victorian England – give rise to the evolutionary division of humanity

into two distinct species in the year 802,701, thus determining the future.232 Importantly,

this future that will evolve from the present is agnostic to humanity; there can be no

guarantees of civilisation enduring, no teleological unfolding towards the good. This

places responsibility on to the present: a preferred human future can only be achieved

through rational activity in the present to mould and guide. However, this is not a

complete giving over to technology, to pure manipulation whatever the consequences as

manifested by the Martians or Moreau. Reason is the tool, not the end. The end, for Wells

lies in what is ‘not animal’; rather, it is the human potential to care for other members of

the species that grounds liberal desires for peace, ‘good’ government, private (if not

political) rights and the modern welfare state. While Wells’ precise political prescription

was contested,233 what he articulated was a fundamental cultural position of ‘progressive

modernism’ that melded future and reason together. The first was the inevitability of

future connected to present. The second was the need to rationally act in the present, to

secure a desirable future. Identification of this cultural foundation explains what has

232 Alkon (1996), p 146. 233 On Wells’ relationship with socialism, Fabians and social liberalism, see Mead Earle (1950), pp 183–186.

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hitherto been enigmatic: the Motor Car Act 1909 (Vic). The inevitability of future that

needs to be won in the present explains the desire of the Victorian elite (both the

parliamentarians and the ACV) for an Act to regulate motor vehicles. Further, reason

deployed responsibly explains the material manifestation of the Act that regulated motor

vehicles through centralised licences and registries.

Legislating for the Future

The parliamentary debates concerning motor vehicles during the pioneering period had a

particular sense of occasion. The members spoke and legislated with a shared awareness

that they were passing law for a radically different future than their horse-drawn and

bicycle era.234 The slogan of this awareness was the oft-repeated phrase that motor

vehicles ‘have come to stay.’235

This was a direct manifestation of the first commitment of progressive modernism

– the seeing in the present the traces of the future. The parliamentary debates were not

focused on the immediate regulation of the small number of motor vehicles in Victoria

during the pioneer period, but were directed to an anticipated future where motor vehicles would become more affordable and widely used: ‘that the car that was owned by the rich man to-day might be owned by the business man to-morrow’;236 and ‘As the patents run

234 On the recognition that experience with horses meant little when it came to dealing with motor vehicles: see Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1295 (James Boyd). 235 Victorian Parliamentary Debates, Legislative Assembly, 23 August 1905, p 1146 (Sir Samuel Gillott, Chief Secretary); Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, p 1269 (Donald MacKinnon); 5 September, 1905, p 1347 (William Watt); 14 October 1908, p 1210 (Sir Henry Weedon); 14 October 1908, p 1218 (George Prendergast, Leader of the Opposition). 236 Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1294 (James Boyd).

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out the cars will come within the reach of the man with moderate means, and we shall

find twenty cars in use for every one that is in use at the present time.’237

Further, this future of mass automobile transportation glimpsed in the present was

seen by the parliamentarians as desirable. While the immediate rhetoric of many

members was anti-motoring, there was also recognition that the motor vehicle promised a

better society of more rapid and reliable transportation: ‘While we all admit their

convenience, it must be admitted that the traffic wants regulating.’238 In 1905, several

members favourably compared the motor vehicle to horses.239 Also in 1905, the

government itself acquired its first motor; Bent justified the decision on the basis that the

vehicle’s speed would assist in good government through allowing ministers to rapidly

tour the state.240 It is significant to realise that complaints about motor vehicles in the

parliamentary debates were generally complaints about badly behaved drivers, as John

Murray makes clear in the Second Reading of the 1909 Bill:

It makes one indignant to see the careless way in which a car is occasionally

driven, but I know that the great body of the motor car owners have no

sympathy with those who drive in such a way as to endanger other people.241

237 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1332 (John Thomson). 238 Victorian Parliamentary Debates, Legislative Assembly, 14 October, 1908, p 1210 (Sir Henry Weedon). 239 See, for example, Victorian Parliamentary Debates, Legislative Assembly, 31 August 1905, p 1296. 240 Priestly (1983), p 8. Throughout the pioneer period, the government car fleet increased. In 1906, the Education Department acquired a motor vehicle: Victorian Parliamentary Debates, Legislative Assembly, 12 July 1906, p 279 (William Colechin). In 1909, an allocation was set aside in the budget for the building of a dedicated government garage: Victorian Parliamentary Debates, Legislative Council, 27 July 1909, p 392. By late 1909, Prendergast was accusing government ministers of reckless driving in a trip made in a government car from Ballarat to Melbourne at a reported 40 mph average: Victorian Parliamentary Debates, Legislative Assembly, 3 December 1909, p 2740 (George Prendergast, Leader of the Opposition). 241 Victorian Parliamentary Debates, Legislative Assembly, 14 September 1909, p 1086 (John Murray, Premier).

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Very few members adopted the Luddite position of cursing the ‘motor car … [as] a fiend which … should be hung, drawn, and quartered’.242 Instead, it was the ‘road hogs’ – the

minority of inconsiderate, speeding, accident-causing, bad drivers – who were

demonised.243 That the properly used motor vehicle was considered a positive addition to

society, and expected to become common and widespread, which goes some of the way towards explaining the ‘anaemic’ nature of the debate244 – after all, it promised a better

future. These connections can be seen in John Murray’s ridiculing of Norman Bayles:

When with the cheapening of the costs of construction every poor person can

drive a motor car it will, of course, become unpopular with very rich people.

Then, instead of driving in a motor car we will find the honourable member

for Toorak not bothering our roads, but if he does threaten the lives of his

fellow subjects he and his friends will do so flying on an aeroplane.245

In their enthusiasm for the potential of motor vehicles to provide for a better future, the

parliamentarians were articulating, to a point, a cultural enthusiasm for ‘progress’

through technology.

During the pioneering period of motoring, the potential of the motor vehicle was

popularly espoused. Banjo Paterson gave voice to the cultural anticipation of the motor

vehicle in his enthusiastic reporting of the 1905 Dunlop Sydney-to-Melbourne reliability

run:

We outpace, we outlast, we outstrip.

242 Norman Bayles’ description of the position of Robert Stanley: Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1327 (Norman Bayles). 243 See Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, p 1268 (Donald MacKinnon); 14 October 1908, p 1215 (Norman Bayles). 244 The linking of motor vehicles with progress was an opinion that was widely canvassed in ‘progressive’ magazines of the period, such as Scientific Australian. See, for example, ‘Among the Auto-Mobilists’, Scientific Australian, 20 March 1904, p 55. 245 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1331 (John Murray).

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Not the fast-fleeing hare, Nor the racehorses under the whip, Nor the birds of the air Can compete with our swiftness sublime, Our ease and our grace; We annihilate chickens, and time, And policemen and space.246

Just after the tentative travels of the first motor vehicles in 1897, The Age anticipated:

The near approach of a time when the world is to be full of horseless

carriages … They will run on pneumatic tyres, without jolting, bumping or

bolting, putting forth a giant’s power at the turning of a screw, and resuming

the tractability of a babe at the pressure of a child’s finger. It cannot be

otherwise than that machines of this character will be in vast demand.247

A reflection of the belief that the motor vehicle represented the future can be seen in the responses of the horse and bicycle industries to the emergence of motorised transport.

While the popular history literature suggested that these groups opposed the motor vehicle, the opposite seems evident from the trade journals of the period. Instead of

246 Andrew Barton Paterson, ‘Overland to Melbourne on an Automobile – The History of the Haste- Wagons No 1’ in Corp (1992), p 39. Paterson was so taken with the prospects of the motor car that in 1913 he published a humorous short story, ‘Three Elephant Power’, capturing the speed and male competition of the new machines: Paterson (1917). The reliability trial was also covered extensively by the Victorian papers: ‘Motoring – Dunlop Reliability Race’, The Argus (Melbourne), 22 February 1905, p 5; ‘Motoring – Reliability Road Race’, The Argus (Melbourne), 24 February 1905, p 6; ‘Motoring – Dunlop Reliability Test – An Inconclusive Finish – Deciding Test to Be Made’, The Argus (Melbourne), 27 February 1905, p 7; ‘Motoring – Dunlop Reliability Contest – Deciding Test’, The Argus (Melbourne), 1 March 1905, p 9. 247 ‘Editorial’, The Age (Melbourne), 12 January 1897, p 4. The editorial followed two earlier articles in The Age that heralded the motor vehicle: ‘Cycles and Motors – A New Industry for Melbourne’, The Age (Melbourne), 8 January 1897, p 5; ‘The Future of the Horse’, The Age (Melbourne), 9 January 1897, p 4.

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defensively protecting the older transportation technologies, the motor vehicle was

quickly adopted, as demonstrated by the inclusion of motor vehicles in journal titles.248

This progress through technology explains not only the lack of debate concerning how to regulate motor vehicles, but more significantly the motorist-friendly orientation of the Motor Car Act 1909 (Vic), because it was a common assumption that motor vehicles were the harbinger of a better future. Indeed, while the link between motor vehicles and progress was implicit in much of the ACV correspondence for the period, there did not seem to be the requirement to make it explicit. Arthur Sachse does give voice to the place of motor vehicles within the belief in technology and progress:

the motor car was a vehicle that had come to stay with us, and one that would

be of great future benefit. It was no doubt of great utility, and anything which

promoted the scientific development of mechanical power should meet with

the approval of the House … [the] motor car had become a necessity of

modern life; and, therefore, an institution which must facilitate the progress

of the country.249

Regarding technology as the potential for progress was a key element of progressive

modernism. Wells’ utopian texts chart a happy, peaceful, prosperous technological humanity. It explains the success of the ACV’s lobbying – it voiced the possibility of progress through technology, a voice that found willing ears in progressive modernism.

However, a critical dimension in how motor vehicles were conceived during the pioneering period of motoring reveals more fully the commitment of progressive modernism. This is what the archive of the period amounts to: calls for law and the

248 Australian Cyclist added ‘and Motor-Car World’ to its title in 1901: see Australian Cyclist and Motor-Car World, 21 March 1901. 249 Victorian Parliamentary Debates, Legislative Council, 20 July 1909, p 259 (Arthur Sachse).

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making of law. It discloses a culture that was not technologically naïve. The stuttering

‘Thomson Steamer’ or the patchy reliability of the Model T Ford were not to be left to

their own devices to evolve into the anticipated mechanised future, nor were conservative

elements that voiced their prejudices in newspapers and got elected to the local councils

that made up the Municipal Association to be allowed to tarnish the promises of speed

and chrome. Jennifer Malia has read The War of the Worlds as a critique of the hysteria

and sensationalism of the dangerously ‘democratic’ mass-circulation newspapers, and a

message for the rational to be sceptical of the media’s agendas.250 For the elite in

parliament and the ACV, the motor vehicles of the day promised a desirable future, but

that future was not guaranteed. Rational action in the present, in the form of the making of a facilitative law, was required. They were legislating for the future.

However, what remains unaccounted for is why the Motor Car Act 1909 (Vic)

imposed centralised schemes of licensing, registries and policing. In the words of

Madden CJ, why was the first motor vehicle law a ‘police Act’?251 Again, progressive

modernism explains the specific regimes brought into effect by the Act.

Rational Law

The Motor Car Act 1909 (Vic) instigated a regulatory scheme of licensing and policing to

regulate the future. As has been discussed, there was little active debate on whether state-

centred regulation through bureaucratic registries and policing was the appropriate mode

for this future governance. The degree to which the Act was the product of a common

250 Malia (2009), p 96. 251 Parkin v Whithers [1913] VLR 533 at 537: ‘That Act requires the registration of motor-cars, and the payment of fees for the purpose of revenue and also ensures that drivers of motor-cars are competent persons, motor cars being highly dangerous to the public except when driven by reasonably careful and capable drivers. It also provides for the numbering of motor-cars; a ready means by which they can be identified. It is what I may call a police Act.’

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conception about how the desirable technological motorised future should be secured was highlighted by Gaunson’s opposition to the 1905 Bill. In response to the Bill’s regulatory scheme, Gaunson celebrated the common law’s adjudicative mode of governing:252

I am altogether against this sort of legislation, for the common law will put

these fellows in Pentridge [dangerous motorists in the notorious Melbourne

prison] … In fact some of them will be hanged yet. If a fellow drives at such

a reckless pace as to kill an unoffending child, he deserves to be punished for

murder as much as the man who shoots at random in the street, not caring a

tinker’s curse whether he kills or not … Leave the good old common law to

deal with these gentlemen. Let them be sent up for trial before a jury of their

country, and then they will find it is no joke.253

At the same time, he degraded posited norms and regulative regimes established by legislation: ‘I am satisfied to rest with my feet firmly planted upon the common law, not upon your frisky, risky, befrilled, and rubbishy Acts of Parliament, which are absurd in their operation and cannot do a bit more than the old common law did in the first place.’254

Gaunson was a lone voice in the parliamentary debates in criticising the Bills as providing for bureaucratic regulation of motor vehicles. Indeed, Gaunson’s faith in the courts and the common law was in contrast to that of the rest of the legislature. During the pioneer period, the prevailing attitude when it came to motor vehicles was of ‘court

252 On the common law as a mode of governing, see Murphy (1991). 253 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, pp 1270–1271 (David Gaunson). 254 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, p 1271 (David Gaunson).

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bashing’. The courts were routinely attacked for failing to convict motorists.255 The

Victorian Supreme Court decision in Gillin v Malmgren256 was subject to strong

criticism. That decision interpreted the term ‘vehicle’ in the Regulations Under the Motor

Car Act 1909 (Vic) to include trams, ruling it permissible for motorists to overtake a

stationary tram on the right.257 In parliament, the decision was attacked because it

contradicted local council by-laws that specified the overtaking of stationary trams on the

left,258 and more importantly it endangered the lives of tram passengers by allowing motorists to pass trams on the wrong side of the road, catching alighting passengers unaware.259

Hugh Collins has famously described Australia as a ‘Benthamite society’.260 In

ignoring Gaunson’s call to leave it to the common law, and in the attacks on the judiciary,

the echo of Bentham’s rejection of adjudicative governance by lawyers, and the

endorsement of legislation, regulation and policing by the executive, can be heard.261

There is debate over whether Collins’ ascribing of ‘Benthamism’ to Australia is an adequate description of the ambit of political philosophy during federation and before

World War I.262 Nevertheless, common to Collins’ account of ‘Benthamism’, as well as

alternative accounts that emphasise T.H. Green’s social liberal ‘evolution’ of

255 Victorian Parliamentary Debates, Legislative Assembly, 30 August 1905, p 1268 (Donald MacKinnon); Victorian Parliamentary Debates, Legislative Assembly, 20 September 1910, p 1231 (John Murray, Premier); 28 January 1914, pp 3417–3418 (John Murray, Chief Secretary). 256 Gillin v Malmgren [1912] VLR 26. 257 Gillin v Malmgren [1912] VLR 26 (a’Beckett J); Regulations under the Motor Car Act 1909 (Vic) r 2(3). For precedent the court relied on the English case of Burton v Nicholson [1909] 1 KB 397 at 403 (Lord Alverstone CJ), 404 (Bingham J) and 404 (Walton J): Gillin v Malmgren [1912] VLR 26 at 29. 258 Victorian Parliamentary Debates, Legislative Council, 6 August 1912, p 562 (James Brown, Attorney-General and Solicitor-General). 259 Victorian Parliamentary Debates, Legislative Assembly, 28 January 1914, pp 3412–3419. 260 Collins (1985). 261 Hart (1983), p 21. 262 Maddox (2000), p 207.

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utilitarianism, were a confidence and faith in legislation and the regulation of society through executive action.263 This period provides some of the more celebrated and notorious examples in Australia of legislators not leaving it to the common law, and instead enacting regulatory schemes.264 The conciliation and arbitration schemes that emerged contemporaneously with the pioneer period of motoring are celebrated examples of legislation providing for a rational scheme of centralised decision-making for the wider social good.265 The Aboriginal Protector legislation from the same period provides a more notorious example of this same impulse for law-making for governance.266

In short, it can be seen that, during the pioneering period of motoring, the regulatory legislation establishing and authorising a centralised scheme of decision- making to achieve a desired end – industrial harmony or ‘protection’ of Indigenous people – was increasingly common.267 Indeed, it was a sign of progress itself that ever- increasing aspects of social life were not left to the archaic common law with its divisive laissez faire tendencies, but were properly regulated by the state for the wider social

263 Melleuish (1995), p 20; Sawer (2003), pp 32–36. 264 See generally, Finn (1987). 265 See, for example, Rowse (1978), p 30; Sawer (2003), pp 50–67. 266 Berns (2002). 267 The Victorian Parliament passed 56 Acts in 1909. Out of this total, ten Acts related to the budget and taxation, eleven were minor amendments of existing Acts, three were private Acts concerning the legal rights of individuals and one restricted words that could be used in company names (Companies Names Act 1909 (Vic)). The bulk of legislation (23 Acts) concerned land. Most of this related to directing or providing for local councils, boards or trusts to deal with specific land in certain ways (see, for example, Caulfield Land Act 1909 (Vic)), or was an enabling Act to facilitate the construction of public infrastructure (see, for example, Eltham to Hurst’s Bridge Railway Construction Act 1909 (Vic)). Only a few of these land Acts modified existing land law (see, for example, Landlord and Tenant Act 1909 (Vic)). Therefore, most of the Acts passed in 1909 involved small piecemeal changes to existing statutory or common law, were Acts directed to specific people or specific parcels of land, or facilitated state-sponsored development. Significantly, seven Acts (including the Motor Car Act 1909 (Vic)) were framework Acts that established a bureaucratic decision-making regime to regulate diverse areas of social and economic activity such as sheep dipping (Sheep Dipping Act 1909 (Vic)), access to water (Water Act 1909 (Vic)), coal mines (Coal Mines Regulation Act 1909 (Vic)) and traffic on the Yarra River (Upper Yarra Traffic Act 1909 (Vic)).

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good.268 In this light, the specific regimes of licensing, prescribed norms and policing in the Motor Car Act 1909 (Vic) are explained. As with not prohibiting motor vehicles, it just went without saying (except by Gaunson) that the motor vehicle must be regulated through state agencies keeping registries, licensing, and achieving compliance through surveillance and policing.269 Indeed, for the ACV, the progressive character of the Act as a regulatory scheme was what satisfied the foundational demand for ‘rational

legislation’.270

This characterising of a law that establishes licences and registries, a law that

gives mechanisms for the direct regulation of the social by the executive, is the law

anticipated by progressive modernism. Social evolution cannot be left to itself; values

need to be enshrined and nurtured through rational action.

This was how the community’s anxieties and calls for law fed into the regulatory

scheme of the Motor Car Act 1909 (Vic); it was an expression of the progressive modernist belief that executive regulation was the most rational, and therefore obvious,

way to govern this new technology. Evidence for this can be found in the regular praise

in parliament after 1910 for the police’s administration of the Act,271 in contrast to the

criticisms that have been noted concerning the judiciary. It is also found in the minor

controversies that surrounded the passage of the Act. Both the Legislative Council’s

attempts to decentralise revenue to the local councils, and the ACV’s objections to the

268 See Melleuish (1995), pp 40–42; Sawer (2003), pp 9–14. 269 Gaunson kept suggesting to the House to at least think more deeply about the regulation of motor vehicles: ‘[H]ow absurd it was to bring a Bill of this kind before a half-tired, a half-informed Assembly, when it should be put before a Select Committee for careful investigation.’ Victorian Parliamentary Debates, Legislative Assembly, 31 August 1910, p 1299 (David Gaunson). 270 ACV, Interview with John Murray, Premier of Victoria (Melbourne, 7 July 1909) (PROV, VPRS 3992/P0 Unit 1143 File F9918 Notes of Minutes of Interview with Premier, 7 July 1909). 271 See, for example, Victorian Parliamentary Debates, Legislative Assembly, 28 January 1914, p 3417 (John Murray).

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wide power to make delegated legislation, anticipated two criticisms that were later to

emerge concerning the regulative state: centralisation of power in the executive at the

expense of regional autonomy; and the problem of parliamentary supervision of

delegated law-making. However, in the Legislative Assembly, these objections were

brushed aside. Centralisation, and with it uniformity and efficiency through larger resources, was celebrated as a virtue of the regime.272 In a statement resonant with

Diceyian confidence in the cultural restraints on ‘English’ decision-makers, Premier

Murray assured:

It is reasonable to presume that the Act will be administered with some

intelligence, and that no oppressive regulations will be made … I have no fear

that the power to make the regulations will be used in a tyrannical manner,

but if it is, the House will be quite ready to bring the Ministry to task.273

Thus the Motor Car Act 1909 (Vic) established a regulative regime of registries, licensing and policing administered by the centralised police force. This was not because of the community’s anxieties regarding motor vehicles, but rather manifested a pervasive cultural sub-stratum common to the Victorian legislature and also the pioneering motorists of the ACV of progressive modernism. This meant that the call for law within the community was channelled into legislating for a desirable technological future through rational law, which facilitated executive regulation through licensing and registries. The implications for technical legality of this arranging of technology, future

272 Victorian Parliamentary Debates, Legislative Assembly, 14 October 1908, pp 1208–1209 (Sir Alexander Peacock, Chief Secretary); Victorian Parliamentary Debates, Legislative Assembly, 16 September 1909, p 1156 (George Prendergast, Leader of the Opposition). 273 Victorian Parliamentary Debates, Legislative Assembly, 21 October 1908, p 1333 (John Murray, Premier).

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and law should now be clear. The law produced as the offspring of the motor vehicle and progressive modernism was technical law.

Law as Technology (Reprise)

In Chapter 4, it was suggested, through considering Schmitt, that regulatory law, with the

provision for regimes through which experts can manage the social, invoked a

technological aura in the primacy of procedure over substance. This was exactly what

was provided for in the centralised registries, licensing, policing and delegated law-

making of the rational Motor Car Act 1909 (Vic). Outside of the speed and the drink-

driving provisions, the Act did not provide for many substantive values that could be

enforced in a court. Much of the content for the Act – qualification of drivers, safety and

construction of motor vehicles, types and styles of licence plates – was to be filled in by

the executive through regulation. The Act provided a framework through which

bureaucratic organisation could regulate motor vehicles and motorists.

Therefore, the Motor Car Act 1909 (Vic) was technical law that dealt with the emerging motor vehicle according to the conception at the time that good government involved centralised executive regulation. At times, the technical nature of the Act was made explicit in the parliamentary debates. Arthur Sachse warned the Legislative

Assembly: ‘But the House would have to be perfectly fair, and not produce a sort of

Frankenstein’s monster that would suppress motor traffic altogether, nor should they place arbitrary power in the hands of officials.’274

Sachse’s citing of Frankenstein’s monster was not used as might be expected,

especially after considering the monster’s fate as discussed in Chapter 1 to become the

274 Victoria, Parliamentary Debates, Legislative Council, 20 July 1909, 259 (Arthur Sachse).

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cultural embodiment of technology. He deployed it to characterise the scheme anticipated by the Bill. Sachse exposed the contradiction within progressive modernism that the twinning together of rationalism and responsibility is not as simple as Wells’ romances suggest. In rationalism, values and ‘ends’ can be lost, treated as contestable and subjective, leaving the procedure as the only thing that is hard and enduring.

With Sachse’s comments, the monster that has been stalking technical legality so far through this thesis comes out of the shadows and into the light. That form of law championed by the law and technology enterprise is the same form as was passed by the

Commonwealth parliament in response to cloning, and the same as was enacted by the

Victorian parliament in 1909: law as technology. The monster is a trickster and the

Frankenstein myth is ironic. Having bathed two cultural moments where law responded to technology in their mythforms, the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car Act 1909 (Vic) emerge, in the final wash, as technology.

There is circularity at play. The fear of a certain technological future in 1997–

2002 and the desire for a certain technological future in 1905–1909 both ended in affirmation of law as technology. The monster appears to be truly monstrous; it possesses a dimorphic being.275 As material technology – in the form of the clone or the motor vehicle – the monster plays the ascribed Frankenstein role of the Other outside of the human, threatening and promising, provoking law as humanity’s response. However, this human response of law can be seen as technological. In this, the monster is brought inside, a tool to confidently be used for human ends. At this point, the Frankenstein myth, with its positing of humans and technology, spirals to infinity: there is a continual transgression of what is out to what is in. It has gone supernova, leaving the nothing that

275 Jay (1999).

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is something, a black hole. However, this singularity possesses a residual oscillating on

the event horizon: What does it mean that in modernity law is technology?

Of course, black holes are an established science fiction trope,276 popularised by

Fredrick Pohl’s Gateway (1977)277 and Disney’s dreadful The Black Hole (1979).278

However, the residual at the event horizon of the implosion of the Frankenstein myth cannot be answered through science fiction’s epistemological register. Using science fiction as the mythform to make sense of specific historical moments where there was a coming together of law and technology exposes the monster; it organises the archives in such a way that the technical in the legal engagement with technology might be revealed.

However, different methods are needed if the black hole that was the Frankenstein myth is to be thought. It is at this point that the journey that is this thesis, following the monomyth, moves from the world of becoming to being. Black holes in science fiction are regularly the door, the mirror, the passage to another, more essential world.279 And it

is to this world, and science fiction’s ontological register, that Stage III of this thesis now

turns – not to explore, with its Star Trek, rational and epistemological connotations, but

to reveal the essence of modern law and technological Being.

276 Clute and Nicholls (1993), pp 129-130. 277 Pohl (1977). 278 Nelson, The Black Hole, (Walt Disney Productions, United States of America, 21 December 1979). 279 Samuelson (1993), p 208.

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260

Stage III: Technologies of Law

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262

Dune as Technical Legality

I am the Kwisatz Haderach. That is Reason Enough.

– Frank Herbert, Dune, 19651

This chapter marks the beginning of a different direction in exploring technical legality.

The previous chapters have discovered a black hole: that the Frankenstein myth, modernity’s basic story – particularly concerning technical legality – has imploded. In

Chapter 2, it was hinted that the law and technology enterprise, in locating law as the saving power to tame technology, was a technological conception of law. Chapters 4 and

5 utilised science fiction’s epistemological register to consider two specific moments when law and technology intersected: clones and the Prohibition of Human Cloning Act

2002 (Cth), and motor vehicles and the Motor Car Act 1909 (Vic). These detailed examinations of the public archive revealed the same conclusion as Chapter 2. The law that was to save Australia from a clone future and the law that was to secure a motor vehicle future were both the same law: law as technology.

This implodes the Frankenstein myth, with its categories of humans, technology and saving law, as the saviour turns out to be one and the same as the monstrous threat.

Technical legality is emerging not so much as legality but as technical; maybe there is wisdom in the positivism, the practical and modest technical explorations that characterise the law and technology enterprise. However, what does it mean to think law as technology? This marks a shift in method. Whereas the epistemological register

1 Herbert (1965), p 442.

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allowed cultural material to be organised to illuminate specific moments in technical

legality; in the previous two chapters, science fiction was located as mythform, providing

the cultural meaning through which the archive of reports, newspapers, parliamentary

debates, private papers and the laws could tell their stories. It can identify the irony of

monstrous law ruling monstrous technology, but it cannot go further.

To go further, to think about what it means for law as technology, requires a more

essential gaze, and a different method. It is at this stage that the thesis turns to taking

science fiction’s ontological register seriously, and drawing upon William P. MacNeil’s

method of reading jurisprudentially to reveal technical legality’s essential commitments.

This chapter argues that Dune exposes the essential commitments of law as

technology. Dune is a coriolis storm from the title planet of the cycle that ‘cut[s] metal

like butter, etch[s] flesh to bones and eat[s] away the bones’.2 The bones of law as

technology that are exposed are sovereignty. However, the abrasiveness of Dune goes

beyond exposing skeletal matter; it dissolves the very notion of sovereignty, leaving its

essential commitments: death and time. Dune shows the truly monstrous in law as

technology.

The argument of this chapter is in three sections. The first section reviews Dune

both as a novel and a cycle.3 Dune might seem an odd choice for consideration of

technical legality, as there is a seeming absence of both technology and law within

Herbert’s universe. What is suggested is that Dune’s import is at an essential level, and this can be seen in the secondary literature surrounding the novel.

2 Herbert (1965), p 219. 3 In this chapter, Dune (in italics) refers to the first novel of the series, originally published in 1965. Dune (no italics) refers to the cycle as a whole or following the conventions of science fiction criticism as shorthand for Herbert’s imagined universe.

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The second section re-examines the secondary literature on Dune. Critics have

identified that Dune reflects on messianism, Machiavelli and ecology. The commonality

identified between these is a meta-theme concerning the illusion of control. Each attempt

at implementing rational decision becomes thwarted by a universe that rebels against the

imposition of will. This over-arching theme in Dune has led critics to summarise

Herbert’s opus as a rejection of the public and as encoding a message of self-care and

disengagement with the world. However, claims for Dune as a handbook for ‘Western

Buddhism’ seem disingenuous. The very ‘public’ nature of Herbert’s protagonists

suggest that there is another accounting for Dune.

The third section takes up this alternative accounting of Dune. What is shown is

that the detail discussed in analysing the received critical literature can be rewoven,

taking as its starting point the desire for control in Dune. What emerges is that Dune

articulates the essential elements of sovereignty. In its bloody pages, it embraces the

consumption of bare life that legal theory has mystified. In its primacy of sovereignty, it

also highlights one constant within a universe of change: time. In conclusion, in

animating the necessary death inherent in sovereign attempts to lock in a desirable future,

Dune is revelatory of a temporal core of law as technology. Dangerously – at least for the liberal democratic tinge within the law and technology enterprise – is Herbert’s dry aftertaste; that decisionism is the ‘representative’ response to the alchemy of death and time in sovereignty. It is this spectre of Carl Schmitt that opens to the following chapter and a deeper appreciation of the metaphysics of technology through Battlestar Galactica.

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1. Sand, Spice and Empire

Winner of both the Hugo and Nebula Awards in 1966,4 a year after it was first published

as novel (having previously been serialised in Analog),5 Dune remains high within ‘all

time great’ lists and on reading guides for science fiction courses.6 It is common for

critics to note that the complexity of Herbert’s world-building in Dune, the depth of his

invented landscapes, languages, religions, entities, institutions and appendixes, makes it a

creative tour de force comparable with J.R.R. Tolkien’s Lord of the Rings (1954–1955).7

In this reasoning, Dune is to science fiction what Lord of the Rings is to fantasy: a genre- defining template much copied but rarely exceeded.8

Having said that, the bare structure of Dune and its immediate sequels can be

summarised quickly: Dune rearticulates the monomyth.9 Indeed, Brian Herbert claims

that his father wrote Dune in parallel with reading Lord Raglan’s The Hero (1936).10

Dune is divided into three ‘books’. Book I introduces Paul Atreides, a boy of unique parentage (born of the union of a planetary ruler, Duke Leto Atreides, and his concubine, the Lady Jessica, who herself possessed uncanny powers), whose life is changed when his family’s mortal enemy, the Baron Vladimir Harkonnen, invades, takes over the land

(precisely the planet Arrakis/Dune) and kills his father.11 The boy and his mother escape

4 Scholes and Rabkin (1977), p 243. 5 Herbert et al (2005), p 276. On the revisions between the Analog serialisation of ‘Dune world’ and the 1965 novel, see Aldiss (1988), pp 632–633. 6 See Addendum: The Books Most Widely Assigned (1996); Manlove (1986), p 79; Hartwell (1984); Hartwell (1996), p 281. 7 Tolkien (1954a, 1954b, 1955). On the similarities of Dune and Lord of the Rings, see Roberts (2000), p 40. 8 Touponce (1988), p 8; Riggs (1985), p 113. 9 Palumbo (2002), pp 139–182; Palumbo (1997, 1998). 10 Raglan (1956). See Herbert (2003), p 178. 11 Herbert (1965), pp 1–192.

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into the deep desert of Arrakis and are presumed dead.12 In Book II, Paul and Jessica

meet up with the indigenous inhabitants of Arrakis, the Freman.13 Paul, through the

training given to him by Jessica, his genetic inheritance and using concentrated drugs as a

catalyst, discovers that he is prescient and able to access his ancestors’ memories.14 In

Book III, set two years later, Paul has taken a Freman name, Muad’Dib,15 a Freman

woman, Chani, as his mate,16 has exploited Freman mythology concerning an outsider

saviour, becomes their military leader and wages a guerrilla war against the

Harkonnens.17 The climax has Paul, returning as a man, leading his Freman hordes riding

on the backs of the gigantic sandworms of the desert, conquering the Harkonnens and not only claiming his rightful Ducal title, but also becoming Emperor of the Known

Universe.18

The immediate sequel, Dune Messiah (1969), set twelve years after Dune, tells a

story of decline. The establishment of the Atreides’ empire had precipitated a bloody

jihad across the universe. Paul is a broken character in Dune Messiah, riddled with grief

at the galaxy-wide slaughter for which he is responsible, distressed that his empire and

religion have ‘fallen into old patterns’19 and surrounded by plotting traitors within the

Freman and by the established institutions of the Imperium (the Spacing Guild, the Bene

Gesserit and the Bene Tleilaxu). Unable to foresee any better alternative, Paul allows himself to succumb to the plotting, becomes blinded and exiles himself in the desert to be

12 Herbert (1965), p 221; Campbell (1968), p 78. 13 Herbert (1965), pp 257, 264. 14 Herbert (1965), pp 210, 281; Campbell (1968), pp 90–91. 15 Herbert (1965), p 292. 16 Herbert (1965), p 344. 17 Herbert (1965), pp 405–407; Campbell (1968); p 126. 18 Herbert (1965), pp 425–464; Campbell (1968), pp 193–237. 19 Herbert (1969), p 109.

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presumed dead, leaving the Empire to his newborn twin children with his sister, Alia, as

regent.

The action in the third novel, Children of Dune (1976), occurs nine years after

Dune Messiah. In many respects, it is a replaying of Dune, complete with the Baron

Vladimir Harkonnen returning to possess Alia,20 an escape into the desert for the male

son, Leto II, his testing and discovering even more special powers than his father, and his

merging with the nymph stage of the sandworms to become physically invulnerable.21

The novel concludes with Leto II, now superhuman in mind and body, taking the throne to reign for thousand of years.22

The fourth novel, God Emperor of Dune (1981), deals with the Leto II’s ‘death’

3500 years after the third book. Now a small sandworm with a bloated, vaguely human

face, Leto II rules a simplified empire of docile humans as a living god.23 This novel is predominately a palace drama of feints, plans and plots, culminating in Leto II’s fulfilment of his death wish by submersion, birthing a new generation of sandworms.24

The final two novels, Heretics of Dune (1984) and Chapter House Dune (1985), set 2000 years further into the future focuses on the Bene Gesserits, and deals with the aftermath of Leto II’s reign, the return of descendants of refugees who escaped from the Atreides

Empire and the final destruction of some of the lingering institutions and entities from that earlier period.25

20 Herbert (1976), p 58. 21 Herbert (1976), pp 307–313. 22 Herbert (1976), p 373. 23 Herbert (1981), p 107. 24 Herbert (1981), p 444. 25 Herbert (1985a, 1984).

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Contemporary readers could be forgiven for dismissing Dune as a 40-year-old

book that became popular through counter-culture iconography of shamanic orgies and a

psychedelic hero achieving enlightenment/becoming the überman through chemical

excess.26 Furthermore, Herbert’s central female characters, the Lady Jessica, Chani and

Alia Atreides, are deeply problematic for contemporary readers.27 Jessica, the beautiful, intelligent and resourceful concubine of Duke Leto Atreides, can be dismissed as a mismatch of Jungian archetypes of both mother and crone.28 Chani functions as a sexual vessel for Paul’s teenage desires and later for the perpetuation of the Atreides line, even conveniently dying in childbirth in Dune Messiah.29 Alia Atreides succumbs to the

‘female’ weakness of being unable to control the past lives within her consciousness, and

becomes possessed by Baron Harkonnen, abandoned by her mother, denounced by her

brother and destroyed in her nephew’s coup.30 The secret school/order for females to

which Jessica belongs, the Bene Gesserit, is colloquially referred to as ‘witches’ by the

male characters,31 a term also used by Jessica herself.32 Notwithstanding these

problematics, the physical and mental powers of members of the Bene Gesserit order play

a behind-the-scenes manipulative role within Imperial politics and particularly in the

fulfilment of their secret plan to breed a male capable of their skills – the Kwisatz

Haderach.33 Jessica, Chani, Alia and the Bene Gesserit betray Herbert as a misogynist,

26 Silliman (1996), p 122; Roszak (1968); Rossinow (2002). 27 Roberts (2000), p 46. 28 Silliman (1996), p 120; Knězková (2007), pp 37-51. 29 Herbert (1969), p 205; Knězková (2007), pp 62-63. 30 Herbert (1976), p 368. 31 Herbert (1965), pp 33, 35, 36, 200, 203, 223, 234, 270, 360-361, 403, 454. 32 Herbert (1965), p 150. 33 Kwisatz Haderach was explained by Ben-Tov as ‘Herberticized Hebrew for a concept in the Jewish cabbala, roughly translatable as “the shortcut,” an ability of saintly rabbis to travel to the end of time and back.’ Ben-Tov (1995), p 122.

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fearful of women’s domestic and reproductive power.34 Finally, Herbert’s portrayal of

the homosexual Baron Harkonnen as a paedophile is particularly repugnant to

contemporary sensibilities.35 It is tempting to suggest that science fiction has moved on,

and by the 1980s the last three novels36 – not to mention David Lynch’s ‘disastrous’ 1984

film,37 the Science Fiction Channel’s low-budget mini-series of 200038 and 2004,39 and the trashy Brian Herbert and Kevin J Anderson series of prequels40 and sequels41 – give

the impression that the franchise has outlived its cultural moment42 – that it has become,

to use Herbert’s own imagery, a ghola living outside its natural time.

This does not establish why Dune should be offered as a reflection on technical legality. Both technology and law lie in the background of the founding novel and the sequels. Technology lies literally in the background. The action is set millennia after the

‘Great Revolt’ or ‘Butlerian Jihad’, where humanity revolted and destroyed ‘thinking machines’.43 The Butlerian Jihad opened to Herbert two structural elements for the Dune

universe.

The first element is that it explains the technological primitiveness of Dune.

Drawing on medieval motifs and images – feudal political and social structures and hand- to-hand combat – was an established feature of science fiction prior to Herbert, a legacy

34 Hand (1985); Youngerman Miller (1985), p 191; Silliman (1996), p 121. 35 Herbert (1965), pp 180, 348; Roberts (2000), p 43; Silliman (1996), p 131. Herbert’s son Bruce was gay, and Herbert’s homophobia destroyed the relationship between the two: see Herbert (2003), pp 250–251. 36 Aldiss (1988), p 503; Spinrad (1990), p 156. 37 Lynch, Dune (Universal Pictures, 14 December 1984). ‘Disastrous’ was Aldiss’s judgment on the film – a view shared by critics at the time: Aldiss (1988), p 343. 38 Harrison, Dune (Science-Fiction Channel, 3 December 2000). 39 Yaitanes, Children of Dune (Science-Fiction Channel, 16 March 2003). See Booker (2004), p 191. 40 Herbert and Anderson (1999); Herbert and Anderson (2001, 2002, 2003, 2004, 2005). 41 Herbert and Anderson (2006, 2007). 42 On the limits of Dune for contemporary sensibilities, see Gough (2003), pp 6–10. 43 Herbert (1965), pp 495–496.

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of the genre’s growth out of juvenile fiction and its interconnections with fantasy.44 In addition, by postulating an essential limit to military capacity with the ‘Hotzman effect’, which caused shields and laserguns to mutually explode in utter devastation, meant that the Butlerian Jihad allowed a science fiction that could be sustained without gee-wizz high technology. However, this does not mean that technology is absent in Dune. There is hard technology – the Spacing Guild’s massive interstellar Heighliners, and the associated intrastellar vehicles; the ornithopter, carry-alls and harvester factors associated with spice gathering on Dune; the superbly adapted technology of the Freman, the windtraps, stillsuit, fremkit and thumper; the domestic technology of the Imperium, floating glowglobs, shigawire and the more exotic technology of royal households, poison snoopers, distrans and hunter-seeker – but it never occupies centre stage. Instead, the Butlerian Jihad allowed Herbert to manifest an alternative technology in the training of human subjectivity.45

This alternative technology is the second structural element that Herbert’s

imagined history of the Butlerian Jihad allowed. The Jihad with its central dogma that:

‘Thou shalt not make a machine in the likeness of a man’s mind’46, ‘forced human minds

to develop. Schools were started to train human talents.’47 The resulting specialisation, of

mentats (human computers), Guild Navigators (beings capable of limited prescience

allowing the piloting a spacecraft at trans-light speed) and the Reverend Mothers of the

Bene Gesserit (formidable beings adept at controlling others using voice alone,

discerning ‘truth’ and accessing the memories of female ancestors) reveal Herbert’s focus

44 O’Reilly (1981), p 53. 45 O’Reilly (1981), p 58. 46 Herbert (1965), p 17. 47 Herbert (1965), p 17.

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on soft technology. There are fantasy elements to this. The elixir that stimulates and

sustains these extraordinary mental powers is melange, the spice incapable of synthetic

manufacture and only found on Arrakis, registering the absolute significance of the title

planet to the universe. There is a focus on Paul’s training with Dune, particularly Book I.

The illicit Bene Gesserit mental and physical control training given by Paul’s mother,48 the training in leadership and strategy from his father49 and from the Atreides’ mentat

Thufir Hawat,50 and training in combat and swordsmanship from Gurney Haleck51 show

Herbert emphasising that Paul’s ability rests on his learnt talents as much as his inheritance. These soft technologies that can be learnt dominate Dune: ‘We can identify the vision of human society in Dune as the megamachine, the social engine made of specialized human components.’52

So while there is technology in Dune, there seems to be little law. Technology and

law intersect in Herbert’s back story with the conclusion of the chaos of the Butlerian

Jihad in the enacting of the ‘Great Convention’ between the Spacing Guild, the Great

Houses and the Imperium, the central provision being the prohibiting of the use of atomic

weapons against humans.53 But beyond this foundational legal moment, the mentions of

law in Dune suggest a profound cynicism towards legal forms. Early in Dune, Duke Leto comments on the poster declaring him ruler of Arrakis: ‘Who was fooled by that fatuous legalism?’54 Stilgar reacts ruefully when Jessica asks what evidence he can give to

48 Reverend Mother Gauis Helen Mohiam observes about Paul ‘You’ve been training him in the way – I’ve seen the signs of it. I’d have done the same in your shoes and devil take the rules.’ Herbert (1965), p 31. 49 Herbert (1965), pp 101–103. 50 Herbert (1965), pp 33–36. 51 Herbert (1965), pp 37–41. 52 Ben-Tov (1995), p 116. 53 Herbert (1965), pp 494–495. 54 Herbert (1965), p 78.

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vouchsafe her safety among his tribe: ‘Out here, woman, we carry no paper for contracts.

We make no evening promises to be broken at dawn. When a man says a thing, that’s the

contract.’55 He goes on to express a knowing cynicism on legality when discussing the

Freman rule of free challenge to leaders:

The law that demands our form of choosing a leader is a just law,’ Stilgar

said. ‘But it does not follow that justice is always the thing a people needs.

What we truly need now is time to grow and prosper, to spread our force over

the land.’56

Paul – rightly, it turns out57 – justifies his use of nuclear weapons on what could appear to be a technicality:

‘The injunction!’ Paul barked. ‘It’s fear, not the injunction that keeps the

houses from hurling atomics against each other. The language of the Great

Convention is clear enough: “Use of atomics against humans shall be cause

for planetary obliteration.” We’re going to blast the Shield Wall, not

humans.’

‘It’s too fine a point’ Gurney said.

‘The hair-splitters up there will welcome any point.’58

Dune Messiah, with its narrative of the hubris of empire and religion, also

contains some particularly cynical remarks directed to law. There are Schmittian tones of

the limiting dangers in liberal constitutionalism in Paul’s rejection of the call for a

constitutional monarchy:

55 Herbert (1965), p 269. 56 Herbert (1965), p 279. 57 Herbert (1965), p 451. 58 Herbert (1965), p 428

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‘Constitutions become the ultimate tyranny,’ Paul said. ‘They’re organised

power on such a scale as to be overwhelming. The constitution is social

power mobilised and it has no conscience. It can crush the highest and lowest,

removing all dignity and individuality. It has an unstable balance point and no

limitations.’59

And Jeremy Bentham’s spectre can be heard in the Duncan Idaho ghola Hayt’s

comments: ‘Natural law? What is natural law? That myth haunts human history. Haunt!

It’s a ghost. It’s insubstantial, unreal. Is your Jihad natural law?’60 However, these

comments seem to be just that. They are surface garnish, opportunities of Herbert’s own

philosophising – a tendency, like Robert A. Heinlein, that increased as he aged.61 There is no real sense within Dune of law-making. Imperial law is mentioned by members of the

Great Houses as code for the ritual of politics that surrounds clandestine manoeuvrings.

The Baron plots a quasi-legal move that could place Feyd-Rautha on the throne,62 while

Paul, newly escaped from the Harkonnens, tries to buy the allegiance of Leit-Kynes with

a ‘legal’ plan to discredit the Emperor:

‘Once he has involved himself beyond escaping his guilt, let the Emperor

face the possibility of a Bill of Particulars laid before the Landsraad.’

…

‘“Law is the ultimate science,”’ Paul quoted. ‘Thus it reads above the

Emperor’s door. I propose to show him law.’63

59 Herbert (1969), p 53. 60 Herbert (1969), p 103. See Burns and Hart (1996), Ch II.14 n 6. 61 Disch (1998), p 122. 62 Herbert (1965), p 312. 63 Herbert (1965), p 214.

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Meanwhile, the object of these politico-legal plotting, the Padishah Emperor

Shaddam IV, appears a foppish character incapable of decisive action, whether that be

law-making, producing a male heir or putting down Muad’Dib’s Freman revolt;64 the parliament of nobles, the Landsraad, is spoken of – as it was by Paul and Leit-Kynes – as a distant forum, and Paul’s father, Duke Leto Atreides, appears to govern through a combination of charisma, the unquestioned personal loyalty of his lieutenants and propaganda.65 Once Emperor, Paul seems to rule through specific decrees and the

religious bureaucracy of the Qizarate. However, this talk about law does not immediately

translate into textual legality. There are no courtrooms and legal trials – the mainstay

grist for the law and literature mill; the closest thing in Dune is the veiled threat by the

Emperor’s ambassador, Count Fenring, to the Baron of the possibility of a ‘process

verbal’66 and the public, and inconclusive, cross-examination of the traitor Korba by Paul

and Alia before the assembled Freman Naibs in Dune Messiah.67 Judgment, made readily

and often by the characters, is a product of intuition mixed with deep knowledge of non-

verbal signs to identify the betraying marks of ‘guilt’ displayed by another.

So what contribution can Dune make to technical legality if technology and law

are just surface texture? Further, in the context of 40 years of critical literature on Herbert

and Dune, what additional insights can be hard won in the sand? In the following section,

the critical literature on Dune is re-examined. It is shown how established readings, that

Dune is about messiahs, Machiavelli and ecology, tend to end with a shared affirmation

64 Herbert (1965), p 194. 65 ‘“My propaganda corps is one of the finest,” the Duke said.’ Herbert (1965), pp 102–103. 66 ‘“The Baron hid his sudden stiffening of surprise by stumbling on the first step down from the exit. Process verbal! That made was a report of a crime against the imperium!”’ Herbert (1965), p 313. 67 Herbert (1969), pp 173–178.

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that Herbert’s meta-theme concerns chaos and the failure of human control. It is

suggested that this theme renders Dune a text about Western Buddhism, about turning away from public activities to a focus on self-care. However, it is argued that this reading does not do justice to the texts. Herbert’s protagonists are not pyrons living, loving and

dying against an epic backdrop of a chaotic galaxy, but rulers, Emperors and messiahs,

planning and scheming – notwithstanding the unpredictability of the universe. It is this

orientation to planning that opens Dune as technical legality. However, Dune is not the

mythform infusing a specific law and technology interface. Its register is more essential, for it exposes the metaphysical commitments of law as technology.

2. Thematics of Dune

The size of Dune and its sequels presents a challenge for critics. Herbert’s six forays into

the Dune universe over a 20-year period have a sheer physical presence and are also

considerably more complex than earlier Golden Age science fictions. Also, there are

Herbert’s own inconsistencies – claims with each successive book that it had been

planned and expected from the beginning.68 Faced with bulk and complexity, critics have

tended to emphasise particular themes threaded through Herbert’s work. Three themes

have been identified in the secondary literature: Messianism, Machiavelli and ecology.

However, as will be seen, all three are not independent but rather manifest a meta-theme

on the failure of control.69

68 Levack (1988), p xvi; O’Reilly (1981), p 187. 69 Siegel (1988), pp 66–67; Elgin (1985), p 136.

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Messianism

Writing in 1980, Herbert suggested that Dune and its sequels were a reflection on the

danger of messiahs.70 However, this is not as clear-cut from the novels as it might appear.

There is little doubt that in Dune Paul plays a messiah character. He is referred to as such

by the Freman, and is seen as their legendary ‘Lisan Al-Gaib’71 (The Voice from the

Outer World), an off-world prophet, and also their ‘Mahdi’ (The One Who Will Lead Us to Paradise).72 Significantly, he does deliver on these mythic promises. As a military

leader, he rids Arrakis of the oppressive Harkonnens. He usurps the Emperor, and in

doing so has all the other powers of the Imperium, the Landsaard, CHOAM, the Bene

Gesserit and the Guild recognise his/Freman sovereignty of the planet and their control of the spice. Further, as Emperor he can accelerate Liet-Kynes’ program to transform

Arrakis from Dune to a green world of surface water. This seems an ambiguous story concerning the dangers of messiahs. Paul is bothered by his prescient visions of ‘the

green and black Atreides banner waving … somewhere ahead … still see the jihad’s

bloody swords and fanatic legions’.73 In an oft-quoted passage, Liet-Kynes hallucinates

in the final moments of his life the warning that: ‘No more terrible disaster could befall

your people than for them to fall into the hands of a Hero.’74 However, Dune does not

end with images of bloody jihad. Instead, it ends with images of bloody justice. The

Harkonnens are dead, the Emperor and his Sardaukar defeated, the Bene Gesserit

humiliated, and the other Great Houses and Guild subdued. Indeed, ‘at Dune’s end we

70 Herbert (1980), p 72. 71 Herbert (1965), p 497. 72 Herbert (1965), p 497. 73 Herbert (1965). p 294; also at pp 304, 306 and 369. 74 Herbert (1965), pp 263, 500. See Siegel (1988), p 70; Herbert (2003), p 191.

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cheer … reading it has been an emotionally satisfying experience’,75 for the wrongs of

the novel have been righted. In fine monomyth style, Paul has overcome: his own fears of

jihad in Book II of Dune fade in Book III. He becomes committed and victorious.76 This suggests more a celebration of messiahs than a warning.

Herbert seemingly prioritises the evils of messiahs in the appropriately named Dune

Messiah; however, even in this novel the message is less clear. Repeatedly, Herbert tells of the horrors of the Atreides-Freman jihad. Paul recollects: ‘Statistics: at a very conservative estimate, I’ve killed sixty-one billion, sterilised ninety planets, completely demoralised five hundred others. I’ve wiped out the followers of forty religions.’77 Alia comments: ‘There’s enough butchery going on under the Atreides banner.’78

Nevertheless, these are bland observations. The jihad is not in the foreground; there are no action scenes like the numerous battles that quicken the pace in Dune. The evidence of the jihad is seen mostly through Paul’s blue-in-blue eyes, and coloured by his feelings of responsibility – the exception being the Freman Farok telling of his experience of jihad, of submerging in a sea of floating bodies.79 Further, even Paul’s feelings of personal

responsibility are contradicted in the text. Instead, Herbert repeatedly emphasises the

predestination of the jihad. In the climax of Dune, with the powers of the Imperium at his

feet, Paul senses:

Here was the unborn jihad, he knew. Here was the race consciousness that he

had know once as his terrible purpose. Here was reason enough for a Kwizatz

Haderach or a Lisan al-Gaib or even the halting schemes of the Bene

75 Fjellman (1986), p 51. 76 Mulcahy (1996), p 31. 77 Herbert (1969), p 92. 78 Herbert (1969), p 50. 79 Herbert (1969), pp 43–44.

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Gesserit. The race of humans had felt its own dormancy, sensed itself grown

stale, and knew now only the need to experience turmoil in which the genes

would mingle and the strong new mixtures survive.80

This predestination and lack of personal responsibility also appear in Dune

Messiah, parallel to Paul’s moments of doubt:

[Paul] felt the pressure of mass-unconscious, that burgeoning sweep of

humankind across the universe. They rushed upon him with a force like a

gigantic tidal bore. He sensed the vast migrations at work in human affairs:

eddies, currents, gene flows. No dams of abstinence, no seizures of impotence

nor malediction could stop it. Muad’Dib’s Jihad was less than an eye-blink in

this larger movement.81

By Children of Dune and God Emperor of Dune, messianism is further in the

background. Leto II is no messiah – there are no myths to herald him, and the

salvationary content of Freman culture appears burnt up with Muad’Dib. All that is left

are the stories of Jacurutu, of a place of forbidden transgression.82 Leto II does not seize

the throne with anticipatory promises of a better future for his followers as his father

does, such as a green world freed from the Harkonnen fist.83 He declares himself a tyrant:

‘I have the cruelty of the husbandman, and this human universe is my farm.’84 Dune is a

weak text on the dangers of the messiah. The best that can be said is that the Paul/messiah

80 Herbert (1965), p 457. 81 Herbert (1969), p 110. 82 Herbert (1976), p 69. 83 Herbert (1965), p 406. 84 Herbert (1976), p 378.

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prepared the way for Leto II/Shai-Hulud, the Freman word for the defied sandworm, but

also a derivative of Shaitan/Satan.85

However, something instructive is going on with Herbert’s patchy messiah

message. Dune does not tell a cautionary tale of the dangers of messiahs; it tells a

conflicted story that opens with the seductive attraction of a hero, shows that hero’s mid-

life crisis and ends with an over-over-man dominating time and space. Timothy O’Reilly

claims that Herbert’s basic insight concerns the limits of human consciousness within an

infinite universe.86 In the partial messiah message, Herbert is being performative. Paul’s

loyalty in Dune, his tears when he first kills and his remorse in Dune Messiah are not the

characteristics popularly associated with evil, and the Harkonnens – with their

oppression, amorality and scheming – are seemingly foils for the ‘noble Atreides’ in this

regard.87 Yet Paul is Harkonnen, his mother the unacknowledged daughter of Baron

Harkonnen,88 and some of Paul’s comments and attitudes in Book III of Dune cause

Gurney Hallack to play the Atreides conscience and doubt Paul’s integrity.89 For Herbert,

such absolutes – who is good and who is bad – and the confidence of knowing for the

project of control, are impossible.

The clearest example of this failure of control is Paul’s prescient powers. John W.

Campbell worried on reading the manuscript of Dune that in Paul Herbert had created a

superman, with all the authorial difficulties for credibility of character and plot.90

85 Herbert (1965), pp 502–503. 86 O’Reilly (1981), p 3; see also Kucera (2001), p 232. 87 Mulcahy (1996), p 27; DiTommaso (1992), p 321. 88 Herbert (1965), p 191. 89 Herbert (1965), pp 394, 443 (on Paul ruing the loss of equipment and not lives). 90 In Campbell’s words to Herbert: ‘Congratulations! You are now the father of a 16-year-old superman! … You’ve set yourself one hell of a problem! You might make the next one somewhat more plottable if you didn’t give Paul quite so much of the super-duper.’ Herbert et al (2005), p 275.

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Herbert’s response was to emphasise the limited nature of Paul’s ‘gift’.91 The recurring image that Herbert deploys when describing Paul’s ocular insight is the dance of an

object caught in a jetstream. Herbert describes Paul’s first full prescient experience: ‘He

[Paul] remembered once seeing a gauze kerchief blowing in the wind and now he sensed

the future as though it twisted across some surface as undulant and impermanent as that

of the windblown kerchief.92 In Dune Messiah, Paul explains to Irulan:

… prediction is a natural consequence in the wave of the present. It wears the

guise of nature, you see. But such powers cannot be used with an attitude that

prestates aims and purposes. Does a chip caught in a wave say where it’s

going? There’s no cause and effect in the oracle. Causes become occasions or

convections and confluences, places where currents meet.93

Herbert suggests that Paul can see the future but this does not mean he looks on

fate as an absolutely known. Paul’s vision, and with it his ability to control based on this

sight, is limited. He can see some of the tensions and forces at play in alternatives futures

but he is also blind to the working of other oracles – a weakness exploited by the plotters

in Dune Messiah through using the prescient Guild Navigator Edric to mask the

conspiracy.94 In short, attempts by Paul to see clear, to know from the infinity of possible futures the true one, or to know with certainty what actions in the present would deliver a desirable future, elude him. Displaying the classic behaviour of addiction, Paul keeps taking greater quantities of spice, but the hit is never enough.95 However, again Herbert

91 An edited extract of Herbert’s response can be found at O’Reilly (1981), p 153. 92 Herbert (1965), p 187. 93 Herbert (1969), p 51. 94 Herbert (1969), p 19. 95 Herbert (1969), pp 107–108; in Dune Messiah (p 192), Alia is also seen overdosing on spice in an attempt to know the future.

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confounds this simple explanation. Once Paul succumbs to the vision that leads to his blindness and Chani’s death, he is shown as able to function as if sighted, relying on his memory of the prescient vision of this future to live in it.96 By giving in and not fighting

the vision, it becomes true. However, this is not entirely the case: the birth of twins was

unforseen and elements of the plot to usurp him remained unknown.97

What can be seen in Paul’s prescience is a working of Herbert’s meta-theme of

the illusion of control. Herbert’s universe is illusive, always thwarting attempts at

knowledge and control: ‘You do not take from this universe, he thought. It grants what it

will.’98 In this there is a similarity between Herbert and H.G. Wells’ empty future in The

Time Machine, identified in Chapter 5. The complexities of Dune arise because this message is coded in the very presentation of the messiah theme. The book and sequels elude determinative judgment: at times they are sophisticated texts warning of the peril of messiahs99 and at other times ‘masturbatory power fantas[ies]’.100 It is this meta-theme of

the human desire for control in an uncontrollable universe that is reiterated through

Herbert’s other themes of Machiavelli and ecology.

Machiavelli

With its machinations in the corridors of power, leadership and revolt, critics have

considered Dune a popular window into the writing of Niccolo Machiavelli.101 Herbert was no stranger to Machiavelli. In the 1958 short story ‘Cease Fire’ (1959), Machiavelli’s

96 Herbert (1969), pp 162–169, 201–208. 97 Herbert (1969), p 208. 98 Herbert (1969), p 108. 99 Roberts (2005), p 236. 100 Spinrad (1990), p 155. 101 Mulcahy (1996); Minowitz (1997).

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The Prince (1532) circulates as an image for ‘deceit and treachery’.102 In Dune, the

activities of the Great Houses can be read as a sustained animation of Machiavelli. That

the Harkonnens employ Machiavellian tactics is unsurprising. Kevin Mulcahy observes

that the Baron’s strategy of subduing the reconquered Arrakis is a straight take from

Chapter 7 of The Prince, where Machiavelli praises Cesare Borgia’s use and then

disposal of a known cruel lieutenant to win over a conquered people.103

However, notwithstanding this Prince-like plan, the Harkonnens are not

Machiavellians. They are not only prepared to kill and deceive to gain power and wealth;

they are also sadists.104 This is not Machiavelli’s ideal tyrant. For Isaiah Berlin,

‘Machiavelli is not sadistic’.105 According to Machiavelli, the prince should be restrained

in the ways of violence; he must have the character and confidence to do all that is

necessary to secure order and peace – and this includes unpleasant and dirty work.106

However, for the good ruler, violence is a tool with known strengths and weaknesses, and the torture chamber should not be used when there are more peaceful means available. In this, the Harkonnens are more properly characterised as ‘Machiavels’ from Elizabethan and Jacobethan theatre.107 The Machiavel is a just a figure of pure evil, cruelly

calculating and a lover of over-complicated plots designed not just to kill the object of

hatred but obliterate the target’s very sense of being.108 The Baron is more Richard III or

Iago than Borgia. His plot to destroy the Atreides meanders around: there is the deal with the Emperor and the Sardaukar; the spies and the feints within the ‘War of Assassins’; an

102 Herbert (1975), p 138. 103 Machiavelli (1950), p 27. See Mulcahy (1996), p 24. 104 Minowitz (1997), pp 126-131. 105 Berlin (1980), p 51. 106 Machiavelli (1950), pp 56-57. 107 Meyer (1897), pp 41-48. 108 Raab (1964), p 56.

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attempt on Paul’s life; the distrust generated through releasing disinformation concerning

Jessica’s loyalty; and finally the actual betrayal by the Atreides’ physician, Dr

Wellington Yueh. In Yueh, the supposed medic conditioned against taking life, the Baron could have had the Atreides family and top lieutenants efficiently killed off at any time, through a simple overdose of the medications that Yueh administers. Instead, in fine

Machiavel style, the Baron spends Book I of Dune floating around and gloating about his genius in pulling off the ‘biggest mantrap in history’.109

This leaves the Atreides to take up the mantle of Machiavelli. The Atreides do what is necessary. In The Prince, Machiavelli emphasises that the statesman should display what Berlin has identified as the Roman Republic ideals of virtu: ‘courage, vigour, fortitude in adversity, public achievement, order, discipline, happiness, strength, justice and above all assertion of one’s proper claims and knowledge and power needed to secure their satisfaction’.110 This reads as a character description of both Duke Leto and Paul. Herbert portrays both as courageous: Duke Leto does not run when faced with the trap of Arrakis; Paul does not shirk from Jamis’s challenge. Both profess a manly bravura, shared with the Old Duke who died in the bull ring before his adoring subjects, and Paul in particular shows great fortitude in adversity during the flight into the desert.

Further, both are big on public achievement, order, discipline and strength, coupled with confidence in their claim to rule. While a bit short in the justice and happiness stakes,

Herbert paints the Atreides as leaders of virtu, whose strength of character has been rewarded with loyal and admiring subjects.

109 Herbert (1965), p 19. 110 Berlin (1980), p 45.

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It is this cultivation of followers that reveals the Machiavellian style of the

Atreides. The Atreides followers are there to be used for the Atreides’ power.111 Duke

Leto does not flinch in risking his family, his army and his people to gamble on the occupation of Arrakis. Paul’s rise to leader of the Freman reveals his skills as the master opportunist. He secures strategic alliances through Chani, Liet-Kynes’ daughter and

Stilgar’s niece, and together he and Jessica manipulate Freman mythology and power structures to locate themselves at the religious and military apex. That this manipulation is done with a knowing cynicism – it is thought about as a ‘sham’,112 ‘tricks’113 and

‘scenes … cooked up’114 – detracts neither from its effectiveness nor from Paul’s and

Jessica’s adherence to the strategy.

Therefore, the Atreides appear to be a fairly successful rendering of Machiavelli’s

prince. It is at this point that Herbert’s meta-theme of failure of control intrudes. All the

political players in Dune – the Baron, the Emperor and the Bene Gesserit – fail to control the situation on Arrakis. The Baron kills off Duke Leto and re-establishes Harkonnen rule

only to trigger the cycle that ends with his own death. The Emperor succeeds in

destroying Duke Leto, a dangerous rival to the throne, only to create Paul, who takes the

throne. The Bene Gesserit spend centuries on their breeding program only to have the

dreamed-of Kwisatz Haderach arrive one generation early and outside of their control.

Mark Siegel suggests that these players fail because their over-confidence prevents a cool

assessment of the consequences of their actions.115 The Baron does not regard the Freman

as worthy of consideration in the running of Arrakis. The Emperor places so much

111 O’Reilly (1981), p 45. 112 Herbert (1965), p 56. 113 Herbert (1965), p 271. 114 Herbert (1965), p 407. 115 Siegel (1988), p 71.

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confidence in his Sardaukar that he puts himself and his family on the front line and the

sisterhood trusts its abilities at controlling the men of power in the Imperium. In

Machiavellian terms, these princes lose through poor judgment based on a failure to

assess consequences. The symmetry to this analysis is that Paul wins because he considers consequences, helped in this regard by his uniqueness.

However, Paul does not win. Clearly the ends of Paul in Dune Messiah and

Children of Dune cannot be taken as wins except by the most committed Stoic – and even in the victorious climax of Dune, the nascent jihad is poised to inflame the universe.

Mulcahy argues that the message is the corruption for both leader and the lead that arises from cynical manipulation.116 Paul goes from appealing youth in Book I to lost

adventurer in Book II to God-like leader in Book III. In Book II, he sheds water for the

dead when killing Jamis; but by Book III he has difficulty grieving for his dead son. Even

the Freman go from a fierce and independent people in Dune to a bunch of divided,

fawning sycophants in Dune Messiah. For Mulcahy, this is Herbert’s critique of

Machiavelli.117 The drive for charismatic leaders to give certainty in a dangerous and

uncertain universe gives rise to power-hungry monsters. In placing responsibility for the

leadership with the people that follow, Mulcahy suggests that Herbert’s prince-like novel

affirms democracy. However, this message is incomplete. Nowhere in the Dune universe

do the people go, to adopt the Bene Gesserit terms, from animals to humans.118 To start

crediting Herbert with democratic motivations seems at odds with the texts. Again, the

meta-theme of uncertainty is disclosed: if Dune is a democratic critique of Machiavelli, it

116 Mulcahy (1996), p 33. 117 Mulcahy (1996), p 34. 118 Herbert (1965), pp 12–17; Siegel (1988), p 70.

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is a very problematic one that borders on rather undemocratic celebrations of the

überman.

For Peter Minowitz, Herbert’s biological metaphor for the people is instructive.

Not only does it remind of Machiavelli’s description of a leaderless people as an escaped

captive beast,119 but it links Herbert’s politics with his ecology.

Ecology

Ecology features in Dune. Herbert’s biographers have suggested that the origins of Dune lay in his 1957 (or 1958) newspaper assignment looking at the use of grasses to stabilise

desert in Florence, Oregon,120 and Herbert does dedicate Dune to ‘the dry-land

ecologists, whenever they may be, in whatever time they work’.121 This is only reinforced

through Herbert’s provision of Appendix, 1 titled the ‘Ecology of Dune’,122 a cartographic map of Arrakis,123 the character of the Planetologist Liet-Kynes, and also

the wider ecological narrative of ecological destruction and rejuvenation that arcs through

the six novels. This ecological theme seems reinforced through Herbert’s well- documented paraphrasing of ecologist Paul B. Spears,124 and in the technical details of the planetologial plan for its transformation. It is also apparent in Herbert’s provision of a biological explanation for the sand plankton–little maker–sandworm cycle on which he tries to ground a scientifically plausible explanation for the existence of oxygen on

119 Minowitz (1997), p 143, referring to Machiavelli (1950), ‘The Discourses Book 1:xxiv’, p 161. 120 O’Reilly (1981), p 39 (1957); Touponce (1988), p 16 (1958). 121 Herbert (1965), p 2. 122 Herbert (1965), pp 467–474. 123 Herbert (1965), pp 508–509. 124 Herbert’s adoption of Spears term ‘law of the minimum’ and other phrases has been documented by O’Reilly (1981), p 55; Scigaj (1983), p 348; and Ellis (1990), p 115.

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Arrakis, the absence of water and the formation of melange. Taking all these threads

together it is little wonder that Dune has been hailed as an ecological novel.125

However, as R.J. Ellis has observed, this emphasis on ecology is not particularly evident in the bare narrative of Dune.126 Paul is the focus, not Liet-Kynes, and the

Atreides’ adoption of the planetologist’s plan appears to be just another policy

strategically adopted to secure the allegiance of the Freman. Like a warning on

messianism or an animation of Machiavelli, Dune can only be partially read as a work of eco-literacy. The first obstacle to reading Dune as ecological is Joseph Meeker’s

foundational point that works of eco-literacy should be in the comic rather than tragic genre. Meeker’s contribution to eco-literacy127 is that comedy – the laughing at life as is

and the putting down of humanity – transmits an ecocentric vision of humans in the

world.128 In contrast, the tragic – with its affirmation of the spirit and transcendence of

nature – encodes an anthropocentric vision of ecological domination.129 Dune is not The

Hitchhikers Guide to the Galaxy (1979), a novel which – notwithstanding the early

destruction of Earth130 – seems to be more ‘ecological’ in Meeker’s schema.131 The

125 Schmitt-v Mühlenfels (1986); Elgin (1985), pp 125–152. 126 Ellis (1990), p 104. 127 Love (1999), p 564; Glotfelty (1996), p xxix. 128 Meeker (1997), pp 15–16: ‘Comedy demonstrates that humans are durable, although they may be weak, stupid, and undignified. As the tragic hero suffers or dies for ideals, the comic hero survives without them. At the end of his tale he manages to marry the girl, evade his enemies, slip by oppressive authorities, avoid drastic punishment, and stay alive. His victories are small, but he lives in a world where only small victories are possible. His career demonstrates that weakness is a normal condition.’ 129 Meeker (1972), p 42: ‘Tragedy, unlike catastrophe, is comforting and flattering to man … the universe is shown to care enough about man to punish him when he goes astray … [a]nd man appears as a worthy object of love, for he has the capacity to grow and to learn, even to the point of transcending many of his own weaknesses and limitations. Tragic man is ennobled by his struggles.’ 130 Adams (1980), p 35. 131 It is disappointing that Hanlon’s otherwise enjoyable and richly packed text focuses solely on Adams’ legacy with the hard sciences and overlooks the ecological dimension of The Hitchhiker’s Guide to the Galaxy. See Hanlon (2005).

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comic is not Herbert’s modus. And without contributing to the minor debate about

whether Dune should be properly categorised as a ‘novel’ or an ‘epic’,132 its seriousness

– along with characters like the Atreides whose name was poached from Greek

mythology (King Atreus, whose children were called Atrides) – clearly suggests that

Dune should be read as belonging towards the tragic end of the continuum.133

Further, notwithstanding the ecological veneer that accompanies Herbert’s world-

building, questions can be put regarding the depth of Herbert’s engagement with

ecological thought. The prevailing ecological motif, repeated throughout the text, is that

of predator and prey. This primal image of Darwinism harks back to an earlier era of

biological thinking, and not the systemic interconnectedness that advocates argue

characterises ecology.134 The Baron styles himself as a predator, feeding off lesser prey

in his gloating over the Atreides’ solders trapped in the caves of the Shield Wall: ‘Rabbits

all of them!’135 Duke Leto worryingly paces: ‘I must rule with eye and claw – as the

hawk among lesser birds. Unconsciously, his hand brushes the hawk emblem on his

tunic.’136 It is possible to argue that Herbert’s use of the predator–prey image with the

Baron and Leto is to suggest their shared thinking in the ways of domination and

ignorance of connection, distinguishing Paul as more ecological in orientation. However,

Paul does not seem to escape the fascinating pull of the ‘red in tooth and claw’.137 His arrival at Sietch Tabr exactly in the middle of Dune is heralded by violent predation:

132 Cirasa (1984); Collings (1981); Ower (1974). 133 Elgin (1985), p 126. 134 ‘The term ecology is therefore intended to refer to the study of the conditions of existence that make up our larger, cosmic household.’ Fox (1990), p 32. 135 Herbert (1965), p 176. Also pp 169 and 229. 136 Herbert (1965), p 100. 137 Tennyson (1965) ‘in memoriam a. H. H.’ IVI (243).

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‘Mice!’ he hissed.

Pop-hop-hop! then went, into shadows and out.

Something fell soundlessly past their eyes into the mice. There came a thin

screech, a flapping of wings and a ghostly grey bird lifted away across the

basin with a small, dark shadow in its talons.138

While there is symmetry to the fact that, in becoming Freman, Paul renounces the

Atreides Hawk for Muad’Dib, the Freman name for the Kangaroo Mouse, this renaming is a gesture. The image of predator and prey remains, just the identification of Paul’s father and grandfather with the predator shifts to prey. This false modesty of Paul’s is ironic. Seeing the future does not necessary mean Paul appreciates consequences – as evidenced by his twin failures of jihad and climate change. Paul is not the eco-activist who emerges from more recent science fiction.139 Some have observed that there are elements of a stance against global capitalism and its exploitation of environments and indigenous communities in Dune.140 The monopolistic trading company CHOAM, the

Guild and Bene Gesserit can be read as acting as trans-galactic corporations maintaining a spice-dependent universe system grounded on oppression of the Freman and exploitation of the Arrakian ecosystem. However, Paul’s jihad is not against the

Imperium’s economic structures and its environmental degradations. It is not ‘Freman of

Arrakis unite you have nothing to lose but your chains!’ or ‘Spice and Worms for

Freman!’ but a more primal ‘Revenge!’ Paul is prepared to destroy the entire ecosystem

138 Herbert (1965), p 257. 139 Stratton (2001) compares Paul to ‘Kevin’ Kim Stanley Robinson’s protagonist in Pacific Edge (1988). 140 Morton (2001); Stratton (2001), p 309; Ellis (1990), p 119. Herbert encouraged this reading: Herbert (1980), p 74.

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with his spice bomb,141 he is prepared to use nuclear weapons on cliffs and he is prepared to allow the Fremans to mess with the basic ecology. Further, safely ensconced on the

Lion Throne (another celebration of the predator), he does not dismantle the economic

system that has oppressed ‘his’ people, but rather takes it over, continuing the spice

system as an Atreides monopoly. The endpoint is the give-away lines in Dune Messiah by Paul that he is ‘the supreme energy-eater of this domain’.142

The ultimate ecological image in Dune is the sandworms. Immortalised on the

cover of Analog and then on the covers of successive editions of Dune, the worms have

entered popular culture as truly terrifying alien monsters.143 The effectiveness of the

worms lies in the repetition of the predator–prey dualism. The worms devour anything moving on the sand. It is in the act of predation that they rise from the text:

A gigantic sand whirlpool began forming there to the right of the crawler. It

moved faster and faster. Sand and dust filled the air now for hundreds of

metres.

Then they saw it!

A wide hole emerged from the sand. Sunlight flashed from the

glistening white spokes within it. The hole’s diameter was at least twice the

length of the crawler, Paul estimated. He watched as the machine slid into

that opening in billow of dust and sand. The hole pulled back.

‘Gods, what a monster!’ muttered a man beside Paul.144

141 Herbert (1965), p 424. 142 Herbert (1969), p 150. 143 Schmitt-v Mühlenfels (1986), p 29. 144 Herbert (1965), p 121.

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However, almost as a logical consequence of the casting of the worm as predator, the

worms become the ultimate sign of human dominance and exploitation of nature. The

worms dominate nature – yet the Freman control the worms. The worms not only form

the backbone of the Freman global transport system; they are also deployed by Paul as a

key piece of military hardware in the Battle of Arrakeen.145

In this, Herbert’s meta-theme is performed. Dune has much ecological content, yet

the ecological message is mixed: the ‘structure contradicts, perhaps even mocks, the

theme which has been fashioned for it’.146 This incompleteness of Herbert’s ecological

imagining is challenged by O’Reilly. For O’Reilly, the ecology theme and the illusion of

control theme are one: ‘Paul’s vision is to take ecological concepts to a much deeper

level. Paul comes to see opposition between the aims of civilisation and those of nature,

as represented by the human unconscious.’147 O’Reilly turns this into an inner struggle

between consciousness and unconsciousness that locates the meta-theme of Dune as

personal – how to thrive in a changing world.

Western Buddhism

O’Reilly is not alone in suggesting that the incompleteness of the ‘public’ themes in

Dune leads to an assessment of the meta-theme of the illusion of control at the ‘personal’ level. Leonard M. Scigaj, drawing on Herbert’s well-documented interest in Zen and

Eastern mysticism,148 suggests that Dune is a populist handbook for such ideas. Paul is

seen as Zen-like – he engages in life and takes risks, even if it is to pointlessly fight Feyd-

145 Herbert (1965), p 441. 146 Elgin (1985), p 152. 147 O’Reilly (1981), p 50. 148 Herbert (2003), pp 160–170; Touponce (1988), p 10.

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Rautha in the final pages of Dune.149 However, Paul is not a very successful demonstrator

of Zen calm, notwithstanding the Zen-like statements that he makes to his followers.150

Simply put, Paul is not at rest.151 Like other tragic characters, Paul is always questing.152

It is perhaps only as the Preacher in Children of Dune that Paul appears to be at rest in the world he has had a hand in creating.153

It is Leto II who can particularly be seen as embodying the heightened

subjectivity of the Zen-aware.154 Leto II dominates God Emperor of Dune. This makes

God Emperor of Dune less a novel and more a sustained character study of a 3500-year-

old part-human, part-sandworm tyrant.155 Scigaj argues that Leto II emerges from God

Emperor of Dune as a being who flows with the universe:

Leto bases his alternative approach upon a tripartite philosophy: a grasp of

intuitions emanating from his Jungian unconscious; facility with a Zen

precognitive, egoless awareness of the present moment as a fluid matrix of

possibilities; and an adaptation of the Chinese respect for chance.156

Leto II mocks the attempts by the Bene Tleilaxu and the Ixians to plot and control.157 He celebrates surprises, and he claims to be teaching humanity a lesson:

not to desire the stagnate future promised by messiahs, but to be responsible for self

149 O’Reilly (1981), pp 68–69. 150 O’Reilly (1981), p 77. 151 Siegel (1988), p 73. 152 Elgin (1985), p 152. 153 Herbert (1976), pp 320–326. 154 Scigaj (1983). 155 Touponce suggests that Herbert wrote the first half of God Emperor of Dune in the first person (Leto II’s), only translating portions into the third person in redrafting: Touponce (1988), p 87. It is for this exact reason that Fjellman suggests God Emperor of Dune works for male academics. Fjellman (1986), p 60. 156 Scigaj (1983), p 343. 157 Herbert (1981), pp 164–165.

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in adapting to change.158 His ‘Golden Path’ heralded in Children of Dune seems

undefined, driven by prescience visions of human extinction and Kralizec, the

Typhoon Struggle.159 Leto II’s victory is not political or epic (he won on that field

in the climax of Children of Dune); rather, it is personal. He has mastered himself,

a uniquely difficult task for the son of a superman, born with both the memories of all his ancestors and the faculty of prescience. In mastering himself, Scigaj suggests that Leto II is a role model:

Through Leto’s ability to anchor prana-vitality within himself, and to extend

this balance outward to include the society and environment of Dune, Herbert

offers a startling fresh and illuminating fusion of current ecological wisdom

from the Occident and ancient philosophical wisdom from the Orient.160

So does Dune really just amount to a personal development manual urging us to lose

control and focus on inner peace?

Slavoj Žižek has described what he calls ‘Western Buddhism’ as the of New Age,

spiritualist and Eastern mysticism that has become popular within the West. He contends

that these movements are not an innocuous flowering of empowered subjectivity, but

encode at a fundamental level the very ideological commitments of globalised capitalism.161 Faced with the ‘future shock’ of rapid technological change, information

overload and the isolation of Western urban existence, Western Buddhism preaches a

return to the self through a belief that achieving inner calm, through maintaining an

‘indifference towards the mad dance of this accelerated process, a distance based on the

158 Characteristics declared early in the text in Leto’s audience with the aged Duncan: Herbert (1981), pp 21–31. 159 Herbert (1976), p 327. 160 Scigaj (1983), p 353. 161 Žižek (2001), p 12.

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insight that all this social and technological upheaval is ultimately just a non-substantial

proliferation of semblance’.162 Western Buddhism allows a gap between complicit

engagement with the realities of competitive social existence and the self. This seems to

be very close to the ultimate message of Dune. The universe denies control. A mere human – even a superhuman like Paul – fails at controlling it. Public enterprises, like

religion, politics and ecology, are seen as incomplete. Human doing in the world is

failure; all that exists is a coming to peace with oneself within the chaos of existence.

Unlike Wells’ rational humanist who, when faced with a similar universe, was called to

make the future, Herbert seems to be suggesting a 1960s-style ‘drop out’. This would

seem to offer a complete rendering of Herbert’s universe. Also, and significantly, it

seems to suggest that Dune has no contribution as technical legality beyond an extension

claim that the public project of law is doomed to fail. However, this would overlook a

fundamental element of the texts.

This can be glimpsed in one of the more successful multimedia offshoots of Dune.

In 1992, the software developer Westwood Studios released a computer game based

loosely on Dune. In the game, called Dune II: The Building of a Dynasty, players take

command of rival houses, build bases, control units, harvest spice and try to destroy opposing, AI-controlled enemies.163 Dune II defined the genre that became know as ‘god

games’,164 or real-time strategy (RTS). RTS allowed players to fulfil total control

fantasies of micro and macro management of military, economic and geopolitical

162 Žižek (2001), p 13. 163 Westwood Studio (1992). On Dune II as the founder of the RTS genre, see Geryk (2001). It was called Dune II to differentiate it from an earlier Dune computer game developed by Cryo Interactive, which was a fusion of turn-based strategy and role-playing. 164 Herz (1996), pp 30–31.

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relationships within a virtual-world: building empires, conquering opponents and also

controlling individual units.165 For Steven Poole, the message of RTS games is that:

The gameplayer doesn’t count as an individual: he or she is, after all God.

What matters is the inexorable march of the corporate machine. There seems

to be a pernicious subterranean motive here: such games offer you a position

of infinite power in order to whisper the argument that, as an individual in the

world, you have none at all.166

RTS games exploit the tension between control and the lack of control, and present as

symptom and therapy for the ‘lost souls’ of the West. With this at their core, it seems

entirely fitting that the founding game of the genre should have been inspired by Herbert.

However, the game Dune II offers a different narrative from that of Herbert.

Within the game, the gamer rules supreme. The game climaxes with total victory. There

are no future echoes of jihad or Dune Messiah-like sequels of decay. This exposes

something absolutely fundamental in Dune. Even with the Western Buddhism messages

of disengagement and self-care, the public, ‘the plans within plans’167 and the questing

for order continually reappear throughout the novels – whether it is Paul’s failed attempt at grabbing power to prevent jihad, or Leto II’s multi-faceted Golden Plan, or the Bene

Gesserit’s attempts to fight the Bene Tleilaxu and the Honoured Matres and recreate the desert-worm-spice cycle on other planets in Chapter House Dune. While the universe remains outside of willed control, the humans and superhumans of Herbert’s far future keep trying. The tragic that confused the ecological message is revealed at the absolute centre of Herbert’s imaging.

165 Postigo (2003), p 595. 166 Poole (2000), p 49. 167 Herbert (1965), p 217.

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This human desire for order, the attempt to keep out the chaos, is something that

resonates with technical legality. But it does so at a fundamental level. Dune can be re-

read as jurisprudence. In doing this, the material worked over by the existing secondary literature can be rewoven. The next section argues that Dune is a sophisticated animation of sovereignty. However, it does more than this. In animating sovereignty, it exposes sovereignty’s metaphysical basis in the alchemy of death and time.

3. Sovereignty as the Alchemy of Death and Time

The previous section finished much like the description of sandworms, lying exhausted

on the dunes, having been ridden too hard.168 It seems that the complexity of Dune has founded a multi-thematic secondary literature offering different accounts as to Dune’s message, but which can be unified by the meta-theme of the tragedy of control.

Control is exactly what law as technology is about. It is about making law. As we have seen, the law and technology enterprise desired to control the future, and does so through writing a thoroughly positivistic theory of law. The Prohibition of Human

Cloning Act 2002 (Cth) and the later amendment were both deployed to control the future manifestation of cloning in Australia, and progressive modernism mandated the legal attempt to control the development of the motor vehicle in Victoria in the Motor Car Act

1909 (Vic). Law as technology makes worlds. It conjures out of the ether new criminal offences, such as ‘intentionally plac[ing] a human embryo clone in the body of a human’169 or ‘recklessly or negligently [driving] a motor car on a public highway’;170

168 Herbert (1976), p 316. 169 Prohibition of Human Cloning for Reproduction Act 2002 (Cth) s 9. 170 Motor Car Act 1909 (Vic), s 10(1).

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new entities and institutions, such as the NHMRC Licensing Committee171 or registries

of motor vehicles;172 and new rights, such as the right to apply for a licence to undertake

human cloning173 or to drive motor vehicles on public roads.174 It makes the world-to-

come.

In Dune, the makers of the world are the sandworms. Freman culture acknowledges this in the terms ‘little maker’ for the worm’s sandtrout nymph stage and

Shai-Hulud – the destroyer – for the adult form. Within a jurisprudential frame, law as technology conjures the being that can make law – the sovereign. This reading of Dune should be obvious from the terrifying sandworms on the covers – Dune as technical legality is about Leviathan.175

Leviathan

That Dune is a sophisticated animation of sovereignty was glimpsed by the Machiavelli

readings of Dune. What originated these accounts was the demonstrated politics in the

texts. As a text on politics, Dune suggests a question that bedevilled Leo Strauss, who is

the founder of the modern political philosophy: Machiavelli or Thomas Hobbes?

Strauss’s response was complicated. For Strauss, it seemed that the answer depended on

his definition of modernity that required an essential break with the received tradition. In

the original 1936 edition of his The Political Philosophy of Hobbes, Hobbes was awarded

the title.176 However, it was revoked in the 1952 preface of the American edition with the

171 Research Involving Human Embryos Act 2002 (Cth), s 13. 172 Motor Car Act 1909 (Vic), s 4(1). 173 Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 22. 174 Motor Car Act 1909 (Vic), s 6(2). 175 A link made even more obvious in the entry for the sandworm in the Dune Encyclopaedia. See McNelly (1984), p 456. 176 Strauss (1952), pp 1–2.

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aside that ‘not Hobbes, but Machiavelli, deserves this honor’.177 In Strauss’s extended

study on Machiavelli, the claim of Machiavelli over Hobbes as founder of modern

political philosophy is under-developed.178 Strauss’s later preference for Machiavelli

seems to circulate around Machiavelli as the provider of the first comprehensive account

of politics based on the ‘evil’ of humanity.179 However, Hobbes’ contribution was not

denigrated. For Strauss, while Hobbes might not have founded modern political

philosophy: ‘It is in Hobbes’ political doctrine that power becomes for the first time eo

nomine a central theme … one may call Hobbes’ whole philosophy the first philosophy of power.’180 According to Strauss, what is original across Hobbes’ work is a theory of

power that orders all species of power – that is, in a break with classical philosophy.

Hobbes presents a unified account of personal power, violence and legal authority.181

Hobbes provides a way to associate the seeming lack of law and law-making in

Dune with law as technology. The starting point is what it means to make law. Law’s response is a tale of transformation. The common law, it must be remembered, did not make law. It was an oral – indeed a mythic – law.182 Located in time immemorial, it

claimed that it emanated from the very soil of the ‘Sceptred Isle.’183 The judicial function was to declare the law, not make it, and legal training amounted to memorising speeches and decisions of the past.184 Written records, where they existed, were cryptic mnemonic

aids for those initiated in Sir Edward Coke’s ‘artificial reason’185 of the law.186

177 Strauss (1952), p xv. 178 Martinich (2005), p 209. 179 Strauss (1958), pp 278–280. 180 Strauss (1953), p 194. 181 Strauss (1953), pp 194–195. 182 Douzinas et al (1991), p 153. 183 Goodrich (1990), pp 210–213; Postema (1986), pp 4–5. 184 Goodrich (1996), pp 86–90. 185 Prohibitions del Roy [1607] EWHC KB J23; 77 ER 1342.

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Established legal history notes that, with the wider Reformation, England experienced

legal reformation in the expansion of the influence of the Crown and Parliament.187

Politically, the common law negotiated this period by aligning with the Crown and nationalising its jurisdiction as the King’s Court.188 It also developed the doctrine of

parliamentary supremacy, reinventing itself as a body of inferior rules.189 This preserved

much of the common law, both in practice and doctrine, until the reforms of the

nineteenth century.190

Such a story is familiar. The narrative of the Reformation birthing a spirit of

rational activity that refashions the pre-modern into the modern has its origins in Max

Weber’s rationalisation thesis.191 For Weber, as was noted in Chapter 1, the evolution of

modern law was a movement from oral legal orders, to systemic codification, to the

provision of procedural frameworks for rational bureaucracy.192 Weber, however,

underplayed a critical creature that emerged during this development – the sovereign.

Familiarity dims awareness of how radical Hobbes’ account of sovereignty was

within Western political and legal thought.193 While it is trite to say Hobbes’ sovereign

emerges from the social contract, what is missed is the form of being that arises. The

sovereign is human but is not. The sovereign retains – and I use Hobbes’ gendered

possessive pronoun – his ‘natural’ freedom:194

186 Goodrich (1996), p 108. 187 Murphy (1997), pp 72–74. 188 Goodrich and Grey Carlson (1998), p 70. 189 Postema (1986), pp 102–103. 190 Hart (1983), pp 29–34. 191 Weber (1905), pp 180–182. 192 Cain (1983), p 70. 193 Saunders (1997), pp 4–6. 194 Sorell (2004).

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There is only one way to erect such a common power that will be able to

defend men from the invasions of foreigners, and from the injuries of one

another … This way is to confer all of their power and strength upon one

man, or assembly of men, that will reduce all of their wills … Everyone

thereby submits their wills to his will, and their judgments to his judgments.

This is more than consent or concord; it is a real unity of them all into one

and the same person, made by covenant of every man with every man … This

is the generation of that great Leviathan, or rather, to speak more reverently,

of that mortal god, to which we owe our peace and defense under the

immortal God.195

In this celebrated passage from Leviathan (1651), a key differentiation of Hobbes’

sovereign from the latter-day liberals can be gleaned. The sovereign is not party to the

social contract; the contract is between would-be subjects. Hobbes makes this clear:

The right of bearing the person of all the multitude is given to the one made

sovereign by the people making the covenant with each other and not to the

one who is the sovereign. Therefore, there can be no breach or covenant on

the part of the sovereign.196

This sovereign freedom has been well recognised by public international lawyers.197

However, what this freedom meant domestically has been overlooked. Unlike the common law and other pre-modern orders, where continuity was assured through transcendence, Hobbes’ modern sovereign meant that questions of authority became

195 Hobbes (2008), p 116. 196 Hobbes (2008), p 119. 197 Douzinas (2006a), p 35.

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temporal.198 Law was no longer law because of ‘meer immemorial Usage or Custom’,199 or nature, but rather because of a valid law-making act of the sovereign. This is a point about which Hobbes was consistent throughout his long career:

The civil laws are the rules that the commonwealth has commanded to every

subject either by word, writing or other sufficient sign of his will. These laws

distinguish right from wrong in terms of what is contrary or in agreement

with the rules … The laws are the rules of what is just and unjust, as nothing

can be considered unjust that is not contrary to some law.200

Having rendered all law positive law of the commonwealth, Hobbes reveals who is

behind the commonwealth:

The sovereign is the only legislator in a commonwealth … Only the

commonwealth prescribes and commands the observation of those rules that

are called laws. Therefore the commonwealth is the legislator. But the

commonwealth is not a person and does not have capacity to do anything.

The person is the representative, which is the sovereign, and therefore the

sovereign is the sole legislator.201

Hobbes articulates the defining feature of modern law: its origin and authority depend

entirely on positive action by the sovereign, and this posited law is the sole arbitrator of

just and unjust law within a commonwealth. Banished from the legal system are any

198 Postema (1986), p 48. 199 Hale (1987), p 3. 200 Hobbes (2008), pp 183–185. See his comments in A Dialogue Between a Philosopher and a Student, of the Common Laws of England (1681), written after Leviathan: ‘Statutes are not Philosophy as is the Common-Law, and other disputable Arts, but are Commands, or Prohibitions which ought to be obeyed.’ Hobbes (2005), p 29. 201 Hobbes (2008), p 184. See also in the Elements of Law: Natural and Politic (1640): ‘The making whereof [laws] must of right belong to him that hath the power of the sword, by which men are compelled to observe them; for otherwise they should be made in vain.’ Hobbes (1969), p 112.

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claims to independent legal authority in the Bible, conscience or the judiciary.202 As

Norberto Bobbio observes, the key to understanding Hobbes is ‘unity over anarchy.

Hobbes is obsessed by the idea of dissolution of authority.’203 In pursuit of this unity, the

sovereign must be free to make law on any topic unconstrained by nature, custom or any

other power group in the commonwealth.204 The law of the commonwealth becomes, for

Hobbes, another tool at the sovereign’s disposal to maintain unity and peace.205

It is at this point of unity that Dune can be read as Hobbesian. There are many

surface parallels between Hobbes’ and Herbert’s texts. The shared affirmation of

monarchy as the most stable and appropriate form of government, and a demonstration of

how the faction-ridden Corrino Empire gave way to the unitary Atreides regime, are two

immediate similarities. Some of Herbert’s text could have been penned by Hobbes:

‘Mankind has ah only one mm-m-m science,’ the Count said.

…

‘And what science is that?’ the Baron asked.

‘It’s the um-m-m-ah-h science of ah-h-h discontent’206

This cynicism concerning the folly of humanity would fit well within Hobbes’ Behemoth,

or the Long Parliament (1681), his reflections on the civil war.207

However, there are deeper relations. Reading Dune through Hobbes provides a

critical insight missed by the existing secondary literature. Hobbes, for all his postulating

of rationality leading to social contract, is not blind to the ingredients behind human

202 Hobbes (2008), pp 186–188; Hobbes (1990), p 51. 203 Bobbio (1993), p 29. 204 Although Hobbes, anticipating John Austin, seems to indicate that law must have a general character, something he emphasises in working through the example in Behemoth commanding a subject to kill his father. See Hobbes (1990), p 51; Austin (1998), pp 7–19. 205 Gauthier (1969), p 108. 206 Herbert (1965), p 313. 207 Holmes (1995), p 73.

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fanaticism.208 A theme within the ‘Hobbes industry’209 concerns what weight should be

given to Hobbes’ detailed engagement with theology and religion.210 Hobbes understood

that for humans the fear of death paled in comparison to the fear of eternal damnation: ‘as

much as eternal torture is more terrible than death, so much they would fear the clergy

more than the King’.211 Furthermore, Hobbes observes that this weakness intensifies in a

group setting and can be manipulated by rhetoric-savvy leaders: ‘it is easier to gull a

multitude, than any one man amongst them’.212 In this, Paul’s self-coronation as the

Freman Lisan al-Gaib and Duke of Arrakis in the Cave of Birds213 takes on particular meaning – not as a demonstration that the Freman are fools, but as a manifestation of

Herbert’s cynical view of humanity that seems remarkably coherent within a Hobbesian frame. However, not only are Herbert’s humans ‘irrational’ in their passions, so too are

his sovereigns.

The Machiavelli on Dune scholarship was right in considering Dune a drama of

‘princes’. However, it is more correctly a drama of sovereigns. Herbert animates a

succession of sovereigns. The Atreides are not just Machiavellian leaders of virtu, but

Hobbesian sovereigns. The maintenance and unity of power are Paul’s and Leto II’s

fundamental motivations. Marie-Noelle Zeender captures this well:

This extraordinary family are particularly obsessed with power. First was

Paul who could not resist the temptation; by setting himself up if not as god,

208 Holmes (1995), pp 75–77. 209 Goldsmith (1991), p 145. 210 See Martinich (1992); Negretto (2001); Pasquino (2001); Kateb (1989); Lessay (2004). 211 Hobbes (1990), pp 14–15. 212 Hobbes (1990), p 38. 213 Herbert (1965), pp 403–407.

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at least as Dune Messiah, he had been led to launch the jihad in order to

maintain the stability of his reign and his absolute authority.214

What Zeender’s psychoanalytic account of the Atreides misses is not how they suffer, but how the exercise of power is necessary for sovereignty. Here, Herbert’s animation of

Hobbes is particularly insightful. Paul falls. Victorious in the battle of Arrakeen, he sits as undisputed sovereign over the political, economic and religious institutions of the

Imperium. However, Paul’s religious state fractures within itself –paralleling his own divisions between guilt and irresponsibility. This is a point Herbert reiterates in a letter from Jessica to her children:

‘You produce a deadly paradox,’ Jessica had written. ‘Government cannot be

religious and self-assertive at the same time. Religious experience needs

spontaneity which laws inevitably suppress. And you cannot govern without

laws. Your laws eventually must replace morality, replace conscience, replace

even the religion by which you think to govern.’215

Jessica’s warning seems very consistent with Hobbes’ desire at the conclusion of

Leviathan for a state religion where law and religion are one, and ‘spontaneous religious experience’ is replaced by legally dictated, uniform public worship.216 As critics have pointed out, Paul’s residual humanity – that he loves and expresses a kind of grief, that he professes to believe that ‘when law and duty are one, united by religion, you never become fully conscience, fully aware of yourself. You are always a little less than an individual’217 – is the fault that leads to his fall. The conspirators’ complicated plotting in

214 Zeender (1995), p 230. 215 Herbert (1969), p 171. 216 Hobbes (2008), pp 252–253. 217 Herbert (1965), p 388.

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Dune Messiah aims to polish Paul’s love for Chani and Duncan Idaho into a cruel mirror

in which they hope he will see, and despise, the monster he has become: ‘A creature who

has spent his life creating one particular representation of his selfdom will die rather than

become the antithesis of that representation.’218

This monstrous self is exactly who Paul’s son Leto II becomes with his catchcry

that ‘his skin was not his own!’219 In the succession from Paul to Leto II, Herbert animates a characteristic of sovereignty implicit in Hobbes: Leto II merges with

Leviathan.220 This physical act is symbolic of the unitary state that he commands as God

Emperor for 3500 years,221 where law and religion are clearly one as demonstrated in the

decennial Siaynoq rally and peregrination in the Festival City of Onn.222 Leto II plays the

‘mortal god’ and achieves galaxy-wide peace. The Bene Gesserit note that, in Leto’s

Empire, not only have the Great Houses declined and the other power groups been

subjugated, but:

It is to be noted that familial conditions grow more and more similar … We

are seeing here the emergence of a portion of the Lord Leto’s grand design.

Even the poorest families are well fed, yes, but the circumstances of daily life

grow increasingly static.223

Leto II criticises his father for failing to take this essential step, this merging with the

worm to ensure a lasting, oppressive peace,224 and Herbert confirms this choice in Leto

218 Herbert (1969), p 19. 219 Herbert (1976), p 243 220 Herbert (1976), pp 308–312. 221 Herbert (1981), p 155. 222 Herbert (1981), pp 151–157, 210–226. 223 Herbert (1981), p 78. See in this quote Hobbes’ warning about times of peace: ‘The truth is, the security was worth nothing, but served well enough to gull those seditious blockheads, that were more fond of change than either of their peace or profit.’ Hobbes (1990), p 113. 224 Herbert (1976), p 204.

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II’s defeating of the weathered Paul as Preacher in a duel of prophecy.225 The clear

message seems to be that sovereignty demands the losing of Paul’s tragic nobility. It

involves a full and conscious union with the worm/power resulting in something other

than human – indeed, something more animal. This is exactly what Hobbes proposed.

Hobbes can be observed as caught in the paradox of the social contract. In the state of

nature:

… there is no industry because its fruits would be uncertain. There is no

culture of the earth, no navigation … there is no knowledge of the face of the

earth, no account of time, no arts, no letters and no society. Worst of all there

is continual fear and danger of violent death, and the life of man is solitary,

poor, nasty, brutish and short.226

In other words, the hallmarks of humanity are absent. However, it is supposedly human

reason in the state of nature that rescues humanity from this animal existence.227 The

paradox is an assumption of rationality prior to the alleged rationality-securing event.

Herbert does not provide a solution of this ‘puzzle’, to use Peter Fitzpatrick’s term.228 But what Herbert does in Leto II is show what it means to say, as Hobbes does, that the sovereign remains in the state of nature. It means that the sovereign is not human – at least not human as they might be known after the social contract. Just like Leto II, the sovereign contains the animal. This makes sense of the predator–prey imagery that interrupted the ecological message. The biblical Leviathan is described as the ultimate

225 Herbert (1976), p 321. 226 Hobbes (2008), p 81. 227 Hampton (1986), pp 68–69. 228 Fitzpatrick (2001), p 26.

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predator,229 and Leto II declares in his Journal that ‘my purpose is to be the greatest predator ever known’.230 Leto II either calls himself or is accused of being a predator eight times in God Emperor of Dune..231 As God Emperor, he is represented as possessing two natures: the sage-like Atreides Emperor who, even encased in his 7 metre- long ‘pre-worm’ body,232 is capable, as the Western Buddhism reading emphasises, of play, love and regrets,233 and the worm that kills.234 This seems a perfect animation of

Hobbes’ sovereign, terrifying in thought and action.

For Hobbes, it is the sovereign’s terrifying nature that facilitates sovereign peace.

As Strauss, and before him Carl Schmitt, note, Hobbes is foremost a theorist of fear,235 and Herbert is quite clear that Leto II’s Empire is maintained through fear – fear of his female Fish Speaker army236 and fear based on his monopoly over the last of the spice.237

Hobbes’ humans, just like Herbert’s, are motivated by fear – especially fear of violence.238 It is fear that drives the social contract239 and it is fear of that common power that keeps, most of the time, irrational and seditious human passions in check.240 Law

229 ‘There is nothing on earth to compare with him; he is a creature that has no fear. He looks down on the even the proudest animals; he is king of all wild beasts.’ Job 41:33–34, The Bible Society in Australia (1976), p 536. On Hobbes’ iconography, see Farneti (2001). 230 Herbert (1981), pp 16, 69. 231 Herbert (1981), pp 69, 70, 73, 176, 190, 191, 257, 376. 232 Herbert (1981), pp 7, 94: ‘Idaho swept his gaze along the faceted silvery-grey body, noted the beginnings of a sandworm’s ribbed section, the sinuous flexings … the small protuberances which had once been feet and legs, one of them somewhat shorter than the other. He brought his attention back to well-defined arms and hands and finally lifted his attention to the cowled face with its pink skin almost lost in the immensity, a ridiculous extrusion on such a body.’ 233 Herbert (1981), pp 192–195. 234 Herbert (1981), pp 29–30. The transformation between the two happens in an instant when Leto II is threatened by the aged Duncan Idaho. 235 Strauss (1952), p 128; Schmitt (1938), p 19. On Strauss and Schmitt on Hobbes, see McCormick (1997), pp 258–265. 236 Herbert (1981), pp 125, 313. 237 Herbert (1981), pp 76–82. 238 Blits (1989), p 424. 239 Hobbes (2008), pp 84, 116. 240 Hobbes (2008), p 113.

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works in Hobbes’ schema not because it is just, or custom, but because it is coded sovereign violence. Its register is the irrational.

Law as sovereign violence has been overlooked by much twentieth century legal thought.241 Hans Kelsen proposed a legal order rationally unfolding from a shared grundnorm: that the legal order is legitimised by a fundamental ‘political’ acceptance of its legitimacy242 and was condemned by Schmitt for ‘negating’ the actuality of sovereignty.243 Liberal political thought since has tried to deny the violence of positive law; having inherited Leviathan, liberals have put it in the chains of constitutions, rights, separation of powers and due process.244 This was Schmitt’s argument. Schmitt saw that

Hobbes opened the way for law ‘to became decision and command in the sense of a psychologically calculable compulsory motivation’.245 Schmitt’s imagery was specific and telling. Hobbes opened the way for Leviathan to be not only the awe-inspiring mythic monster, but the mega-machine:246

For technically represented neutrality to function, the laws of the state must

become independent of subjective content, including religious tenets or legal

justifications and propriety, and should be accorded validity only as the result

of the positive determinations of the state’s decision-making apparatus in the

form of command norms.247

For Schmitt, ‘technically represented neutrality’ signified processes that could be used to deliver any value, an ‘economical-technical apparatus’ that is indifferent between ‘a silk

241 Nonet (1990), p 669. 242 Kelsen (1992), p l 243 Schmitt (1922), p 21. 244 Holmes (1995), pp 69–70. 245 Schmitt (1938), p 70. 246 McCormick (1997), p 271. 247 Schmitt (1938), p 44.

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blouse and poison gas’.248 Schmitt was prepared to declare the modern state producing

positive law as ‘a huge industrial plant’.249 Hobbes’ Leviathan wielding plastic positive

law allowed the fear of law to be formalised – that is, turned into a form, and to be

deployed for whatever end,250 including the end of securing technologically desirable

futures. Here the analysis reconnects directly with law as technology, for the sovereign is

the being that has transmuted law into technology,251 which has gone on to become the everyday of the law and technology enterprise, and allowed the Prohibition of Human

Cloning for Reproduction Act 2002 (Cth) and the Motor Car Act 1909 (Vic) to be in the

world. As Philippe Nonet comments ‘positive law is the metaphysics of modern

technology’.252

However, Dune does more than expose the sovereignty behind law as technology:

it shows the metaphysical ground on which sovereignty, and with it law as technology,

arises. Its ultimate lesson is ontological. That Dune registers on the essential plane is

perhaps not unsurprising. Herbert casts Paul’s prescience as an ontological experience:

He wonder if it might be possible that his ruh-spirit had slipped over

somehow into the world where the Freman believed he had his true existence

– into the alam al-mithal, world of similitudes, that metaphysical realm where

all physical limitations were removed.253

Dune not only shows the leviathanic monster behind the monstrous law as technology, but shows just how monstrous law as technology is. In one of Paul’s rants against his

248 Schmitt (1923b), p 39. 249 Schmitt (1922), p 65. 250 Schmitt (1922), p 28. 251 Schmitt (1922), p 35. 252 Nonet (1990), p 683. 253 Herbert (1965), p 363.

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Empire in Dune Messiah, Herbert provides a glimpse of a more essential contribution,

explicitly linking law and death:

‘Ahh. Laws,’ he said. He crossed to the window, pulled back the draperies as

through he could look out. ‘What’s law? Control? Law filters chaos and what

drips through? Serenity? Law – our highest idea and our basest nature. Don’t

look too closely at the law. Do, and you’ll find the rationalised

interpretations, the legal casuistry, the precedents of convenience. You’ll find

serenity which is just another word for death.’254

Death

There is ample death in Dune.255 Paul achieves sovereignty over the deaths of (in order)

Shadout Mapes,256 most of the Atreides’ army,257 Wellington Yueh,258 his father,259

Duncan Idaho,260 Liet-Kynes,261 Jamis,262 numerous unnamed Freman who challenge his

leadership,263 Gurney Halleck’s smuggler crew,264 his first-born son,265 Sardaukar and

Freman during the Battle of Arrakeen,266 Baron Harkonnen,267 Thufir Hawat268 and

Feyd-Rautha Harkonnen.269 Leto II’s sovereignty follows the death of his mother Chani

254 Herbert (1969), p 168. 255 McLean (1985). 256 Herbert (1965), p 155. 257 Herbert (1965), p 169. 258 Herbert (1965), p 171. 259 Herbert (1965), p 176. 260 Herbert (1965), p 215. 261 Herbert (1965), p 264. 262 Herbert (1965), p 290 263 Herbert (1965), pp 362–363. 264 Herbert (1965), p 391. 265 Herbert (1965), p 432. 266 Herbert (1965), p 443. 267 Herbert (1965), p 440. 268 Herbert (1965), p 450. 269 Herbert (1965), p 461.

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in childbirth,270 the Preacher’s guide Assan Tariq,271 Paul as Preacher272 and Ali

Atreides.273 Accompanying these actual deaths are Paul’s and Leto II’s faked deaths –

Paul’s in flying the ornithopter into the sandstorm in Dune274 and then again marching

into the desert in Dune Messiah,275 and Leto II in faking the success of the Corrino assassination attempt with the Laza tigers in Children of Dune.276 Finally, these deaths

are just a prelude to the deaths that flow once Paul and Leto II install themselves as

Emperor. Billions die in Paul’s jihad,277 and billions of billions are slaughtered ensuring

the eons of Leto’s Peace.278 Herbert seems to be sending a clear message that death is entwined with sovereignty. This relationship is something that even Hobbes underplays.

For Hobbes, the sovereign is a source of fear and awe emanating from its potential to do violence.279 However, Hobbes was caught in a bind. Not prepared to claim an

independent source of authority in the individual as a bulwark again the sovereign,

Hobbes nevertheless conceived the sovereign as necessary for the protection of the

individual from the chaos of the state of nature.280 In his major works, Hobbes turns to

natural law to attempt to weave sovereign and individual into a mutually reinforcing system.281 However, as Schmitt identifies, in building his theory of sovereignty

‘geometrically’ of the individual subject to natural law, Hobbes sowed the seeds that

270 Herbert (1969), p 205. 271 Herbert (1976), p 322. 272 Herbert (1976), p 363. 273 Herbert (1976), p 368. 274 Herbert (1965), p 220. 275 Herbert (1969), p 216. 276 Herbert (1976) pp 163, 175–181. 277 Herbert (1969), p 92. 278 There is a report of a historical atrocity by Leto II. In 2116 of his reign, the Bene Gesserit record that Leto executed nine historians by burning them alive ‘on pyres of their own published works’. Herbert (1981), pp 73, 14–125. There is a more general observation about Leto II’s ‘bloody executions’: Herbert (1981), p 134. 279 Hobbes (2008), p 113. 280 Hobbes (2008), p 146. 281 Hobbes (2008), pp 86–107; see also Hobbes (1969), pp 81–95; Hobbes (1983), pp 51–76.

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were to grow into liberal claims of rights against the state:282 ‘The sovereign, who in the deistic view of the world, had remained the engineer of the great machine, has been radically pushed aside. The machine now runs itself.’283 Hobbes seems to suggest in

Leviathan that individuals have a right to resist when the sovereign sends for the executioner.284 Yet Hobbes is particular in emphasising that ‘the sovereign never lacks the right to do any thing … It may and often does happen in commonwealths that a subject may be put to death by the commands of the sovereign, and yet neither does a wrong to the other.’285 It seems that, in Hobbes’ own schema, the decision by the sovereign to kill allows a micro-state of nature to engulf sovereign and doomed subject.

This means that neither is ‘wrong’ – the sovereign in bringing death and the subject in resisting. However, the outcome of this staged ‘original’ clash of wills is inevitable.

Herbert’s celebrated image of sandworms obliterating humans seems apt.286

Schmitt’s concern with the transformation of Leviathan into a ‘technically neutral state’287 that followed from Hobbes was the capacity of this state to consume its subjects.

Postulating alternative Judaic imagery for the state, Schmitt suggests that ‘the very mention of the name “leviathan” could evoke the recollection of dreadful Asiatic myths of an all-demanding Moloch or an all-trampling Golem’.288 Schmitt does not hold with this reading, preferring – at least in Political Theology in 1922 – the mythic, decisionist

282 Schmitt (1938), pp 84–97. 283 Schmitt (1922), p 48. 284 Hobbes proposes that a natural law is that: ‘A covenant not to defend myself from force by force is always void.’ Hobbes (2008), p 93. This is taken up in Chapter 21 to be a liberty to defend their own bodies even against those that lawfully invade them. Hobbes (2008), p 149; see Dyzenhaus (1994), p 16. 285 Hobbes (2008), p 146. 286 Hobbes (2008), pp 124–125. McCormick writes that: ‘It [the state] would be an entity with the unpredictable subjectivity of the state of nature and the irresistible objective efficiency of the sovereign state.’ McCormick (1997), p 275. 287 Schmitt (1938), p 45. 288 Schmitt (1938), p 95.

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and representative manifestation of Leviathan as the solution to the mechanistic state.289

Here, Schmitt’s preference for myth sends warnings. Schmitt’s (and Strauss’s) criticisms of Hobbes’ proto-liberalism in his right of resistance reveal their preferred vision of humanity as ‘needed to be ruled’.290 While concerned with the state as Moloch,

particularly if it was seized by the communists,291 Schmitt was more concerned with the

liberal undermining of the state’s capacity for collective protective violence, to defend

itself from the enemy ‘when the organizations of individual freedom were used like

knives by anti-individualistic forces to cut up leviathan and divide his flesh among

themselves’.292 Schmitt tried to articulate another Leviathan that reconnected myth with

the fear of death, and found it – at least from 1933 to 1938 – in the National Socialist

state.293

Remembering Schmitt’s problematic involvement with the Nazi regime reminds

of its horrors, wars and deaths. Nevertheless, the liberal aversion to speaking about

sovereignty prevented an appreciation of death within legal theory. John Austin spoke of

commands backed by threats, but did not dwell on the necessary consequences of

disobedience, beyond a fairly unspecific ‘evil’.294 H.L.A. Hart, could only speak of this

through agricultural metaphors when he suggested that a society composed solely of subjects whose obedience to law is secured by external force would be ‘deplorably sheeplike; the sheep might end up in the slaughter house’.295 Lon L. Fuller, like Kelsen,

tried to get around the necessity for death in sovereignty through excluding such

289 Schmitt (1922), pp 33–35. 290 McCormick (1997), p 275. 291 Schmitt (1938), p 95. 292 Schmitt (1938), p 74. 293 McCormick (1997), pp 282–286. On Schmitt’s career under the Nazis, see Bendersky (1983) and Müller (2003), pp 37–41. 294 Austin (1998), pp 12–14. 295 Hart (1961), p 114.

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elemental violence from the study of law,296 an approach that was continued with the

interpretative turn in jurisprudence and Ronald Dworkin’s account of law as a rational

Herculean activity of best fit.297 It took the reception of another Weimar intellectual, a

correspondent with Schmitt298 but from a radically different political and religious

tradition – Walter Benjamin – for a more thoughtful engagement with death. Through

what has become an iconic text of ‘postmodern or deconstructive’ jurisprudence,299

Jacques Derrida introduced Benjamin’s ‘Critique of Violence’ (1921) to Anglo-American jurisprudence.300 Via Derrida, Benjamin reminded jurisprudence that legal order was founded on two violences: the violence that founds, and the violence that preserves the law.301 Both become indistinguishable in the modern apparatus of the police state. The shared commonality of both founding and preserving violence is as species of ‘mythic violence’, as opposed to ‘divine violence’, and the defining characteristic is the need for blood.302 In Benjamin’s words:

Mythical violence is bloody power over mere life for its own sake, divine

violence pure power over all life for the sake of the living. The first demands

sacrifice, the second accepts it.303

It is tempting to locate Benjamin’s essay within his life, and to consider, in his

suicide on the Spanish border in 1940 while fleeing occupied France, that the text was a

response to the Nazi state. However, ‘Critique of Violence’, dated 1921, anticipated

296 Fuller (1969), p 110 297 Dworkin (1977), pp 105–123. The absence of death in Dworkin clearly brought out by Cover (1986). 298 Weber (1992); Agamben (2005), pp 52–64. 299 Davies (2008), p 377; Douzinas and Gearey (2005), p 70. 300 Benjamin (1978); Agamben (2005), p 37. 301 Derrida (1992), pp 35–40; Douzinas (2007), p 252. 302 Derrida (1992), pp 42–45, 52. 303 Benjamin (1978), p 297.

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rather than ‘witnessed’ the bloody machinations of Nazism.304 Giorgio Agamben,

drawing upon Schmitt and Benjamin, does attempt to construct a juridical account of

Nazism’s signature excess: the concentration camp. For Agamben, the camp is not to be

understood as just an evil, the tragic production of madmen, but rather is a manifestation

of the perfection of modern sovereignty in the West.305 In Benjamin’s terms, sovereignty

demands ‘bloody power over mere life for its own sake’. The camp makes explicit that

the ultimate fact of sovereignty is violent power over bare life, the very physical bodies of subjects.306 Agamben shows that, in the brute existence of sovereignty, the human

becomes an animal: a material substance to be used and consumed.307 The fear of death

that was the basic commitment on to which Hobbes erected his mythic Leviathan is

revealed in the camp as dependent on something more basic. In order to fear Leviathan,

the sovereign must have capacity to deliver on its promise: it must bring death. In

essence, it is not Leviathan the sea serpent that all but God fears; nor is it Behemoth,

Hobbes’ code for the state of nature; nor is it a Golem, an animation of lifeless matter;

nor is it a Moloch, with the connotation of complicated, ritual sacrifice. It is something

more primal. To raid, like Herbert and Schmitt did, kabbalah mythology, the more

appropriate deification of modern sovereignty would be the Angel of Death – Samael.308

Herbert, unlike contemporary legal theory, does not need the continental

philosophic supplement to reveal that death is the sovereign’s being. This is what he

shows in Dune. Paul becomes sovereign through learning how to kill. O’Reilly suggests

304 Derrida (1992), p 57. 305 Agamben (1998), pp 166–174. 306 Agamben (1998), p 175. 307 Agamben (1998), p 187; Agamben (2004), p 76. 308 While the sources are many, most accounts have Samael in two related, yet different manifestations: as the faithful servant of God who brings death and also a demon closer to Satan of the New Testament who was the serpent in Genesis. Unifying the representations is Samael as bringer of death. See Jung (1925); Dan (1980).

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that in Dune Paul learns that: ‘Death comes easily, and one must be willing to take life

easily.’309 This is the importance of the Jamis. Taking Jamis’s life is Paul’s confirmation

on the road to sovereignty. Paul is innocent of all the deaths that surround him up to that

moment; he saves Shadout Mapes from the hunter-seeker.310 However, after Jamis Paul is

responsible for death: directly as the wielder of the ‘point [that] slid home into his [Feyd-

Raytha’s] brain311 and indirectly as warlord leader of the Fremans. The play on the Janis is possibly deliberate: Jamis looks back to Paul the human boy, subject to the vagrancies

of the universe and forward to Paul the sovereign, maker of worlds and killer of humans.

Looking forward further, Leto II is represented as Samael, particularly in the Gnostic

image of Samael as a lion-headed serpent.312 Leto II brings death. Beyond claims to

predator status, Herbert has Leto killing or threatening to kill throughout the text. He

crushes the aged Duncan Idaho,313 he orders the execution of the Corrino heir,314 he runs

over Face Dancer assassins with his cart,315 he discloses he had killed one of Hwi

Noree’s ancestors,316 he threatens to crush the Ixian civilisation,317 he threatens to kill

Reverend Mother Luyseyal, he enters the fray outside the Ixian embassy as a ‘terrible

death-machine’,318 and he ‘orders’ his major domo Moneo to kill the ex-ambassador from

Ix, and the brains behind the complicated plot against him, Malky.319 In between, various

309 O’Reilly (1981), p 70. 310 Herbert (1965), p 69. 311 Herbert (1965), p 461. 312 Davies (1980). Helped in addition, albeit cryptically, by Samael’s status as guardian angel of Rome and Leto’s curse on the Romans to have infected humanity with the curse of government. Herbert (1981), p 42. 313 Herbert (1981), p 30. 314 Herbert (1981), p 126. This execution is remembered by the replacement Duncan Idaho as a ‘fat little man lying in a pool of his own blood’: Herbert (1981), p 209. 315 Herbert (1981), p 141. 316 Herbert (1981), p 158. 317 Herbert (1981), p 165. 318 Herbert (1981), p 270. The fight is described at Herbert (1981), pp 264-265. 319 Herbert (1981), p 408.

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other characters comment on Leto II’s killing.320 Leto II emerges from the text as a death-

bound figure, from descriptions of his underground lair as a mausoleum321 holding the

‘the water, the bones and dust of his ancestors and of the Atreides who had lived and died

since the Dune time’,322 to the awed Fish Speaker description of his involvement in the embassy skirmish: ‘he flew down from above them and executed a terrible slaughter among the sinners’.323 Leto II does ‘not play hide-and-seek with death’.324 His reflections

on death are obsessive:

‘Don’t you understand about death?’ [Leto II] asked. ‘You must understand.

The species must understand. All life must understand.’

‘Help me, Lord,’ she whispered.

‘It is the most profound experience of any creature,’ he said.325

In Leto II, Herbert shows what sovereignty must do: it must kill. This is a truth that Hobbes and also Schmitt obscured. This means that the plastic law of modernity, the law radiating from the sovereign, is grounded on death. Herbert has Paul anticipating this realisation:

The convoluted wording of legalisms grew up around the necessity to hide

from ourselves the violence we intend toward each other. Between depriving

a man of one hour of his life and depriving him of his life there exists only a

difference of degree. You have done violence to him, consumed his energy.

Elaborate euphemisms may conceal your intent to kill, but behind any use of

320 Herbert (1981), pp 17, 39, 64, 204, 308, 318. 323, 388. 321 Herbert (1981), p 37. 322 Herbert (1981), p 19. 323 Herbert (1981), p 289. 324 Herbert (1981), p 234. 325 Herbert (1981), p 256.

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power over another the ultimate assumption remains: ‘I feed on your

energy.’326

However, this is not the end of Dune as technical legality. Dune not only shows the

commitment of death on which modern sovereignty and law are erected, but it

shows the other essential ‘ground’ – time.

Time

It is surprising that the received literature on Dune does not make more of Herbert’s clear

preoccupation with time throughout the series.327 First, Herbert plays with what could be called ‘epoch time’, the meta-timescale of civilisations. The events in Dune occur 10,000 years after the formation of the Empire in the aftermath of the Butlerian Jihad, which in

turn was the culmination of thousands of years of machine age that stretched back to the

twentieth century. Book I and II of Dune unfold chronologically, yet Book III leaps three years into the future, while Dune Messiah occurs seventeen years later. Children of Dune jumps another seven, leading to the 3500-year fast-forward to the end of Leto II’s reign in

God Emperor of Dune, and 2000 years of famine, scattering and revival until the events of the final two books. Second, there is the phenomenon shared by the Atreides and the

Bene Gesserit Reverend Mothers of ‘remembering’ past lives. Here the past is animated in the character’s present. Finally, there is Paul’s and Leto II’s faculty of prescience, shared in a lesser way with the Guild Navigators, that renders futures in the present. This emphasis on time is reaffirmed in Herbert’s many asides, pontificating and gesturing about time – especially surrounding Paul and Leto II. Paul’s first forays into his exceptional being are described as:

326 Herbert (1969), p 160. 327 DiTommaso (1992).

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Awareness flowed into that timeless stratum where he could view time,

sensing the available paths, the winds of future … the winds of the past: the

one-eye vision of the past, the one-eye vision of the present and the one-eye

vision of the future—all combined in a tri-ocular vision that permitted him to

see time-become-space.328

In a similar – although more pompous – vein, Leto II tries to explain his being:

‘Very well,’ he sighed. ‘First, as to Time: There is no difference between ten

thousand years and one year; no difference between one hundred years and a

heartbeat. No difference. That is the first fact about Time. And the second

fact: the entire universe with all of its Time is within me.’329

In Dune, Herbert can be seen playing with time – both timescales and the personal experience of time.

Louis E. Wolcher has recently written about the essence of time for law. He

suggests that the West imagines time in two ways. The first is the timescale, which is the

formal progression of time as a linear series of events (‘Past→Present→Future’), each a known space through which objects move.330 The plotting of events of Herbert’s future-

universe represents this image of time. The second is existential time, the experience of

beings living in the present. Here, past and future do not occupy known space (points on

a line), but ‘the future as the wellspring of an unseen force that ceaselessly renews and

surrounds the present, continually pushing the past into oblivion over the horizon of the

now’.331 Wolcher represents this as (‘Future→PRESENT→Past’).332 In Dune, this is the

328 Herbert (1965), p 281. 329 Herbert (1976), p 95. 330 Wolcher (2008), p 213. 331 Wolcher (2008), p 213.

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Freman’s life before the Atreides, with the immediate concerns of weather, spice,

Harkonnen patrols and dreams of a green Arrakis that fade into distant recollections of

past injustices and planetary migrations. Wolcher’s examination of time ends, in an

attempt at synthesis, through Martin Heidegger and Kafka’s Er(He) (1920) of a (possibly

quite unremarkable) Western truth about time ‘that time is not an objective property or

determination of things in themselves, but rather a medium or mode of ordering which

finds it true home only in the context of human experience’.333 There are moments in

Dune when time is experienced in a human context. Leto II comments that: ‘Time runs out for a finite observer. There are no closed systems. Even I only stretch the finite matrix.’334 And later says: ‘Sometimes, time rushes by me; sometimes, it creeps.’335

However, Leto II is not human; Herbert even has him declaring himself ‘the ultimate alien’.336 He is sovereign and, as with the revelation of death for sovereignty, Dune tells

something about the relationship of sovereignty to time.

Hobbes’ sovereign was to maintain peace. Killing was the basic tool within the

sovereign’s peace-keeping arsenal. However, the sovereign, remaining in the state of

nature, possessed the baseline rationality that is the natural inheritance of humanity.337

Inherent in this rationality is an assigning of temporal mastery. It involves thinking about the future and taking active steps in the present to achieve future goals. This

‘prudence’,338 to uses Hobbes’ term, is a function of a thinking being in time: ‘prudence

332 Wolcher (2008), p 213. The faded past and the future is in the original. 333 Wolcher (2008), p 216. 334 Herbert (1981), p 70. 335 Herbert (1981), p 309. 336 Herbert (1981), p 172. 337 Hobbes (2008), p 23. 338 Hobbes (2008), pp 12, 44.

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is a presumption of the future contracted from the experience of past time’.339 In this

often passed over definition, Hobbes maps the constituents of reason – projection of

future events based on reflection, or ‘experience’, of past events. A clearer awareness that

modern reason emanates from time is one of Heidegger’s gifts to the West.340 However,

it is a gift that has yet to be appreciated by legal theory. That law is grounded on time

appears a truism. Legal practice is dominated by time: limitations, sentences, court dates,

appointments, billable hours.341 Jurisprudence talks excessively about time, but not about

Being in time. The common law speaks to history, custom and a notion of continuity with

the past.342 Positivism – as critics like Dworkin reveal clearly – involved a succession of

law-making events located in an institutionalised history.343 In response, the interpretative jurisprudence of Dworkin focuses on legal decision-making in the present, while deconstructive replies to the interpretative project speak of the future.344 Yet, beyond recognition of the temporality of law,345 how law and time interpose has yet to

adequately be theorised.346

Dune opens the ground for theorisation of time and sovereignty. In particular,

Dune shows that sovereignty involves a different relationship with time then either the

linear or experiential times summarised by Wolcher or his Heidegger/Kafka-informed

claim that time is human experience. The sovereign has to be prudent in a way that the

human subject does not. Humans fear for their own in the state of nature, a fear based on

the immediacy of violence of the war of all against all. However, the sovereign is

339 Hobbes (2008), p 13, italics in original. 340 Cornell (1992), p 1590. 341 French (2001), pp 664–665. 342 Postema (1986), pp 3–38. 343 Dworkin (1977), p 17. 344 Cornell (1990), p 279; Cornell (1992), p 1579. 345 Tontii (2004), p 180. 346 Nonet (2007); French (2001).

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responsible for all the subjects of the commonwealth and must, ‘prince like’, sort

‘friends’ from ‘enemies’ and also deal with internal sedition. The sovereign must, in

Dune-speak, deal with ‘[f]eints within feints within feints’ of a civilised War of

Assassins.347 He must deal with the double and triple-speak of ambitious power groups at

banquet.348 The sovereign must ensure that the spice flows. In short, the sovereign’s prudence involves making decisions within a much more complicated tangle of activities and projects than either the human in the state of nature or the human who has been freed by the social contract to get on with ‘peace and profit’.349 The sovereign requires, to use

Herbert’s phrase, ‘a tri-ocular vision’350 of past, present and future. He must imagine

futures based on a reasoned appreciation of how activities of the present can be

understood as unfolding. Its vision must be beyond that of a mere human. Here Herbert’s

Atreides animate this time mastery of sovereignty. They directly embody the ‘experience’

of the past, the memory of countless ancestors and they ‘sampled the time-winds’351 of the future. As the Machiavelli and ecology reading of the Atreides emphasise, they have the capacity to appreciate consequences, at least better than their rivals, within the complex systems that they master.

Here, time and sovereignty suggest that the sovereign is atemporal – outside time

– looking down as God, or at least Samael, at the unfolding of the world. This is exactly why Hobbes described Leviathan as a god. Herbert confirms as much when Leto II greets

his father in such terms – ‘“You are the fihaquiqa, The Reality. You are Abu Dhur,

347 Herbert (1965), p 353. 348 Herbert (1965), pp 123–142. 349 Hobbes (1990), p 113. 350 Herbert (1965), p 281. 351 Herbert (1965), p 457.

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Father of the Indefinite Roads of Time.”’352 However, Hobbes’ deification of the

sovereign is partial: his famous phrase is ‘mortal god’353 and the adjective ‘mortal’ makes

a profound difference. While being sovereign – killing in the name of peace or, more

mundanely, making positive law for technological futures – involves a striving towards

timelessness, Hobbes specifies that sovereignty lives within time. It is mortal and can die.

It is the death of the sovereign that rallied Hobbes, and also Schmitt nearly three centuries

later, to raise their pens in sovereignty’s defence. Hobbes’ sovereign has birth in the

social contract and remains vulnerable to political pathogens. Leviathan can be consumed

by a bigger leviathan or torn apart by behemoth.354 Ultimately, Paul dies – ironically

stabbed by one of his own priests – and Leto II disintegrates after his plunge into the

Idaho river; his animal selves disappear – his sandtrout skin burrows to encase the water,

and the pre-worm body ‘slough[ed] away’ leaving a pathetic remanent of bone and

flesh.355 Here sovereignty is in history. The sovereign’s acts are not timeless. The

sovereign is not located, as in pre-modern orders, in a mythic time of creation – God in

Genesis – but merges with lived time to be an ever-present possibility.

Further, the sovereign is not just in history, but becomes the author of history.356

The past as experience needs to be known and ordered, made useful to the present. Here,

Herbert is insightful. The past, represented as the cellular ancestral memory, is perceived as a dangerous thing. It is feared that the ‘pre-born’ would be an ‘abomination’ because an ancestor’s memory would dominate, demonstrated by the Baron’s possession of Alia.

The first task that Paul and Leto II undertake on their road to sovereignty is master their

352 Herbert (1976), p 320. 353 Hobbes (2008), p 116. 354 Holmes (1995), p 71. 355 Herbert (1981), p 451. 356 Douzinas (2006b), p 17.

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memorial inheritance: they order the past into something useful, into history. Derrida

regarded this ability to create history in present time as a critical element of modernity,

giving it the name ‘white mythology’.357 The phrase plays on ambiguities.358 ‘White’ is

used in two ways: it is a white mythology because it belongs to the West; and it is white

because it is a colourless myth. In merging mythic and lived time, the colour and poetry

of the creation stories of pre-modernity are lost. Creation becomes a bland task of the

sovereign’s officers, writing dates and decrees on white paper.

Thus sovereignty possesses, to use Costas Douzinas’s phrase, ‘a dual time’. 359 In being sovereign, it must be timeless, outside time looking at past, present and future with a tri-ocular vision. Yet sovereignty remains time bound, experiencing linear time, and with that birth and death and an immediate present that becomes more than past, it becomes history. In animating sovereignty in the Atreides, Herbert reveals this complicated relationship of sovereignty to time. However, there is a shared character to the sovereign’s dual time. Herbert’s sovereigns do not know the future: they can see more than mere humans but total prediction elude them.360 In this, they remain future-focused, facing a universe that has escaped control. Similarly, their linear temporal existence opens to an unknown future – both Paul and Leto II fail to foresee the moment of their death. This discloses something about sovereignty and time. To be sovereign is to be future orientated. The sovereign does not write timescale, he makes timescales; nor does the sovereign experience the present as a ‘human experience’, he decides the limits on what subjects experience. The sovereign forever sifts the ‘time-winds’, predicting,

357 Derrida (1982), p 213. 358 Fitzpatrick (1992), p 32. 359 Douzinas (2006b), p 17. 360 Herbert (1981), p 21 Leto II: ‘Absolute prediction which equals death to me.’

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anticipating, responding, deciding and ultimately killing for the future. To rework

Wolcher’s syntax images of time, sovereign time as revealed through Dune is

‘FUTURE←past+present’.

Decisionism

In summary, Dune reveals sovereignty emerging from the alchemy of death and time.

Herbert’s texts are not entirely about messiahs, Machiavelli, ecology or Western

Buddhism, as documented in the received scholarship. Drawing upon the meta-theme of failure to control, Dune as technical legality has been revealed as a detailed rumination on the existence of sovereignty and, beyond that, how sovereignty is constituted in the alchemy of death and time. Leviathan – or more correctly Samael – kills for the future.

The figure that looms throughout the texts, behind Herbert’s veneer of religion, political manipulation, ecology and self-care, is the sovereign. Dune as technical legality does not form a speculative jurisdiction for a law and technology enterprise narration of what law should do with an emergent technology,361 nor does it articulate the mythform that

informed a specific, historical legal engagement with technology. Instead, it reveals the

essential commitments of law as technology – a desire for decisions that transform a

potential, formless legality, a raw power over bare life – into structures that facilitate

certain ways of life within a preferred technological future.

Dune therefore achieves two things. First, in its allusions to Hobbes, it thinks the

residual on the event horizon of the black hole that was the Frankenstein myth; law as

technology is stripped of its mundane technicality and seen as the monster that it is – a

361 Unlike Frankenstein, Brave New World or even Snow Crash, Dune does not appear as speculative jurisdiction in the JOLTS. One exception is Kayser on virtual-worlds, who epigraphs her article on virtual-worlds with the Bene Gesserit maxim that opens Dune: ‘A beginning is the time for taking the most delicate care that the balances are correct.’ Kayser (2006), p 59, Herbert (1965), p 9.

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creature of death and time. The second is the Schmittian ‘solution’ to technological law

in the ‘representative’ sovereign – the sovereign that represents the people as an organic

whole, as the People, in the making of decisions. Instead of hiding the sovereign decision

within constitutions, rights and process, Schmitt celebrated the deciding sovereign,

famously in the catchphrase that the sovereign decides the exception.362 Schmitt’s

sovereign decides when emergencies require the normal legal system to be negated. As

an exposé of sovereignty, there is much in Dune that speaks to Schmitt’s representative

and deciding sovereign. The Atreides are very keen to embody their people – whether it

is Paul and the Freman, or Leto II and the multitude of his Empire. They, notwithstanding

Paul’s cynicism or Leto II’s hubris, style themselves as the representatives of the multitude as a political unity. Further, Herbert’s Atreides are full of decisions that negate law. Paul’s career in Dune amounts to a sustained exercised in law-breaking.363 He breaks the Freman law on political leadership by refusing to challenge Stilgar; he ‘finely’ negotiates the Great Convention’s prohibition on atomics; he negates the Imperial law of succession to place himself on the throne; and in Dune Messiah, he decides to ignore

Freman laws on the blind364 and, even when he does succumb and march into the desert,

he avoids the law of death. Leto II negates accepted laws of marriage to revive the

pharaohical practice in marrying his sister.365 In usual Herbert style, just so this message

is not missed, this deciding action is glossed by exegesis: ‘Arrakis teaches the attitude of

the knife-chopping off what’s incomplete and saying: ‘Now, it’s complete because it’s

362 Schmitt (1922), p 5. 363 Barton-Kriese (1993), pp 211-212. 364 Herbert (1969), p 163. 365 Herbert (1976), p 379.

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ended here,’ declares an epigram in Dune.366 Farad’n Corrino, Leto II’s rival for the

throne in Children of Dune, remarks that: ‘Arrakis [is] a training ground for hard

decisions.’367 And Leto II, discussing his favourite topic – himself – observes: ‘I can play

at being callous and I can make the necessary decisions, even decisions which kill, but I cannot escape the suffering.’368

Leto II’s linking of decision, killing and suffering points to the limit of Dune as

technical legality. Herbert’s metaphysical register on the essence of sovereignty means

that once Paul and also Jessica are off-stage, what is left is desert – a fairly dry palace

drama of tyrants and super-humans. The engaging connection with humanity that both

embody – youth coming of age, a mother coping with life’s vagrancies – is lost. This is

performative of sovereignty – that it comes from humanity to be something animal and

alien. Indeed, it becomes a 7 metre-long worm with human hands and face. What is left

undone in Dune is how bare life is lived in the shadow of Samael, and the two monsters

that are one: technology and law. In this demonic age, is Being still worth being? This is

the essential question left by the implosion of Frankenstein myth. The next chapter crafts

a response to this question through looking a text whose core revolves around ‘just’

living in the midst of decision, killing and suffering – Battlestar Galactica.

366 Herbert (1965), p 166. 367 Herbert (1976), p 186. 368 Herbert (1976), p 313.

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Battlestar Galactica as Technical Legality

Fraking Toasters!

– Common exclamation, Battlestar Galactica, 2003–10

The monomyth climaxes with the ultimate struggle between the ‘terrible father’ and the

hero.1 In overcoming the challenge, the hero learns about self and can return changed and

triumphant to the world of becoming.2 This chapter is the climax of this thesis, but the

‘victory’ is not monomythical, for realms of Being and becoming merge. This chapter

therefore continues the ontological examination of technical legality, through a detailed

analysis of the Science Fiction Channel’s recent Battlestar Galactica (2003–2010)3 series. It is argued that Battlestar Galactica shows that technology collapses the received

Western metaphysics, but this collapse is not the black hole-like implosion that marked the Frankenstein myth. Battlestar Galactica affirms that Being continues, but that Being gives way to technological Being-in-the-world. This chapter ends with this express preference for Haraway over Heidegger, through free responsibility for becoming opening to confidence with myth.

This argument is presented in two sections. The first section locates Battlestar

Galactica, exploring its thematics and basic narrative arc. It then takes seriously the invitation of Schmitt and decisionism that closed Chapter 6, but shows that Battlestar

1 Campbell (1968), pp 126–149. 2 Campbell (1968), p 229. 3 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003); Olmos, The Plan: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 January 2010).

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Galactica does not just re-enact science fiction’s tendency to fascist fantasies.4 In

Battlestar Galactica’s identification of sovereign and subject, the public becomes the personal. This movement away from the public to identity, however, is not complete.

Behind the show’s animation of identity lies the now familiar monster, but in an unfamiliar environment. Closing the first section is the fundamental realisation glimpsed in Chapter 4 that in modernity the personal, threatened by essence, discloses the technical.

The second section draws upon these strands. Battlestar Galactica rethinks the metaphysics of technology. Unlike Star Trek: Nemesis, in Battlestar Galactica the distinction between essence and artefact has been completely blurred. Here Battlestar

Galactica seemingly performs the ‘end’ of Western metaphysics in the occupation of

Being by Enframing. This climax appears to mark the triumph of the monster. However, in this very defeat lies redemption. Battlestar Galactica, in its apocalyptic sensibilities, suggests that living remains after the end. The occupation of Being by Enframing can lead to technological Being-in-the world, which leads to affirming life and myth.

1. Sovereigns and Subjects in Battlestar Galactica

This section resembles the second section from Chapter 6 in that it engages with the

thematics that critics have readily seen in Battlestar Galactica. The obvious politics of

the show provide an opportunity to engage directly with Carl Schmitt, who has been the

‘wizen man’5 of this thesis. However, placing Battlestar Galactica in direct engagement

with the theorist of the exception reveals a limit in Schmitt: the infection of the public by

4 Roberts (2006). 5 Campbell (1968), p 69.

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the private. This turns to another thematic readily identified in Battlestar Galactica: identity. Battlestar Galactica confounds a progressive liberal reading, just as it confounded Schmitt’s illiberalism. In the show’s animation of the anxieties of identity, there can be seen a monstrous residual of essence and technicality. But before these thematics can be explored, an overview of Battlestar Galactica is required.

Space Ships, Killer Robots and the End of Worlds

Any analysis of Battlestar Galactica must begin with the original television series of the same name.6 The original series had a short run of seventeen episodes during 1978 and

19797 with a dismal spin off, Galactic 1980 (1980), which lasted for ten one-hour episodes.8 Critics condemned the original series as a cheesy Star Wars rip-off,9 a point taken up by George Lucas who commenced proceedings.10 In contrast, the reimagined series ran for four seasons, comprising a mini-series/pilot (2003),11 a thirteen-episode first season (2005),12 a twenty-episode second season (2005–06)13, a twenty-episode third

6 Marshall and Potter (2008), p 3. 7 Colla, Saga of a Star World: Battlestar Galactica (American Broadcasting Corporation/Universal Studios, 17 September 1978); Bellisario, The Hand of God: Battlestar Galactica (American Broadcasting Corporation/Universal Studios, 29 April 1979). 8 Hayers, Galactica Discovers Earth Part I: Galactica 1980 (American Broadcasting Corporation/Universal Studios, 27 January 1980); Satlof, The Return of Starbuck: Galactica 1980 (American Broadcasting Corporation/Universal Studios, 4 May 1980). Both series were cancelled due to failing ratings: Muir (1999), pp 27–33. 9 Muir (1999), pp 37–40. 10 Twentieth Century-Fox Film Corp v MCA, Inc 715 F.2d 1327 (9th Cir. 1983); Hughes (1999), p 950. 11 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003). 12 Rymer, 33: Battlestar Galactica (Sci Fi Channel/NBC Universal, 14 January 2005); Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 April 2005). 13 Rymer, Scattered: Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 July 2005); Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006).

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series (2006–07)14 and a twenty-two-episode final fourth series (2007–09),15 which

included the telemovie Razor (2007)16 and a stand-alone telemovie The Plan (2010).17 It was a ratings and critical success,18 inspiring a prequel spin-off, Caprica (2010– ).19

Unlike its predecessor, the new series also received widespread mainstream acclaim, being ranked as the top television series by Time Magazine for 2005.20

The basic framework of Battlestar Galactica remains faithful to Glen A. Larson’s

original, with images and narratives from post-apocalyptic science fiction mixed with

space opera. The post-apocalyptic elements form the backbone of the story; H.G. Wells’

War of the Worlds is there in its mega text. Human society lived in a federation of

‘colonies’ on twelve planets. All the colonies are destroyed in a sudden attack, leaving a

band of refugees to form a ‘ragtag fleet’ of spaceships led by the sole surviving

battleship/aircraft carrier, the Battlestar Galactica.’21 The surrounding imagery is space

operatic. The destructive enemy are malignant robots, the Cylons. The backdrops are

planets, stars and mile-long spaceships, offering plenty of scope for Star Wars-style space

combat action.22 There are top-gun pilots with attitude straight from the pages of Robert

14 Mimica-Gezzan, Occupation: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006); Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007). 15 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 16 Alcalá, Razor: Battlestar Galactica (Sci Fi Channel/Universal Studios Home Entertainment, 24 November 2007). 17 Olmos, The Plan: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 10 January 2010). 18 Dempsey ‘Sci Fi’s ‘Battlestar’ Shines Brightly’, Variety, 11–17 April 2005, p 18; On critical fronts, there are three edited volumes devoted to the reimagined Battlestar Galactica: see Eberl (2008); Potter and Marshall (2008); Hatch (2006). 19 ‘SCI FI Announces Caprica’ 27 April 2006, accessed 16 May 2006. The first episode of Caprica aired in January 2010: Reiner, Pilot: Caprica (Sy Fy, 22 January 2010). 20 Poniewozik (2005). 21 Sontag (2004), pp 40–47. 22 See Woolnough, The Hand of God: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 March 2005); Nankin, Scar: Battlestar Galactica (Sci Fi Channel/NBC Universal, 3 February 2006); Nankin, The Passage: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8 December 2006).

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A. Heinlein.23 And the initial myth that these refugee humans are in search of the

thirteenth tribe of humanity on the lost planet of Earth conjures Erich Von Däniken’s

‘God is an Astronaut’ pop archaeology.24

However, the reimagined Battlestar Galactica modifies these basics. Foremost,

the Cylons are not the dim-witted, oscillating red-eye robots that they were in the

original. While there are some Cylons – denigrated as ‘toasters’ by the humans – that

resemble the shiny chrome originals, the reimagined series adds two twists. The first is

the Frankenstein, but more precisely Karel Čapek’s idiom-forming R.U.R. (1923)25 twist that the Cylons are humankind’s own rebelled creations. The second is that the Cylons have ‘evolved’ new organic humanoid models, termed ‘skin jobs’ by the humans in an obvious borrow from Blade Runner.26 Stylistically, the two series are very different. The

original presented Loren Greene’s ‘Moses’-style leader of Commander William Adama

leading, to the rallying sounds of an orchestral score, a futuristic humanity from the

brightly lit bridge of his spaceship.27 In contrast, the reimagined Galactica is a brooding

ribbed beast, an old warship constructed 50 years earlier. Its poxed exterior mirrors the

new Adama’s (portrayed by Blade Runner alumni Edward James Olmos) marked face. Its

interior lacks the techno-lavish aesthetics usually associated with television spaceships.

The Galactica is no Enterprise.28 Designed to fight an enemy that infected computer

networks, its grey interior resembles a World War II military vessel with manual airlocks,

23 Scholes and Rabkin (1977), pp 56–57. 24 On Larson’s debt to Von Däniken, see Muir (1999), p 5. 25 Čapek and Čapek (1961), pp 1–105. 26 True fans of the original will point out that ‘humanoid’, evolved Cylons were in Galactica 1980: see Neufeld Jr, The Night the Cylons Landed: Galactica 1980 (American Broadcasting Corporation/Universal Studios, 13 April 1980). 27 Muir (1999), p 5. 28 Ronald D. Moore, who was the chief creator of the reimagined series, was a long-term writer for the Star Trek franchise, and purposely conceived much of the aesthetics as a contrast to Star Trek: see Casey (2008), p 242; Everett (2008), p 192.

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paper correspondence and a scurrying crew.29 In this universe, there are no lasers or

advanced medical cures; spaceships shoot bullets, cancer kills after a long, painful decline, old equipment breaks down, and the weapons of mass destruction are nuclear bombs. Bear McCreary’s musical score is low key, featuring compositions by Philip

Glass, Celtic chants, ethnic drumming and Bob Dylan’s cryptic ‘All Along the

Watchtower’.30 The space battles are a quiet chaos of movement and explosions overlaid by the garbled radio communication of pilots swearing (the oft-heard ‘Frak/Fraking’), chimed with soft ethereal laments. Finally, the production values between the old and new diverge. The new series has a documentary style, hand-held cameras, rapid oscillations between characters and space battles where the camera itself is caught and flung about unable to track and zoom in on the action – all very unlike the sound stage scenes and static model spaceship shots of the original.

All this follows creator Ronald D. Moore’s desire that the new series takes the

‘opera out of space opera’.31 This is manifested in the inclusion of strong female

characters, a challenge to the traditional sexism of the genre.32 Complicating Adama’s

leadership of humanity is Laura Roslin (Mary McDonnell), the Education Secretary who

is elevated to ‘President of the Twelve Colonies’ when the 42 higher-ranked members of

the executive die in the Cylon attack. Also, much to the consternation of fans of the original,33 the charismatic swashbuckling hero character of Lieutenant Kara ‘Starbuck’

Thrace is a woman (Katee Sackhoff). So too the pilot, Lieutenant Sharon ‘Boomer’

29 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003). 30 On the score and sound effects in Battlestar Galactica, see Papanikolaou (2008). 31 McNamara, ‘The Hit That Zaps Sc-Fi Cliches’, Multichannel News, 28 March 2005, p 33. 32 Russ (1995), pp 41–59. 33 Dirk Benedict, the actor who originally played Starbuck, also was unimpressed: see Benedict (2004). On Benedict’s comments, see Kungl (2008).

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Valerii (Grace Park), changes gender and is revealed as a Cylon (Number Eight). While

the other major characters retain their gender from the original, they are presented in

significantly more complex ways. Captain Lee ‘Apollo’ Adama (Jamie Bamber),

Adama’s surviving son and Galactica’s chief pilot, is not the all-American hero of

Richard Hatch’s original; indeed, Bamber is English. Even Richard Hatch returns, in a

piece of brilliant casting, as the political prisoner and sometime Vice-President, Tom

Zarek. Nor is Dr Gaius Baltar (James Callis) the outright human traitor personally

commanding the Cylons in their genocide that he was in the original.34 Instead, he begins

the series as a lascivious, self-serving civilian scientist who worked for the Colonial

military, and whose intimate cavorting with a Number Six Cylon (the blonde and leggy

‘Caprica Six’, played by Tricia Helfer) allowed the Cylons to infiltrate the human defences, facilitating the attack.

One element developed by Moore (and co-creator David Eick) was the religious elements that were part of the original series.35 For critics, the one redeeming feature of the original was its borrowing from classical, Old Testament and Mormon mythology.36

However, unlike the original, where Colonial society was a militant theocracy (Adama was military leader, religious leader and political leader),37 in the new series the human

civilisation of the ‘Twelve Colonies’ appears pluralistic, secular and remarkably similar

to contemporary society. The cityscape of the planet Caprica, the capital of the colonies,

possesses the familiar high-rise office blocks, Greco-roman public buildings and river

34 Muir (1999), p 167. 35 Basson (2005), p 18. 36 Ford (1983). 37 Muir (1999), p 153.

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promenades of a Western metropolis (Vancouver, to be precise),38 although there are

hints that not all planets share this Western-style affluence.39 At the level of

interplanetary government, the humans appear to enjoy a democracy with the features of

liberal constitutionalism, including civilian control of the military. Religion is not a

dominate feature, although some planets are ‘bible belts’.40 And when religion is

involved, it is the pluralism of the Hellenistic pantheon that calls the humans’ devotion.41

In contrast to this liberal secular pluralism, the Cylon occupation of Caprica shows a hive of identical-looking duplicates going through the motions of being human, referencing the uncanny horrors of the clone canon.42 This sameness is reflected in the Cylons’ initial

zealous monotheism, justifying their destruction of humanity as ‘God’s will’ to impose a

divine sanction on the blasphemous and decadent humans.43

As with the complexity of Dune, a full summary of Battlestar Galactica’s four

seasons is difficult, although a touch of the monomyth can be discerned. Core to the

series narrative is the destabilising of certainties. However, a clear distinction can be

made between the mini-series and the first two seasons, and later episodes.44 The first half of the series possessed a predominately political emphasis involving fleeing humans, hunting robots and an emphasis on the politics of survival. However, the occupation of

38 Spawning a tourist industry of Battlestar Galactica locations, see Brooker (2007), 427. 39 Kroeker, Bastille Day: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 21 January 2005); Rymer, The Woman King: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 11 February 2007). 40 Mimica-Gezzan, The Captain’s Hand: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 17 February 2006). 41 Although Klassen suggests that the polytheism of the Colonials is not tolerant of diversity. See Klassen (2008), pp 360-361. 42 Woolnough, Downloaded: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 24 February 2006). 43 Kukkonen (2008). 44 A point observed by Charles (2008), p 451.

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the human settlement of New Caprica for the opening four episodes of Season 345 marked a changing set of identifications, with a movement from the political to the metaphysical for the rest of Season 3 as the fleet jumped through various astrophysical events chasing the legend of Earth.46 This metaphysical turn was cemented in the finale of Season 3, with Starbuck returning from the dead and the revelation that four characters, up until then seen so obviously as human, were ‘final Cylons’.47 Season 4 continued this destabilising of certainties and metaphysical turn with the Cylon’s civil war,48 the reception of rebel Cylons into the Colonial fleet,49 the discovery that the sought-after

‘thirteenth colony’ of Earth consisted of Cylons50 and the realisation that the Colonial and Cylon survivors become the ancestors of the humans-that-are-us.51

However, even while the macro-thematics moved to the metaphysical in Seasons

3 and 4, this was not at the expense of the political, which continued throughout the series. The seemingly obvious coding of a religious-based ‘clash of civilisations’52 in the early seasons of Battlestar Galactica allowed critics and fans alike to celebrate the series as an allegory of contemporary global politics.53 Indeed, this was Moore’s and Eick’s

45 Mimica-Gezzan, Occupation: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006); Mimica-Gezzan, Precipice: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006); Alcalá, Exodus Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 October 2006); Alcalá, Exodus Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 October 2006). 46 Nankin, The Passage: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8 December 2006); Rymer, The Eye of Jupiter Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 December 2006); Rymer, Rapture: Battlestar Galactica (Sci Fi Channel/NBC Universal, 21 January 2007); Nankin, Maelstrom: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 March 2007). 47 Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007). 48 Hemingway, Six of One: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 11 April 2008). 49 Moore, Disquiet Follows My Soul: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 23 January 2009). 50 Nankin, Sometimes a Great Notion: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 January 2009). 51 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 52 Huntington (1996). 53 On critical readings of Battlestar Galactica as post-9/11 science fiction see Ott (2008).

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express aim,54 made clear in the existence of ‘sleeper’ skin job Cylons who were activated and caused terrorist attacks;55 in the corridors that became spontaneous shrines to the dead from the cataclysmic attack;56 and in the picture on the wall of Colonial One, the President’s ship, of an image of the attack remarkably similar to the iconic firefighter and flag photograph from 9/11. Both the Cylons and the humans used suicide bombers.57

Further, there were individual episodes that involved torture of terrorist suspects,58 the use of sexual violence against enemy combatants,59 embedded press reporters,60 incompetence in office,61 reformed terrorists as politicians,62 ethically motivated murders,63 rigged elections,64 strikes,65 contemplation of the use of biological weapons66 and, as in Dune, the use of fear and religion to galvanise populations.67 There were coup d’états,68 mutinies,69 occupation70 and resistance.71 Indeed, all these themes, coupled

54 Basson (2005), p 12. 55 Hardy, Litmus: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 February 2005). 56 Greene (2006), p 9. 57 Mimica-Gezzan, Precipice: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006). 58 ‘Turner, Flesh and Bone: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 25 February 2005). 59 Rymer, Pegasus: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 23 September 2005); Rymer, Resurrection Ship Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 January 2006); Rymer, Resurrection Ship Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 January 2006); Alcalá, Razor: Battlestar Galactica (Sci Fi Channel/Universal Studios Home Entertainment, 24 November 2007). 60 Verheiden, Final Cut: Battlestar Galactica (Sci Fi Channel/NBC Universal, 9 September 2005). 61 Mimica-Gezzan, Fragged: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 29 July 2005); Kroeker, Resistance: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 5 August 2005). 62 Pate, Colonial Day: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 18 March 2005). 63 Rymer, The Woman King: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 11 February 2007). 64 Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 65 Rose, Dirty Hands: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2007). 66 Eagles, A Measure of Salvation: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 10 November 2006). 67 Hardy, The Farm: Battlestar Galactica (Sci Fi Channel/NBC Universal, 12 August 2005); Rymer, The Road Less Traveled: Battlestar Galactica (Sci Fi Channel/NBC Universal, 2 May 2008). 68 Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 April 2005).

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with the continual tensions in the Colonial military, between elements within the civilian

fleet, the politics within the Cylons, and reigning over it all the seemingly endless

opportunism of Baltar, led one Battlestar Galactica commentator to describe the series as

‘the West Wing in space’.72 With this clear coding of politics, it is unsurprising that a

politically focused secondary literature has emerged.73 Indeed, following the type of

analysis done on Dune,74 Jason P. Blahuta has examined Battlestar Galactica in

Machiavellian terms.75 Therefore, the place to begin is with the political, and particularly

the politics of the exception in Carl Schmitt.

Schmitt in Space

Following MacNeil’s method of reading popular texts jurisprudentially, analysis of

Battlestar Galactica as technical legality needs to begin with an acknowledgment that, as

with Dune and science fiction generally, there seems to be little law in Battlestar

Galactica. Early in the first season, Adama responds to a series of terrorist attacks aboard the Galactica by allowing an ‘independent tribunal’ to investigate.76 When the direction

of that investigation leads back to Adama, he shuts it down. In another episode, viewers

are never shown the working of the colonial military justice system that led to the death

69 Rymer, The Road Less Traveled: Battlestar Galactica (Sci Fi Channel/NBC Universal, 2 May 2008) (Mutiny on the Demetrius); Dahl, The Oath: Battlestar Galactica (Sci Fi Channel/NBC Universal, 30 January 2009) (full-scale mutiny of the Colonial military against Adama). 70 Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 71 Mimica-Gezzan, Occupation: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006); Mimica-Gezzan, Precipice: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006); Alcalá, Exodus Part I: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 16 October 2006); Alcalá, Exodus Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 October 2006). 72 Edwards (2006). 73 See, for example, Johnston-Lewis (2008); Ott (2008); King and Hutnyk (2009); Hagelin (2007), Ip (2009), pp 64–72. 74 Mulcahy (1996); Minowitz (1997). 75 Blahuta (2008). 76 ‘Hardy, Litmus: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 February 2005).

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sentence being imposed on two of Galactica’s crew.77 Both of these episodes show

scenes of individuals claiming the protection of rights and those claims being brushed

aside. Starbuck justifies her torture of the Cylon Leoben Conoy/Number Two (Callum

Keith Rennie) because, ‘It’s a machine, Sir, there are no limits to the tactics I can use.’78

Talk of establishing a tribunal system in the Fleet through ‘Executive Order 112’ becomes clouded in politics between Roslin, Apollo and Zarek.79 At one point in

Season 4, the rebel Cylons ask for extradition of the Cylon Boomer from Galactica, but

action and politics prevent this transfer.80 There are occasional references to legal documents, the constitutional ‘Articles of Colonisation’81 or the colonial military

regulations,82 but the precise wordings and concepts are left unsaid.

The two representations of courts in the series – Baltar’s trial at the end of

Season 3 and Adama’s trial by the mutineers in Season 4 – are both farce. Baltar’s trial

for his actions as President when collaborating with the Cylons on New Caprica,

unexpectedly given its ‘political show trial’ pretence, finds him not guilty.83 The court

becomes a stage for airing of the recriminations from occupation, and Baltar’s

‘innocence’ is won not so much by the weight of evidence as through the skills of his

77 Rymer, Pegasus: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 23 September 2005). 78 Turner, Flesh and Bone: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2005), (Starbuck). 79 Nankin, The Ties that Bind: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 April 2008). 80 Nankin, Someone to Watch over Me Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 February 2009). 81 Mentioned in the swearing-in ceremonies for Roslin and Baltar as President and Apollo as Acting President. Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003) (Roslin); Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006) (Baltar); Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 May 2008) (Apollo). 82 Rymer, The Road Less Traveled: Battlestar Galactica (Sci Fi Channel/NBC Universal, 2 May 2008). The mutineers on the Demetrius justified removing Starbuck from command by quoting ‘Article 10 of the Colonial Military Code’. 83 Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007).

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lawyer, Romo Lampkin (Mark Sheppard), in bringing the murky compromises of living

and resisting occupation out into the open. Adama’s trial by the mutineers, with the chief

mutineer Lieutenant Felix Gaeta (Alesssandro Juliani) as prosecutor, and with his co-

conspirator Tom Zarek as judge, is not a trial but a conclusion – even with Lampkin as

defence attorney.84 In providing a lawyer as a character – admittedly a minor one –

Battlestar Galactica does go further than most science fictions in providing some

substance for a law in literature analysis. However, as was observed in Chapter 1,

Lampkin is less a lawyer and more a knower of characters. Hiding his eyes behind

sunglasses, Lampkin is portrayed as deeply flawed. He is a kleptomaniac, egotistical and

cynical (‘Lampkin’s First Rule of Legal Dynamics: When an irresistible force meets a

moveable object, stand aside and wait for the class action’)85 yet, against his better judgment, he is also empathetic and caring86 – traits that leave him as President of the

Colonies in the ultimate finale.87

So, notwithstanding that, when asking Adama to sign ‘writs of forfeiture for the

ships he was borrowing’ to search for Roslin and the rebel Cylons in Season 4 Lampkin

makes a cynical mention that ‘one of the less ennobling features of a legal culture, no one

wants to take responsibility’,88 Battlestar Galactica does not consistently show this legal

culture ‘boarding a wagon train to the stars’.89 Nor does it present a ‘state of nature’, as

84 Rose, Blood on the Scales: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 February 2009). 85 Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 May 2008). 86 Notwithstanding whinging, he cares for and about his deceased wife’s cat ‘Lance’ (Young, The Son Also Rises: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 March 2007); Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 May 2008) and he helps Starbuck with a wounded Sam Anders (Michael Trucco) in Rose, Blood on the Scales: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 February 2009) 87 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 88 Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 May 2008). 89 Peltz (2003).

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does some post-apocalyptic science fiction, as the precursor for a retelling of the social

contract.90 Life is nasty and brutish for the refuges in the Fleet, particularly for the civilians crammed into ‘Dogsville’ on Galactica’s lower decks,91 but there are forms of order – self-generated by factions and cults,92 augmented and imposed by the military.93

Further, there is little evidence of concerns with techniques of surveillance and control to manage populations, as is regularly featured in dystopian science fiction.94 Indeed, the

few attempts by the Galactica to control civilians end not with the use of technique to govern, but with death.95

And death is what there is in Battlestar Galactica. Chapter 6 exposed the place of

death in modern legal forms, and if Dune and Battlestar Galactica share anything, it is a

particular emphasis on death. The series is set after the death of the human home worlds

in the Cylons’ nuclear holocaust. In the opening sequence of each episode, a figure is

flashed on to the screen showing the total number of human survivors – they are fewer as

the series goes on.96 This death is not abstracted. Bodies are thrown into space from

exploding spaceships and humans kill one another with monotonous regularity; a would-

90 Tranter (2003), p 69. 91 Rymer, The Woman King: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 February 2007). 92 Rymer, He that Believeth in Me: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 April 2008); Olmos, Escape Velocity: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 April 2008). 93 Young, Deadlock: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 February 2009). 94 Sisk (1997), p 2. 95 Kroeker, Resistance: Battlestar Galactica (Sci Fi Channel/NBC Universal, 5 August 2005). 96 Season 1 begins with a survivor count of 47,973: Rymer, 33: Battlestar Galactica (Sci Fi Channel/NBC Universal, 14 January 2005). The count at the end of Season 2 was 49,550 (Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). The increase comes from the fleet finding the ‘Battlestar Pegasus’ halfway through season two. Aside from this one-off increase, the numbers decrease each week. By the finale it is down to 38,516: Rymer, Daybreak Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 March 2009).

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be assassin is found dead in his cell;97 hostage situations end with numerous bodies;98

Gaeta’s and Zarek’s mutiny has the civilians and the military killing each other throughout Galactica.99 This killing goes beyond war casualties or unfortunate policing

to official ex-judicial killings; Apollo’s ad hoc murder investigation climaxes with him

summarily executing a crime boss.100 Once rescued by Adama, the New Caprica

resistance leaders start executing those they see as collaborators.101 The Quorum of

Twelve is executed by the mutineers.102 President Roslin disposes of Starbuck’s tortured

Cylon by flushing him out an airlock,103 and Gaeta’s and Zarek’s mutiny ends with their

execution by firing squad.104 Seemingly the rule of law, the bedrock for liberal accounts

of legality, the interlinking of roles and offices with the judicial utterance of ‘the law’ at

its apex, is problematically manifested in Battlestar Galactica.

However, this order of death is still an order. It is an order of uniforms and

salutes, of titles (Sirs, Commander, Lieutenant, Madam President), of pilot call signs

(Starbuck, Apollo, Boomer, Helo, Hot Dog, Race Track …), abbreviations (CAG –

Captain of Air Group; CIC – Command, Intelligence, Control), of briefings, and a life of

booze and card games interrupted by the adrenal rush of action. It is, in short, military

order. The series only occasionally depicts the civilian society aboard the fleet – the

97 Pate, Colonial Day: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 March 2005). 98 Kroeker, Bastille Day: Battlestar Galactica (Sci Fi Channel/NBC Universal, 21 January 2005); Villalobos, Sacrifice: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 February 2006). 99 Dahl, The Oath: Battlestar Galactica (Sci Fi Channel/NBC Universal, 30 January 2009). 100 ‘Head, Black Market: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 January 2006). 101 Rymer, Collaborators: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 October 2006). 102 Rose, Blood on the Scales: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 6 February 2009). 103 Turner, Flesh and Bone: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2005). This execution was threatened to be used against Boomer in ‘Mimica-Gezzan’, Home Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 19 August 2005), and carried out against the two Cavil/Number One Cylons (Dean Stockwell) in Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 104 Rose, Blood on the Scales: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 February 2009).

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crowds scared and huddled in freighters or in Dogsville, the wealthy living it up on the luxury liner Cloud Nine before its destruction, the black market aboard the Prometheus, the grubby proletariat on the refinery ship Hitei Kan.105 The focus is on the military, and the relationships between the military and the civilian order.106 This is visualised whenever the Galactica is shown. It is rarely pictured in its entirety; usually just its

‘alligator’ shaped snout fills the screen, dwarfing any of the civilian ships, including the

Presidential Colonial One. The image is of an apex predator scattering lesser beasts. The message seems to be that at the point of the annihilation of a society, the brute violence of the military is called to the fore. The back-story makes this clear with Adama’s father being a lawyer;107 in an age of enemies and annihilation, the lawyer’s children are warriors.

This usurpation of the rule of law to military order in a time of enemies and annihilation reminds of Carl Schmitt. Battlestar Galactica presents a people on the brink of extinction facing an indefatigable and mechanical foe – similar sentiments to Schmitt and other Weimar conservatives in their fear of Stalin’s Soviet Union.108 The civilian population is represented as impulsive and fractious; at various stages, the political leadership is under threat from a variety of opposing sentiments clustered around Tom

Zarek:109 a movement violently demanding peace with Cylons,110 a movement violently

105 Rose, Dirty Hands: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2007). 106 Dellamonica (2006), p 166. 107 First mentioned in Woolnough, The Hand of God: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 March 2005). 108 Schmitt (1993); Bourdieu (1991), pp 26–27. 109 Mimica-Gezzan, The Captain’s Hand: Battlestar Galactica (Sci Fi Channel/NBC Universal, 17 February 2006); Woolnough, Downloaded: Battlestar Galactica (Sci Fi Channel/NBC Universal, 24 February 2006); Rymer, Lay Down Your Burdens Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 3 March 2006); Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 110 Hardy, Epiphanies: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 January 2006).

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demanding the execution of Cylon prisoners,111 vocal moral conservatives,112 organised crime113 and, by the fourth season, religious cults competing for resources and authority throughout the Fleet.114 Baltar’s pre-occupation presidency on New Caprica was marked by industrial disputes.115 All this suggests Schmitt’s feared demise of the state in street- level anarchy.116 The episodes dealing with the political workings of the civilian government reflect Schmitt’s attacks on parliament as involving much talk but little action.117 The final episode of Season 1, ‘Kobol’s Last Gleaming Part II’, manifests these themes.118 The fleet has found the origin of humanity, the planet Kobol. Roslin, suffering from advanced cancer, has had religious-inspired visions concerning how it should be explored. Adama disagrees; in his opinion, Roslin’s preferred course of action involves too much risk. Roslin’s position creates divisions within Galactica, leading to Starbuck mutinying. This triggers Adama to send in the marines, who take Roslin into custody.119

111 Villalobos, Sacrifice: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 February 2006). 112 Mimica-Gezzan, The Captain’s Hand: Battlestar Galactica (Sci Fi Channel/NBC Universal, 17 February 2006). 113 Head, Black Market: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 January 2006). 114 Rymer, He That Believeth in Me: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 April 2008); Olmos, Escape Velocity: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 April 2008); Young, Deadlock: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 February 2009). 115 Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006); Reiterated in Hardy, A Day in the Life: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 February 2007). 116 Schmitt (1932a), p 32. 117 Pate, Colonial Day: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 March 2005); Nankin, The Ties That Bind: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 April 2008). ‘The essence of parliament is therefore public deliberation of argument and counterargument, public debate and public discussion, parley, and all this without taking democracy into account.’ Schmitt (1923a), pp 34–35. Schmitt’s theory of democracy is not the liberal norm of representative democracy, and with it majorities and minorities, but the metaphysical affirmation of the leader by the nation: Kennedy (1987), p 38. 118 Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 April 2005). 119 Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 April 2005).

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Adama, faced with division at home, an implacable external enemy and poor political leadership, declares an exceptional circumstance and ousts the civilian government.120

It is tempting to read Adama as Schmitt’s preferred Hindenburg, although it glosses much of Schmitt’s discussion of the legitimacy of dictatorship called forth by the exception. However, there is some support within Schmitt for a military coup d’état as a legitimate basis for dictatorship.121 In the rapid progression of work during Weimar,

Schmitt appears to move from an affirmation of a ‘classical’ form of a limited dictator appointed by the ordinary political process in times of crisis122 to a more radical account of the ‘sovereign’ who represents the people, and in that representing can decide between the ordinary and exceptional;123 and who, through that fundamental decision, can recast the political machinery of the nation.124 In announcing to Roslin that her ‘Presidency is terminated’,125 Adama appears to be motivated by the belief that he possesses ‘reserve’ sovereign powers to preserve the nation. However, any affirmation that in this decision he ‘represents’ the nation is uncertain. Minutes after he is shot, and for the following few episodes of Season 2, he is unconscious and critically wounded in sickbay.126 His

120 Adama repeats this in Season 4. Having come to a very different relationship to Roslin, her unexpected ‘kidnapping’ by the rebel Cylons constitutionally leaves Zarek as Vice-President in charge. Unable to work with Zarek, and not prepared to allow Zarek stirring up opposition in the Fleet, he has Zarek arrested to allow for his son, Apollo, to become Acting President; Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 May 2008). 121 Böckenförde (1998), p 44. Piccone and Ulmen suggest that in the halcyon days of 1933, Schmitt was encouraging the army to seize power as an alternative to Hitler; Piccone and Ulmen (2002), p 16. However, one of Schmitt’s biographers seems to suggest otherwise: Bendersky (1983), p 28. 122 See McCormick (1997), pp 122–133; an alternative account of the relation is provided in Agamben (2005), p 35. 123 Schmitt (1922). See generally Schwab (1989), pp 29–43. 124 McCormick (1997), p 147, commenting on Schmitt (1932b), p 69. 125 Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 April 2005) (Adama). 126 Rymer, Scattered: Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 July 2005); Rymer, Valley of Darkness: Battlestar Galactica (Sci Fi Channel/NBC Universal, 22 July 2005); Mimica- Gezzan, Fragged: Battlestar Galactica (Sci Fi Channel/NBC Universal, 29 July 2005); Kroeker, Resistance: Battlestar Galactica (Sci Fi Channel/NBC Universal, 5 August 2005).

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leadership is left to his drunken Executive Officer (XO), Colonel Saul Tigh (Michael

Hogan) who, in his own assessment ‘Fraks things up good’ to the point that most of the crew is about to revolt, while most of the civilian ships actually have done so.127

However, Battlestar Galactica’s animation of Schmittian concepts reveals a

problem. Schmitt’s fundamental orientation, the basis for his distinction between normal

and exception and his account of sovereignty,128 lie in his infamous notion that ‘the specific political distinction to which political actions and motives can be reduced is that between the friend and enemy’.129 The friend/enemy distinction as the delineation of

what is political, and its warehousing of law to the normal, unexceptional order has been

a clarifying concept for recent thinking about law in this ‘Age of Terror’.130 For Schmitt,

the ability to distinguish between friend and enemy is a public act:

The friend and enemy concepts are to be understood in their concrete and

existential sense, not as metaphors or symbols, not mixed by economic,

moral, and other conceptions, least of all in a private-individualistic sense as a

psychological expression of private emotions and tendencies … An enemy

exists only when, at least potentially, one fighting collectivity of people

confront a similar collectivity. The enemy is solely the public enemy.131

127 Hardy, The Farm: Battlestar Galactica (Sci Fi Channel/NBC Universal, 12 August 2005). 128 Schmitt (1922), p 5; Kalyvas (2000), p 1535. 129 Schmitt (1932a), p 26. 130 Agamben (2005); Tushnet (2005), pp 39–54; Ackerman (2004), p 1045; Johns (2005); Dyzenhaus (2006); Dyzenhaus (2005), pp 65–89. Müller has pointed out that while Schmitt’s thought seems readily applicable to terrorism, as evidenced by his Anglo-American revival post 9/11 and his earlier revival within European thought during the terrorism of the 1970s, Schmitt did not theorise terrorism: Müller (2003), pp 181–182. 131 Schmitt (1932a), p 28.

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He continues: ‘In its entirety the state as an organized political entity decides for itself the

friend/enemy distinction.’132 Schmitt, like Hobbes, regarded the political as emerging

from the possibility of war.133 However, unlike Hobbes, where the individual, vulnerable

and alone, contracts to form the sovereign,134 Schmitt presents an a priori nation

declaring which other nations are friends or enemies. The key elements are summarised

by Chantal Mouffe: ‘[T]his involves the creation of a “we” which stands in opposition to

a “them”, and this is located, from the outset, in the realm of collective identifications.’135

This seems quite acceptable within Battlestar Galactica. In science fiction, what can be more ‘collective enemy’ then swarms of evil robots?136 However, in its paralleling of

Schmitt, the series identifies the limits of the friend/enemy distinction.

The Cylons do not all present as killer toasters. The skin jobs not only look human, but as the series progresses they manifest all the vagaries, emotions and

individuality displayed by the humans. Not only are the viewers drawn into sympathy

with individual Cylons – the tortured Gina/Number Six, the Number Eight who becomes

known as Athena when her child ‘dies’,137 Caprica Six when she miscarries138 – but

increasing so are individual characters.139 By Season 4, the deaths of rebel Cylons allied

132 Schmitt (1932a), pp 29–30. 133 Howse (1998). 134 Robin (2004), p 42. 135 Mouffe (1992), p 132. 136 Ryan and Kellner (1990), pp 58–65. 137 Woolnough, Downloaded: Battlestar Galactica (Sci Fi Channel/NBC Universal, 24 February 2006). 138 Young, Deadlock: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 February 2009). 139 In ‘Nankin, Flight of the Phoenix: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 September 2005), Adama begins to ‘trust’ Boomer. By the season finale, Boomer takes part, relatively unguarded, in the rescue mission of the remnant resistance fighters on Caprica: Rymer, Lay Down Your Burdens Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 3 March 2006). By Season 3, Boomer has taken on a different call sign, ‘Athena’ (to distinguish her from the other model eight Cylons – de Segonzac, Torn: Battlestar Galactica (Sci Fi Channel/NBC Universal, 3 November 2006) – and becomes a trusted and essential member of Galactica’s flight crew.

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with the humans, whether in Doctor Cottle’s (Donnelly Rhodes) sickbay140 or shot in

battle141 or vented into space from explosions from Galactica’s increasingly dilapidated hull,142 are poignant moments. The Cylons themselves are shown to be growing

ambivalent with the direction of their extermination of humanity,143 the reason for their

attempt at ‘coexistence’ on New Caprica,144 the failure of which leads to their own civil

war.145 What this means is that the obvious imaging of friend and enemy breaks down.

For all his polemic about the public national character of the friend/enemy distinction,

what Schmitt is actually suggesting is that it is the sovereign leader who holds the

deciding power of friend and enemy. The friend/enemy distinction, like the exception, is

another manifestation of Schmitt’s decisionism.146 While not necessarily a subjective

decision for the public – indeed, according to Schmitt individuals can ‘love your

enemy’,147 something that Baltar represents a bit too literally – the distinction is rendered

personal and an ongoing responsibility of leadership. Repeatedly in Battlestar Galactica,

Adama and Roslin are seen to be making this call, ordering the destruction of the

Olympic Carrier due to a suspicion that it has been overtaken by Cylons,148 and deciding that Admiral Helena Cain (Michelle Forbes), the commander of the found Battlestar

140 Nankin, Someone to Watch Over Me Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 February 2009). 141 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 142 Nankin, Someone to Watch over Me Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 February 2009). 143 Woolnough, Downloaded: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 24 February 2006); Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 144 Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006); Mimica-Gezzan, Occupation: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006). 145 Nankin, The Ties That Bind: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 April 2008). 146 Hurst (1999). 147 Schmitt (1932a), p 29. 148 ‘33’ Battlestar Galactica (Sci Fi Channel/NBC Universal, 14 January 2005).

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Pegasus, must be executed as an ‘enemy’ of the fleet.149 This decision of friend and

enemy also goes the other way. Roslin and Adama decide, against the popular mood of

the people, that the rebel Cylons should be allies,150 eventually deciding that they should

be fully ‘friends’ as citizens with representation on the new Quorum.151 Battlestar

Galactica suggests that ‘friend’ and ‘enemy’, in ‘their concrete and existential sense’,152 do not originate in the nation, but rather reside within the person of the leader.153

Battlestar Galactica manifests how the friend/enemy distinction discloses a focus

on the person of the leader in its emphasis on Adama. Adama’s relationships with his

sons and with the Colonial military tradition are shown to influence his decisions,

particularly the decisions to reunite the Fleet, to ‘reinstate’ Roslin as President,154 and to

prevent Roslin and Tigh from rigging the presidential election.155 In this, Admiral Cain of

the Pegasus is Adama’s foil.156 Like Galactica, the Pegasus attracts a fleet of civilian

ships in the aftermath of the Cylon attack.157 While Adama makes the reluctant choice to

flee the conquered homeworlds to protect the civilian fleet,158 Cain feeds her civilian fleet

149 Rymer, Resurrection Ship Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 January 2006). 150 Rymer, Revelations: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 June 2008). 151 Olmos, Islanded in a Stream of Stars: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 6 March 2009). 152 Schmitt (1932a), p 28. 153 Howse (1998): ‘The higher men determine the antagonisms that justify obedience from the lower men.’ 154 Woolnough, Home Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 26 August 2005). 155 Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 156 Mulligan (2008), p 54. 157 Alcalá, Razor: Battlestar Galactica (Sci Fi Channel/Universal Studios Home Entertainment, 24 November 2007). 158 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003).

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– both ships and people – to her war machine so as to maintain her offensive.159 Cain, the

younger, more ambitions and more senior officer, makes a very different decision to that

made by the older war veteran and world-wearied commander.

Furthermore, Battlestar Galactica exposes another tension within Schmitt’s

account of the friend/enemy distinction. Schmitt’s critique of liberalism was that it

‘neutralised’ the life and death of politics into mere subjectivity – questions of economics

or debating.160 Schmitt attempted to respond to this privatisation of politics through a

valorisation of the public, as revealed in his metaphysical account of the state, and the

idealisation of the German people as a unified Volk.161 However, he distanced this ideal

from the actual manifestation of the Weimar population, whose individuality had been

dangerously freed by liberalism.162 In this, Schmitt parallels Heidegger’s disgust of the

‘das Man’ of modernity.163 Schmitt presented an ambiguous account of the public, as the

collective entity manifesting in the state, and also a fractious rabble threatening the

state.164 Giorgio Agamben has observed that this dualism occupies a significant space

within the Western political tradition in his account of people/People – people being the population governed by a sovereign, while People accounts for the sovereign-forming collective.165 For Agamben, the people/People distinction grounds a sovereignty directed

to the transmutation of people for People; however, this is a perverse transmutation as it

159 Rymer, Resurrection Ship Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 January 2006); Alcalá, Razor: Battlestar Galactica (Sci Fi Channel/Universal Studios Home Entertainment, 24 November 2007). 160 Schmitt (1932a), p 28. 161 Schmitt (1922); McCormick (1997), p 194. 162 Schmitt (1930), p 309. 163 Heidegger (1996), p 112; Rockmore (1992), pp 187–205. 164 Kennedy (1998), p 103. 165 Agamben (1998), pp 176–179.

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leads to a denial of human existence as anything other than bare life.166 What Battlestar

Galactica does is show a population not playing its role according to this logic. In this,

the series could be Polis Galactica, more Aristotle than Hobbes’ modern legacy, for in

response to the sovereign emergency, the people express a flowering of politics, calls for

elections, formation of interest groups, the throwing up of rival leaders and resistance to

marshal law. Even while continually being killed, the people refuse to be homo sacer,167 and they also refuse to play Schmitt’s allocated representative public role of mass politics.

A Schmittian response would be to emphasise that this ‘failure’ of the people, like the failure of the German people during Weimar, manifests the terminal stages of liberalism: rapid individualism eroding clear collective thinking about who is a friend and who is an enemy. Alternatively, this steadfast representation of a politicised civil society could be explained as Moore’s and Eick’s residual liberal arts college education,168 projecting Frances Fukuyama not just to the end of history, but to the end of worlds.169

However, these alternatives – an adherence to metaphysical totalities or a triumphant affirmation of liberal individuality – fail to capture the complexity presented by

Battlestar Galactica. In the series, collectives organised according to the friend/enemy distinction are powerfully represented. However, what is also shown is that these collectives are occupied by subjects. The category ‘leader’ is occupied by an embodied person whose personality and role mingle when called to decision. Similar, the category

‘people’ comprises a collective unified through fleeing an enemy that seeks their

166 Agamben (1998), p 123. 167 Agamben (1998), p 83. 168 Edwards (2006). 169 Fukuyama (1992).

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annihilation, yet is also a multitude of subjects clamouring for a say over their destiny.

Addressing Schmitt, what Battlestar Galactica highlights are the problems within his

metaphysics of leader and people for, to use one of his preferred terms, the ‘concrete’.170

Questions of embodied existence, agency or subjectivity are theorised out by Schmitt; indeed, preoccupations with such concepts become politicised as liberal distractions.

In summary, Battlestar Galactica offers enticing parallelisms for thinking about

Schmitt. However, in animating the friend/enemy distinction, it also shows some of

Schmitt’s limits. Projected into a fleet of space ships, Schmitt’s abstractions of friend and enemy give way to ‘the leader’ and ‘the people’, which are not abstractions but embodied subjects. It shows the tension between category and existence, between metaphysics and embodiment, that follows from Schmitt’s denigration of the ‘individual’ as liberal detritus. In opening Schmitt to the subject, the next part shows how Battlestar Galactica opens the subject to essence.

Starbuck as Post-Feminist

Battlestar Galactica offers a reflection on the tensions within Schmitt posed by

subjectivity because at another level the series allegorises concerns with identity. The

series is successful in presenting a world that, at least initially, appears to enact

substantive gender equality. The starting point is simply that Starbuck appears as a post-

feminist pin-up.171

The society presented in Battlestar Galactica seems to be post-feminist in its

substantive gender equality. Women can be President and priests,172 and in the military

170 Schwab (1989), p 115. 171 Kungl (2008). For a queer reading, see Levin Russo (2007), pp 168–169. 172 The character of Elosha (Lorena Gale).

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women can be admirals and front-line fighter pilots. Starbuck begins the series respected

as Galactica’s ‘top gun’. She is not the subject of harassment and intimidation for achieving this status. Indeed, it is only when her confidence fails in the second season that disparaging begins.173 This respect for women not playing traditional women’s roles is paralleled in Roslin as President. Roslin’s gender is not a topic of concern. Rather, discontent initially relates to her junior cabinet status and professional background as a school teacher,174 and later her too-close association to Adama and her illness.175 Post-

feminism is also projected by the series in a further sense.176 Starbuck does not pilot her

Viper in a ‘different voice’.177 In the mini-series and Season 1, she is arrogant,

disrespectful of senior officers, capable of taking spectacular risks, cigar smoking, hard

drinking/fighting/gambling and bed hopping – in summary the archetype top gun pilot.178

In this, Starbuck’s foil is Apollo. Apollo begins the series as less of a risk-taker and more concerned with relationships:

STARBUCK: You’re the CAG, act like one.

APOLLO: What the hell does that mean?

173 Nankin, Scar: Battlestar Galactica (Sci Fi Channel/NBC Universal, 3 February 2006). 174 Mentioned by characters in Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003); Grabiak, Water: Battlestar Galactica (Sci Fi Channel/NBC Universal, 14 January 2005) and Rymer, Pegasus: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 September 2005). Having been defeated by Baltar for the presidency, Roslin is depicted in Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006) as returned to the classroom as a school teacher. 175 Rose, Dirty Hands: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2007); Nankin, The Ties That Bind: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 April 2008); Rymer, The Road Less Traveled: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 2 May 2008); Hardy, Sine Qua Non: Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 May 2008). 176 Whelehan (1995), pp 196–197. 177 Conly (2008), p 234. 178 Wolfe (1980); Konas (1994).

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STARBUCK: It means that you’re still acting like you’re everyone’s best

friend.179

It is tempting to read Starbuck’s ‘masculinity’ and Apollo’s ‘femininity’ – his

concern with others – as a visioning of radical feminism’s desire of the negation of the

biological.180 In Battlestar Galactica, it seems that gender does not relate to identity or

social roles. There are some female characters who occupy more traditional female roles.

Lieutenant Anastasia ‘Dee’ Dualla (Kandyse McClure), Galactica’s communications

officer, rather aptly is concerned with supporting and encouraging dialogue and is also the focus of a love contest between Apollo and Billy Keikeya (Paul Campbell), Roslin’s

initial personal assistant, while Ellen Tigh (Kate Vernon), Saul Tigh’s wife, is – at least

until Season 4 – a behind-the-scenes jezebel, manipulative and self-promoting.181

However, the impression gained from Battlestar Galactica, especially from the four main characters, is the marginal place of gender when it comes to identity. These characters are shown to be driven by conflicts, past traumas and their relationships – there is no simplistic gender determinism. Adama’s serious engagement with the military tradition and its dictates of leadership and loyalty gives him conflicting responsibilities to his

‘family’ – both his son and his crew. Roslin’s mortality and disarming countenance contrast with her skill in political manipulation and her confidence in decision-making –

‘The interesting thing about being President is you don’t have to explain oneself to

179 ‘33’ Battlestar Galactica (Sci Fi Channel/NBC Universal, 14 January 2005). 180 Firestone (1970), p 270. 181 ‘Olmos’, Tigh Me Up, Tigh Me Down: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 March 2005); Rymer, Scattered: Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 July 2005); Alcalá, Exodus Part I: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 16 October 2006).

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anybody.’182 Starbuck’s macho-nihilism is explained as a combination of her guilt in

contributing to the death of Adama’s other son, Zak,183 and her upbringing as the daughter of a deserted, military-obsessed mother.184 Apollo lives in the shadow of his

father; he is initially hostile and distant, but as the series progresses he evolves more in

his father’s image to an unhappy acceptance of the responsibility of military leadership,

which he breaks out of by resigning his commission and taking to civilian politics.185

These characters are highly fallible: Adama stages a coup after continually insisting on the primacy of civilian government; Roslin starts believing the hallucinations associated with her cancer treatment are divine messages; Starbuck, in common with her ‘enemy’

Tigh, turns too much to the bottle; and Apollo, who supported the established legal order in resisting his father’s coup, executes a civilian in cold blood. It is these characters as believable humans that allow Battlestar Galactica to show the absence of the subject in

Schmittian jurisprudence.

However, if Battlestar Galactica seems to represent progressiveness concerning gender, it is not as progressive concerning race.186 Following Gene Roddenberry’s

template, Battlestar Galactica attempts to ‘white’ out race.187 In doing so, it animates

criticisms of positive discrimination made by critical race theorists.188 There are different

races aboard Galactica – Boomer/Athena/Number Eight (Asian), Dee (African) and

182 Hardy, Epiphanies: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 January 2006) (Roslin). 183 Hardy, Act of Contrition: Battlestar Galactica (Sci Fi Channel/NBC Universal, 28 January 2005). 184 Nankin, Maelstrom: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 4 March 2007). 185 Hemingway, Six of One: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 11 April 2008). 186 A point made strongly by Greene (2006), p 21. 187 Allessandria Hurd (1997); Beatriz deMello Patterson (1998). 188 Bell (1992).

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Gaeta (Hispanic) – but they are token representatives within a sea of Caucasians.189 Race, it seems, does matter in this galaxy. This is particularly so regarding Africans. Aside from Dee, the only other Africans are the marine who guards Roslin during her arrest and the representative from the planet Picon. These two are shown as the most religious of all the humans within a secular and rational society, channelling old prejudices of Africans as superstitious.190

In contrast, amongst the Cylons, when it comes to diversity the skin jobs seem to

be more progressive regarding race. The African Cylon, Simon/Number Four (Rick

Worthy), at least was allowed to play a doctor (Galactica’s chief medical officer, Doctor

Cottle, is Caucasian). The sour note is that the Cylons have other types. The chrome

toaster variety, the Centurions, are initial treated as disposable by the skin jobs: ‘Those

older models they have their uses,’ Number Six tells Baltar in the mini-series.191 The

Cylon space fighter, the Raider – revealed as a sentient biomechanical being192 – is explained by Boomer as she lovingly strokes it:

It’s not really a thing, you know. It’s probably a Cylon itself. [Pause] More of

an animal maybe than the human models. Maybe they genetically design it to

perform a task. To be a fighter. Can’t treat it like a thing and expect it to

respond. You have to treat it like a pet.193

Also the Cylon Baseship, again a sentient biomechanical being personalised by a controlling hybrid – a human-like being in a fluid filled bath – is not given a franchise to

189 Although Edward James Olmos is well regarded as a Hispanic actor, he presents as ‘white’ in Battlestar Galactica. 190 Deis (2008), pp 164–166. 191 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal 8–9 December 2003) (Number Six). 192 Mimica-Gezzan, You Can’t Go Home Again: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 February 2005). 193 Hardy, Act of Contrition: Battlestar Galactica (Sci Fi Channel/NBC Universal, 28 January 2005).

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vote by the skin jobs when it comes to political and tactical decisions. The Cylons, like

the humans, seem to account for physical diversity through the imposition of hierarchy,

with this very hierarchy a central cause of their own civil war.194

This hierarchical ordering of difference within Battlestar Galactica returns,

rendering problematic its treatment of gender. Among the skin job Cylons, there are three

females: Boomer/Athena/Number Eight; Caprica Six/Shelly/Gina/Natalie/Number Six;

and D’anna Biers/Number Three (Lucy Lawless). The problem originates in how the

Number Eights and Number Sixes are represented. They are consistently represented as

sexual beings,195 both the subject of seemingly consensual sex and also sexual violence.

In the scenes depicting consensual sex, there is misogynist undercurrent that the Cylon

women are using intercourse as an instrument of manipulation.196 This misogyny is

rendered explicit in the episode ‘Pegasus’.197 In that episode, Baltar, as Galactica’s

Cylon expert, is sent to investigate Pegasus’s captured Cylon. He finds Gina/Number Six chained to the floor and lying comatose. It is revealed that her interrogation was to be

repeatedly gang raped. Further, the chief perpetrator, a senior officer from Pegasus, is interrupted while attempting to rape Galactica’s interned Boomer. The gender equality initially projected is negated by these scenes: women are reduced to biological beings located within a sexualised regime of violence, powerlessness and vulnerability.

This sexual violence of human towards Cylon is reciprocated. When Starbuck returns to Caprica, she is shot in a Cylon ambush.198 When she awakes, the Cylon Simon

194 Nankin, The Ties that Bind: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 April 2008). 195 Pegues (2008), p 205; George (2008), pp 166–167. 196 See, for example, Nankin, Someone to Watch Over Me Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 February 2009); Kamir (2001), p 41. 197 Rymer, Pegasus: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 September 2005). 198 Rymer, Kobol’s Last Gleaming Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2005); Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi

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convinces her that she is in a resistance run-hospital.199 She is then subjected to numerous

undisclosed operations on her lower abdomen. In the episode ‘The Farm’, during her

escape from the hospital Starbuck finds, in the other wards, the familiar science

fiction/horror image of the ‘robot rape’: rows of drugged women obscenely connected to

various machines. The Cylons, it appears, are not content with their mass production of

skin job Cylons, but need to ‘fulfil God’s command to multiply’200 through mastering

sexual reproduction. This has two effects. The first is that Starbuck is forcefully

reallocated; she is shown not as a stand-in male fighter pilot, but as female, as possessing

a body intimately connected with reproduction. The second relates to redefining the

series’ survival theme. Adama, during Galactica’s decommission ceremony early in the mini-series, poses this question concerning the worthiness of a people to survive:

You know, when we fought the Cylons we did it to save ourselves from

extinction. But we never answered the question, why? Why were we as a

people worth saving? We still commit murder because of greed, spite,

jealousy. And we still visit all of our sins upon our children. We refuse to

accept the responsibility for anything that we’ve done … Sooner or later, the

day comes when you can’t hide from the things that you’ve done any more.201

‘The Farm’ recasts Adama’s introspection that, prior to any ethico-political evaluation concerning survival, there is the more basic question of reproduction. What is presented

Channel/NBC Universal, 1 April 2005); Rymer, Scattered: Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 July 2005); Rymer, Valley of Darkness: Battlestar Galactica (Sci Fi Channel/NBC Universal, 22 July 2005); Mimica-Gezzan, Fragged: Battlestar Galactica (Sci Fi Channel/NBC Universal, 29 July 2005); Kroeker, Resistance: Battlestar Galactica (Sci Fi Channel/NBC Universal, 5 August 2005). 199 Hardy, The Farm: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 12 August 2005). 200 Hardy, The Farm: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 12 August 2005) (Boomer/Number Eight). 201 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003) (Adama).

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is the claim that before culture, and with it memory and justice, there is biology.

Reproduction is the core theme of Season 2. That season not only has the return to the

biological in its depictions of sexual violence towards women, but has Roslin – contrary

to her past as an advocate for women’s rights – banning abortion on the grounds that all

pregnancies must be carried to term to boost population numbers.202 This call for

reproduction can be seen in the finale of Season 2, where several characters appear pregnant.203 This can also been seen in the heteronormativity of the series. Like Star

Trek, Battlestar Galactica does not go beyond the final frontier in having gay characters, notwithstanding all its men in uniforms.204 The closest it comes is the suggestion in the retelling of the Pegasus story arc in the Razor telemovie that Admiral Cain had a

relationship with Gina/Number Six before the Cylon attack.205 Given Cain’s function as a

foil to the heterosexual and worthy Adama, this – like Baron Harkonnen in Dune – is not

a progressive representation.

The concern with reproduction becomes stronger as the series progresses. Starting

in Season 2, more is revealed of the Cylons’ process of cloning the skin job models and

the ‘downloading’ of memories into new bodies.206 On New Caprica, Leoben keeps a

captured Starbuck in an apartment, playing out a grotesque charade of happy family,

complete with a young child named ‘Kacey’, allegedly Starbuck’s daughter, the product

202 Mimica-Gezzan, The Captain’s Hand: Battlestar Galactica (Sci Fi Channel/NBC Universal, 17 February 2006). 203 Rymer, Lay Down Your Burdens Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 March 2006). 204 Tulloch and Jenkins (1995), pp 237–265; Geraghty (2003), p 451; Kerry (2009). 205 Alcalá, Razor: Battlestar Galactica (Sci Fi Channel/Universal Studios Home Entertainment, 24 November 2007). 206 Rymer, Resurrection Ship Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 January 2006); Rymer, Resurrection Ship Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 January 2006); Woolnough, Downloaded: Battlestar Galactica (Sci Fi Channel/NBC Universal, 24 February 2006).

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of violations of ‘The Farms’.207 For the Cylons, reproduction becomes increasing more significant, with mortality coming mid-way through Season 4 with the destruction of their ability to ‘resurrect’.208 This leads to a false hope that Caprica Six’s pregnancy might open the way for Cylon sexual reproduction.209 When that does not eventuate, the promise return of resurrection technology by the misnamed ‘Final Five’ Cylons to the

Cylon leader John Cavil/Number One (Dean Stockwell) halts the bloodshed during the

Galactica’s assault on the Cylon’s Colony in the ultimate finale.210 All this emphasis on reproduction prioritises the biological, sketching a world of essence.

The capstone of this emphasis on essence is the birth of the child of Capria

Boomer (Athena) and Lieutenant Karl C. ‘Helo’ Agathon (Tahmoh Penikett), the

Human-Cylon hybrid, Hera.211 However, the birth of a human-toaster destabilises the focus on reproduction. Hera points towards something much more radical. In Seasons 3 and 4, Hera becomes an embodied symbol of reproductive security for both Cylons and humans, and is repeatedly kidnapped and then rescued.212 Rosi Braidotti has attempted to think through the dilemmas in feminist theory offered by the binary alternatives of

207 Mimica-Gezzan, Precipice: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006). On this, see Conly (2008), p 123. 208 Edwards, The Hub: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 June 2008). See Leaver (2008), p 137. 209 Moore, Disquiet Follows My Soul: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 23 January 2009); Horder-Payton, No Exit: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 February 2009); Young, Deadlock: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 February 2009). 210 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 211 Woolnough, Downloaded: Battlestar Galactica (Sci Fi Channel/NBC Universal, 24 February 2006). 212 Alcalá, Exodus Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 October 2006) (taken by the Cylons); Rymer, Rapture: Battlestar Galactica (Sci Fi Channel/NBC Universal, 21 January 2007) (rescued by Athena using resurrection technology); Nankin, Someone to Watch Over Me Battlestar Galactica (Sci Fi Channel/NBC Universal, 27 February 2009) (kidnapped by Boomer posing as Athena); Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009) (rescued in the assault on the Cylon colony).

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essence and anti-essences.213 For her, feminism has remained at core anti-essential,

believing in culture over nature, yet in doing so it has remained problematically engaged

with essences.214 This seems to be animated in Battlestar Galactica’s projected failure of

post-feminism; images of equality and the freeing of the subject from gender and race are

undermined by concrete biology. In response, Braidotti draws inspiration from the recent

discovery of transposition in the biological sciences, which has diminished DNA’s status

as the location for essentialism in revealing how organisms can influence DNA

sequences.215 Her motivation lies within the challenge of the technical for critical theory.

She accepts that contemporary technology should properly be understood in the

conflating of nature and culture, and she follows Bruno Latour’s founding observation

that the West’s technologically mediated life is marked by the proliferation of ‘hybrids’, which are not capable of being consigning to either ‘nature’ or ‘culture’.216

Within Battlestar Galactica, Hera – the combination of nature (biology) and

culture (technology) – imagines this wider thematic. With her birth, the prioritising of essential biological nature by the emphasis on reproduction is undone. ‘Tranpositing’ the

essence is the Cylon, the technological object. In this, Battlestar Galactica gestures

beyond the limit that Chapter 4 exposed in Nemesis. Ultimately, in Nemesis, essence returned totally in the promised resurrection of Data, as it did in the 2006 reimagining of the Prohibition of Human Cloning for Reproduction Act 2002 (Cth). However, in

Battlestar Galactica, essence – as well as also non-essence – appears to lose essentiality.

213 Braidotti (1994), p 177. 214 Braidotti (1994). 215 Braidotti (2006), p 6. 216 Braidotti (2006), pp 37–38.

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In summary, the subject – on the surface, post-feminist in its commitments – seems to be terrorised by biology. However, with Hera’s birth Battlestar Galactica suggests that biology is technically mediated. What is natural and what is artefact becomes blurred. This presents Battlestar Galactica as a text focusing on technology as opening a place between essence and anti-essence, and this prophetically heralds the next section on the metaphysics of technology.

2. The Metaphysics of Technology

This section argues that Battlestar Galactica rethinks the metaphysics of technology. The

blurring of what is natural and what is artefact that was raised in the conclusion of the

previous section can be read as the story of Western technology. In this reading,

Battlestar Galactica seemingly performs the ‘end’ of Western metaphysics in the

occupation of Being by Enframing. However, in this very defeat lies redemption.

Battlestar Galactica suggests that living remains after the end. The occupation of Being

by Enframing can lead to technological Being-in-the world and free responsibility for

becoming. The place to begin is with the representations of technology in Battlestar

Galactica.

Representations of Technology in Battlestar Galactica

Writing concerning the original Battlestar Galactica, Lane Roth, drawing on the clone

canon, argues that it explored the relations between humanity and technology:

The Cylons can be best understood as doppelgängers of the humans, and the

real struggle in Battlestar Galactica takes place in an inner, not outer, space

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… The Cylons are only a hypostatization of man’s tendency to rely on tools

and weapons.217

Roth’s analysis contains two directions: a focus on the representation of the relationship

between humans and machines; and a metaphysical construction of the proper relations

between humanity and technology.

Following Roth’s first direction, the new Battlestar Galactica provides a wealth

of images of the relations between humans and machines. At a primary level, the series

presents images of mundane technological objects. In not being about the Enterprise, the

visible technologies in Battlestar Galactica are recognisable as familiar domestic

instruments. There is a comfortable oldness to the form – Adama’s and Roslin’s ‘cut

corners’ paperwork and the chunky, corded telephones. This continues to the humans’

spaceships. They are just objects. The series, at this level, follows the Star Wars tradition

of technological representation, for the ships are used, lived in and junked.218 The

Galactica and her complement of ageing Vipers are analogous to old motor vehicles – simple, lasting designs, endearing in their mechanical quirks.219 These images of humans

using domestic technology are complemented by more industrial iconography. The

interior scenes of the Galactica, with humans pushing Vipers, manhandling airlocks, and repairing and dismantling ships with manual tools, suggests a heavy industrial workplace.

Another representation of technology in Battlestar Galactica lies in the relations between individual characters’ sense of self and specific machines: Adama’s affection for

217 Roth (1983), p 86. 218 On this technological aesthetics in Star Wars as a manifestation of relations with ageing motor vehicles, see Sobchack (2004), p 150. Even Adama makes the decision to abandon the Galactica in Season 4, when it become obvious that its structural faults are terminal: see Olmos, Islanded in a Stream of Stars: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 March 2009). 219 On this particularly male relationship to motor vehicles, see Walker (1998).

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Galactica and Starbuck’s relationship with the captured Cylon fighter.220 These multiple

images combine to present the human society of Battlestar Galactica as a thoroughly technological one – technology is not external, the monster to be banished, the Cylon to be fought, but integral. Even at the level of keeping technology as things and humans as beings, Battlestar Galactica presents a technological society composed of human– machine interactions. The message seems to be that there is no nature aboard spaceships, just human life fundamentally involved with machines.

However, Battlestar Galactica interrupts these images of technological society. It

does not keep technology as things and humans as beings. The supposed external robotic

enemy turns out to be very natural. Not only are the skin job Cylons flesh and blood, but the Cylon spaceships are organic beings; the insides of Cylon Raiders are brain and ooze,221 and the interior of Cylon Baseships are a mess of metal, red graphics, water, membranes and ligaments. While the representations of technological society in

Battlestar Galactica notice human–machine interaction, the Cylons present the intimacy of humanity and technology. This seems to be manifested in the relationship between

Baltar and what the Battlestar Galactica secondary literature has termed ‘Inner Six’.

Baltar begins the series haunted by Caprica Six, who sacrificed herself to save him in the

nuclear destruction of Caprica.222 Throughout the series, she is often shown

accompanying him, making cynical comments, telling him what to say and distracting

220 In Nankin, Flight of the Phoenix: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 September 2005), this is emphasised through the construction of a new fighter which boosted the morale of the crew. 221 Mimica-Gezzan, You Can’t Go Home Again: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 February 2005). 222 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003).

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him, causing his behaviour to perplex other characters.223 It is the Baltar/Inner Six

interaction that often provides the moments of humour in what is otherwise a grungy,

serious text.224 Up until the final epiphany as to Inner Six’s nature, the series is

ambiguous about whether she is ‘actually’ there, the personification of a link between

Baltar and the Cylons, or whether she is a symptom of psychosis. The suggestion is that

Baltar is infected by technology; his love of a ‘machine’ has internalised the machine.

But the series also goes the other way. Resurrected in body towards the end of Season 2,

Caprica Six is shown as possessing an ‘Inner Baltar’, who functions in the same way as

Inner Six – commenting, advising and counselling her.225 In this, the love for a human

haunts the machine. However, it gets even more complicated when by Season 4 Inner

Baltar joins Inner Six in Baltar’s increasingly crowded delirium.226

In other words, what is ‘human’ and what is ‘technology’, already under pressure

with the existence of the skin job Cylons, gets increasingly confused as the series

progresses. Indeed, by Season 4 identification of human from Cylon or Cylon from

human becomes near impossible. The rebel Cylons, the mortal remainders of the Number

Twos, Number Sixes and Number Eights along with their liberated Centurions, Raiders

and Basestar, are incorporated into the human fleet. They are referred to as ‘people’.227

Cylon pilots and Heavy Raiders join Galactica’s Vipers to form the Fleet’s CAP

223 See, for example, Woolnough, The Hand of God: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 March 2005). On speculation as to Inner Six and what her and Baltar’s interaction might mean for relations with technology, see George (2008), p 166. 224 Jowett (2008), p 66. 225 Beginning with Woolnough, Downloaded: Battlestar Galactica (Sci Fi Channel/NBC Universal, 24 February 2006). 226 Hemingway, Six of One: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 April 2008). Causing the Baltar, played by Briton James Callis to exclaim ‘oh my giddy aunt’ – paraphrasing another science fiction character who sometimes appeared to himself, the Second Doctor (Patrick Troughton) from BBC’s Doctor Who. 227 Rose, Guess What’s Coming to Dinner? Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 May 2008) (Adama).

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(Combat Air Patrol).228 This blurring is epitomised in the very structure of the Galactica.

In the mini-series, the aged Galactica just prior to the destruction of the Colonies was

being decommissioned to be turned into a museum. In the following four years, it

sustains significant damage – especially during the mission to rescue the civilians in the

failed settlement of New Caprica.229 By Season 4, it is falling apart, with cracks and rust

appearing throughout the superstructure. To save his terminal ship, Adama agrees that

Cylon resin (a smelly biological glup) be applied;230 the outcome is that the ship is no

longer an industrial human-made robot destroyer, but begins to show some of the same functionality as the Cylon Basestar.231

However, not only does the simple-ish human tool that is the Galactica take on a

more complex technological hybridity at the end of the series, but discovery of the Final

Five Cylons and their revelations about Earth complete the confusion. In the finale for

Season 3, ‘Crossroads, Part II’, after some build-up, four of the Final Five Cylons –

XO Saul Tigh, Chief Galen Tyrol (Aaron Douglas), Sam Anders (Michael Trucco) and

Tory Foster (Rekha Sharma) – are ‘switched on’ by ‘All Along the Watchtower’ within

the ‘Ionian Nebula’.232 This is a confounding revelation. Tigh’s alcoholism,233 his fractious relationship with Ellen,234 his relationship with Adama and his blunt military

228 Horder-Payton, No Exit: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 February 2009). 229 Alcalá, Exodus Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 October 2006). 230 Horder-Payton, No Exit: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 February 2009). 231 Olmos, Islanded in a Stream of Stars: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 March 2009). 232 Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007). 233 Tigh is introduced as drunk in the mini-series. Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003). 234 Olmos, Tigh Me Up, Tigh Me Down: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 March 2005); Kroeker, Resistance: Battlestar Galactica (Sci Fi Channel/NBC Universal, 5 August 2005). Tigh even poisons Ellen on New Caprica to silence her leaking of resistance intelligence to the Cylons: Alcalá, Exodus Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 October 2006).

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personae had all suggested, up to ‘Crossroads Part II’, that he was flawed but very human; so too Senior Petty Officer Tyrol, Galactica’s deck ‘Chief’ responsible for maintenance and repairs, had come across as very human. The genuineness of Tyrol’s life

– from his caring leadership style,235 his lack of emotional control,236 his marriage to

237 Cally (Nicki Clyne) and the mundane pressures of their life together with a young child

– strongly contrasted with the calculated duplicity that characterised the ‘human’ lives of

Caprica Six and Boomer. A further irony was that Tigh, Tyrol and Anders formed the leadership of the resistance on New Caprica, with Tigh even losing an eye in a Cylon interrogation,238 while Foster was shown as an active member.239 Also, Anders was introduced in Season 2 as leader of the resistance movement on Caprica.240 To have these characters – especially Tigh and Tyrol – revealed as Cylons means that any demarcation between human and machine, between being and thing, has become impossible.241

This is reinforced further by the humanising of the Cylons. The resurrected

Boomer and Caprica Six, the two who had lived among and loved humans, are the two that begin the questioning of the Cylon destruction of humanity.242 The movements of the

235 As seen in Hardy, Litmus: Battlestar Galactica (Sci Fi Channel/NBC Universal, 11 February 2005); Rymer, Scattered: Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 July 2005); Rose, Dirty Hands: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2007). 236 Yelling at Tigh’s decision to vent the burning Galactica after it is hit by a Cylon nuclear missile during the destruction of the colonies: Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/ NBC Universal, 8–9 December 2003); see also his relationship with Adama in Young, Unfinished Business: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 December 2006). 237 Hardy, A Day in the Life: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 February 2007). 238 Mimica-Gezzan, Occupation: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 October 2006). 239 Alcalá, Exodus Part I: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 October 2006). 240 Kroeker, Resistance: Battlestar Galactica (Sci Fi Channel/NBC Universal, 5 August 2005). 241 Gumpert (2008), pp 144–146. 242 Woolnough, Downloaded: Battlestar Galactica (Sci Fi Channel/NBC Universal, 24 February 2006). This was mirrored in The Plan. Galactica One (Cavil) remains aloof from the humans, even killing the child who befriended him as he plots the attacks in the Fleet that were told in Seasons 1 and 2; while Caprica One, who had infiltrated Sam Anders resistance movement, reassesses

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rebel Centurions in the final assault on the Colony are much more human, with their subtle hand movements to signal to their allies, than the stiffly robotic ‘first-generation’

Centurion defenders.243 However, this conflating of human and technology can ultimately be discerned in the back-story of the Final Five and Earth. The finding of Earth in the mid-season finale of Season 4 was a profound disappointment.244 A nuked wasteland,

Earth turned out to be a settlement of Cylons.245 What comes to light was that the colonial mythology from the ‘Book of Pythia’ of a lost thirteenth tribe of humanity was not quite accurate. The destruction of the human origin world Kobol was because of a familiar robotic uprising, which also involved a familiar evolution of machines to organic humanoid models. It was these humanoid models that settled on earth, eventually losing the knowledge to resurrect, and – continuing the reproduction theme – acquiring natural procreation. After a thousand years, these natural Cylons are destroyed by their own

‘lesser’ machines. The survivors Tigh, Tyrol, Anders, Foster and the last of the Final

Five, Ellen Tigh, having re-engineered resurrection, are reborn on an orbiting ship and then rush to warn the humans.246 Arriving at the Twelve Colonies, they halt the Cylon

War through offering to help the first-generation Centurions with the development of humanoid Cylons.247 In turn, they are ‘boxed’ by their first-born, John Cavil/Number

One, and then released over a 30-year period into the Colonies with false memories in a

humans through witnessing the relationship between Anders and Starbuck, while a previously unknown Number Four commits suicide, rather than follow Cavil’s orders to destroy his ship (and with it his human wife and step-child). Olmos, The Plan: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 January 2010). 243 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009); Gosling (2009), p 124. 244 Rymer, Revelations: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 June 2008). 245 Nankin, Sometimes a Great Notion: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 January 2009). 246 Nankin, Sometimes a Great Notion: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 January 2009). 247 Horder-Payton, No Exit: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 February 2009).

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complicated – indeed Machiavel-like – plot by Cavil to show the creators of the skin jobs the mistake of making machines in the image of humans.248

This chunky back-story of science fiction clichés allows explanations for many of the anomalies that accompanied Battlestar Galactica’s metaphysical turn in Seasons 3 and 4.249 However, this myth of successive creation and usurpation, of the indistinctiveness of humans and technology, in itself holds ontological significance. At one level, this story parallels the fate of the Frankenstein myth, of inhuman technology threatening the human, but ultimately the ‘human’ implodes into technological totality. In

Battlestar Galactica, the representations of technology move from the human (beings) using machines (things) to a disorientating conflating of being and thing. This disorientation is given in a wonderful moment, following the public revelation of their

Cylon heritage, with Tyrol and Tigh discussing the use of Cylon technology to upgrade the Fleet:

TYROL: Their technology … our technology, is way ahead of ours. Yours.

TIGH: Maybe you’d like a chart to keep it all straight?250

This glimpsing of the technical in the essence of the modern human is not as radical as the Frankenstein myth suggests. Indeed, such a perspective can be gleamed in Roth’s observation on the original series that: ‘The Cylons are only a hypostatization of man’s

248 Horder-Payton, No Exit: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 February 2009); Olmos, The Plan: Battlestar Galactica (Sci Fi Channel/NBC Universal, 10 January 2010). 249 For example, Tyrol’s discovery of the ‘Temple of the Five’ on the algae planet – Rymer, The Eye of Jupiter Battlestar Galactica (Sci Fi Channel/NBC Universal, 15 December 2006) – and Tigh’s age and memories of fighting the First Cylon war: Horder-Payton, No Exit: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 13 February 2009). 250 Moore, Disquiet Follows My Soul: Battlestar Galactica (Sci Fi Channel/NBC Universal, 23 January 2009).

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tendency to rely on tools and weapons.’251 What can be seen in Battlestar Galactica is an

animation of the end of Western metaphysics as Enframing. This opens to another

Weimar conservative’s foundational and influential engagement with technology: Martin

Heidegger.

Heidegger’s Last Gleaming252

Unlike Schmitt’s youthful foray into science fiction with ‘Der Buribunken’, discussed in

Chapter 3, there is no evidence to suggest that Heidegger engaged with science fiction.

Given Heidegger’s well-documented abhorrence of cultural modernism,253 he probably

would have regarded science fiction as Scheiße!254 Science fiction studies has generally

replicated his presumed aversion; there is little literature bathing science fiction in a

Heideggerian light.255 Similarly, Heidegger has had minimal impact on legal theory,256 where his influence has generally been limited to studies that have attempted to make connections between hermeneutics and the Anglo-American legal tradition.257 These

absences are a bit surprising.258 Science fiction studies, with its obvious emphasis on the technical, and anxieties in legal theory of the denigration of law into technology, both suggest the place of technology in Heidegger’s thought.259

251 Roth (1983), p 86. It also has been made by commentators on the new series. See Giardina (2006), p 50; King and Hutnyk (2009), p 249. 252 Paraphrasing Season 1’s two-part finale, ‘Kobol’s Last Gleaming’. Rymer, Kobol’s Last Gleaming Part I: Battlestar Galactica, (Sci Fi Channel/ NBC Universal, United States of America, 25 March 2005); Rymer, Kobol’s Last Gleaming Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 1 April 2005). 253 Steiner (1978), p 148. 254 Although note Zimmerman’s comments on Heidegger, drawing upon Ernst Jünger’s ‘fictionalised’ dystopian vision of 1930 industrial relations: see Zimmerman (1990), p 64. 255 Notable exceptions are Roberts (2009) and Holdern (2009). Some other exceptions are Del Rio (2001) and Telotte (1995). 256 Minkkinen (1996), p 66. 257 See Tontii (2004); Scheibler (2000), pp 856-869; Leiter (1996), pp 253-254. 258 See Roberts on the possibilities of Heidegger affords science fiction studies, Roberts (2005), p 12. 259 In law, one theorist who has taken up Heidegger on technology is Louis E. Wolcher (2008, 2004).

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According to Heidegger, the Western metaphysical tradition had forgotten the

question of Being.260 That is, the ontological task of thinking about being an entity

disclosed to its own existence261 had been passed over in favour of ‘pragmatic’

abstractions.262 Technology was important to Heidegger, not because of its monstrous

violence but because, in its holding sway, the forgetting of Being was absolute.263 As such, Heidegger’s grappling with technology belongs within a project to find a

‘restorative surmounting of the essence of technology’.264 For Heidegger, technology did

not just amount to machines, but was a fundamental way of revealing the world as is:

The revealing that rules throughout modern technology has the character of a

setting-upon, in the sense of a challenging-forth. That challenging happens in

that the energy concealed in nature is unlocked, what is unlocked is

transformed, what is transformed is stored up, what is stored up is, in turn,

distributed, and what is distributed is switched about ever anew.265

This led Heidegger to name the essence of technology ‘Enframing’:266

Enframing means the gathering together of that setting-upon which sets upon

man, i.e., challenges him forth, to revel the real, in the mode of ordering, as

standing-reserve. Enframing means that way of revealing which holds sway

in the essence of modern technology and which is nothing technological.267

This quote suggests three elements concerning the essence of technology. The first is that technology ‘revel[s] the real’ – that is, occupies the very essence of humanity. For

260 Heidegger (1996), p 1. 261 Heidegger (1996), pp 10–11, 40–42. 262 Zimmerman (1990), p 152. 263 Heidegger (1977a), p 116. 264 Heidegger (1977c), p 39. 265 Heidegger (1977b), p 16. 266 Heidegger (1977b), p 19. 267 Heidegger (1977b), p 20.

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Heidegger, to be human means to be ‘thrown’ into the world, and human fate is to come

to a dwelling in this finite totality.268 Second, in their ‘thrown-ness’ humans are gifted

with the responsibility towards truth: ‘man is given to belong to the coming-to-pass of

truth’.269 Heidegger’s use of truth was not to invoke correspondence,270 but rather a pre-

Socratic notion of ‘truth’ (alētheia) concerned with how the world is revealed. The

destiny of humanity is in bringing forth what is undisclosed.271 Third, Heidegger

understood technology as a way of revealing, allowing him to situate technology within

Being: ‘Technology is a mode of revealing. Technology comes to presence in the realm

where revealing and un-concealment take place, where alētheia, truth, happens.’272

Having located technology within Being, Heidegger sets out the ontological commitments of such a Being. Enframing involves ‘setting upon’. Rather than letting beings reveal themselves to humanity, humanity imposes a technological ‘truth’ on to entities.273 This truth is as a ‘standing-reserve’ in a stockpile, ready at hand to be

deployed.274 The fate of the world is it becomes atomised, abstracted and

commensurable.275 There is a danger in this:

As soon as the unconcealed no longer concerns man even as object, but does

so, rather, exclusively as standing-reserve, and man in the midst of the

objectlessness is nothing but the orderer of the standing-reserve, then he

268 Heidegger (1996), pp 127–29. 269 Heidegger (1977b), p 32. 270 Heidegger (1977a), p 127. 271 Heidegger (1977b), p 32. 272 Heidegger (1977b), p 13. 273 Heidegger (1977b), pp 15–18. 274 Heidegger (1977b), p 14. 275 Heidegger (1977b), p 19.

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comes to the very brink of a precipitous fall; that is, he comes to the point

where he himself will have to be taken as standing-reserve.276

This loss in standing-reserve discloses an even greater danger: ‘Where this ordering holds sway, it drives out every other possibility of revealing, Above all, Enframing conceals that revealing which … lets what presences come forth into appearance.’277 The

challenging-forth of Enframing blocks more original bringing-forth of things in-

themselves. The supreme danger then is that Enframing conceals the very possibility of

revealing, removing humanity from alētheia.278

Heidegger seems to be capturing the conflating of human and technology animated by the confusion in Battlestar Galactica. Heidegger does not place the essence of technology in a material thing, the hydroelectric plant on the Rhine,279 a decrepit spaceship or shiny robots; rather, it occupies Being: ‘Machine technology remains up to now the most visible out-growth of the essence of modern technology, which is identical with the essence of modern metaphysics.’280 Technology is the way in which the

‘unfolding’ of Western metaphysics has led the West to conceiving the world as a

stockpile of resources. And while this extends to the way of seeing humans themselves,

the ultimate concern is that technology in occupying this place within modern existence

deprives Being from seeing the ‘truth’ of the world. The universe becomes a realm of

‘ends’, of resources to be accumulated and used. In short, this is what being human has

become in the West. In Battlestar Galactica, the humans who resisted the integration of

276 Heidegger (1977b), pp 26–27. 277 Heidegger (1977b), p 27. 278 Heidegger (1977b), p 28. 279 Heidegger (1977b), p 16. 280 Heidegger (1977a), p 116.

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the rebel Cylons, Gaeta and Zarek, die.281 In a similar way when it comes to the Cylons,

Cavil/Number One with his continual desires to be more like a machine – ‘I don’t want to be human. I want to see gamma rays, I want to hear X-rays, and I want to smell dark matter … I could experience so much more, but I’m trapped in this absurd body’282 – commits suicide as the remaining ‘true’ Cylons on the exploding Colony are sucked into a black hole.283 The message seems to be that attempts to maintain the distinction

between human and technology end in destruction. In confounding the human and

technological, in repeated representations of their mingling, this appears to be the

essential message of Battlestar Galactica: that Being has been occupied by technology.

This has immediate implications for technical legality. At first it exculpates the

law and technology enterprise’s tendency to law as technology, as well as explaining the

technical law called forth by technology that was documented in Chapters 4 and 5. Where

‘the coming to presence of technology … is Being itself’,284 such a mode of law is

consistent with the founding ontology of the ‘age’.285 Indeed, Heidegger expects nothing

more from ‘research man’.286 Further, Heidegger offers an epical location for the account

of sovereignty and positivism narrated in Chapter 6: as the challenging forth of law into a

malleable standing-reserve ready to be deployed.287 The conclusion from the analysis of

Chapter 6 was that sovereignty disclosed an impoverished Being; a turning to death

within an omnipresent future frame seems consistent with Heidegger’s Enframing as the

281 Rose, Blood on the Scales: Battlestar Galactica (Sci Fi Channel/NBC Universal, 6 February 2009). 282 Horder-Payton, No Exit: Battlestar Galactica (Sci Fi Channel/NBC Universal, 13 February 2009) (Cavil/Number One). 283 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 284 Heidegger (1977c), p 38. 285 Heidegger (1977a), p 115. 286 Heidegger (1977a), p 125. 287 Nonet (1990), p 686.

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end of metaphysics. In this, Heidegger’s technology writings possibly allow for another

approach to the maligned task of an ontology, or at least a regional ontology,288 of law.289

However, it is in technology studies that the claim of the occupation of Being by technology has had a decisive influence. Herbert Marcuse,290 Jacques Ellul291 and more

recently Albert Borgmann292 and Francis Fukuyama293 can be seen as grounding their

critiques of modern technology on metaphysical foundations. There is a tragic aura

surrounding this tradition.294 The absolute of technology, and Heidegger’s charting of the

decline of a more authentic Being, mean that it is difficult to theorise strategies for overcoming technology.295 Indeed, there is a tendency to pastoral romance, as seen in the

yearning for simpler ‘human-scaled’ technologies in Borgmann296 or Hannah Arendt’s observation that the space program, in turning away from the Earth, diminished humanity.297 It can also been seen in much environmental theory that takes, knowingly or

not, Heidegger via Marcuse as its ontological grounding.298 Battlestar Galactica

appeared to also have purchased this way out of its confounding of human and

technology. Having found ‘New Earth’, the inhabitants of the Fleet follow Apollo’s

suggestion to abandon technology and begin life on the new planet in a state of primitive

agrarianism.299 With the rebel Centurions freed and jumping away with the Basestar, the

Galactica and the rest of the ships of the Fleet are sacrificed to this new start in being

288 Tontii (2004), p 82. 289 Minkkinen (1996), p 84. 290 Marcuse (1964). See Feenberg (2005), p 25. 291 Ellul (1964). See Feenberg (1999), p 3. 292 Borgmann (1999). See Verbeek (2002). 293 Fukuyama (1992). See Tabachnick (2005). 294 Hill (1988). See Tabachnick (2004). 295 Norris (2006), p 344. 296 Borgmann (1999), pp 223–224. 297 Arendt (1977), pp 265–280. 298 See Eckersley (1992). 299 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009).

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piloted into the sun. However, the images of African plains and flocks of herbivores that

accompany Roslin’s death and Adama’s description of the view from his cabin-to-be to

her stone grave give way to two other images. The first is the child Hera playing in the

light; the second is a lurch of 150,000 years to the present day. In this scene, Inner Six and Inner Baltar, now to be understood as celestial beings, stroll the streets of New York

City. In their banter, it is confirmed that the busy humans of this technological metropolis, whose screens flash images of contemporary real-world robots, are the descendants of the human and Cylon settlers. This penultimate scene suggests that the pastoral solution to technology would only delay the inevitable cold flowering of

Enframing.

But to quote the Cylons’ favourite Dylan track, ‘There must be some kind of way out of here.’300 The images of New York City resemble the images of doomed Caprica

City from Battlestar Galactica’s opening montage, and Inner Caprica and Inner Baltar

pointedly note that the streetscapes remind them of the Twelve Colonies before their

technological annihilations.301 Inner Caprica suggests that history might not repeat,

offering simple epistemological (‘When a complex system repeats itself something new

is bound to happen’) and theological (‘It is also part of god’s plan’) justifications.

However, a more satisfying ‘way out’ can be gleamed in Heidegger.

Heidegger’s way out begins at the first instant with the paradoxical step that the

‘saving power’ is to be found in thinking of the essence of technology itself.302 This turns

out to be the motivation for Heidegger’s exposition into the essence of technology, to

300 Dylan, All Along the Watchtower: John Wesley Harding (Columbia, 1967). 301 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 302 Heidegger (1977b), p 28.

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light the way towards a free relationship with technology and a return of humanity to its essence:

For the saving power lets man see and enter into the highest dignity of his

essence. This dignity lies in keeping watch over the unconcealment – and

with it, from the first, the concealment – of all coming to presence of this

earth. It is precisely in Enframing which threatens to sweep man away into

ordering as the supposed single way of revealing, and so thrusts man into the

danger of the surrender of his free essence – it is precisely in this extreme

danger that the innermost indestructible belongingness of man … may come

to light, provided that we for our part, begin to pay heed to the coming to

presence of technology.303

In this paragraph, Heidegger, in a characteristic move, has shown the clearing of the

saving power, but has not shown the way. For Heidegger, meditation on the essence of

technology reminds of technology’s ancient sibling. Referring to pre-Socratic Greece, he observes that once ‘there was a time when the bringing-forth of the true into the beautiful was called technē. And the poēisis of the fine arts also was called technē.’304 He suggests

that ‘revealing lays claim to the arts most primally, so that they for their part may

expressly foster the growth of the saving power’.305

Heidegger’s affirmation of art as the place that has kept alive alternative modes of

revealing is contested. Walter Benjamin suggests that in art the combination of art and technique is inseparable; art anticipates technology, and the technicality of art demarks

303 Heidegger (1977b), p 32. 304 Heidegger (1977b), p 34. 305 Heidegger (1977b), p 35.

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‘humanity’s entire mode of existence’.306 Benjamin can be seen as pointing towards an

alternative direction from Heidegger: a turning away from metaphysics, and also a

turning away from romantic attachments to an idealised past of authentic Being. This is

what is suggested by Inner Six’s and Inner Baltar’s street-side revelation that the humans-

that-are-us are precisely Hera’s descendants.307 There are toasters on our maternal line,

which means authentic Being is already technological. In this revelation, the art that

Heidegger regarded as ‘fine’308 and his exemplar, a hand-wrought silver chalice,309 along with the cloned embryos from Chapter 4, a Model T Ford from Chapter 5 and the sovereign’s plastic law from Chapter 6 exist in continuity. They, Battlestar Galactica suggests, are all technē – different manifestations of the same Being-in-the-world.

In Battlestar Galactica, Starbuck ends with being the Angel of Death;310 having

‘returned from the dead’ in the Ionian Nebula,311 she finds her rotting corpse in a crash

site on earth.312 Rather than a bloody Samael, the prophesied doom to which she leads the

Fleet is the end of their journey with New Earth.313 In Starbuck, the end marked a

beginning – a possibility for Hera’s children to escape the destructive cycle of human and

technology that doomed Kobol, Earth and Caprica. What can be gleamed from reading

Heidegger in Battlestar Galactica’s wake is ‘technological Being-in-the world’, the

concern not with metaphysics and essences but with life – and that means life with

306 Benjamin (1968), p 222. 307 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 308 Heidegger (1977b), p 35. 309 Heidegger (1977b), pp 6–8. 310 As heralded by the hybrid in Razor. Alcalá, Razor: Battlestar Galactica (Sci Fi Channel/Universal Studios Home Entertainment, 24 November 2007). 311 Rymer, Crossroads Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 March 2007). 312 Nankin, Sometimes a Great Notion: Battlestar Galactica (Sci Fi Channel/NBC Universal, 16 January 2009). 313 Rymer, Daybreak Part II: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 20 March 2009).

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technology – in the here and now. This was why sustained talk of essences and essential

nature was not possible within Battlestar Galactica, as was anticipated when it became

clear that its presentation of the subject suggested a technologically mediated hybridism of nature and culture, which in turned opened to the conflating of human and technology.

In animating the occupation of Being by technology, Battlestar Galactica shows many falls, but not Heidegger’s fear of a primal ‘precipitous fall’.314 Instead, it signs an

invitation to move from the watchtower guarding essence and to join company with ‘the

joker and the thief’.315 In technology studies, this post-Heideggerian strand can be

identified in Donna Haraway.316

Earth

That Battlestar Galactica as technical legality ends with Haraway is perhaps

unsurprising. Unlike Heidegger, Haraway forms a central foundation for contemporary

science fiction studies.317 However, what Battlestar Galactica – a text whose surface

concerns endangered humans and hunting machines but ultimately suggests the

occupation of Being by technology – allows is appreciation of the anti-ontology of

Haraway, and the opportunities for the free responsibility for becoming in technological

Being-in-the-world.

Haraway expressly rejects metaphysical approaches to thinking about technology.

She does not manifest either the tragedy or the romance that marks metaphysical

accounts of technology.318 As such Haraway can be seen as grappling with a materialist

314 Heidegger (1977b), p 27. 315 Dylan, All Along the Watchtower: John Wesley Harding (Columbia, 1967). 316 Braidotti (2006), p 57. 317 Luckhurst (2006), p 1. Several writers utilise Haraway in their readings of Battlestar Galactica. See Pegues (2008), pp 199–205; Leaver (2008). 318 Haraway (1985), p 71.

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account of what it means to be human at the particular moment when technology has

undermined the past certainties of existence.319 Her project is orientated towards the

search for political engagement in a world where it must be accepted that technology has destabilised old binaries – male/female, nature/culture – that orientated past political action.320 In short, ‘[t]he cyborg is our ontology’.321 In this, Haraway can be seen to

reiterate Heidegger’s declaration of the occupation of Being by technology. Haraway’s

polemics of cyborgs can be distracting, conjuring 1980s imagery of obvious prosthetic

augmentation rather than the intimate and invisible location of technology that was her

focus: ‘Our best machines are made of sunshine.’322 Unlike Heidegger, Haraway does not

talk of the saving power of art, but affirms active engagement with the contemporary

‘informatics of domination’.323 The issue is staking a life, and politics, from ‘inside the

belly of the monster’324 of modern technological existence. Braidotti, in recognising the

influences of Michel Foucault and Gilles Deleuze in Haraway’s cyborg, has argued for

the ‘embodied, materialist foundations of the subject in a non-essentialist yet accountable

manner’.325 In doing so, Braidotti affirms that this approach takes as its orientation

Heidegger’s recognition that the horizon of humanity rests in being thrown into the

world, yet it avoids his metaphysics.326 For Braidotti, technological Being-in-the-world

must ground development of ‘new cosmologies … that are appropriate to our own high

level of technological development’.327

319 Haraway (1997), p 51. 320 Haraway (1985), p 100; Braidotti (1991), p 27; Braidotti (1994), pp 104–105. 321 Haraway (1985), p 65. 322 Haraway (1985), p 70. 323 Haraway (1985), p 79. 324 Penley and Ross (1990), p 12. 325 Braidotti (2006), p 137. 326 Braidotti (2006), p 142. 327 Braidotti (2006), p 272.

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The call that emerges from Haraway for a ‘taking responsibility for social

relations of science and technology … means embracing the skilful task of reconstructing

the boundaries of daily life’;328 is the lasting message of Battlestar Galactica. In moving

from a ‘demonology of technology’,329 to use Haraway’s description, to the revelation of

the occupation of Being by technology, Battlestar Galactica returns both to life and

responsibility. The redemption of Gaius Baltar confirms this point. Baltar, the very

human scientist and opportunist – the personification of technē, the user of techniques to

organise the world around him to his will – has a charmed existence through the series.

He is often threatened with exposure or death, but luck – or, as Inner Six regularly

intones, ‘God’s plan’ – intervenes to save him.330 However, in Season 4, while taking on

the mantle of monotheistic prophet to a group of willing women,331 Baltar begins to feel responsibility towards his flock, culminating in his ‘one selfless act’ in choosing to stay on Galactica and participate in the assault on the Cylon Colony to rescue Hera.332 In this, the other major characters reflect this responsibility to life in the wake of the technological collapse of metaphysics. Roslin, Adama, Apollo and Starbuck, flawed humans with different orientations, share with the redeemed Baltar high technical skills –

Roslin in politics; Adama, Apollo and Starbuck in military leadership and tactics – but

this technē is accompanied by a responsibility to life, a life precariously represented by

the declining survivor count. Their worlds have ended, the divisions between friend and

enemy, nature and culture, human and machine are evaporating, yet for Roslin, Adama,

328 Haraway (1985), p 100. 329 Haraway (1985), p 100. 330 Loftis in 2008 wrote that Baltar’s pathetic opportunism represented true evil in a real sense: see Loftis (2008), p 38 331 Rymer, He That Believeth in Me: Battlestar Galactica (Sci Fi Channel/NBC Universal, 4 April 2008). 332 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009).

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Apollo and Starbuck and the people of the Fleet, life continues. Politics remains, hardship

remains, personal failings remain, guilt from the past remains and grief over loss remains,

but also love happens, faith is found, loyalty is affirmed and tremendous heroism, bravery

and sacrifice occur. In Battlestar Galactica, ‘Technicity is not a perversion but a fatality,

a fatality that we should not approach reactively, but amorously, that is affirmatively.’333

Life remains after the end. It might be a difficult life where there can be ‘great human satisfaction, as well as a matrix of complex dominations’,334 but it is a life that possesses

the possibility to freely be responsible for becoming.335

Braidotti’s mention of ‘new cosmologies’336 comprehends the place of religion

and myth in Battlestar Galactica. Unlike Dune, Battlestar Galactica is not cynical about divine; Roslin believes her prophecies, just as the skin job Cylons, with the exception of

Cavil/Number One,337 earnestly believe in God, while Inner Six, Inner Baltar and Season

4 Starbuck are ultimately revealed as divine beings. This is a text that, at one level,

demonstrates how technology collapses Western metaphysics, while at another level

seriously suggests a counter-theology. The myth of Earth – initially a cynical ploy by

Adama to galvanise a distraught humanity338 – becomes real. While the reality of Earth in

the back-story disappoints, the Fleet – with divine guidance – does find sanctuary and a

future on New Earth. In this, Battlestar Galactica suggests that to be freely responsible

for becoming requires a touch of the creator.

333 Critchley (1999), p 176; italics in original. 334 Haraway (1985), p 100. 335 Drawing upon a similar set of theoretical resources, Anne Cranny-Francis has adopted the phrase ‘contemporary embodiment’. See Cranny-Francis (2007), pp 167–168. 336 Braidotti (2006), p 272. 337 Cavil as cynical atheist has been well documented by Marshall and Wheeland (2008), p 99. 338 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 8–9 December 2003). See Silverman (2008), p 200.

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Haraway would ‘rather be a cyborg than a goddess’.339 However, she has no such qualms with the trickster.340 The trickster, at once the destroyer but also the creator,341 is, unsurprisingly, embodied by Baltar in Battlestar Galactica. Leaving to one side the heavy deployment of Christological iconography around Baltar and also his trickster-like sexuality, Baltar spends the series creating. While Roslin and Adama preserve, Apollo communicates342 and Starbuck guides, Baltar makes. He was the ‘traitor’ who facilitated

the Cylon destruction of the Twelve Colonies, unwittingly making the Fleet.343 He builds

the Cylon detector,344 he attempts to raise a civilisation on New Caprica, ‘Baltar’s earth

turning ceremony’ is seen during the occupation as the image of a lost future, he ferments

tensions within the Cylons that eventually lead to the civil war, and through his cult he builds hope and a civil society in the Fleet.345 In every situation – as scientific adviser to

the President,346 stranded on Kobol,347 as President of the Colonies in occupation,

prisoner of the Cylons, cult leader – Baltar, as the trickster causes change: whether

personally, or through his political writings348 or broadcasted sermons.349 It is Baltar

who, on New Earth, confirms that the observed higher bipedal mammals are genetically

human and promises to bring farming to the planet; his technē fathers both the future race

339 Haraway (1985), p 101. 340 Haraway (1997), p 127. 341 Campbell (1959), p 273; see also Leeming and Page (1996), p 24. 342 Apollo’s association with communication can be seen in his claim that the humans and Cylons from the Fleet can give the primitive humans of New Earth language: see Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 343 Rymer, Battlestar Galactica Mini-series: Battlestar Galactica (Sci Fi Channel/NBC Universal, 8–9 December 2003). 344 Young, Six Degrees of Separation: Battlestar Galactica (Sci Fi Channel/NBC Universal, 18 February 2005). 345 Young, Deadlock: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 February 2009). 346 Grabiak, Water: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 14 January 2005). 347 Rymer, Valley of Darkness: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 22 July 2005). 348 Rose, Dirty Hands: Battlestar Galactica (Sci Fi Channel/NBC Universal, 25 February 2007). 349 Rymer, The Road Less Traveled: Battlestar Galactica (Sci Fi Channel/NBC Universal, 2 May 2008).

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that ‘inherits the Earth’ and the Neolithic jump to agriculture.350 Finally, Baltar is in the

shared hallucination of Athena, Caprica Six and Roslin that recurs through the series. In

the hallucination it is Baltar who takes the child Hera out of the Kobol opera house and into the light. In this, Baltar is shown to be not just as a trickster character, but to occupy a fundamental mythic role in the escape from metaphysics to earth. In many respects, this reading becomes affirmed in the penultimate scene of Inner Six and Inner Baltar in New

York City. When Inner Baltar suggests that the God of the Battlestar Galactica universe

‘doesn’t like that name’, a stare from Inner Six provokes him to utter the final lines of the series, the cryptic and seemingly self-referral, ‘Silly me. Silly, silly me.’351

Baltar as trickster, along with the series’ respect for the divine, highlights that

technological Being-in-the world, the inescapability of technē, discloses that to be freely responsible for becoming ultimately calls to the spiritual. For Braidotti, whose concerns lie with living well in ‘our strange times’,352 this disclosure grounds a ‘nomadic post-

secular spirituality … beyond metaphysical life-insurance policies. It enjoys gratuitous

acts of kindness in the mode of a becoming-world of the subject.’353 A similar anti-

metaphysical grounding of the inescapability of technology leading to the possibility of

being freely responsible for becoming can be seen in Agamben’s State of the Exception

(2005). Agamben exposes the fundamental function of the exception within the Western

‘juridico-political machine’ as ‘instituting a threshold of undecidability between anomie

350 Rymer, Daybreak Part II: Battlestar Galactica (Sci Fi Channel/NBC Universal, 20 March 2009). 351 Rymer, Daybreak Part II: Battlestar Galactica, (Sci Fi Channel/NBC Universal, 20 March 2009) (Inner Baltar). 352 Braidotti (2006), p 10. 353 Braidotti (2006), pp 258–259.

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and nomos, between life and law, between auctoritas and potestas’.354 Agamban suggests

that once the exception is properly located, it can be realised:

There are not first life as a natural biological given and anomie as the state of

nature, and then their implication in law through the state of exception. On

the contrary, the very possibility of distinguishing life and law, anomie and

nomos, coincides with their articulation in the biopolitical machine.355

This mirrors, in a different context, Haraway’s cyborg. Agamban presents an anti-

metaphysical realm where techniques determine becoming. His conclusion follows

Braidotti’s spiritualism in claiming that comprehending the material basis of exception

opens the hopeful possibility of ‘deactivation of the device that, in the state of exception,

tied [law] to life’356 and would ‘open a space for human activity’.357

Notwithstanding their differences,358 Braidotti and Agamben share Haraway’s retelling of Heidegger’s end of Western metaphysics with technological Being-in-the world as an opportunity to be responsible for becoming. Further, in its paralleling of this movement, Battlestar Galactica highlights something that was also clear in Braidotti’s spiritualism and Agamban’s hope: the necessity for the divine, for a higher purpose, to give meaning to free living. But where does this leave technical legality? It leaves it in search of myths, in search of earths that it can call home.

This thesis has charted the implosion of the Frankenstein myth. What Battlestar

Galactica shows is that the Frankenstein myth’s ignorance of technological Being-in-the-

354 Agamben (2005), p 86. 355 Agamben (2005), p 87, italics in original. 356 Agamben (2005), p 88. 357 Agamben (2005), p 88. 358 For Braidotti, Agamben’s translation of zoe as bare life that can only be killed limits his contribution. Braidotti identifies that Agamben defers to the ‘Heideggerian legacy that places mortality at the centre of philosophic investigation’ (Braidotti 2006, p 247), and this closes his analysis to a vitalistic account of zoe that could ground a nomadic ethics (Braidotti 2006, p 39).

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world means that its ontological grounding on being and thing leads to the irreducibility

of being and thing. Instead of an essential humanity facing a non-essential technology, it

seems that all that remains is technology. For law, Chapter 6 saw what was committed to

when this occurs. It has been argued that Battlestar Galactica, notwithstanding the deaths

and the jumps in time within the series, actually points elsewhere. In this, the decision

gives way to the subject and the subject gives way to the technical – and this seems to be

Heidegger’s doom for the West: the occupation of Being by Enframing. However,

Battlestar Galactica goes beyond Heidegger; it shows that the inescapability of technē, of responsibility for becoming, continues regardless of the ontological health of the world.

Haraway’s cyborg lives precisely because of concerns regarding the end of humanity, just as the Colonial society continues to live notwithstanding the nuclear destruction of the

Colonies. Further, this responsibility for becoming glimpses the divine. Braidotti’s and

Agamben’s stories end with spirit and hope, just as Battlestar Galactica ends with two

‘angels’ in lounge lizard attire on the streets of New York City.

That the divine – albeit a slightly tacky divine that doesn’t like the name ‘God’ – is the final image of Battlestar Galactica also suggests the end, or doom, of technical legality. With the occupation of technical legality by the law and technology enterprise, it was shown that this practical and positivist scholarship was grounded on science fiction, both in its fundamental articulation of the Frankenstein myth and also in individual literatures drawing upon specific speculative jurisdictions that beamed science fiction images, tropes and narratives directly into the law reviews. Technical legality, it turned out, was fundamentally a mythic discourse. Further, this was to be expected. If Being in the West has been given over to technology – or indeed, was always technological – and

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this is not a disclosure to death, but responsibility for becoming, then the dwelling place

of this saving is myth. Heidegger’s saving power of art turns out to be perceptive. It is

from poet Friedrich Hölderlin that Heidegger draws the inspirational quote concerning

danger and the saving power.359 And it is the poetry of art that is, for Heidegger, ‘the setting-itself-into-work of truth’.360 For Heidegger, earth ‘is that which comes forth and

shelters’;361 then it can be said that alētheia and technē find their earth in myth.

For technical legality, this means an acknowledgment of its essential mythic task.

It needs to tell stories about law and technology, to reach for alētheia in comprehending

technological Being-in-the-world. It is a task that it already does. However, the ready-at- hand for these journeys needs to come out into the open. Science fiction as mythform is already present, and has been presenting within this serious task. The joy for the task-to- come is a celebratory working through of the responsibility for becoming in the interface of law and technology through this newly forged confidence with myth.

359 Heidegger (1977b), p 34. 360 Heidegger (1993), p 197. 361 Heidegger (1993), p 171.

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8 Sojourn’s Ends

But when we consider the essence of technology, then we experience

Enframing as a destining of revealing. In this way we are already sojourning

within the free space of destining, a destining that in no way confines us to a

stultified compulsion to push on blindly with technology or, what comes to

the same, to rebel helplessly against it and curse it the work of the devil.

– Martin Heidegger, ‘The Question Concerning Technology’, 1953362

1. Sojourning

Chapter 7 ended with the boon from the metaphysical realm different from what might be expected. In the monomyth, the hero restores the rightful order.363 Paul concludes Dune ascending the Lion Throne, the injustice of his father’s death avenged and his lost titles

restored with supreme galactic interest. In Battlestar Galactica, the invoker of justice,

Cavil/Number One, is dead as his exploding empire spirals into a black hole, Adama is

left dwelling on a hillside beside Roslin’s cairn, and the trickster strolls New York City.

The world is not restored, but changed.

The Frankenstein myth, with its categorical commitments to a vulnerable

humanity, amoral technology and saving supplement, has been pursued by this thesis.

The starting claim was that to think technical legality, the interface of law and

362 Heidegger (1977b), pp 25–26. 363 Campbell (1968), pp 229–260.

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technology, necessarily involved taking myth seriously. This thinking disclosed three

stages.

The first stage involved an immediate dealing with what was at hand: the

towering library of legal scholarship on technology. In Chapter 2, it was noted that lawyers – especially since the 1950s – have written excessively about technology.

Further, it was suggested that most of this scholarship was grounded on a common

framework. In examining three specific legal literatures that responded to three different

technological crisis events – Sputnik, IVF, virtual-worlds – it was argued that,

notwithstanding differences in time (1950–60, 1970-–80, 2002–08) and technologies

(space technologies, artificial human reproduction, virtual reality), the legal literatures

manifested a common structure: the law and technology enterprise. The elements of this

structure were problematic technological futures that called for law, disclosing the task of

the lawyer-scholar as being to describe existing laws, find gaps and document how policies – generally decided elsewhere – might address perceived problems. The foundational theory of law was positivism and the reigning motif was practicality through prudent planning. While this technical discourse on legal engagement with technology can be seen as occupying technical legality, excesses were identified. First, the basic structure of the law and technology enterprise – as a thoroughly rational, indeed modern, discourse – disclosed the Frankenstein myth. Technology was outside of human society and needed to be controlled to maximise promises and minimise perils. Here was myth at the heart of a self-proclaimed, in its referencing of practicality, myth-less discourse. This in turn opened to other excesses. There was the hint of a duplicitous shadow in the law

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and technology enterprise’s saving law. The technical could be glimpsed in the ascendant

positivism.

Another excess identified in the occupation of technical legality by the law and

technology enterprise was the acknowledged location for the legal imagining of

technological futures in science fiction. There was myth not only at the level of structure, but in its substance. In Chapter 3, it was shown how science fiction formed the speculative jurisdiction for the law and technology enterprise. Science fiction was the storehouse of images, narratives and tropes that informed and gave structure to Western lawyers’ imagining of technological futures. Chapter 3, then, suggested that this function of science fiction was only to be expected – that science fiction in modernity forms the

Western mythform. It is the place where the modern West tells stories of its technological

future. This broke into two registers. Science fiction as mythform concerned the structures of knowable futures, projections of technologies and social forms. This epistemological register disclosed deeper considerations. Not only did science fiction imagine and consider the external structures of future lives; it concerned the future Being

of these lives. This ontological register opened to a fundamental task of thinking what it

would mean to live in these futures. Science fiction forms the Western mythform

precisely because it locates both modes of thinking. In turn, this marked the next stage of

this thesis: taking science fiction’s epistemological register seriously, and in so doing

drawing upon law and popular culture methods concerned with law as a cultural text to

be used in conjunction with other cultural texts to explain historical moments.

Chapters 4 and 5 presented two worked examples of this method deployed to

make sense of moments in Australia when law was called forth by an emerging

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technology. Chapter 4 concerned the making and remaking of the Prohibition of Cloning

Act 2002 (Cth) and Chapter 5 considered the movement into law of the Motor Car Act

1909 (Vic). Both examined the archive surrounding each law-making event –

newspapers, parliamentary debates, reports and correspondence – to observe that these

mainstream sources for historical analysis failed to disclose why the Prohibition of

Cloning Act 2002 (Cth) hysterically prohibited the clone and yet embraced it with the

amended Prohibition of Cloning for Human Reproduction Act 2002 (Cth) four years

later. Similarly, the mainstream sources failed to construct an acceptable narrative to

explain why a society seemingly antagonist to motor vehicles enacted the pro-motorist

Motor Car Act 1909 (Vic). It was argued that these laws were comprehensible via their

mythform. The Prohibition of Cloning Act 2002 (Cth) made sense in the light of science

fiction’s clone canon, specifically the animation of the anxieties of the clone by Star

Trek: Nemesis. Nemesis explained why, in 2002, the clone was to be prohibited; however,

the film’s return to essence also explained the rehabilitation of the clone in the 2006 amendments. For the Motor Car Act 1909 (Vic), its securing of a technological future through executive mechanisms of registries and licensing made sense in the light of

H.G. Wells’ scientific romances. The image in Wells’ texts of a responsible humanist using techniques to secure a desirable future manifested directly with the establishment of legal and political machinery through which technocrats could secure the future through the management of society in the present.

However, both Chapters 4 and 5 concluded, like Chapter 2, with excesses. Behind the cultural historical analysis informed by science fiction’s epistemological register, something was amiss. The law that was called forth was ‘neutral’ in Carl Schmitt’s sense.

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These laws were forms with substantial portions of their operational content empty,

waiting to be filled by the decision-makers in the course of daily administration. Further,

there was something mechanical in the production of these laws, especially the

Prohibition of Cloning Act 2002 (Cth) and its amendments. Recommendations in reports

by experts became law notwithstanding the surface bluster of politics and decision that

characterised the parliamentary debates. For Schmitt, this neutralised, self-generated law

of executive regulation was the fate of law in the modern West, disclosing that law itself

had become technological.

This fairly mundane observation by Schmitt has fundamental implications for

technical legality. It dissolves legality to leave just the technical. This is the implosion of

the Frankenstein myth: the saving law to secure the human against the monster is the

monster in disguise. The resulting singularity marked the limit of science fiction’s

epistemology register for technical legality. However, this paved the way for science

fiction’s ontological register to think the residue oscillating on the event horizon of the

imploded Frankenstein myth: what does it mean that, in modernity, law is technology?

Chapter 6 answered this directly. By following William P. MacNeil’s method of

reading cultural texts jurisprudentially, it was argued that Frank Herbert’s Dune cycle,

notwithstanding the impressive weight of scholarly opinion suggesting that Dune

concerned messiahs, Machiavelli, ecology and Western Buddhism, disclosed the essential

commitments of sovereignty. Dune not only animated Hobbes, but cut through the mortal

god to reveal the alchemy of death and time out of which sovereignty was conjured. To

be sovereign, to be the maker of law, it was revealed in Dune, was to be the maker of

worlds. To make the world meant closing off forms of life. It entailed the sacrificial

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cutting off of certain forms of life to secure a future. The true monstrousness of the mundane-sounding law as technology was in this consumption of bare life in time. The world projected by this ontology was, aptly, a dry harsh desert – an impoverished life turned towards death under the rule of the two monsters that are one: law and technology.

Chapter 7 continued with science fiction’s ontological register and MacNeil’s method of reading popular texts jurisprudentially to explore Being in this monstrous epoch. Reading Battlestar Galactica jurisprudentially disclosed concerns with the exception. However, Battlestar Galactica confounded Schmittian metaphysics. Schmitt’s attempt to postulate a leader and a people were interrupted in Battlestar Galactica by embodied agency. This emphasis on agency, specifically identity, was also problematic.

For terrorising the subject in Battlestar Galactica was the biological. This return to essence – unlike in Nemesis – was short-lived, for transpositing essence was the Cylon, the technological object. This disclosed a profound blurring within the series; the category of human and the category of technology become confounded as the series progressed. This bringing of the technical within the human is what imploded the

Frankenstein myth. It is also the essential story of technology told by Heidegger.

Heidegger charted the occupation of Being in the West by Enframing, seeing the truth of the world in terms of standing reserve for future deployment. For Heidegger, the movement of technology into the essence of humanity that was animated by Battlestar

Galactica was the doom of the West. However, Heidegger did not exhaust Battlestar

Galactica. While Chapter 6 might suggest that living in a universe given over to

Enframing is marked by death and future, Battlestar Galactica gestures elsewhere. It shows living at the end, a presence-ing and a responsibility to becoming, outside of the

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metaphysical frame. This preference for Haraway over Heidegger, life over death, plays

out a final commitment in Battlestar Galactica: that the inescapability of technē requires

myth to manifest a free responsibility for becoming.

2. The Free Space of Destining

The conclusion in Chapter 7 of a finding of a dwelling, an earth, in the unity of technē

and myth returns to the opening statement of this thesis: that technical legality exposes

the mythic of modernity. Indeed, the implication of technological Being-in-the-world is

the importance of myth to the free task of responsibility for becoming. As this is the fate

of the West, then the identification of the persistence of myth in modernity is to be

expected. What this thesis’s pursuit of technical legality has exposed is the poverty of modernity’s myths.

The denial of the mythic has been shown to be self-defeating. Reason has not triumphed myth; rather, in its denial, myth has triumphed reason. A world revealed as ready at hand, as standing reserve, is itself a story of fate and beings, of a corruption of an

original coming to truth through art. However, if technē is truly what it means to be

human then the residual romance in this story becomes assimilated with the cyborg-that-

is-us. Pure technical engagement has to be given meaning. Max Weber identifies as

much:

Natural science gives us an answer to the question of what we must do if we

wish to master life technically. It leaves quite aside, or assumes for its

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purposes, whether we should and do wish to master life technically and

whether it ultimately makes sense to do so.364

In leaving ‘quite aside’ myth which natural science stripped from the material world,

myth came back with a vengeance. For Michael E. Zimmerman, Ernst Jüger’s attempt to

develop a mythos that could support a worthwhile industrial society holds within it the

germ of Nazism.365 Indeed, the history of the twentieth century, under the guise of

ideology, was a struggle for narrating meaning about the technological world into which

the beings of the modern West have been thrown. Theodor Adorno and Max Horkheimer

saw modernity as the merging of the mythic and the profane, and rather than the negation

of myth, modernity represented a freeing of myth from the sacred to the everyday.366

Modernity might claim to be beyond myth, yet what emerged was a space for the free creation and circulation of myth.

This flows to the pragmatics of technical legality. The law and technology enterprise, the primary modus through which technical legality has been thought, researched and written about, has been revealed as sustained and nurtured by myths. Both the metaphysics narrated by the Frankenstein myth and the images of technological futures from the mythform sourced speculative jurisdiction. The narrative arc of this thesis is that the Frankenstein myth in particular need not remain sacred. It limits technical legality. Indeed, it reduces law to technology, humans to technology and technology to Enframing, leaving a residue of death and time. As such, it closes free thinking in relation to the engagement of law with technology. Science fiction, as shown

364 Weber (1948), p 144. 365 Zimmerman (1990), p 63. 366 Adorno and Horkheimer (1972), pp 27–29.

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with Battlestar Galactica, can tell counter, and perhaps counter-intuitive, stories of life

and living beyond ‘[t]echnicity … [as] the destiny of metaphysics and its completion’.367

This liberating of technical legality can be appreciated in several directions. The first can be a thinking through of the is of technical legality, the empirical moments when

law engaged with technology. Chapters 4 and 5 of this thesis demonstrated this way of

engaging with technical legality. In Chapter 2, it was suggested that there was a minority

literature, ‘law, technology and society’, that approached technical legality by utilising

social scientific methods to gain a way of knowing how a specific cultural moment

received, thought and legislated for a specific technology. This research is undertaken

under an epistemological guise, a mapping of the threads of a complex lived moment.

Sustenance for this approach can be found in Donna Haraway’s desire that:

Any interesting being in technoscience, such as a textbook, molecule,

equation … can – and often should – be teased open to show the sticky

economic, technical, political, organic, historical, mythic and textual threads

that make up its tissues.368

Notwithstanding her disagreement with Bruno Latour,369 Haraway’s task seems

analogous to Latour’s actor network theory. While Latour considers actors from within a

scientist’s research community, and political, media and economic actors, his insight is

that machines and objects also should be treated as actors within his sociology of

networks.370 In Aramis or The Love of Technology (1996), Latour traces how mundane and often haphazard political, economic, social and technical factors, and the

367 Heidegger (2006), p 151. 368 Haraway (1997), p 68. 369 Latour (1987), p 34. 370 Latour (1987).

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personalities of agents, including the personality of the technology itself, interacted over an eighteen-year period, and led to the abandonment of an alternative public transport system for Paris.371

This type of research maps the complexities of culture and personalities, and the more ‘abstract’ political, economic and legal contexts. It shows how law and technology are not only joined at the site of law regulating a technology, which was the focus of the law and technology enterprise, but have multiple intersections.372 Notwithstanding

Latour’s passing reference to law as a ‘modest technology’,373 law has not been strongly considered by technology studies. When Latour writes about the red light flashing in his motor vehicle insisting that he fasten his seat belt,374 it is a machine animated by 90 years of legal argument concerning who carries the liability for motor vehicle safety – the state, the manufacturer or the driver? Also, this form of scholarship, in building an archive of how actual laws – or even actual non-laws (movements towards law that were scuttled) – can provide a basis for technical legality to continue the law and technology enterprise’s desire to advise about law and technology. It shows responsibility for becoming by seriously ordering the past of technical legality.

An alternative to this historical direction is to examine the everyday goings on of technical legality. Such an approach can be seen in the anthropological work of Marilyn

Strathern, who undertook ethnographic studies of IVF technologies to identify Western notions of kinship.375 Technological Being-in-the-world rarely imposes itself as

371 Latour (1996). 372 See, for example, Caudill (2002a, 2001). 373 Latour (1996), p 45. Latour has written about the courtroom from his perspective of the production of ‘facts’ in a laboratory. However, the traces of law on technology have not been pursued thoroughly. See Latour (2004). 374 Latour (1992), p 226. 375 Strathern (1992); see also Strathern (2005).

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Enframing. Technology and law are part of the background of the activities of daily life –

something Langdon Winner emphasises about technology.376 Mundane tasks such as

driving a motor vehicle involve a kaleidoscope of legal and technical considerations and

interrelations. A human driving involves legal regimes of licensing, criminal laws

relating to motor vehicles, of torts and insurance law and of contract, consumer protection and property, and reliance on the multiple technical apparatus of the motor vehicle, which in turn are influenced by laws relating to, for example, safety and fuel consumption. However, in the task of driving, the driver remains ignorant of these and their multiple interactions. Drawing upon Latour’s later work, it can be said that technological objects and humans jointly form a culture which structures particular forms

of relationships (between objects and objects, objects and humans, humans and humans), and within which some relationships possess particular characteristics that allow them to be regarded as profane, ethical or legal.377 This approach to technical legality examines

the contours of contemporary culture, locating the relations of law and technology in the

realm of becoming. This is a direct engagement with myth. Contrary to the romantic

tradition in technology studies concerning the inescapable tragedy of technology,

contemporary Western culture can be seen to provide sufficient resources for many

Westerners to live, by their own accounts, well, within technological society and to adapt

to technological changes.378

In this, science fiction as mythform returns. In Chapter 3, it was emphasised how

science fiction as Western mythform is the storehouse for images, narratives and tropes for both the task of living in the modern West and also for the policy task of thinking and

376 Winner (1986), pp 7–9. 377 Latour (2002). 378 This was suggested by Turkle in recognition of the adoption of computers. See Turkle (2004).

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legislating for technological futures. The law and technology enterprise’s speculative jurisdiction is rooted in well-known and celebrated images, narratives and tropes. As mentioned in Chapter 4, the mainstream dystopian images of cloning have been reimagined and negated in feminist science fiction. Confidence with myth entails a drawing deeper into the mythform in the framing of technical legality. As technological

Being-in-the-world discloses a form of existence where myth and technē dwell together, an invitation remains for law and culture to discover science fiction, not only to comprehend the ways in which Western life continues to exist, but as essential work in being freely responsible for becoming.

In conclusion, the byline that ‘technical legality discloses the mythic of modernity’ signifies hope. The coming to pass of Enframing marks an end of metaphysics, but not life. This means that the sacred and the profane collapse, freeing myth to comingle with technē in technological Being-in-the-world. Free of metaphysics, this being – the essential Being in the modern West – is free to be responsible for becoming. This is confidence with myth. While this does entail a ‘make it so’, as is regularly uttered by Picard to his crew in Star Trek: The Next Generation, it also discloses the more playful offering of jelly babies by the Fourth Doctor in Doctor Who.

The freedom to quest like Paul from Dune goes with the passive opportunism of

Battlestar Galactica’s Baltar, and the serious responsibility of Adama. For scholars of technical legality, technological Being-in-the-world means that our future is ours, and the scholar’s task is the serious, creative, playful task of identifying, questioning and

400

critiquing the stories that infuse this mythic-technical epoch. Scholars need to guard the

‘free space of destining’379 so the West can freely be responsible for becoming.

379 Heidegger (1977b), p 25.

401

Appendixes

Appendix 1: Table of JOLTs and JOLSTs1

Journal Start Technology2 Country Institution Features Albany Law Journal of Science 1991 General USA Albany, Law School, Student edited and Technology University at Albany, State University of New York Air and Space Law 1975 Aeronautics The Wolters Kluwer Editorial Board Netherlands review American Journal of Law and 1974 Heath/Biotech USA American Society of Law, Editorial Board Medicine Medicine and Ethics review Annals of Air and Space Law 1975 Aeronautics Canada Institute of Air and Space Peer reviewed Law, McGill University Annals of Health Law: The 1992 Heath/Biotech USA Beazley Institute for Student edited Health Policy and Law Review Health Law and Policy, of Loyola University Chicago Loyola University Chicago Australian Intellectual 1990 IT/Biotech Australia Thomson Reuters Editorial Board Property Journal review Berkeley Technology Law 1986 General USA Boalt Hall School of Law Student edited Journal (1986–1995 High at University of California Technology Journal), Berkeley Bio-Science Law Review 2000 Biotech UK LawText Publishing Editorial Board review Biotechnology Law Report 1982 Biotech USA Mary Anne Liebert Editorial Board review Boston College Intellectual 1997 General USA Boston College Law Student edited/ Property and Technology School e-journal Forum Boston University Journal of 1995 General USA Boston University School Student edited Science and Technology Law of Law Buffalo Intellectual Property 1999 IT/Biotech USA University at Buffalo Law Student edited Law Journal School, University at

1 Sources: Westlaw; Hein Online; and the Australian Research Council ranking of journals produced as part of the Excellence in Research for Australia exercise, available at www.arc.gov.au/era/journal_list.htm (as at 23 April 2009). Magazine-style ‘trade’ journals were excluded. No claim is made that the list is entirely comprehensive. 2 The following categories were used: ‘General’ refers to JOLTS; ‘Aeronautics’ refers to air and space technologies; ‘Biotech’ refers to biotechnologies; ‘Health’ refers to health-related technologies; ‘IT’ refers to information technologies. Specialist health law journals were included as these journals publish a steady stream of research concerning health technology and biotechnology. Specialist intellectual property journals were included as these journals also publish a preponderance of research concerning information technology and biotechnology.

402

Journal Start Technology2 Country Institution Features Buffalo, State University of New York Canadian Journal of Law and 2002 General Canada CCH Canada, Dalhousie Peer reviewed Technology Law School Columbia Science and 1999 General USA Columbia Law School Student edited/ Technology Law Review e-journal Computer and 1995 IT UK Sweet and Maxwell Peer reviewed Telecommunications Law Review Computer Law and Security 1985 IT UK Elsevier Peer reviewed Report Computer Law Review 1988 IT Germany Verlag Dr. Otto Schmidt Unclear International: A Journal of Information Law and Technology (1988–2000) Computer und Recht) DePaul Journal of Art, 1991 General USA DePaul University College Student edited Technology and Intellectual of Law Property Law (1991–2007 DePaul-LCA Journal of Art and Entertainment Law) Digital Technology Law 1999- IT Australia Murdoch School of Law Peer reviewed/ Journal 2004 e-journal Duke Law and Technology 2001 General USA Duke University School of e-journal Review Law European Intellectual Property 1978 IT/Biotech UK Sweet and Maxwell Peer reviewed Review European Journal of Health 1994 Heath/Biotech The Brill Editorial Board Law Netherlands review Fordham Intellectual Property, 1990 IT USA Fordham University Student edited Media and Entertainment Law School of Law Journal Harvard Journal of Law and 1988 General USA Harvard Law School Student edited Technology Health Law Journal 1993 Heath/Biotech Canada Heath Law Institute, Peer reviewed University of Alberta Health Law Review 1991 Heath/Biotech Canada Heath Law Institute, Editorial Board University of Alberta review Health Matrix: Journal of Law- 1989 Heath/Biotech USA Law-Medicine Center, Student edited Medicine CaseWestern Western Reserve University Houston Journal of Health Law 2001 Heath USA Health Law and Policy Student edited and Policy Institute, University of Houston Law Center IDEA: The Intellectual 1957 IT/Biotech USA Franklin Pierce Law Student edited

403

Journal Start Technology2 Country Institution Features Property Law Review Center (1957–1972 Patent, Trademark and Copyright Journal of Research and Education; 1974- 1976 IDEA: The PTC Journal of Research and Education; 1977-2005 IDEA: The Journal of Law and Technology I/S: A Journal of Law and 2005 IT USA The Moritz College of Law Student edited Policy for the Information at the Ohio State Society University, H. J. Heinz III School of Law and Public Policy Carnegie Mellon University Indian Journal of Law and 2005 General India National Law School of Student edited Technology India University

Indiana Health Law Review 2003 Heath/Biotech USA Indiana University School Student edited of Law Intellectual Property Journal 1984 IT/Biotech Canada Carswell Peer reviewed Intellectual Property Quarterly 1997 IT/Biotech UK Sweet and Maxwell Peer reviewed International Journal of Law 1993 IT UK Oxford University Press Editorial Board and Information Technology review International Review of Law, 1985 General UK Routledge Peer reviewed Computers and Technology Issues in Law and Medicine 1985 Heath/Biotech USA National Legal Center for Peer reviewed the Medically Dependent and Disabled and the Horatio R. Storer Foundation, Inc., John Marshall Review of 2001 IT/Biotech USA The John Marshall Law Student edited Intellectual Property Law School Journal of Air Law and 1931 Aeronautics USA SMU, Dedman School of Student edited Commerce Law Journal of Business and 2005 General USA Maryland Law, University Student edited Technology Law of Maryland Journal of Contemporary 1985 Heath/Biotech USA Columbus School of Law Student edited Health Law and Policy at The Catholic University of America Journal of Health and 2004 Heath/Biotech USA Suffolk University Law Student edited Biomedical Law School Journal of Health and Life 2007 Heath/Biotech USA American Health Lawyers Peer reviewed Sciences Law Association, Lexis-Nexus Journal of Health Politics 1976 Heath/Biotech USA Duke University Press Editorial Board Policy and Law review

404

Journal Start Technology2 Country Institution Features Journal of High Technology 2002 General USA Suffolk University Law Student edited Law School Journal of Information Law 1996 IT UK University of Warwick and Peer reviewed/ and Technology University of Strathclyde e-journal

Journal of Intellectual Property 1999 IT/Biotech USA Chicago-Kent College of Student edited Law Journal of Intellectual Property 2005 IT/Biotech UK Oxford University Press Peer reviewed Law and Practice Journal of International 2004 BioTech Germany Walter de Gruyter Unclear Biotechnology Law Journal of International 2006 General Denmark International Association Peer reviewed/ Commercial Law and of IT Lawyers e-journal Technology Journal of Law and Health 1985 Heath/Biotech USA Cleveland-Marshall Student edited College of Law, Cleveland State University Journal of Law and 1989 IT Australia Faculty of Law, University Peer reviewed Information Science of Tasmania Journal of Law and Medicine 1993 Heath/Biotech Australia Law Book Peer reviewed Journal of Law, Medicine and 1972 Heath USA American Society of Law, Peer reviewed Ethics Medicine and Ethics Journal of Law, Technology 2001 General USA College of Law and Student edited and Policy; also known as National Centre for University of Illinois Journal of Supercomputing Law, Technology and Policy Applications, University of Illinois Journal of Legal Medicine 1978 Heath/Biotech USA American College of Legal Editorial Board Medicine and Taylor and review Francis Journal of Medicine and Law 1997 Heath/Biotech USA Michigan State University Student edited College of Law Journal of Space Law 1973 Aeronautics USA National Center for Student edited Remote Sensing, Air and Space Law, University of Mississippi Law School Journal of Technology Law and 1996 General USA Fredric G. Levin College Student edited Policy of Law, University of Florida Journal on 2002 General USA Colorado Law, University Student edited Telecommunications and High of Colorado Technology Law Law, Innovation and 2009 General UK Hart Press Peer reviewed Technology Loyola Law and Technology 1996 General USA Loyola University New Student edited

405

Journal Start Technology2 Country Institution Features Annual (1996–1998 Loyola Orleans College of Law Intellectual Property and High Technology Law Quarterly; 2000-2001 Loyola Intellectual Property and High Technology Journal) Marquette Intellectual Property 1997 IT/Biotech USA Marquette University Law Student edited Law Review School Masaryk University Journal of 2007 General Czech Masaryk University Unclear Law and Technology Republic Medico-Legal Journal (1933– 1933 Heath/Biotech UK Medico-legal Society Unclear 1947 Medico-Legal and Criminological Review) Medicine and Law: An 1982 Heath/Biotech Israel International Center for Unclear International Journal Health, Law and Ethics, Faculty of Law, Haifa University Medicine Science and the Law 1960 Heath/Biotech UK British Academy of Peer reviewed Forensic Sciences Michigan Telecommunications 1994 General USA University of Michigan Student edited and Technology Law Review Law School Minnesota Journal of Law, 2000 General USA University of Minnesota Student edited Science and Technology (2000– Law School 2004 Minnesota Intellectual Property Review) North Carolina Journal of Law 2000 General USA University of North Student edited and Technology Carolina at Chapel Hill Northwestern Journal of 2003 General USA Northwestern University Student edited Technology and Intellectual School of Law Property Oklahoma Journal of Law and 2003 General USA University of Oklahoma Student edited/ Technology College of Law E-Journal Quinnipiac Health Law Journal 1996 Heath/Biotech USA Quinnipiac University Student edited School of Law, Richmond Journal of Law and 1995 General USA University of Richmond Student edited/ Technology School of Law e-journal Rutgers Computer and 1970 General USA Rutgers University School Student edited Technology Law Journal of Law (1970–1978 Rutgers Journal of Computers and the Law; 1979- 1980 Rutgers Journal of Computers, Technology, and the Law) Santa Clara Computer and 1985 General USA Santa Clara Law, Santa Student edited High Technology Law Journal Clara University

406

Journal Start Technology2 Country Institution Features SCRIPTed: A Journal of Law, 2004 General UK Centre for Intellectual Peer reviewed/ Technology and Society Property and Technology e-journal Law, University of Edinburgh Shidler Journal of Law, 2004 General USA University of Washington Student edited Commerce and Technology Law School SMU Science and Technology 1997 General USA Southern Methodist Student edited Law Review (1997-2004 University Dedman School Computer Law Review and of Law Technology Journal Stanford Technology Law 2004 General USA Stanford Law School Student edited/ Review e-journal

Studies in Ethics, Law, and 2007 General USA Berkeley Electronic Press Peer reviewed/ Technology e-journal Temple Journal of Science, 1982 General USA Temple University Beasley Student edited Technology and School of Law Environmental Law (1982 Outlook Environmental Journal; 1983 Outlook Environmental Law Journal; 1984–2004 Temple Environmental Law and Technology Journal) Texas Intellectual Property 1991 IT/Biotech USA State Bar of Texas Student edited Law Journal Intellectual Property Law Section and University of Texas School of Law Tulane Journal of Technology 1999 General USA Tulane University Law Student edited and Intellectual Property School UCLA Journal of Law and 1996 General USA UCLA School of Law Student edited/ Technology e-journal University of Baltimore 1992 IT/Biotech USA University of Baltimore Student edited Intellectual Property Law School of Law Journal University of Ottawa Law and 2003 General Canada University of Ottawa Peer reviewed Technology Journal Faculty of Law Vanderbilt Journal of 1999 General USA Vanderbilt University Law Student edited Entertainment and Technology School Law (1999–2005 Vanderbilt Journal of Entertainment Law and Practice) Virginia Journal of Law and 1997 General USA University of Virginia Student edited/ Technology School of Law e-journal Wake Forest Intellectual 1999 IT/Biotech USA Wake Forest University Student edited

407

Journal Start Technology2 Country Institution Features Property Law Journal School of Law Yale Journal of Law and 2000 General USA Yale Law School Student edited Technology Yale Journal of Health Policy, 2000 Heath/Biotech USA Yale Law School Student edited Law, and Ethics

408

Appendix 2: Norman Bayles MLA (Toorak) and his Family

Source: H.H. Paynting (1969) The James Flood Book of Early Motoring, A. E. Keating, p. 121.

409

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Weiss, Rick and Delvecchio, Julie, ‘Scientist “90% Ready” To Clone First Human’,

Sydney Morning Herald, 8 January 1998, 3.

Weiss, Rick and Schwartz, John, ‘US Cloning Experts Attend to Some Serious Monkey

Business’, The Age, 3 March 1997, 11.

Wroe, David et al., ‘Embryo Ban Shocks Premiers’, The Age, 27 February 2002, 4.

Yallop, Richard, ‘No Ban, Urges Stem Pioneer’, The Australian, 14 August 2002, 5.

Films

Allen, Woody (1973) The Sleeper, United Artists.

Baird, Stuart (2002) Star Trek Nemesis, Paramount Pictures.

Bay, Michael (2005) The Island, DreamWorks.

Fincher, David (1999) Fight Club, 20th Century Fox.

Hamm, Nick (2004) Godsend, Lions Gate Entertainment.

Jackson, Peter (2001) The Lord of the Rings: Fellowship of the Ring, New Line Cinema.

Jackson, Peter (2002) The Lord of the Rings: The Two Towers, New Line Cinema.

Jackson, Peter (2003) The Lord of the Rings: The Return of the King, New Line Cinema.

Kaufman, Philip (1978) Invasion of the Body Snatchers, United Artists.

Kershner, Irvin (1980) The Empire Strikes Back, Star Wars Twentieth Century Fox.

518

Kubrick, Stanley (1968) 2001: A Space Odyssey, Metro-Goldwyn-Mayer.

Lang, Friz (1927) Metropolis, Universum Film A.G.

Lucas, George (1977) Star Wars: A New Hope Star Wars Twentieth Century Fox.

Lucas, George (1999) Phantom Menance, Star Wars Twentieth Century Fox.

Lucas, George (2002) Attack of the Clones, Star Wars Twentieth Century Fox.

Lucas, George (2005) Revenge of the Sith, Star Wars Twentieth Century Fox.

Lynch, David (1984) Dune, Universal Pictures.

Marquand, Richard (1983) The Return of the Jedi, Star Wars Twentieth Century Fox.

Meyer, Nicholas (1991) Star Trek VI: The Undiscovered Country, Paramount Pictures.

Nelson, Gary (1979) The Black Hole, Walt Disney Productions.

Nygard, Roger (1997) Trekkies, Paramount Classics.

Parisot, Dean (1999) Galaxy Quest, Dreamworks.

Ramis, Harold (1996) Multiplicity, Columbia Pictures.

Reitman, Ivan (1984) Ghostbusters, Columbia Pictures.

Schaffner, Franklin J (1978) The Boys from Brazil Twentieth Century Fox.

Scott, Ridley (1982) Blade Runner, Warner Bros.

Siegel, Don (1956) Invasion of the Body Snatchers, Allied Artists Pictures Corporation.

Spielberg, Steven (1993) Jurassic Park, Universal Studios.

Spielberg, Steven (2002) Minority Report, 20th Century Fox.

Spottiswoode, Roger (2000) The 6th Day, Columbia Pictures.

Verhoeven, Paul (1997) Starship Troopers, TriStar Pictures.

Wachowski, Andy and Larry Wachowski (1999) The Matrix, Warner Bros.

Wachowski, Larry and Andy Wachowski (2003) The Matrix Reloaded, Warner Bros.

519

Whedon, Joss (2005) Serenity, Universal Pictures.

Television Shows

Battlestar Galactica

Bellisario, Donald (1979) The Hand of God, Battlestar Galactica American Broadcasting

Corporation/Universal Studios.

Colla, Richard A. (1978) Saga of a Star World, Battlestar Galactica American

Broadcasting Corporation/Universal Studios.

Hayers, Sidney (1980) Galactica Discovers Earth Part I, Galactica 1980 American

Broadcasting Corporation/Universal Studios.

Neufeld, Sigmund Jr (1980) The Night the Cylons Landed, Galactica 1980 American

Broadcasting Corporation/Universal Studios.

Satlof, Ron (1980) The Return of Starbuck, Galactica 1980 American Broadcasting

Corporation/Universal Studios.

Alcalá, Félix Enríquez (2006) Exodus Part I, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Alcalá, Félix Enríquez (2006) Exodus Part II, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Alcalá, Félix Enríquez (2007) Razor, Battlestar Galactica Sci Fi Channel/Universal

Studios Home Entertainment.

Dahl, John (2009) The Oath, Battlestar Galactica Sci Fi Channel/NBC Universal.

de Segonzac, Jean (2006) Torn, Battlestar Galactica Sci Fi Channel/NBC Universal.

Eagles, Bill (2006) A Measure of Salvation, Battlestar Galactica Sci Fi Channel/NBC

Universal.

520

Grabiak, Marita (2005) Water, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hardy, Rod (2005) Act of Contrition, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hardy, Rod (2005) The Farm, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hardy, Rod (2005) Litmus, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hardy, Rod (2006) Epiphanies, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hardy, Rod (2007) A Day in the Life, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hardy, Rod (2008) Sine Qua Non, Battlestar Galactica Sci Fi Channel/NBC Universal.

Head, James (2006) Black Market, Battlestar Galactica Sci Fi Channel/NBC Universal.

Hemingway, Anthony (2008) Six of One, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Horder-Payton, Gwyneth (2009) No Exit, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Kroeker, Allan (2005) Bastille Day, Battlestar Galactica Sci Fi Channel/NBC Universal.

Kroeker, Allan (2005) Resistance, Battlestar Galactica Sci Fi Channel/NBC Universal.

Mimica-Gezzan, Sergio (2005) Fragged, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Mimica-Gezzan, Sergio (2005) Home Part I, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Mimica-Gezzan, Sergio (2005) You Can’t Go Home Again, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Mimica-Gezzan, Sergio (2006) The Captain’s Hand, Battlestar Galactica Sci Fi

Channel/NBC Universal.

521

Mimica-Gezzan, Sergio (2006) Occupation, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Mimica-Gezzan, Sergio (2006) Precipice, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Moore, Ronald D. (2009) Disquiet Follows My Soul, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Nankin, Michael (2005) Flight of the Phoenix, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Nankin, Michael (2006) The Passage, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Nankin, Michael (2006) Scar, Battlestar Galactica Sci Fi Channel/NBC Universal.

Nankin, Michael (2007) Maelstrom, Battlestar Galactica Sci Fi Channel/NBC Universal.

Nankin, Michael (2008) The Ties that Bind, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Nankin, Michael (2009) Someone to Watch Over Me, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Nankin, Michael (2009) Sometimes a Great Notion, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Olmos, Edward James (2005) Tigh Me Up, Tigh Me Down, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Olmos, Edward James (2008) Escape Velocity, Battlestar Galactica Sci Fi Channel/NBC

Universal.

522

Olmos, Edward James (2009) Islanded in a Stream of Stars, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Olmos, Edward James (2010) The Plan, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Pate, Jonas (2005) Colonial Day, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rose, Wayne (2007) Dirty Hands, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rose, Wayne (2008) Guess What’s Coming to Dinner?, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rose, Wayne (2009) Blood on the Scales, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2003) Battlestar Galactica Miniseries, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2005) 33, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rymer, Michael (2005) Kobol’s Last Gleaming Part I, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2005) Kobol’s Last Gleaming Part II, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2005) Pegasus, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rymer, Michael (2005) Scattered, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rymer, Michael (2005) Valley of Darkness, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2006) Collaborators, Battlestar Galactica Sci Fi Channel/NBC

Universal.

523

Rymer, Michael (2006) The Eye of Jupiter Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2006) Lay Down Your Burdens Part I, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2006) Lay Down Your Burdens Part II, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2006) Resurrection Ship Part I, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2006) Resurrection Ship Part II, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2007) Crossroads Part I, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2007) Crossroads Part II, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2007) Rapture, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rymer, Michael (2007) The Woman King, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2008) He that Believeth in Me, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Rymer, Michael (2008) Revelations, Battlestar Galactica Sci Fi Channel/NBC Universal.

Rymer, Michael (2008) The Road Less Traveled, Battlestar Galactica Sci Fi

Channel/NBC Universal.

524

Rymer, Michael (2009) Daybreak Part I, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Rymer, Michael (2009) Daybreak Part II, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Turner, Brad (2005) Flesh and Bone, Battlestar Galactica Sci Fi Channel/NBC Universal.

Verheiden, Mark (2005) Final Cut, Battlestar Galactica Sci Fi Channel/NBC Universal.

Villalobos, Rey (2006) Sacrifice, Battlestar Galactica Sci Fi Channel/NBC Universal.

Woolnough, Jeff (2005) The Hand of God, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Woolnough, Jeff (2005) Home Part II, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Woolnough, Jeff (2006) Downloaded, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Young, Robert M (2007) The Son also Rises, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Young, Robert M (2005) Six Degrees of Separation, Battlestar Galactica Sci Fi

Channel/NBC Universal.

Young, Robert M (2006) Unfinished Business, Battlestar Galactica Sci Fi Channel/NBC

Universal.

Young, Robert M (2009) Deadlock, Battlestar Galactica Sci Fi Channel/NBC Universal.

Blake 7

Briant, Michael E (1978) The Way Back, Blake 7 BBC.

Ridge, Mary (1981) Blake, Blake 7 BBC.

525

Buffy the Vampire Slayer

Smith, Charles Martin (1997) Welcome to the Hellmouth, Buffy the Vampire Slayer

Warner Bros.

Whedon, Joss (2003) Chosen, Buffy the Vampire Slayer United Paramount Network.

Caprica

Reiner, Jeffrey (2010) Pilot, Caprica Sy Fy.

Doctor Who

Clough, Chris et al (1986) The Trial of a Time Lord, Doctor Who BBC.

Maloney, David (1969) The War Games, Doctor Who BBC.

Dune

Harrison, John (2000) Dune, Science-Fiction Channel.

Yaitanes, Greg (2003) Children of Dune, Science-Fiction Channel.

FireFly

Whedon, Joss (2002) Serenity, Firefly Fox.

Whedon, Joss (2002) Objects in Space, Firefly Fox.

Star Trek

Bowman, Rob (1988) Datalore, Star Trek: The Next Generation Paramount.

Bowman, Rob (1990) Brothers, Star Trek: The Next Generation Paramount.

Kolbe, Winrich (1994) All Good Things … Star Trek: The Next Generation Paramount.

Scheerer, Robert (1989) Measure of Man, Star Trek: The Next Generation Paramount

Television.

Senensky, Ralph (1968) Bread and Circuses, Star Trek Paramount Television.

Singer, Alexander (1993) Descent, Part 1, Star Trek: The Next Generation Paramount.

526

Singer, Alexander (1993) Descent, Part 2, Star Trek: The Next Generation Paramount.

Wiemer, Robert (1992) Violations, Star Trek: The Next Generation Paramount.

Albums

Dylan, Bob (1964) The Times They Are a-Changin’, The Times They Are a-Changin’

Columbia.

Dylan, Bob (1967) All Along the Watchtower, John Wesley Harding Columbia.

527