Law as a User: Design, Affordance, and the Technological Mediation of Norms

Technology law scholars have recently started to consider the theories of affordance and technological mediation, imported from the fields of psychology, human-computer interaction (HCI), and science and technology studies (STS). These theories have been used both as a means of explaining how the law has developed, and more recently in attempts to cast the law per se as an affordance. This exploratory paper summarises the two theories, before considering these applications from a critical perspective, noting certain deficiencies with respect to potential normative application and definitional clarity, respectively. It then posits that in applying them in the legal context we should seek to retain the relational user-artefact structure around which they were originally conceived, with the law cast as the user of the artefact, from which it seeks certain features or outcomes. This approach is effective for three reasons. Firstly, it acknowledges the power imbalance between law and architecture, where the former is manifestly subject to the decisions, made by designers, which mediate and transform the substance of the legal norms they instantiate in technological artefacts. Secondly, from an analytical perspective, it can help avoid some of the conceptual and definitional problems evident in the nascent legal literature on affordance. Lastly, approaching designers on their own terms can foster better critical evaluation of their activities during the design process, potentially leading to more effective ‘compliance by design’ where the course of the law’s mediation by technological artefacts can be better anticipated and guided by legislators, regulators, and legal practitioners.