Introduction: A Developing Tune

This chapter focuses on law and music, emphasising the engagement by law and humanities scholars with popular music. It is in five parts. The first part identifies a long-standing ‘minor jurisprudence’ concerned with the parallels and cross-fertilisations between legal theorising and musicology, most often depicting judging/lawyering as forms of creative performance. In the second part it is identified that these explorations parallel more doctrinal scholarship on the legal forms – especially copyright – that surround music in the popular space. The third part discerns an area of law and popular music scholarship that emerged in the 1980s and 1990s, formed from traces of textual signifiers in Critical Legal Studies (CLS) scholarship and the expanding of law and literature to a broader enterprise concerned with law and popular culture. The fourth part identifies law and popular music scholarship where music is seen as a challenge to the legal orthodoxy. In this work, there is the utilisation of popular music, particularly songwriters and their lyrics, as manifesting a cultural zeitgeist: the musician as the voice of a generation in protest against a legally embedded orthodoxy. The fifth part considers a trajectory within law and popular music of construing popular music as articulating a ‘popular jurisprudence’. This focus has a connection with the earlier ‘minor jurisprudence’ of legal theory and musicology. It identifies in the cultural project of popular musicians – their lives, lyrics, videos, album art, political and cultural legacies, and social media presences – an articulation, and critique, of received legal forms. Through singing, dancing and creating in the mainstream, fundamental legalities are presented, questioned and reappropriated.

‘Minor Jurisprudence’ of Law and (Mostly Classical) Music

Law and music have a long-intertwined history. First Nations peoples of Australia describe essential legal relations with Country as ‘songlines’: that the proper relations between land, law and peoples are connected though song. In the mythmaking of J. R. R. Tolkien’s The Silmarillion, his world and peoples and the discord they experience are constituted from the singing of ‘Great Music’ by the godhead Eru and angelic-like Ainur. However, the posited and doctrinal focus of the modern Western legal tradition has tended to be deaf to the potential foundational intertwining of law and music. Peter Goodrich has suggested: ‘Just as music has historically paid little attention to writing, law – cold prose, serious social speech – has generally marginalised music.’

One of the most influential accounts on law and technology has been Lawrence Lessig's Code (1999). It is a remarkable text: conversational, passionate, and funny, yet communicating a forceful repudiation of 1990s Internet exceptionalism (the argument that the Internet was either technologically beyond state control, or ideologically should be beyond state interference) with a more sophisticated theoretical account of the law–technology interface. It was a manifesto for the future, a technically competent constitutionalist's account of how to do things with systems and rules. The language in Code was urgent – it was written within a ‘revolution’ – and its registry was the prophetic, full of hypotheticals and what-ifs. In a single bound, Lessig makes it obvious that the horizon for law and technology is the ‘future’.

About the same time that Lessig was combating excessive libertarian zeal in cyberspace, the politico-legal networks of the West were starting to react to the 1997 announcement of the existence of a physically unremarkable Scottish sheep. ‘Dolly’ – named after the American country singer-songwriter (a chauvinist joke based on the fact that Dolly was derived from a mammary cell) – has gone on to be a technological icon as the first mammal cloned from an adult cell. In the immediate aftermath of her announcement, Dolly circulated within Western politico-legal networks – old and Lessig's new media, legislators, health departments, law reform commissions, bioethics centres, and law schools – as a future that must be stopped. Over the early years of the 2000s, Dolly came to represent a family of less woolly anxieties and hopes concerning reproductive cloning, therapeutic cloning, and embryonic stem cell research. These projections called forth law within Western jurisdictions to secure preferable versions of a Dolly-induced future.

This future focus, seen in Lessig, within the cultural legal event of Dolly and within all the other ceaseless calls echoing around the West for law to ‘keep up’ with technology, is a fundamental realisation for the comprehension of technical legality. The exposure of ‘law’ to ‘technology’ is chronologically explosive. It hastens the temporal vector. Thinking and legislating lurches from the ‘what is’ to the speculative ‘what could be’.

The last chapter ended with Max still out there. The Road Warrior endured, even with the ends of civilisation and its fitful restarts, to nurture life. The victory celebrations of the liberated in Mad Max: Fury Road, however, seemed partial, for what would happen once the water ran out? With Max nodding and leaving, there remains the possibility for further narration in Mad Max 5 of the violence, crashes, and becomings of Max's life in the dry expanses of the desert.

Deserts have been a feature of this book's journey of living in technical legality: the deserts of Arrakis, the empty space of Battlestar Galactica, the materiality of matter in time of the Doctor's universe and the iconic Australian outback of Mad Max 2. Even the hyper-life of the renovated South American rainforests of Xenogenesis was a desert, a place of danger and death for Butler's Oankali-saved urbanised humans. These textual and screened deserts were representative of another desert. The triumph of technology in the modern West is often associated with desert imagery. There are concerns with emptiness, uniformity, alien hostility to humanity, a dry space of non-life. This book, taking an alternative perspective, goes to the desert. Its charting of hope is predicated on the harsh reality that the desert of the totality of technology needs to be seen as home for us: the monsters that have inherited the West.

Deserts, as seen in Dune and Mad Max, are not empty, uniform, and hostile to humanity, dry spaces of non-life. Herbert's imaging of Dune, notwithstanding criticisms that can be made of the depth of his ecological engagement, was based on his seeing in the desert networks of becoming: interconnections between biotic, abiotic, and cultural systems. There is life in deserts, and deserts live. The sands of Arrakis ebb and flow over the millennia of the Dune cycle, yet they endure. Deserts can be home, but to be place and not space requires technical intervention. From Herbert's Freman, to the spaceship-borne technological society of Battlestar Galactica, to the re-settlers of the Butler's rehabilitated Earth, to the Doctor's universe traversing blue box, to the survivors of Mad Max, life continues, changes, becomes in the desert, through machines, skills, and techniques.

In the last chapter, the Doctor emerged as a myth-ideal for the lawyer-node of the West. The Doctor embodies what is at stake for the being that, through its immersion with the law network, engages with the primal materials of time and death with the potential to be responsible for becoming. The Doctor's alien safeguarding of becoming – his responsibility made manifest through memory, technical doing, and holding off – demarks the possibilities for technical lawyering within the triumph of technology.

Lawyer-nodes are but one intersection within the networks of the present. The networks produce other node locations, presenting other complex, hybrid, changing beings, other points of difference. Even the law network integrates with other networks to generate other beings – beings that conventionally bear the titles ‘judges’, ‘plaintiff’, ‘inmates’, ‘clerk’, ‘law students’, and ‘law professors’. It is the last cyborg that is the focus of this chapter. With the triumph of technology, what is the point, the end for legal scholarship? As witnessed in Chapter 3, Heidegger's account of technology's occupation of the Western intellectual horizon in modernity led to his assessment of the end of thinking and the end of genuine scholarship. Like his wider story on the totality of technology, this fall also generates a romantic desire for an imagined past of true intellectual endeavour, and a devaluing of the technicity of modern research life. Indeed, with great scorn, Heidegger condemns ‘research man who does not have a library at home’.

Heidegger's quaint criticisms need updating. It is not so much that research woman of the legal academies does not have a home library; it is that she is interfacing with clouds of libraries and repositories through her smart device while in a committee meeting, on public transport, late at night once the children are in bed. Through caresses on a touch-sensitive screen, contemporary scholars of the West are able to access, connect, and process data in fast and different ways, independent of the old institutions of the paper archive. The fundamental question concerns the end to which this technical capacity should be deployed. How can scholars – particularly legal scholars – be responsible for becoming?

The last chapter left some disturbing traces, and not just Baltar as trickster walking New York City. Humanity was left seeking a new, non-technological life on Earth with the great Battlestar Galactica condemned to a solar execution, yet the humans-that-are-us descend not from the Adama's and Roslin's pure humans, but rather from union with the Cylons. This replayed the message of Battlestar Galactica, the disintegration of the categories ‘human’ and ‘technology’ in seemingly an animation of Heidegger's account of the demise of Being into technicity. In this, the Frankenstein myth – so central to law's engagement with technology – is imploded. In Chapter 2, through Dune, modern law was shown as technological in its orientation on death and time, and Chapter 3 showed that the category ‘human’ was also compromised – indeed, riddled with technicity. This could reveal the feared grey goo scenario that informs thinking about nanotechnologies. As all categories are compromised by technology, technicity could be seen as absolute – a total technological world, undifferentiated, valueless, and devoid of meaning, hope, and what used to be known and cherished as human life.

But possibly the most profound disturbing trace was the emerging argument that this is not an end, nor is it a situation without hope. Following Haraway, what was suggested, and what Battlestar Galactica showed, was that life remains. It may be a non-essentialist form of life, a life without metaphysical guarantees, but it is still a life that remains within a world that is not grey, but rather a kaleidoscope of networks – relationships, discourses, structures, and bodies – that continually become. It was also argued that this ever-present agency of creation that is technological Being-in-the-world seeks myths to inspire, inform, and guide the making of the world. This leads to another disturbing trace. In Battlestar Galactica, the Cylons had a plan – at least in the first two seasons – and that plan was the extermination of humanity. Responsibility for becoming is an affirmation of activity and the need for mythic input amounts to a precondition. Schmitt found certain myths thathe thought could liberate the polity from liberalism's failure to identify enemies, which became embodied by Nazism, but like the Cylons’ plan, the making of world that accompanied this myth is abhorrent.

The previous chapter, drawing upon Xenogenesis, charted a myth for living positively within the totality of technology. The focused location was that of the monster formally known as the legal subject. No longer human, but not bare life, this transient entity was seen as a node within the networks of becoming – an embodied location of connections where, through affect, there is the potential to nurture life. Technicity is the defining feature of our world, ourselves, and our law and, rather than Heidegger's precipitous fall, this provides the possibility to be responsible for becoming.

Often this embodied node in the networks is a location for something more. Revealing the technical legal subject as a non-unitary self – changing yet enduring – allows for absolute and radical difference. The monstrous cyborgs of the West can have different attachments, be plugged into different networks, and have different identities, selves, relations, meanings, powers, and responsibilities. It would be a fundamental miscoding of the analysis over the past two chapters if what emerged was a vision of the inhabitants of the West as the same, the image rendered nicely by the ‘battery’ scene in The Matrix (1999) or the clones from Lucas's Attack of the Clones (2002), identical units within the mega-machine. The actual image is not so mechanical; we are not the same cogs in the machine or, looking back to earlier biological metaphors, we are not organs of the body politic. Rather, the scanner registers a primordial soup, eddies within a strange fluid of varying colours, movement, and density; it is a changing, swirling, fluxing complex, dynamic and full of potential. The totality of technicity means that difference cannot be accounted for by the binaries of the old West – nature/culture, male/female, sovereign/subject, black/white, bourgeoisie/proletariat; rather, fields of comparison, graduation, and uniqueness allow for representing difference. Ironically, the digitalisation of information has replaced the binary mode with a much more graded and complex analogue process. The monsters of the West, even more than the monad of their ancestor, the liberal human, demark nodes that are radically unique.

The previous chapter presented a troublesome conclusion for law and technology. It suggested that the ‘saving law’ transgressed the boundaries of the Frankenstein myth. Instead of securing a future for humanity against the monstrous of technology, it was revealed, in itself, as technological. This glimpse of technical legality suggests two lines of enquiry. First, is technical legality an adequate account of contemporary law? Second, if it is, what does this mean for the remaining element of the Frankenstein myth – the human? It was further suggested that science fiction is a privileged location for exploring technical legality.

This chapter takes up these strands. It argues that Frank Herbert's Dune cycle exposes the essential commitments of law as technology. Dune is a coriolis storm from the title planet that ‘cut[s] metal like butter, etch[es] flesh to bones and eat[s] away the bones’. The bones of law as technology that are exposed are sovereignty and positivism. However, the abrasiveness of Dune goes beyond exposing skeletal matter; it dissolves the very notion of sovereignty, leaving its essential commitments – death and time.

Structuring this argument is the law and humanities’ method of reading a popular text jurisprudentially. Dune is not read as an analogy of legal theoretical concepts – namely sovereignty and positive law – but as a con-tribution to thinking sovereignty and positivism. Dune's dusty vistas, superhuman galactic emperors, and sandworm hybrids reveal the commitments behind law as technology in ways that have been forgotten or missed by jurisprudence's formal texts. To do this, Dune is engaged with ‘thickly’. It is through a detailed shifting of the sands of Herbert's imagined universe and the decades of secondary literature that it has spawned that allows this jurisprudential reading.

The argument of this chapter is in three stages. The first stage reviews the cycle. The second stage re-examines the secondary literature on Dune. Critics have identified that Dune reflects on messiahs, politics, and ecology. The commonality identified between these is a meta-theme concerning the illusion of control. This meta-theme 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, the ‘public’ nature of Herbert's protagonists suggests another accounting of Dune.

This chapter continues the examination of technical legality through a detailed analysis of Battlestar Galactica. Whereas, in the previous chapter, Dune emerged as a jurisprudential text that explored the base elements of sovereignty, revealing that law as technology is founded on the alchemy of death and time, this chapter shifts the focus directly to technicity. It argues that Battlestar Galactica shows that technology collapses the received Western metaphysics, yet it affirms that Being continues as ‘technological Being-in-the-world’. Battlestar Galactica is a journey through the darkness of law as technology to a possibility that is ‘responsibility for becoming’.

This argument is in three stages. The first stage reviews the series, noting a significant shift in emphasis from the politics of Season 1 and 2 to the metaphysics of Seasons 3 and 4. The second stage begins by taking seriously the suggestion of Schmitt that closed the previous chapter, but shows that Battlestar Galactica does not re-enact science fiction's tendency to fascist fantasies. In Battlestar Galactica's identification of sovereign and subject, the public becomes personal. This movement away from the public to identity is not complete. Behind the show's animation of identity lies a now familiar monster, but in an unfamiliar environment. Closing this stage is a fundamental realisation that the personal, threatened by essence, discloses the technical.

The third stage draws upon these strands. Battlestar Galactica challenges the metaphysics of technology. In Battlestar Galactica, the distinction between human and technology has been completely blurred. Here Battlestar Galactica seemingly performs Heidegger's ‘end’ of Western metaphysics in the occupation of Being by Enframing. This climax appears to be the total triumph of the monster, seen in the implosion of the Frankenstein myth in Chapter 1. However, Battlestar Galactica – notwithstanding 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 opens to ‘responsibility for becoming’.

Battlestar Galactica Redux

Any analysis of Battlestar Galactica must begin with the original television series of the same name. The original series had a short run during 1978–9, with a dismal spin-off, Galactic 1980 (1980), and was essentially a Star Wars rip-off.

This book is a monster. It has been stitched together from various disciplines: law and humanities, law and technology, science fiction studies and science technology and society. Beamed into science fiction, it would resemble something from a B-grade matinee – a rubber-suited mismatch of eyes, limbs, and antennae. However, as more sophisticated science fic-tions show, even BEMs (bug-eye monsters) (the derogatory term for such creatures) have purpose and humanity. Indeed, they can be – and often are – more human than the ‘humans’. This monster of a book has a purpose and humanity. Its purpose is to chart a way to live well within the total triumph of technology.

Law is often called upon to humanise technology. A current manifestation is the call for law in response to the ‘disruption’ of automated road vehicles. Within this political truism that circulates endlessly within the politico-legal networks of the West, a specific set of concepts and relationships are projected. This technology that needs law is seen as primal, as something non-human and threatening. It is a monster. Humanity is located elsewhere. It is conceived as not technological, yet vulnerable to technology's monstrous pursuits. Mediating between technology and humanity is law. Law saves. It is an instrument through which technology is collared and made to serve human ends. Two observations suggest themselves. The first is that these characterisations of technology, humanity, and law have a pedigree. They belong to none other than Frankenstein, that quintessential modern myth in which an amoral, asocial techno-thing threatens and kills humans. It is a story that calls out for a saving supplement to intervene between creator and monster. The second is a fundamental irony. The law that saves humanity from technology is tool-like. It is a law that is instrumental, plastic, and capable of being called upon and fashioned towards any end. Following Carl Schmitt, this quintessential modern law – empty, yet all-powerful – can be seen clearly: it is law as technology. From this ironic vantage point, the monster can be seen as a trickster, and the political truism of law called upon to humanise technology implodes. Humanity is not saved from technology by law; rather, the technical, tool-like nature of law reveals humanity as given over to technology. What is left after this is not ‘technology’, ‘humanity’, and ‘law’, but a monstrous hybrid figure, the revelation that modern humanity and modern law are thoroughly technological.

This book has had a complicated, cosmopolitan gestation. Its genesis was at the 2000 Critical Legal Studies Conference in Helsinki in Finland, where, as a young junior academic from a small Catholic law school in Fremantle, Western Australia, I presented some half-conceived ideas about 1950s American science fiction and international space law on a panel titled ‘Law and Popular Culture’ alongside William P. MacNeil. A slightly better thought-out iteration of that paper was eventually published by Law and Critique, and it gave impetus to two further papers on science fiction and the car, and the cloning narratives in Star Trek. However, my thematic exploration of law, technology, and science fiction would almost certainly have remained a passing distraction from what may be seen as the more serious scholarly tasks if it had not been for the opportunity to present on another ‘Law and Popular Culture’ panel at the 2006 Law and Society Association Conference in Baltimore, Maryland, United States. By this stage, I was slightly less young and less junior, and due to serendipity found myself working alongside William MacNeil at Griffith Law School in Australia. For this panel, I wrote a paper that looked at the jurisprudential articulations of the technical in the fabulously reimagined Battlestar Galactica. The reception of this paper, the enthusiasm with which it was published by Law and Literature, the sheer personal joy at being able to be what Henry Jenkins has termed an ‘aca-fan’, and the understanding that I had hit on a rich insight concerning the essential relations between law, technology, and science fiction were revelatory. My doctorate – which until then was plodding along as a study of Australian responses to emergent technology over the twentieth century – morphed, under the supervision of MacNeil, into an examination of the science fictionality of law and technology scholarship. It is from that work that this book has mutated.

Ultimately, this book is a celebration of monsters. It is a monster of a book and its final message is for the monsters that have inherited the West to live well – to live as responsible for becoming – in their technical existence. Monsters, too, have complicated origins.