Vol. 1 No. 3 (2023): Code-driven Computational Law

Papers from the COHUBICOL Philosophers' Seminar 'The Legal Effect of Code-Driven "Law"?' (Brussels, November 2021).


  • The Structure and Legal Interpretation of Computer Programs

    James Grimmelmann

    This is an essay about the relationship between legal interpretation and software interpretation, and in particular about what we gain by thinking about computers and programmers as interpreters in the same way that lawyers and judges are interpreters. I wish to propose that there is something to be gained by treating software as another type of law-like text, one that has its own interpretive rules, and that can be analysed using the conceptual tools we typically apply to legal interpretation. In particular, we can usefully distinguish three types of meaning that a program can have. The first is naive functional meaning: the effects that a program has when executed on a specific computer on a specific occasion. The second is literal functional meaning: the effects that a program would have if executed on a correctly functioning computer. The third is ordinary functional meaning: the effects that a program would have if executed correctly and was free of bugs. The punchline is that literal and ordinary functional meaning are inescapably social. The notions of what makes a computer ‘correctly functioning’ and what makes a program ‘bug free’ depend on the conventions of a particular technical community. We cannot reduce the meaning and effects of software to purely technical questions, because although meaning in programming languages is conventional in a different way than meaning in natural languages, it is conventional all the same.

    Reply by Marieke Huisman, University of Twente.

  • Rules, judgment and mechanisation

    Mazviita Chirimuuta

    This paper is a philosophical exploration of the notion of judgment, a mode of reasoning that has a central role in legal practice as it currently stands. The first part considers the distinction proposed by Kant, and recently explored historically by Lorraine Daston, between the capacity to follow and execute rules and the capacity to determine whether a general rule applies to a particular situation (that is, judgment). This characterisation of judgment is compared with one proposed by Brian Cantwell Smith, as part of an argument that current AI technologies do not have judgment. The second part of the paper asks whether digital computers could in principle have judgment and concludes with a negative answer.

    Reply by William Lucy, University of Durham.