THE STRUCTURE OF ICT REGULATIONS
5.3 ICT REGULATION .1 Background .1 Background
5.3.4 The Systems Theory
The systems theory was first introduced by Von Bertalanffy during the 1930s. He acknowledges that a study of systems has been a province of academic scrutiny for many years. However, Von Bertalanffy observes that academics have failed to examine the dynamics of systems. Having spotted this loophole, he then introduced the idea of a ‘general system theory’.163 The general system theory holds the view that
‘every living organism is an open system, characterised by a continuous import and export of substances or subsystems.164 It also describes systems as elements or parts that are connected or attached to an operated organism, like a computer.165 These systems can include a ‘set of social, biological, technological or material partners’ that
158 Aickelin U and Cayzer S “The danger theory and its application to artificial immune systems” (Papers delivered at the 1st Intentional Conference on ARtificial Immune Systems (ICARIS-2002), 2002 Canterbury) 141-148 141.
159 Aickelin et al “Danger theory - the link between AIS and IDS?” in Timmis J, Bentley P and Hart E (eds) Artificial immune systems (Springer Berlin 2003) 147-155 147-148.
160 Aickelin et al Danger theory 148.
161 Aickelin et al Danger theory 148-149.
162 Aickelin et al Danger theory 150.
163 See Von Bertalanffy L General system theory: foundations, development, applications (George Braziller Inc. New York 1968) and Von Bertalanffy L Perspectives on general system theory: scientific-philosophical studies (George Braziller Inc. New York 1975).
164 Von Bertalanffy Perspectives 38.
165 Von Bertalanffy Perspectives 159.
171 collaborate on a common purpose.166Von Bertalanffy calls this organism the ‘whole or wholeness’ of a system.167
The idea that computers operate in a similar fashion to other organisms, for example humans, animals or plants needs to be substantiated. It does not necessarily suggest that computers have a life of their own or that their operation can be linked to Plato’s two world theory, namely the sensible and intelligible worlds.168 Computers particularly carry out the functions as directed by humans. Sometimes, these functions are beyond the scope of what is normally anticipated in real physical spaces or offline. Simon appears to also support this viewpoint.169 From his reasoning, it is inferred that computers fall within the category of things or objects that he refers to as the ‘artificial’
or ‘man-made’ things or objects.170 These he calls objects that are a product of or generated by art rather than nature.171 They are not authentic or natural and do not have relations with the essence of the matter, for example the force of gravity.172
The general systems theory acknowledges that various systems produce their own existence within a living organism.173 They cultivate their own languages. These languages are appropriately understood by those who habitually or consistently work with those living organism, that is, technicians or computer programmers.174 Von Bertalanffy cautions technicians and computer programmers against the danger of becoming a computer ‘moron, button-pusher or learned idiot’.175 These he describes as people who do not contribute to computer innovation or solve existing technology
166 See Hjørland and Nicolaisen http://www.iva.dk/jni/lifeboat-_old/Positions/Systems%20theory.htm (Date of use: 10 December 2012). See also, Febbrajo A “The rules of the game in the welfare state” in Teubner G (ed) Dilemmas of Law in the Welfare State (De Gruyte Berlin 1986) 129.
167 Von Bertalanffy Foundations 5 and Von Bertalanffy Perspectives 157.
168 Huard RL Plato’s political philosophy: the cave (Algora Publishing New York 2007) 35-37. See also Solomon RC and Higgins KM The big questions: a short introduction to philosophy 8th ed (Cengage Learning Wadsworth 2010) 121-123.
169 Simon HA The sciences of the artificial 3rd ed (The MIT Press Cambridge 1996) 3-5.
170 Simon Artificial 3-5.
171 Simon Artificial 4.
172 Simon Artificial 4.
173 Samuelson P “Five challenges for regulating the global information society” in Marsden CT (ed) Regulating the global information society (Routledge London 2000) 317-319.
174 Von Bertalanffy Foundations 10.
175 Von Bertalanffy Foundations 10.
172 regulatory challenges.176 He then requires that a technology regulatory framework should examine the ‘whole or wholeness’ of all the systems that make-up the living organism.177
The works of Morgan and Yeung in relation to the systems theory of regulation are also worth noting. They group the systems theory under the label ‘institutionalist’.178 This grouping is made following the criticism of the systems theory that it fails to recognise the important role played by institutions in regulatory settings.179 Morgan and Yeung acknowledge that institutional dynamics have ‘a life of their own in regulatory regimes’.180 Also, they concede that regulatory theories must accept that rule-based spheres, for example regulatory organisation, corporations or states are essential in
‘explaining why or how regulation emerges’.181 In particular, they must accept that regulations are a product of an organisational structure.182 Therefore, processes, for example rules, norms and routines, serve as a guide for such a structure.183 The meaning of ‘rules’, norms and routines in this instance is not attributed to legal rules, norms and routines. However, they connote for purposes of the systems theory of regulating ‘rules, norms or routines of technology’ or ‘technological rules, norms or routines’.184
An approach to an ICT regulation which is abstracted from the institutionalist label is one which recognises and is modelled from society or societal developments. In particular, it accentuates the idea that systems are closed and self-referential spaces.185 In addition, systems generate or re-generate their own constituent parts
176 Von Bertalanffy Foundations 10.
177 Von Bertalanffy Perspectives 157.
178 Morgan and Yeung Law and regulation 53. Other theories that are grouped under the institutionalist label are the ‘Tripartism’ and ‘regulatory space’ theories.
179 Hjørland and Nicolaisen http://www.iva.dk/jni/lifeboat-_old/Positions/Systems%20theory.htm (Date of use: 10 December 2012).
180 Morgan and Yeung Law and regulation 53.
181 Morgan and Yeung Law and regulation 53.
182 Scott http://icos.groups.si.umich.edu/Institutional%20Theory%20Oxford04.pdf (Date of use: 13 May 2011).
183 Scott http://icos.groups.si.umich.edu/Institutional%20Theory%20Oxford04.pdf (Date of use: 13 May 2011).
184 Brownsword R and Yeung K “Regulating technologies – tools, targets and thematic” in Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Hart Publishing Oxford 2008) 3-22 5.
185 Morgan and Yeung Law and regulation 69.
173 through interaction with their various constituent parts.186 Accordingly, legal rules do not shape the activities or behaviours of systems. Simply, legal rules are peripheral nuisances to the workings and operations of systems.187