The Reinvention of Legal Method

This is the English version of a short article that is forthcoming in the Italian legal review Questione Giustizia. The article starts with the work of one of the founding fathers of the digital humanities, Franco Moretti, the Italian literary historian who applied data-driven technologies to large text corpora in order to unearth patterns not visible to the naked human eye. He called the use of data analytics on literaty text 'distant reading', as opposed to 'close reading'. I discuss how the legal method of law-as-we-know-it has been grounded in close reading, demonstrating how the practice of text interpretation is constitutive for legal method and explains both the rise of modern positive law and the Rule of Law. This explanation is not a matter of technological determinism. Instead, it builds on the affordances of different ICT infrastructures, notably those of orality, the hand-written manuscript and the printing press. As we cannot assume that the affordances of code- or data-driven systems are similer to those of printed text, we will have to actively and deliberately assess the integration of different AI tools in law, paying keen attention to their design, provision and deployment. In that light I briefly present the 'Typology of Legal Technologies' as a method and mindset that should help legal practitioners and legal scholars to understand the normative implications of technical design decisions. Finally, I discuss a set of recent global and European guidelines for the use of AI by courts, law firms and other legal practitioners, Though these guidelines are well aware of the critical challenges of safeguarding the checks and balances of the Rule of Law, they seem to miss the point that deploying AI will reconfigure legal method. I call upon lawyers and legal scholars to 'get their act together' and make sure such checks and balances are built into the software layers that enable 'distant reading'. This is what, in other words, I have called 'legal protection by design'.