access to justice narratives used in its place, it becomes necessary to ask whether a
structural coupling between law and technology could provide a way forward.
Early sketches of such coupling can be found in the discussions on self-enforcing
smart contracts built on decentralised technological infrastructure, where the
claim ‘code is law’, coined by Professor Lawrence Lessig, is used to contest the
need for any conflict management mechanisms.
8.2 Justification through technology: the promise of blockchain
for conflict prevention?
This section addresses the emergence, potential and pitfalls of another candidate
for a justificatory narrative: the idea that the technological infrastructure itself
could provide justification for private enforcement. Thus, the use of coercion
would be justified by the narrative consisting of a structural coupling between
systems of law and use of ICT. The discourse around blockchains, the technological infrastructure behind cryptocurrencies, is contributing to the justificatory
narrative of ‘code is law’, where the code is the primary form of governance. This
means that the number of possible actions is limited on the level of code and
there is no way of going against these premediated models, to behave
differently.
4 This narrative supposes a technological network formed with the
help of the markets, where the state becomes redundant and national legal
systems are replaced by the code infrastructure, a decentralised system which
does not rely on centralised authorities such as states or central banks.
The blockchain infrastructure provides an interesting insight into the justificatory
crisis of private enforcement, for two reasons. From the theoretical perspective,
where the focus is on justifying the use of coercion through law’s structural
couplings, conversations around blockchains depict yet another justificatory narrative. This narrative, however, is not built around the same tension between law and
state, private and public, as sovereignty; it does not presuppose the existence of any
central authority besides the network itself. The potential of this for justification is
yet to be evaluated, but the possibility of a new justificatory model is intriguing.
From the practical perspective, this potential is reworded as a possibility of
improved redress for low-intensity disputes without reference to the state. The
promise of this ‘code is law’ narrative is to produce a concrete redress mechanism
that would not require multilateral Conventions or trust placed in any central
authority but would still provide public, transparent and fair governance for
individual conflicts. Instead of trusting in a central authority and its control, in
blockchain networks assumptions on the validity of a certain action are based on
the network’s decentralisation, the state of the network continuously reconciled
between networked actors.
In order to evaluate what the ‘code is law’ narrative entails for the privatisation
of coercion, we need to understand the complex blockchain infrastructure and
how it enables self-enforcing arrangements, called ‘smart contracts’. Despite the
hype around the allegedly regulation-averse nature of blockchain, the vulnerabilities in the code, which have led to vast amounts of digital assets being stolen or
182 New ways forward?
structural coupling between law and technology could provide a way forward.
Early sketches of such coupling can be found in the discussions on self-enforcing
smart contracts built on decentralised technological infrastructure, where the
claim ‘code is law’, coined by Professor Lawrence Lessig, is used to contest the
need for any conflict management mechanisms.
8.2 Justification through technology: the promise of blockchain
for conflict prevention?
This section addresses the emergence, potential and pitfalls of another candidate
for a justificatory narrative: the idea that the technological infrastructure itself
could provide justification for private enforcement. Thus, the use of coercion
would be justified by the narrative consisting of a structural coupling between
systems of law and use of ICT. The discourse around blockchains, the technological infrastructure behind cryptocurrencies, is contributing to the justificatory
narrative of ‘code is law’, where the code is the primary form of governance. This
means that the number of possible actions is limited on the level of code and
there is no way of going against these premediated models, to behave
differently.
4 This narrative supposes a technological network formed with the
help of the markets, where the state becomes redundant and national legal
systems are replaced by the code infrastructure, a decentralised system which
does not rely on centralised authorities such as states or central banks.
The blockchain infrastructure provides an interesting insight into the justificatory
crisis of private enforcement, for two reasons. From the theoretical perspective,
where the focus is on justifying the use of coercion through law’s structural
couplings, conversations around blockchains depict yet another justificatory narrative. This narrative, however, is not built around the same tension between law and
state, private and public, as sovereignty; it does not presuppose the existence of any
central authority besides the network itself. The potential of this for justification is
yet to be evaluated, but the possibility of a new justificatory model is intriguing.
From the practical perspective, this potential is reworded as a possibility of
improved redress for low-intensity disputes without reference to the state. The
promise of this ‘code is law’ narrative is to produce a concrete redress mechanism
that would not require multilateral Conventions or trust placed in any central
authority but would still provide public, transparent and fair governance for
individual conflicts. Instead of trusting in a central authority and its control, in
blockchain networks assumptions on the validity of a certain action are based on
the network’s decentralisation, the state of the network continuously reconciled
between networked actors.
In order to evaluate what the ‘code is law’ narrative entails for the privatisation
of coercion, we need to understand the complex blockchain infrastructure and
how it enables self-enforcing arrangements, called ‘smart contracts’. Despite the
hype around the allegedly regulation-averse nature of blockchain, the vulnerabilities in the code, which have led to vast amounts of digital assets being stolen or
182 New ways forward?