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

By Laurence Diver

Without a legal subject that is constituted by a medium that allows for a shared understanding to be arrived at, we are at the mercy of the designers of that medium, in terms of whether or not its representations of the human afford us the ability to hold rights and exercise powers of an institutional form. Such a medium can only be said to provide legal protection by design if it respects these as the necessary conditions of possibility of any legal protection that is worth having.

This raises many questions for code and data as the putative media underpinning any future ‘computational law’. For example:

  1. Should such computational representations of legal subjects, rights, and powers replace their text-driven counterparts, or merely assist in identifying/executing/enforcing them? Can this distinction be maintained?

  2. What changes in computer science and development paradigms would be needed to avoid the instrumental reductions, often commercially oriented, of the ‘user’ and of ‘permissions’?

  3. To what extent can any purported protection and enforcement of rights that is effected by code be compatible with the flexibility of interpretation that the implied philosophy of law requires?

  4. How adaptable can the prospectivity of any code representation be to the contingent and changing relations between legal subjects?

  5. Can multi-dimensional webs of normative relations be modelled, including the normative underpinnings that their institutionality necessarily entails?

  6. How does the performance of a computational system differ from the performativity of a legal speech act?

  7. Is a computational representation of the legal subject, or a subjective right or power, legitimised by dint of its promulgation by the legislature?

  8. How might might the governing ideals of efficiency and elegance in software development make way for the governing ideals of the rule of law, incompatible as they will be in many cases with the former?

This page was last updated on 14 July 2021.