The Alegality of Blockchain Technology
Policy and Society, Forthcoming
19 Pages Posted: 6 Jan 2022 Last revised: 22 Jan 2022
Date Written: December 10, 2021
Similar to the early days of the Internet, today, the effectiveness and applicability of legal regulations are being challenged by the advent of blockchain technology. Yet, unlike the Internet, which has evolved into an increasingly centralised system that was largely brought within the reach of the law, blockchain technology still resists regulation and is thus described by some as being “alegal”, i.e., situated beyond the boundaries of existing legal orders, and therefore challenging them. This article investigates whether blockchain technology can indeed be qualified as alegal, and the extent to which such technology can be brought back within the boundaries of a legal order by means of targeted policies. First, the article explores the features of blockchain-based systems which make them hard to regulate, mainly due to their approach to disintermediation. Second, drawing from the notion of alegality in legal philosophy, the article analyses how blockchain technology enables acts that transgress the temporal, spatial, material and subjective boundaries of the law, thereby introducing the notion of “alegality by design” —as the design of a technological artefact can provide affordances for alegality. Third, the article discusses how the law could respond to the alegality of blockchain technology through innovative policies encouraging the use of regulatory sandboxes to test for the ‘functional equivalence’ and ‘regulatory equivalence’ of the practises and processes implemented by blockchain initiatives.
Keywords: blockchain technology, decentralized autonomous organisations, alegality, legal theory, legal philosophy, blockchain governance, regulatory sandbox
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