3.3.6 Anticipating legal protection under data- and code-driven normativity

By Emilie van den Hoven

If legal effect is a matter of attribution in the context of laws, which are understood as speech acts with illocutionary force, the difficulty of data- and code-driven applications in law becomes clearer. Whereas law exists in the realm of illocution, the force of technology lies in perlocution. This means that the performative effect of law cannot be instantiated in code in the same way as in text-driven world, simply because code has different affordances and cannot ‘do things with words’ like natural language affords. Mathematical patterns are not speech acts - e.g. legal analytics, as exemplified by applications like Westlaw Edge, can be said to be about law, but it does not constitute law. It has no legal effect unless we attribute it. When discussing developments like legal analytics, and computational law more generally, countless important questions can and should thus be raised. For example:

1. What performative effects will legal analytics ultimately have? Can code count as a legal agreement having legal effects?
2. Can ‘smart contracts’ have legal effect as we have defined it and how will we institute sufficient levels of legal protection if it does?
3. Who decides on whether (and which types of) computational law will come to have legal effects?
4. What will change in the kind and extent of our legal protection when legal effects are attributed to computational law?
5. Will the emergence of computational law entail a reconfiguration of the sources of law?
6. Can data- and code-driven notions of jurisdiction ever afford us the predictability and legal certainty that legal systems under the rule of law require?
7. How will our legal protection change if our notions of jurisdiction becomes data- or code-driven?

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