This special section on ‘Tech and the Transformation of Legal Imagination’ is an attempt at creatively exploring the law of the tech era. We believe that emerging lines of continuity and discontinuity in the current moment of tech-induced legal transformation are insufficiently investigated. Together with the authors of this special section, we therefore set out in an effort to recover and reimagine the histories of the law/tech nexus, to critically examine the imaginaries operative in the ongoing transformation but also to imagine the future of law. In so doing, we cover two different constellations: one in which the law is imagined, and another in which the law imagines. As this structure is one that operates in other disciplines, too - computer science is imagined as much as it imagines - we believe it will be a useful entry point for readers beyond the discipline of law to explore the relation between tech, law and imagination. In all, we make a move from the general theme of tech, legal transformation and imagination to the more specific one of tech and the transformation of legal imagination.

Today, a growing and multidimensional body of research is taking stock of the impact of digitalisation, datafication and AI on the law (law is imagined). This literature notes the spatial and temporal displacement of legally and politically defined concepts and categories such as borders and border crossing (Molnar and Gill 2018) as well as war and enemy targets (Mignot-Mahdavi 2023; Parsa forthcoming 2023-4). It also looks at the unprecedented regulatory discretion of platform providers to define the substantial scope of human rights (Dias Olica 2020) and to introduce new areas of labour precarity and exacerbate existing ones (Lewchuk 2018). Another area of research investigates how digitalisation and automation of public administration affects street level bureaucrats (Raso 2018; Young et al. 2019). The current uptake of so-called legal tech has also raised concerns regarding the future of the legal profession (Caserta and Madsen 2019) as well as the organisational structure of the legal firm (Caserta 2020). The reliance of data-driven technologies upon statistical (dis)aggregation and correlation has led to a renewed examination of risk as a mode of governance where algorithmic association maintains, exacerbates and reconfigures long-standing legally sustained or produced inequalities (Van Meerssche 2022). As the workings of tech are legally protected as trade secrets, its introduction to legal decision-making threatens transparency and contestability of legal decisions while shifting traditional legal reasoning and argumentation towards the statistical logic of approximation and risk analysis (Hildebrandt 2018; Amoore 2020). This literature has also addressed how digital conflict resolution enabled a large-scale privatisation of legal enforcement mechanisms, changing the ground for the legitimation of law (Koulu 2019). In all, there is nothing strange or unusual about tech-induced legal change over time. However, as it is evident even from the short and selective overview above, what is being transformed by tech at this moment in history is not just a range of substantive legal issues but also the principles, concepts and tools common to the genre of law as well as its background assumptions.

In the exploration of what ‘legal imagination’ might be – let alone what impact technology may have on it – the function of images and imaginaries for legal thought turn out to be important. Imaginaries can be defined as collectively held visions of a community of purpose. In an often-cited passage, Sheila Jasanoff (2015, p. 5) defines sociotechnical imaginaries as ‘collectively held, institutionally stabilised, and publicly performed visions of desirable futures, … attainable through, and supportive of, advances in science and technology.’ Imaginaries in this sense are those political or strategic horizons against which any action, thought, or interpretation is shaped. This understanding of (legal) imagination is, for instance, present in Surabhi Ranganathan’s (2019) account of how the ocean floor has come into the national and international legislative regime through an underlying imaginary characterised as extractivism. Legal imagination in this context engenders the active examination of how choices that a lawyer makes would eventually stand in relation to a particular strategic horizon. In this context, it is also important to bear in mind that technology has a formative impact on the socio-political visions which guide legal imagination.

Maks Mar (2017, p. 174) understands legal imagination as ‘an active and conscious mental process, exercised in a way that is independent of immediate sensory stimulus, and which involves four different (though combinable) abilities: supposing, relating, image-making and/or perspective-taking.’ Koskenniemi (2021) takes imagination to go beyond the mental domain, attaining a material dimension. In his view, legal imagination is a mundane task of picking up what already exists as legal resources and reconfiguring them in new ways in order to achieve particular desired outcomes. Legal imagination then is limited and bound to what lies around as legal vocabulary and idiom and what correlation appears plausible to the lawyer in a given context. In this view, automation in finding, cross scanning and correlating massive amounts of legal data with unprecedented acceleration might appear as the automation, or annihilation, of legal imagination itself. Simpson (2019) takes imagination to be a quality that goes beyond the traditional tasks of lawyers, which always already involve the identification of valid law through description and interpretation. For Simpson (p. 413) an understanding of legal imagination that overtly relies on what has already been done, or constantly reverts to experience, ‘over-embeds legal thought’. In his view, imagination is more of a literary practice of bringing into the world something that did not already exist. As such Simpson’s understanding of imagination differs from both Koskenniemi and Jasanoff in that imagination is neither limited by past precedent nor is it pragmatically linked to a political agenda. It is a critical, momentarily liberating and experimental act. As he puts it, imagination: ‘can be thought of not as a set of programmatic ideals towards a better world or the creation of already existing utopias against which current realities must inevitably fall short, but as an adoption of ‘the exterior glance’ combined with a relentless process of resistance and questioning and estrangement – a literary project as much as a political one – of this pre-constituted experience and the institutional and political arrangements that concretize it’ (p. 421).

How did this special section come about? In April 2022, we organised a two-day authors’ workshop in Kåseberga, a fishing village at the southern tip of Sweden. This workshop resulted in nine articles (two of which were written by the four authors of this introduction). Four of them are published in the current special sections of Law & Critique, while another five are in a twin special issue of AI & Society.

While running in different journals, these two special sections remain linked by their initial objective (foregrounding legal imagination when confronting challenges posed by new technologies in their legal fields), by the raw energy of collegiate exchanges across the workshop group and by this joint introduction.

Vincent Goding and Kieran Tranter’s The Robot and Human Futures: Visualising Autonomy in Law and Science Fiction offers a critique centering how legal scholarship about digital automation takes place in a limiting human paradigm. This paradigm is characterised by anxieties about human futures, AI as embodied ‘robots’ located within a specific identifiable system, and by the distinction between such ‘things’ and human subjects. Tranter and Goding turn to science fiction to examine how the tropes concerning human futures, embodiment and distinction were established and reiterated. Legal scholarship about digital automation writes itself into the same cultural imaginary and therefore also encloses and limits itself. It does so ‘by not clearly appreciating the complex, fluxing hybridity of humans and the digital.’ In doing so ‘robot law scholarship speaks past its subject’.

Fleur Johns’ Digital Humanitarian Mapping and the Limits of Imagination in International Law takes its point of departure in the observation that digitisation has reshaped the practices of map making (in a literal sense) into a multi-nodal, networked activity yielding composite, customisable outputs. Johns shows that this transformation entails a shift from an analogue to a digital logic, which is indicative of transformations underway in how authoritative knowledge about the world is formed more generally. This, she argues, demands a reconsideration of a prevalent idea in international legal scholarship which is implicitly based on analogue presumptions: critical agency is exercised by stepping outside shared positions and ‘reimagining the world’. The article suggests that Walter Benjamin’s atypical rendering of imagination as a ‘purely receptive, uncreative’ force in a field of technological reproduction may offer international legal scholars a promising way of thinking about agency and prospects for re-forming their field in the face of its burgeoning digitisation.

Noting that communications technology is transforming and capturing the international legal imagination and bringing to the front the themes of infrastructure as governance and threats to public power, Daniel Joyce’s International Law and Infrastructure: The Place of Communications Technology in the International Legal Imagination draws attention to the longer and illuminating history behind the relationship between international law and infrastructure which can help us to understand both the problems and possibilities posed by technology’s entanglement with contemporary forms of global governance. The article contributes a historical perspective and highlights infrastructure’s ongoing connections to violence, exploitation and empire. This provokes deeper appreciation of the wider and constitutive role of technology in international life and underscores the need to address the imbrication of public and private forms of power in global governance.

Hypotheses of the impact of legal tech on the legal profession vary from a radical future in which lawyers are no longer viable to a gradually transforming legal services practice in which lawyers remain essential. ‘Legal Tech, the Law Firm and the Imagination of the Right Legal Answer’ by Amin Parsa, Gregor Noll, Leila Brännström and Markus Gunneflo offers a more granular understanding of the impact of legal tech on the central role of lawyers at law firms in crafting an imagined ‘right legal answer’. Legal tech exacerbates already ongoing processes of eradication of routine tasks, and no-code systems such as Bryter do so more efficiently than before. They are also aligned with wider transformation in law firm’s business models. Bryter, and no-code expert systems like it, has an effect on the role of lawyers at law firms in crafting an imagined ‘right legal answer’. In exploring that dimension of legal tech, we turn to Duncan Kennedy’s work on ‘projective identification’. Bryter is seductive in that it seems to affirm forms of lawyering that precede legal tech, by evoking and foregrounding the dependency of the right legal answer upon the imaginative path development carried out by a lawyer. But, a lawyer productifying her knowledge with Bryter’s flowchart logic denies to herself the freedom provided by the ideological element of argument production and reduces her own creativity to its theatrical representation. This reinforcement of legalism comes with a reinforcement of projecting ideology onto the opponent lawyer and her legal answer. In other words, technologically enhanced projective identification.

Another five articles written within this project are available in the eponymous twin to the current special section, published in AI & Society:

Marie Petersmann and Dimitri Van Den Meerssche (2023), ‘On Phantom Publics, Clusters and Collectives – Be(com)ing Subject in Algorithmic Times’: This article explores how governance by data splinters the human subject into a ‘cluster’ of pulsing patterns distilled from disaggregated data. In a three-step movement, Petersmann and Van Den Meersche trace the contours of a ‘legal imagination’ that stays with the fugitive, opaque and experimental.

Geoff Gordon (2023): ‘Digital Sovereignty, Digital Infrastructures and Quantum Horizons’: Using a method he describes as situated observation, Gordon investigates three subfields of quantum technology (quantum computing, quantum sensing and quantum communications), showing that they plausibly support reproduction as well as disruption. Pointing to quantum investments by the security state, Gordon concludes that the changes implied in these investments ‘promise transformation but appear nonetheless to reproduce current distributions of power and resources’. While the quantum imaginary may lead to the demise of the classical legal subject, that does not imply that emancipatory transformation is on the horizon.

Mika Viljanen (2023): ‘Safety by Simulation: Theorising the Future of Robot Regulation’: In this article Viljanen challenges the feasibility of the existing legal imaginaries of regulation of safety in the mobility robots such as the Maritime Autonomous Surface Ships. In a pedagogical elaboration, this article unfolds why current legal frameworks will face unbridgeable difficulties in the regulation of safety in mobility robots. Ultimately, Viljanen argues, a simulation-based approach to safety might be the best fit. Yet opting for this entails ‘significant transformations in regulatory knowledge production patterns, temporalities, and types of knowledge on artifacts’, Viljanen concludes.

Hanne Hirvonen: ‘Just Accountability Structures – A Way to Promote the Safe Use of Automated Decision-making in the Public Sector’: While enacting legal imagination as an act of reconfiguring the existing idioms of legality, Hirvonen juxtaposes the traditional sanction-based methods of legal accountability, exemplified by the Finnish ADM (Automated Decision-Making) legislation draft and the EU AI Act proposal, with a new imagination of accountability inspired by safety science and just culture – one that embraces accountability as the practice of learning from mistakes and near misses and stress on sharing of knowledge and harm compensation.

Leila Brännström, Markus Gunneflo, Gregor Noll and Amin Parsa (2023): ‘Legal Imagination and the US Project of Institutionalising the Free Flow of Data’: In this article, we ask how the flow of data is imagined in international lawmaking. Beginning with the advent of the digital telecommunication industry in the 1960s, we show how the US has sought to institutionalise the free movement of data across borders internationally, in a process of legal imagination characterised by bricolage - a process where known resources are tested in novel combinations, bridging the known with the unknown. We further juxtapose this with a counterimagination of data flows – offered by states in the global south – as subjected to data sovereignty. While the US model dominates, it has not really won the day, as the more recent reemergence of the South position in Indian position and OECD discourse evidences.