Digisprudence: the design of legitimate code

tags: Laurence Diver

Notes

digisprudence, a descriptive and normative lens through which to consider the legitimacy of digital systems that govern behaviour.

NOTER_PAGE: (2 . 0.16226415094339622)

framing the legitimacy of a digital system in terms of the aﬀordances

NOTER_PAGE: (2 . 0.3049056603773585)

synthesise the practical issue of how the material design of code regulates with a legal-theoretical view of what constitutes legitimate regulation

NOTER_PAGE: (2 . 0.4181132075471698)

code’s unique ability to regulate and, crucially, to constitute the terms of our behaviour.

NOTER_PAGE: (2 . 0.7343396226415094)

computational legalism, an extreme form of unreflective rule-following

NOTER_PAGE: (3 . 0.10566037735849056)

the standards that make legal norms formally legitimate ought mutatis mutandis to be applicable to other normative orders that enable and constrain behaviour

NOTER_PAGE: (3 . 0.19018867924528302)

consider the processes and tools that make up the ‘legislature’ where code is ‘enacted’

NOTER_PAGE: (3 . 0.8196226415094339)

private contexts within which this code is created are not subject to the legitimising procedural or formal standards of rule-making

NOTER_PAGE: (5 . 0.19018867924528302)

code can control behaviour more directly than can ‘true’ law, but simultaneously it lacks the latter’s mechanisms of ex ante legitimation and ex post remediation, i.e. its ‘legality’.

NOTER_PAGE: (5 . 0.5335849056603773)

If notionally sovereign state legislatures are bound by constitutions so that they cannot arbitrarily create rules in contravention of that ideal, then neither should this be possible for private enterprises in their creation of normative code

NOTER_PAGE: (6 . 0.3049056603773585)

Whether or not the producer of the code claims authority to regulate is a moot point

NOTER_PAGE: (6 . 0.3864150943396226)

point of departure then is the focus on the form of the design ‘rule’ itself, and the question of whether that form is legitimate

NOTER_PAGE: (7 . 0.41886792452830185)

Translation from textual norms to code-based norms invariably involves some level of modification

NOTER_PAGE: (7 . 0.6679245283018868)

unintended or unexpected constellations of normativity that are continually brought into being by digital artefacts

NOTER_PAGE: (8 . 0.2769811320754717)

To rely on substantive compliance would require an explosion of statutory rules to cover all the normative con gurations that code facilitates – plainly an unworkable idea.

NOTER_PAGE: (9 . 0.330566037735849)

Text-based laws are created in a world of legal- institutional speech acts 30 whose mode of existence relies on the delay, multi-interpretability, and ex post contestability of text as a medium

NOTER_PAGE: (11 . 0.5894339622641509)

code simply goes ahead and enforces some configuration of regulative force

NOTER_PAGE: (11 . 0.6732075471698112)

The statute that is improperly enacted or the contract that is improperly concluded are defeasible

NOTER_PAGE: (12 . 0.18867924528301885)

the power need not be valid for it to be exercised

NOTER_PAGE: (12 . 0.3041509433962264)

‘hermeneutic gap’ that exists between text and action allows for a space in which validity can be considered, whereas with the latter there is no such opportunity, either to arrest execution or, in many cases, even to observe the invalidity

NOTER_PAGE: (12 . 0.41962264150943396)

technological normativity can make compliance a necessity, either in the form of imposing a response to a given circumstance represented in the code’s ontology, or by constituting at the outset all the courses of action that the user can possibly take

NOTER_PAGE: (14 . 0.5230188679245282)

What diﬀers with code, however, is that the behaviour-shaping rules it applies are usually not open to scrutiny, and so the latent role of the law as the arbiter of last resort cannot be invoked

NOTER_PAGE: (14 . 0.6973584905660377)

However natural or ‘ready to hand’ these code artefacts and their processes might appear to us, they are none of them a given

NOTER_PAGE: (15 . 0.609811320754717)

concept of disaﬀordance points to the conscious and strategic choice of a designer to ‘enforce or restrict certain user behaviour’

NOTER_PAGE: (16 . 0.36)

When a designer embeds (dis)aﬀordances in the design of her artefact, she aﬀects what it is possible to do with that artefact, either expanding or contracting those possibilities

NOTER_PAGE: (17 . 0.1320754716981132)

One reason to contract possibilities: capability vs tractability tradeoffs.

Even in the most tyrannical state there is space to interpret, and even to disobey – the hermeneutic gap between the text of a norm on the page and its translation into behaviour in the world makes this at least a notional possibility. In the environments where code is designed, however, the elision of that gap is not only easy to do but is entirely standard

NOTER_PAGE: (18 . 0.4739622641509434)

the ‘text’ of the ‘rule’ (the source code) constitutes directly the geography of the artefact

NOTER_PAGE: (19 . 0.1328301886792453)

potentially the apex of legalism: the normative collapses into the descriptive – what was once requested becomes simply what is, or what will be

NOTER_PAGE: (19 . 0.24679245283018866)

‘veiling’, under strong legalism, of sovereign power, where the political reasons for a particular rule are deemed not to be the concern of the citizen

NOTER_PAGE: (19 . 0.4437735849056604)

Computational legalism thus tends towards a combination of brittleness, normative force, and lack of ex post control that is far in excess of even the most strongly legalistic of legal systems

NOTER_PAGE: (20 . 0.330566037735849)

BAs, then, are not passive textual instructions on what the ‘contracting’ parties ought to do, but rather they are ‘like “autonomous agents”

NOTER_PAGE: (24 . 0.24528301886792453)

if the court orders performance on the part of its designers to alter the code in order to remedy some illegality, it might not be technically possible to follow that order

NOTER_PAGE: (26 . 0.4181132075471698)

can a blockchain protocol that does not aﬀord ex post oversight, and thus does not aﬀord contestability, be said to be legitimate

NOTER_PAGE: (26 . 0.5056603773584906)

Legality seeks to maintain a connection between law as a system of behaviour-governing norms on the one hand and the principles that legitimate the sovereign’s creation of those norms on the other

NOTER_PAGE: (27 . 0.39094339622641505)

Fuller's principles of legality

general rather than arbitrary application

NOTER_PAGE: (28 . 0.10716981132075472)

not retroactive

NOTER_PAGE: (28 . 0.1328301886792453)

articulated clearly

NOTER_PAGE: (28 . 0.13358490566037734)

available for scrutiny

NOTER_PAGE: (28 . 0.13433962264150942)

not contradictory

NOTER_PAGE: (28 . 0.16075471698113206)

do not require the impossible

NOTER_PAGE: (28 . 0.16226415094339622)

constant through time

NOTER_PAGE: (28 . 0.19169811320754715)

congruent between their terms and how they are implemented

NOTER_PAGE: (28 . 0.19169811320754715)

Wintgens' principles of legisprudence

whether a rule is desirable at all

NOTER_PAGE: (28 . 0.5886792452830188)

whether the proposed rule is proportionate to the issue

NOTER_PAGE: (28 . 0.6181132075471698)

ongoing assessment of its eﬃcacy

NOTER_PAGE: (28 . 0.6483018867924528)

whether it is coherent

NOTER_PAGE: (28 . 0.6739622641509434)

Mapping legal legitimacy onto code legitimacy

NOTER_PAGE: (31 . 0.5388679245283019)

certain designs or business models will be a priori illegitimate if the aﬀordances are not or cannot be included to a suﬃcient degree

NOTER_PAGE: (31 . 0.6784905660377358)

contestability as an overarching concern

NOTER_PAGE: (32 . 0.21358490566037736)

it must be possible to question the code, and le a suit against its creator, in a court

NOTER_PAGE: (32 . 0.2392452830188679)

If the nature and extent of the code’s problematic eﬀects cannot be observed, however, traditional mechanisms of legal redress cannot be meaningfully invoked

NOTER_PAGE: (32 . 0.3230188679245283)

perhaps the development environment used by the designer to create digital products can similarly contain that work within constraints that encourage or even ensure the production of legitimate code.

NOTER_PAGE: (33 . 0.6988679245283018)

Power is shifting away from publicly-accountable legislators onto private actors

NOTER_PAGE: (36 . 0.5320754716981132)

Notes

digisprudence, a descriptive and normative lens through which to consider the legitimacy of digital systems that govern behaviour.

framing the legitimacy of a digital system in terms of the aﬀordances

synthesise the practical issue of how the material design of code regulates with a legal-theoretical view of what constitutes legitimate regulation

code’s unique ability to regulate and, crucially, to constitute the terms of our behaviour.

computational legalism, an extreme form of unreflective rule-following

the standards that make legal norms formally legitimate ought mutatis mutandis to be applicable to other normative orders that enable and constrain behaviour

consider the processes and tools that make up the ‘legislature’ where code is ‘enacted’

private contexts within which this code is created are not subject to the legitimising procedural or formal standards of rule-making

code can control behaviour more directly than can ‘true’ law, but simultaneously it lacks the latter’s mechanisms of ex ante legitimation and ex post remediation, i.e. its ‘legality’.

If notionally sovereign state legislatures are bound by constitutions so that they cannot arbitrarily create rules in contravention of that ideal, then neither should this be possible for private enterprises in their creation of normative code

Whether or not the producer of the code claims authority to regulate is a moot point

point of departure then is the focus on the form of the design ‘rule’ itself, and the question of whether that form is legitimate

Translation from textual norms to code-based norms invariably involves some level of modification

unintended or unexpected constellations of normativity that are continually brought into being by digital artefacts

To rely on substantive compliance would require an explosion of statutory rules to cover all the normative con gurations that code facilitates – plainly an unworkable idea.

Text-based laws are created in a world of legal- institutional speech acts 30 whose mode of existence relies on the delay, multi-interpretability, and ex post contestability of text as a medium

code simply goes ahead and enforces some configuration of regulative force

The statute that is improperly enacted or the contract that is improperly concluded are defeasible

the power need not be valid for it to be exercised

‘hermeneutic gap’ that exists between text and action allows for a space in which validity can be considered, whereas with the latter there is no such opportunity, either to arrest execution or, in many cases, even to observe the invalidity

technological normativity can make compliance a necessity, either in the form of imposing a response to a given circumstance represented in the code’s ontology, or by constituting at the outset all the courses of action that the user can possibly take

What diﬀers with code, however, is that the behaviour-shaping rules it applies are usually not open to scrutiny, and so the latent role of the law as the arbiter of last resort cannot be invoked

However natural or ‘ready to hand’ these code artefacts and their processes might appear to us, they are none of them a given

concept of disaﬀordance points to the conscious and strategic choice of a designer to ‘enforce or restrict certain user behaviour’

When a designer embeds (dis)aﬀordances in the design of her artefact, she aﬀects what it is possible to do with that artefact, either expanding or contracting those possibilities

the ‘text’ of the ‘rule’ (the source code) constitutes directly the geography of the artefact

potentially the apex of legalism: the normative collapses into the descriptive – what was once requested becomes simply what is, or what will be

‘veiling’, under strong legalism, of sovereign power, where the political reasons for a particular rule are deemed not to be the concern of the citizen

Computational legalism thus tends towards a combination of brittleness, normative force, and lack of ex post control that is far in excess of even the most strongly legalistic of legal systems

BAs, then, are not passive textual instructions on what the ‘contracting’ parties ought to do, but rather they are ‘like “autonomous agents”

if the court orders performance on the part of its designers to alter the code in order to remedy some illegality, it might not be technically possible to follow that order

can a blockchain protocol that does not aﬀord ex post oversight, and thus does not aﬀord contestability, be said to be legitimate

Legality seeks to maintain a connection between law as a system of behaviour-governing norms on the one hand and the principles that legitimate the sovereign’s creation of those norms on the other

Fuller's principles of legality

general rather than arbitrary application

not retroactive

articulated clearly

available for scrutiny

not contradictory

do not require the impossible

constant through time

congruent between their terms and how they are implemented

Wintgens' principles of legisprudence

whether a rule is desirable at all

whether the proposed rule is proportionate to the issue

ongoing assessment of its eﬃcacy

whether it is coherent

Mapping legal legitimacy onto code legitimacy

certain designs or business models will be a priori illegitimate if the aﬀordances are not or cannot be included to a suﬃcient degree

contestability as an overarching concern

it must be possible to question the code, and le a suit against its creator, in a court

If the nature and extent of the code’s problematic eﬀects cannot be observed, however, traditional mechanisms of legal redress cannot be meaningfully invoked

perhaps the development environment used by the designer to create digital products can similarly contain that work within constraints that encourage or even ensure the production of legitimate code.

Power is shifting away from publicly-accountable legislators onto private actors

Notes that link to this note