A Philosophy of Technology for Computational Law
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© Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh A philosophy of technology for computational law Abstract: This chapter confronts the foundational challenges posed to legal theory and legal philosophy by the surge of computational law. Two types of computational law are at stake. On the one hand we have artificial intelligence in the legal realm that will be addressed as data-driven law, and on the other hand we have the coding of self-executing contracts and regulation in the blockchain, as well as other types of automated decision making (ADM), addressed as code-driven law. Data-driven law raises problems due to its autonomic operations and the ensuing opacity of its reasoning. Code-driven law presents us with a conflation of regulation, execution and adjudication. Though such implications are very different, both types of computational law share assumptions based on the calculability and computability of legal practice and legal research. Facing the assumptions and implications of data- and code-driven law the chapter will first investigate the affordances of current, text-driven law, and relate some of the core tenets of the Rule of Law to those affordances. This will lead to an enquiry into what computational law affords in terms of legal protection, assuming that one of the core functions of the law and the Rule of Law is to protect what is not computable. Keywords: positive law, rule of law, legal certainty, justice, instrumentality, affordance, computational turn, ‘legal technologies’, mode of existence of law, AI in law, legal informatics 1 Introduction: towards a philosophy of technology for law 2 2 Modern positive law and the rule of law as text-driven law 3 2.1 Legal certainty 3 2.2 Justice 5 2.3 Instrumentality 6 2.4 The rule of law as an affordance of a text-driven ICI 7 3 The computational turn in law 8 3.1 Data-driven legal technologies 9 3.2 Code-driven technologies 12 4 Conclusions 14 do not cite without permission of the author 1 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh 1 Introduction: towards a philosophy of technology for law In the context of continental law, more specifically German and French legal scholarship, legal theory takes an internal – or mitigated internal – perspective on positive law,1 whereas philosophy of law, sociology of law and law and economics take an external perspective on law. Legal theory thus assumes a legal training, enabling those who practice legal theory to interact fluently with lawyers. If law is like a language, legal theory requires that one speaks the language of law. Legal theory thus assumes intimate knowledge of legal dogmatics and legal methodology. Philosophy of law, instead, aims to avoid capture by the prevalent self- understanding of lawyers, instead raising questions on the nature of law, its role within human society and the kind of knowledge it concerns. Whereas legal theory thrives in faculties of law and law schools, philosophy of law thrives in faculties of philosophy and is usually closely aligned with political philosophy. In the context of Anglo-American law, things are different. Legal theory is often seen as referring to various external perspectives on law, such as law and economics, sociology of law or law as literature; philosophy of law oftentimes refers to moral philosophy or political philosophy; on top of that the term ‘jurisprudence’ is used to refer to both a theoretical internal perspective on law and various external perspectives that overlap with what Anglo- American legal scholarship would qualify as legal theory and legal philosophy.2 In the context of this chapter we should also note the rise of ‘legisprudence’,3 which inquires into the nature of legislation in the context of the rule of law, and ‘digisprudence’,4 which enquires into the nature of regulation by way of computer code in the context of law and the rule of law. In this contribution I will seek a reflective equilibrium between an internal perspective on law and various external perspectives, notably seeking to uncover how modern positive law and the rule of law exist, how that relates to law’s current technological embodiment in the technologies of speech (writing and printing), and how the affordances of those technologies relate to the protection that law and the rule of law offer. This will serve as an introduction to the transformation of law’s mode of existence under the influence of a wide variety of so- called ‘legal technologies’ that may come to re-embody the law. The point is not a behaviourist or data-driven investigation into whether law ‘behaves’ differently when moving from a text-driven to a data- or code-driven articulation, but an inquiry into the assumptions that are inherent in law’s technological articulations and a subsequent inquiry into the consequences of these different assumptions. With an eye to the transformation of law’s technological articulation, philosophy of law has much to gain from an inquiry based on philosophy of technology. Though media studies and science, technology and society studies (STS) have gained some ground in relation to law and legal theory,5 I believe we need a more philosophically grounded perspective to inform philosophy of law. This is especially relevant when the computational turn penetrates law’s own way of existing by instigating a number of computational techniques and technologies at 1 Michael Potacs, Rechtstheorie (2nd edition, UTB GmbH 2019); Xavier Magnon, Théorie(s) du droit (ELLIPSES 2008). 2 Jules Coleman and Scott J Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press 2004); Dennis Patterson (ed), A Companion to Philosophy of Law and Legal Theory (2nd edition, Wiley-Blackwell 2010). 3 Luc J Wintgens, Legisprudence: Practical Reason in Legislation (Routledge 2012). 4 Laurence Diver, ‘Digisprudence: The Design of Legitimate Code’ (LawArXiv 2020) preprint <https://osf.io/nechu> accessed 7 September 2020. 5 See notably the seminal work of Thomas Vesting: Legal Theory and the Media of Law (Edward Elgar 2018); Julie E Cohen, Configuring the Networked Self (Yale University Press 2012); Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat (Polity 2009). do not cite without permission of the author 2 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh the level of legal practice. This does not concern how written and unwritten law should regulate law’s computational environment but how code- and data-driven technologies may reconfigure law’s own normative force. Based on a phenomenological and hermeneutic approach that is similarly indebted to philosophical pragmatism, semiotics, speech act theory and Wittgenstein’s understanding of what it means to follow a rule, I will investigate how and why a better understanding of law’s current technological embodiment matters and what needs to be preserved or reinvented to ground and scaffold practical and effective legal protection in the face of law’s computational turn.6 2 Modern positive law and the rule of law as text-driven law Lawyers do not think of law as being dependent on a specific technology. We seem to assume that law is a thing (a concept, an institution, a system of rules and relationships, a practice) irrespective of any technological underpinnings, though some lawyers may speak with a certain disdain about the time when law was dependant on orality or even on written manuscripts.7 In this section I will trace Radbruch’s antinomian conception of law8 to the normativity generated by written and printed speech, where speech refers to language usage or discourse (parole) rather than the language that is ‘used’ (langue).9 I will explain how legal certainty, justice and instrumentality hinge on the affordances of written and printed speech, aka text. The era of the hand written manuscript and that of the printed book will be discussed in terms of their ICT infrastructure (ICI), to remind us that writing and printing are based on ‘information and communication technologies’ (ICTs) that allow us to store and access information on external devices, noting that this affords sharing information across time and space.10 I will argue that this evokes the need for interpretation in the absence of the author, resulting in multi-interpretability, contestability and a relative autonomy of the text, while also requiring closure in a way that safeguards the adaptive nature of the meaning of a text in the face of changing circumstances. The architecture of interpretation, contestation and performative closure, I will conclude, also enabled the particular checks and balances that define the rule of law. We need to preserve and reinvent these checks and balances, even if another ICI may not be conducive to such an architecture (which requires ‘legal protection by design’). 2.1 Legal certainty Sharing information across time and space is not obvious. Text has no meaning of itself, it is ‘merely’ a structured set of signs (inscriptions) that refer to each other (words are explained by way of other words) and simultaneously to extra-linguistic realities (words also refer to 6 My work is indebted to postphenomenology as developed by Don Ihde, Technology and the Lifeworld (Indiana University Press 1990); Don Ihde, Philosophy of Technology (Paragon House 1993). 7 Hart, for instance, claims that primitive societies don’t have secondary rules and therefor miss out on our advanced state of the law HLA Hart, The Concept of Law (Clarendon Press 1994). For a critique see John Comaroff, Rules and Processes.