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Chapter 1: Introduction: foundations and scope

By Pauline McBride

On this page

  1. 1.1 Introduction
  2. 1.2 Computational transformations
    1. 1.2.1 A market-oriented perspective
    2. 1.2.2 A deeper perspective – the contingencies of law-as-we-know-it
  3. 1.3 Law’s mode of existence
  4. 1.4 Anticipating the impact of computational legal technologies
  5. 1.5 Conceptual tools and approaches
    1. 1.5.1 Gibson’s concept of ‘affordance’
    2. 1.5.2 Beyond affordances: complementary perspectives

1.1 Introduction

In the COHUBICOL Project proposal we read that

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.

In this Research Study we explore the dynamics, modalities and effects of such transformation. Taking the Research-Study on Text-Driven Law1 as a foundation, we demonstrate how data-driven and code-driven legal technologies have implications for law-as-we-know-it, the Rule of Law and the nature of the protection afforded by law.

1.2 Computational transformations

Increasingly legal technologies are used to carry out tasks historically reserved to lawyers. Sceptics and proponents alike describe these technologies as transformative, disruptive, productive of change.2 The sector is booming; it is essential to grasp the implications of such change. What kind of change might we anticipate? What are the drivers of such change?

1.2.1 A market-oriented perspective

For Susskind legal technologies facilitate an evolution of legal services,3 and it is the market which is the locus of transformation.4 The market drives a progression from bespoke legal services to commoditisation of those services.5 This progression, Susskind argues, is good for the consumer of legal services, whether lawyers like it or not.

Susskind and Susskind develop this theme in later work. The endpoint of commoditisation is presented as ‘externalisation’ of services.6 Machine learning systems will ‘generate practical expertise’ independently from the humans who design or use them.7 This vision of the future of law is one in which the remit of lawyers is diminished and the role for machines is increased. Tasks which were the preserve of lawyers are handled by machines.8

The language of commoditisation is apt to conceal some of the implications of use of legal technologies to carry out tasks that would previously have been carried out by lawyers.

The language of commoditisation is apt to conceal some of the implications of use of legal technologies to carry out tasks that would previously have been carried out by lawyers. It tends to suggest that while the mode of delivery of these tasks is different, the output might be (more or less) the same; it suggests, that is, that commoditisation (and externalisation) is the transformation. It downplays the agentive role of technologies, the institutional dimension of law as a practice, the wider systemic effects of such change.

Like Susskind we believe that legal practice will be transformed, and that data driven technologies will have a part to play in that transformation. However, we consider that the levers and dynamics of transformation are both more subtle and more far-reaching in their effects than Susskind suggests. There is more at stake than the scope of tasks that are reserved to lawyers. Even on Susskind’s account the handover of tasks to machines entails the establishment of new practices and the creation of new seats of power.

1.2.2 A deeper perspective – the contingencies of law-as-we-know-it

The Project’s Research Study on Text-driven law re-articulates Hildebrandt’s conception of law’s ‘mode of existence’ of law – a concept introduced by Souriau and developed by Latour.9 The reference to a ‘mode of existence’ signals that the way in which law exists now, along with the protection it affords, is not a given. For Hildebrandt, law has not always existed in its current mode, nor need it do so in the future. However, the concept of law’s ‘mode of existence’ does more than highlight the contingency of law. It is a frame for exploring and exposing the nature of those contingencies.

1.3 Law’s mode of existence

As a preliminary it is useful to tease out what Latour grapples with and hopes to convey by ‘modes of existence’. Latour wishes to debunk the ‘modernist’ idea that the world exists in and can be grasped from a single perspective. Instead, he presents a view of the world ‘as a congeries of perspectives or points of view grounded in different modes of existence’.10 Latour maintains that the different institutions of science, law and religion, for example, have different ways of producing truth.11 Indeed Latour, in a move which mediates between being and knowing, ontology and epistemology, equates a mode of existence with a truth regime or a ‘regime of veridiction’.12

Significantly, for Latour, law, like religion and politics, is also quintessentially a mode of enunciation.13 These various framings of law as mode of existence, regime of veridiction and mode of enunciation already hint at the reflexiveness of law’s normativity. That is, law’s mode of existence, what makes it ‘law’, is both the ‘legal’ character of its enunciations and the means by which those enunciations are verified as ‘legal’.

What sets law apart from other modes of enunciation is that the speech acts of law are performative when they produce binding effects for legal subjects.

For Latour, Austin’s concept of speech acts is the key to understanding how law ‘is’, ‘utters’ and ‘verifies’ in a mode which is ‘legal’.14 In Austin’s terminology, enunciations are speech acts which ‘do things’; they have performative effect. A speech act will have this effect when its ‘conditions of felicity’ are satisfied.15 For example, I name a ship if my act of naming meets the conditions for that utterance to take effect.16 What sets law apart from other modes of enunciation is that the speech acts of law are performative when they produce binding effects for legal subjects. This is true when the speech acts meet the ‘felicity conditions’ articulated by law for those utterances to clothe some set of facts, action or norm with specified legal effects.17 This reflects the tautological character of law: law both is and specifies its own regime of veridiction.18 For this reason, we can view law as both a collection of speech acts with the capacity to bind, and as involving the projection of law to encompass new facts and actions and produce new effects by the operation of speech acts. In Latour’s words, these aspects of law ‘are the same … but simply taken at different moments in their process of crystallization.’19 The first views law statically (law simply ‘being’), the second draws attention to law in action, or ‘throw[ing] itself forward’ through the authoritative ascription of legal effect.20

Law’s very existence, therefore, is bound up with speech acts, with words that do things, with a very specific kind of performativity, with ‘felicity conditions’ that are themselves set by law. Such is the nature of law that one cannot even ‘speak of the law without speaking legally.’21 Speaking of law, speaking ‘legally’, involves speaking ‘within’ the law. Latour, in short, draws attention to the fact that law’s mode of existence depends on ways of speaking – and reasoning – that are distinctively ‘legal’.22

Latour’s focus on law’s distinctive regime of enunciation is such that the legal anthropologist Alain Pottage complains:

Latour’s analysis of law often proceeds as though there were actually nothing more to law than a process of enunciation. The effect is to suggest that law is not a material world in the same sense as science or technology.23

Materiality is present in Latour’s account of the mode of existence of law, but it has a supporting, not a leading role.24 Hildebrandt, by contrast, develops an account of law’s mode of existence which accords greater significance to the materiality of law. Thus, in the Research Study on Text Driven Law we read that:

The materiality of law can be found in the embodiment of natural language and in the embedding of written law in the technologies of text.25

Of course, speech acts –– including the written speech acts of law – depend on the embodiment of natural language.26 Latour also acknowledges that writing has made it easier for law to make linkages between persons and speech acts and facts.27 However, unlike Latour, Hildebrandt maintains that the material environment of the ‘information infrastructure’ of law is crucial to law’s mode of existence; law-as-we-know-it is an affordance of text and the printing press.28 Moreover, Hildebrandt’s concern is not for law as a form of discourse as such but as a form of discourse that respects human agency and affords legal protection. She is equally concerned about law as an affordance of text and the printing press, and legal protection as an affordance of law.29

In order to highlight law’s dependence on text and the printing press Hildebrandt traces the implications of the shift from orality to script, from handwritten to printed script both generally and in the context of the legal tradition. The materialisation of legal norms in text creates a separation across time and space between an author of a legal norm (a judge or a legislator) and its audience. It makes it possible for law to be directed to many and across a wide geographic area.30 Such distantiation, in turn, creates a need for interpretation of legal norms, gives rise to the emergence of a legal cadre, allows for the creation of large jurisdictions and the concept of equality under the law.31 The need for interpretation is key; this in turn gives rise to a need for deliberation and, ultimately, closure of interpretative conflicts. The growing complexity of law eventually creates the conditions necessary for the emergence of the Rule of Law.32 Thus:

The specific nature of the technology of the text thus leads a shift from ‘rule by law’, i.e. the law as an instrument by which governments enforce their own interpretation of the norms they issue, to ‘Rule of Law’, i.e. the law as a system of checks and balances that institutes countervailing powers, such that public administration and even the legislature itself are brought under the Rule of Law. In that sense the core principles of the Rule of Law (such as contestability and accountability) are not merely historical artifacts but also technological artifacts, directly linked to the flexibility of natural language and the responsive autonomy of text-driven normativity.33

For Hildebrandt, law’s mode of existence then is not only contingent on the constant tracing and retracing of connections between speech acts, persons, facts, actions, texts and legal effects34 – an activity which presupposes and requires a process and practice of legal reasoning – it is also contingent on its information infrastructure. A fundamental change in the material and institutional environment of law has the potential to transform law’s mode of existence, bring about the loss or reconfiguration of those affordances that are the hallmark of law-as-we-know-it: contestability, interpretation, closure35 and the Rule of Law – and with them the protection afforded to legal persons by law. It has the potential to alter the mode of existence of law. Much more is at stake, therefore, in the turn to computational law than the loss of lawyers’ monopoly over certain tasks.

A fundamental change in the material and institutional environment of law has the potential to transform law’s mode of existence, bring about the loss or reconfiguration of those affordances that are the hallmark of law-as-we-know-it: contestability, interpretation, closure and the Rule of Law – and with them the protection afforded to legal persons by law.

1.5 Conceptual tools and approaches

It may be supposed that with the benefit of history, the significance of text and the printing press can readily be appreciated and that the transformative effects of current technologies may be rather less easy to discern. There is surely some truth in this statement, but it is worth noting that Hildebrandt’s account of the significance of text and the printing press for law-as-we-know-it is neither ‘a merely historiographical undertaking [nor] a matter of social scientific research into the causation of modern law and the modern state.’36 Hildebrandt teases out the implications of text and the printing press by reference to their affordances. This concept, and the underlying assumptions which inform it, are key to understanding the dynamics of the transformation brought about by and through technologies.

1.5.1 Gibson’s concept of ‘affordance’

The term ‘affordance’ was coined by the ecological psychologist James Gibson. Gibson’s concept of affordance captures the idea of the action possibilities offered by an environment (including places, objects, people, animals) to an actor (human or not):

The affordances of the environment are what it offers the animal, what it provides or furnishes, either for good or ill. The verb to afford is found in the dictionary, but the noun affordance is not. I have made it up. I mean by it something that refers to both the environment and the animal in a way that no existing term does. It implies the complementarity of the animal and the environment.37

For example, a tree affords shade and shelter, a chair affords sitting, a stair affords climbing. These action possibilities are not properties of the environment or actor(s) (human or otherwise) but arise from the relations between the two. Thus ‘while affordances belong to neither subject nor object, they are potentialities that exist in the world and can do something in it, implying that objects have a certain kind of agency or effectivity.’38 When objects are introduced into an environment, they change the action possibilities for actors. Moreover, since actors and environments are fundamentally (as it were, symbiotically) linked, 39 such change may in turn be productive of change. To paraphrase Maier and Fadel,40 we might say that:

∆ environment ⇒ ∆ affordance ⇒ ∆ behavior

A change in the environment brings about changes in the affordances of the environment, which may in turn bring about changes in the behaviour of actors in that environment, though the interactions, in reality, are not as mono-directional as the representation might imply.41 The core insight however is that the introduction of technologies into an environment implies the possibility of change.

Gibson’s concept of affordance has considerable explanatory power.42 However, his analysis is largely confined to relatively straightforward animal/environment interactions.43 Later scholarship has extended both the concept and the analysis to cater for more complex interactions.44 Some of these conceptions diverge from Gibson’s original concept in important respects. Nevertheless, the focus on the relational aspect (animal/environment; object/actor), the idea that both are entangled in way that effects change, remains.

Hildebrandt extends Gibson’s concept of affordance in two respects. First, the concept is extended to capture the way technology can effect change in our institutional environment, specifically how text and the printing press afford law-as-we-know-it (law as an affordance of a particular information infrastructure).45 Second, she extends the concept to capture the affordances of the material and institutional environment that is law-as-we-know-it (the affordances of law).46 These conceptual innovations combine Gibson’s attention to the material environment with an appreciation that the institutional environment of human beings is both material and materialised though the embodiment of language. They also involve a recognition that the material and institutional environment of law, in Gibson’s language, provides human beings with a form of ‘niche’ which offers a particular way of life.47

The concept of ‘affordance’ employed by Hildebrandt stays true to Gibson insofar as it ‘attend[s] to the ways people and things co-constitute each other’.48 It provides a conceptual tool that allows us to anticipate the transformative effects of legal technologies on the material and institutional environment of law, account for change and reflect on how technologies might be designed to conduce to certain values or ends.49 Nevertheless, other complementary perspectives also shed light on the transformative potential of technologies.

1.5.2 Beyond affordances: complementary perspectives

In the ‘modernist’ perspective critiqued by Latour, a sharp division can be made between subjects and objects, persons and things. Persons have agency, things do not. Subjects put objects to use; they alone determine how objects will be used. Objects are ‘neutral’, without influence. At the other end of the spectrum technological determinism holds that technologies drive and dictate societal change. Gibson’s concept of affordances, on the other hand, speaks to the interdependence of persons and things and the possibility for things, as well as persons, to have effects in the world.

Gibson’s concept of affordances speaks to the interdependence of persons and things and the possibility for things, as well as persons, to have effects in the world.

Gibson is far from alone in recognising the productive dynamics of relations between persons and things. Latour’s actor-network theory emphasises how objects shape action.50 Ihde’s post-phenomenological account may be understood primarily as an exposition of how technologies shape our perceptions, our frames of reference.51 Verbeek provides a reconciliation and expansion of the analyses offered by Latour and Ihde. He foregrounds the way in which technologies mediate both action and perception and identifies the locus of mediation as the (already technologically mediated) relations between humans and their environment.52 If Ihde draws attention to how technologies operate as seats of influence, Verbeek emphasises the relationship between humans, technologies and their environment. Each maintains (in different but related ways) that technologies have a kind of agency; they may mediate action, perception, relations between humans and their environment.

Coeckelbergh offers a different but allied perspective which builds on narrative theory. He argues that technologies can and should be understood not just as ‘objects’ or ‘things’ but as narrators and meaning-makers. For Coeckelbergh, our narratives about technologies shape what they become,53 while, particularly in the case of AI, technologies ‘co-shape our narratives’ about ourselves and our world.54 AI technologies, Coeckelbergh insists, are ‘hermeneutically active’; they are ‘interwoven with meanings and also change these meanings.’55 Humans and technologies are both engaged in meaning-making; both become what they are in the process. In the case of legal technologies, we may expect that they may alter what it means to ‘do law’.

These various perspectives complement approaches rooted in Gibson’s theory of affordances. Our analyses in chapters 2 and 3 employ ‘affordances’ as a conceptual tool and make use of these complementary perspectives.

References

  1. Laurence Diver and others, ‘Research Study on Text-Driven Law (Brussels 2023), Funded by the ERC Advanced Grant “Counting as a Human Being in the Era of Computational Law” (COHUBICOL) by the European Research Council (ERC) under the HORIZON2020 Excellence of Science Program ERC-2017-ADG No 788734 (2019-2024)’ (COHUBICOL, 20 September 2023) https://publications.cohubicol.com/research-studies/text-driven-law/ accessed 15 October 2023. ↩

  2. John O McGinnis and Russell G Pearce, ‘The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services’ (2014) 82 FORDHAM LAW REVIEW 3041; Susanne Chishti (ed), The Legaltech Book: The Legal Technology Handbook for Investors, Entrepreneurs and FinTech Visionaries (John Wiley & Sons 2020); Mireille Hildebrandt, Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology (Paperback edition, Edward Elgar Publishing 2016). ↩

  3. Richard Susskind, The End of Lawyers?: Rethinking the Nature of Legal Services (Revised edition, Oxford University Press 2010) 28–33. As to what might be encompassed within the term ‘legal services’ see Mark A Cohen, ‘“Legal Services” Are Whatever Buyers Need To Solve Business Challenges’ (Forbes) https://www.forbes.com/sites/markcohen1/2019/03/03/legal-services-are-whatever-buyers-need-to-solve-business-challenges/ accessed 8 November 2023. The language of ‘legal services’ already signals a particular perspective on what law is and what it is for. ↩

  4. Susskind (n 3) chs 2-4. ↩

  5. ibid 28–33. McGinness and Pearce similarly frame the disruptive effects of legal technologies in terms of ‘commoditisation’ and impacts on the legal ‘market’. McGinnis and Pearce (n 2) 3042, 3054. Munisami suggests that there is agreement in the literature that ‘automation will shift major parts of the legal work lawyers typically do towards “commoditization”’. Kayal Munisami, ‘Legal Technology and the Future of Women in Law’ (2019) 36 Windsor Yearbook of Access to Justice 164, 166. ↩

  6. Richard E Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (First edition, Oxford University Press 2015) 196, 197. ↩

  7. ibid 107, 267. ↩

  8. Hildebrandt notes that ‘to the extent that the algorithms become highly proficient – due to being trained by excellent domain experts in law – lawyers may outsource part of their work, as a result of which they may deskill as the software achieves high levels of accuracy.’ Mireille Hildebrandt, ‘Law as Computation in the Era of Artificial Legal Intelligence: Speaking Law to the Power of Statistics’ (2018) 68 The University of Toronto Law Journal 12, 28. ↩

  9. Diver and others (n 1) 13. ↩

  10. Laurent de Sutter, ‘Plasma! Notes on Bruno Latour’s Metaphysics of Law’ in Kyle McGee (ed), Latour and the Passage of Law (Edinburgh University Press 2015) 202. ↩

  11. Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat (Polity 2010) 8. ↩

  12. Bruno Latour, ‘Biography of an Inquiry: On a Book about Modes of Existence’ (2013) 43 Social Studies of Science 287, 287. ↩

  13. Bruno Latour, An Inquiry into Modes of Existence: An Anthropology of the Moderns (Harvard University Press 2013) 375. ↩

  14. ibid 56. ↩

  15. Austin says that performatives are not true or false but happy or unhappy and outlines a ‘doctrine of infelicities’. JL Austin, How To Do Things With Words (2nd ed, Harvard Univ Press, 1975) 14, 15, 21. ↩

  16. ibid 5–9, 23, 37. ↩

  17. In Latour’s words, ‘With law, characters become assigned to their acts and to their goods. They find themselves responsible, guilty, owners, authors, insured, protected.’ Latour, An Inquiry into Modes of Existence (n 13) 370. ↩

  18. As Pottage explains, ‘law comes into being paradoxically, as an effect of the identification of certain enunciations or transactions as “legal” by reference to a criterion that is posited by those enunciations or transactions themselves.’ Alain Pottage, ‘The Materiality of What?’ (2012) 39 Journal of Law and Society 167, 173. ↩

  19. Bruno Latour, ‘The Strange Entanglement of Jurimorphs’ in Kyle McGee (ed), Latour and the Passage of Law (Edinburgh University Press 2015) 343. ↩

  20. Bruno Latour and Owen Martell (tr), ‘AIME Platform Vocabulary: “Enunciation, Regime of Enunciation”’ http://modesofexistence.org/. Latour notes ‘[i]n this inquiry, being and enunciation can almost be taken as synonymous since it is the nature of a being to utter itself, to exist, to transit, to throw itself forward through the HIATUS of existence or expression’. ibid. Gutwirth distinguishes between ‘law … as an intertwined whole of statutes, rules and regulations …[and] as decision-making or as a practice that produces solutions.’ Serge Gutwirth, ‘Providing the Missing Link: Law after Latour’s Passage’ in Kyle McGee (ed), Latour and the Passage of Law (Edinburgh University Press 2015) 122. ↩

  21. Bruno Latour, ‘The Strange Entanglement of Jurimorphs’ in McGee (n 19) 334 (original emphasis). ↩

  22. Gutwirth notes that ‘… the distinctiveness of law lies in the singular mode in which it seizes cases. In other words: everyone can practise law, everyone (who is called to do so) can become a legal practitioner, and that is, when she is moving or moved forward by the legal regime of enunciation …’ Serge Gutwirth, ‘Providing the Missing Link: Law after Latour’s Passage’, in ibid 130. As Latour points out with reference to an anecdote of a child objecting to the theft of their marbles in the language of rights, speaking ‘legally’ is not confined to lawyers. Bruno Latour, ‘Note Brève Sur l’écologie Du Droit Saisie Comme Énociation’ [2004] Pratiques Cosmopolitiques Du Droit. ↩

  23. Pottage (n 18) 170. ↩

  24. Latour is well aware that law does not circulate in the ether but needs a ‘setup’, a material environment, comprising ‘heterogenous set of elements’ which allows law to circulate. Latour, An Inquiry into Modes of Existence (n 13) 32. However, Latour – who popularised the idea that objects can have agency – appears to consider that none of these elements is indispensable. His description of the work of the Conseil d’Etat takes note of the files, books, tables and chairs, the computer database, telephones, paperclips and staplers. However, ‘the nature of Council’, he says, ‘does not depend on its equipment’. Latour, The Making of Law (n 11) 167, 168. ↩

  25. Diver and others (n 1) 35. ↩

  26. Moreover, as van den Hoven notes, ‘… it is important to note speech acts will not magically “do what they say”, and legal speech acts will therefore also not automatically bring about the legal protection we desire or need. Crucially, whether a speech act has performative effect therefore depends on a shared acceptance of or acquiescence in the world of institutional facts it is embedded in. It builds on a pragmatist understanding of language and depends “on a shared background consisting of hidden assumptions, mutual beliefs and a joint practice that grounds the use and thereby the meaning of words and more generally of human action”’. Emilie van den Hoven, ‘Legal Effect, Sources of Law, and Jurisdiction’ in ibid 70 (citation omitted). ↩

  27. Latour, An Inquiry into Modes of Existence (n 13) 371. ↩

  28. Latour asserts that since Roman times, ‘no radical innovation has altered the art of enunciating the law’. ibid 217. ↩

  29. Diver and others (n 1) 18. We discuss the concept of an affordance in section 1.5.1. ↩

  30. Mireille Hildebrandt, ‘A Vision of Ambient Law’ in Roger Brownsword and Karen Yeung (eds), Regulating Technologies (Hart 2008) 184. ↩

  31. Hildebrandt, ‘A Vision of Ambient Law’ (n 30). See also David Harvey, ‘Law and the Regulation of Communications Technologies: The Printing Press and the Law 1475-1641’ [2005] Australian and New Zealand Law & History Society E Journal 160. ↩

  32. Diver and others (n 1) 4. ↩

  33. ibid. ↩

  34. See Latour, The Making of Law (n 11) 208, 218; Latour, An Inquiry into Modes of Existence (n 13) 370, 371; Sutter (n 10). ↩

  35. Hildebrandt notes that law imposes ‘closure’ in a particular way, that is ‘unilaterally after having taken the time to explore uncertainties and ambiguities.’ Hildebrandt, Smart Technologies and the End(s) of Law (n 2) 183. See also Mireille Hildebrandt, Law for Computer Scientists and Other Folk (Oxford University Press 2020) ch 11 https://global.oup.com/academic/product/law-for-computer-scientists-and-other-folk-9780198860884?cc=be&lang=en& accessed 31 December 2023. ↩

  36. Hildebrandt, Smart Technologies and the End(s) of Law (n 2) 177. ↩

  37. James J Gibson, The Ecological Approach to Visual Perception: Classic Edition (Psychology Press 2015) 119. ↩

  38. Julka Almquist and Julia Lupton, ‘Affording Meaning: Design-Oriented Research from the Humanities and Social Sciences’ (2010) 26 Design Issues 3, 13. ↩

  39. Thus, Gibson insists that ‘animal and environment make an inseparable pair. Each term implies the other. No animal could exist without an environment surrounding it. Equally, although not so obvious, an environment implies an animal (or at least an organism) to be surrounded.’ Gibson (n 37) 4. ↩

  40. Jonathan Maier and Georges Fadel, ‘Affordance Based Design: A Relational Theory for Design’ (2009) 20 Res. Eng. Des. 13. The authors refer to ‘structure’ rather than the environment. ↩

  41. See Roope Oskari Kaaronen, ‘Steps to a Sustainable Mind: Explorations into the Ecology of Mind and Behaviour’ (Helsingin yliopisto 2020) 58 http://hdl.handle.net/10138/319046 accessed 12 November 2023 (suggesting that behavioural change alters the ’landscape of affordances’). ↩

  42. However, affordance theory is not without its detractors. Burlamaqui and Dong claim that Gibson’s ‘broad explanation … is not sufficient for its application by the design community.’ Leonardo Burlamaqui and Andy Dong, ‘The Use and Misuse of the Concept of Affordance’ in John S Gero and Sean Hanna (eds), Design Computing and Cognition ’14 (Springer International Publishing 2015) 297. Davis and Chouinard refer to various shortcomings. Jenny L Davis and James B Chouinard, ‘Theorizing Affordances: From Request to Refuse’ (2016) 36 Bulletin of Science, Technology & Society 241. ↩

  43. Oliver says of Gibson that ‘technology, if mentioned, is stone-age’. Martin Oliver, ‘The Problem with Affordance’ (2005) 2 E-Learning and Digital Media 402, 404. ↩

  44. Oliver maintains that these developments devalue the concept. ibid 410. ↩

  45. Hildebrandt, Smart Technologies and the End(s) of Law (n 2) 133; M Hildebrandt, ‘Law as an Affordance: The Devil Is in the Vanishing Point(s)’ (2017) 4 Critical Analysis of Law 116, 119. See also Diver and others (n 1) 18. ↩

  46. Hildebrandt, ‘Law as an Affordance’ (n 45) 119, 122, 124. See also Diver and others (n 1) 18. ↩

  47. Regarding Gibson’s use of the concept of ‘niche’ in relation to affordances see Gibson (n 37) 120,121,133, 135; Erik Rietveld and Julian Kiverstein, ‘A Rich Landscape of Affordances’ (2014) 26 Ecological Psychology 325. See also Laurence Diver, ‘Legal Subject, Subjective Rights, Legal Powers’ in Diver and others (n 1) 78 (suggesting that in ’the legal-institutional dimension of the legal ecology, the ‘animal’ is the legal subject, whose niche consists of the contingent set of rights and powers that it holds’). ↩

  48. Jenny L Davis, ‘“Affordances” for Machine Learning’, 2023 ACM Conference on Fairness, Accountability, and Transparency (ACM 2023) 325 https://dl.acm.org/doi/10.1145/3593013.3594000 accessed 19 October 2023. Hildebrandt explicitly adopts a ‘relational’ account of law which ‘denies that law is independent from its societal, scientific and professional environment, because its existence depends on the performative nature of the social fabric it constitutes and by which it is constituted.’ Hildebrandt, Smart Technologies and the End(s) of Law (n 2) 172. ↩

  49. See Laurence Diver, Digisprudence: Code as Law Rebooted (Edinburgh University Press 2022) 44. ↩

  50. Almquist and Lupton note that ‘It is possible to employ the theory of affordances to support Latour’s controversial notion that objects have agency, especially in situations when human (or animal) subjects interact with the object world in unexpected ways, beyond the designs of the designer. In such circumstances, the object takes on “a life of its own,” becoming a new actant in an unpredictable situation or scenario.’ Almquist and Lupton (n 38) 13. ↩

  51. Don Ihde, Technology and the Lifeworld: From Garden to Earth (Indiana University Press 1990). ↩

  52. Peter-Paul Verbeek, ‘Artifacts and Attachment: A Post-Script Philosophy of Mediation’, Artifacts and Attachment: A Post-Script Philosophy of Mediation (Amsterdam University Press 2005); Katinka Waelbers, ‘From Assigning to Designing Technological Agency’ (2009) 32 Human Studies 241. ↩

  53. Coeckelbergh’s recognition that technologies may become something other than what their developers intended recalls Ihde’s concept of the ‘multistability’ of technologies in their various contexts of use. Don Ihde, ‘Technology and Prognostic Predicaments’ (1999) 13 AI & SOCIETY 44. Fleur Johns makes no reference to narrative theory or the hermeneutics of AI. However, her account of how digital interfaces transformed what it means to engage in humanitarian practices can be read as offering a concrete example of meaning-making by and through technology. Fleur Johns, Digital Humanitarianism and the Remaking of International Order (Oxford University Press 2023). ↩

  54. Mark Coeckelbergh, ‘Time Machines: Artificial Intelligence, Process, and Narrative’ (2021) 34 Philosophy & Technology 1623, 1630. ↩

  55. ibid 1632. ↩

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