Augmented Law -Formalism in Blockchain

Abstract

The relationship between law and code has been widely debated and scholarship exploring the regulatory capacities of code itself is wrestling with the conceptual questions posed by the increased relevance of digital governance. Blockchain technology, with its decentralised automated rule application and enforcement, is discussed as particularly potent techno-legal infrastructure. Automation and the idea of an unambiguous language inscribed in code promise not only the potential to replace law, but to effectively enhance law by offering an augmented ordering technology. In response to the ambitions of disruption and displacement, the paper explores the legalism of blockchain in relation to a particular stream of legal thinking, a commitment to a renewed and reinforced version of formalism, or what we call hyper-formalism. We trace this development through the codification of law into blockchain protocols (code-ified law), the transition towards self-executing legal mechanisms facilitated by smart contracts (automated law), and the expansion of legal paradigms through the integration of blockchain's capabilities (augmented law). A strong will theory coupled with automated rule application makes blockchain the pinnacle of (hyper-) formalist legal thought. As such it runs the risk of combining the most exclusionary aspects of formalism based on representational demands, with a perfect transactional infrastructure driven by a market-logic. We conclude with a brief sketch of critical legal approaches responding to these tendencies.

Keywords: blockchain, law and technology, legal theory, legal formalism, law and artificial intelligence

JEL Classification: K1