3.5.3 The texture of text-driven normativity
The same way a game does not exist until it is played, the information and communication infrastructure (ICI) of text depends on reading (interpretation) to survive – or, better, to come to life. In its turn, legal interpretation requires a system of signs created by an author to be read (interpreted).
The fact that law exists, for its major part, in text, it requires an institutionalised writer and reader to come to life.
The lifecycle of law as we know it is an iteration of dialogue and text. Before enactment, the content of legislation is discussed (dialogue) among legislature, until it acquires its final form – i.e., until it is enacted and becomes the written speech act of enacting legal norms. It is this text that the judge will read against an institutionalised dialogue that happens in court until the speech act of closure (the verdict) is fixed in text. Once the norm of the case is fixed in writing, it assumes a different role on the legal order – it acquires interpretative force as a different source of law.1
Law requires an institutionalised writer and reader to come to life.
The system of countervailing powers operates in text, which affords the distribution of the interpretative roles institutionalised by the rule of law.
Legislature occupies the role of the author who regulates the future by means of democratic discussion. After the proper procedure, a final text is enacted.
Judicial closure follows a parallel interplay of dialogue and text, as it must interpret the sources of law against the facts of the case and, after an adversarial dialogue, formalise the decision in text. The propositional content of the written speech act (judicial decision) is the tailor-made norm of the case.
In both cases, text ends a dialogical exchange and becomes a source of law to which meaning must be attributed to.
Text affords a generative distantiation.2
A case triggers a metamorphosis of legal text as a source of law, from legislation to case-law. The decision of the case is then released from its situated references, where, freed from the contingencies of dialogue, its text may be appropriated by an undetermined number of readers.3
The hermeneutic circle of law involves a complex network of circularities between dialogue and text; legislature and adjudication; legislation and case-law; and that between norm, case and practice. These circularities characterise written legal performatives, whose textification allows them to partake in the interpretative interplay of law by the affordances of the ICI of text.4
It is this permanent reinstitution of the legal system before a unique set of facts that affords an evergreen social contract – not in the sense of an inherited foundational and immutable pact, but in the sense of continuous adjustments to new contexts and new parties.5
Modern positive law exists (for the most part) in text,6 thereby instituting a complex network of written (and also oral) speech acts.
The constant reinstitution of the legal system before a unique set of facts affords an evergreen social contract.
The elasticity of text to support diverse readings affords legal protection. This is particularly salient if we think that the parties and the judge ascribe different purposes to their argumentation in court – and such difference makes a difference in the interpretative trail. The parties are committed to their best interest and, therefore, to a pre-defined outcome expressed in their claims – interpretation is functionalised to that outcome.
Interpretation plays a crucial role in voicing the claims and defences of legal subjects. Whether right or wrong in their desired outcome, text/interpretation afford their right to be heard and eventually to get a decision in their favour. This is core to legal protection.
Quite differently from the parties, the judge is committed to an interpretative response that reflects the legal system as whole. From the perspective of the court, a judicial dispute is not simply a conflict of facts with a particular legal rule, but with law in itself – therefore, it is the totality of the Droit which is called to rule.
The advent of the printing press allowed for the reproduction and dissemination of the same text and the consequent increase of the possible number of readers – and, thereby, of readings. According to some, the new interactions brought by the ICI of text and the printing press afforded the development of information systematisation and abstract thinking.7 The affordances of abstract and systematised thinking are at the root of the manufacture of historical artefacts – such as the rule of law or sovereignty. Which is to say that an entire heritage of historical artefacts that shaped our philosophical, legal, political, social and moral thought was afforded (not caused) by text and printing press.8
If we are correct, then there is no reason to take for granted that historical artefacts afforded by text will be preserved when a different ICI is operating.9 In the next section, we will briefly raise some concerns on the use of data-driven normativity (DDN) and code-driven normativity (CDN) in the practices legal reasoning and interpretation.
Criticising speech act theory for reducing its scope to the performativity of oral speech acts, thereby missing the different affordances of written speech acts, B. Fraenkel, Actes écrits, actes oraux : la performativité à l’épreuve de l’écriture in Performativité : Relectures et usages d’une notion frontière — Dossier : Performativité : relectures et usages d’une notion frontière (2006) 69-93 §§ 23-24; 55-77, available at https://journals.openedition.org/edc/369accessed 2021.06.20; M. Hildebrandt, ‘Text-Driven Jurisdiction in Cyberspace’, Keynote Hart Workshop (April 2021), pp. 6-9. ↩
Ricœur calls it productive distantiation, ‘Speaking and Writing’ in Interpretation Theory: Discourse and the Surplus of Meaning (Texas University Press 1976), p. 43; M. Hildebrandt, Smart Technologies and the End(s) of Law (Edward Elgar Publishing 2015) pp. 48; 176-177; ‘Text-Driven Jurisdiction in Cyberspace’, Keynote Hart Workshop, pp. 3; 8. ↩
P. Ricœur, ‘Speaking and Writing’ in Interpretation Theory: Discourse and the Surplus of Meaning (Texas University Press 1976), pp. 29-30; ‘The Model of the Text: Meaningful Action Considered as Text’ (1973) 5(1) New Literary History 91-117, at pp. 93-97. ↩
M. Hildebrandt, ‘Text-Driven Jurisdiction in Cyberspace’, pp. 6-11. ↩
M. Hildebrandt, ‘Text-Driven Jurisdiction in Cyberspace’, p. 10. ↩
Stating that modern types of democracy and the rule of law are affordances of both cartography and printing press, M. Hildebrandt, ‘Text-Driven Jurisdiction in Cyberspace’, Keynote Hart Workshop, pp. 5; 8; 15. ↩
Underlining that printing press afforded systematic and abstract thought, M. Hildebrandt, Smart Technologies and the End(s) of Law (Edward Elgar Publishing 2015), pp. 49-50; ‘Extraterritorial jurisdiction to enforce in cyberspace?: Bodin, Schmitt, Grotius in cyberspace’ (2013) 63(2) University of Toronto Law Journal 196-224, at pp. 206; 208; and ‘Text-Driven Jurisdiction in Cyberspace’, Keynote Hart Workshop, p. 3. ↩
Modern state also abstracted the sovereign office from its holder, M. Hildebrandt, ‘Extraterritorial jurisdiction to enforce in cyberspace?: Bodin, Schmitt, Grotius in cyberspace’, (2013) 63(2) University of Toronto Law Journal 196-224, at p. 208; ‘Text-Driven Jurisdiction in Cyberspace’, Keynote Hart Workshop, p. 4. ↩
M. Hildebrandt, Smart Technologies and the End(s) of Law (Edward Elgar Publishing 2015), p. 176; ‘Text-Driven Jurisdiction in Cyberspace’, Keynote Hart Workshop, p. 3. ↩