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THE SPECULATIVE JURISDICTION
The Science Fictionality of Law and Technology
Kieran Tranter*
This article argues that scholarship on law and technology is a

thoroughly speculative activity. The textual signifiers of this
speculative orientation are the multiple incursions of science
fiction that locate and justify lawyers writing about technology.
Through a detailed examination of three law and technology
literatures – on early space technology, IVF and virtual worlds
– it will be shown that science fiction is the storehouse of
images and imaginings that substantiate the legal projection of
technological futures. When law confronts technology, science
fiction is its speculative jurisdiction. The suggestion is that
through a more through-going engagement with science fiction
as the speculative jurisdiction, law could engage more
adequately with the complexities and contingencies of
technological change.
This article argues that legal writing on technology is science fictional. As

such, it is suggested that much more engaging and critical legal scholarship
on technology is possible through a taking seriously of its inherent science
fictionality. The nexus between legal scholarship on technology and science
fiction is in the inherent speculation by lawyers of technological futures that
orientate and legitimate the project of law and technology.
This argument is presented in three stages. The first considers science
fiction as the West’s mythform – that it is the dreaming place for the West’s
technological futures. The second stage examines in detail how science
fiction functions as the speculative grounding to legal scholarship on
technology. Three literatures on technology are analysed: first-generation
space law scholarship (1956–65), IVF and law scholarship (1978–85) and
virtual worlds and law (2004–08). In each scholarship, science fiction
provides the location for a conception of technological futures that need law.
In this, science fiction forms the speculative jurisdiction. The third section of
the article reflects on the limited nature of the legal engagement with science
fiction. The science fictions that inform the speculative jurisdiction are
socially conservative. The technological futures charted by lawyers’ writing
about technology are visions that invoke anxiety, horror and concern at the
loss of the ‘natural’ from the possibility of technological change. Science
fiction as Western mythform is not so limited. This final section draws
briefly on Octavia E Butler’s Xenogenesis trilogy to form a different
speculative jurisdiction from which rather different technological futures can
*
Senior Lecturer, Griffith Law School, Gold Coast and Editor of the Griffith Law Review.
818 GRIFFITH LAW REVIEW (2011) VOL 20 NO 4
be drawn that provide more engaging and critical narrations of law and
technology.
Science Fiction as the Westʼs Mythform

This stage argues that science fiction is 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 William Gibson in
Mona Lisa Overdrive (1988), it is described as follows:
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.1
Gibson’s casual deployment of the mythform is suggestive. It is the place

where myths, stories, accounts and dreams are located. Western culture
dreams, feels and thinks technological change through science fiction as the
repository of images and ideas concerning technological futures. This
cultural function of science fiction can be glimpsed as a constant within the
contested debates of what exactly science fiction is.
A common starting point in the quest for the definition of science
fiction is Isaac Asimov’s definition of it 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 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.2
This conceptualising of science fiction amounts to what can be seen as

the ‘external’ definition of science fiction. Both editors credited with
developing the genre in North America presented analogous definitions.
Hugo Gernsback in the first issue of Amazing Stories in April 1926 set out
the magazine’s publication policy of ‘scientification’: ‘By “scientification” I
mean the Jules Verne, HG Wells, and Edgar Allan Poe type of story – a
charming romance intermingled with scientific fact and prophetic vision.’ 3 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
1
Gibson (1988), p 129.
2
Asimov (1981), p 12, italics in original.
3
Hugo Gernsback, cited in Westfahl (2007), p 20.
TRANTER: THE S PECULATIVE JURISDICTION 819
change] is applied not only to machines, but to human society as well.’ 4

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 1970s. The critics’ deployment
of more formal literary criticism protocols and their need to theorise ‘new
wave’ writers5 tended to focus less on the technological meta-text and more
on science fiction’s unique modus. It was from this context that Darko
Suvin’s 1972 definition of science fiction as the ‘literature of cognitive
estrangement’ 6 became popular.7 Suvin saw in science fiction not just
technological dreaming on an external scale, but a deeper project of thinking
the internal of human existence and potential through the ‘strangeness’ of
science fiction.8 Following Suvin, definitions of science fiction multiplied –
the offspring of the promiscuous tension between external and internal
registers. In his 1986 study, Gary K Wolfe documents 33 different
definitions from authors, editors and critics.9
The flowering of definitions of science fiction had provoked cynical
reactions. As early as 1952, Damon Knight claimed that science fiction
‘means what we point to when we say it’,10 and more recently Paul Q
Kincaid suggested that the best that could be found when it came to a
definition of science fiction was a collection of texts bearing a ‘family
resemblance’.11 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
scientific and postmodern texts than in literary models: specifically
attention to the object in preference to the subject.12
Broderick’s definition has been cited increasingly,13 possibly because it

seems to bridge the external register of Asimov’s technology and future, and
4
John W Campbell, quoted in Nicholls et al (1979), p 159.
5
Landon (2002), pp 149–58.
6
Suvin (1979), p 4.
7
Scholes (1975) p 46; Freedman (2000), p 16.
8
Suvin (1979), p 14.
9
Wolfe (1986), pp 109–11.
10
Knight (1967), p 1.
11
Kincaid (2003), p 417.
12
Broderick (1995), p 155.
13
Roberts (2000), p 12.
Suvin’s literary and internal 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 the contemporary Western culture story tells about
technological futures – about how ‘objects’ will change life – not just the
external forms and institutional arrangements, but the expression and
possibility of human life itself.
In his recent Seven Beauties of Science Fiction, Istan Csicsery-Ronay Jr
provides a neat summary of science fiction as Western mythform:
It is from sf’s thesaurus of images that we draw many of our

metaphors and models for understanding our technologized world,
and it is as sf that many of our impressions of technologically-aided
desire and technology-riven anxiety are processed back into works of
imagination. It is impossible to map the extent to which the
perception of contemporary reality requires and encourages science-
fictional orientations.14
While Csicsery-Ronay might be claiming the impossibility of mapping the

totality of science fiction as the West’s mythform, the next stage of this
article draws a small corner of such a cartography.
Science Fiction as Speculative Jurisdiction in Law and Technology

Notwithstanding the classic vision of the Western lawyer detached from the
world that – to use the traditions preferred pronoun – he serves, lawyers, and
indeed legal scholars, are not monads.15 It is trite and banal to point out the
even legal scholars participate in, and are connected and engage with,
popular culture. Since the 1970s, the law and literature movement, and the
more recent law and popular culture movement, have repeatedly made the
point of the permeability and reflectivity between law and Western culture.16
The wider, grubbier popular cultural context manifests repeatedly within
what once was seen as separate realm of law.
This is especially so when legal scholars direct their thoughts to
technology. Technology is considered a problem that warrants legal exegesis
because it is anticipated that a technology, or the popular discussion of a
potentially emergent technology, will affect the future.17 Therefore, legal
scholarship on technology is kind of an applied futurology – its starting point
is images of technological futures that call for law. This is a speculative
activity, a creative process of looking at what is and projecting, imaging and
dreaming what could be.
14
Csicsery-Ronay (2008), pp 2–3.
15
Tranter and Corbin (2008), p 67.
16
MacNeil (2007); Friedman (1989), pp 1598–1603.
17
Travis (2011), 247–48 makes a similar point for science fiction text and images in judicial
reasoning.
It is precisely at this location of technological futures that science

fiction as the West’s mythform manifests in legal discourse. This is the
junction where the law and literature/law and popular culture claim of the
permeability of law and popular culture is manifest within law and
technology scholarship. To ground the analysis that is to come, lawyer-
scholars need to sketch the technological future. They need to state the
worries, promises, risks, benefits and anxieties that are suggested by the
chosen technology, and in so doing make the case for law. They need a
speculative jurisdiction. And, as will be seen in the analysis of first-
generation space law, IVF and law, and virtual worlds and law, the source of
this speculative jurisdiction is science fiction.
In what follows, each literature is analysed discretely. What will be
shown is the function of science fiction as law and technology’s speculative
jurisdiction. The lawyer-scholars dip into the West’s mythform at three
points. The first is the actual texts are named and circulate invoking popular
meanings and receptions. The second is the incorporation into legal
discourse of images, narratives and tropes popularly associated with science
fiction. The third is the invocation of ‘science fiction’ itself as a carrier of
meaning about technological futures.
First-Generation Space Law
The successful launch of Sputnik in 1957 triggered a large body of legal
discourse concerned with legalising outer space. In this first-generation
space law scholarship, Sputnik is represented as anticipating space
technology and space law. This movement had several facets. The first was
excitement about the progress 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.’ 18 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 back.19
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’.20 Further along this
technological future, lawyers were perceiving leaps in rocket technology –
‘thermodynamic nuclear rockets, electrical ion rockets and the ultimate, the
18
Wurfel (1959), p 270.
19
McDougal and Lipson (1958), pp 408–9.
20
Jessup and Taubenfeld (1959), p 200.
photon rocket’ 21 – allowing ‘satellite platforms … exploration teams will

land on the Moon or on a planet’22 and the use of satellites to control weather
as a weapon.23 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.24
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. John C Cooper worried that scientific
‘progress [may] have loosed forces which, uncontrolled, may well destroy
the civilisation which has created them’.25 Sputnik’s Cold War parentage and
its nuclear sibling were never far from the surface.26 Sputnik represented the
promise of a spacefaring 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?’ 27 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.28
Haley was not alone. Seymour W Wurfel suggested that ‘an effective
space jurisprudence may just possibly save the earth from destruction,
21
Haley (1958), p 269.
22
Pépin (1958), p 233; see also Lyons (1961) p 279.
23
Gorove (1958), p 307.
24
McDougal and Lipson (1958), pp 408–9, referring specifically to the pre-Sputnik
anticipation of Andrew G Haley. See Haley (1956a, 1956b).
25
Cooper (1958), p 218.
26
Wohlstetter (1959); Gorove (1958), pp 305, 327; Editors (1958), p 7; Ward (1959), pp 21–
27; McDougal and Lipson (1958), pp 410–11; Jessup and Taubenfeld (1959), pp 222–24.
27
Anfuso (1959), p 1.
28
Haley (1958), p 262.
conserve the solar system in its present form, and make the universe a bit
safer’.29 Stephen Gorove believed that at the ‘dawn of the Cosmic Age …
technological progress poses a serious threat if the respective legal problems
are not settled beforehand’.30
So it can be seen that first-generation space law scholars processed
Sputnik as embodying a detailed and well-imagined technological future of
the inevitability of spacefaring humanity and with that the necessity for
space law. This technological future belonged to science fiction, and
particularly the science fiction genre of space opera.
The most obvious evidence of the relationship was the direct citing of
science fiction texts as emblems of technological futures. For example, the
editors of the International and Comparative Law Bulletin located Sputnik
within a literary tradition that had projected human-made satellites,
particularly Edward Everett Hale proto-science fiction short story 31 ‘The
Brick Moon’ (1870),32 Jules Verne and Russian rocket scientist and science
fiction author Kostantin Tsiolovsky.33 Others cited HG Wells’ The First Men
in the Moon (1901)34 and War of the Worlds (1898)35 and Verne’s From
Earth to Moon (1865)36 as ‘prophetic’ 37 of humanity’s spacefaring future,38
and mentioned Verne as the embodiment of speculating on technological
futures.39 However, the most cited science fiction text in first-generation
space law scholarship was not from the pen of Verne or Wells, but the 1930s
pulp space opera Buck Rogers.40
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 spacefaring futures from space opera.41 EE (Doc)
Smith in Skylarks of Space (1928),42 and the ‘Lensman’ cycle (1934–50)43
29
Wurfel (1959), p 287.
30
Gorove (1958), p 308.
31
Hale (1970).
32
Editors (1958), p 4.
33
Editors (1958), p 4.
34
Wells (1954).
35
Wells (1975).
36
Verne (2005); Jenks (1956), p 99; Lee (1964), p 185.
37
Simeone Jr (1962), p 43.
38
The First Men in the Moon: Jenks (1956), p 99; Lee (1964), p 1580); War of the Worlds:
Simeone Jr (1962), p 43.
39
Dembling (1959); Smirnoff (1962), p 385; Menter (1963), p 3.
40
Wurfel (1959), p 269; Teller (1958), pp 283–84; Keating (1959), p 56.
41
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.
42
Smith (1984).
(published in Hugo Gernsback’s pioneering ‘pulp’ science fiction magazine

Amazing Stories) has usually been credited as the ‘archetypical space
opera’,44 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.45 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 alien spacefarers –
some hostile, some friendly – space opera is a literature of conflicts,
usually with violent resolutions.46
Space opera, with its spaceships, planets, galactic civilisation, aliens

and conflicts, provided the context through which first-generation space
lawyers saw within Sputnik humans’ spacefaring future. Haley’s 1956
‘metalaw’ speech 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’47 and ‘other
stars have planets … other planets inhabited by intelligent beings’.48
Following EE Smith, whose human space civilisation needed the ‘Galactic
Patrol’ to enforce order,49 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-interference50 seemed very similar to
the ‘Prime Directive’ from the Star Trek franchise.51 Also following
EE Smith’s lead, Haley saw this future as ennobling humanity:
43
The first ‘Lensman’ story, later republished as a novel titled Triplanetary (Smith 2008)
was published in four parts in Amazing Stories in 1934. The other five stories we
published in Amazing Stories over the period 1937–48: Aldiss (1988), pp 259–60. The
final ‘instalment’, The First Lensman (a prequel linking Triplanetary to the Lens stories
proper) was published as a separate novel in 1950: Smith (1995).
44
Monk (1992), p 310. See also Landon (2002), p 50; Pringle (2000), p 41.
45
Kalish et al (1988), p 303; Westfahl (2003), pp 200–1. On the Buck Rogers and Flash
Gordon film serials of the 1930s, see Kinnard (1998), pp 30–40, 43–60, 69–76, 84–90.
46
Westfahl (2003), pp 197–98.
47
Haley (1956b), p 448.
48
Haley (1956b), p 438.
49
Aldiss (1988), p 260.
50
Haley (1956b), pp 437–41.
51
Scharf and Roberts (1994).
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 conceive of, and so engender a measure of
tolerance and compassion that man will rise above his past.52
In the more immediate time-scale, Haley saw that 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.53
While Haley represented a fully realised space opera grounded legal
analysis, space lawyers generally 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 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?54
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 spacefaring humanity and transmitted that stylised technological
future into legal discourse.
The meta-emblem for the speculative jurisdiction was the term ‘science
fiction’. Sputnik was greeted by space lawyers with phrases that went on to
become hackneyed: ‘science fiction is now fact’;55 ‘the problems raised by
52
Haley (1956b), p 449.
53
Haley (1956b), p 449. An unified human government forms the backdrop to EE Smith’s
‘Lensman’ saga.
54
Menter (1963), p 3.
55
Editors (1958), p 4. See also Jacobus (1959), p 671; Hammarskjöld (1994), pp 332–33.
science fiction may soon become reality’;56 and ‘[space travel] is no longer in
the realm of science fiction’.57
In summary what can be seen is first-generation space law transmitted,
and indeed made legal, via space opera visions of spacefaring futures.
Sputnik was interpreted in this cultural context as problematic and needing
law. First-generation space law can be seen as a legal refection of space
opera, sharing with the ‘pulps’ a boyish sense of adventure, a flirting with
danger, and wonderment at the possibilities of life among the stars.
IVF and Law

The announcement by Patrick Steptoe and Robert Edwards of the birth of the
first in vitro fertilisation (IVF) child, Louise Brown, on 25 July 197858 gave
rise to the ‘IVF and law scholarship’. The reception of IVF by legal
scholarship was not accompanied by the excited descriptions of new
horizons that greeted Sputnik. For lawyers, IVF was located as the next step
in a technological future anticipated by the continuum of ‘artificial human
reproduction’,59 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.60 Indeed, IVF was
already allocated into this future history by lawyers in the early 1970s.61 In
these early writings, IVF was anticipated as a further, and troublesome, step
towards a problematic future of artificial human reproduction. 62
As a consequence, in the law scholarship IVF 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?’ 63 David G Dickman, in 1985,
suggested that the ‘clinical application of IVF opens up a Pandora’s Box of
problems’.64 This registering of IVF as predominately a ‘peril’65 occurred
even while acknowledging its promise in addressing infertility:
56
Cerny (1958), p 98.
57
Smythe (1960), p 191. See also Dembling (1959), p 16; Johnson (1963), p 75; Jaffe
(1960), p 68.
58
Steptoe and Edwards (1978), p 366.
59
Clapshaw (1980–83); Steeves (1979).
60
See, for example, Tuchler (1978); Humphreys (1979), p 429; Turner (1981), p 460;
Davies (1984), p 354; Lorio (1984), pp 1665–72.
61
Green (1973), pp 562–63.
62
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].
63
Turner (1981), p 459.
64
Dickman (1985), p 826.
65
Davies (1984), p 374.
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.66
IVF as peril opened the way for the call for law. The law was
‘outpaced’.67 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 reproductive technology.’68 Sarah AL
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’.69 Bernard M Dickens wrote that the ‘biomedical realities of in vitro
fertilization and embryo transfer show the extent of legal lag in Canada’.70
Indeed, most IVF and law scholars were of the opinion that ‘no direct legal
regulation has yet been imposed on IVF’.71 So, as with Sputnik, lawyer-
scholars conceived Louise Brown as a representing a well-imagined
technological future, invoked and sustained by science fiction, that needed
law.
It was almost mandatory for publishing on IVF and law to reference
directly Huxley’s Brave New World (1932)72 and Orwell’s Nineteen Eighty-
Four (1949).73 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’.74 George
J Annas and Sherman Elias expressed more expansively that:
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
66
Cohen (1979), p 320.
67
Lorio (1984), p 1641.
68
Steeves (1979), p 1077.
69
Humphreys (1979), p 430.
70
Dickens (1980) p 242.
71
Cohen (1979), p 324. See also Lane et al (1983), pp 323, 327; Lorio (1984), pp 984–96;
Crabtree (1983), p 902; Bernholz and Herman (1984), pp 9–16; Annas and Elias (1983),
p 208; Steeves (1979), pp 1046–47.
72
Huxley (1977).
73
Orwell (1949).
74
Smith II (1968), p 127. See also Smith II (1982), p 63.
and reinforcement. Abolition of the family was followed by complete

sexual freedom; but reproduction was handled by the state.75
Within the IVF and law scholarship, Huxley and Brave New World
functioned as predominate tropes representing both the immediacy and perils
of artificial human reproduction.76 Michael Kirby quoted from Huxley 77 and
in 1986 used ‘Brave New World’ as a heading for a section within an article
on artificial human reproduction.78 Orwell and Nineteen Eighty-Four also
circulated. IVF, it was suggested, had an ‘Orwellian connotation’,79 and even
the distinguished Australian legal theorist Julius Stone located IVF within an
Orwellian authoritarian future. 80
The repeated referencing of Brave New World and Nineteen Eighty-
Four was the tip of a dystopian pyramid of images, narratives and tropes
throughout the scholarship, particularly images of the intervention in human
birth and bodies for malevolent purposes. The dystopian tropes of
manufactured humans of varying capacities in the ‘Central London Hatchery
and Conditioning Centre’ from Huxley’s opening chapters81 appeared
throughout the IVF and law scholarship. Sir Zelman Cowen in 1985 saw
that: ‘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.’82 Sharon Steeves
saw IVF as raising the Brave New World spectre of state control over human
reproduction.83 The mentioning in the IVF and law scholarship of artificial
wombs suggested Huxley’s ‘Bottling Room’, where with Fordist precision,
conveyer belts of bottled sows’ peritoneum received a human embryo, later
to be ‘decanted’.84 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’.85 By imagining a future of artificial human
reproduction, IVF and law literature saw in that future human cloning,
conjuring Huxley’s dystopian vision of mindless, mechanised uniformity:
75
Annas and Elias (1983), pp 200–1.
76
Carr IV (1973), p 123. See also Porte (1979), p 103; Lorio (1982), p 983; Clapshaw
(1980–83), 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.
77
Kirby (1981), p 1.
78
Kirby (1986), p 211.
79
Oakley (1974), p 386.
80
Stone (1973), p 244; See also Steeves (1979), p 1051; Favre and McKinnon (1981), p 691;
Skene (1985), p 379.
81
Huxley (1977), pp 15–38.
82
Cowen (1985), p 569. See also Robertson (1986), p 1023.
83
Steeves (1979), p 1051. See also Smith II (1982), p 68; Robertson (1983), p 426.
84
Huxley (1977), pp 19–20; Lorio (1982), p 923; Robertson (1983), p 432; Davies (1984),
p 360; Robertson (1986), p 1025.
85
McCartan (1986), p 711.
‘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.’86
Julius Stone, peering into what he saw as an inevitable future of

artificial human reproduction, set out the central Huxley tropes – of power
elites, diminished individuality and the end of history:87
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 who know
they are preordained, freaks who can already see their future mirrored
in another person.88
What this meant was that Huxley’s dystopia provided the basic material
through which lawyers speculated on the problematic future of artificial
human reproduction which framed the pragmatic task of law’s response to
IVF.
As with first-generation space law, IVF and law scholarship deployed
the meta-emblem ‘science fiction’ to signpost the future of artificial human
reproduction: ‘[y]esterday’s science fiction, however, is today’s reality’,89
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 and presents opportunities to shape men’s lives in
ways that until now were only possible in science fiction novels.90
In summary, what can be seen is that the IVF and law scholarship is
orientated by a technological future that has its origins in the classics of
dystopian science fiction. Louise Brown’s birth was located within this
speculative dystopian jurisdiction.
86
Huxley (1977), p 18.
87
On the elements of clone hysteria, see Tranter and Statham (2007).
88
Stone (1973), p 248.
89
Dickman (1985), p 817. In a similar vein, see also Favole (1979), p 799; Annas and Elias
(1983), pp 199–200; Lorio (1984), pp 1275–76; Tuchler (1978), p 310: ‘Consider also the
creature of science fiction – the totally fabricated person.’
90
Eccles (1985), p 1033.
Virtual Worlds and Law

Online virtual gaming environments, or ‘virtual worlds’,91 became a subject
of popular concern in 2006, with reports of virtual millionaires and real-
estate tycoons.92 As with Sputnik and Louise Brown, the media attention
quickly translated into copy in law journals,93 and lawyers – in what will be
called the ‘virtual worlds and law’ scholarship – compounded these financial
reports with less positive reports concerning virtual theft and fraud,94 virtual
sexual abuse,95 virtual financial collapses96 and reports of real-world concerns
of addiction,97 money laundering 98 and murders arising from virtual world
disputes99 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 regulated
inadequately by existing law. As in the earlier literatures, law was perceived
as needing to catch up.
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’ 100 – the
connection between the real economy and the virtual economy – was
noted.101 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.102 The
secondary representation was the existence of virtual property and player
accounts for sale on eBay,103 and the citing of Edward Castronova’s
91
A more technical description from computer gaming for these environments 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.
92
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.
93
Hunt (2007), p 143; Chin (2007), p 1306; Keupink (2007), p 168.
94
Chein (2006), pp 1067–68; Holdaway (2007), p 2; de Zwart (2008), p 79; Brenner (2008),
pp 58–60.
95
Abrahams (2007), p 298; Meek-Prieto (2008), pp 90, 102–4; Brenner (2008), pp 90–92.
96
Rosette (2008), pp 284, 287–88; Kunze (2008), p 103; White (2008), pp 237–38; Stoup
(2008), p 342.
97
Lastowka (2008), p 907; Rosette (2008), pp 293–94.
98
Abrahams (2007), p 299; Rosette (2008), pp 290–93.
99
Abrahams (2007), p 305; Chein (2006), p 1059.
100
Jankowich (2005), pp 184–86.
101
Lastowka and Hunter (2004), p 9.
102
Mayer-Schönberger and Crowley (2006), p 1789; Caramore (2008), p 11; White (2008),
pp 231–32.
103
Lastowka and Hunter (2004), p 38; Saunders (2007), p 229.
foundational 2001 study on the virtual and real economics of Sony’s

EverQuest.104 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,105 and questions were 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.106 The third issue related to
the crossover between virtual behaviour and real-world crimes, particularly
theft107 and child pornography.108 However, balancing these concerns were
more optimistic assessments. Jerry Kang, in 2000, saw with the emergence
of avatars the possibility for ‘cyber-passing’:109 the potential for players to
experience living as a different gender or race and the hope that such
experiences could facilitate greater empathy and understanding. 110
Notwithstanding Kang’s early optimism, however, the balance of the virtual
worlds and law scholarship framed virtual worlds as problematic.
Having established these concerns, the direction of analysis was to see
that current real law was inadequate. This task of examining the law was
framed and rendered urgent by a belief that virtual worlds were the future.
Bettina M Chin elaborated on 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.111
As a harbinger 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.’ 112
104
Castronova (2001), cited by Jankowich (2005), p 176; Fairfield (2005), p 1050; Sheldon
(2007), p 754; Holdaway (2007), pp 1–2; Macrae (2008), p 325.
105
Lessig (2006), p 111; Hunt (2007), p 150; Chin (2007), pp 1321–23; Caramore (2008),
pp 1–2, 4; de Zwart (2008), p 81.
106
Dougherty and Lastowka (2008); Kane and Duranske (2008), p 1.
107
For example, see Saunders (2007), pp 234–40; 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 249–58.
108
Keupink (2007), p 167; Meek-Prieto (2008), p 89.
109
Kang (2000), p 1179.
110
Kang (2000), p 1181.
111
Chin (2007), 1315–16. See also Mack (2008), pp 755–56; Rogers (2007), p 411; Kayser
(2006), p 62.
112
Rosette (2008), p 299.
F Gregory Lastowka and Dan Hunter 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.’113 For other lawyer-scholars, because the
‘traditional problems of human nature and conflict persist’,114 there 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.’115 Jack M
Balkin was particularly insistent on the inevitability of real law in virtual
worlds: ‘As people spend more and more time in virtual worlds, and as there
senses of self become increasing bound up with them, these sorts of
arguments [assault, theft, defamation] may become more plausible.’ 116
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’:117
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.118
These anxieties and promises had speculative foundations. Nineteen

Eighty-Four was deployed briefly in virtual worlds and law scholarship
concerning the issue of information privacy within virtual worlds. 119
However, unlike the IVF and law scholarship that circulated Orwell and
Huxley, the virtual worlds and law scholarship found its speculative
jurisdiction within cyberpunk, and particularly the cyberpunk staples of Neal
Stephenson’s Snow Crash (1992)120 and William Gibson’s Neuromancer
(1984).121 Snow Crash, with its virtual world – the ‘Metaverse’ – peopled by
‘avatars’, was regularly referenced.122 Gibson’s Neuromancer celebrated in
cyberlaw scholarship as coining the name ‘cyberspace’,123 reoccurred in the
113
Lastowka and Hunter (2004), p 72.
114
Mayer-Schönberger and Crowley (2006), pp 1790–91.
115
Meek-Prieto (2008), p 98; Keupink (2007), p 167.
116
Balkin (2004), p 2068.
117
Davis (2007), p 199.
118
Lastowka and Hunter (2004), p 69. See also Mayer-Schönberger and Crowley (2006),
p 1791.
119
Zarsky (2004), p 233.
120
Stephenson (1992).
121
Gibson (1984).
122
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.
123
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,
virtual world and law scholarship.124 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 us’.125 This
appreciation of the aesthetics of cyberpunk continued with the referencing of
the Wachowski brothers’ The Matrix (1999):126 ‘Second Life … is perhaps
the first attempt by Internet users and programmers to make the digital realm
of The Matrix come to life.’ 127 However, this citing of science fiction texts
heralded a more expansive engagement with science fiction. Not only were
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.
Beyond the obvious recognition that various virtual worlds, such as
CCP’s EVE Online and Sony’s Starwars Galaxies, drew their content from
science fiction,128 it was an established feature of the virtual worlds and law
scholarship to weave cyberpunk images, narratives and tropes within
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,129 but it quickly became deployed to cover near-future fiction from
the 1980s concerned with developments in:
cybernetic and genetic engineering, in organ transplants, and artificial

intelligence research; 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 taken … away
from the older industrial technologies to the newer informational and
cybernetic ones.130
the term to describe graphically interactive computer networks was first coined by Gibson
in the 1981 short story ‘Burning Chrome’, reprinted in Gibson (2000).
124
Cockfield (2002), pp 354–55, n 103; Holdaway (2007), p 1; Bartholomew (2007), pp 739–
40; Miller (2003), p 437; Blitz (2008), p 1157.
125
Holdaway (2007), p 30.
126
Wachowski and Wachowski, The Matrix (Warner Bros, 1999). On The Matrix as
cyberpunk, see Barnett (2000).
127
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.
128
See, for example, Jankowich (2006), p 2. More precisely, these worlds draw from space
opera.
129
Clute (2003), p 67.
130
McCaffery (1988), p 9.
For critics, many of whom reduced cyberpunk to Gibson’s ‘Sprawl’

trilogy131 – Neuromancer (1984), Count Zero (1986) and Mona Lisa
Overdrive (1988)132 – the sub-genre involved a masculine fascination with
intimate technologies of the body that enhance, replace or render superfluous
the ‘wetware’ of human existence.133 In the virtual worlds and law
scholarship, Gibson’s low-life characters from the digital wastelands of
hyper-capitalism, opportunistically hacking corporate databases, became the
virtual world ‘griefers’ 134 who destroy and appropriate virtual property. It
was the existence of lawless contemporary ‘console cowboys’135 that drove
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’,136 cited repeatedly by
cyberlawyers,137 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’.138 Gibson’s cyberspace was bodiless. 139
It was Stephenson’s satirical Snow Crash that presented a now 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’140 – 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.’141 Further Stephenson’s
aside that his primary character, the obviously named Hiro Protagonist, ‘has
131
Csicsery-Ronay (1988), p 269; Easterbrook (1992), p 379.
132
Gibson (1988).
133
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 272–73.
134
Grimmelmann (2004), pp 169–70; Zack (2007), p 238; Chin (2007), p 1323; Lastowka
(2008), p 913.
135
Easterbrook (1992), p 378.
136
Gibson (1984), p 67.
137
See, for example, Katsh (1995), p 1684; Horning (1997), p 109; Burke (1996), p 89;
Cockfield (2002), p 348; Hunter (2003), p 472.
138
Chen (2006), p 1090.
139
Cadora (1995), p 364.
140
Stephenson (1992), p 36.
141
Meek-Prieto (2008), p 88.
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’142 became
the quote when considering virtual property.143
Another cyberpunk image in 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,144
Gibson’s stories involve a cavalcade of cyborgs; the hacker Case only feels
whole when he is plugged into a ‘deck’ to Molly the cybernetic enhanced
razor-girl with optical implants and retractable blades behind burgundy
fingernails. 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 technofeminism, and
particularly the reception of Donna Haraway’s iconic 1985 ‘A Manifesto for
Cyborgs’.145 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 construct146 and their
development of ‘cyborg rights’ 147 to frame consideration of the legal
concerns surrounding virtual worlds.148
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.’ 149
In summary, a clear continuity of approach can be seen across first-
generation space law, IVF and law, and virtual worlds and law scholarship.
They are science fictional discourses, where science fiction as the Western
mythform is channelled into consideration of law and technology. Virtual
worlds and law, like earlier IVF and law and first-generation legal
scholarship, used a specific science fiction genre, cyberpunk, to see the
future in the emerging online virtual world environments. Like Sputnik in
1957 and Louise Brown in 1978, Second Life circa 2006 was a cultural event
full of science fictional meaning. Sputnik anticipated a future of Buck
Rogers spacefaring humanity. Louse Brown anticipated a Brave New World
142
Stephenson (1992), p 26.
143
Sheldon (2007), p 786.
144
Rieder (2008), p 111.
145
Haraway (1985), although Haraway’s direct inspiration draws on 1970s feminist science
fiction. On the cyborg for technofeminism, see Lykke (1996), pp 13–29; Ben-Tov (1995),
pp 135–66; Bailey and Telford (2007), pp 255–58.
146
Lastowka and Hunter (2004), pp 63–65.
147
Lastowka and Hunter (2004), pp 67–72.
148
When introducing the cyborg, Lastowka and Hunter parade a 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.
149
LeBlanc (2008), p 277.
of artificial human reproduction, while Second Life anticipated the

cyberpunk universe of living, and sinning, inside the mainframe. These
literatures reify the speculative potential culturally encoded within these
specific technological events into a solidness that needs law. In this, law and
technology scholarship plays an important function in the reckoning with
technology in the West. It is through the writing of law and technology
scholars that the politico-legal networks of the West become primed for law-
change in response to cultural anticipation of technologically driven change.
Taking the Speculative Jurisdiction Seriously

Having established the science fictionality of law and technology
scholarship, a fundamental question emerges: What was at play that allowed
these cultural formations to be the nexus point between technology and law?
What made it seem an obvious choice to space lawyers in the late 1950s to
draw upon space opera, biomedical lawyers in the late 1970s to channel
dystopian science fiction and virtual world lawyers to reference cyberpunk?
The answer seems obvious. Space opera is home to the rocket, dystopian
science fiction to artificial human reproduction and cyberpunk to computer
simulated reality. However, science fiction is not so compartmentalised. The
rocket, artificial human reproduction and computer-simulated reality appear
both cross-genre and also intra-text. The narrative of Gibson’s Neuromancer
rocks along with rockets and artificial human reproduction, as well as its
definitional cyberspace. Science fiction as the Western mythform is
significantly more complex than the selective referencing by future-focused
technology lawyers.
There is a commonality to space opera, dystopian science fiction and
cyberpunk that renders them attractive to legal scholars. This commonality
rests in their conservative modus. As genres, and specifically the canonical
texts cited by law and technology scholars, they are essentially socially
conservative, and this arises from conceiving, at a fundamental level,
conflict between ‘nature’ and ‘technology’.
Nothing ever changes in space opera. There are adventures and battles
and mile-long spaceships, but Buck Rogers’ and Doc Smith’s universes were
static. Men were men, women were women, villains were villains, sidekicks
were sidekicks and BEMs were bug-eyed-monsters. The comic-book and
serial format meant that there were no transformations. Man (and it was
always a man) could travel effortlessly through the stars, but the laws of this
universe were the familiar binaries of white masculine hetero-normativity –
of man/women, white/black, good/bad, human/alien, nature/culture,
liberty/oppression, market/state control, heterosexual/homosexual.150 Even in
slightly more sophisticated space operas, like George Lucas’s Star Wars
(1977),151 this conservative orientation remained. Lucas’s channelling of the
150
Kalish et al (1988).
151
Lucas, Star Wars: A New Hope Star Wars (Twentieth Century Fox, 1977).
monomyth encoded this conservatism into plot.152 The monomyth is a story

of ever-change but no-change.153 The hero quests to preserve the status quo.
The world-as-is is renewed, the hero’s inheritance is restored, and progress
and change are managed. The endpoint of Lucas’s saga is precisely one of
‘return’; galactic civilisation does not overthrow the ‘wizards’ and their
‘force’, but engineers a righting of the universe with the demise of the
Empire and its technological over-determination.154 Star Wars brings to the
forefront the primary tension that circulates within the space opera meta-
text; the uneasy marriage of a technological-mediated narrative within a set
of over-arching anti-technological tropes. Space opera confirms nature –
specifically a human nature of freedom, sexually determined social roles and
conflict – while celebrating wondrous technologies. The solution evident in
Star Wars is to have the hero represented as using technology while the
villain, ‘more machine now than man’,155 is seen as consumed by
technology.156 In space opera, technology is problematic. The iconic space
opera techno-objects of rocket, robot and ray-gun are too often associated
with the villain’s plans for galactic overlordship. For first-generation space
law scholarship, space opera’s legacy could be seen in the framing the rocket
as ‘problematic’, as promising adventures in the heavens and also the perils
of space war and authoritarianism. As such, this fundamental postulating of
nature vs technology – of threatening technology needing to be combated
and humanised – generates the brief for law. In this, the calls within first-
generation space law are for international laws to regulate human affairs in
space: ‘lawyers are of the opinion that a worldwide agreement – a truly
worldwide one – is necessary’.157 This responded to a vision of spacefaring
humanity that was socially conservative and, ironically, substantially anti-
technological.
A similar set of configurations can be seen in dystopian science fiction.
Dystopian science fiction plays on narratives of corruption and loss. While
they are more sophisticated texts than the space opera canon, what is
affirmed in Huxley and Orwell is the threat to the naturally free and
autonomous human from the malevolent application of technology.158 Firmly
located by these texts within a horror-inducing dystopian future of artificial
human reproduction, IVF – even more so than the rocket – needed law. IVF
and law scholarship, through its transmuting of dystopian science fiction,
conceived of an essentialist human nature – a natural core of being – that
was directly under threat from the emergence of IVF technologies. Like
152
Lawrence (2006); Mackay (1999), p 68.
153
Campbell (2008), p 206; Palumbo (1997).
154
McVeigh (2006).
155
Marquand, The Return of the Jedi: Star Wars (Twentieth Century Fox, 1983) (Obi Wan
Kenobi).
156
Sobchack (2004).
157
Pépin (1958), p 232. See also Pépin (1957), p 68; McDougal and Lipson (1958), p 412;
Jacobini (1958), p 117; Lipson and deB Katzenbach (1961), p 32.
158
Moylan (2000), p 121; Pierce (1987), pp 167–68.
first-generation space law, this negative framing created the call for law.
Law was needed to organise, regulate and prohibit the possibilities that
dystopian science fiction suggested would become open with artificial
human reproduction.159 Even more than space opera, dystopian science
fiction can be seen as profoundly anti-technological.160
And again, a similar set of configurations underpins cyberpunk.
Cyberpunk’s gritty narratives of the cyborg detritus of hyper-capitalism
retained a conservatism and a sense of loss of the natural that was also
evident in space opera and dystopian science fiction. Feminist critics have
emphasised the social conservativeness of Gibson’s worlds, from the
character of Molly to the male fantasy of a disembodied roving eye inside
the network.161 In addition to affirming a conservative male/female dualism,
there is mourning throughout the Sprawl trilogy for nature, for a return to a
less mediated, less consumptive, less competitive existence. Gibson, and
cyberpunk more generally, as revealed in the mythform image that has been
appropriated in this article, tended towards the mythical, a desiring of a lost
sense of communion and community denied by the violence and
fragmentation of hyper-capitalism.162 For virtual worlds and law scholarship,
this framed the need for law in and around virtual worlds. Laws were needed
to ensure the stability of identities, of property and of sexual conduct inside
the game. While virtual world lawyers disagreed on the form of law – from
state regulation 163 or in-world code164 – there was agreement about the
necessity for law to provide a semblance of a familiar ‘natural’ order of
persons, property and sex.
What is being suggested is that law and technology’s engagement with
the Western mythform has been limited, and to a certain degree strategic.
The touchstone texts for first-generation space law scholarship, IVF and law
scholarship and virtual worlds and law scholarship affirm nature over
technology. Each presents a human essence, of ‘freedom’ and of sexually
determined social roles, that is threatened by technology. This meant that the
rocket, IVF and virtual worlds were problematic. They needed law. And they
needed the lawyer-scholar to write for legislating within these speculative
futures. However, science fiction as the Western mythform is not limited to
these conservative narratives of nature and technological threat. To return to
the distinctions within science fiction criticisms from the first section, these
159
Cohen (1979), p 324; Lane et al (1983), p 323; Venturatos Lorio (1982), pp 984–96;
Crabtree (1983), p 902 Bernholz and Herman (1984), pp 9–16; Hollinger (1986), p 867;
Annas and Elias (1983), p 208; Steeves (1979), pp 1046–47; Crabtree (1983), p 902.
160
Huxford (2000).
161
Cadora (1995), p 365; Freedman (2000), p 196.
162
Cavallaro (2000), pp 53–58.
163
Balkin (2004), p 2070; Passman (2008), p 285; Marcus (2007), pp 90–91; Hunt (2007),
pp 169–73; Kunze (2008), pp 112–18; Westbrook (2006), pp 810–11; Meek-Prieto (2008),
pp 107–9.
164
Lastowka and Hunter (2004), p 71; Kerr (2008), p 417; Stoup (2008), p 336; Mayer-
Schönberger and Crowley (2006), pp 1802–3, 1805–8; Kane and Duranske (2008), p 9.
literatures remain within the first, external definition of science fiction: they
‘write up, in story form, what the results look like when [technological
change] is applied … to human society’. What has not been explored is a
drawing upon science fictions that register more strongly within Suvin’s
‘strangeness’ definition. In doing so, the natural certainties, technological
hostility and conservative tendencies seen in the speculative jurisdictions of
the three examined law and technology literatures can be challenged.
Octavia E Butler’s celebrated Xenogenesis trilogy (also known as
Lilith’s Brood), comprising the novels Dawn (1987),165 Adulthood Rites
(1988)166 and Imago (1989),167 charts a very different response to nature and
technology than law and technology’s established speculative jurisdiction.
Taking the alien invasion narrative from space opera, the dystopian tropes of
the manipulation of life and reproduction, and cyberpunk’s grit, Butler
overlays a set of different narratives and perspectives drawn from the
African diaspora. Xenogenesis charts the choices that a woman of colour
makes within a total, yet sort of benign colonial context.168 Butler’s focus
through the novels is not one of nature threatened by technology, but on how
what is ‘natural’, what is human and what is alien are technologically
mediated.169 Set in the aftermath of a nuclear war, Butler’s Earth is
discovered by the Oankali, a spacefaring, tri-sexed (female, male and ooloi)
race of aliens who trade genes. The Oankali reproduce as a species through
merging and mingling with a found biosphere, taking desirable features and
traits from that life-source into their subsequence generations.170 In doing so,
the biosphere that was is destroyed in the birthing of the next generation of
Oankali and their massive living spaceships.171
Butler’s narratives within this space are personal. There are not the
grand public space wars of space opera, acts of resistance as in dystopian
science fiction, or forms of hack-activism as in cyberpunk. Dawn charts
Lilith’s compromises and the costs in her negotiation of the Oankali colonial
project. Adulthood Rites documents the growing up of her hybrid-human-
Oankali son Akin and his mission to secure a future for the humans who had
resisted mating with the Oankali. Imago tells the story of Lilith’s first ooloi
child, Jodahs, and its journey to sexual maturity. Jodahs marks the full
emergence of the next generation of Oankali, the new hybrid species of
spliced Oankali and human genetic heritage, whose growing spaceships will
eventually consume the Earth.172
165
Butler (1987).
166
Butler (1988).
167
Butler (1989).
168
Raffel (1995), p 455; Scott (2006), p 107.
169
Peppers (1995); Holden (1998); Vint (2007), pp 56–78.
170
Butler (1987), pp 39–41.
171
Butler (1988), p 229.
172
Butler (1989), p 217.
Butler fundamentally challenges the cultural constellation of nature vs

culture and the attendant social conservatism of law and technology’s
established speculative jurisdiction. For Donna Haraway, Butler’s
Xenogenesis is a powerfully new cyborg tale.173 It tells the story of power
and living inside a world of natureculture.174 The Oankali, the ‘saved’ human
and the rehabilitated post-nuclear holocaust Earth are all obviously products
of technical manipulation. The Oankali are clearly coded as beings of
‘biopower’ – a power over life and life-materials175 – rendered explicit in the
texts by the ooloi with their additional ‘sensory arms’ that allow their
‘sensory hand’ and their ‘yashi’ to store and manipulate genetic sequences,
construct pheromones and directly stimulate the neuro-system of other living
beings. Life is not ‘natural’ – it has been mixed and fixed by the Oankali.
Nature is not threatened by technology; rather, to talk of ‘nature’ and
‘technology’ as separate seems meaningless.176 Butler reinforces this with the
resister human males, who cling to narratives of what is right and natural.
Their rights talk goes hand in fist with violence, killing and sexual
assaults.177 In Xenogenesis, Buck Rogers ends up playing cave man.
What Butler presents is a radical reading of living in the modern West.
Xenogenesis suggests that human life is profoundly technologically
mediated; who we are, what our bodies are, what we can do in the world,
what our law is all come through technology. In this, Butler affirms the
reading of the triumph of technology in the West that Martin Heidegger
identified in the 1950s, but without Heidegger’s romance and loss.178 Butler’s
protagonists inhabit a natureculture world of biopower; however, unlike the
resister human males, there is no violent struggle to restore what is ‘natural’.
Instead, there is a working of the networks of change to enhance affect and
relations, and ultimately to nurture future life.
This is not a speculative jurisdiction that transmutes cultural anxieties
about technological change into calls for law. It focuses on a different reality
than the socially conservative universe of nature vs technology of space
opera, dystopian science fiction and cyberpunk. Seen through Xenogenesis,
the rocket, IVF and virtual worlds become coded differently. For the rocket
and space law, Butler refocuses the legal gaze away from accessing space
resource and prohibiting space war to a more terra-focused set of concerns
around techno-colonialism; of difference and the responsibilities of the
technologically powerful. In drawing the Oankali as truly alien, as complex
others whose thinking and emotions are never quite clear to humans and who
in turn never quite comprehend human thinking and doing, Butler
foregrounds the colonialist legacy. Whereas first-generation space lawyers
173
Haraway (1985) pp 92–97; Haraway (1991), p 227.
174
Haraway (1997), p 149.
175
Foucault (1978), p 143.
176
Peppers (1995), p 59.
177
Butler (1987), p 117.
178
Heidegger (1977), pp 26–27; Tranter (2007), p 464.
were concerned with peaceful exploitation of the cosmos, through Butler’s

lens of aliens who have claimed the Earth what is prioritised is the justice of
distribution and the ownership of change. The focus becomes one of the
contested politics of haves and have-nots that eventually caught up with
space law and space law scholarship with the Moon Agreement179 in the late
1970s and early 1980s.180
For IVF and law, Xenogenesis, in its fabulous image of the ooloi –
essentially the IVF technician whose centrality to reproduction has meant it
has become a third sex – eclipses the need to protect human reproduction
from dystopian possibilities that was evident in the IVF and law literature.
Instead of general concerns of regulations and control, IVF through
Xenogenesis becomes an issue of more micro-power and choice. It priorities
not the technical possibility of editing and manipulating human life and
reproduction, but the responsibilities involved when that technical capacity
is established. It is not so much a concern that scientists can ‘make test tube
babies’, but rather who decides, what process, whose bodies are involved,
who gets to use this technology. In this, Butler’s text can be seen as
foregrounding some of the feminist questioning of the practical realities of
IVF181 that were substantially absent from the IVF and law scholarship.
Finally, for the virtual worlds and law scholarship, Butler’s
Xenogenesis emphasises potentiality and diversity. The Oankali, with their
quest for life in its diversity and for change, resonate with the possibilities of
virtual worlds as social spaces that do not just manifest some of the core,
problematic values of the modern West – the market, individualism and
competition. In Xenogenesis, the Oankali consider the pure human species as
hardwired for self-destruction through the contradictory affirmation of two
traits deep in the genome of hierarchy and intelligence.182 Virtual world and
law scholars, locked into a cyberpunk assessment of the potential of virtual
worlds, advocate for law to stabilise and regulate persons and property, to
stop the griefers and to police the virtual world–real world interface. In
many respects, they see a fundamental human nature of hierarchy linked
with intelligence that needs to be regulated. In the alternative, Edward
Castronova, economist and a leading scholar of virtual worlds, wants to keep
virtual worlds open as imaginative spaces for play, and in doing so to see the
possibilities for transformations of the social to be expressed, experimented
and lived.183 Castronova’s argument for law to protect virtual worlds from
the constraints of contract, rights and property can be seen as emerging from
a speculative jurisdiction that is not cyberpunk but more Butler-like and
‘utopian’.184
179
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,
open for signature 18 December 1979 1363 UNTS 3, entered into force 11 July 1984.
180
Pop (2001).
181
Karpin (2006); Vint (2007), p 61.
182
Butler (1988), p 16.
183
Castronova (2004), p 202.
184
Stillman (2003); Miller (1998); Belk (2008).
It is suggested that this brief exemplar of Xenogenesis as a rival

speculative jurisdiction is a taking seriously of the science fictionality of law
and technology. In presenting a world of natureculture, Butler grounds her
imagining away from the social conservatism of nature vs technology that
was identified in space opera, dystopian science fiction and cyberpunk. She
provides an alternative framing for rockets, IVF and virtual worlds that
emphasises the micro and everyday of politics and power in how
technologies are to be implemented. Instead of seeing potentialities that need
to be prohibited, Xenogenesis reveals possibilities and complexities that need
to be expressed and thought about. By drawing more deeply into the
Western mythform, law and technology has the potential to develop more
engaging and critical narrations of law and technology.
Conclusion
This article has argued for the science fictionality of law and technology.
Through an analysis of the deployment of science fiction texts, images and
tropes within three law and technology literatures (first-generational space
law, IVF and law, and virtual worlds and law), it was shown that three
technological events (Sputnik, Louise Brown and Second Life) were seen as
heralding specific technological futures. In drawing these futures from space
opera, dystopian science fiction and cyberpunk, each of the legal literatures
can be seen as channelling a social conservativism arising from seeing
nature and technology in conflict. In the alternative, it was argued that law
and technology should draw more deeply from science fiction as the West’s
mythform, to challenge these preconceptions and to enact more critical and
engaged narrations of law and technology. A preliminary sketch of this was
provided by utilising Butler’s Xenogenesis trilogy as a speculative
jurisdiction through which to reassess the legalities of the rocket, IVF and
virtual worlds.
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THE SPECULATIVE JURISDICTION

The Science Fictionality of Law and Technology

This article argues that scholarship on law and technology is a

This article argues that legal writing on technology is science fictional. As

Science Fiction as the Westʼs Mythform

The mythform is usually encountered in one of two modes. One

Gibson’s casual deployment of the mythform is suggestive. It is the place

This conceptualising of science fiction amounts to what can be seen as

change] is applied not only to machines, but to human society as well.’ 4

[Science fiction] is that species of storytelling native to a culture

Broderick’s definition has been cited increasingly,13 possibly because it

It is from sf’s thesaurus of images that we draw many of our

While Csicsery-Ronay might be claiming the impossibility of mapping the

Science Fiction as Speculative Jurisdiction in Law and Technology

It is precisely at this location of technological futures that science

In their 1959 text, Philip C Jessup and Howard J Taubenfeld thought

photon rocket’ 21 – allowing ‘satellite platforms … exploration teams will

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

Sputnik signified this technological future; however, this signification

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

(published in Hugo Gernsback’s pioneering ‘pulp’ science fiction magazine

First space opera involves a ‘space-ship’: like the nautical fiction

Space opera, with its spaceships, planets, galactic civilisation, aliens

we believe space exploration will dignify and enrich mankind,

There has been an accident on a flight to Mars. Survivors parachuted

Menter shows space opera as first-generation space law scholarship’s

IVF and Law

Although IVF offers hope to infertile couples, it presents significant

Modifications in reproductive methods have long been viewed as

and reinforcement. Abolition of the family was followed by complete

‘Ninety-six identical twins working ninety-six identical machines!’

Julius Stone, peering into what he saw as an inevitable future of

Careful planning could use the principles involved to produce

Virtual Worlds and Law

foundational 2001 study on the virtual and real economics of Sony’s

With the world paying close attention to the technological

As a harbinger of a virtual future, the virtual worlds and law scholarship

These anxieties and promises had speculative foundations. Nineteen

virtual world and law scholarship.124 Scott Holdaway went so far as to

cybernetic and genetic engineering, in organ transplants, and artificial

For critics, many of whom reduced cyberpunk to Gibson’s ‘Sprawl’

of artificial human reproduction, while Second Life anticipated the

Taking the Speculative Jurisdiction Seriously

monomyth encoded this conservatism into plot.152 The monomyth is a story

Butler fundamentally challenges the cultural constellation of nature vs

were concerned with peaceful exploitation of the cosmos, through Butler’s

It is suggested that this brief exemplar of Xenogenesis as a rival

Ying-Chieh Chen et al (2005) ‘An Analysis of Online Gaming Crime Characteristics’

Jacob Rogers (2007) ‘A Passive Approach to Regulation of Virtual Property’ 76 George

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