Law as Information in the Era of Data‐Driven Agency
| Date | 01 January 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12165 |
| Published date | 01 January 2016 |
| Author | Mireille Hildebrandt |
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THE
MODERN LAW REVIEW
Volume 79 January 2016 No. 1
Law as Information in the Era of Data-Driven Agency
Mireille Hildebrandt∗
This contribution introduces the mathematical theory of information that ‘informs’ computer
systems, the internet and all that has been built upon it. The aim of the author is to invite lawyers
to reconsider the grammar and alphabet of modern positive law and of the Rule of Law, in the
face of the alternative grammar and alphabet of a data-driven society.Instead of either embracing
or rejecting the technological transitions that reconfigure the operations of the law, this article
argues that lawyers should collaborate with the computer scientists that engineer and design the
affordances of our new onlife world.This is cr ucial if wewant to sustain democratic participation
in law-making, contestability of legal effect and transparency of howcitizens may be manipulated
by the invisible computational backbone of our rapidly and radically changing world.
Three umpires of major league baseball were debating how to call balls and
strikes, ‘I calls ‘em the way they is,’ the first said. ‘Me,’ said the second, ‘I
calls ‘em the way I sees ‘em.’ ‘Naw,’ declared the third, who had been around
the longest, ‘they ain’t nothin’ till I calls ‘em.’
Marshall Sahlins, 20021
If men define situations as real, they are real in their consequences.
Thomas and Thomas, 19282
If data-driven agents define a situation as real, it is real in its consequences.
Hildebrandt, 20113
∗Research Professor of Interfacing Law and Technology at the Faculty of Law and Criminology,Free
University Brussels; Chair of Smart Environments, Data Protection and the Rule of Law, Science
Faculty, Radboud University Nijmegen. I thank the Modern Law Review for the invitation to give
the Chorley Lecture, and my colleagues in law (Brussels) and computer science (Nijmegen) for
hosting a hybrid scholar loyal to the wonder of science and the reflective rigour of the humanities.
This also goes for my former colleagues at the Erasmus School of Law in Rotterdam.
1 M. Sahlins, Waiting for Foucault, Still (Chicago: Prickly Paradigm Press, 2002) 8. The quotation
is followed by ‘Technically, according to the Cours de gymnastique generale, this is known as
the “arbitrary character of the umpires sign”’, and can be found under the heading of ‘Post-
Structuralism’. How ironic that I am not using this quote ironically.
2 W. I. Thomas and D. S. Thomas, The Child in America (New York: Knopf, 1928) 572, popularised
by R. K. Merton, ‘The Self-Fulfilling Prophecy’ (1948) 8 The Antioch Review 2, 193.
3 A modulation of ‘if machines define a situation as real, it is real in its consequences’ in M.
Hildebrandt, ‘Who needs stories if you can get the data? ISPs in the era of big number crunching’
(2011) Philosophy and Technology 24, 379.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited. (2016) 79(1) MLR 1–30
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Law as Information
PREFATORY REMARKS
The Chorley Lecture has provided me with the wonderful opportunity to ad-
dress the informational nature of the law from the double perspective of both
law and information theory. This is not merely an intellectual enterprise. I
believe that, as lawyers, we should get our act together. The rapid transfor-
mations of both our life world and the systems and institutions that shape us,
even as we shape them, are game changers for the g rammar of modern law.
I am somewhat apprehensive to be addressing these issues as they are in full
flux. It is not easy to address a moving target. The only way to make a hit is
to anticipate the vector of change, to predict the course of the target and to
then move forward and strike. Luckily, this is not my task as I do not intend
to strike down the upcoming ‘onlife world’, the new everyday where anything
offline is turned online, while the infrastructures that supposedly make life easy,
business more effective and society less vulnerable are saturated with artificial,
data-driven agency. Nevertheless, I believe there is an urgent need for lawyers
and computer scientists to be on speaking terms, learning enough of each
other’s language to understand what concerns each of us.
Lawyers have a ‘natural’ inclination to claim that things are not ‘really’ differ-
ent and that current legal techniques are flexible enough to cope with drones,
smart fridges, remotely controlled energy usage, and other exotic operations. I
beg to disagree. The deep structure of modern law has been built on the affor-
dances of the printing press: on the linearity and sequential processing demands
of written text, which evokes the need for interpretation, reflection and contes-
tation. The study and practice of law have thus been focused on establishing the
meaning of legal norms and their applicability to relevant human interactions,
while establishing the meaning of human action in the light of the applicable
legal norms. Data-driven agency builds on an entirely different grammar, its
building blocks are information and behaviour, not meaning and action. We
need to face the possibility that this will drain the life from the law, turning
it into a handmaiden of governance (that fashionable term meaning anything
to anybody), devouring the procedural kernel of the Rule of Law that enables
people to stand up for their rights against big players, whether governmental or
corporate or otherwise. In this article I will test the interface between law and
data-driven agency by understanding law in terms of information, assuming that
we cannot take for granted that law will interact with an artificially intelligent
ICT infrastructure (ICTI) in the same way as it has interacted with written and
printed text (our previous and current ICTI). By framing law as information,
I hope to convince the reader that technological infrastructures matter, require
our attention and must somehow be brought under the Rule of Law. This
will not be business as usual, as it will require rethinking and redesigning the
architecture of the Rule of Law.
The first section introduces the issue of law as information in the era of
data-driven agency. This entails an explanation of what is meant by some of the
key terms of the debate, notably data-driven agency, the onlife world and ma-
chine learning. The idea of law as information in a world that is saturated with
artificial intelligence will be discussed under the heading of ‘law’s new mode of
2C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(1) MLR 1–30
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