Continuing notes and review of Part III of Hildebrandt’s Smart Technologies and the End(s) of Law, we begin chapter 8, “Intricate entanglements of law and technology”. This chapter culminates in some very interesting claims about the relationship between law and the printing press/text, which I anticipate provide some very substantive conclusions.
But the chapter warms up by a review of philosophical/theoretical positions on law and technology more broadly. Section 8.2. is structured as a survey of these positions, and in an interesting way: Hildebrandt lays out Neutral, Autonomous, and Pluralistic conceptions of both technology and law in parallel. This approach is dialectical. The Neutral and Autonomous conceptions are, Hildebrandt argues, narrow and naive; the Pluralistic conception captures nuances necessary to understand not only what technology and law are, but how they relate to each other.
The Neutral Conception
This is the conception of law and technology as mere instruments. A particular technology is not good or bad, it all depends on how it’s used. Laws are enacted to reach policy aims.
Technologies are judged by their affordances. The goals for which they are used can be judged, separately, using deontology or some other basis for the evaluation of values. Hildebrandt has little sympathy for this view: “I believe that understanding technologies as mere means amounts to taking a naive and even dangerous position”. That’s because, for example, technology can impact the “in-between” of groups and individuals, thereby impacting privacy by its mere usage. This echoes the often cited theme of how artifacts have politics (Winner, 1980): by shaping the social environment by means of their affordances.
Law can also be thought of as neutral instrument. In this case, it is seen as a tool of social engineering, evaluated for its effects. Hildebrandt says this view of law fits “the so-called regulatory paradigm”, which “reigns in policy circles, and also in policy science, which is a social science inclined to take an exclusively external perspective on the law”. The law regulates behavior externally, rather than the actions of citizens internally.
Hildebrandt argues that when law is viewed instrumentally, it is tempting to then propose that the same instrumental effects could be achieved by technical infrastructure. “Techno-regulation is a prime example of what rule by law ends up with; replacing legal regulation with technical regulation may be more efficient and effective, and as long as the default settings are a part of the hidden complexity people simply lack the means to contest their manipulation.” This view is aligned with Lessig’s (2009), which Hildebrandt says is “deeply disturbing”; as it is aligned with “the classical law and economics approach of the Chicago School”, it falls short…somehow. This argument will be explicated in later sections.
Hildebrandt’s criticism of the neutral conception of technology is that it does not register how technology (especially infrastructure) can have a regulatory effect on social life and so have consequences that can be normatively evaluated without bracketing out the good or bad uses of it by individuals. This narrow view of technology is precisely that which has been triumphed over by scholars like Lessig.
Hildebrandt’s criticism of the neutral conception of law is different. It is that by understanding law primarily by its external effects (“rule by law”) diminishes the true normative force of a more robust legality that sees law as necessarily enacted and performed by people (“Rule of Law”). But nobody would seriously think that “rule by law” is not “neutral” in the same sense that some people think technology is neutral.
The misalignment of these two positions, which are presented as if they are equivalent, obscures a few alternative positions in the logical space of possibilities. There are actually two different views of the neutrality of technology: the naive one that Hildebrandt takes time to dismiss, and the more sophisticated view that technology should be judged by its social effects just as an externally introduced policy ought to be.
Hildebrandt shoots past this view, as developed by Lessig and others, in order to get to a more robust defense of Rule of Law. But it has to be noted that this argument for the equivalence of technology and law within the paradigm of regulation has beneficial implications if taken to its conclusion. For example, in Deirdre Mulligan’s FAT* 2019 keynote, she argued that public sector use of technology, if recognizes as a form of policy, would be subject to transparency and accountability rules under laws like the Administrative Procedure Act.
The Autonomous Conception
In the autonomous conception of technology and law, there is no agent using technology or law for particular ends. Rather, Technology and Law (capitalized) act with their own abstract agency on society.
There are both optimistic and pessimistic views of Autonomous Technology. There is hyped up Big Data Solutionism (BDS), and dystopian views of Technology as the enframing, surveilling, overpowering danger (as in, Heidegger). Hildebrandt argues that these are both naive and dangerous views that prevent us from taking seriously the differences between particular technologies. Hildebrant maintains that particular design decisions in technology matter. We just have to think about the implications of those decisions in a way that doesn’t deny the continued agency involved the continuous improvement, operation, and maintenance of the technology.
Hildebrant associates the autonomous conception of law with legal positivism, the view of law as a valid, existing rule-set that is strictly demarcated from either (a) social or moral norms, or (b) politics. The law is viewed as legal conditions for legal effects, enforced by a sovereign with a monopoly on violence. Law, in this sense, legitimizes the power of the state. It also creates a class of lawyers whose job it is to interpret, but not make, the law.
Hildebrandt’s critique of the autonomous conception of law is that it gives the law too many blind spots. If Law is autonomous, it does not need to concern itself with morality, or with politics, or with sociology, and especially not with the specific technology of Information-Communications Infrastructure (ICI). She does not come out and say this outright, but the implication is that this view of Law is fragile given the way changes in the ICI are rocking the world right now. A more robust view of law would give better tools for dealing with the funk we’re in right now.
The Pluralistic Conception
The third view of technology and law, the one that Hildebrandt endorses, is the “pluralistic” or “relational” view of law. It does not come as a surprise after the exploration of the “neutral” and “autonomous” conceptions.
The way I like to think about this, the pluralistic conception of technology/law, is: imagine that you had to think about technology and law in a realistic way, unburdened by academic argument of any kind. Imagine, for example, a room in an apartment. Somebody built the room. As a consequence of the dimensions of the room, you can fit a certain amount of furniture in it. The furniture has affordances; you can sit at chairs and eat at tables. You might rearrange the furniture sometimes if you want a different lifestyle for yourself, and so on.
In the academic environment, there are branches of scholarship that like to pretend they discovered this totally obvious view of technology for the first time in, like, the 70’s or 80’s. But that’s obviously wrong. As Winner (1980) points out, when Ancient Greeks were building ships, they obviously had to think about how people would work together to row and command the ship, and built it to be functional. Civil engineering, transportation engineering, and architecture are fields that deal with socially impactful infrastructure, and they have to deal with the ways people react, collectively, to what was built. I can say from experience doing agile development of software infrastructure that software engineers, as well, think about their users when they build products.
So, we might call this the “realistic” view–the view that engineers, who are the best situated to understand the processes of producing and maintaining technology, since that’s their life, have.
I’ve never been a lawyer, but I believe one gets to the pluralistic, or relational, view of law in pretty much the same way. You look at how law has actually evolved, historically, and how it has always been wrapped up in politics and morality and ICI’s.
So, in these sections, Hildebrandt drives home in a responsible, scholarly way the fact that neither law nor technology (especially technological infrastructure, and especially ICI) are autonomous–they are historically situated creates of society–and nor are they instrumentally neutral–they do have a form of agency in their own right.As my comment above notes, to me the most interesting part of this chapter was the gaps and misalignment in the section on the Neutral Conception section. This conception seems most aligned with an analytically clear, normative conception of what law and technology are supposed to be doing, which is what makes this perspective enduringly attractive to those who make them. The messiness or the pluralistic view, while more nuanced, does not provide a guide for design.
By sweeping away the Neutral conception of law as instrumental, Hildebrandt preempts arguments that the law might fail to attain its instrumental goals, or that the goals of law might sometimes be attained through infrastructure. In other words, Hildebrandt is trying to avoid a narrow instrumental comparison between law and technology, and highlights instead that they are relationally tied to each other in a way that prevents either from being a substitute for the other.
Hildebrandt, Mireille. Smart technologies and the end (s) of law: novel entanglements of law and technology. Edward Elgar Publishing, 2015.
Lessig, Lawrence. Code: And other laws of cyberspace. ReadHowYouWant. com, 2009.
Winner, Langdon. “Do artifacts have politics?.” Daedalus(1980): 121-136.