Law and Heidegger's Question Concerning Technology:
A Prolegomenon to Future Law Librarianship
Paul D. Callister
Introduction
The German philosopher Martin Heidegger offers one of the most potent
criticisms of technology and modern life. His nightmare is a world whose
essence has been reduced to the functional equivalent of “a giant gasoline
station, an energy source for modern technology and industry. This relation of
man to the world [is] in principle a technical one . . . . [It is] altogether alien to
former ages and histories.”1 For Heidegger, drawing upon his experience with
Nazism, such a world would be driven toward a single end, and ultimately
subjected to a single will (the antithesis of the rule of law). Furthermore, the
technical relationship of humanity with its environment obscures the true nature
of things, including the essence of law—which is transformative, rather than
technological, in nature.
Heidegger’s criticism of modern technology is an apt starting point to
consider our own, modern legal information environment, which is increasingly
technological in nature (particularly in the way Heidegger conceptualized
“technology”). Furthermore, the nature of the threats revealed by Heidegger’s
criticism bear not only upon questions about the future of modern librarianship,
but underscore fundamental changes in modes of legal thinking, and ultimately
jurisprudence itself. Indeed, the future of librarianship and law in the new
information environment are intimately connected.
This essay will first explain the nature of Heidegger’s criticisms of
technology and modern life. Second, it will defend the appropriateness of
application of Heidegger’s theory to the modern information environment, which
is particularly necessary in light of Heidegger’s Nazi affiliations. Third, it will apply
the criticisms to the modern legal information environment and stress the threats
implicated by such criticism. Finally, the paper will explore “poetic thinking” as
Heidegger’s prescription for modern life, including its application to legal thinking.
It will conclude that the impact of the modern information environment on
librarianship, law and legal thinking risks reducing law to an information resource
to be “mined,” harvested, commoditized, exchanged, and ultimately exploited by
various competing interests while at the same time reducing its potential
transformative power as a guide for human conduct and social order.
1 Martin Heidegger, Memorial Address, in DISCOURSE ON THINKING 50 (John M. Anderson & E. Hans Freund
trans., Harper Torch Books 1966) (1959).
Heidegger’s Nightmare: Understanding the Beast
Heidegger’s philosophy cannot be separated from his life and his
experience with Nazism, a critique of which follows this section. In any event,
Heidegger’s experience with Nazism becomes evident in his post-War writing,
particularly on the subject of technology and language. Heidegger describes the
threat to the modern world as based in the essence of thinking, which he
describes as enframing,2 or “technological thinking.”
Heidegger is very concerned about humanity’s conception of technology,
which he describes as “instrumental and anthropological.”3 Heidegger notes two
widely-held and interdependent beliefs about of technology:
One says: Technology is a means to an end. The other says:
Technology is a human activity. The two definitions of technology belong
together. For to posit ends and procure and utilize the means to them is
human activity. The manufacture and utilization of equipment, tools, and
machines, the manufactured and use things themselves, and the needs
and ends they serve, all belong to what technology is. 4
Note that Heidegger’s articulation of common understandings about technology
apply equally well to information technologies, including legal databases.
Databases are constructed as part of the human activity to serve various ends.
True, it is hard to think of technology in any other way, but Heidegger actually
views the failure to consider the essence of technology as a threat to humanity.
The threat to humanity is expressed in two ways by Heidegger: First,
humanity becomes incapable of seeing anything around them as but as things to
be brought ready to serve as means to end (a concept he refers to as “standing
reserve”). Humans are cutoff from understanding the essence of things, and
consequently their surrounding world. Second, man has been reduced in his or
her role to the “order-er” of things to some purpose or end, and at the same time
risks becoming something to be ordered as well.
Heidegger illustrates these concerns as follows:
The forester who, in the wood, measures the felled timber and to all
appearances walks the same forest path in the same way as did his
grandfather is today commanded by profit-making in the lumber industry,
whether he knows it or not. He is made subordinate to the orderability of
cellulose, which for its part is challenged forth by the need for paper,
2
See William Lovitt, Introduction, in MARTIN HEIDEGGER, THE QUESTION CONCERNING TECHNOLOGY
OTHER ESSAYS, at XXIX (Willliam Lovitt trans., Garland Publ’g 1977) (1955). .
3
See QUESTION CONCERNING TECHNOLOGY, supra note 2, at 5.
4
Id. at 4-5.
AND
which is then delivered to newspapers and illustrated magazines. The
latter, in their set configuration of opinion becomes available on demand.5
In other words, the trees, the wood, the paper, and even the forester (may
overlook the sanctifying value of the woods) are ultimately subordinated to the
ultimate will to establish public opinion, which Heidegger cynically assumes will
be, following the same pattern, placed in a set form, and presumably subjugated
to a single will. The forester, in proverbial fashion, “cannot see the forest for the
trees.” Instead of appreciating the majesty and mystery of the living forest, he
sees only fodder for the paper mill, which will pay for his next meal.
The same cynicism might be applied to legal publishing. Whole forests
have given their lives to the publication of legal information, in order to provide a
stable basis for society (“Law must be stable and yet it cannot stand still”)6--or, as
our comrades from Clinical Legal Studies would put it: “to perpetuate the existing
socioeconomic status quo.”7 Cadres of West editors (commonly referred to in
generic fashion as human resources, ironically making them all the less human)
work as feverishly as the scribes of any medieval scriptorium to digest points of
law and assign 55,000 cases into a taxonomy with over 100,000 class
distinctions,8 and all for the sake of predicable legal system and stable society.
Id. at 18 (Heidegger also notes “current talk about human resources” and the “supply of
patients” as evidence of humanity become just another part of the “standing reserve.”).
Heidegger finds that man is never completely “transformed into mere standing reserve” because
of his unique position as the “order-er” of every thing else. Id.
5
6
ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY 1 (1923).
BLACK’S LAW DICTIONARY 382 (7th ed., 1999). For a more thorough definition of Critical
Legal Studies, see John Henry Schlegel, Critical Legal Studies, in OXFORD COMPANION TO
AMERICAN LAW 202 (Kermit L. Hall ed., 2002).
7
8 See Paul Douglas Callister, 95 LAW LIBRARY JOURNAL 7, 21 (2003) (estimate of number
of cases being published in West system in print. I learned that West’s taxonomy has over
100,000 in a conversation with Dan Dabney, West’s Senior Director for Research and
Development, at an AALL convention [confirm]. Interestingly, Dabney has recently written:
Large systems seem to encounter a limit to growth at about 100,000 items. There are
relatively few indexing system that have grown so large as to encounter these effects, but
most of the largest systems in use seem to grow more slowly once they approach six
figures. This limit seems to affect both systems with a hierarchical structure like the West
Key Number System and flatter systems like the Library of Congress Subject Headings.
Perhaps something on the order of 100,000 is simply the limit of comprehension of a
system even when it is used by dedicated specialists.
Dan Dabney, A Brief Practical Introduction to Taxonomies (Thompson Legal Knowledge and
Trends White Paper 7, available at
http://www.thomson.com/cms/assets/pdfs/legal/westkm_Taxonomies.pdf (last visited Sept. 15,
2007). Apparently, humanity’s role as the order-er of things is “at capacity,” and is, presumably,
in need of technological replacement. See supra note 5.
For Heidegger, the threat is revealed in mankind’s perpetual quest to gain
mastery over technology. “Everything depends on our manipulating technology
in the proper manner as a means. We will, as we say, ‘get’ technology ‘spiritually
in hand.’ We will master it. The will to mastery becomes all the more urgent the
more technology threatens to slip from human control.”9 When Heidegger
published these words (first in 1962, but based on lectures from 1949, and
1950),10 the implications of nuclear energy and atomic warfare occupied much
academic discussion. Heidegger points out that the popular question of this
period did not concern how to find sufficient energy resources, but “[i]n what way
can we tame and direct the unimaginably vast amounts of atomic energies, and
so secure mankind against the danger that these gigantic energies suddenly—
even without military actions—break out somewhere, ‘run away’ and destroy
everything?”11 The question is about mastery over technology, not about
sufficiency of resources.
Similar concerns are manifest with respect to information technologies,
where the problem appears not to be lack of access, but too much access--for
example, illegal music file swapping; the anti-circumvention provisions of the
DMCA; the trends to use licensing to control and preserve economic value of
information (and to prohibit otherwise lawfully competitive practices, such as
reverse engineering); and with respect to the field of law and government;
retraction of government documents; the Patriot Act; the furor over “nonpublished, electronic precedent; and the recent frenzy of e-discovery. Some
seem to have liked things much better when resources were scarce. Universal
access is destabilizing. Consequently, there is considerable interest in getting a
“handle” on technology through legal sanction and yet additional technological
innovation.
Heidegger’s genius is that he recognizes that all the fuss about mastering
technologies, although close to the mark, concerns the wrong issue. The more
insidious threat is not nuclear fallout or economic devaluation of intellectual
property, but the worldview of “calculative” thinking that accompanies rapid
technological change. “The world now appears as an object open to attacks of
calculative thought, attacks that nothing is believed able any longer to resist.”12
For Heidegger, humanity’s relationship to modern technology is unhealthy and is
defined by calculative thought, which is not limited to the manipulation of
machine code or numbers. Rather, the concept is grounded in “Machiavellian
scheming” and the pursuit of the prospect of power. “Calculative thinking
computes. It computes ever new, ever more promising and at the same time
more economical possibilities. Calculative thinking races from one prospect to
9
Id. at 5.
10
Id. at ix.
11
Memorial Address, supra note 1, at 51.
12
Id. at 50.
the next.”13 The threat Heidegger envisions to human thought is even more
dangerous than nuclear warfare.14:
Heidegger’s threat is based on the separation of man from his nature. By
pursuing economic Machiavellianism, man is cut off from the transformative
powers of his or her environment. In such a world, law does not have the
capacity to educate, justify, and provide harmony (Plato’s vision in The Republic);
rather, law like any resource must be employed to economic ends. The
implication is that law must be subjected to a single will.
While at the University of Illinois, I learned that a special mission of the
Library of Congress had seized contents of Nazi libraries following World War II.
Items were identified in other campus library, and with a little effort I was able to
identify over seventy such items at the law library, and many other legal titles
which traced their origin to Nazi Germany. As I made my way through some of
the materials, I was struck by the fact that the Nazis did not simply ignore law,
rather they systematically rewrote it to their own purposes. A Nazi legal
academy complete with law professors sporting Nazi armbands reworked the
law, defining the terms of “Jewish partnerships,” corporations and other
organizations. Besides laws restricting interracial and ethnic marriages, special
tax provisions discriminated among business. The Fuhrer, himself, became a
legal concept. Ultimately, the law professor who served as director of the project,
was executed at Nuremburg for his actions as governor of occupied Poland.
Even law was put to the service of the great Nazi machine.
Here I am, over 50 years after Heidegger introduced his novel criticism of
the nuclear age, and the same concerns abound.
13
Id. at 46.
Id. at 52 (“[A]n attack with technological means is being prepared upon
the life and nature of man compared with which the explosion of the hydrogen
bomb means little.”).
14
Essentially, the Enframing, which characterizes our time, means “all things
are being swept together into a vast network in which their only meaning lies in
their being available to serve some end that will itself also be directed toward
getting everything under control.” Id. Heidegger calls the ordering of all things to
some end (under the direction of will), “standing reserve.” 15
Heidegger’s relationship to the Nazis should, justifiably, make us wary of
his philosophy. Heidegger made statements in favor of Hitler and benefited by
succeeding _______ as the Rector of Freiburg University, who had resigned in
protest to Nazi policies. 16 He also actively engaged in riding his university of
non-conforming views. The most favorable evaluation of Heidegger is that in the
late thirties and following the war, Heidegger began to recover from Nazism. A
more critical evaluation is that Heidegger was merely disillusioned with the Hitler
and the direction of the party, but never renounced anti-Semitism and forever
distrustful of democratic institutions.
Near the end of Otto Preminger’s film, Anatomy of a Murder, which
explores the insanity defense, or “irresistible impulse,” the lawyer for the defense,
Jimmy Stuart’s character, Paul Biegler, does something incompressible in the
modern practice of law. Mr. Biegler, having recently won an important trial,
actually chooses to spend his leisure time reading from case reporters—from
Justice Holmes no less. For a practicing lawyer to find recreation in reading case
reporters, let alone spend significant time to ponderously reading cases at all,
immediately probably strikes most present-day attorneys as anachronistic, if not
an outright Hollywood fabrication.
However, there was indeed, such a time, when readings of cases (outside
of the Reader’s Digest versions presented in the classroom), lay near and dear to
the profession. As Professor Robert Berring has noted about one eminent
15
See id.
16
Martin
Heidegger:
Heidegger
and
Nazism,
ENCYCLOPÆDIA
http://www.search.eb.com/eb/article?tocId=3090 (last visited Oct. 31, 2005).
BRITANNICA
ONLINE,
American attorney, “Daniel Webster probably read every case that was published
by every American appellate court, and probably read English cases as well.” 17
17 Robert C. Berring, Collapse Of The Structure Of The Legal Research Universe: The
Imperative Of Digital Information, 69 Wash. L. Rev. 9, 19 (1994).