Innovation of legal method
‘It would be nice if all of the data which sociologists require could be enumerated because then we could run them through IBM machines and draw charts as the economists do. However, not everything that can be counted counts, and not everything that counts can be counted’.
William Cameron, Informal Sociology, 1963, p. 13
This is the website of the CoHuBiCoL research project, for which Mireille Hildebrandt received an Advanced Grant of the European Research Council, enabling to set up a team of both lawyers and computer scientists, to conduct foundational research into computational law.
We will investigate how the prominence of counting and computation transforms many of the assumptions, operations and outcomes of the law. The research targets two types of computational law:
artificial legal intelligence or data-driven law (based on machine learning), and
cryptographic or code-driven law (based on blockchain technologies).
Both disrupt, erode and challenge conventional legal scholarship and legal practice. The core thesis of the research is that the upcoming integration of computational law into mainstream legal practice, could transform the mode of existence of law and notably of the Rule of Law.
A transformation in the way that law exists will affect the nature of legal protection, potentially reducing the capability of individual human beings to invoke legal remedies, restricting or ruling out effective redress.
To understand and address this transformation, modern positive law will be analysed as text-driven law, enabling a comparative analysis of text-driven, data-driven and code-driven normativity.
The overarching goal is to develop a new hermeneutics for computational law, based on
(1) research into the assumptions and the implications of computational law, and on
(2) the development of conceptual tools to rethink and reconstruct the Rule of Law in the era of computational law.
The intermediate goals are an in-depth assessment of the nature of legal protection in text-driven law, and of the potential for legal protection in data-driven and code-driven law. The new hermeneutics will enable a new practice of interpretation on the cusp of law and computer science. The research methodology is based on legal theory and philosophy of law in close interaction with computer science, integrating key insights into the affordances of computational architectures into legal methodology, thus achieving a pivotal innovation of legal method.
Responsible Innovation in Law
This research aims to contribute to the innovation of legal method that is on the verge of disrupting and transforming ‘traditional legal method’. Once quantitative legal prediction, argumentation-mining and data-driven case law analysis become standardized tools in law firms, offices of the public prosecutor and in the courts it will be very difficult to reconfigure the ensuing architecture of interacting legal tech applications, especially where new types of regulation are embedded in a blockchain or in other ways that automate their application. In terms of computer science this will create a number of legacy problems and may incur technological debt.
This project is not against replacing legal handwork by automation, depending on which handwork is delegated to machines, how it is done and what checks and balances are built into the new ways of ‘reading’ and ‘speaking’ law. To ensure that both lawyers and tech developers are aware of the new affordances of computational law’s technical underpinnings, the research seeks to conduct most of its analysis at the most fundamental level – confronting text-driven normativity with its new – data- and code-driven – competitors. This will enable the development of new hermeneutics, based on a proper understanding of the compatibilities and incompatibilities of the assumptions of law and computer science, and the implications of incompatibilities for the central tenets of law and the Rule of Law.
By way of example, such a new hermeneutics could force lawyers to face the fragility as well as the strength of ‘the force of law’, which is neither equivalent with enforcement nor reducible to mechanical application of legal rules. It would instigate new ways of securing access to the multi-interpretability, testability and contestability of computational legal systems, based on an accurate understanding of which defaults matter when designing and engineering such systems. Such a hermeneutics will also contribute to the determination of the types of legal intelligence that cannot and should not be mandated to machines, taking into account that law should protect what is not countable or machine readable.
We aim for a foundational impact on legal methodology, in the sense of starting a conversation between law and computer science to prevent uninformed reception of computer science terminology into the practice and the theory of law. The research will be validated in part by the intermediate focus on legal protection in text-driven and data- and code-driven law. Developing an understanding, on the cusp of law and computer science, of the type of conditions that must be met for computational law to offer genuine and effective legal protection will contribute to testing and pruning the novel conceptual tools as well as the ensuing new hermeneutics. This way the research will also contribute more concretely to the innovation of legal method, for instance by figuring out how the upcoming legal obligation of data protection by design (as an instance of legal protection by design) can be an effective legal condition for legitimate processing of personal data.