Digifesto

One of the best ideas to come out of the social sciences is “double contingency”: the fact that two people engaged in communication are in a sense unpredictable to each other. That mutual unpredictability is an element of what it means to be in communication with another.

The most recent articulation of this idea is from Luhmann, who was interested in society as a system of communication. Luhmann is not focused on the phenomenology of the participants in a social system; in as sense, he looks like social systems the way an analyst might look at communications data from a social media site. The social system is the set of messages. Luhmann is an interesting figure in intellectual history in part because he is the one who made the work of Maturana and Varela officially part of German philosophical canon. That’s a big deal, as Maturana and Varela’s intellectual contributions–around the idea of autopoiesis, for example–were tremendously original, powerful, and good.

“Double contingency” was also discussed, one reads, by Talcott Parsons. This does not come up often because at some point the discipline of Sociology just decided to bury Parsons.

Double contingency comes up in interesting ways in European legal scholarship about technology. Luhmann, a dense German writer, is not read much in the United States, despite his being essentially right about things. Hildebrandt (2019) uses double contingency in her perhaps perplexingly framed argument for the “incomputability” of human personhood. Teubner (2006) makes a somewhat different but related argument about agency, double contingency, and electronic agents.

Hildebrandt and Teubner make for an interesting contrast. Hildebrandt is interested in the sanctity of humanity qua humanity, and in particular of privacy defined as the freedom to be unpredictable. This is an interesting inversion for European phenomenological philosophy. Recall that originally in European phenomenology human dignity was tied to autonomy, but autonomy depended on universalized rationality, with the implication that the most important thing about human dignity was that one followed universal moral rules (Kant). Hildebrandt is almost staking out an opposite position: that Arendtian natality, the unpredictableness of being an original being at birth, is the source of one’s dignity. Paradoxically, Hildebrandt argues that it humanity has this natality essentially and so claims that predictive technology might truly know the data subject are hubris, but also that the use of these predictive technologies is threat to natality unless their use is limited by data protection laws that ensure contestability of automated decisions.

Teubner (2006) takes a somewhat broader and, in my view, more self-consistent view. Grounding his argument firmly in Luhmann and Latour, Teubner is interested in the grounds of legally recognized (as opposed to ontologically, philosophically sanctified) personhood. And, he finds, the conditions of personhood can apply to many things besides humans! “Black box, double contingency, and addressability”, three fictions on which the idea of personhood depend, can apply to corporations and electronic agents as well as humans individually. This provides a kind of consistency and rationale for why we allow these kinds of entities to engage in legal contracts with each other. The contract, it is theorized, is a way of managing uncertainty, reducing the amount of contingency in the inherent “double contingency”-laden relationship.

Something of the old Kantian position comes through in Teubner, in that contracts and the law are regulatory. However, Teubner, like Nissenbaum, is ultimately a pluralist. Teubner writes about multiple “ecologies” in which the subject is engaged, and to which they are accountable in different modalities. So, the person, qua economic agent, is addressed in terms of their preferences. But the person, qua legal institutions, is addressed in terms of their embodiment of norms. The “whole person” does not appear in any singular ecology.

I’m sympathetic with the Teubnerian view here, perhaps in contrast with Hildebrandt’s view, the the following sense: while there may indeed be some intrinsic indeterminacy to an individual, this indeterminacy is meaningless unless it is also situated in (some) social ecology. However, what makes a person contingent visa vie one ecology is precisely that only a fragment of them is available to that ecology. The contingency to the first ecology is a consequence of their simultaneous presence within other ecologies. The person is autonomous, and hence also unpredictable, because of this multiplied, fragmented identity. Teubner, I think correctly, concludes that there is a limited form of personhood to non-human agents, but as these agents will be even more fragmented than humans, they are only persons in an attenuated sense.

I’d argue that Teubner helpfully backfills how personhood is socially constructed and accomplished, as opposed to guaranteed from birth, in a way that complements Hildebrandt nicely. In the 2019 article cited here, Hildebrandt argues for contestability of automated decisions as a means of preserving privacy. Teubner’s theory suggests that personhood–as participant in double contingency, as a black box–is threatened rather by context collapse, or the subverting of the various distinct social ecologies into a single platform in which data is shared ubiquitously between services. This provides a normative a universalist defense of keeping contexts separate (which in a different article Hildebrandt connects to purpose binding in the GDPR) which is never quite accomplished in, for example, Nissenbaum’s contextual integrity.

References

Hildebrandt, Mireille. “Privacy as protection of the incomputable self: From agnostic to agonistic machine learning.” Theoretical Inquiries in Law 20.1 (2019): 83-121.

Teubner, Gunther. “Rights of non‐humans? Electronic agents and animals as new actors in politics and law.” Journal of Law and Society 33.4 (2006): 497-521.