Anarchy, State, and Blockchain Utopia: Rule of Law versus Lex Cryptographia

General Principles and Digitalisation, Hart Publishing, Forthcoming

17 Pages Posted: 22 Nov 2019

See all articles by Thibault Schrepel

Thibault Schrepel

Harvard University (Berkman Center); Utrecht University School of Law; University Paris 1 Panthéon-Sorbonne

Date Written: November 12, 2019

Abstract

Imagine a space in which the Rule of Law does not have the same prevalence it has in the real space. Imagine a space where fundamental rights are created and enforced by the technology, a space in which your rights are absolute, meaning that you enjoy no limits on them in exchange for not being able to do anything in case of a violation of these rights.

Would you enter it? Would you be willing to trade a few of your existing rights to get new ones? Would you also be ready to trade some of them in return for further services? Those are the questions I try to answer in this article. Written as part of a collective book on “General Principles and Digitalisation,” it engages with Robert Nozick’s idea (former Professor of Philosophy at Harvard University) whereby different ecosystems can coexist for the better, and applies it to the realm of fundamental rights.

It consists of two main sections.

First, this article aims to explain why blockchain raises new legal challenges that have a significant impact in terms of fundamental rights. The State, as it is conceived in our Western societies, has a monopoly of force and justice on its territory to protect the rights of its citizens. Within blockchain, the exercise of such a monopoly is made more complex. We show, however, that this partial ineffectiveness of the Rule of Law is offset by the emergence of another ecosystem—here referred to as the Lex Cryptographia ecosystem—in which it is not the State that ensures the protection of fundamental rights, but the technology.

The second chapter discusses how, in the absence of Rule of Law enforceability, users can protect their fundamental rights through/on blockchain thanks to its cryptographic architecture. As such, the Lex Cryptographia ecosystem is not an anarchy to the extent that rules, although cryptographic in nature, apply. In fact, the emergence of blockchain gives rise to an alternative balance for fundamental rights, which is coexisting with the current balance guaranteed by the Rule of Law ecosystem. In it, we show that the duty to protect and enforce fundamental rights is often transferred to citizens. It creates duties and opportunities for them as for the State that may be tempted to hinder the coexistence of the alternative ecosystem.

Keywords: blockchain, human rights, fundamental rights, rule of law, lex cryptographia, democracy, legal philosophy

JEL Classification: K38, K33, K10, K20, K30, K39, K40

Suggested Citation

Schrepel, Thibault, Anarchy, State, and Blockchain Utopia: Rule of Law versus Lex Cryptographia (November 12, 2019). General Principles and Digitalisation, Hart Publishing, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3485436

Thibault Schrepel (Contact Author)

Harvard University (Berkman Center) ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

University Paris 1 Panthéon-Sorbonne ( email )

France

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