The open texture of ‘algorithm’ in legal language

Abstract

In this paper, we will survey the different uses of the term algorithm in contemporary legal practice. We will argue that the concept of algorithm currently exhibits a substantial degree of open texture, co-determined by the open texture of the concept of algorithm itself and by the open texture inherent to legal discourse. We will substantiate our argument by virtue of a case study, in which we analyze a recent jurisprudential case where the first and second-degree judges have carved-out contrasting notions of algorithm. We will see that, thanks to our analysis of the open texture of the notion of algorithm in legal language, we can make sense of the different decisions taken by the judges as different contextually-determined sharpenings of the concept of algorithm. Finally, we will draw some general conclusions concerning the use of technical terms in legal instruments that address new technologies, such as the EU AI Act.