3.4.5 The texture of text-driven normativity
- Law as empowerment
- Legal protection under text-driven normativity
- Protecting the legal subject by protecting the mode of existence
We can bring together some of the earlier examples discussed in this working paper to think about how the concepts of legal subject, subjective right, and legal power depend on a certain mode of existence, whose affordance by the technology of text in turn affords legal protection.
Imagine a company director who, while driving in her new car to collect her daughter from school, is involved in a traffic accident. The set of rights and duties vary dramatically according to her overlapping roles (i) as a director, (ii) as a customer of the car showroom, (iii) as a parent, and (iv) as a driver. Under company law, she is deemed to be a representative of the corporation, which entails her having, amongst other things, various fiduciary duties to the company’s shareholders (that is, to work in their best interests). As a parent, family law stipulates that she is under certain stringent duties of care towards her daughter. Under tort/delict law, she is owed, and owes, a duty of reasonable care to every other road user (and indeed to her passenger). In this scenario the company, its individual shareholders, the daughter, her teachers, the car showroom, and the other users of the road are all themselves legal subjects, with concomitant rights and duties. We can get a hint from even this very straightforward scenario of the types and complexity of the web of rights and powers that arise between legal subjects in the different but overlapping spheres of their activities.
Text-driven normativity cannot directly prevent the traffic accident by wresting control of the car from the driver, or by preventing her from driving at a certain speed — these would be examples of techno-regulation, compliance by design, or ‘legal by design’, each requiring technological intervention that goes beyond what text can impose.1 What text-driven normativity can do, however, is provide a framework that prefigures the relationships between those involved in and affected by that accident, and the consequences that flow from it after-the-fact. Our driver inhabits very different roles as company director, mother, and road user, although of course these are interlinked and overlap. In each role she holds different rights and can exercise different powers, and of course she is under (very) different duties toward the various constituencies connected to each role, in time and in space.
The double contingency of new facts and existing norms allows for a flexibility in legal judgment.
Although perhaps daunting, this complexity demonstrates how the underlying structure of law in fact enables our myriad, overlapping activities and ways of life. Our shared institutional Welt is able to ‘hold’ all these relations, without them having to be specified in every detail in advance. In turn, it gives us a systematic (but not formulaic) way of disentangling them when a conflict arises or an accident happens, such that we can ‘make sense of’ the situation and attribute appropriate rights, duties, and liabilities to the relevant legal subjects. This double contingency of new facts and existing norms allows for a flexibility in legal judgment, guided by an implied philosophy that balances legal certainty with justice and the purposive goals of the legislature. Legal protection is thus reflexive, operating both before and after the conflict arises.
Without the institutional Welt, there are no legal players and no legal game.
The bi-directional nature of legal protection (we are both empowered and subjected) creates the level playing field of the rule of law, upon which heterogeneous entities, represented by their legal subjectivities, can engage by means of the rights that protect against incursions on interests, and the powers that allow those interests to be pursued.
Without the institutional Welt, there are no legal players and no legal game, and without those any system risks breaking down, and along with it the specific kind of protection that law offers. Of course, it is possible to emulate elements of legal-institutional framework, but without the fullness of that framework in place they will not, and arguably cannot, provide the depth and spectrum of protection that law can.
Put another way, without institutional order (contestable norms, stability through time, enforceability by a legitimate authority, the possibility of appeal) any purported protection is unlikely to have the flexibility necessary for it to adapt to changing circumstances, even if appears effective at certain moments in respect of certain isolated sets of circumstances.
From an affordance perspective, we saw above that a conceptual distinction can be drawn between the material and legal-institutional dimensions of the legal ecology. The distinction highlights how the one is dependent on the other, and how protection of the mode of existence of law is necessary for protection of the legal subject.
In the material dimension, artefacts afford the externalisation of norms via written and printed text, and their transmissibility across space and time on media, both analogue (letters, libraries, writs) and digital (email, databases of caselaw and legislation). In this dimension of legal ecology are the immediate and direct interactions that human beings are afforded by material objects within their environment (Umwelt),2 be that the steps to the courthouse, the revolving door of the municipal administration, or the conveyor belt at the cashier point in the supermarket. This immediate environmental level is where the concept of affordance is most commonly applied in design.3 If we stop there, however, we will fail to take into account the broader institutional meanings which those material interactions contribute to, and in some cases constitute.
The affordances of text are the very means by which legal subjectivity, rights, and powers can fulfil their purpose of protecting the human.
We must therefore look beyond the material dimension to the legal-institutional dimension that it enables, upon which our shared legal Welt is built. Our experience of and interactions with material artefacts afford that Welt, both in the immediate environment, as mentioned above, and in the extended physical and temporal environment, as for example with the printing press hundreds of miles away, running perhaps many years ago to produce the materialised text which we use to ‘perform’ and sustain that Welt in any given moment.4
While we cannot point at legal subjects, subjective rights, and legal powers in the material dimension, we can see them evidenced in the practices and — especially — the documents of law.5 A legal concept cannot exist solely in the mind, where it is limited to no more than a passing thought; it must be externalised if it is to have institutional status.6 So while it might be tempting to think of the legal-institutional dimension as a purely mental phenomenon that is independent of technological medium,7 legal-institutional facts, and the specific way they are made and ‘performed’, ultimately depend on affordances in the material dimension.
In this way the affordances of text are necessary constituents of the institutions of the legal subject, legal rights, and legal powers, and in turn are the very means by which legal subjectivity can fulfil its purpose of protecting the human.
Intuitively, one might reasonably want accidents to be rendered ‘impossible’, but consider the wider implications of this goal in terms of what is qualified as an ‘accident’ (and who qualifies it as such). See e.g. R. Brownsword, ‘Technological Management and the Rule of Law’ (2016) 8 Law, Innovation and Technology 100; M. Hildebrandt, Law for Computer Scientists and Other Folk (Oxford University Press 2020), chapter 11. ↩
See M. Hildebrandt, Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology (Edward Elgar Publishing 2015), pp. 50ff; M. Heidegger, Being and Time (J. Macquarrie and E. Robinson trs, Blackwell 1962), p. 93 note 1. ↩
Cf. D.A. Norman, The Design of Everyday Things (MIT Press 2013). ↩
P. Ricoeur, ‘The Model of the Text: Meaningful Action Considered as a Text’ (1973) 5 New Literary History 91, p. 96. ↩
On the latter, see C. Vismann, Files: Law and Media Technology (G. Winthrop-Young tr, Stanford University Press 2008); N. van Dijk, ‘The Life and Deaths of a Dispute: An Inquiry into Matters of Law’ in K. McGee (ed), Latour and the Passage of Law (Edinburgh University Press 2015). ↩
Cf. G. Ryle, ‘Thinking and Saying’ (1972) 58 Rice University Studies, p. 29ff. ↩
Cf. Weinberger’s description of legal institutions as ‘thought objects’ in O. Weinberger, ‘The Norm as Thought and as Reality’ in N. MacCormick and O. Weinberger, An Institutional Theory of Law: New Approaches to Legal Positivism (Springer Netherlands 1986). ↩