Philosophy and the Mirror of Technology: Technology and the Politics of the Common Good

A focus for the Philosophy and The Mirror of Technology Series is the pervasive impact of technology.  This piece considers the danger consistent with Heidegger’s warning that technology is not an idea or instance, but a mode of being in the modern world.  A kind of structuring that permeates thinking and even history.  

In the manner that Heidegger believes calculative thinking inhibits authenticity and transforms our nature, I would like to explore ways to reduce technology’s atomizing impact, in the interest of community.  I want to highlight how the rich heritage of the classical legal tradition can illuminate the means for constraint.  Specifically, how the political concept of the “Common Good” grounds historical legal principles and can drive state levers to orient technology toward public welfare.  

To draw out the intersection of technology and the common good I will explore the legal dimensions of invention and competition, as well as the broader powers of the state to control “progress”.  In particular, I want to highlight, first, how patent and antitrust laws have a long pedigree grounded in the common good.  Second, how the notion of general welfare is embedded in the statutory framework and regulatory agencies of the modern state, where the “living law” can help direct technological forces.  Finally, I will contend that all of these levers are fundamentally and inevitably political.  As this series attempts to reconsider the relationship among science, philosophy and faith, I focus on their potential alignment in weaving broader political alliances to help control technology. 

First, by way of context, the common good is not some kind modern, rogue notion.  Rather, together with concepts such as “general welfare”, “public interest”, and “public order”, they are centerpieces of the legal tradition and ubiquitous in modern statutory provisions. Indeed, our rich legal heritage has historically attempted to address the course of technology with the application of the common good.  

The most direct example of how technology should serve the general welfare is invention and patent law.  Drawing on an excellent piece from Ius & Iustitium on the Common Good in Patent Law, patent law originated with the Venetian Patent Statute of 1474, reserving rights to inventions that benefit the state – which eventually spread through Europe.  As a classical legal doctrine, patent law effectively promoted the common good, with an incentive for individuals to disclose their inventions.  It was a kind of quid pro quo to benefit the public interest.  Unfortunately, we have lost this focus in American patent law, where the standard has shifted from “beneficial utility” to a more “practical utility”. In 1960 the Supreme Court effectively adopted a lower threshold of minimum practical utility, which was later codified in a  1999 case (Juicy Whip, Inc.) that allowed for patents on devices because of their deemed utility to deceive users. Diluting the community standard has extracted the very ethical dimension that previously served the public.

Another excellent example of the legal nexus between the common good and technology is antitrust law, where there is a long history of protecting competition.  Currently, powerful technology companies with pervasive and linked applications are dramatically affecting our daily lives.  Indeed, antitrust law is increasingly being discussed as a means of controlling “Big Tech”.  

However, the law is shifting away from the common good, consistent with the original intent, mirroring changes to patent law.  Medieval laws, by way of context, prohibited the predatory acquisition of goods because the common good was understood as justice.  Hoarding essential materials ran counter to the benefit of the community.  These laws were tethered to Church teachings, but legal protection of free trade and competition emerged with the liberal economies in the 18^th century.  As the Laissez Faire American economy allowed ‘titans of industry” to flourish, it led to the Sherman Act.  

However, much like beneficial utility in patent law being replaced with a practical conception, the “good” in antitrust law has become “free competition”.  With this drift toward “individual liberty”, we do not completely anchor antitrust regulation in the common good, as the current goal is merely “reinstating competitive conditions”.  Given the accelerating influence of technology, the stakes for antitrust law could not be higher.  For instance, among teens who reported suicidal thoughts, a recent Wall Street Journal article traced a meaningful percentage to Instagram users.  The standard for concentrated power should not simply be unfettered competition, or the aggregation of private interests, but account for the general welfare of the community. 

Patent and antitrust law, however, are only two specific examples that could influence the trajectory of technological change – as they are part of the broader levers of the administrative state.  For instance, with the separation of powers, the legislative branch has state police powers to implement measures to protect public morals and safety.  These should be reasonable specifications or determinations ensuring actions are not prejudicial to the public good.  In fact, these principles are ubiquitous in statutory requirements and are also reflected in the ordinary work of regulatory agencies. They are part of the living part of the law, to ensure the public interest.  

The framework to control technology, then, exists. The issue is whether we adhere to the embedded standards.  These institutional levers reflect a fundamental principle: how we define the broader, legitimate ends of authority.  The mechanisms are a means to achieve the aims of civil society. Constraining or directing technology is therefore, inevitably, a matter of political will.  To the extent it’s an inherently political exercise, the question is whether there is a coalition that could invigorate the principle of the common good and ensure its application.  

Given the rise of “populism”, there may be a broad consensus for elevating general welfare – in areas like economic policy and climate change – that could bridge the partisan divide.  A recent example could be Marco Rubio’s attempt to refine populism with the notion of Common Good Capitalism.  Drawing explicitly on the Catholic tradition, Senator Rubio is seeking to shift policy toward the working class – redefining traditional US left/right distinctions. 

I raise Rubio’s populist foray not to promote a political party or candidate, but to highlight how the common good can be elevated in political discourse, addressing the urgent question of how to harness the value of technology.  The mechanisms are in place, as the legal tradition and levers of the modern state are designed to achieve the ends of civil society.  The issue is the insight and will to impose standards that preserve the public good.  

Consistent with the charter of this series – to reconsider the relationship among science, philosophy and faith – I believe we should therefore embrace the religious heritage of the common good, as a means for political action.   In the same way that Rubio proposes to use the organizing principle to inform economic policy, we should adopt the same standard to approve patents and harness the statutory framework and regulatory regime to combat climate change.  Further, we should consider using antitrust laws to dismantle technology monopolies that foment disinformation and atomize our society.  In sum, we should seize existing levers, founded on the common good, to proactively manage the technological forces shaping our nature.  We have the means, but need the will, to control the forces roiling our cultural and economic landscape.

Charlie Taben

Charlie Taben graduated from Middlebury College in 1983 with a BA in philosophy and has been a financial services executive for nearly 40 years.  He studied at Harvard University during his junior year and says one of the highlights of his life was taking John Rawls’ class.  Today, Charlie remains engaged with the discipline, focusing on Spinoza, Nietzsche, Kierkegaard and Schopenhauer. He also performs volunteer work for the Philosophical Society of England and is currently seeking to incorporate practical philosophical digital content into US corporate wellness programs. You can find Charlie on Twitter @gbglax.