Technology and the End of Law

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Law and Technology Mireille Hildebrandt

Modern law has always been technologically embodied. This embodiment needs to evolve to fit new technologies, and new hermeneutics of e.g. AI must be developed.

Notes

legal normativity in an information society needs translation into new technological devices to sustain the instrumental and protective normativity that is central to constitutional democracy

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unreflective translation of legal standards into technological artefacts is dangerous if technology is wrongly seen as only instrumental to human intention

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The Internet of Things

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programming the environment without disturbing us with queries about our preferences

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by themselves these technologies seem only to increase the overdose of proliferating data

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relevant patterns can be inferred from masses of trivial data

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data can be collected, stored, and mined in an unobtrusive way without harassing or even disturbing people

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people may be completely unaware of the knowledge that is being constructed

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Impacts on Privacy

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right to privacy can be defined as “the freedom from unreasonable constraints on the construction of one’s own identity”

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identity itself is relational

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privacy is not just a private but also a public good

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patterns are not recognised as a result of mutual interaction but rather acquired as a result of formal learning techniques

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democracy depends on the extent to which citizens have access to the knowledge that informs the decision–making processes of those in power

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If I am not aware of the type of knowledge that can be inferred […] I may allow access to such data without overseeing the consequences

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As long as we cannot assess the knowledge which may be built from the data we leak, the exchange of data for whatever advantage is not fair

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Technological Normativity

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The non–neutrality thesis claims that every technology invites certain behaviours and inhibits others, or even enforces certain behaviours while prohibiting others. This is what we would like to call the normative impact of a technology

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Bruno Latour proposes to think in terms of human and non–human actors

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symmetrical view on the relations between things and people: things are not only acted upon, they also act

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technologies which invite or inhibit behaviour that is also possible without such technologies are regulative of the behaviour, while technologies which make a behaviour possible that is not (or not anymore) possible without these technologies are constitutive of the behaviour

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technology achieves something a legal rule in this particular case could not have achieved

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acknowledge the constitutive and regulative impact of what he calls ‘code’

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‘architecture’ or the constitution of the Internet

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because code and law produce comparable normative impacts he conflates the two

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Both law and technology generate constitutive and regulative types of normativity

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One of the reasons why autonomic profiling and autonomic adaptation of the environment may be considered controversial is that in certain circumstances it can achieve a measure of compliance not within the reach of the law. This could mean that its normative impact reaches beyond the limits of the law.

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To understand the legal normativity of modern law we need to assess the impact of the fact that it is embodied in a system or network of interrelated texts

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meaning of the text will begin a life of its own and “escape the author’s horizon”

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Written text creates a distance between writer and reader which extends the scope of reference to a world that is now basically ‘opened’ by the text, creating a middle ground between people who may never meet. 38 In a way this text – this technology – is constitutive for the world it discloses

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Written text unavoidably creates an unlimited public

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instruments to stabilise the meaning of legal texts in order to stabilise the legitimate expectations which guide the interactions of those who share jurisdiction. This need is met by the development of legal doctrine

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complexity of such legal systems demands highly specialised legal professionals to maintain their coherence

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law reaches a certain degree of autonomy

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new technologies to embody legal norms

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We may have a right to know which data are being collected, for what purpose, how long they are stored, how they are being processed, and to whom they are being sold. But if we do not have the technological means actually to look into these databases, these rights are moral rather than legal

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Within an instrumentalist conception we have no arguments to prefer law or a specific technological embodiment of law, except if one is more effective and/or efficient than the other

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Those who believe that law is only an instrument of protection against factual operations of those in power will be suspicious of any government use of technologies to enforce government policies, because they will probably see the technological tools as extensions of a governmental exercise of power

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law cannot be presumed to be protective. It will have to be technologically embodied and interpreted in ways that safeguard both its effectiveness and its protection.

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modern law has always been a technologically embodied law

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We are now moving into a new age, creating new classes of scribes, demanding a new literacy among ordinary citizens

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