The challenge of a new legal language in the face of new technologies

In a fine short essay that appeared in Domenica de il 'Sole 24 ore' on 17 August (p. 2) entitled Language and law united by culture, Natalino Irti centres the focus of the discourse on the categories of law on the one hand and the function of words and writing on the other, in two key passages. The author observes that 'there is in law and in language... an endowment of words from which each one draws... The concrete discourse, carried out... makes use of words understood by all the dialoguers; and likewise the jurist, bringing the event back into normative schemes, dresses it up and dissolves it in the words of the law'. Irti then adds almost icastically - which is the hallmark of making his thought effective, concise and crystal-clear - 'Those who have a taste for summary formulas can well say that above the words of the law, there is the law of words, i.e. the intrinsic normativity of each bridge language, and above all in the special languages, in which the results of the individual sciences are expressed and carried out'. This parallelism between common language and the language of law is expressed as a kind of intrinsic law of common language as well as intrinsic normativity of language, of the legal word. This is to be welcomed, since the purpose of both languages is to establish a function, which is meaningful and relevant in law with the language of law, and relevant to the community with the so-called common language, i.e. words that are in themselves perceptible and collectively recognised.

Now, the development of technologies and the consequent reality, poses a new frontier, in my view still partially unexplored, but which undoubtedly affects the common language and the language of law. On the legal side, the law finds itself having to regulate or in any case subsume within its sphere economic phenomena that were previously mostly left to practice, to the custom of the merchants (as they used to say), to the practice of the market; we have witnessed a very strong evolution in certain fields, especially in finance, and consequently the law, the word of law, has had to deal with phenomena not always expressed by operators in words but often in diagrams, in tables, in other ways of expression, I would say almost in a 'hieroglyphic' mode, but more comprehensible than words themselves. In short, to describe a financial operation sometimes a couple of slides, algebraic formulas, darts and boxes are more perceptible than a written text; this practice embraces various economic fields, especially among Big Tech and in Ai.

It seems evident that some activities or descriptions of activities are not subsumable or are difficult to subsume in language, for legislative purposes in legal language, for descriptive purposes in the typical function of ordinary language. This is a new frontier in which, while in law some marginal aspects are reducible in mathematical formulae or in representations other than words even though they are contained in legal texts or even in measures, legislative or otherwise, it is evident that this is not a generalised way of proceeding because it is difficult to think of a law crammed more than words with algorithms or other signs. On the other hand, this problem affects common language even more acutely, since a part of human activity is difficult to describe in full through common language.

This brings us to the heart of the matter: in short, legal language has its own ordaining function just as everyday language has in itself a normative element and its own social function, and the highest expression for the two systems is the aspiration for the unresolved clarity and uniqueness of speech. This now leads me to believe that, in the areas opened up by the new technologies - which follow one another at a rate of now less than a decade at a time - we will witness, at least in relevant areas of science and economics, this disconnect between human action and the difficulty of describing it in words of ordinary language and subsuming it in the language of law.

This is a very relevant issue in the immediate future.