Of contestation and magic

Marco Almada

Marco Almada

— 6 min read
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Of contestation and magic
Photo by Aron Visuals / Unsplash

Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! In today's issue, I share a note that ended being a bit longer than originally foreseen, about the notions of 'essentially contested concepts' and 'magic concepts'. After that, we have the usual: reading recommendations, opportunities, and some cute otters. Hope you enjoy!

Two kinds of concepts

There are two kinds of scholars: those who think in terms of binary oppositions, those who don't, and those who can't count.

I, for one, consider myself a member of the second group. To the extent that I have added something to scholarly debates, my contribution has come from stretching concepts to their breaking point and from finding the points where seemingly sharp distinctions become blurry. As a legal scholar, the value of any such contributions must always be assessed in terms of the 'so what?' question, and so I have spent much time showing why these blurred lines and collapsed constructs matter in practice. Still, at the end of the day, I am most comfortable when working at a certain level of abstraction, an as such concepts tend to be my main object of interest.

One side-effect of this focus is that I am very curious about how we form concepts and operationalize them. This is how, for instance, I get sidetracked into metaphors and representational models. As I make some progress with my monograph, a different type of question pops up quite often: why do certain concepts, such as technology neutrality, become so salient in scholarly debates? Today I want to briefly distinguish between two mechanisms that are well-known in some circles and less so in others.

Legal scholars might have heard somewhere about the idea of an 'essentially contested concept'. This term, originally coined by the Scottish philosopher W B Gallie, refers to concepts that are inherently evaluative in their use, but where the evaluation can be disputed by others, For example, debates on whether something (let's say, videogames) is 'art' depends on how one defines what is art, and there are multiple definitions that can be rationally defended. Acknowledging the potential divergences does not mean that no action is possible: for example, a government might decide to include (or exclude) videogame auteurs within a Universal Basic Income scheme for the arts. However, any decision on how the concept is to be construed does not follow from any internal logic of the concept, stemming instead from external considerations. That is, contestation is an unavoidable part of using the concept itself.

Essentially contested concepts are part and parcel of work in some regions of legal scholarship. In constitutional law, for example, Jeremy Waldron has drawn on the disputes surrounding the 2000 US elections to argue that the Rule of Law was invoked as an essentially contested concept, and that the ensuing contestation advanced our understanding of it. When it comes to the EU, Zenon Bankowski and Emilios Christodoulidis have proposed that European integration itself is essentially contested. In international law, the notion of sovereignty has also been framed as such, for example by Paul W Kahn. These and other invocations of contestation can play various roles. They can be used for invoking the need for more spaces for contestation, casting doubts on established frameworks, or showing strategies that are deployed for defusing political debates, among other uses. But, whenever something is framed as 'essentially contested', the spectre of politicization is always close by.

If some concepts are almost always surrounded by deep controversy, others tend to be accompanied by widespread agreement. Very few political actors will position themselves against the rights of children, or in favour of cancer — at least if debates are framed in such terms. As such, actors with very different commitments might agree that something must be done, and even on the general direction of action, even if substantial disagreement remains on how to proceed. In my book, I argue that 'technology neutrality' is one such concept: stakeholders seem to believe it is desirable but don't really agree on what it requires and how to achieve that.

One way to understand such concepts has been proposed by Christopher Pollitt and Peter Hupe. According to these authors, a 'magic concept' is very attractive to policy stakeholders due to a combination of four properties:

  1. Magic concepts are highly abstract;
  2. They have a strongly positive normative charge; (though the cancer example above suggests the margin for negative polarization)
  3. They appear to dissolve dilemmas and binary oppositions, thus offering an apparent way out of current controversies; and
  4. They move across domains, thus becoming widespread.

This flexibility makes it easier to build political agreement around certain policies. If everyone agrees transparency is good and desirable, one can encode it into law—or administrative rules, or the object of your interest–in sufficiently abstract terms and sort out conflicts later on. But, as Pollitt and Hupe warn, this flexibility creates some big risks.

Let's illustrate with three examples. First, a magic concept can be applied to domains in which it does not fit well, as Madalina Busuioc, Deirdre Curtin and I showed to be the case in attemts to substitute technical notions of transparency for actual disclosure. Second, using a magic concept can disguise incompatibilities between policies that are very different in implementation but can be reduced to a similar description, as Winston Maxwell and Marc Bourreau illustrate in the multiple meanings given to the concept in EU internet, telecommunications, and data protection law. Last but not least, the use of magic concepts affects the role of the actors responsible for sorting out incompatible interpretations at the moment of implementing policies. As is all too often the case, magic concepts do not eliminate policy problems, but can make them vanish with a sleight of hand.

Keeping in mind those two roles of concepts in policy controversies can be useful as a starting point for dealing with the 'so what?' question. If you are faced with something that looks like an essentially controversial concept, it might be worthwhile to spend some time with the question of whether the controversy is indeed essential to the concept, and if so, how policy and law take place nonetheless. Contrastingly, an approach to a magic concept in legal scholarship will often be an archeological work, in which you will need to excavate the elements of controversy from beneath the apparent layer of agreement. Either way, these notions can be useful for finding out whether and how the way we frame certain abstract debates can have implications for practical questions of the law.

Recommendations

No out-of-work recommendations this time, as most of my free time nowadays is being used to channel grief into preparations for move away from Luxembourg...or to ensure my Pokémon have flourishing lives. As for work stuff, here are some picks from the stuff I've been engagin with more recently:

Opportunities

Disclaimer: as usual, I am gathering these links purely for convenience and because I think they might be of interest to readers of this newsletter. Unless I explicitly say otherwise, I am not involved with any of the selection processes indicated below.

If you are interested in migration and asylum, the Odysseus Network will hold its annual summer school from 29 June to 10 July 2026. The programme can be followed in person or online, and the in-person modality also has the option of following courses in French. Apply by 15 May!

For my more senior readers, Maastricht University is looking for a Professor of Law in AI, Data Governance and Fundamental Rights. If that could be you, apply by 5 May.

At the University of Groningen, Leeuwarden campus, Oskar J Gstrein and Lukas Linsi are hiring for a PhD position on empirical legal studies of AI regulation and governance. Apply by 29 May.

Leiden University College and the Erasmus Center of Law and Digitalization will host a workshop on ‘Digital and AI Governance at a Time of Geopolitical Upheaval’ on 15-16 October 2026. Their call for abstracts is open until 12 June.

And now, the otter

three river otters standing on a wooden surface
Photo by Thomas Lipke / Unsplash

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