The adaptive nature of text-driven law

Authors

  • Mireille Hildebrandt Vrije Universiteit Brussel; Radboud University

Keywords:

technology-driven normativity, text-driven law, ambiguity, open texture, legal certainty, adaptiveness of positive law

Abstract

This article introduces the concept of ‘technology-driven normativities’, marking the difference between norms, at the generic level, as legitimate expectations that coordinate human interaction, and subsets of norms at specific levels, such as moral or legal norms. The article is focused on the normativity that is generated by text, fleshing out a set of relevant affordances that are crucial for text-driven law and the rule of law. This concerns the ambiguity of natural language, the resulting open texture of legal concepts, the multi-interpretability of legal norms and, finally, the contestability of their application. This leads to an assessment of legal certainty that thrives on the need to interpret, the ability to contest and the concomitant need to decide the applicability and the meaning of relevant legal norms. Legal certainty thus sustains the adaptive nature of legal norms in the face of changing circumstances, which may not be possible for code- or data-driven law. This understanding of legal certainty demonstrates the meaning of legal protection under text-driven law. A proper understanding of the legal protection that is enabled by current positive law (which is text-driven), should inform the assessment of the protection that could be offered by data- or code-driven law, as they will generate other ‘technology-driven normativities’.

Reply by Michael Rovatsos, Professor of Artificial Intelligence, University of Edinburgh.

Author Biography

Mireille Hildebrandt, Vrije Universiteit Brussel; Radboud University

Professor of 'Interfacing Law and Technology', Vrije Universiteit Brussel; Professor of 'Smart Environments, Data Protection and the Rule of Law', Radboud University

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Published

26-11-2020
Total downloads
499

Issue

Section

Online first

Categories

How to Cite

Hildebrandt, Mireille. 2020. “The Adaptive Nature of Text-Driven Law”. Journal of Cross-Disciplinary Research in Computational Law 1 (1). https://journalcrcl.org/crcl/article/view/2.