Smart Technologies and the End(s) of Law

Smart Technologies and the End(s) of Law

Novel Entanglements of Law and Technology

Mireille Hildebrandt

This timely book tells the story of the smart technologies that reconstruct our world, by provoking their most salient functionality: the prediction and preemption of our day-to-day activities, preferences, health and credit risks, criminal intent and spending capacity. Mireille Hildebrandt claims that we are in transit between an information society and a data-driven society, which has far reaching consequences for the world we depend on. She highlights how the pervasive employment of machine-learning technologies that inform so-called ‘data-driven agency’ threaten privacy, identity, autonomy, non-discrimination, due process and the presumption of innocence. The author argues how smart technologies undermine, reconfigure and overrule the ends of the law in a constitutional democracy, jeopardizing law as an instrument of justice, legal certainty and the public good. Finally, the book calls on lawyers, computer scientists and civil society not to reject smart technologies, explaining how further engaging these technologies may help to reinvent the effective protection of the rule of law.

Chapter 7: The ends of law: address and redress

Mireille Hildebrandt

Subjects: law - academic, internet and technology law, legal philosophy


The third part of this book inquires into the implications of smart technologies and data-driven agency for the law. There are two good reasons for this. First, an investigation of the threats detected in the onlife world clarifies that a number of fundamental rights are at stake. As argued in the chapter on agency and privacy in Japan, it is crucial that these issues are not only discussed in terms of ethics and duties, but also in terms of enforceable individual rights. In Chapter 9 I will address this point by means of an inquiry into the fundamental right to data protection, as stipulated in the Charter of Fundamental Rights of the European Union (CFREU). This allows me to demonstrate how this particular right overlaps with some of the other rights that are at stake, while enabling an approach that is specifically relevant to the implications of data-driven intelligence. The second reason concerns the question of how pre-emptive infrastructures affect the mode of existence of modern law and what conception of law we need to cope with the challenges it faces. By mode of existence I mean nothing more than the way that law exists, since it obviously does not exist in the same way as a table (which is a matter of matter and function and form and meaning), or in the same way as a religion or the economy (which generates functions and forms and meaning while developing complex relationships with tables and candles and manufacturing and prayers).

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