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Tag: pragmatist legal theory

Beginning to read “Smart Technologies and the End(s) of Law” (Notes on: Hildebrandt, Smart Technologies, Sections 7.1-7.2)

I’m starting to read Mireille Hildebrandt‘s Smart Technologies and the End(s) of Law (2015) at the recommendation of several friends with shared interests in privacy and the tensions between artificial intelligence and the law. As has been my habit with other substantive books, I intend to blog my notes from reading as I get to it, in sections, in a perhaps too stream-of-consciousness, opinionated, and personally inflected way.

For reasons I will get to later, Hildebrandt’s book is a must-read for me. I’ve decided to start by jumping in on Chapter 7, because (a) I’m familiar enough with technology ethics, AI, and privacy scholarship to think I can skip that and come back as needed, and (b) I’m mainly reading because I’m interested in what a scholar of Hildebrandt’s stature says when she tackles the tricky problem of law’s response to AI head on.

I expect to disagree with Hildebrant in the end. We occupy different social positions and, as I’ve argued before, people’s position on various issues of technology policy appears to have a great deal to do with ones social position or habitus. However, I know I have a good deal to learn about legal theory while having enough background in philosophy and social theory to parse through what Hildebrandt has to offer. And based on what I’ve read so far, I expect the contours of the possible positions that she draws out to be totally groundbreaking.

Notes on: Hildebrandt, Smart Technologies, §7.1-7.2

“The third part of this book inquires into the implications of smart technologies and data-driven agency for the law.”

– Hildebrandt, Smart Technologies,p.133

Lots of people write about how artificial intelligence presents an existential threat. Normally, they are talking about how a superintelligence is posing an existential threat to humanity. Hildebrandt is arguing something else: she is arguing that smart technologies may pose an existential threat to the law, or the Rule of Law. That is because the law’s “mode of existence” depends on written text, which is a different technical modality, with different affordances, than smart technology.

My take is that the mode of existence of modern law is deeply dependent upon the printing press and the way it has shaped our world. Especially the binary character of legal rules, the complexity of the legal system and the finality of legal decisions are affordances of — amongst things — the ICI [information and communication infrastructure] of the printing press.

– Hildebrandt, Smart Technologies, p.133

This is just so on point, it’s hard to know what to say. I mean, this is obviously on to something. But what?

To make her argument, Hildebrandt provides a crash course in philosophy of law and legal theory, distinguishing a number of perspectives that braid together into an argument. She discusses several different positions:

  • 7.2.1 Law as an essentially contested concept (Gallie). The concept of “law” [1] denotes something valuable, [2] covers intricate complexities, that makes it [3] inherently ambiguous and [4] necessarily vague. This [5] leads interested parties into contest over conceptions. The contest is [6] anchored in past, agreed upon exemplars of the concept, and [7] the contest itself sustains and develops the concept going forward. This is the seven-point framework of an “essentially contested concept”.
  • 7.2.2 Formal legal positivism. Law as a set of legal rules dictated by a sovereign (as opposed to law as a natural moral order) (Austin). Law as a coherent set of rules, defined by its unity (Kelsen). A distinction between substantive rules and rules about rule-making (Hart).
  • 7.2.3 Hermeneutic conceptions. The practice of law is about the creative interpretation of (e.g.) texts (case law, statutes, etc.) to application of new cases. The integrity of law (Dworkin) constrains this interpretation, but the projection of legal meaning into the future is part of the activity of legal practice. Judges “do things with words”–make performative utterances through their actions. Law is not just a system of rules, but a system of meaningful activity.
  • 7.2.3 Pragmatist conceptions (Realism legal positivism). As opposed to the formal legal positivism discusses earlier that sees law as rules, realist legal positivism sees law as a sociological phenomenon. Law is “prophecies of what the courts will do in fact, and nothing more pretentious” (Holmes). Pragmatism, as an epistemology, argues that the meaning of something is its practical effect; this approach could be seen as a constrained version of the hermeneutic concept of law.

To summarize Hildebrandt’s gloss on this material so far: Gallie’s “essentially contested concept” theory is doing the work of setting the stage for Hildebrant’s self-aware intervention into the legal debate. Hildebrandt is going to propose a specific concept of the law, and of the Rule of Law. She is doing this well-aware that this act of scholarship is engaging in contest.

Punchline

I detect in Hildebrandt’s writing a sympathy or preference for hermeneutic approaches to law. Indeed, by opening with Gallie, she sets up the contest about the concept of law as something internal to the hermeneutic processes of the law. These processes, and this contest, are about texts; the proliferation of texts is due to the role of the printing press in modern law. There is a coherent “integrity” to this concept of law.

The most interesting discussion, in my view, is loaded in to what reads like an afterthought: the pragmatist conception of law. Indeed, even at the level of formatting, pragmatism is buried: hermeneutic and pragmatist conceptions of law are combined into one section (7.2.3), where as Gallie and the formal positivists each get their own section (7.2.1 and 7.2.2).

This is odd, because the resonances between pragmatism and ‘smart technology’ are, in Hildebrandt’s admission, quite deep:

Basically, Holmes argued that law is, in fact, what we expect it to be, because it is this expectation that regulates our actions. Such expectations are grounded in past decisions, but if these were entirely deterministic of future decisions we would not need the law — we could settle for logic and simply calculate the outcome of future decisions. No need for interpretation. Holmes claimed, however, that ‘the life of law has not been logic. It has been experience.’ This correlates with a specific conception of intelligence. As we have seen in Chapter 2 and 3, rule-based artificial intelligence, which tried to solve problems by means of deductive logic, has been superseded by machine learning (ML), based on experience.

– Hildebrandt, Smart Technologies, p.142

Hildebrandt considers this connection between pragmatist legal interpretation and machine learning only to reject it summarily in a single paragraph at the end of the section.

If we translate [a maxim of classical pragmatist epistemology] into statistical forecasts we arrive at judgments resulting from ML. However, neither logic nor statistics can attribute meaning. ML-based court decisions would remove the fundamental ambiguity of human language from the centre stage of the law. As noted above, this ambiguity is connected with the value-laden aspect of the concept of law. It is not a drawback of natural language, but what saves us from acting like mindless agents. My take is that an approach based on statistics would reduce judicial and legislative decisions to administration, and thus collapse the Rule of Law. This is not to say that a number of administrative decisions could not be taken by smart computing systems. It is to confirm that such decisions should be brought under the Rule of Law, notably by making them contestable in a court of law.

– Hildebrandt, Smart Technologies, p.143

This is a clear articulation of Hildebrandt’s agenda (“My take is that…”). It is also clearly an aligning the practice of law with contest, ambiguity, and interpretation as opposed to “mindless” activity. Natural language’s ambiguity is a feature, not a bug. Narrow pragmatism, which is aligned with machine learning, is a threat to the Rule of Law

Some reflections

Before diving into the argument, I have to write a bit about my urgent interest in the book. Though I only heard about it recently, my interests have tracked the subject matter for some time.

For some time I have been interested in the connection between philosophical pragmatism and the concerns about AI, which I believe can be traced back to Horkheimer. But I thought nobody was giving the positive case for pragmatism its due. At the end of 2015, totally unaware of “Smart Technologies” (my professors didn’t seem aware of it either…), I decided that I would write my doctoral dissertation thesis defending the bold thesis that yes, we should have AI replace the government. A constitution written in source code. I was going to back the argument up with, among other things, pragmatist legal theory.

I had to drop the argument because I could not find faculty willing to be on the committee for such a dissertation! I have been convinced ever since that this is a line of argument that is actually rather suppressed. I was able to articulate the perspective in a philosophy journal in 2016, but had to abandon the topic.

This was probably good in the long run, since it meant I wrote a dissertation on privacy which addressed many of the themes I was interested in, but in greater depth. In particular, working with Helen Nissenbaum I learned about Hildebrandt’s articles comparing contextual integrity with purpose binding in the GDPR (Hildebrandt, 2013; Hildebrandt, 2014), which at the time my mentors at Berkeley seemed unaware of. I am still working on puzzles having to do with algorithmic implementation or response to the law, and likely will for some time.

Recently, been working at a Law School and have reengaged the interdisciplinary research community at venues like FAT*. This has led me, seemingly unavoidably, back to what I believe to be the crux of disciplinary tension today: the rising epistemic dominance of pragmatist computational statistics–“data science”and its threat to humanistic legal authority, which is manifested in the clash of institutions that are based on each, e.g., iconically, “Silicon Valley” (or Seattle) and the European Union. Because of the explicitly normative aspects of humanistic legal authority, it asserts itself again and again as an “ethical” alternative to pragmatist technocratic power. This is the latest manifestation of a very old debate.

Hildebrandt is the first respectable scholar (a category from which I exclude myself) that I’ve encountered to articulate this point. I have to see where she takes the argument.

So far, however, I think here argument begs the question. Implicitly, the “essentially contested” character of law is due to the ambiguity of natural language and the way in which that necessitates contest over the meaning of words. And so we have a professional class of lawyers and scholars that debate the meaning of words. I believe the the regulatory power of this class is what Hildebrandt refers to as “the Rule of Law”.

While it’s true that an alternative regulatory mechanism based on statistical prediction would be quite different from this sense of “Rule of Law”, it is not clear from Hildebrandt’s argument, yet, why her version of “Rule of Law” is better. The only hint of an argument is the problem of “mindless agents”. Is she worried about the deskilling of the legal profession, or the reduced need for elite contest over meaning? What is hermeneutics offering society, outside of the bounds of its own discourse?

References

Benthall, S. (2016). Philosophy of computational social science. Cosmos and History: The Journal of Natural and Social Philosophy12(2), 13-30.

Sebastian Benthall. Context, Causality, and Information Flow: Implications for Privacy Engineering, Security, and Data Economics. Ph.D. dissertation. Advisors: John Chuang and Deirdre Mulligan. University of California, Berkeley. 2018.

Hildebrandt, Mireille. “Slaves to big data. Or are we?.” (2013).

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.

The FTC and pragmatism; Hoofnagle and Holmes

I’ve started working my way through Chris Hoofnagle’s Federal Trade Commission Privacy Law and Policy. Where I’m situated at the I School, there’s a lot of representation and discussion of the FTC in part because of Hoofnagle’s presence there. I find all this tremendously interesting but a bit difficult to get a grip on, as I have only peripheral experiences of actually existing governance. Instead I’m looking at things with a technical background and what can probably be described as overdeveloped political theory baggage.

So a clearly written and knowledgeable account of the history and contemporary practice of the FTC is exactly what I need to read, I figure.

With the poor judgment of commenting on the book having just cracked it open, I can say that the book reads so far as, not surprisingly, a favorable account of the FTC and its role in privacy law. In broad strokes, I’d say Hoofnagle’s narrative is that while the FTC started out as a compromise between politicians with many different positions on trade regulation, and while its had at times “mediocre” leadership, now the FTC is run by selfless, competent experts with the appropriate balance of economic savvy and empathy for consumers.

I can’t say I have any reason to disagree. I’m not reading for either a critique or an endorsement of the agency. I’m reading with my own idiosyncratic interests in mind: algorithmic law and pragmatist legal theory, and the relationship between intellectual property and antitrust. I’m also learning (through reading) how involved the FTC has been in regulating advertising, which endears me to the adjacency because I find most advertising annoying.

Missing as I am any substantial knowledge of 20th century legal history, I’m intrigued by resonances between Hoofnagle’s account of the FTC and Oliver Wendell Holmes Jr.’s “The Path of the Law“, which I mentioned earlier. Apparently there’s some tension around the FTC as some critics would like to limit its powers by holding it more narrowly accountable to common law, as oppose to (if I’m getting this right) a more broadly scoped administrative law that, among other things, allows it to employ skilled economist and technologists. As somebody who has been intellectually very informed by American pragmatism, I’m pleased to notice that Holmes himself would have probably approved of the current state of the FTC:

At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. (Holmes, 1897)

These are strong words from a Supreme Court justice about the limitations of common law! It’s also a wholehearted endorsement of quantified science as the basis for legal rules. Perhaps what Holmes would have preferred is a world in which statistics and economics themselves became part of the logic of law. However, he goes to pains to point out how often legal judgment itself does not depend on logic so much as the unconscious biases of judges and juries, especially with respect to questions of “social advantage”:

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.

What I find interesting about this essay is that it somehow endorses both the use of economics and statistics in advancing legal thinking and also endorses what has become critical legal theory, with its specific consciousness of the role of social power relations in law. So often in contemporary academic discourse, especially when it comes to discussion of regulation technology businesses, these approaches to law are considered opposed. Perhaps it’s appropriate to call a more politically centered position, if there were one today, a pragmatist position.

Perhaps quixotically, I’m very interested in the limits of these arguments and their foundation in legal scholarship because I’m wondering to what extent computational logic can become a first class legal logic. Holmes’s essay is very concerned with the limitations of legal logic:

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”

For Holmes, nature can be understood through a mathematized physics and is in this sense logical. But the law itself is not logical in the narrow sense of providing certainty about concrete propositions and the legal interpretation of events.

I wonder whether the development of more flexible probabilistic logics, such as those that inform contemporary machine learning techniques, would have for Holmes adequately bridged the gap between the logic of nature and the ambiguity of law. These probabilistic logics are designed to allow for precise quantification of uncertainty and ambiguity.

This is not a purely academic question. I’m thinking concretely about applications to regulation. Some of this has already been implemented. I’m thinking about Datta, Tschantz, and Datta’s “Automated Experiments on Ad Privacy Settings: A Tale of Opacity, Choice, and Discrimination” (pdf). I know several other discrimination auditing tools have been developed by computer science researchers. What is the legal status of these tools? Could they or should they be implemented as a scalable or real-time autonomous system?

I was talking to an engineer friend the other day and he was telling me that internally to Google, there’s a team responsible for building the automated system that tests all of its other automated systems to make sure that it is adherence to its own internal privacy standards. This was a comforting thing to hear and not a surprise, as I get the sense from conversations I’ve had with Googler’s that they are in general a very ethically conscientious company. What’s distressing to me is that Google may have more powerful techniques available for self-monitoring than the government has for regulation. This is because (I think…again my knowledge of these matters is actually quite limited) at Google they know when a well-engineered computing system is going to perform better than a team of clerks, and so developing this sort of system is considered worthy of investment. It will be internally trusted as much as any other internal expertise. Whereas in the court system, institutional inertia and dependency on discursive law mean that at best this sort of system can be brought in as an expensive and not entirely trusted external source.

What I’d like to figure out is to what extent agency law in particular is flexible enough to be extended to algorithmic law.