The Alegality of Blockchain Technology

Policy and Society, Forthcoming

19 Pages Posted: 6 Jan 2022 Last revised: 22 Jan 2022

See all articles by Primavera De Filippi

Primavera De Filippi

Université Paris II - Panthéon-Assas

Morshed Mannan

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); The New School

Wessel Reijers

European University Institute

Date Written: December 10, 2021

Abstract

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

Suggested Citation

De Filippi, Primavera and Mannan, Morshed and Reijers, Wessel, The Alegality of Blockchain Technology (December 10, 2021). Policy and Society, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4001696

Primavera De Filippi (Contact Author)

Université Paris II - Panthéon-Assas ( email )

12 place du Pantheon
Paris cedex 06, 75231
France

Morshed Mannan

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

The New School ( email )

66 Fifth Avenue
New York, NY 10011
United States

Wessel Reijers

European University Institute ( email )

Villa Schifanoia
133 via Bocaccio
Firenze (Florence), Tuscany 50014
Italy

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