Posts Tagged - digisprudence

Digisprudence: about the book

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).

In effect, the choices made by the designer of a system impose rules on you. But those rules are not like legal rules, which you as a citizen are able to interpret the meaning of, or even ignore (think of the speeding example above). Computer code just imposes itself, often without any input from the citizen (‘user’). My argument is that this is a problem in a democracy. We tend to think that parliaments can’t make whatever laws they like – they are constrained in the first place by a constitution, and after-the-fact by the courts, who can consider whether a rule is legitimate after it is made.1 I think that, essentially, the same constraints should apply to code: designers and developers shouldn’t be able to make whatever rules they like, if these have an effect on the behaviour and actions of citizens. If we don’t accept arbitrary law, we shouldn’t accept arbitrary code.

Digisprudence charts this problem, setting up a parallel between unacceptable laws and unacceptable code. It then presents a set of design features, or digisprudential affordances, which can help code avoid imposing arbitrary control over its users. These features are about how the system relates to those interacting with it, and to the legal system more widely: choice, transparency (of operation, purpose, and provenance), delay, oversight, and contestability (by the user and via the courts).

Systems that include those features will be compatible with the underlying values of democracy, at least at a foundational level (they will still need to comply with other laws, such as intellectual property, data protection, etc.).

Finally, Digisprudence is a ‘reboot’ for three main reasons. First, because it takes the idea of code controlling us, a.k.a. ‘code as law’, and builds on it by analysing our immediate interactions and relationships with technology in greater depth than before. Second, because it uses longstanding theories from law as a platform to underpin and justify the digisprudential affordances. And third, because it opens the black box of how code is actually made, with a view to making a difference in practice.

What inspired you to research this area?

Although I have an academic background in law, I’ve been tinkering with programming since I was a kid in the late 90s. After undergraduate studies and a spell as a researcher at the Scottish Law Commission, I worked for a few years as a professional web developer. It became clear to me that I had a strange, and perhaps not entirely legitimate power over the interactions between users and the products I was creating. Even with the best of intentions it seemed odd to me that I – like millions of other developers around the world – had this ability to ‘legislate’ design rules that would control part of someone else’s behaviour.

More broadly, like a lot of people I’ve had the sense since the early 2000s – and especially with the rise of Facebook – that there’s something unethical about how technological architectures are so effective at structuring our behaviour and actions. Combined with my own experience as a developer, that was the seed of my interest in this area. Of course, technology ethics has been an academic concern for decades and in the past 20 or so years has become a really significant field. I thought that there was something useful to be said about the crossover between legal theory and technology design, especially given the very important differences between law and ethics.

What was the most exciting thing about this project for you?

I find the strand of legal research that deals in the ‘materiality’ of how law is done really interesting. Law is often quite an abstract field, even when it deals with real-life situations; questions of how rules become reality, through people’s actions or via the architectures that surround us – those are extremely interesting, and relevant not just to legal academics but to all of us as citizens.

How we analyse those questions when those architectures are digital, and created by commercial actors, is fascinating and important from a democratic perspective. It opens up a lot of really exciting and fundamental questions at the cross-over between law and computers.

Has your research in this area changed the way you see the world today?

I’ve come to realise just how often people assume that computers and Artificial Intelligence are essentially good things that can solve the world’s problems. This is the case for many in academia, civil society, and government (both domestic and international). There is a place for these technologies, of course, but the tendency to frame a problem in a way that leads to a technological solution is very common. This is problematic because it leads to the wrong kinds of solutions to the wrong kinds of problem.

In that respect I can say my own trajectory has changed over time: as a technology enthusiast myself, I can certainly identify an evolution in my own views. I have a deeper appreciation for the tension between the ‘solve the problem with the tools that I have’ mindset of the developer, and the ‘are these the correct tools, and is this even the correct problem?’ approach of the philosopher, ethicist, or lawyer. Having a foot in both camps has really helped me to understand how one side views the other.

What’s next for you?

I’m currently a postdoc in an ERC Advanced Grant project called Counting as a Human Being in the Era of Computational Law, or COHUBICOL. One can probably appreciate the overlap between the book and the focus of the project! Our work really deepens the ‘dual view’ I described above: we are a cross-disciplinary team, comprising lawyers and computer scientists. Our focus is on the deep assumptions of both fields, and how they complement and collide with one another. This is especially important when computer systems become more and more embedded in the practice of law, which is something relevant to all of us.

  1. One might recall the Johnson government’s attempt to prorogue the UK Parliament in 2019 – that was found to be illegal by the Supreme Court, and reversed (or more accurately, the court found that the prorogation had never happened in the first place). 

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Digisprudence: The Design of Legitimate Code

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.

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Interpreting the Rule(s) of Code: Performance, Performativity, and Production

L Diver, (2021) ‘Interpreting the Rule(s) of Code: Performance, Performativity, and Production’ (2021) 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.

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Computational Legalism and the Affordance of Delay in Law

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.

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Technological mediation vs. the Rule of Law

Model of a man climbing a ladder amongst wire cubes

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.

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Computational Legalism vs. Critical Code Studies

Screenshot of a slide showing 'Hello world' in various programming languages

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.

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Computational Legalism

Do not enter sign

(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).

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Normative Shortcuts and the Hermeneutic Singularity

Photo of tools

(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.

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Law as a User: Design, Affordance, and the Technological Mediation of Norms

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.

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The law as (mere) user: affordance and the mediation of law by technological artefacts

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]

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Digisprudence: developing a legal-theoretical approach to compliance by design

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.

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