SCOTLIN's (En)lightening Talk with Dr Laurence Diver is now on YouTube.
The recorded talk can be accessed here.
This event was moderated by Dr Pauline McBride, Vrije Universities Brussel.
Abstract
Whenever you use a smartphone, website, or IoT device, your behaviour is determined to a great extent by a designer. Their software code defines from the outset what is possible, with very little scope to interpret the meaning of those ‘rules’ or to contest them. How can this kind of control be acceptable in a democracy? If we expect legislators to respect values of legitimacy when they create the legal rules that govern our lives, shouldn’t we expect the same from the designers whose code has a much more direct and pervasive rule over us?
Code may not be law (pace Lessig), but its pre-eminent ability to regulate behaviour and action means it is of primary interest to lawyers, and indeed to anyone concerned about the legitimacy of regulation within the democratic state. But how exactly does code regulate? What standards should we expect its design to meet in order to be democratically legitimate? And how can we engage with code development tools and processes to ensure Rule of Law values are properly represented?
In this talk, Laurence Diver sets out a theory of ‘digisprudence’, taken from his book Digisprudence: Code as Law Rebooted (Edinburgh University Press, 2022, open access). The book combines legal theory, philosophy of technology and programming practice to develop a new theoretical and practical approach to the design of legitimate software. Ultimately, legitimate code can only be realised by engaging with the programming languages, integrated development environments, and agile development practices that are the foundation of all modern software applications. And so, just as legal constitutions bind legislators in the forms of legal rules they can legitimately create, these technical foundations ‘constitute’ the regulative codethat programmers create. By targeting legal values at this foundational level, we might ultimately be able to ensure ‘compliance by design, by design’.
Bio:
Laurence is a cross-disciplinary researcher working at the intersection of computer science and legal philosophy. He is currently a postdoc at the Law, Science, Technology & Society (LSTS) research group at the Vrije Universiteit Brussel, working in COHUBICOL (Counting as a Human Being in the Era of Computational Law), an ERC Advanced Grant project investigating how legality and the rule of law can be sustained when law is ‘done’ by and through code and data. He holds PhD, LLM, and LLB degrees from the University of Edinburgh, as well as diplomas in legal practice and software development. His doctoral thesis sets out a theory of how regulative software can be designed legitimately, according to the standards expected of legal rules. It was published open access in 2022 by Edinburgh University Press, with the title Digisprudence: Code as Law Rebooted. Laurence co-founded the Journal of Cross-disciplinary Research in Computational Law (CRCL) with Mireille Hildebrandt in 2020, and since 2013 has been Technical Editor of SCRIPTed: A Journal of Law, Technology & Society, based at Edinburgh Law School. Prior to his doctoral studies he was variously a full stack web developer, a research assistant to both Burkhard Schafer (UK Copyright and Create Economy Centre (CREATe)) and Lilian Edwards (Strathclyde University), and a legal research assistant at the Scottish Law Commission. For more see laurencediver.net.
Pauline is a postdoctoral researcher with the COHUBICOL team, led by Mireille Hildebrandt, at VUB. She holds an LLB (Hons) in Jurisprudence, the Diploma in Legal Practice and a PhD in Law from the University of Glasgow. Her doctoral thesis, supervised by Ronan Deazley and Adam Tomkins, was awarded in 2016. The thesis considered whether browse wrap Terms of Use are enforceable under English law. Pauline’s interests relate to the intersection of law and technology, theories of legal interpretation, and the impact of artificial intelligence on law and legal practice. A Scottish solicitor, Pauline was in practice for some 20 years. latterly as a partner in the law firm, Brechin Tindal Oatts. She specialised in intellectual property and information technology, dealing with litigation as well as commercial contracts. She taught at the University of Glasgow (School of Law/Information Studies) and Queen’s University Belfast. Pauline is a member of CREATe, the government funded copyright hub and a member of the Law Society of Scotland’s Technology Committee. She holds a qualification from the University of Warwick after completing its intensive course ‘Introduction to Artificial Intelligence’ which explored basic methodologies for the design of artificial agents in complex environments.
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