BOOK REVIEW

SMART TECHNOLOGIES
AND THE END(S) OF LAW:
NOVEL ENTANGLEMENTS OF LAW AND
TECHNOLOGY
Mireille Hildebrandt
Edward Elgar Publishing, 2015
296 pages, $135.00
ISBN-10: 1-84980-876-7
ISBN-13: 978-1-84980-876-7
(hardcover)

ON LEGAL REPLICANTS

Kyle McGee*

I. DO ANDROIDS DREAM OF LEGAL NORMATIVITY?

Don’t be too quick to respond that electronic agents, cloud-linked smart
appliances, and digitally tethered things have no designs on law’s redundancy.
Through probabilistic inference and the subtle displacement or diversion of
intention, such entities, distributed across a host of material embodiments,
actively construct a responsive environment capable not only of coercing be-
havior but also of reorganizing the field of possible human action in ways that
render the clean division of legal and technological normativity problematic,
or impossible. And insofar as law is one of the principal means through which
selfhood and autonomy are established and safeguarded, the intensification of
ambient nonhuman intelligence driving legal and technological normativity
closer together presents cause for concern about just how twenty-first century
subjects will come to understand themselves, with significant implications for
the future of the law’s sacred institutions—from crime, contract, and property
to the underlying principles of human agency, equality, and dignity. The rea-
son is deceptively simple, and it is to Mireille Hildebrandt’s great credit to
have thoughtfully formulated it as a key principle of legal theory: the law is
not technologically neutral.

*Practitioner, Wilmington, Delaware. The author warmly thanks Scott Veitch and Emilios
Christodoulidis for helpful commentary on an earlier draft.

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Smart Technologies and the End(s) of Law is a profound invitation to

reflect on the entanglements of law and technology as well as the increasingly
foreseeable prospect of a world of autonomic governance. Hildebrandt, a
leading voice in the discourse on intelligent computing, privacy rights, and
what is called “techno-regulation”—broadly, the regulation of human behavior
by means of technologies1—offers an expansive, transdisciplinary overview of
key academic debates and of recent critical developments in the practices of
private industry and legal regulation alike. While quite helpful to the reader,
however, this aspect of the book is ultimately mere window dressing for its
true ambition: the challenge of developing a rational, empirically grounded,
theoretical framework for evaluating and intervening in the overlapping tra-
jectories of legal and technological beings as they conflict, coordinate, and
generally reshape the world.
Penned in part in a remote cottage on the outskirts of Silicon Valley, the
book dramatizes the complex, uncertain relationship between law and tech-
nology suggested by its composition site. It is marked at once by a skeptical
distance regarding the narratives of progress and modernization that accom-
pany technological breakthroughs and an undeniable proximity reflected in its
fascination with advances in artificial intelligence, morphological (non-rule-
based) computation, and the Big Data-driven advent of what its author perspi-
caciously names the “digital unconscious.”2 Indeed, this paradox structures the
core argument. Law as we know it—that is, law as a distinctive regime of
truth—is existentially threatened by the incursion of nonhuman intelligence
into the domain of human regulation. At stake are key values that, Hildebrandt
contends, must be defended: personhood, privacy, and individual autonomy.
Yet these values cannot be preserved through traditional legal resources alone.
Instead, emerging technologies—the very technologies posing the threat—
must be mobilized to overcome that threat. The promise of smart technologies
lies here, in their as yet unfathomed capacity to sustain, and perhaps enrich,
legality as an irreducible regime of truth worth defending.3
The argument’s envoi is embedded in a vignette of the “scientifiction”
genre, as described in Bruno Latour’s enduring classic study of technological

1. Techno-regulation participates in but is not reducible to what Hildebrandt calls the “regu-
latory paradigm,” marked by its tendency to reduce law to one of several interchangeable means
for governing behavior. MIREILLE HILDEBRANDT, SMART TECHNOLOGIES AND THE END(S) OF
LAW 165 (2015) [hereinafter SMART TECHNOLOGIES]. The regulatory paradigm includes various
strands of thought, some of which have little to do with technology in the ordinary sense—for
example, behavioral economics—but which all share a desire to organize human behavior in the
most efficient and effective way. High-profile examples of such thought include, for example,
RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH,
WEALTH, AND HAPPINESS (2008); and LAWRENCE LESSIG, CODE: VERSION 2.0 (2006). Certain
assumptions on which techno-regulatory thought rely are examined in Ronald Leenes, Framing
Techno-Regulation: An Exploration of State and Non-State Regulation by Technology, 5
LEGISPRUDENCE 143 (2011); Katja de Vries & Niels van Dijk, A Bump in the Road: Ruling Out
Law from Technology, in HUMAN LAW AND COMPUTER LAW: COMPARATIVE PERSPECTIVES
(Mireille Hildebrandt & Jeanne Gaakeer eds., 2013). However, the literature is vast and growing.
2. SMART TECHNOLOGIES, supra note 1, at 40.
3. Id. at 183–85.

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progress gone awry, Aramis.4 In Hildebrandt’s quasi-imaginary tale, we follow

Diana, a savvy corporate functionary, as she navigates between her profes-
sional and personal lifeworlds, both of which are suffused with artificial be-
ings to which—or to whom—she has delegated a number of important respon-
sibilities.5 Her personal digital assistant (PDA), named Toma, accompanies her
on every step of the way as a shadow mind cogitating and making decisions on
Diana’s behalf about the mundane predicaments she encounters. Toma, who is
distributed across Diana’s phone, car, home, and office, draws on and reports
into an expansive individual profile about Diana, has access to similar profiles
about others known and unknown to Diana, and maintains communications
with entities interested in Diana’s behavior, such as insurance companies,
public safety outfits, and the PDAs of her contacts and colleagues. Toma rec-
ognizes patterns in the behavioral database and draws inferences about Diana’s
mood, health, preferences, finances, and other characteristics, deciding, among
other things, that she is presently too nervous to drive safely, that the settings
of her gym’s equipment should be configured in a particular way to suit her
likely exercise needs, and that her ex-husband’s call should not be passed
through to her phone right now because Diana seems exhausted, and the data
available to Toma suggest that the call is not urgent.6
These examples highlight, among other things, a critical property of smart
technologies in general: their ability to preempt, interrupt, or redirect the intent
of their users. For example, rather than facilitating Diana’s decision whether to
answer her ex-husband’s call, Toma precludes her from contemplating the
question in the first place. Toma—not Diana—feels that taking the call is not
in Diana’s best interests. If machines are empowered to execute on our behalf
not only menial, laborious tasks, but also cognitive and emotive work—what
we have come to accept, correctly or not, as the indispensable criteria of
properly human life—the fabric of experience and the composition of our
lifeworlds is bound to change. The design of smart technologies and the com-
munications infrastructure they require will play a material role in recom-
posing those worlds, as they have, indeed, already begun to do. Sci-fi master
Philip K. Dick, in a prescient 1974 address, observed that, “[O]ur environ-
ment, and I mean our man-made world of machines, artificial constructs, com-
puters, electronic systems, interlinking homeostatic components—all of this is
in fact beginning more and more to possess what the earnest psychologists fear
the primitive sees in his environment: animation.”7 Consequently, “[r]ather

4. BRUNO LATOUR, ARAMIS OR THE LOVE OF TECHNOLOGY ix (Catherine Porter trans.,

Harvard Univ. Press 1996) (1993) (describing “scientifiction” as a “hybrid genre” that, far from
“taki[ng] . . . liberties with reality,” allows its practitioner to “restore freedom to all the realities
involved before any one of them could succeed in unifying the others”). Hildebrandt’s scientific-
tion is far more limited than Latour’s, but shares the aim of preventing the premature resolution of
the question whether and how nonhuman artifacts may structure social relationships of various
kinds.
5. SMART TECHNOLOGIES, supra note 1, at 1–7.
6. Id.
7. PHILIP K. DICK, The Android and the Human, in THE SHIFTING REALITIES OF PHILIP K.
DICK: SELECTED LITERARY AND PHILOSOPHICAL WRITINGS 183 (Lawrence Sutin ed., 1995).

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than learning about ourselves by studying our constructs, perhaps we should

make the attempt to comprehend what our constructs are up to by looking into
what we ourselves are up to.”8 Hildebrandt’s book enthusiastically takes up
Dick’s suggestion in a juridical key, offering, among a great many other
things, an impassioned plea for greater involvement of lawyers in the design
and oversight of smart technologies to ensure that legal rights (e.g., those
relating to data protection) and broader legal values are taken into account in
the construction of those technologies.9
But we should not rush to the prescriptive payoff, which is, in fact, rather
less interesting than some of the more basic theoretical elements crafted in this
compelling book. Modern law grew up in a culture of print and remains firmly
wedded to the medium of text.10 Drawing on historiographical, literary, and
media-theoretical accounts of print culture, such as Ricoeur, McLuhan, and
Eisenstein offer, as well as work in cognitive science, Hildebrandt reminds us
that the technology of written text has transformed both our external envi-
ronments and our minds. The written word has reconfigured virtually every
aspect of civilization by inserting distance between author, text, and reader,
thereby allowing abstract thought divorced from a specific referent11 as well as
the reorganization and systematization of knowledge;12 leveraging the plas-
ticity of the brain to generate cognitive breakthroughs;13 and promoting the
emergence of larger human societies and centralized political rule,14 the writ-
ten word has reconfigured virtually every aspect of civilization. As Hilde-
brandt expertly shows, a number of attributes of legality, as she understands it,
have been inherited more or less directly from the affordances (that is, the
constraints and opportunities made available by a particular technology) pecu-
liar to the printing press: the discursive contestability of law, for example.15

8. Id. at 184.
9. See SMART TECHNOLOGIES, supra note 1, at 214–26 (on “legal protection by design”).
10. An earlier version of this argument appeared in Mireille Hildebrandt, A Vision of
Ambient Law, in REGULATING TECHNOLOGIES: LEGAL FUTURES, REGULATORY FRAMES AND
TECHNOLOGICAL FIXES 175 (Roger Brownsword & Karen Yeung eds., 2008).
11. SMART TECHNOLOGIES, supra note 1, at 48; see also PAUL RICOEUR, INTERPRETATION
THEORY: DISCOURSE AND THE SURPLUS OF MEANING (1976); Paul Ricoeur, The Model of the
Text: Meaningful Action Considered as a Text, 5 NEW LITERARY HIST. 91 (1973).
12. SMART TECHNOLOGIES, supra note 1, at 48; see also ELISABETH L. EISENSTEIN, THE
PRINTING REVOLUTION IN EARLY MODERN EUROPE (2d ed., 2005).
13. SMART TECHNOLOGIES, supra note 1, at 49; see also CATHERINE MALABOU, PLASTICITY
AT THE DUSK OF WRITING: DIALECTIC, DESTRUCTION, DECONSTRUCTION (Carolyn Shread trans.,
Columbia Univ. Press 2010) (2005); MARYANNE WOLF, PROUST AND THE SQUID: THE STORY
AND SCIENCE OF THE READING BRAIN (2008).
14. SMART TECHNOLOGIES, supra note 1, at 49–50; see also EISENSTEIN, supra note 12;
MARSHALL MCLUHAN, UNDERSTANDING MEDIA: THE EXTENSIONS OF MAN (1964).
15. This attribute plays a crucial role in Hildebrandt’s arguments concerning the dangers of
preemptive computing for the Rule of Law, and she spends considerable time exploring the effects
of its displacement on privacy and identity (imposing invisible and undisclosed constraints on the
freedom to construct a personal identity), individual autonomy (undermining the reflexivity that
allows subjects to change their preferences by catering to their established preferences), discrimi-
natory practices (which can be buried in algorithmic processes), the presumption of innocence
(converting citizens into virtual criminal suspects), and due process (concealing that, and with

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What are the consequences for law if that technology is finally supplanted,
displaced by a different and fundamentally incompatible infrastructure that
fails to preserve the affordances of text on which modern law so deeply relies?
“The challenge facing modern law,” she writes, “is to reinvent the law in an
environment of pre-emptive computing without giving up on the core
achievements of the Rule of Law.”16
Three “ends” of law organize Hildebrandt’s account of its singularity as a
unique regime of truth. Relying on the work of Weimar jurist Gustav Rad-
bruch, she isolates the aim for (distributive and corrective) justice, certainty,
and purposiveness as the indispensable principles of legal veridiction.17 Due to
the “antinomian” character of these ends, their realization in concrete situa-
tions will engender tension, because they cannot be realized simultaneously.18
If legal reasoning is the agonistic space in which they vie for dominance,19
legality as such “cannot be reduced to legal certainty (which would equate
with legalism), nor to justice (which would equate with natural law), nor to
expediency (which would equate with instrumentalism).”20 The law, to main-
tain its identity, must balance these competing ends without succumbing to the
pull of any one of them. To shelter these ends in an environment hostile to
them, in which the technological ground has shifted beneath them, requires
that we tread carefully indeed.21
The advent of ubiquitous preemptive computing promises a world of
interconnected agentic devices from toasters, televisions, and automobiles to
closed-circuit television (CCTV) cameras, traffic lights, firearms, drones,
power grids, and every imaginable kind of smart meter, taking biometric
readings or recognizing facial features, and feeding into vast databases. But it
also promises the disruption of law’s ends, not because the new technological
episteme challenges them directly but simply because the mode of existence of
law is sensitive to its technological mediators. If the ends of law are not ade-

what outcome, a person has been profiled and categorized prevents behavioral modifications that
may change the profile and disputation of the categorization). SMART TECHNOLOGIES, supra note
1, at 77–103. The constraints of the review essay format prevent further discussion of these anal-
yses.
16. Id. at 17.
17. Id. at 147–49; see also Gustav Radbruch, Legal Philosophy, in THE LEGAL
PHILOSOPHIES OF LASK, RADBRUCH, AND DABIN at 43–224 (Kurt Wilk trans., Harvard Univ.
Press 1950) (1932); Gustav Radbruch, Five Minutes of Legal Philosophy (1945), 26 OXFORD J.
LEGAL STUD. 13 (2006).
18. SMART TECHNOLOGIES, supra note 1, at 149.
19. Id.
20. Id. at 157.
21. Though I cannot here expand on the point, it seems that the three Radbruchian ends
Hildebrandt attaches to the law are more profitably understood not as metajuridical guiding prin-
ciples (as she maintains) but as infrajuridical value objects. This understanding would bring the
purported ends of law down from their abode in the starry skies of abstract universalism, resituat-
ing them as traceable empirical actors that surface periodically in the practices of legal reasoning.
On the role of value objects in legal practices, see BRUNO LATOUR, THE MAKING OF LAW: AN
ETHNOGRAPHY OF THE CONSEIL D’ETAT (Marina Brilman & Alain Pottage trans., Polity Press
2010) (2002); see also KYLE MCGEE, BRUNO LATOUR: THE NORMATIVITY OF NETWORKS 128–47
(2014).

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quately represented in the assemblies of technoscientific research, commer-

cialization, and regulation, the law may become a paper relic, with the princi-
ples of Rule-of-Law liberalism consigned to the dustbin of history as autono-
mous technologies decide, without prompting, which kinds of behavior to
elicit from their humans. As Hildebrandt indicates, “In so far as the onlife
world is designed and engineered in a way that is conducive to pre-emptive
computing as an instrument for achieving policy objectives that can replace
legal precepts whenever these are less effective or efficient, the mode of exist-
ence of the law will be reduced to the instrumentalist modus.”22
It turns out, consequently, that the expression of law’s means has a star-
tlingly direct impact on the viability of its ends. Hildebrandt demonstrates the
applicability to law of a familiar science and technology studies (STS) maxim:
change the means, change the end. Technologies are not neutral instruments
for securing predefined ends; they introduce a detour, a divergent path dis-
tancing means from end, which will resituate their flesh-and-blood compan-
ions and redefine their objectives. As Bruno Latour writes, “If you want to
keep your intentions straight, your plans inflexible, your programmes of action
rigid, then do not pass through any form of technological life. The detour will
translate, will betray, your most imperious desires.”23 Technologies, rather
than simple instruments, are portals into the folds of time and space (consid-
ering the diverse histories and multiple temporalities of the materials brought
together in the artifact, and the absence of the humans that designed, tested,
manufactured, authorized, or otherwise conditioned its creation) that project a
possible future by stabilizing a version of the present.24 This diversion is, then,
the price to be paid for freedom from contemporaneity with one’s actions, not
to mention the constant turmoil that must take hold of any collective held
together only by the vaporous “social relations” of anthropocentric thinking.
Because law is not technologically neutral, it is only to be expected that its
ends would undergo transformation, or worse, in the event that its means of
expression (here, the written word) are replaced, disabled, or eliminated.

II. LEGAL EXPRESSION

AND THE CHIMERA OF “TECHNO-REGULATION”

Hildebrandt’s critical edge surfaces when the discussion turns to the “in-
strumentalization of law,” or the reduction of law to a mere instrument for the
achievement of objectives unrelated to the law’s own ends.25 It is with respect

22. SMART TECHNOLOGIES, supra note 1, at 185. “Onlife world” is Hildebrandt’s term for
the emergent social reality that no longer relies on the online/offline distinction. Id. at 42
(“‘Onlife’ singles out the fact that our ‘real’ life is neither on- nor offline, but partakes in a new
kind of world that we are still discovering.”).
23. Bruno Latour, Morality and Technology: The End of the Means (Couze Venn trans.),
THEORY, CULTURE & SOC’Y, Dec. 2002, at 247, 252.
24. For a detailed elaboration of this argument, see Bruno Latour, On Technical Mediation:
Philosophy, Sociology, Genealogy, 3 COMMON KNOWLEDGE 29 (1994).
25. See SMART TECHNOLOGIES, supra note 1, at 155.

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to this problem—which has also plagued the philosophy of technology for

decades—that Smart Technologies and the End(s) of Law is both strongest and
most susceptible to criticism. Instrumental thinking is the omnipresent danger
that lurks in the background of Hildebrandt’s text, but it remains, to some
degree, an undertheorized bogeyman.26 But she is surely right that a viable,
non- or postinstrumental framework for rethinking both law and technology is
desperately needed. The pervasive habit of instrumentalizing law and tech-
nology supports the reductive discourse on techno-regulation, shortchanging
the value and complexity of both of those modes of existence. This section
first looks into Hildebrandt’s critique of this notion before pushing a bit further
into the underlying problem of instrumentalism.
Hildebrandt takes a humanistic approach in her critique of techno-
regulation. For her, techno-regulation is a fundamentally flawed notion be-
cause it succeeds only in trivializing human agency, construing people as
“mechanisms that can be tweaked into desirable behavior after figuring out on
what bias they operate.”27 In this reductive paradigm, she argues, technical
means “redress our behaviours instead of addressing us with regard to our
actions.”28 Action, in Hildebrandt’s terminology, requires the agent’s self-
reflection, “foresee[ing] how others expect her to act . . . [and] what meaning
others will attribute to her behaviours.”29 Nudging, manipulating, profiling,
and scoring subjects, without calling on their reflective capacity to take owner-
ship of their behaviors, negates their very subjectivity. Instead of rationes
decidendi, we are treated to silent compartmentalization in data banks. To
avert this, Hildebrandt argues passionately that “my behaviour should not be
redressed without first addressing me about it, enabling me to take responsi-
bility for my behaviour as my action, thus initiating and confirming person-
hood.”30 And personhood can only be preserved through language: earlier in
the text, Hildebrandt argued that “[t]he recursive anticipation that is required
to act, instead of merely to behave, is a singularly productive affordance of
language-use.”31 As the role of language in law ebbs, as law is reconceived as
an instrument for realizing policy, our grip on personhood and individual au-
tonomy becomes more tenuous.
But it is my suspicion that there is something important to be gained by
momentarily suspending the knee-jerk condemnation of instrumentalism.
Instrumentality names the transparent and predictable passage from means to
end, and if it appears to adequately describe a technical action, at least superfi-
cially, we must recall that this is not the unaided, unconstructed condition of
things. Instrumentality, if it corresponds to anything, would be a highly artifi-
cial effect generated under controlled conditions—conditions that a tool, by
incorporating and preserving a skill (techne) and a particular sequence or order

26. For Hildebrandt’s substantive discussion of instrumentalism, see id. at 162–65.

27. Id. at 184.
28. Id. at 185.
29. Id. at 52.
30. Id. at 185.
31. Id. at 52.

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(logos) of steps, could recreate on demand. Moreover, it would require that the
initial intention animating the invention of the tool or other technology being
deployed in this instrumental fashion to have long been mislaid, modified,
broken, stitched up, de- and reterritorialized, and reinterpreted countless times
over the course of the tool’s career. To claim instrumentality as a self-evident,
natural condition is not to advance the virtues of reason and science but is, in
fact, to deny them of a hard-won accomplishment, namely, the production of
stable correspondences. It is also to deprive technological beings of their on-
tological dignity, insofar as the detours they insert between intent and effect,
the labyrinths of technical mediation, are reduced to nothing. But this should
only increase our respect for any instrumental deployment of technology,
provided we grasp the staggering amount of care and coordination required to
sustain a properly instrumental relation.
It is in this vast space between intent and effect that we can locate a
strange phenomenon, which can be called ontological interference. Here, the
pathways of other, nontechnological beings intersect with those of the tech-
nological mode, resulting in surprising alterations in both. Provided we man-
age to avoid judging one by the other’s standards (which would yield an
analytical nullity, or in Latour’s preferred idiom, a category mistake32), we
may recover fertile insights about each that were not otherwise apparent.
In this case, preemptive technologies interrupt the circuits of legal norma-
tivity: the force of law passes through them like a bolt. They prolong the ex-
tension of certain beings of law, like obligations or claims of right, well
beyond their discursive limits, standing in the place of those beings (lieu-
tenants), replicating their properties in a variety of sites from the home to the
metro to the office to the plaza. And so they become legal actors in their own
right. They become legal replicants.33 Technical mediation takes the law out
of the register of signification and demands an entirely new semiotic. This is
true whether the mediator translates a specific written rule (e.g., a “no entry”
rule interpreted by an impassable fence) or improvises on a legal theory (e.g., a
tech company’s view of the scope of its users’ privacy rights embodied in a set
of algorithms). And it is normativity that is at stake here inasmuch as these
translations effectuate an upheaval in what I call the deontic modalities of
doing: wanting-to-do, having-to-do, being-able-to-do.34 A normative effect is
registered as soon as another (human or nonhuman) actor requires one to act or
permits nonaction, launches one on a course of striving to act or of avoiding

32. BRUNO LATOUR, AN INQUIRY INTO MODES OF EXISTENCE: AN ANTHROPOLOGY OF THE

MODERNS 48 (Catherine Porter trans., Harvard Univ. Press 2013) (2012); see also MCGEE, supra
note 21, at 200–01 (discussing category mistakes in the specification of the legal mode of exist-
ence).
33. In Ridley Scott’s film, Blade Runner, “replicants” are biologically and genetically engi-
neered technologies that are essentially identical to human beings in appearance and cognition but
lacking in organic empathy. See BLADE RUNNER (Warner Bros. 1982). Blade Runner adapts
PHILIP K. DICK, DO ANDROIDS DREAM OF ELECTRIC SHEEP? (1968), where such beings are called
“androids.”
34. See MCGEE, supra note 21, at xviii–xix, 54–68.

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action, or empowers or disempowers one’s action. Normativity is not about

rules, but ways of doing and the strictures actors impose on one another to
shape those ways. But in this particular sort of normativity, given life by the
legal replicant, the legal and the technological temporarily coincide.35 The
replicant is a link in a chain of translations leading to a normative effect that
qualifies as “legal” if only because it takes hold through the prolongation of a
being of law, and as “technological” if only because those beings of law are
reinforced with the properties of the artifact of expression, perhaps concretized
and spatiotemporally extended, or reimagined in electronic bits. In all in-
stances, they are rendered relatively nonnegotiable (or at least differently ne-
gotiable) by virtue of their technical mediation. Once the effect has taken hold,
the legal narrative proceeds in one direction and the technological narrative
proceeds in another, each being concerned strictly with the next successive
step necessary for their own peculiar enunciations. Divergent trajectories coa-
lesce, only to diverge again.
All of this can, in a certain light, seem perilously similar to the utilitarian
approach Hildebrandt criticizes under the label of techno-regulation. But the
two are worlds apart. What is objectionable in techno-regulation is, for my
part, not its negation of language or human agency, but its twin failure to take
instrumentality sufficiently seriously and its attempt to circumvent the law
entirely by means of technologies cynically deployed to control behavior. The
theory of legal expression and the technological mediation of legal force, such
as I have sought to develop it, instead registers turbulence in the ontology of
the law. The propositions of techno-regulation and of legal expression share no
common ground and do not, for that reason, correlate with one another in any
way. The theory of legal expression can, in itself, offer no policy recommen-
dations, and the theory of techno-regulation has no interest in restoring the
complexity or the fluidity of the beings of law. Techno-regulation forces law
into the mold of technology and judges it ineffective: why linger with the
beings of law that obstinately refuse to achieve the ends selected by politicians
and administrators (or commercial interests) when we can reach those ends by
merely revising the software code, rewiring the circuits, and leaving the law
out of the picture?36 By contrast, the theory of legal expression remains dog-

35. This conception is developed at some length in id. at 147–69.

36. Techno-regulation should thus be seen as a logical descendant of law and economics.
The latter makes prescriptive statements by modeling and predicting behavior and adjusting it with
incentive structures that can maximize efficiency, and law is ultimately one of those incentive
structures that can help engineer efficiency by, for example, allocating costs in a politically and
mathematically optimal manner. But law and economics is a methodology, or a policy framework,
or an ideology; it cannot enforce its own rationality. Techno-regulation is the enforcement wing of
law and economics, striving to preempt irrational behavior. For a critique of the vulgar instru-
mentalism of law and economics that draws deeply on Philip K. Dick’s work (and the Minority
Report film), see generally William P. MacNeil, Precrime Never Pays! ‘Law and Economics’ in
Minority Report, 19 CONTINUUM: J. MEDIA & CULTURAL STUD. 201 (2005). As MacNeil shows,
the reality of a regulation-free night-watchman legal regime is an “authoritarian nightmare,” id. at
210–11, but the reason has more to do with techno-regulatory nudging, subconscious manipula-

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gedly in the intermezzo, celebrating the obstinacy of legal means, whether

inscribed in text or in iron, concrete, bits, images, or other media.
If the technical mediation of law is nothing new (and isn’t the very origin
of property the translation of a legal theory of ownership by the planks of the
fence?37), what is novel in the emergence of an expressive relationship be-
tween law and preemptive computing? I do not believe that the theory of legal
expression, briefly sketched above, undermines Hildebrandt’s argument. From
this perspective, to be sure, she places too much emphasis on the technology
of the written word, the contingent affordances of which have generated a
number of properties we readily associate with legality: its openness to con-
testation, its public accessibility (in literate societies), and its systematicity.
These are not necessary features of law, as Hildebrandt must concede, but
historical traces of the law’s mediation by the written word. It is the institution
of law—by which I mean, first and foremost, the legal profession, including
lawyers, judges, and legal academics—that transforms the technology of the
written word into the predominant expressive medium of law. It seems to have
little to do with the mode of existence of law.38 But given the depth of the
historical imbrication of law and text, we must concede that this mediation is
of immeasurable importance to what the law has become, such that its trans-
formation at the hands of smart, preemptive technologies has more than a
fleeting impact on legality itself.
Do smart legal replicants render the law—in the guise of legal theories
and claims built into the technologies by their designers, financiers, and others
far upstream from the end user, which are perhaps oppressive or unfair from
the end user’s point of view—incontestable by eliminating the written word’s
discursive affordances? No, only differently contestable. These hybrid beings
call for new strategies of contestation that do not depend exclusively on the
word. One such strategy is the preemption of preemption. Consider again that
in Hildebrandt’s fictional narrative, Toma, the PDA, shifts into Diana’s em-
pathetic space, occupying it without her awareness when it, for example, re-
fuses to pass through her ex-husband’s call about Diana’s sick daughter,
deemed, by Toma, nonurgent.39 And this allows Diana to proceed with her day
uninterrupted by the pangs of emotion that would otherwise compel her to act
with regard to her daughter’s illness. Through adaptive learning techniques,
smart technologies project a past version of their human counterparts (captured
in the “data double” of the latter,40 composed of recorded behavioral or bio-
metric details) into the future (reflected in decisions made by the technological

tion, and the bottomless memory of Big Data than with mere models and disembodied prescrip-
tions.
37. See generally JEAN-JACQUES ROUSSEAU, Discourse on the Origin and Foundations of
Inequality among Mankind (1760), reprinted in THE SOCIAL CONTRACT AND THE FIRST AND
SECOND DISCOURSES (Susan Dunn ed., Yale Univ. Press 2002).
38. For a contrary argument, see Serge Gutwirth, Providing the Missing Link: Law after
Latour’s Passage, in LATOUR & THE PASSAGE OF LAW (Kyle McGee ed., 2015).
39. SMART TECHNOLOGIES, supra note 1, at 3.
40. See id. at 92–93.

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agent). The course of action succeeds only thanks to Diana’s data double, an
anthropomorphism generated by the inferential computation of the PDA that is
extended temporally well beyond the “expiration date” of Diana’s concrete
actions.41 The upshot is that, if Diana could reassert control of her data double
by preemptively acting in such a way that she could affirm her actions again
and again—an interpretation of Nietzsche’s eternal return grounded in the
metaphysics of data!—she would effectively preempt the replicant’s preemp-
tion. Further research and reflection on these themes seems warranted.
In light of the above, however, Hildebrandt’s view that legal protection by
design represents a viable strategy for counteracting certain negative implica-
tions of the displacement of the written word is also compelling. This notion,
she argues, represents an alternative to techno-regulation in that it aims to
preserve three properties of modern, text-based law in a post-text world: com-
patibility with enacted law, resistability in practice, and contestability in for-
mal proceedings, all of which serve to “ma[k]e visible” the technological
mechanisms that “steer people into certain behaviours.”42 Encouraged by
recent developments in the European Union’s data protection law,43 Hilde-
brandt proposes two means of ensuring the displacement of the written word
does not result in the elimination of legality: counter-profiling and selective
data collection via morphological computation. Both initiatives call for in-
creased oversight and scrutiny by legal professionals in the design of new
technologies.
Counter-profiling “means that the objects of profiling become subjects of
profiling, conducting data mining operations on the behaviours of those that
are in the business of profiling,” whether human or nonhuman.44 In concept,
this allows the profiled masses to band together in groups to monitor and po-
tentially challenge abusive or incorrect profiling practices.45 Analogizing to

41. In this regard, I note that “smart technologies” are no different than any other technical
mediators, all of which can be said to “freeze” an action at one point in time and project an inter-
pretation of that action far into the future. This projection differs merely in degree as compared to
the mediations of, say, roadblocks or tables (which grant relative permanence to the transient
actions of, e.g., engineers, craftsmen, and lawmakers). If the smartness of smart technologies
manifests in their preemption or interruption of our intentions, then virtually every technology is
smart to some degree. Every technology consolidates one or more skills that liberate their users
(and others, like the engineers whose actions the technology solidifies) from having to act, but also
substitutes an intention different from the one calling for its use in the first place.
42. Id. at 218–19.
43. The developments proposed by the General Data Protection Regulations framework are
particularly encouraging. See Proposal for a Regulation of the European Parliament and of the
Council on the Protection of Individuals with Regard to the Processing of Personal Data and on
the Free Movement of Such Data (General Data Protection Regulation), COD (2012) 11 final
(Jan. 25, 2012), http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_
en.pdf.
44. SMART TECHNOLOGIES, supra note 1, at 223.
45. I concur with a point made in an earlier review of Hildebrandt’s book: here, it seems that
an endorsement of a European class or collective action device would make perfect sense as a
complement to the notion of counter-profiling. But Hildebrandt stops short of calling for such a
device. See Bart van der Sloot, Mireille Hildebrandt’s Smart Technologies and the End(s) of Law,
2 EUR. DATA PROT. L. REV. 148, 150 (2015) (book review).

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McGee

the right to a free press, Hildebrandt argues that “obstacles to counter-

profiling” that are built into the smart technologies of the future should be
regarded as “infringements of the freedom of information and expression even
in the case of non-governmental interventions,” as counter-profiling possesses
the same function that the free press did in the era of print culture.46 As for
selective data collection, Hildebrandt focuses on robotics, wearables, and
systems embedded in homes, offices, and other such sites, maintaining that
“[s]elect before you collect” should be the governing technical maxim.47 Mor-
phological computation, she maintains, “might enable the construction of
artificial agents that navigate their physical and social world on the basis of
direct interaction instead of via the computational bypass of the CPU,” which
allows new technologies to circumvent the digital unconscious of Big Data.48
Such agents would be capable of interacting with humans, while refraining
from logging every movement in a living data repository that is then shared
with every other agent.
Legal protection by design is a promising response to the threat smart
technologies pose to the Rule of Law. Together with the preemption of
preemption, they prove that twenty-first century (human) legal subjects are not
without resources for confronting that threat.

To bring this discussion to a close, I want to return to the notion of instru-

mentalism, which surfaces again and again in Hildebrandt’s argument. Both
her (righteous) animosity toward instrumental thinking, and her (less right-
eous) disregard of its hidden complexity, are perhaps rooted in her view that
data-driven agency and human agency are fundamentally different, and that
even though nonhuman agents may perceive and intervene in the human welt,
they are constitutively incapable of “shar[ing]” it with us because their agency
is not anchored in human language.49 This is incorrect. Though I leave it to
practitioners of object-oriented ontology to explain why human exceptionalism
is metaphysically incoherent,50 it is enough to show, as actor-network theory
never tires of doing, that utterances and actions are always products of a heter-
ogeneous collective, an assemblage, a network, however disjointed and spati-
otemporally distributed, composed of humans and nonhumans, hybrids of

46. SMART TECHNOLOGIES, supra note 1, at 224

47. Id. (citing Bart Jacobs, Select Before You Collect, 54 ARS AEQUI 1006 (2005), http://
www.cs.ru.nl/B.Jacobs/TALKS/govcert05.pdf).
48. Id. at 225.
49. Id. at 54–55.
50. See, e.g., GRAHAM HARMAN, IMMATERIALISM: OBJECTS AND SOCIAL THEORY 6 (2016)
(“[T]he vast majority of relations in the universe do not involve human beings, those obscure
inhabitants of an average-sized planet near a middling sun, one of 100 billion stars near the fringe
of an undistinguished galaxy among at least 100 billion others. If we forget that objects interact
among themselves even when humans are not present, we have arrogated 50 percent of the cosmos
for human settlement, no matter how loudly we boast about overcoming the subject-object di-
vide.”).

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 Book Review

nature and culture, mobilizations of words and things. The relationship is

generally one of alignment or alliance, and from the perspective of the course
of action at stake, of the work to be done, both human and nonhuman actors
perform similarly—that is, by forming associations with other actors.51 Each
helps to construct the next step in the succession of transformations that will
have been, for example, a legal principle, a scientific fact, a technological
breakthrough. Of course there are human/nonhuman differences, but they are,
in principle, no more pressing or original or fundamental than countless non-
human/nonhuman differences or, indeed, many human/human differences. For
a given course of action, it may make all the difference in the world that a
human, rather than an algorithm or a door or a whale, occupies a particular
position in the collective assemblage, but we sever the associations sustaining
that assemblage if we confer upon the human, as such, the kind of detachable
universal sovereignty invented in the excesses of modernity. Hildebrandt’s
attempt to preserve the phantasm of human autonomy through her account of
language-based agency seems to me an ill-fated rescue operation doomed to
repeat the transcendental illusions of modern thought.52
As print culture gives way to a responsive, autonomic, data-driven techno-
logical milieu, Hildebrandt shows, the law must adapt. Armed with her be-
havior/action dichotomy and the rational human agent, she insists that
technologies stimulate mere behaviors, “nudge” their human users without
reasoning with them, and in short, calculate to manipulate humans (in order to
calculate again).53 In this way, human agency is imperiled, autonomy and
identity are short-circuited, and legal normativity is jettisoned: “A world fo-
cused on regulating, influencing or even enforcing behaviours has little to do
with legal normativity.”54 But doesn’t this argument work only so long as we
deprive technologies of their being, collapsing the space between intent and
effect in which ontological interferences may resonate, to reduce them to pas-
sive instruments for the cynical achievement of defined policy goals?
It is no more possible to completely and cleanly distinguish a “legal ob-
ject” or a “legal being” from a nonlegal one than it is to distinguish a technical
object from a nontechnical one.55 What we can do, however, is “locate the

51. On actor-network theory as a “sociology of associations,” see BRUNO LATOUR,

REASSEMBLING THE SOCIAL: AN INTRODUCTION TO ACTOR-NETWORK-THEORY (2005).
52. Hildebrandt’s position that opaque autonomic and physiological processes condition
human subjective autonomy does nothing to undercut this criticism. See SMART TECHNOLOGIES,
supra note 1, at 56. That subjects lack the ability to consent to or contest their heart rate, body
temperature, or neocortical processing limitations does not throw into question the enlightenment
construct of the rationally self-transparent subject. Hildebrandt affirms as much, incidentally, as
soon as she distinguishes autonomic behavior from autonomous action, rooting the latter—which
is the exclusive province of the human—in “the fact that we are capable of reflecting on our
actions as our own actions.” Id.
53. Id. at 226.
54. Id.
55. See Latour, supra note 23, at 248. Recall, as well, the failure of Rick Deckard, expert in
the differentiation of humans and androids, to detect the artificiality of the electric toad at the
conclusion of Do Androids Dream of Electric Sheep? See DICK, supra note 33.

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dimension pertaining to”56 the legal or the technological in any being that
participates, directly or indirectly, in the construction of a legal or technolog-
ical trajectory. There is no reason why a being cannot pertain to two or more
modes of existence and ample reason why that should be the case, considering
the fluidity with which different generative trajectories intersect in the compo-
sition and stabilization of societies.57 It is here, in my view, that Hildebrandt’s
argument falters. As should be clear from the discussion of interference above,
I take no issue with her contentions about the law’s technological means (the
printing press, the proliferation of the identical written word), including the
core thesis that a shift in these means results in a corollary shift in the ends of
the law (assuming, arguendo, that the law is the kind of thing to which ends
can be attributed). That these ends will vary with their expressive media is
precisely the conclusion that Hildebrandt should have drawn and taken to its
limit. That a being of technology partakes in the enunciation of law, becoming,
however transiently, a being of law, does not jeopardize the law’s mode of
existence; it is a condition of the legal utterance. The primary objective of a
sociotechnical legal analysis would be, then, to locate the dimension of any
being (including preemptive computational beings) that pertains to the legal
mode of existence, and secondarily, to capture any intermodal passages com-
plicating that pertinence. It may be that, by following this line of research, we
enter upon the terra incognita of multiple hybrid legalities with varying prop-
erties, including, perhaps, varying ends. Instead of pursuing this promising but
unlit path, Hildebrandt takes the analytically conservative turn back into the
modern legal institution, well lit by the lanterns of language, justice, certainty,
and purposiveness, despite that this is not where the logic of her argument
leads.
Smart Technologies and the End(s) of Law is the definitive legal-
theoretical study of ambient intelligence and a harrowing vision of a possible
world in which law is displaced by its technical replicants, a passionate book
about the preservation of human personhood in the face of nonhuman intelli-
gence. Although Hildebrandt leaves open the question whether and which
alternative worlds and legal structures may find the support they need in
preemptive technologies, and which was denied them in the technology of the
written word, her book brings rigor, clarity, ingenuity, and depth to a per-
plexing cross-disciplinary problematic poised to shape the world to come. No
philosophical investigation into the nexus of law and technology can afford to
ignore it.

56. Latour, supra note 23, at 248.

57. In a nice metaphor, Graham Harman describes the modes of existence as “separate radio
frequencies all occupying the same air space.” Graham Harman, Politics and Law as Latourian
Modes of Existence, in LATOUR & THE PASSAGE OF LAW, supra note 38, at 50.

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