I have been impressed with Hildbebrandt’s analysis of the way particular technologies provide the grounds for different forms of institutions. Looking into the work of Don Ihde, who I gather is a pivotal thinking in this line of reasoning, I find the ‘postphenomenological’ and ‘instrumental realist’ position very compelling. Lawrence Diver’s work on digisprudence, which follows in this vein, looks generative.
In my encounters with with work, I have also perceived there to be gaps and discrepancies in the texture of the argument. There is something uncanny about reading material that is, perceptually, almost correct. Either I am in error, or it is.
One key difference seems to be about the attitude towards mathematical or computational formalism. This is chiefly, I sense, truly an attitude, in the sense of emotional difference. Scholars in this area will speak, in personal communication, of being “wary” or “afraid”. It’s an embodied reaction which orients their rhetoric. It is shared with many other specifically legal scholars. In the gestalt of these arguments, the legal scholar will refer to philosophies of science and/or technology to justify a distance between lived reality, lifeworld, and artifice.
Taking a somewhat different perspective, there are other ways to consider the relationship between formalism, science, and fact, even when taking seriously the instrumental realist position. It is noteworthy, I believe, that this field of scholarship is so adamantly Latourian, and that Latour has succeeded in anathematizing Bourdieu. I now see more clearly how Science of Science and Reflexivity, which was both a refutation of Latour and a lament of how the capture of institutional power (such as nation-state provided research funding) is a distortion to the autonomous and legitimizing processes of science, are really all one argument. Latour, despite the wrongness of so much of his early work which is now so widely cited, became a powerful figure. The better argument will only win in time.
Bourdieu, it should be noted, is an instrumental realist about science, though he may not have been aware of Ihde and that line of discourse. He also saw the connection between formalism and instrumentation which seems to elude the postphenomenologist legal scholars. Formalism and instrumentation are both a form of practical “automation” which, if we take the instrumental realists seriously (and we should) wind up enabling the body, understood as perception-praxis, to see and know in different ways. Bourdieu, who obviously has read Foucault but improves on him, accepts the perception-praxis view of the body and socializes it through the concept of the habitus, which is key to his analysis of the sociology of science.
But I digress. What I have been working towards is the framing of the questions in the title. To recap, Hildebrandt, in my understanding, makes a compelling case for how the printing press, as a technology, has had specific affordances that have enabled the Rule of Law that is characteristic of constitutional democracy. This Rule of Law, or some descendent of it, remains dominant in Europe and perhaps this is why, via the Brussells Effect, the EU now stands as the protector of individuals from the encroaching power of machine-learning powered technologies, in the form of Information and Communication Infrastructure (ICI).
This is a fine narrative, though perhaps rather specifically motivated by a small number of high profile regulatory acts. I will not suggest that the narrative overplays anybody’s hand; it is useful as a schematic.
However, I am not sure the analysis is so solid. There seem to be some missing steps in the historical analysis. Which brings me to my first question, which is: what about hypertext? Hypertext is neither the text of the printing press, nor is it a form of machine learning. It is instrumentally dependent on scientific and technological formalism: the HyperText Markup Language (HTML) and the HyperText Transfer Protocol are both formal standards, built instrumentally on a foundation of computation and networking theory and technology. And as a matter of contemporary perception and praxis, it is probably the primary way in which people engage in analysis of law and communication about the law today.
So, what about it? Doesn’t this example show a contradiction at the heart of this instrumental realist legal scholarship?
The follow-up question is about another class of digital “languages”: software source code. Python, for example. These, even more than HyperText, are formalism, with semantics guaranteed by a compiler. But these semantics are in a sense legislated via the Python Enhancement Proposal process, and of course any particular Python application or software practice may be designed and mandated through a wide array of institutional mechanisms before being deployed to users.
I would look forward to work on these subjects coming from Hildebrandt’s CUHOBICOL research group, but for the fact that these technologies (which may bely the ideology motivating the project!) are excluded by the very system of categories the project invokes to classify different kinds of regulatory systems. According to the project web site (written, like all web sites, in HyperText), there are three (only three?) kinds of normativity: text-driven normativity, based in the printing press; data-based normativity, the normativity of feedback once based in cybernetic engineering and now based in machine learning; and code-based normativity. The last category is defined in terms of code’s immutability, which is rather alien to anybody who writes software code and has to deal with how it changes all the time. Moreover, the project’s aim is to explore code-based normativity through blockchain applications. I understand that gesturing at blockchain technology is a nice way to spice up a funding proposal. But by seeing normativity in these terms, many intermediate technologies, and therefore a broad technical design space of normative technology, are excluded from analysis.