Today, we are publishing the final version of the Research Study in Text-Driven Law.

Download the PDF here: Research Study on Text-Driven Law (the HTML version will be updated soon)

The text has been awaiting its conclusions since the summer of 2021. Though we originally intended the conclusions to be written with the help of an LLM, Hildebrandt checked out GPT4 and was not deeply impressed with the result. 

Over the summer, she wrote the conclusions, notably including a brief reconfiguration of chapter 3, explaining each of the foundational legal concepts in terms of the others, culminating in a similar exercise for each set of legal concepts, explained in terms of the project’s three framing concepts: ‘mode of existence’, ‘affordance’ and ‘legal protection by design’. To give you one example of the latter, we quote the explanation of the concepts of legal effect, sources of law and jurisdiction (p. 128): 

The mode of existence of legal effect, the sources of law and jurisdiction is a ‘matter’ of institutional facts, that is – they are the performative effect of a dynamic network of written and spoken speech acts. The networked character of both natural language and its usage, on the cusp of intra- and extra linguistic reference, accords with the fact that legal norms and legal effect must always be situated in the whole of the sources of law that are applicable within a specific jurisdiction. In that sense language and language use – seen as acts of embodied human agents in a physical and institutional environment – afford jurisdiction and the sources of law as ‘enlanguaged affordances’. As Van den Hoven writes in chapter 3: ‘This notion [enlanguaged affordances] puts emphasis on the ways in which the affordances of the human ecological niche are interwoven with practices of speaking and writing.  Speech and writing allow us to engage with affordances across long timescales and allow us to think in abstract and institutional terms about the world. (…) The very nature of the web of meaning, as Taylor puts it, is to be “present as a whole in any one of its parts. To speak is to touch a bit of the web, and this is to make the whole resonate”.’ This is also what makes legal protection possible, ensuring that legal norms are not decided in splendid isolation but in the context of the sources of law that inform the relevant jurisdiction. As Van den Hoven clarifies, this entails that legal protection by design is not a matter of rejecting technologies other than those of the word, ‘rather it can be understood as a manifesto for the preservation of thoughtfulness in law’. Even if the legal protection as-we-know-it was not the intended result of a text-driven ICI, that ICI nevertheless has a certain design that is conducive to both the contestability and the closure that are key to jurisdiction, the sources of law and legal effect. In that sense legal protection by design is core to text-driven law, notably to its networked and systemic dimensions, as visible in the notions of ‘sources of law’ and ‘jurisdiction’.

In the final subsection of the Study, we highlight the idea of ‘effect on legal effect’, a way of framing the influence of legal technologies on the performative effect that is key to modern positive law. The notion of ‘effect on legal effect’ has become a key notion in the project, see notably the second Philosophers’ Seminar on Code-Driven Law.

Download the PDF here: Research Study on Text-Driven Law (the HTML version will be updated soon)