Legal Theory and the Problem of Machine Opacity: Spinoza on Intentionality, Prediction and Law

Abstract

In this paper I will approach the problem of machine opacity in law, according to an understanding of it as a problem revolving around the underlying philosophical tension between description and prescription in law and legal theory. I will use the problem of machine opacity, and its effects on the lawmaker’s activity, as a practical backdrop for a discussion of the associations upheld by legal theory between law’s normative ideals and its preferred, normatively neutral, method for achieving these. My discussion of this problem will provide a preliminary answer to the question whether it is machine opacity - by introducing an unfamiliar kind of intentionality into the legal sphere which disturbs the predictability of law - that renders the contemporary lawmaker’s job difficult, or, whether this difficulty indeed comes with the lawmaker’s job description. I will turn to early rationalist Benedict Spinoza (1632-1677) and particularly his explanation of law in the Theological Political Treatise (TTP) for analytical assistance in my discussion.