Law in a Shrinking World: The Interaction of Science and Technology with International Law

Abstract

Science and technology are driving a process of globalization in which the world effectively shrinks and expands simultaneously. Emerging technologies make it possible to be personally or professionally intimate with persons on the other side of the globe at the same time that we are able to interact less and less with our physical neighbors. Nation states are losing power both to regional or global institutions at the same time that they are devolving power to subordinate units. International law has had little to say about scientific and technological questions as such, although it does feature a few conventions regarding research in the high seas, in outer space, or in Antarctica, as well as conventions relating to the international protection of intellectual property. International lawyers have given even less attention to the impacts of rapidly changing science and technology on international law itself. This paper addresses those questions. Science and technology have challenged international law by changing the ends pursued through international law, by changing the means by which those ends are pursued through international law, and by changing the nature and structure of international law itself. Science and technology have changed the ends pursued through international law by presenting humanity with new problems such as the harnessing of nuclear energy, the globalizing of markets, the creation of daunting transboundary environmental problems, and the development of new forms of intellectual property. Science and technology have changed the means by which international law acts through new and more effective means of detecting and deterring violations of law and of communicating about legal and other concerns, as well as by rendering national sovereignty obsolete. Profound as these changes are, they are not so significant as the way in which science and technology are transforming the nature and structure of law generally, and of international law in particular. Law has always been bound by its forms, both expressive and institutional. International law has long exhibited considerable doctrinal sophistication coupled with institutional primitiveness, making international law in many respects more like law in preliterate societies than in modern nation states. Speaking broadly, law has gone through approximately three stages before the middle of the twentieth century: oral law; scribal law; and printed law. Each form of legal expression gave rise to particular institutional forms as well. While different societies passed through these stages at different points in time and with different specific experiences, most states had, by the middle of the twentieth century moved into the printed law stage. In the twentieth century, some important steps occurred to bring international law more in line with the legal forms of contemporary nation states at the same time that received forms of law in those nation states were being profoundly challenged by emerging science and technology. Today, law generally, and international as well, are moving into a new stage-digital law. The time has come to begin to consider how this form of expression will transform the institutional structure of law, including the way lawyers think and act, as well as the formal institutions by which law is made and applied.