ABSTRACT
As software increasingly facilitates our living, we are drawn more and more to conceptualize software as discourse. While this may sound trite, it is a fundamental point to appreciate.
One of the most significant intellectual developments of the latter part of the twentieth century has been the poststructuralist writing of thinkers like Foucault, Derrida, and Baudril-lard, who explain the multitude of power relationships we experience in our daily lives, the indeterminacy of law, the construction of meaning, and the role of language, or discourse, in the construction of meaning and identity. According to the post-structuralists, we live in an environment constructed from many elements—one of the dominant ones being language, or discourse, which contains inherent biases and tendencies. This philosophy has given rise to the development of identity politics—a space in which arguments are made for and against the construction of identity through language and other circumstances. 120In the end, the poststructuralists have allowed us to appreciate and conceptualize our circumstantial being. We are witnessing the exponential growth of a new form of social structure known as the information society. The quintessential element of discourse, of language, of speech, in this information society is (soft)ware. Software is now a key part of our social structure—we sense it in our cars, in our supermarkets, in our televisions, in our computers. We sense it everywhere: it is a ubiquitous, undulating, architectural, air-like, water-like commodity that infiltrates our daily lives. More interesting is that software, through its various forms of (coded) structure can act to construct meaning and identity in much the same way as speech. Software in the information society is discourse. It is not simply a literary text (a copyright law categorization); it is fundamental to communicative architecture. The fierce debate over open code versus proprietary code software is intimately connected with this construction of identity through software.
If a software engineer has the tools—fully or partially—to construct discourse and identity in the digital world, then the principles of law that mediate power relations (especially those between individuals, often described as “private law”) need to mediate such a construction process. Otherwise, technological determinism will see me as simply another cyborg programmed to mediocrity and slavery. Laws that will play an important role in this process are those that will govern the construction of the new discourse known as software.
Already, battle lines have been drawn. Major choices that will impact upon the value of our lives are being hidden beneath the veil of private law rhetoric. The role and function of software will be mediated initially by a blend of intellectual property law, contract law, competition law, and privacy law, which I would term informational law or informational constitutionalism. It is the development of the principles of these areas of law in their relation to software that will determine much about the way we live in the future.
As we enter the digital millennium, it is ever more pressing for us to fathom the genetic structure/code (natural and manufactured) of life. Here, I have highlighted how software will act to construct us and how the law will facilitate such a process.
