Abracadabra! Law, Language, and Agency in the Digital Real

Abstract

This article explores the question of automation — and the apparent “agency” of automation systems — as a problem for legal theory. It frames this inquiry by drawing certain parallels between magic, law and computer science that turn on the role of language in constituting “worlds” or domains of reality as well as (just) presenting information. With a focus on current developments in distributed ledger technology and AI, it sets out an initial, programmatic sketch of an emerging approach to the digitalisation of law and legal reality, which could be termed “digital realism”. This draws on various conceptual resources including Oxonian language philosophy, social ontology, institutional legal theory and Scandinavian Legal Realism. Together, these permit a view that explains the interaction of human and technological components in a complex and increasingly blended social fabric.