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2.2 Affordance

By Mireille Hildebrandt

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

1 The concept of affordance, as used in this Project, builds on Gibson’s original concept that was part of his ecological psychology, which traced the relational nature of what are often considered ‘properties’ of a specific environment:1

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.

2 The concept has been further developed by Norman in the domain of design,2 initially focused on how to design technological artefacts in such a way that the intended affordances of a product are more easily perceived as such by the relevant user. From the perspective of the Project we are however also interested in what hidden affordances can be manipulated by the provider or user of a system to influence end-users, e.g. without their conscious awareness.

3 We will use the concept in a broader sense, building on Gibson:

A - The affordances of the material & institutional environment of human beings are what they offer an embodied human agent, what they provide or furnish, either for good or ill. We mean by the term affordance something that refers to both the material & institutional environment and the human agent.

  • More specifically we are interested in legal protection as an affordance of law as a material & institutional environment in relation to natural persons (human beings).

B - The affordances of a specific information and communication infrastructure (ICI) for the constitution of the law (that in turn becomes the material & institutional environment of human beings).

  • More specifically we are interested in modern positive law as a system of legal written speech acts and their resulting institutional facts, built on the ICI of text.
  • We will inquire how this compares to a computational law that may have to be qualified as a system of brute facts, built on a code- or data-driven ICI.3

The COHUBICOL Project proposal

In the Cover Page Summery and Abstract we read that:

The research methodology is based on legal theory and philosophy of law in close interaction with computer science, integrating key insights into the affordances of computational architectures into legal methodology, thus achieving a pivotal innovation of legal method.

As indicated when discussing the mode of existence of law, the project first assesses the affordances of text-driven law based on previous work that argues how the rule of law depends on a text-driven normativity. This Working Paper develops the findings of this assessment, as indicated in the Project description:

This research project assumes a rigorously relational and ecological approach to law, to individual persons and society, and to computer science. For instance, the crucial concept of affordances derives from Gibson’s ecological psychology,4 acknowledging that organisms can only be understood in relation to the environment on which they depend. This aligns with Sen’s relational understanding of human capabilities as pivotal for an effective human rights law.5 In fact, 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’. 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.

As the reader will see, this quote partly overlaps with a quotation above, highlighting the interaction between the concepts of affordance and mode of existence.

During the first year, the legal team will investigate the affordances of text-driven normativity, exploring the concept of an affordance in counterpoint to that of a capability, while testing the salience of its application to law’s current mode of existence, understood as the current ‘functionings’ of what counts as law.6 This engages with a Wittgensteinian and pragmatist understanding of the meaning of concepts, seeking such meaning in their usage and the consequences of their application (…). We include a study of the assumptions that underlie traditional legal concepts such as the force of law, legal effect, legal personhood and legal certainty, tracing the implications of law’s reliance on the technologies of the word (Ong 1982, Goody and Watt 1963, Eisenstein 2005) for the meaning of law and for the nature of the protection it offers (Hildebrandt 2008, Vesting 2013, 2011b, 2011a).7

(…)

As should be clear, the concept of an affordance brings together the inquiry into the assumptions and the implications of text-, data- and code-driven normativity. By thinking in terms of affordances it becomes possible to acknowledge and study that and how specific assumptions have implications that trigger specific effects, in particular those regarding the capabilities that such normativities do or do not afford human beings. The advantage of thinking in terms of affordances is that it does not incline to technological determinism but nevertheless pays keen attention to the specific conditions under which a technology may overdetermine its effect, compared to conditions that are merely conducive to such effects.

During the second year, the study of text-driven normativity will be complemented with a new type of collaboration with computer scientists:

As such, the second year will provide pivotal groundwork for a substantial methodological innovation of legal research and a sustained reflection on how the hidden assumptions of current, text-driven law co-determine its affordances. This will involve keen attention to the difference between the performativity of text-driven law and the performance metrics of quantified legal prediction technologies, (…). Precisely when lawyers are confronted with the intricacies and the ‘otherness’ of computational systems they become more deeply aware of the extent to which their understanding of what makes law ‘law’ depends on its text-driven nature.

Smart Technologies and the End(s) of Law

The concept of an affordance highlights the ecological nature of agency, squarely situating agents as dependent on what their environment ‘affords’ them in terms of both action and perception. This means that we no longer speak of the ‘properties’ or ‘characteristics’ of either an agent or an environment, but always of the affordances of a particular environment in relation to a particular agent. This may be a plant, an animal, a human animal and even an artificial agent. Highlighting the ecological nature of an agent’s ability to act and perceive is core to affordance theory. In Smart Technologies and the End(s) of Law, I have emphasised the connection with an embodied and enactive understanding of human agency:8

The emphasis on the material embedding of complete agents and on their capability to survive in a real-world environment links up with phenomenological research into the constitution of agency.31 This type of research highlights the relationship between action and perception, rejecting the primacy of perception as something that develops independently from interaction. Instead, the idea is that our perception and notably our understanding of causality derive from navigating an environment and being confronted with the resistance of real-world scenarios. Pattern recognition, in that perspective, is dependent on the particular embodiment of an organism and the specific affordances of its environment. Though some pattern recognition may be hardwired into the organism, much will be developed in the course of its life, basically learning how to create and sustain the best fit with whatever the environment offers. The co-constitutive relationship between action and perception has been termed ‘enaction’ by authors like Varela, Thomson and Rosch,9 underlining the role of the body in cognition and rejecting, for instance, the idea that a ‘brain in a vat’ qualifies as a mind. No body no mind, one could say. Not even a mindless mind could survive as a separate thing, outside its material embeddedness.

This clarifies that not only the environment is material but that also the agent navigating their environment is material. In the case of a living agent we usually speak of an embodied agent.


References

  1. J.J. Gibson, The Ecological Approach to Visual Perception (1 edition, Routledge 2014). 

  2. D. Norman, The Design of Everyday Things (MIT 1998). 

  3. G.E.M. Anscombe, ‘On Brute Facts’ (1958) 18 Analysis 69; M. Hildebrandt, ‘Text-Driven Jurisdiction in Cyberspace’ https://osf.io/jgs9n/ accessed 22 May 2021. 

  4. J.J. Gibson, The Ecological Approach to Visual Perception (1 edition, Routledge 2014). 

  5. A. Sen, ‘Human Rights and Capabilities’ (2005) 6 Journal of Human Development 151. 

  6. A. Sen, ‘Human Rights and Capabilities’ (2005) 6 Journal of Human Development 151. 

  7. W. Ong and J. Hartley, Orality and Literacy: The Technologizing of the Word (30th anniversary ed.; 3rd ed, Routledge 2012); J. Goody and I. Watt, ‘The Consequences of Literacy’ (1963) 5 Comparative Studies in Society and History 304; E. Eisenstein, The Printing Revolution in Early Modern Europe (2nd edn, Cambridge University Press 2012); T. Vesting, Legal Theory and the Media of Law (2018). 

  8. M. Hildebrandt, Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology (Edward Elgar Publishing 2015) qt 28. 

  9. F.J. Varela, E. Thompson and E. Rosch, The Embodied Mind. Cognitive Science and Human Experience (MIT 1991). 

This page was last updated on 14 July 2021.