Jurisgenerativity in the Age of Big Data

• In Event: In Search of the Concrete Universal: Evaluating Benhabib’s Theoretical Vision

Abstract

In political theory, we tend to view the relationship between state and citizen as mediated by law; increasingly, however, the relationship between state and citizen is mediated by data – often over and above the constraints of law. What is the significance of this shift towards disciplinary mechanisms – like algorithms – and away from legal ones? What kinds of moral harm does it engender? And what challenge does it pose to democratic theory? To answer these questions, this paper develops an argument based on jurisgenerativity, or the “law’s capacity to create a normative universe of meaning which can often escape the ‘provenance of formal lawmaking’” – a conceptual keystone of Seyla Benhabib’s political philosophy. The paper details how disciplinary mechanisms aren’t merely harmful in and of themselves (by having a chilling effect on individual agency, for example), but because they delimit the norm-generative capacity of law, thereby undercutting its emancipatory potential (and normative force). Rather than facilitate “democratic iterations” or spaces for public claim-making (to use Benhabib’s terminology), disciplinary mechanisms restrict those spaces as well as our capacity to inhabit them. Thus there is a double bind: in a data-driven world, the law today increasingly can neither stimulate individual action, nor keep disciplinary systems at bay.

Author

• Matthew Longo, Leiden University