Recent algorithmic technologies have challenged law’s anthropocentric assumptions. In this article, we develop a set of theoretical tools drawn from new materialisms and the philosophy of information to unravel the complex intra-actions between law and computer code. Accordingly, we first propose a framework for understanding the enmeshing of law and code based on a diffractive reading of Barad’s agential realism and Simondon’s theory of information. We argue that once law and code are understood as material entities that intra-act through in-formation, (...) the concept of transduction allows us to trace how they push each other towards change. After developing the theoretical tools, we deploy them to make sense of how law and code have changed in response to increasing automation of decision-making and the appearance of unexplainable artificial intelligence (AI) code. Thus, we employ a case study to trace transformations of the right to explanation under the European data protection regulations. This provides the backdrop for our account of how law transduces into code (and vice versa) and a proving ground for our framework. (shrink)

Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. (...) These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. (shrink)

Law’s regulation of transboundary hydropower dams is a field of study brimming with paradoxes. The most notable being the paradox of a hydropower dam solving one problem and creating another. From a logical perspective, such a paradox would typically be viewed as an obstacle to be avoided because it brings everything to a standstill. But from a social perspective, paradoxes are not necessarily negative, as managing them also potentially enlightens and transforms planning systems. The latter perspective, which brings to analysis (...) a kind of dynamism, is employed in this text. In order to work out the reoccurring patterns under which law might productively make use of paradoxes, this text therefore proposes the methodological tools of exposing and building upon paradoxes. Exposing paradoxes sets out to make more visible some of the unthought limitations, self-deceptions and self-contradictions which arise in modern planning practices, while building upon paradoxes attempts to open up headways towards a more adequate conceptualisation of the solutions which law can offer. The overall intention here being to offer a Luhmannian-inspired theoretical framework which illuminates the value of social systems theory as a methodological tool for describing the communicative challenges facing law’s regulation of transboundary hydropower power dams. (shrink)