Technology and the End of Law
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1 Introduction In this chapter we will argue that if we do not embody legal norms in new technological 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 sustain 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 ‘Internet of Things’, or ‘Ambient Intelligent Environment’. These implications concern 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 potential consequences with the help of the philosophy of technology. Beyond naïve optimism and ideological pessimism, the philosophy of technology has developed insightful ways to investigate the actual implications of specific technological devices 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 normativity, 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 infrastructure. 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 technology can be constitutive or regulative of human (and non–human) interaction, seeking to discern relevant similarities and differences. Serious investigation into the normativity of modern law, however, clarifies that contemporary law in Western
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Mireille Hildebrandt
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
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