2.4 The Texture of Modern Positive Law

By Mireille Hildebrandt

The COHUBICOL project stands for ‘Counting as a Human Being in the Era of Computational Law’. It aims to investigate the transformation of law’s mode of existence due to the radically different affordances of the novel ICIs. These novel ICIs are not only the environment that law aims to regulate; in the era of computational law these ICIs rearticulate the texture of law itself. They may thus tear up the fabric of modern positive law’s protection, requiring a more radical understanding of legal protection by design.

…novel ICIs are not only the environment that law aims to regulate; in the era of computational law these ICIs rearticulate the texture of law itself.

The legal protection that is offered by modern positive law has been text-driven, and one could say that positive law is itself designed by way of the ‘technologies of the word’, notably by those of the printing press. In that sense the protection it affords can be framed as a specific kind of legal protection by design that is core to its text-driven mode of existence. In this Working Paper we seek to inquire into the mode of existence of law-as-we-know-it by taking a closer look at what legal written speech acts afford in terms of legal protection. We probe the texture of the text-driven normativity (TDN) that in-forms the law,¹ testing the grounds of how positive law exists — by figuring out what it does (with words). This will entail an inquiry into the nature of written legal speech acts, how they make the law and what protection they offer to whom, based on what conditions.

The next chapter will develop, analyse and integrate a small set of foundational legal concepts that define positive law. They will be grouped in small webs of meaning and discussed as interlocking notions that define each other while simultaneously in-forming the institutional legal environment they create by way of written legal speech acts: from Constitutions and Parliamentary Acts to other legally binding regulations, treaties, judgments, doctrine and the fundamental principles that are implied in them. The aim is to trace and rethink modern positive law’s web of meaning in terms of the texture or fabric of text-driven normativity that constitutes, grounds, layers and enables it.

After inquiring into the meaning of legal norms, we will investigate the rule of law and positive law, followed by the meaning of and interaction between jurisdiction, the sources of law, and legal effect, next we will unpack the concepts of legal subject, individual right and legal power and finally we will examine the interaction between legal reasoning and legal interpretation. This will be a litmus test of our conceptual innovation. Will the concepts of mode of existence, affordance and legal protection by design function as a helpful prism to frame law’s and the Rule of Law’s indebtedness to the prevailing ICI (the technologies of text)? Will they enable us to better frame the text-driven design of positive law and what, in turn, it affords in terms of legal protection by way of text-driven design?

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