Shifts in Public reason: Dangers and Data Associations

Short bio: 

Naveen Thayyil is a member of the Humanities and Social Sciences Department at the Indian Institute of Technology where he is an Assistant Professor in Law and Public Policy with a special emphasis on Science, Technology and Society (STS) issues. Prior to this, he was teaching at the National Law School of India, Bangalore. He holds a Ph. D from the Tilburg Institute of Law Technology and Society at the University of Tilburg, the Netherlands. He was a Felix scholar between 2006-2007, when he pursued his Masters (LLM) from the University of London – jointly at SOAS, University College and Kings College London. Subsequent to his graduation from the National Law School of India, Bangalore in 2002 he practised public law in the Supreme Court and the High Court at Delhi. Naveen’s research interests lie at the intersection of three fields: legal and political theory, environmental law and technology regulation. His interests lie not only at the level of public policy viz., issues of regulation of technology for the protection of public health, environment and related rights that seek to democratise society, but also in theorising and understanding how categories of law, technology and society shape each other. His publications include the 2014 book Law Technology and Public Contestations in Europe: Biotechnology regulation and GMOs (Edward Elgar, Cheltenham, U.K.).


The increasing aggregation of data and its analysis in risk regulation, across disciplines and continents, poses a peculiar problem to the liberal claim to sovereignty, particularly when transparency, openness, accountability and public participation are implicitly offered as palliatives to augment inadequacies in laws’ representational claims. Protection of society from dangers - be it moral, affective or real - has been often identified as a fundamental justification for liberal legal authority (Foucault 1975; Devlin 1965). Through the realm of environmental law, for instance, the expectation from the modern state to protect human health, the environment and vulnerable groups can be identified as a primary justification in liberal accounts of legal authority and citizenship (Lupton 1999; Kemshall 2002). The distinctive shifts in the performative modes of such accounts of sovereignty, for instance from its earlier emphasis in the principle of protection towards a stated preference in precautionary approaches in certain jurisdictions of environmental law, endures a particular difficulty for liberal sovereignty posed by large-scale aggregation and data association. Once (environmental) risk regulation is recognized as a very abstract probabilistic tool of governance, and not merely as something intrinsically real (O’Malley 2004; Douglas 1992), use of large-scale aggregations of data in risk regulation complicates the normative legitimations of liberal law here through its classical claim of expert construction of risk as representation. The truth claims of causality in risk regulation is achieved through a high level of aggregation of data across disciplines by a ‘simplification of multivalent complexities to simple parameters of likelihood and magnitude, and subsequent aggregation across highly diverse dimensions, contexts and etiologies’ (Stirling 2008). The representational claim of law is based on this ensuing production of an apparently transcendent quantitative idiom by techno-scientific experts, labelled as objective risk analysis. In contrast, scientists in risk assessment can be seen as entering the public arena as `experts who are part of a complex rhetoric and political system, as opposed to as experts on scientific truths, as truth speaking to power in a traditional picture´, (Funtowicz and Ravetz 1993; Hagendijk 2004; Kastenhofer 2011). Despite the avowed potential of the precautionary principle to challenge monopolistic epistemic claims in risk frames through more reflexive and wider deliberative practices, attempts at its legal implementation in various legal jurisdictions have continued to be deeply steeped in expert cultures of risk (Peele 2007; Thayyil 2014). Be it in a classical paradigm of risk, or in its precautionary avatar, a large number of events can be seen to be sorted into a distribution towards making expert probabilistic predictions, particular details of each case submerged or stripped away for a complex assemblage of elements (Dean 1999). The use of large scale data within this assemblage has only accentuated multiple problems viz., the permeability between the categories of knowledge, information and data, the meaning and role of expertise; the significance of various kinds of divides; the normativity of the data set from which the risk analysis is done, including ethics and reliability of techniques of gathering (Boyd and Crawford 2012). All these issues may all be submerged in an ever-increasing abstraction through newer techniques of bioinformatics (Jones et. Al 2006), which may be in contradiction to liberal claims of transparency, openness, accountability and public participation. These emerging situations within environmental regulation require description and further interrogation, and what additional modes of public reason may law need requires further speculation.


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