© 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do not cite without permission of the author 1 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds.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
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. The Cultural Logic of Dispute in an African Context (The University of Chicago Press 1981). 8 Radbruch, Legal Philosophy, in Kurt Wilk (translator), The Legal Philosophies of Lask, Radbruch, and Dabin (Reprint 2014, Harvard University Press 1950)
do not cite without permission of the author 3 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh
‘things’). To understand the meaning of a text requires fluency in the relevant language and familiarity with the world outside the text, to which words refer. Clearly, things become more complicated when words refer to ‘things’ one cannot point to, as when these things are created by the way a shared language is used. Such language usage is called a speech act, which creates what it refers to.11 Not in the naïve sense that one person could decide on their own what counts as what, but in the more dynamic sense that linguistic interaction between people sharing a world creates linguistic artefacts that shape the way these people perceive their world.12 For instance, the word school may refer to a building one can point to, but that does little to clarify the meaning of the word if one is not already familiar with schools as an institution that is shaped by myriad speech acts. These speech acts ensure that we grasp what counts as a school, meaning that while describing a school in terms of an educational setting where young people learn about the world they need to navigate, this description gains performative effect. One could even frame this in terms of Merton’s complaint that ‘if man defines a situation as real, it is real in its consequences’.13 Whereas Merton warned against the implied self-fulfilling prophecy, he nevertheless hit the nail on the head. In fact – unknowingly - he aptly summarised Peirce’s more cumbersome definition of meaning:14
Consider what effects, which might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object.
If this is the case, writing must have introduced an immediate loss of meaning, due to the distantiation between author, text and reader, both across time and space.15 The author could no longer correct the reader if they got things wrong, while the reader’s linguistic and real-world environment might induce a meaning the author could never have imagined. The concept of a school (schola) in antiquity referred to a setting closely resembling medieval guilds, where a master prescribed their own text (handwritten manuscript) to be studied by their pupils, who were largely dependent on the approval of their master to achieve independent status. It is only with the rise of the universitas in Bologna that students reconfigured the idea of education in terms of a confrontation with different teachers, whose ideas and interpretations might clash, thus sowing the seeds of a more critical engagement with texts.16 The point here is the implicit and explicit shifts in meaning that are inherent in text-based understanding, providing both the freedom to interpret a word differently and the uncertainty this generates. Interpretation thus becomes the hallmark of written and printed speech.17
One could say that the technologies of the word afford a fundamental multi-interpretability that in turn affords a foundational contestability. Both, in turn, press for some kind of closure,
11 JL Austin, How to Do Things with Words (2nd edition, Harvard University Press 1975); John R Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge University Press 2011). 12 Ricoeur (n 9). 13 Robert K Merton, ‘The Self-Fulfilling Prophecy’ (1948) 8 The Antioch Review 193; WI Thomas and DS Thomas, The Child in America (Knopf 1928). 14 Charles S Peirce and Patricia Ann Turrisi, Pragmatism as a Principle and Method of Right Thinking (State University of New York Press 1997). 15 Ricoeur (n 9); Deborah M Geisler, ‘Modern Interpretation Theory and Competitive Forensics: Understanding Hermeneutic Text’ (1985) III The National Forensic Journal 71. 16 Harold Berman, Law and Revolution. The Formation of the Western Legal Tradition (Harvard University Press 1983); H Patrick Glenn, Legal Traditions of the World (Oxford University Press 2007). 17 Pierre Lévy, Les Technologies de l’intelligence. L’avenir de La Pensée à l’ère Informatique (La Découverte 1990).
do not cite without permission of the author 4 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh based on institutional checks and balances that sustain the thin line between a volatile destabilisation of meaning (anomie)18 and an inflexible imposition of one particular interpretation. The multi-interpretability and the ensuing contestability are fundamental and foundational because they are part and parcel of the technologies of the word, they are, in other words, affordances of text-driven information and communication infrastructures (ICIs). They are thus directly connected with the notion of legal certainty, which refers to one of the core values of modern positive law, meant to provide for foreseeability and thus for trustworthiness of legal decision making. Legal certainty ensures that those subject to a specific jurisdiction can reasonably foresee the legal effect of their interactions, and thus go ahead and plan their life. Whereas some may equate legal certainty with logical consistency, it makes more sense to acknowledge that law does not operate as a closed system in a static environment and therefor requires adaptive anticipation and imagination. This is why Dworkin found that discretion is not contrary to the integrity of the law, but rather part of its essence,19 while noting that discretion does not refer to a space for arbitrary decision-making based on the subjective political or ethical opinions of a decision maker but to a space that is informed by the ‘implied philosophy’ of the law. So, discretion may not be bound by written rules but even then it is nevertheless rule-bound in the sense of Wittgenstein’s and Taylor’s understanding of what it means to follow a rule.20
What matters here is that legal certainty does two things in one stroke. Its role is to provide foreseeability by adding authority to the reasoning of a court, thus – paradoxically - confirming the fundamental multi-interpretability and the foundational contestability that call for closure. As Waldron explains,21 the nature of legal certainty is tied up with the argumentative nature of the law. It is only after parties had a chance to argue their case that the court cuts the knot, based on its own argumentation, which in turn aligns with both previous case law and anticipates potentially relevant future cases that must be aligned with the case at stake. Legal certainty as a task, value and aim of the law is thus deeply entwined with the affordances of a text-driven ICI that is constitutive for modern positive law.
2.2 Justice
Justice, for Radbruch, is not the same as morality. In his work on Feuerbach,22 Radbruch explained that law’s ability to coordinate human interaction derives from the fact that it adds the force of law to decisions we might otherwise never agree on. If we don’t want a decision to depend on physical force or economic power, we need to see to it that some rules are agreed upon beforehand, making sure the decision depends on the binding force of the rule and no longer on whether we agree on its content. This is, according to Feuerbach and Radbruch, why positive law should not depend on natural law but on its ‘positedness’ or positivity, that is, on its being enacted by a legislature or a court that has the legal power to produce binding law. However, if the positedness of law were all there is to law, we might end up in the realm of decisionism, authoritarianism and thereby in the domain of arbitrary rule. The role of law is not only to authoritatively decide on the legal effect of our interactions, it is also to make such decisions foreseeable. This brings us to Radbruch’s concept of justice, which refers to equality before the law: equal cases must be treated equally, and unequal cases must be treated unequally to the extent of their inequality. This, however,
18 Emile Durkheim, The Division of Labor in Society (George Simpson translation, Martino Fine Books 2012). 19 Ronald Dworkin, Law’s Empire (Fontana 1991). 20 Ludwig Wittgenstein and GEM Anscombe, Philosophical Investigations : The German Text, with a Revised English Translation (Blackwell Pub 2003); Charles Taylor, ‘To Follow a Rule’ in idem, Philosophical Arguments (Harvard University Press 1995). 21 Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ (2011) 50 Nomos 3. 22 Gustav Radbruch, Feuerbach; edited by Gerhard Haney (Arthur Kaufmann ed, Müller 1997).
do not cite without permission of the author 5 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh provides us with no indication of the treatment itself; it merely requires equality and says nothing about the substance of the treatment. Theft of bread in a supermarket by a destitute person should be punished similarly across all offenders, but this does not clarify or justify the punishment itself (the amount of the fine or the duration of detention). Here, Radbruch’s intervention in legal theory and philosophy of law saliently fits together Aristotle’s ingenious distinction between proportional (or distributive) justice and corrective justice. The first decides that all cases must be treated equally in the above sense, it entails a geometric perspective: all people are at equal distance of the same law. The second decides that punishment and compensation should be equivalent to the harm caused, the wrongfulness and/or the culpability; it entails an arithmetic perspective: the correction of a wrongful act must be of equal measure as what is being corrected. Together, these two types of equality define the two sides of the fairness coin that must always be taken into consideration. The idea of corrective justice aligns with the image of the scale, of weighing harm against compensation and violation against punishment. It assumes that there is a way to assess what physical, economic or mental harm matches what compensation, and a way to assess how a specific violation of the criminal law matches with a specific punishment, though this clearly requires a leap. Once that leap is taken, however, proportional justice kicks in with a more complex geometric image that requires equality between punishment or compensation attributed for the same kind of torts or offences (thus returning us to distributive or proportional justice).
We can refer to art. 14 of the European Convention of Human Rights that articulates the prohibition of discrimination to make this point. Here we are in the realm of violations of human rights (not necessarily in the realm of either torts or criminal offences). Art. 14 does not prohibit discrimination in itself but stipulates that there should be no discrimination in the enjoyment of the rights and freedoms attributed by the Convention. It stipulates proportional equality and thus rejects a skewed distribution of the extent to which people effectively enjoy the Convention rights. In large scale jurisdictions this requires a dedicated administration of justice, to enable sufficient transparency about whether public administration treats its citizens with equal respect and concern.23 Without the ICI of the written word distributive justice would not scale, and there would be no way to hold governments accountable. Moving beyond tort law, criminal law and human rights law, we can now easily see how distributive justice accounts for what is often called the generality of the law. To count as law instead of blunt force or arbitrary decision making the law must be articulated in a way that respects the principle of equality that refers to both fairness and to legal certainty. Without distributive justice the foreseeability of legal decision making would fly out of the window, thus tying legal certainty to distributive justice and vice versa.
2.3 Instrumentality
Modern positive law is a historical human artifact, a highly effective architecture that both enables and constrains legal subjects as they navigate their world. It does so by attributing specified legal effect when certain legal conditions have been fulfilled. Legal effect, such as the obligation to pay compensation or the right to obtain property based on a contract of sale, can be qualified as the performative effect of a series of relevant speech acts. For instance, the speech act of a legislature that enacts a rule about the legal effect of concluding a contract, followed by the speech acts of two parties who enter into a contractual agreement, followed by the speech act of the party that claims in a court of law that the other party has breached the contract and is liable to pay compensation, followed by the speech act of the court that decides the case. In each case the legal effect is a performative effect. It is not a consequence of causation but of attribution. It is in a sense intangible and ‘inempirical’;
23 Dworkin (n 19).
do not cite without permission of the author 6 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh though punishment itself is tangible, the legal effect of punishability is not and the legal effect of committing a criminal offence is not punishment but punishability. Law’s instrumentality, therefor, follows a different ‘logic’ than that of either propositional logic or brute force. Though the enforcement of positive law depends on a de facto monopoly of violence, law is both more and less than brute force or discipline. Rather, brute force becomes dependent upon the competence to use it, thus harking back to notions of legal power and legal competence that define under what conditions law can be enforced. The multi-interpretability of human language rules out that law can ever be defined as a closed system with deterministic decision trees, noting that even the application of the law implies a speech act to count as such and thus depends on the performative effect of the shared use of language.
The ICI of writing and printing allowed for an increase in the scale of societies as the reach of written legal norms is far greater than that of the spoken word (which largely depends on proximity). Positive law’s instrumentality in articulating and achieving policy goals has a more extensive reach and operates differently from the normativity inherent in orality. This seems to make positive law highly effective to remotely control a population, though it simultaneously demands interpretation and invites contestation. A fascinating cocktail that informs both law and the rule of law up to this day.
2.4 The rule of law as an affordance of a text-driven ICI
As with law, the rule of law is generally considered as a concept, a value or an institution. Moreover, it is often seen as an ideal or an ideal type. With an eye to the transformation of a text-driven to a data- or code-driven ICI, we need to investigate to what extent the rule of law is an affordance of the text-driven nature of modern positive law.24 Understanding law and the rule of law as affordances of the printing press is not meant to replace our understanding of the rule of law as a concept, value, institution or ideal, but to investigate what has enabled such a concept, value, institution or ideal. The choice of words is crucial here. To say that a text-driven ICI ‘affords’ or enables modern positive law and the rule of law is to highlight (1) the relational, ecological and artificial character of law and the rule of law and (2) to avoid technological determinism. Affordance theory, going back to Gibson’s ecological perception,25 steers free from both subjectivism and objectivism. It does this by taking a grounded, ecological perspective on both perception and what is perceived. Instead of speaking of the properties of a specific object, it speaks of affordances that depend on the organism or agent that is interacting with and/or perceiving the object. Properties indeed depend on the perceiving subject as much as on the perceived object, in the mundane sense that a bat will detect other properties when perceiving a wall than a human being due to its different sensory embodiment, its different size, its ability to fly etc. In that sense speaking of affordances highlights the role of the agent in a sense that properties do not, without succumbing to an untenable subjectivism, thus marking the ecological nature of human action and perception. On top of that, the use of language affords us to take the perspective of another, by learning that whereas they maybe ‘you’ to us, they are ‘me’ to themselves. This switch of perspective grounds not merely our understanding of others, but simultaneously grounds the constitution of the self (grammatically speaking, being addressed as a second person singular precedes my ability to take a first-person perspective). This entails that the way we navigate (perceive and understand) our environment is not only
24 Mireille Hildebrandt, ‘The Adaptive Nature of Text-Driven Law’ [2020] Journal of Cross- disciplinary Research in Computational Law
do not cite without permission of the author 7 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh constituted by the affordances of the environment but also by the constitution of the self as another for the other.26 The relational nature of the human mind, self and society27 is thus an affordance of language usage (speech), which in turn also affords us to create an institutional environment built on speech acts that generate a performative effect. None of this is predetermined. Though language, the script and the printing press afford the development of interpretive communities that shape a shared institutional world, this is enabled rather than completely determined by either language, the script or the printing press.
The ICI of the printing press afforded modern positive law, enabling the complex, antinomian and dynamic institutionalisation of legal certainty, justice and instrumentality discussed above. In turn, modern positive law afforded an internal division of sovereignty as it allowed the institutionalisation of a series of checks and balances that ensured that even public administration itself is brought under the rule of law. These checks and balances can ultimately be traced back to the affordances of the same ICI that informs modern positive law, notably the multi-interpretability of text, its ensuing contestability and the performative effect of speech acts that are thus capable of providing closure. Such closure, precisely because it depends on the performative nature of speech acts, rather than being defined by brute force or logic, requires acuity and must be sustained or even reinvented in the face of military or economic power that wishes to disentangle itself from the reigns the rule of law.28 Nothing is more dangerous for the rule of law than taking it for granted.
3 The computational turn in law
The employment of so-called ‘legal technologies’ is mostly driven by efficiency objectives.29 Though claims about how they will democratise access to law and unmask bias in judicial decision making abound, the sales pitch is most often about cost reduction and benefits for the clients of big law.30 Though these technologies are called ‘legal technologies’, ‘LegalTech’, ‘legal analytics’ or ‘computational law’, they are not ‘legal’ or ‘illegal’ and neither do they count as law. All this is shorthand for computational technologies used to prepare or even produce legal decision-making in the context of legal practice in the broad sense of that term (judiciary, law firms, public administration, legislature). It is important to distinguish between digital technologies and computational technologies, as not all digital technologies are computational in the sense meant here, whereas computational technologies are mostly digital. The latter concerns automation by way of digital computers, the former concerns the use of digital technologies to achieve a more radical transformation of the constitution of reality, involving logic-based prior knowledge representation and/or data-driven predictive engines based on mathematical hypothesis testing. When I speak of ‘constitution of reality’, I
26 Paul Ricoeur, Oneself as Another (The University of Chicago Press 1992). 27 George Herbert Mead and Charles William Morris, Mind, Self, and Society from the Standpoint of a Social Behaviorist (University of Chicago Press 1962). 28 Though some would argue this does not apply at the level of international law, I think that Waldron convincingly explains how national and international law depend upon each other in the same way that internal and external sovereignty do. Jeremy Waldron, ‘The Rule of International Law (2006) 30 Harvard Journal of Law & Public Policy 15. 29 Markus Hartung, Micha-Manuel Bues and Gernot Halbleib, Legal Tech: How Technology is Changing the Legal World (Beck C H 2018). 30 Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Revised edition, Oxford University Press 2010); Paul Lippe, Daniel Martin Katz and Dan Jackson, ‘Legal by Design: A New Paradigm for Handling Complexity in Banking Regulation and Elsewhere in Law’ (2015) 93 Oregon Law Review 833; Marcelo Corrales Compagnucci and others, Legal Tech and the New Sharing Economy (Springer 2019).
do not cite without permission of the author 8 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh acknowledge that computational technologies increasingly mediate and in that sense co- constitute the world we navigate, whether our intimate, institutional or material world.
Reporting on legal technologies is often couched in the terminology of the legal services industry and the legal services market, as if we must all agree that law is best defined as a commodity whose fate depends on given economic forces.31 Framing the issues in terms of ‘the legal services industry’ also serves the purpose of accepting that legal services may be sold by tech companies rather than offered by those trained as a lawyer. Throughout this part of the chapter I will use the terminology of computational law and legal technologies to emphasise that these technologies may become part of legal decision-making and thus reconfigure the sources of the law. As Hannah Arendt remarked about behaviourism (that she was not worried it was true, but that it might become true),32 similarly I don’t think there is such a thing as computational law but concerned it might come true.
The objective of this chapter is not to refute the efficiency of working with legal technologies, which is an empirical question, depending on the type of technology, the way it is employed and the distributional effects for those seeking legal protection. The objective is to inquire into (1) the extent to which the mode of existence of modern positive law is transformed if law itself is articulated in data- or code-driven technologies, (2) how this may affect the checks and balances of the rule of law, and, finally, (3) how this may in turn affect legal protection.
3.1 Data-driven legal technologies
Data-driven legal technologies thrive on data. This can be textual data (of legal texts such as legislation or case law),33 meta-data (type of court, type of legal domain, time stamp, composition of the court, attorneys involved, judges involved),34 sensor data (voice pitch during a hearing)35 or behavioural data (voting behaviour of individual justices).36 The objective of data-driven legal technologies can be to reliably predict the outcome of a court case, but more often it has more mundane objectives such as those of Thompson Reuters’ platform Westlaw Edge,37 that offers Quick Check (allowing lawyers to upload their briefs or motions to the platform to obtain a report on e.g. missing or incorrectly cited case law), Litigation Analytics (‘data-driven insights on judges, courts, attorneys, law firms, and case types’), KeyCite Overruling Risk (‘Citator warning that cautions you when a point of law has been implicitly undermined’), WestSearch Plus (enhanced search functionality including ‘predictive research suggestions’), Statutes Compare and Regulations Compare (which has won the New Product Award 2019 of the American Association of Law Libraries and offers a
31 Calum Chace, ‘The Impact of Artificial Intelligence on the Law’ Forbes
do not cite without permission of the author 9 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh
‘comparison tool that shows how any two statutes or regulations have changed over time’). There is now also Westlaw Edge Legislative Insights With Probabilities of Enactment application that predicts whether or not specified legislation will or will not be enacted, enabling strategic foresight for those with access to the platform and sufficient belief in its reliability. Obviously, there is a business model behind this. The lowest price for a small law firm (less than 7 attorneys) is around 350 USD per month, the highest price for big law, for corporations or for governments is not available on the website.38 This is clearly not meant as a service for laypersons, rather it is part of a highly competitive legal services market. Let’s also note that a contract has been concluded between Thomson Reuters and the Administrative Office of the U.S. Courts to provide access to Westlaw Edge to federal courts, who will thus be using the same software as much of big law,39 while Thomson Reuters claims that all US law schools now use Westlaw Edge.40 In other work I have analysed in more detail how machine learning applications are used to achieve their predictions, and what it means when they are claimed to ‘outperform’ human judges.41
What matters, however, is the kind of questions a system answers and how this relates to the kind of questions that ‘drive’ legal practice and serve legal protection. When studying or practicing law, the more interesting questions do not concern who won or lost, but the argumentation of the parties, the public prosecutor, the advocate-general and the court. At the end of the day, the court’s reasoning and all that led up to it, defines what counts as positive law; the decision itself means nothing for a lawyer (within its justification). Machine learning systems, however, are better equipped to deal with a binary distribution of the outcome: violation/no violation, pay damages/no damages, or relevant as precedent/not relevant as precedent. It is fascinating to observe that data a lawyer would find entirely irrelevant or insubstantial for the legal aspects of a case can be framed or uncovered as connecting with the outcome in terms of a mathematical function that predicts such an outcome (in terms of probabilities). For instance, as lawyers, we may not think that a study of the voice pitch of judges during a hearing is relevant to the law, even though it may be an indication of how a judge ‘reads’ the case. It seems as if such a study confuses the justification of legal decision-making with a psychological explanation. Even when algorithms that are trained on relevant legal data are better at predicting outcomes (compared to legal experts), they will not contribute to a better understanding of the law and in point of fact they parasite on the underlying adversarial practice of legal reasoning. Though they may simulate
38 See Westlaw Plans and Pricing at Thomson Reuters, https://legal.thomsonreuters.com/en/products/westlaw/westlaw-plans-pricing#select. 39 ‘Thomson Reuters to Provide Westlaw Edge, Practical Law to US Federal Courts’ (Thomson Reuters, 3 December 2019)
do not cite without permission of the author 10 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh and even generate such reasoning,42 they do not understand ‘the content’ in any meaningful way, and this creates substantive risks.43
In that regard it is interesting to see the explosion of the domain of explainable AI as a new subdomain of both computer science and data protection law, where all attention goes to how we can explain the way algorithms make legally relevant decisions in the context of public administration or policing. Though this is a very interesting subfield that helps to remind us of the hard work that goes into developing and optimising these algorithms, it cannot provide justifications for legally relevant decisions. The fact that a judge had oats for breakfast instead of donuts may explain better judgement but cannot justify a decision. In terms of computer science, I would claim that the role of law here is to constrain the decision space of judges, by forcing them to justify their decisions in terms of the law instead of acting on whatever inclination they ‘have’. The fact that such justification should always simultaneously address the concerns of the parties (which may include society at large in e.g. criminal cases) and those of their peers (the higher court to which parties may appeal) keeps judges on track. This is the kind of institutional checks and balances we need to avert arbitrary or subjectivist decision making. Though there is nothing perfect or infallible about ‘the content’ generated within the legal system, there are limits and feedback loops that instantiate countervailing powers, thus helping to avoid the legalism and decisionism that could otherwise defy legal certainty, justice and the instrumentality of the law. The focus on explainable AI may in point of fact distract attention from the need for justification and may even suggest that a proper explanation implies that the decision is justified. Although, depending on the circumstances, it may be crucial to indeed have a proper explanation of how the system came to its conclusion, for instance by pinpointing the variables that contributed to the system’s output (and their weights), this in itself cannot justify a legal decision. On the contrary, the explanation may clarify that the system favours unlawful grounds (i.e. involves circumstances that should not be taken into account). So, explainable AI may contribute to unmasking bias or even nonsense, but a technical explanation must not be confused with a legal justification.
Some have suggested that machine learning (including supervised, unsupervised and reinforcement learning) is built on the assumption that reality is ultimately mathematical, implying a new kind of Platonism.44 I think that the practice of machine learning does not require such a belief in an underlying mathematical reality. However, engaging in machine learning necessarily assumes that whatever one wishes to predict follows the logic of
42 Natural language processing (NLP) has moved from BERT (text-analysis) to GPT-3 (text- generating) and to less than one-shot learning, see Jacob Devlin and others, ‘BERT: Pre-Training of Deep Bidirectional Transformers for Language Understanding’ [2019] arXiv:1810.04805 [cs]
do not cite without permission of the author 11 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh mathematics. The only thing a machine learning system does is detect and optimise a mathematical function that expresses the relationship between relevant data, in this case e.g. between the framing of facts and legal argument in prior case law and the judgement in that same case law. One could say that the mathematical function compresses the data to a function capable of properly describing the data.45 This assumes (1) that such a target function ‘exists’ and (2) can be approximated by optimising hypothesis functions until they achieve as high an accuracy as possible. Moreover, it assumes (3) that the distribution of the data in the so-called training set is the same as that in future data. The latter requires a leap of faith, a pragmatic approach, or a belief in the ultimately mathematical nature of law’s mode of existence.
The question we need to address is how we should understand predictive legal technologies if we reject neo-platonic beliefs in the mathematical nature of law. What kind of risks do we take by grounding legal practice on data-driven technologies? For instance, the assumption that the distribution of training data and future data is the same cannot be valid in the case of law. Rather, as lawyers we know that the distribution of future data is impacted by the way we (as lawyers) frame the distribution of the training data. What lawyers call the interpretation of positive law with regard to the case at hand is always a fine line between aligning with precedent while anticipating how our decision will constrain or enable future legal decision-making. Lawyers must decide on analogous or a contrario interpretation, extensive or narrow interpretation, and sometimes the explicit intent of the legislature conflicts with a teleological interpretation because of unforeseen change of relevant circumstances. Whatever a court decides necessarily affects the space for future judgements, based on the framing of past cases. In computational terms this relates to the fact that the same training data can be framed and compressed in different ways, depending on the machine-readable task that is defined, the labelling of the data in case of supervised learning and the hypothesis space that is developed. In law we are aware of this, even if this may often be tacit knowledge. Legal analytics telling us what case law we should cite and which arguments to invoke may have consequences that are hard to foresee and difficult to redress.
3.2 Code-driven technologies
Code-driven legal technologies thrive on prior knowledge. Instead of inferring the future from the past, these technologies impose a specified interpretation of existing expertise on the future. This is often referred to as GOFAI or good old-fashioned AI, resulting in knowledge expert systems. Such systems translate domain specific knowledge such as legal or medical expertise into formal conceptual mappings (e.g. by way of what computer scientists may call ‘ontologies’, that is disambiguated conceptual networks) or into formal reasoning (e.g. by applying deontological and/or defeasible logic). In the legal domain this has been coined as legal informatics or AI in law, which has a venerable history as a niche within legal scholarship since the 80s of the last century, based on in-depth engagement by lawyers with computer science, logic and the concomitant formalisation. Legal informaticians have mostly been keenly aware of the limitations of the attempt to formalise the law, running into questions about the nature of legal rules, principles and concepts and the relationship between legal norms and policies, including implied values. A vibrant discussion between legal informaticians and those versed in legal argumentation theory has kept everyone on their toes, while nevertheless working hard to enable the automation of legal decision-
45 Peter D Grünwald, The Minimum Description Length Principle (The MIT Press 2007).
do not cite without permission of the author 12 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh making, notably in the realm of public administration.46 Dedicated journals exist,47 and excellence is nourished in dedicated conferences.48
Towards the end of the 90s of the last century, Szabo wrote a seminal article on the idea of developing technologies capable of self-executing a contract,49 taking the vending machine as a prime example of a very simple piece of hardware that enables the execution of a contract of sale without intervention of the seller. In 2014, Buterin developed the idea of smart contracts as self-executing protocols on top of a blockchain,50 thus propagating the idea that legal rights and obligations stemming from a contract can be automated – even though he later tweeted that the term ‘smart contract’ was a misnomer, admitting he should have called it something like ‘persistent script’.51 A new branch of scholarly literature has bloomed on the subject of smart contracts,52 as to whether they qualify as legal contracts, whether they create legal effect or just automated execution. In practical terms the question is also whether they solve or rather create problems in the context of e.g. redress for small claims. Though smart contracts seem successful only when all the assets are on the chain (e.g. in the case of cryptocurrencies), the idea has generated new dreams about the automation of law, not only with regard to contracts but notably regarding the automation of legislation and regulation.
In parallel, we find new claims under the heading of ‘computational law’, promising that ‘[w]hen machine-processable versions of laws, regulations, business rules, and contracts are all brought to bear on governing electronically-mediated behavior, computational law systems that represent and reason about those diverse rulesets in conjunction with agent activity can do what rule-based systems in general legal domains cannot’.53 Here we see the regulatory paradigm, grounded in cybernetic theory, moving standard setting, behaviour monitoring and behaviour modification closer together towards something that some scholars have dared frame as a ‘legal singularity’.54 Though one may want to dismiss such lofty dreams as a dystopian version of what Diver has coined computational legalism,55 the example of Westlaw Edge demonstrates that less utopian versions of data-driven ‘law’ have now entered legal practice, and we may guess that the same is true for code-driven ‘law’. As
46 Z Bankowski, I White and Ulrike Hahn (eds), Informatics and the Foundations of Legal Reasoning (Springer 2013). 47 Trevor Bench-Capon and Henry Prakken, ‘Using Argument Schemes for Hypothetical Reasoning in Law’ (2010) 18 Artificial Intelligence and Law 153. 48 Radboud Winkels and others, ‘Towards a Legal Recommender System’, JURIX (2014). 49 Nick Szabo, ‘Formalizing and Securing Relationships on Public Networks’ (1997) 2 First Monday
do not cite without permission of the author 13 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh a matter of fact, public administration has been using automated decision systems for decades, which calls for what Diver has called ‘digisprudence’, building on the idea of ‘legisprudence’ that in turn parallels the traditional notion of jurisprudence, while focusing on legislation rather than adjudication. ‘Digisprudence’ engages with a rule by or even a rule of computer code, taking its normative force seriously while raising issues with the normative framework of the rule of law. On the one hand, this connects with said practices of automated decision making by bodies of public administration (for instance regarding taxation or welfare benefits), based on disambiguated models of applicable law in the form of automated decision trees. On the other hand, it connects with calls to write regulations and even legislation itself in a way that is not only machine readable but also easy to translate into software code, to enable assumedly easy access to law while potentially ruling out non- compliance.56
There is much to say about all this, both in terms of the feasibility of the purported ability of such systems to reduce complexity,57 and in terms of the implied conflation of legislation, execution and adjudication that would undermine the rule of law.58 I refer to section 3, to highlight that a technology that allows to frame and execute legal norms in the form of disambiguated machine readable rules will transform the nature of law-as-we-know it and may remove the affordances of text-driven normativity that enabled the rule of law in the first place, turning us back to a new type of positivist, legalist rule by code. Perfect foreseeability is not equivalent with perfect legitimacy, even though reasonable foreseeability would be. This raises myriad questions about the extent to which computational predictions in the realm of law thrive on a modulation of Merton’s seminal maxime: ‘if machines define a situation as real, it is real in its consequences’.59 Where would this fit the notion of legality and legal certainty and where would it result in injustice under the hood of a positivist legalism? These are questions that may be probed in the abstract, as if the technological articulation of such legalism does not really matter. I hope this chapter has contributed to a new awareness that this will not do. As lawyers and philosophers of law, we should acknowledge the relevance of philosophy of technology, and the salience of bringing together affordance theory and speech act theory in the context of the technological articulation of speech.
4 Conclusions
Let me briefly answer the three questions that informed this chapter: do code- and data- driven law transform the mode of existence of modern positive law, and if so how? do these new legal tools affect the checks and balances of the rule of law, and if so how? and, do they uproot legal protection, and if so how?
Code- and data-driven technologies transform the way that law exists, reinforcing positivist and legalistic understandings of law, because both types of tools rely on conceptual and logical formalisation and disambiguation. The performative effect of computer code differs from that of natural language, and is capable of wiring the positivist and legalist understanding into the architecture of law and the rule of law. Paraphrasing Arendt, we should, therefor not be worried that positivism or legalism is ‘true’, but that it may become true. Even personalised data-driven systems ultimately rely on the assumption that the distribution of future data is equivalent with that of the historical data in the training data. This is an assumption that may not fly, and when it informs legal decision-making it will reinforce
56 Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Harvard University Press 2020). 57 Lippe, Katz and Jackson (n 30). 58 Danielle K Citron, ‘Technological Due Process’ (2008) 85 Washington University Law Review 1249. 59 Merton (n 13).
do not cite without permission of the author 14 © Mireille Hildebrandt, draft chapter for OUP’s The Philosophical Foundations of Information Technology Law, eds. David Mangan, Catherine Easton, Daithí Mac Síthigh assumed distributions and may stop legal practice in its tracks, looking through the lens of past distributions instead of probing the best fit in changing circumstances. This is typical for the kind of behaviourism that informs legal analytics, which ‘reads’ text as a collection of behavioural data that can be observed and from which we can infer behavioural properties, traits and trends. With Arendt, we should not, therefor, be concerned that behaviourism was ever true, but that it may become true.
The new legal tools affect the checks and balances of the rule of law, because they displace the institutionalisation of countervailing powers. Legislation, administration and adjudication are pushed into one timeslot, notably the time when these tools are developed. This is when decisions must be taken on what machine-readable task to define, how to construct a training set, what type of feature set to develop, which hypothesis space to select and what performance metrics to use. All such decisions have consequences for what the system will or will not ‘do’, what type of decisions it will produce and how these decisions will ‘perform’ in the real world. If the output of these systems become the point of departure for legal research and the filter through which legal practice interacts with the sources of law, countervailing powers must be reinvented. If federal courts in the US employ the same analytics as big law and the public prosecutor, the rule of law will shrink to the level of a refrain sung for the sake of ceremony, instead of a wall against which unfair bias and dependencies on private interests are crushed.
Legal protection plays out at two levels: (1) denying that one has acted in a way that triggers the legal effect one is contesting, and/or denying the applicability of a legal norm that would trigger such legal effect if applied, and (2) contesting the interpretation of one’s actions in the light of relevant legal norms, and/or contesting the meaning that a legal decision-maker attributes to a legal norm in light of one’s actions. Code- and data-driven ‘law’ may reduce room of contestation at level (1), and it may hide level (2) in the opacity of software development. In a functioning democracy, both levels of legal protection are crucial, as the first level ultimately depends on the second.
This chapter does not reject computational systems as aids for a more efficient, effective, fair and just law. It provides conceptual tools to assess the impact of computational legal tools on law, rule of law and legal protection, providing some building stones, scaffolding and foundations for an informed philosophy of legal technology.
do not cite without permission of the author 15