Platforms as Law: A speculative theory of coded, interfacial and environmental norms

tags: Digisprudence

Notes

the prospect that our modes of self-governance may undergo equally radical change should not be seen as necessarily adverse.

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Taking ‘code as law’ seriously

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discovery of the nomic character of computational code.

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‘code as law’ tends to remove the separation between a norm’s abstract validity and its concrete efficacy, collapsing the is/ought distinction that is fundamental to the modern understanding of law.

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bracketing the fact/norm distinction as an epistemological pre- supposition and entering the metaphysics or ontology of law

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Code has mostly been understood (arguably in Les- sig’s own work) to be ‘law’ only metaphorically — it is like law in some relevant sense, but it is not really law.

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regula- tory technologies can only be conceived of as ‘non- normative’.

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‘legal correla- tionism’,18 since, as long as it is espoused, the central problem of ‘code as law’ can only be how law could/should regulate code ‘law’

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equally important di- mension of speculation about what the alien af- fordances of computational law might turn out to be,

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condi- tion the legal character of computational law to the emulation of certain affordances of modern law. Computational ‘law’ is often referred to under scare quotes,26 not necessarily implying that computational code is not law, but suggesting that the question whether it is law or not may be conditioned on its ca- pability to reconstruct certain elements of law-as-we-know-it.

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Platform nomics

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describes the emergence of a nomic order through the development of simple technologies such as doors, fences and bridges: a door (though it does not link an abstract norm to a coercive sanction) concretely expresses a norm

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If modern legal thought reduces law to the form of ab- stract norms, a nomic order is primarily constituted of concrete norms, while normative abstraction appears as a secondary development.

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In contrast to the horizontal division of the surface of the earth into mutually exclusive territories, the nomic concept of platform allows for the vertical overlap of different legal orders.

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In Schmitt’s nomos of fences and bridges, legal norms are concrete and uncoded.

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In modern law, by contrast, norms are abstract and coded.

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for as long as ab- stract norms have existed, law has always been, in a fundamental sense, code-driven. Since the earliest ex- amples of legal codes, norms were expressed in the form of simple ‘if, then’ algorithms,

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no they weren't, and they mostly still aren't

Finally, in the ‘nomos of the cloud’, law becomes concrete and coded.

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distinguish between two types of norms: 1) coded norms or programs and 2) interfacial norms.

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Interfacial norms, in turn, both enable and constrain conducts immediately at the level of the platform. They are, however, the mediate product of the implementation of coded norms.

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Applications, interfaces and users

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The relation between any two contiguous levels of a platform stack may be called an interface.

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Thus, on the top levels of a platform stack, conducts are afforded to users by applications and offered to them through user interfaces.

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users do not coincide with pre-given human individuals, whether normative persons or bi- ological bodies.

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We might say that users do not use applications but enter into use with them

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Concluding remarks

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