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 8: Intricate entanglements of law and technology

Mireille Hildebrandt

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


After exploring the ends of law in the previous chapter, we shall now relate law to technology, while reflecting on the nexus of philosophy of law and philosophy of technology. The question is whether modern law can afford to remain unaffected by the changing ICI, and if not, whether and how it should be transformed to sustain its identity. To answer these questions we need to investigate to what extent modern law has distinct characteristics that were triggered by the ICI of the printing press, because if so, such characteristics cannot be taken for granted in an environment that thrives on data-driven agency. To prepare the ground for an inquiry into the interrelation between law and technology we first explore different conceptions of both technology and law. This confronts the preliminary issue of technologically neutral law that concerns the mode of existence of modern law and asks the question whether law exists independently from its technological embodiment. In the next chapters, the question of how modern law could transform to sustain its identity will be addressed, by investigating the role of data protection law and the notion of legal protection by design. Law is an essentially contested concept that gives rise to competing conceptions. In this chapter we will group these conceptions under three headings that are equally pertinent for the concept of technology. Within the philosophy of technology we can discriminate between those who view technologies as mere tools to achieve a purpose, and those who believe that Technology has an autonomous, independent dynamic.

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