Law as Code

Exploring Information, Communication and Power in Legal Systems

Abstract

This paper is an inquiry into the informational nature of legal systems to arrive at a new understanding of law-society interactions. Katharina Pistor in her book Code of Capital reveals how the legal ‘coding’ of ‘capital’ has deepened wealth inequality but does not offer an in-depth exploration or definition of ‘legal coding’. In her critical response to ‘legal singularity’ as a proposed solution for making law more inclusive and accessible, Jennifer Cobbe calls for a closer look at the structural role law plays in society and how it has come to exclude, marginalise and reinforce power gaps. The paper aims to link Pistor’s project with Cobbe’s critical questions by exploring ‘law as code’ and modelling juridical communication and information flows in a legal system. For this purpose, I use two external frames — Claude Shannon’s information theory and Niklas Luhmann’s systems theory — to explore ways in which the legal system is exclusive, reflexive, and adaptive in the ways it interacts with society. An attempt to model information flows within (using Shannon) and beyond (using Luhmann) the boundaries of law reveals the influence of experts, their identities, and their lived experiences on both the translation and transmission of legal information. The paper is hopefully a starting point for more cross-disciplinary conversations aimed at addressing the structural issues with the way law shifts and reinforces power.

Reply by Jannis Kallinikos, LUISS Guido Carli University.