Research Study on Text-driven Law
This Research Study is part of the core output of the COHUBICOL project, which stands for ‘Counting as a human being in the era of computational law’. It presents the first jointly developed intermediary result of the project, focused on the kind of legal protection that is made possible by text-driven law.
We are making the paper available as an online resource, to make it easier to read, reference, and comment upon. The full table of contents is reflected in the menu on the left (or above, if you are using a mobile device), which makes it easy to move around and to know where you are in the document.
This study has four chapters.
The first and the second chapter have been written by the principal investigator (PI) of the Project, Mireille Hildebrandt.
- In the first chapter she provides a summary argument for the salience of framing law’s current mode of existence as an affordance of text-driven information and communication infrastructures (ICIs), thus also raising the question of whether code- and data-driven ICIs will afford the kind of legal protection that is key to the rule of law.
- In the second chapter she discusses three ‘framing concepts’ as conceptual lenses to better grasp the particular artificial nature of modern positive law: (1) modes of existence, (2) affordance and (3) legal protection by design. These concepts are explained by way of a brief working definition and further explained based on the Project proposal as well as her monograph Smart Technologies and the End(s) of Law.
The third chapter contains the main findings of the study. It has been authored by Laurence Diver (postdoc at COHUBICOL), Emilie van den Hoven (PhD student at COHUBICOL), Tatiana Duarte (PhD student at the ALTEP-DP project that is intertwined with the COHUBICOL project) and Gianmarco Gori (visiting PhD student from University of Florence) and by Mireille Hildebrandt (PI of COHUBICOL). This chapter develops the findings of this Project’s inquiry into text-driven normativity and its relationship with the kind of legal protection that is offered by modern positive law. Each section has been extensively presented, discussed and revised.
In the third chapter we have five sections that each discuss one or more foundational legal concepts, through the prism of the framing concepts. With regard to each legal concept, the relevant subsections starts with a working definition of the relevant legal concept and followed by an analysis of the legal concept in terms of the framing concepts, culminating in a description of the texture of text-driven normativity and the protection it offers. This is followed by a set of questions as to legal protection in the case of computational law.
- Section 3.1 examines the concept of legal norms.
- Section 3.2 examines the concepts of Rule of Law and positive law.
- Section 3.3 examines the concepts of the sources of law, jurisdiction and legal effect.
- Section 3.4 examines the concepts of legal subject, subjective right and legal power.
- Section 3.5 examine the concept of legal reasoning and legal interpretation.
The choice of the concepts is informed by the constitutive role they play in the making of law-as-we-know-it, that is modern positive law. The working definitions have been grouped together under the heading of VOCAB LAW. Instead of repeating existing attempts to provide a lexicon of legal terms, such as contract, tort, property, punishment, public administration, Constitution, Treaty, legal capacity, voidance, damage, causality and consideration, we have sought out the constitutive building blocks that must be assumed when defining more ‘operational’ technical-juridical terms. Legal protection as-we-know-it is not possible if these ten concepts are not ‘in place’.
Chapter four is under development and will consist of concise conclusions as to the nature of legal protection insofar as based on current law’s mode of existence, thus being an affordance of text-driven normativity.
- In the fourth chapter we may decide to co-author with NLP software, to see what happens if we train it on our text-driven output.
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This Research Study — excluding quotations and the excerpts from the COHUBICOL Project Proposal and from Smart Technologies and the End(s) of Law, set out in Chapter 2 — is licensed under the Creative Commons BY-NC license.
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