8 Rebooting Code as Law: Conclusions and Next Steps
Laurence Diver · Edinburgh University Press eBooks · 2021
When technologies are always influencing human actions, we had better try to give this influence a desirable form. 1 Code is not law, but as this book has shown, that fact must not deter lawyers from taking an active interest in how it shapes and constitutes the behaviour and actions of citizens in a democracy.We critique the form taken by the legal rules that govern our lives, and we should do the same with code rules -especially since they are used increasingly as instruments to sidestep the supposed 'inefficiency' of text-based law that at its best respects, protects, and even makes possible our autonomy as citizens.This should be of concern to anyone interested in preserving the rule of law.This cross-disciplinary study has brought together the practical question of how code regulates with a legal-theoretical view of what constitutes legitimate regulation.Part I of the book sets out a descriptive analysis of code as a normative concern, from the perspectives of both design and legal theory, framing the problems so identified using the concept of computational legalism.In Part II, I discuss in greater depth the existing literature on what constitutes legitimate regulation, again from a legal-theoretical perspective (how legal rules are made, or designed), and in terms of the existing discussions of code by legal scholars.What becomes clear from the discussion in Chapter 5 is the lack of sustained attention on the ex ante nature of code, and thus the need to engage seriously with the practices of its production.Part III of the book -a synthesis of the first two parts -proposes a way forward from computational legalism, the central position being that the methods of ameliorating legalism in the legal realm ought to be applied in other normative domains, including -with appropriate modification -'code as law'.The result is the framework of digisprudential affordances set out in Chapter 6, 1 P-P Verbeek, 'Materializing morality: Design ethics and technological mediation' (2006) 31 Science, Technology, & Human Values 361, 370.8 Rebooting Code as Law: Conclusions and Next Steps