“Participation is Law”

A new paper in the Medical Law Review reviews the value of citizens’ participation toward regulating new technologies, while illustrating how “citizens themselves are regulated through the techniques of participation” – expanding on  Larry Lessig’s famous Code is Law adagium.

The paper starts by highlighting the positive narratives that are usually associated with debates around ‘anticipatory governance’ or ‘upstream engagement’:

 “‘Citizen participation’ includes various participatory techniques and is frequently viewed as an unproblematic and important social good when used as part of the regulation of the innovation and implementation of science and technology.”

The perceived positive value of citizen engagement is especially true in the area of judging and regulating the risk of new technologies – such as nanotechnologies –  where  “participation is noted as best occurring from the beginning of technological development”.

The authors (Mark Leslie Flear and Martyn Pickersgill) subsequently review extensively the use of public participation within the European Union to regulate nano-science, casting new light “on the ways in which citizens regulate science, and the ways in which they themselves are regulated in the process”. In particular, the authors ask the question “What, then, do technologies of participation do? “ and provide the following answer:

 “As should be clear by now, in strict terms of nanoregulation: very little. The EU widely discusses citizen participation in the regulation and governance of technoscientific innovation and implementation, but this is not legally institutionalised. As such participation is a de facto rather than de jure form of governance: it comprises diverse techniques and practices, mandated by policy (i.e. formally non-binding) discourses that are often produced by associated bodies concerned with the implications of technologies (such as the EGE). However, in the case of nanotechnology at least, the actual regulatory power of citizen involvement seems limited.”

So what is then the actual function of public participation according to the authors?

 “A key role of technologies of participation is to further empower drives to innovate. This is achieved through the instantiation of expectations about the potential of nanotechnology to improve health and wellbeing through applications like emerging health technologies, and within sites, spaces, and fora that can amplify and embed this anticipatory discourse within diverse cultural products (e.g. television shows, radio programmes, film, novels, and newspaper articles). These expectations in turn justify participation (completing the circuit), especially in instances where actual or imagined risks are articulated. In this light, the role of citizen participation in regulation can be seen largely as a means of legitimating (and perhaps even stimulating) innovation through engagement with risk, uncertainty, and promise, and mediating accountability through shared responsibility.

The paper therefore concludes that “‘public participation’ is less about producing regulatory publics, than publics that are regulated into providing ‘public legitimation.'”

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