By E. Su Ustun
Technology is evolving with an unprecedented speed and the impacts of this rapid evolution have already interpenetrated human lives. Particularly, in the post-covid process we all have faced how essential the technology has become in our lives. From shopping to education we used the technology and this digitalization trend has gained much more volume as it is also followed by the companies or institutions which saw the opportunity behind the crisis. The effects of the technology, however, are not that much obvious and simple actually. This evolution is also influencing our very basic behaviors and habitudes which means, in other words, it is redefining the fundamentals.
The law, in a few words, is a social discipline that regulates administrative issues and socio-economic relationships between people. Therefore, whenever a major change occurs in social or economic areas that will also mean that the earth is shaking for the law as well.
The idea of “code is law” was coined first by Lawrence Lessig in his book Code and Other Laws of Cyberspace in 1999 [1] . In his book Lessig put emphasis on how much importance have the internet and codes gained on regulating the behaviors of the internet users. So he was underlying the fact that there was a yawning gap between algorithmic platforms and the application of legally binding rules. Even though governmental codes, or legal regualtions are exclusively binding sources and superior than the algorithmic codes, it is not easy -and sometimes possible- to control, audit and detect the illegality. Nevertheless, the validity of the computer codes, according to this perspective, have no validity as long as they are not accorded to the governmental regulations[2]. To put it differently, algorithmic codes shall be created under the effect of the legal regulations.
With the development of the digital technology, as mentioned above, algorithms have become much more dominant in designating the behaviors of the internet society. Therefore, in such a conjuncture, the idea of translating regulations into codes and providing execution in the digital world is not really unforeseeable. Thus, regulating the relations and transactions in the digital world by means of the “code-fication” processes, to some extent, can be deemed as the integration of the law and technology and is quite parallel with the efforts of today’s legal-tech professionals.
On the other hand, law is code is another perspective which can be regarded as quite marginal and it gains more and more popularity despite its novelty. According to this understanding, the arbiters of the laws are not anymore the lawmakers and their abstract, unstable and vague statements; but rather clear and certain software codes[2]. The hardship of translating natural legal language into code language is an undeniable fact. Especially, some open-ended and nonobvious terms and concepts such as force majeure, good faith, or principle of proportionality– are essential to provide the justice and equity and cannot be predefined by the algorithms. Though the certainty seeked by this new understanding may be seen as advantageous in part, most especially regarding the high volume international trades, long terms drawbacks is likely to overweigh the short terms benefits.
Moreover, it seems obvious that this new perspective is, at least to some extent, is seeking ways to avoid governmental institutions and regulations. However, a rational and persuasive mechanism or an organisation could not have been set forth yet. Hence, it is a big question mark that what will the scenario be when the algorithmic certainty does not exist in the Heissenberg’s uncertain universe and unforeseen disputes arise? Or to which institution shall they apply to recover their loss? Even though personalized or case-by-case solution mechanisms come to mind at first, they will lack of legal certainty and foreseeability which may cause a catastrophe.
Despite the fact that the law has evolved many times throughout the history, one thing has remained same: for the sake of a healthy, secure and peaceful society the essentiality and perpetuity of the law. Therefore, under the given circumstances, it is not possible to make such a radical shift, particularly, as long as above mentioned deficiencies are not completed and a secure, well-organized and sustainable mechanism is not established.
[1] Lessig Lawrence, Code and Other Laws of Cyberspace,1999.
[2] Primavera De Filippi, Samer Hassan, Blockchain Technology as a Regulatory Technology: From Code is Law to Law is Code, First Monday, 2016