Digifesto

Many thanks to Jake Goldenfein for discussing this reading with me and coaching me through interpreting it in preparation for writing this post.

Following up on the discussion of sections 7.1-7.2 of Hildebrandt’s Smart Technologies an the End(s) of Law (2015), this post discusses the next two sections. The main questions left from the last section are:

• How strong is Hildebrandt’s defense of the Rule of Law, as she explicates it, as worth preserving despite the threats to it that she acknowledges from smart technologies?
• Is the instrumental power of smart technology (i.e, its predictive function, which for the sake of argument we will accept is more powerful than unassisted human prognostication) somehow a substitute for Law, as in its pragmatist conception?

In sections 7.3-7.4, Hildbrandt discusses the eponymous ends of law. These are not its functions as could be externally and sociologically validated, but rather its internally recognized goals or purposes. And these are not particular goals, such as environmental justice, that we might want particular laws to achieve. Rather, these are abstract goals that the law as an entire ‘regime of veridiction’ aims for. (“Veridiction” means “A statement that is true according to the worldview of a particular subject, rather than objectively true.” The idea is that the law has a coherent worldview of its own.

Hildebrandt’s description of law is robust and interesting. Law “articulates legal conditions for legal effect.” Legal personhood (a condition) entails certain rights under the law (an effect). These causes-and-effects are articulated in language, and this language does real work. In Austin’s terminology, legal language is performative–it performs things at an institutional and social level. Relatedly, the law is experienced as a lifeworld, or Welt, but not a monolithic lifeworld that encompasses all experience, but one of many worlds that we use to navigate reality, a ‘mode of existence’ that ‘affords specific roles, actors and actions while constraining others’. [She uses Latour to make this point, which in my opinion does not help.] It is interesting to compare this view of society with Nissenbaum’s ((2009) view of society differentiated into spheres, constituted by actor roles and norms.

In section 7.3.2, Hildebrandt draws on Gustav Radbruch for his theory of law. Consistent with her preceding arguments, she emphasizes that for Radbruch, law is antinomian, (a strange term) meaning that it is internally contradictory and unruly, with respect to its aims. And there are three such aims that are in tension:

• Justice. Here, justice is used rather narrowly to mean that equal cases should be treated equally. In other words, the law must be applied justly/fairly across cases. To use her earlier framing, justice/equality implied that legal conditions cause legal effects in a consistent way. In my gloss, I would say this is equivalent to the formality of law, in the sense that the condition-effect rules must address the form of a case, and not treat particular cases differently. More substantively, Hildebrandt argues that Justice breaks down into more specific values: distributive justice, concerning the fair distribution of resources across society, and corrective justice, concerning the righting of wrongs through, e.g., torts.
• Legal certainty. Legal rules must be binding and consistent, whether or not they achieve justice or purpose. “The certainty of the law requires its positivity; if it cannot be determined what is just, it must be decided what is lawful, and this from a position that is capable of enforcing the decision.” (Radbruch). Certainty about how the law will be applied, whether or not the application of the law is just (which may well be debated), is a good in itself. [A good example of this is law in business, which is famously one of the conditions for the rise of capitalism.]
• Purpose. Beyond just/equal application of the law across cases and its predictable positivity, the law aims at other purposes such as social welfare, redistribution of income, guarding individual and public security, and so on. None of these purposes is inherent in the law, for Radbruch; but in his conception of law, by its nature it is directed by democratically determined purposes and is instrumental to them. These purposes may flesh out the normative detail that’s missing in a more abstract view of law.

Two moves by Hildebrandt in this section seem particularly substantial to her broader argument and corpus of work.

The first is the emphasis on the contrast between the antinomian conflict between justice, certainty, and purpose with the principle of legal certainty itself. Law, at any particular point in time, may fall short of justice or purpose, and must nevertheless be predictably applied. It also needs to be able to evolve towards its higher ends. This, for Hildebrandt, reinforces the essential ambiguous and linguistic character of law.

[Radbruch] makes it clear that a law that is only focused on legal certainty could not qualify as law. Neither can we expect the law to achieve legal certainty to the full, precisely because it must attend to justice and to purpose. If the attribution of legal effect could be automated, for instance by using a computer program capable of calculating all the relevant circumstances, legal certainty might be achieved. But this can only be done by eliminating the ambiguity that inheres in human language: it would reduce interpretation to mindless application. From Radbruch’s point of view this would fly in the face of the cultural, value-laden mode of existence of the law. It would refute the performative nature of law as an artificial construction that depends on the reiterant attribution of meaning and decision-making by mindful agents.

Hildebrandt, Smart Technologies, p. 149

The other move that seems particular to Hildebrandt is the connection she draws between purpose as one of the three primary ends of law and purpose-binding a feature of governance. The latter has particular relevance to technology law through its use in data protection, such as in the GDPR (which she addresses elsewhere in work like Hildebrandt, 2014). The idea here is that purposes do not just imply a positive direction of action; they also restrict activity to only those actions that support the purpose. This allows for separate institutions to exist in tension with each other and with a balance of power that’s necessary to support diverse and complex functions. Hildebrandt uses a very nice classical mythology reference here

The wisdom of the principle of purpose binding relates to Odysseus’s encounter with the Sirens. As the story goes, the Sirens lured passing sailors with the enchantment of their seductive voices, causing their ships to crash on the rocky coast. Odysseus wished to hear their song without causing a shipwreck; he wanted to have his cake and eat it too. While he has himself tied to the mast, his men have their ears plugged with beeswax. They are ordered to keep him tied tight, and to refuse any orders he gives to the contrary, while being under the spell of the Sirens as they pass their island. And indeed, though he is lured and would have caused death and destruction if his men had not been so instructed, the ship sails on. This is called self-binding. But it is more than that. There is a division of tasks that prevents him from untying himself. He is forced by others to live by his own rules. This is what purpose binding does for a constitutional democracy.

Hildebrandt, Smart Technologies, p. 156

I think what’s going on here is that Hildebrandt understands that actually getting the GDPR enforced over the whole digital environment is going to require a huge extension of the powers of law over business, organization, and individual practice. From some corners, there’s pessimism about the viability of the European data protection approach (Koops, 2014), arguing that it can’t really be understood or implemented well. Hildebrandt is making a big bet here, essentially saying: purpose-binding on data use is just a natural part of the power of law in general, as a socially performed practice. There’s nothing contingent about purpose-binding in the GDPR; it’s just the most recent manifestation of purpose as an end of law.

Commentary

It’s pretty clear what the agenda of this work is. Hildebrandt is defending the Rule of Law as a social practice of lawyers using admittedly ambiguous natural language over the ‘smart technologies’ that threaten it. This involves both a defense of law as being intrinsically about lawyers using ambiguous natural language, and the power of that law over businesses, etc. For the former, Hildebrandt invokes Radbruch’s view that law is antinomian. For the second point, she connects purpose-binding to purpose as an end of law.

I will continue to play the skeptic here. As is suggested in the quoted package, if one takes legal certainty seriously, then one could easily argue that software code leads to more certain outcomes than natural language based rulings. Moreover, to the extent that justice is a matter of legal formality–attention to the form of cases, and excluding from consideration irrelevant content–then that too weighs in favor of articulation of law in formal logic, which is relatively easy to translate into computer code.

Hildebrandt seems to think that there is something immutable about computer code, in a way that natural language is not. That’s wrong. Software is not built like bridges; software today is written by teams working rapidly to adapt it to many demands (Gürses and Hoboken, 2017). Recognizing this removes one of the major planks of Hildebrandt’s objection to computational law.

It could be argued that “legal certainty” implies a form of algorithmic interpretability: the key question is “certain for whom”. An algorithm that is opaque due to its operational complexity (Burrell, 2016) could, as an implementation of a legal decision, be less predictable to non-specialists than a simpler algorithm. So the tension in a lot of ‘algorithmic accountability’ literature between performance and interpretability would then play directly into the tension, within law, between purpose/instrumentality and certainty-to-citizens.

Overall, the argument here is not compelling yet as a refutation of the idea of law implemented as software code.

As for purpose-binding and the law, I think this may well be the true crux. I wonder if Hildebrandt develops it later in the book. There are not a lot of good computer science models of purpose binding. Tschantz, Datta, and Wing (2012) do a great job mapping out the problem but that research program has not resulted in robust technology for implementation. There may be deep philosophical/mathematical reasons why that is so. This is an angle I’ll be looking out for in further reading.

References

Burrell, Jenna. “How the machine ‘thinks’: Understanding opacity in machine learning algorithms.” Big Data & Society3.1 (2016): 2053951715622512.

Gürses, Seda, and Joris Van Hoboken. “Privacy after the agile turn.” The Cambridge Handbook of Consumer Privacy. Cambridge Univ. Press, 2017. 1-29.

Hildebrandt, Mireille. “Location Data, Purpose Binding and Contextual Integrity: What’s the Message?.” Protection of Information and the Right to Privacy-A New Equilibrium?. Springer, Cham, 2014. 31-62.

Hildebrandt, Mireille. Smart technologies and the end (s) of law: novel entanglements of law and technology. Edward Elgar Publishing, 2015.

Koops, Bert-Jaap. “The trouble with European data protection law.” International Data Privacy Law 4.4 (2014): 250-261.

Nissenbaum, Helen. Privacy in context: Technology, policy, and the integrity of social life. Stanford University Press, 2009.

Tschantz, Michael Carl, Anupam Datta, and Jeannette M. Wing. “Formalizing and enforcing purpose restrictions in privacy policies.” 2012 IEEE Symposium on Security and Privacy. IEEE, 2012.