The core thesis that underpins this research is that the upcoming integration of artificial legal intelligence (data-driven law) and cryptographic law (code-driven law) into mainstream legal practice, could transform the mode of existence of law and notably of the Rule of Law. Such a transformation would affect the nature of legal protection, potentially reducing the capability of individual human beings to access legal remedies, restricting or ruling out effective redress.
First of all, the concept of an affordance, as introduced by ecological psychologist Gibson, has great potential to trace the impact of the shift from text to data and code. For instance, our current, text-driven law generates what lawyers call ‘legal effect’, which defines what lawyers call ‘the force of law’, which concerns the specific type of normativity that defines the law, as opposed to the normativity of ethics, economics or policing. ‘Legal effect’ cannot be equated with enforcement, though it is clearly associated with the monopoly of violence of the modern state. Neither can it be equated with mechanical application, because the contestability that is inherent in the ambiguity of human language requires an act of interpretation that must be argued and can always be challenged by counter arguments. ‘The force of law’ has more to do with what speech act theory calls the performativity of speech acts, such as ‘I declare thee man and wife’ (which is not a description but an act that brings about what it says). Data- and code-driven law confront the conceptual building blocks and the grammar of text-driven law with an entirely different type of language, grounded in Shannon’s mathematical theory of information and Wiener’s cybernetic feedback loops.
Data-driven law thus affords another mode of existence of the law, which introduces the second concept that will drive the research into the assumptions and implications of text-, data- and code-driven law. Inspired by Latour, and building on Hildebrandt, we will investigate the transformations of law’s normativity in terms of its mode of existence, highlighting that we cannot take for granted that data-driven or code-driven law affords the same normative force as text-driven law. We need to acknowledge that if the interpretation of legal text is performed by machines that calculate the correctness of interpretation in terms of a performance metric, this refers to an altogether different ‘thing’ than the performativity of text-driven law. This will, for instance, affect the kind of legal certainty that – in the case of text-driven law – is generated by the disciplined but nevertheless contestable interpretation of legal text by human beings, which is not only defined by the need for predictability but also by the need for contestability that is core to the Rule of Law. The centrality of the need for interpretation in modern law is an affordance of the technologies of the script and the printing press. The practice and theory of interpretation (hermeneutics) have a specific meaning in the context of law, as law is rooted in concepts with an open texture, and in rules that cannot determine their own meaning, requiring iterant interpretation, argumentation and contestation.
As computational law reconfigures the ‘sources of law’ in terms of information instead of meaning, while framing human action in terms of behaviour, and translating legal argumentation into math-driven pattern recognition, we need to reconsider how this affects central tenets of law and the Rule of Law, more specifically how this affects legal protection. The third concept that will inform the analysis is that of legal protection by design, not to be confused with ‘legal by design’. The latter refers to code-driven law that includes its own automated execution, thus conflating legislation, interpretation/execution and adjudication, for instance by way of a blockchain application. With Brownsword, one can argue that ‘legal by design’ is an oxymoron, as our current notion of law assumes that we are capable of disobeying its normative force. A ‘law’ that cannot be disobeyed is not law but discipline or administration. Legal protection by design, on the other hand, takes note of the fact that data- and code-driven law have a different normative force than text-driven law, because they can actually force our hand (code-driven law) or predict legal outcome without providing arguments (data-driven law). Legal protection by design obligates those who build the architectures and applications of computational law to develop these systems in ways that reinstate the kind of protection that is pivotal for the Rule of Law: it will for instance require the testability of these systems as a precondition for the contestability of their output (e.g. stipulating open source software); it will require default settings that introduce procedural checks and balances, compensating for inequalities or unfair distributions (e.g. detecting problematic bias in training data or algorithms). Based on the different affordances of text-driven and computational law, the research will thus develop new ways to think about legal protection, aiming to ensure that law’s new modes of existence will not escape the core safeguards of the Rule of Law – even if that means reconstructing such safeguards in the computational architecture of law’s novel technological embodiment by means of legal protection by design.