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Contribution to Book
Technology and the end of law
Facing the limits of the law (2009)
  • Mireille Hildebrandt
Abstract

In this chapter we will argue that if we do not embody legal norms in new techno-logical devices and infrastructures, we may reach the end of law. At the same time we will argue that if we do embody legal norms in technological devices we may still reach the end of the rule of law. In short, first, we argue that legal normativity in an information society needs translation into new technological devices to sus-tain the instrumental and protective normativity that is central to constitutional democracy, and second, we also argue that an unreflective translation of legal standards into technological artefacts is dangerous if technology is wrongly seen as only instrumental to human intention. To argue our point, we will use the example of an emerging technological infrastructure that will probably have far–reaching implications: the so–called ‘In-ternet of Things’, or ‘Ambient Intelligent Environment’. These implications con-cern the way we perceive things, the way we are present in this world, and the way we can live together with things and human beings (section 2). Instead of building only on schools of thought within law and legal theory, we will analyse the poten-tial consequences with the help of the philosophy of technology. Beyond naïve op-timism and ideological pessimism, the philosophy of technology has developed insightful ways to investigate the actual implications of specific technological de-vices and to speculate about what this means for our shared world (section 3). We will draw on, amongst others, the phenomenological inquiries of Don Ihde and the anthropological observations of Bruno Latour, and on the critical reconstruction of their work by Peter–Paul Verbeek. Verbeek provides a critical link to legal norma-tivity, because he assesses the morality of things. This in itself is enough to raise the eyebrows of many a reader, since modernity has taught us that things can only be instruments, while human beings – as Kant stipulated – should never be treated as pure instruments but always be respected as autonomous creatures. We hope that the reader will bear with us when we discuss the ‘Internet of Things’ in some detail, and explain how a philosophy of technology can enhance our understanding of the implications of this emerging technological infrastruc-ture. After this exploration beyond the limits of the law we will return to the legal field to investigate what legal normativity amounts to and how it compares to technological normativity (section 4). We will explain how both law and technol-ogy can be constitutive or regulative of human (and non–human) interaction, seek-ing to discern relevant similarities and differences. Serious investigation into the normativity of modern law, however, clarifies that contemporary law in Western societies is already technologically embodied, and we will describe the material embodiment of legal norms in written language and the consequences of the use of written language and written law for legal normativity (section 5). Finally, we will discuss the end of law from the two perspectives mentioned above (section 6). Firstly, we will argue that if we do not embody law into new technologies, the emergence of ‘Ambient Intelligence’ and the ‘Internet of Things’ will mean the end of law as an effective and legitimate instrument for constitu-tional democracy. Secondly, we will argue that this cannot mean that legal norms can be embodied in whatever way in any kind of technological device or infra-structure. We will relate a relational conception of law to a pluralist conception of technology and submit that both lawyers and technologists should stop taking for granted deterministic, causal conceptions of technology and voluntaristic concep-tions of law. Only in that case can we continue the process of reconstituting our shared world with a technologically embodied law that adequately installs and protects constitutional democracy.

Keywords
  • Ambient Intelligence,
  • Rule of law,
  • Technological Normativity
Publication Date
2009
Editor
Erik Claes, Wouter Devroe, Bert Keirsbilck
Publisher
Springer
Citation Information
Mireille Hildebrandt. "Technology and the end of law" HeidelbergFacing the limits of the law (2009)
Available at: http://works.bepress.com/mireille_hildebrandt/16/