2.1 Modes of Existence

By Mireille Hildebrandt

On this page

1. The COHUBICOL Project proposal
2. Smart Technologies and the End(s) of Law

1 The concept of a MoE was introduced in the Project as a way to highlight that modern positive law exists in a specific way, compared to other types of legal traditions (e.g. medieval, Roman, religious)¹ and compared to other societal domains (notably morality and politics, but also economics or religion).²

2 Core to the idea of MoE is that speaking and writing can be ways of acting, bringing about performative effects while creating so-called institutional facts. Modern positive law is the prime example of such acts, exemplified in the notion of legal effect, that is neither caused nor logically inferred but constituted by speech acts such as: enacting legislation, concluding a contract, deciding a judgment.³

3 The concept was inspired by Latour’s usage, which was in turn inspired by Souriau⁴ and similarly inspired by Stengers’ concept of an ecology of practices.⁵ In Smart Technologies and the End(s) of Law, however, I developed my own conception of the way that law-as-we-know it exists, highlighting the relationship between, on the one hand, modern positive law and the Rule of Law and, on the other hand, the information and communication infrastructure (ICI) of the printing press.

3 A key difference may be that I argue that current law’s mode of existence is an affordance of the technology of text, which in turn also afforded the institutional checks and balances of the rule of law. The Project is based on the assumption that we cannot presume that once law becomes grounded in another ICI its affordances in terms of legal protection will remain the same, more notably with regard to the legal protection offered under the rule of law. The Project aims to investigate how this will affect law’s current mode of existence, more notably the nature of legal effect and related institutional foundations.

The COHUBICOL Project proposal

In the Cover Page Summary and Abstract 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.

Further down in the proposal I suggest that to highlight the difference between modern positive law on the one hand and code- and data-driven ‘law’ on the other, we need to face the fact that current law’s mode of existence is text-driven, clarifying the terminology that grounds the project. This is further explained when introducing the concept of a ‘mode of existence’ as one of the core conceptual lenses through which the project will seek to understand potential transformations of the law, brought about by computational legal software systems:

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,⁶ and building on my own work,⁷ 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,⁸ this refers to an altogether different ‘thing’ than the performativity of text-driven law.⁹ 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.¹⁰ The centrality of the need for interpretation in modern law is an affordance of the technologies of the script and the printing press.¹¹ The practice and theory of interpretation (hermeneutics)¹² have a specific meaning in the context of law,¹³ as law is rooted in concepts with an open texture,¹⁴ and in rules that cannot determine their own meaning,¹⁵ requiring iterant interpretation, argumentation and contestation.

And also:

Latour’s concept of modes of existence that inspired my understanding of modern law’s mode of existence, is closely aligned with Stenger’s concept of an ecology of ‘practices’.¹⁶ Both highlight the relational nature of practices and the mode of existence they actualize, and the fact that they themselves determine what counts as such practice, while interacting with other practices and their environment. To put it more bluntly: it is not computer science that determines whether a legal decision system counts a law (its performativity) and it is not a lawyer who decides whether machine learning is effective in the computer science sense of that term (its performance metric). However, practices are affected by their environment and what counts as law may change under the influence of law’s computational environment; especially where current law’s text-driven nature is replaced by computational translations. That is why – perhaps unlike Latour – I believe we may be on the verge of another mode of existence of law. This research is meant to target this transition, and as a lawyer I declare loyalty to modes of existence that align with potentially novel incarnations of the Rule of Law, because I believe that those under law’s jurisdiction demand keen attention to the kind of certainty, justice and purposiveness that law-as-we-know it affords (even if this cannot always be achieved).

This raises a set of fundamental questions:

To what extent - and how – will text-driven legal practice be disrupted by the advent of computational law, meaning that the mode of existence of modern positive law may undergo a fundamental transformation? How does such disruption affect the checks and balances instigated by the Rule of Law? Which checks and balances require reinvention in a data-driven legal practice?

And it will inform the output of the project:

Halfway the fourth year two extended treatises will be written that reflect on how data- and code-driven normativities may afford the kind of protection that is warranted under the Rule of Law, achieving a dynamic reflective equilibrium between more concrete proposals of legal protection by design and an inquiry into the scope and the meaning of the concept of legal protection by design. This will include a first reflection upon the kind of methodological innovation that is warranted by computational law if it is to sustain the mode of existence of law as the Rule of Law. The treatises will be authored by the legal team, with input from the computer science postdocs, and used as input for the dissertations of the PhD students. The treatises will interact with two major conferences in Brussels, based on CfPs, targeting legal protection in data-driven law (end of the third year) and in code-driven law (end of the fourth year).

…as a lawyer I declare loyalty to modes of existence that align with potentially novel incarnations of the Rule of Law

Smart Technologies and the End(s) of Law

As shown above, the concept of modes of existence is inspired by but not equivalent with Latour’s intended meaning of the term. To better understand the intended meaning of ‘the mode of existence of law and the rule of law’ we will track back to my Smart Technologies and the End(s) of Law where I developed this particular understanding of current law’s mode of existence, notably in chapters 7 and 8:¹⁷

By mode of existence I mean nothing more than the way that law exists, since it obviously does not exist in the same way as a table (which is a matter of matter and function and form and meaning), or in the same way as a religion or the economy (which generates functions and forms and meaning while developing complex relationships with tables and candles and manufacturing and prayers). My take is that the mode of existence of modern law is deeply dependent upon the printing press and the way it has shaped our world.

I explain the origins of the concept in relation to the concepts of speech acts and institutional facts:¹⁸

The concept of institutional facts was coined by another Austin,¹⁹ in a famous work (1962) titled How To Do Things with Words?²⁰ He highlighted the fact that some utterances do not (only) describe a reality, but actually bring it into being. ‘I declare you man and wife’, is an example of this. Such institutional facts depend on institutions, such as marriage, the church, universities, money or contract. Austin’s institutions are what Latour would call ‘regimes of veridiction’; they clarify the truth conditions for the facts that we determine as such. Or, as Austin and Latour would say: they constitute the conditions of felicity for the actual institution (Austin) or fabrication (Latour) of a fact. For instance, if I put my thumb up, a natural scientist could describe all the myriad interactions that take place within the body, including the physics, the chemistry and the biology, based on her knowledge of bodily movement in the context of her science. This will not, however, convey the meaning of the gesture within a specific group. For a correct description of such meaning we must rely on another set of truth conditions that help us understand what people mean when they ‘do’ the thumbs-up. In a society where the thumbs-up institutes the conclusion of a contract, we may need a legal expert to clarify the relevant ‘regime of veridiction’. Latour has placed truth regimes in the context of the constitution of what he calls different modes of existence, a term inspired by Souriau:²¹

This banal and quasi-ecological expression refers to a specific speech act – each with its peculiar felicity and infelicity conditions – to which is added the claim that a highly specific type of world is being inhabited. Souriau’s argument is not to say that there are several ways to talk about one world but several ways for the worlds (in the plural) to be addressed.

This is an interesting proposal. It relates to the notion of a life world or Welt, as introduced in Chapter 3,²² but basically admits that we do not inhabit one monolithic Welt, but necessarily navigate different Welts that determine different dimensions of our reality. This reality is plural and depends on hard work, namely on addressing the modes of existence to sustain their existence. It probably implies that Latour is not interested in concepts and conceptualizations as ways of seeing the world, but in the way such concepts shape the environment in which we live. It can be related to the notions of ‘agencement’, affordance and enaction. The first highlights the way that different entities animate each other when forming a hybrid, while the second underlines the fact that a mode of existence affords specific roles, actors and actions while constraining others, and the third notes the reiterant feedback loop between action and perception as performing our world. This seems an excellent proposition to understand and investigate how the law operates, what conditions of felicity it institutes and what work is required to maintain and preserve its mode of existence. I believe that Latour, however, would not understand the law as an ‘agencement’. Instead he would expect different entities to come together, confronting and inspiring the law as test cases for its ‘regime of veridiction’; such new ‘agencements’ can be found in the onlife world, forcing the law to face the transformation of its environment. In the next chapter I will argue that different conceptions of law implicate different modes of existence that vie for dominance. Here, I will build on a particular understanding of law as a value-laden concept and practice, to ground and suspend the ends of the law that are at stake in an onlife world.

I then connect the concept of law with Radbruch’s antinomian understanding of law:²³

Law may be a pudding, but it is not any kind of pudding. Its texture, elasticity, form and identity matter. One way to find out how they matter, is to figure out what values law incarnates. In doing so, we should avoid both idealistic renderings that conflate law with justice and instrumentalist perspectives that deny the value-aspect of law. In the next chapter we will return to these reductions, because they play an important role in attempts to sterilize the law as an independent construct, or to instrumentalize the law for political or economic purposes. Here, I will elaborate on the work of a lawyer and philosopher of the first half of the 20th century, who turned the productive tensions between the different aims of the law into its agonistic core.

Law’s current mode of existence sustains a productive tension between its threefold aims:²⁴

Justice, legal certainty and purpose are antinomian. This implies that though the law always strives to achieve these ends, their application in specific situations will often be incompatible. It may be tempting to resolve the ensuing tension by reducing the goals to one overarching goal or by reducing them to each other. In fact, Radbruch speaks of the generic goal of justice in the broad sense, but this must be understood as the agonistic space where the antinomian aims vie for dominance. Indeed, I believe that Radbruch’s insistence on the unruly agonism of the ends of the law is not unlike Latour’s principle of irreduction. Though the reader may understand irreduction as the recognition of the irreducibility of a thing or a value, this easily reduces to a kind of essentialism. As if justice, purpose and legal certainty could exist and play out independently, on their own, without being tested against each other. Latour’s irreduction would, on the contrary, mean that they cannot translate into or reduce themselves to each other, but – on the contrary – only come into their own in their mutual confrontation. Yes, they must be respected on their own terms, but these terms become clear only when challenged by the other aims. This type of irreduction confirms that lawyers will have to cope with difficult choices that must be accepted as an invitation to consider all that is relevant, to suspend judgement until all parties are heard and relevant arguments deliberated. While still ending with judgement.

The book further explains the affordances of law’s text-driven mode of existence in chapter 8, that is also very relevant for the next conceptual innovation: that of an affordance.

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References

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