The Normativity of Code as Law: Toward Input Legitimacy
14 Pages Posted: 7 Sep 2011
Date Written: September 7, 2011
In the debate on how the new information and communication technologies impact on democratic politics the role played by the digital architecture seems to be underrated. In particular, while a lot of attention has been paid to the possibilities that new technologies open up to democratic action, few works have attempted to look at how democracy may help in shaping technologies. By adopting as a starting point the approach known as ‘code as law’, the paper aims at two objectives: to re-affirm the importance of discussing normative principles to guide the process of code writing in order to reinvigorate the debate; to claim the importance of input reasons when deciding which principles should be chosen. After having remarked that code is relevant for establishing democratic norms, the paper briefly tackles with the main attempts by European scholars to deal with this issue. Then, a couple of practical examples of how code impacts on democratic rights are sketched out. In the last section of the paper a shift from an output-based approach to the legitimacy of code to an input-based is advocated. In other words, an inquiry into the legitimacy of code should focus on its production.
Keywords: code as law, normative principles, electronic democracy, reasons
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