The Future of Legal Method
Hermeneutics stands for the theory and the practice of interpretation. Legal hermeutics refers to the key role of interpretation in modern positive law, provoked by the multi-interpretability of legal text. Such multi-interpretability is inherent in the flux of natural language and reinforced by the technologies of the written manuscript and the information and communcation infrastructure (ICI) of the printing press (see chapter 7 and chapter 8 of Smart Technologies and the End(s) of Law, and recently Jarvis on The Gutenberg Parenthesis).
Multi-interpretability and ambiguity are not bugs but features of modern positive law; they ensure the adaptiveness of legal norms and are directly connected with the contestability that is key to the Rule of Law and with the argumentative nature of law in constitutional democracies. Legal protection is an affordance of the ICI of the print era that grounds current law’s ‘mode of existence’. Legal protection as we know it is thus contingent upon a specific technological infrastructure that is now competing with a computational infrastrucure that has other affordances – with a potentially transformative effect on law and the Rule of Law.
Some may argue that hermeneutics is just one way of understanding legal method, next to, for instance, logic, game theory or behavioural economics. The multi-interpretability of legal norms, however, cannot be resolved by logic, game theoretical assumptions or behaviourist explanations. Attempts to colonise legal method by imposing logic, rational choice or the detection of cognitive biases cannot escape the need to interpret. They rather imply alternative means of interpretation, claiming to advance legal methodology beyond the literal, systematic, historical and teleological interpretations that have so far defined legal method. All these alternative methods, however, inevitably aim to offer ways to explain how legal norms are and/or should be interpreted; they cannot bypass the fundamental affordances of legal text (i.e. the need to interpret, enabling contestation, requiring argumentation).
The COHUBICOL project is built on the assumption that the type of legal protection that is offered by modern positive law must be preserved and/or enhanced, especially when introducing computational technologies in the making of law (by the legislature, the courts or public administration, or by those who enact contracts). We do not assume that current forms of legal protection are in any way ideal, sufficient or properly balanced. Instead, we acknowledge the fragile nature of legal protection and the need for checks and balances that ensure the contestability of legal interpretation and decision-making, precisely because ‘getting things right’ cannot be taken for granted.
Over the past five years, we have combined theoretical research into the foundations of computer science and legal scholarship with hands-on research into the introduction of legal technologies into legal practice. This has allowed us to develop a new legal hermeneutics, by mapping, comparing and assessing the affordances of different types of legal technologies. It shows how the use of such technologies may affect the interpretation of legal norms, thus affecting their legal effect and the legal protection they offer.
When preparing the final scientific report I was asked to sum up the project’s major achievements in terms of its Goals and Objectives, Novel Methodology, Top 5 Significant Achievements and Breakthrough Achievements. In this part of the website, I provide a more extensive report on the results of the project under those same headings.
This website hosts the rich diversity of the project’s outcomes. We invite legal scholars and computer scientists, as well as legal practitioners and developers of legal technologies to browse the content and to engage with the online webtool (the Typology of Legal Technologies), the bibliography, the Research Studies, Research Blogs and with the legal and computer science vocabularies - before deciding to invest in dedicated legal technologies and before reinventing the wheel when developing a research design to study them.