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 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?
Mireille Hildebrandt. 2020. ‘A Philosophy of Technology for Computational Law’, invited chapter in David Mangan, Catherine Easton, Daithí Mac Síthig (eds.) The Philosophical Foundations of Information Technology Law, Oxford University Press, is available on LawArXiv.