Normative shortcuts and the hermeneutic singularity

tags

Regulative vs Constitutive

The "normative shortcut" software designers can take is to jump quickly from identifying a desired user behaviour to ensuring that that is what users in fact do.

Notes

Normativity is a useful concept in thinking about the role of law and of legal systems; it refers to the purposive force of (textual) legal instruments and rulings that, subject to their interpretation and potential contestation, require citizens to act (or not act) in certain ways.

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Lessig 2006

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concept of the ’normative shortcut’ as a means to better understand the consequences of software code that lacks these characteristics

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narrow form is exhibited in specific rules that instruct us how (not) to act. These rules are derived from pre-existing conventions

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broad normativity is embodied in less precise standards that guide behaviour without specifying too exactly

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I have previously (Diver 2018) referred to the ‘space’ between the rule’s text on the page and its instantiation in action as the ‘hermeneutic gap’; in order to retain interpretive flexibility the individual must be afforded the opportunity to comprehend the rule

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When designers create the code of software systems, they create constitutive normativity that to an extent defines, from the outset, how the users of those systems may act

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jump very quickly from identifying the behaviour she would like users to engage in (likely defined according to commercial imperative) to ensuring that that is what they in fact do

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no need to reflect pre-existing socially-sanctioned behaviours à la narrow normativity, and simultaneously the hermeneutic gap that allows flexibility in interpretation and behavioural responses is collapsed

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certain lines of reasoning become entrenched because predictive analytics promotes certain forms of argumentation over others

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case law becomes brittle

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homogenisation of legal argumentation that reflects the interests and biases of those whose legal actions are reflected in the training data

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