practical governance. However, it is a computationalist oversimplification of law’s
complexity to trust in the power of technology to solve problems of human
interaction. To some extent, software infrastructure can direct behaviour and
prevent conflicts, but, as it is impossible to predict all interactions, the need for
the safety valve of conflict management does not disappear. As the DAO hack
exemplifies, even the supposedly irreversible, trustworthy and fault-free blockchain infrastructures are not free from conflicts. Although the blockchain
network itself functions as predicted, the possibility of human error cannot be
removed as long as humans are involved in programming individual smart
contracts on the blockchain.
The idea that data-driven technologies could replace law presupposes that law
is simple, that it can be translated into clear-cut rules and programmed into
straightforward commands of if-then-else. However, law is far more complex
than these oversimplifications would lead us to believe, its flexibility and openendedness leaving us with much needed room for diversity of interpretation. We
should not overlook this complexity as purposeless jargon meant to protect the
entitlement of lawyers but acknowledge its significance as the result of legal
evolution over hundreds of years, and perceive the logic behind the shift from
casuistic regulation to generalised principles.
What are the normative implications of this justificatory crisis that cannot be
downplayed by a simple reinterpretation of existing narratives or the emergent ‘code
is law’ narrative? Law’s normativity lies in its function of upholding expectations
regardless of disappointment, in the certainty that an expectation is true although it
has this time been proved wrong. Private enforcement challenges the expectation
that only decisions reached in due process are enforced and enforcement is granted
only after this fairness is evaluated by an independent court. The expectation can no
longer be upheld. In addition, the lack of transparency in private enforcement has
implications on the renewal of expectations, as no public precedents are created that
would provide a basis for future expectations. It becomes unclear what exactly we
should expect – confusion about when expectations are met and when they are
disappointed. If no distinction between fulfilment and disappointment can be made,
law’s normativity starts to unravel, and with it the overall trust in the legal system’s
ability to provide stability.
The insolubility of the justicatory crisis leaves us with unclear expectations. If
sovereignty, consent and access to justice narratives fail when it comes to private
enforcement, should the narratives still be preserved as bases for expectations? Or
is there yet another potential source for law’s continuity that follows from the
structural coupling between the legal system and the use of ICT, perhaps by
another interpretation of the ‘code is law’ narrative? It remains to be seen
whether an option for regulating the use of coercion within these new technologically enabled environments can be found by following a similar logic to that of
blockchain infrastructure, namely decentralised law. This possibility needs to be
examined further in the hopes of developing new governance models that
respond to the new irritant without resorting to such oversimplifications as the
‘code is law’ narrative currently does.
Conclusions 195
complexity to trust in the power of technology to solve problems of human
interaction. To some extent, software infrastructure can direct behaviour and
prevent conflicts, but, as it is impossible to predict all interactions, the need for
the safety valve of conflict management does not disappear. As the DAO hack
exemplifies, even the supposedly irreversible, trustworthy and fault-free blockchain infrastructures are not free from conflicts. Although the blockchain
network itself functions as predicted, the possibility of human error cannot be
removed as long as humans are involved in programming individual smart
contracts on the blockchain.
The idea that data-driven technologies could replace law presupposes that law
is simple, that it can be translated into clear-cut rules and programmed into
straightforward commands of if-then-else. However, law is far more complex
than these oversimplifications would lead us to believe, its flexibility and openendedness leaving us with much needed room for diversity of interpretation. We
should not overlook this complexity as purposeless jargon meant to protect the
entitlement of lawyers but acknowledge its significance as the result of legal
evolution over hundreds of years, and perceive the logic behind the shift from
casuistic regulation to generalised principles.
What are the normative implications of this justificatory crisis that cannot be
downplayed by a simple reinterpretation of existing narratives or the emergent ‘code
is law’ narrative? Law’s normativity lies in its function of upholding expectations
regardless of disappointment, in the certainty that an expectation is true although it
has this time been proved wrong. Private enforcement challenges the expectation
that only decisions reached in due process are enforced and enforcement is granted
only after this fairness is evaluated by an independent court. The expectation can no
longer be upheld. In addition, the lack of transparency in private enforcement has
implications on the renewal of expectations, as no public precedents are created that
would provide a basis for future expectations. It becomes unclear what exactly we
should expect – confusion about when expectations are met and when they are
disappointed. If no distinction between fulfilment and disappointment can be made,
law’s normativity starts to unravel, and with it the overall trust in the legal system’s
ability to provide stability.
The insolubility of the justicatory crisis leaves us with unclear expectations. If
sovereignty, consent and access to justice narratives fail when it comes to private
enforcement, should the narratives still be preserved as bases for expectations? Or
is there yet another potential source for law’s continuity that follows from the
structural coupling between the legal system and the use of ICT, perhaps by
another interpretation of the ‘code is law’ narrative? It remains to be seen
whether an option for regulating the use of coercion within these new technologically enabled environments can be found by following a similar logic to that of
blockchain infrastructure, namely decentralised law. This possibility needs to be
examined further in the hopes of developing new governance models that
respond to the new irritant without resorting to such oversimplifications as the
‘code is law’ narrative currently does.
Conclusions 195