Posts Tagged - digisprudence

I was amazed (and honoured) that my paper ‘Interpreting the Rule(s) of Code’ is the focus of this week’s episode of the influential Future of Coding podcast.

Read More

In February 2023 I was invited to a research seminar at the University of Helsinki’s Legal Tech Lab.

The title of my talk was “Legal Technologies and the Effect on Legal Effect”. The talk was about the concept of ‘legal effect’, which is core to the nature of what law is and how it works, and how legal technologies might have an impact on that concept.

It connects in with all the theoretical work I’ve been doing with COHUBICOL, with a practical and forward-looking twist: how do actual technologies and digital systems mediate the force and the nature of law? This research interest goes right back to the first publication from my PhD, ‘Law as a User: Design, Affordance, and the Technological Mediation of Norms’.

Read More

In 2022 I was honoured to be invited to speak about my book Digisprudence to the Scottish Law and Innovation Network (SCOTLIN), as part of their series of (En)lightening talks. My colleague Pauline McBride was kind enough to introduce the talk and to moderate the discussion afterwards.

Here’s a recording:

Read More

Written for the Edinburgh University Press blog (Dec 2021)

Tell us a bit about your book

Digisprudence is about the technologies that govern our behaviour, and how they can be designed in ways that are compatible with democracy. We’ve probably all had that feeling of frustration when using our smart phone or a website, that we’re in some sense being controlled or manipulated in what we are able to do. That might seem unimportant, but technology is powerful: imagine a car that won’t go faster than 70mph, no matter how hard you accelerate (even to avoid an accident or to get someone to hospital). Or think about the convoluted process you have to go through to delete your Facebook account, especially if you want it to happen immediately (this could have significant implications in the case of doxxing, or other forms of online harassment).

Read More

L Diver, (2021) ‘Digisprudence: The Design of Legitimate Code’ 13(2) Law, Innovation and Technology. View online

Abstract

This article introduces digisprudence, a theory about the legitimacy of software that both conceptualises regulative code’s potential illegitimacies and suggests concrete ways to ameliorate them. First it develops the notion of computational legalism – code’s ruleishness, opacity, immediacy, immutability, pervasiveness, and private production – before sketching how it is that code regulates, according to design theory and the philosophy of technology. These ideas are synthesised into a framework of digisprudential affordances, which are translations of legitimacy requirements, derived from legal philosophy, into the conceptual language of design. The ex ante focus on code’s production is pivotal, in turn suggesting a guiding ‘constitutional’ role for design processes. The article includes a case study on blockchain applications and concludes by setting out some avenues for future work.

Read More

L Diver, (2021) ‘Interpreting the Rule(s) of Code: Performance, Performativity, and Production’ MIT Computational Law Report. View online

Abstract

Software code is built on rules, and the way it enforces them is analogous in certain ways to the philosophical notion of legalism, under which citizens are expected to follow legal rules without thinking too much. The ontological characteristics of code – its opacity, immutability, immediacy, pervasiveness, private production, and ‘ruleishness’ – amplify its ‘legalistic’ nature far beyond what could ever be imposed in the legal domain, however, raising significant questions about its legitimacy as a regulator. This contribution explores how we might critically engage with the text of code, rather than just the effects of its performance, in order to temper these extremes with the reflexive wisdom of legality. This means contrasting the technical performance of code with the social performativity of law, demonstrating the limits of viewing the latter as merely a regulative ‘modality’ that can be easily supplanted by code. The latter part of the article considers code and the processes and tools of its production from the perspective of legality, drawing on theories of textual interpretation, linguistics, and critical code studies. The goal is to consider to what extent it might be possible to guide that production, in order to ameliorate an ingrained ‘legalism’ that is democratically problematic.

Read More

L Diver, (2020) ‘Computational Legalism and the Affordance of Delay in Law’ 1(1) Journal of Cross-disciplinary Research in Computational Law. View online

Abstract

Delay is a central element of law-as-we-know-it: the ability to interpret legal norms and contest their requirements is contingent on the temporal spaces that text affords citizens. As computational systems are further introduced into legal practice and application, these spaces are threatened with collapse, as the immediacy of ‘computational legalism’ dispenses with the natural ‘slowness’ of text.

Read More

Presented at the conference on the Philosophy of Human-Technology Relations (PHTR), November 2020

Abstract

In a constitutional democracy, the operation of law relies on the multi-interpretability of language and the possibility of contesting meaning. These capabilities are assumed in the contemporary structures of rule creation, interpretation, adjudication, and enforcement. When new technologies are introduced into those structures, such as AI/machine learning or self-executing rules (e.g. smart contracts), new mediations necessarily enter the frame.

Read More

Presented in the ‘slow science’ series at LSTS, the ideas in this presentation were the basis for the paper Interpreting the Rule(s) of Code: Performance, Performativity, and Production (2021)

Abstract

Computational legalism refers to the ontological features of digital systems that make it impossible for humans to see, interpret, and contest the rules that they contain and impose. When software code structures our behavioural possibilities, it forces us to act ‘legalistically’, that is, like automatons: we don’t think, but simply act in accordance with the structures laid down by the code, because we have no other choice (unless the system’s designer has elected to give us one). This paper/discussion seeks to view and challenge computational legalism through the lens of critical code studies, the explication of a digital system’s meaning by the interpretive or hermeneutic analysis of its text, i.e. its source code. These texts play a fundamental role in the constitution of all digital systems, and so any analysis cannot be complete without at least some engagement at that level. Looking at digital systems from this angle is relevant to real-world processes of designing and producing code, and might help us to identify normative possibilities for combatting the vices of computational legalism.

Read More

(Originally posted on the COHUBICOL research blog.)

This post summarises computational legalism, a concept I developed in my doctoral thesis that is borne of the parallel between code’s ruleishness – its reliance on strict, binary logic instead of interpretable standards – and its conceptual equivalent in the legal realm, known as legalism (more specifically the strong variant of the latter).

Read More

(Originally posted on the COHUBICOL research blog.)

Legal normativity is an important theme for COHUBICOL, particularly how its nature might change when the medium that embodies it moves from text to code- and data-driven systems. Normativity is a useful concept in thinking about the role of law and of legal systems; it refers to the purposive force of (textual) legal instruments and rulings that, subject to their interpretation and potential contestation, require citizens to act (or not act) in certain ways.

Read More

L Diver, (2018) ‘Law as a User: Design, Affordance, and the Technological Mediation of Norms’ 15(1) SCRIPTed 4. View online

Abstract

Technology law scholars have recently started to consider the theories of affordance and technological mediation, imported from the fields of psychology, human-computer interaction (HCI), and science and technology studies (STS). These theories have been used both as a means of explaining how the law has developed, and more recently in attempts to cast the law per se as an affordance. This exploratory paper summarises the two theories, before considering these applications from a critical perspective, noting certain deficiencies with respect to potential normative application and definitional clarity, respectively.

Read More

Presented at TRILcon, University of Winchester, April 2018. This paper was later published as Law as a User: Design, Affordance, and the Technological Mediation of Norms.

Abstract

Technology law scholars have recently begun to consider the design studies concept of affordance, bringing it into the legal fold both as a means to explain how the law has developed the way it has,[1] and more recently in attempts to cast the law per se as an affordance.[2]

Read More

Presented at BILETA 2018, University of Aberdeen.

Abstract

The literature concerning the regulation of technology is rightly beginning to focus more on ex ante, or ‘by design’, enforcement. Despite almost two decades having passed since Lawrence Lessig’s Code was first published, the acceptance that ‘code’ (as opposed to law) has the power to regulate, and an appreciation of that power, is still developing, particularly since it requires a level of interdisciplinary openness to which the conservative legal world is occasionally hostile.

Read More