Vol. 1 No. 3 (2023): Code-driven Computational Law

Papers from the COHUBICOL Philosophers' Seminar 'The Legal Effect of Code-Driven "Law"?' (Brussels, November 2021).

Articles

  • The Structure and Legal Interpretation of Computer Programs

    James Grimmelmann

    This is an essay about the relationship between legal interpretation and software interpretation, and in particular about what we gain by thinking about computers and programmers as interpreters in the same way that lawyers and judges are interpreters. I wish to propose that there is something to be gained by treating software as another type of law-like text, one that has its own interpretive rules, and that can be analysed using the conceptual tools we typically apply to legal interpretation. In particular, we can usefully distinguish three types of meaning that a program can have. The first is naive functional meaning: the effects that a program has when executed on a specific computer on a specific occasion. The second is literal functional meaning: the effects that a program would have if executed on a correctly functioning computer. The third is ordinary functional meaning: the effects that a program would have if executed correctly and was free of bugs. The punchline is that literal and ordinary functional meaning are inescapably social. The notions of what makes a computer ‘correctly functioning’ and what makes a program ‘bug free’ depend on the conventions of a particular technical community. We cannot reduce the meaning and effects of software to purely technical questions, because although meaning in programming languages is conventional in a different way than meaning in natural languages, it is conventional all the same.

    Reply by Marieke Huisman, University of Twente.

  • Augmented Law Formalism in Blockchain

    Delphine Dogot, Andrea Leiter

    The relationship between law and code has been widely debated and scholarship exploring the regulatory capacities of code itself, is wrestling with the conceptual questions posed by the increased relevance of digital governance. Blockchain technology, with its decentralised automated rule application and enforcement, is discussed as particularly potent techno-legal infrastructure. Automation and the idea of an unambiguous language inscribed in code, promise not only the potential to replace law, but to effectively enhance law by offering an augmented ordering technology. In response to the ambitions of disruption and displacement, this paper explores the legalism of blockchain in relation to a particular stream of legal thinking: hyper-formalism, a commitment to a renewed and reinforced version of formalism. We trace this development through the codification of law into blockchain protocols (code-ified law), the transition towards self-executing legal mechanisms facilitated by smart contracts (automated law) and the expansion of legal paradigms through the integration of blockchain's capabilities (augmented law). A strong will theory coupled with automated rule application makes blockchain the pinnacle of (hyper-) formalist legal thought, as such, it runs the risk of combining the most exclusionary aspects of formalism based on representational demands, with a perfect transactional infrastructure driven by a market-logic. We conclude with a brief sketch of critical legal approaches that respond to these tendencies.

    Reply by Balazs Bodo, University of Amsterdam

  • Source Code Criticism On Programming as a Cultural Technique and its Judicial Linkages

    Markus Krajewski

    Despite the growing body of research into cultural techniques, questions regarding the digital, such as the operation of algorithms, have remained underexplored in this field of media studies. I will meet this desideratum by examining programming as a cultural technique. Similar to methods in Critical Code Studies (e.g., by Mark Marino) this includes to situate algorithms in a discursive and historical context by elucidating code through systematic commentary, making software transparent by critical analysis. The following is an attempt to shine some light into the black box, first by examining the varying modes of creating inaccessibility that make it difficult to understand and reconstruct code, and then by proposing a method that could act as a remedy for the opacity of algorithms. My approach aims to narrativise, historicise, and discursivise code by means of extensive commentary, in order to provide a lever to open the black boxes of both AI processes and deterministic execution of code.

  • Abracadabra! Law, Language, and Agency in the Digital Real

    Jason G. Allen

    This article explores the question of automation — and the apparent “agency” of automation systems — as a problem for legal theory. It frames this inquiry by drawing certain parallels between magic, law and computer science that turn on the role of language in constituting “worlds” or domains of reality as well as (just) presenting information. With a focus on current developments in distributed ledger technology and AI, it sets out an initial, programmatic sketch of an emerging approach to the digitalisation of law and legal reality, which could be termed “digital realism”. This draws on various conceptual resources including Oxonian language philosophy, social ontology, institutional legal theory and Scandinavian Legal Realism. Together, these permit a view that explains the interaction of human and technological components in a complex and increasingly blended social fabric.

    Reply by Lea Frermann, The University of Melbourne.

    The publishing update concerns the above name and title of the reply to the article.

  • Rules, judgment and mechanisation

    Mazviita Chirimuuta

    This paper is a philosophical exploration of the notion of judgment, a mode of reasoning that has a central role in legal practice as it currently stands. The first part considers the distinction proposed by Kant, and recently explored historically by Lorraine Daston, between the capacity to follow and execute rules and the capacity to determine whether a general rule applies to a particular situation (that is, judgment). This characterisation of judgment is compared with one proposed by Brian Cantwell Smith, as part of an argument that current AI technologies do not have judgment. The second part of the paper asks whether digital computers could in principle have judgment and concludes with a negative answer.

    Reply by William Lucy, University of Durham.