UNDERSTANDING "CODE<>LAW"

Law as Information in the Era of Data-Driven Agency

• The law provides information about the consequences of our behaviours, a statement that assumes an external perspective on the law (for instance a bad man’s perspective, or a homo economicus).
• On the other hand, it also means that law informs our interactions, a statement that assumes an internal perspective.
• This is what links written law with the turn from a rule by law to a rule of law; externalisation of the norms that orient our actions liberates us from their hidden cybernetic effects.
• Modern law, grounded in written legal text (legislation, case law and doctrine) initially provided those living under the rule by law with the idea of reliable predictions of how their government will likely respond to their actions.
• Enacting written legislation enabled a sovereign rule that required or prohibited specific actions under threat of enforcement, thus evoking a measure of legal certainty and societal trust while steering individual and collective action.
• The subtle but critical transition from rule by law to rule of law allowed for the consolidation of this trust, based on the reinvention of sovereignty as a system of checks and balances, or countervailing powers.
• Once the sovereign could be forced to live by its own laws by attributing the power to test its compliance to an independent subdivision of that same sovereign, written law mutated from mere ‘information about the law’ to ‘a law that actually informs the consequences of our actions’.
• The birth of positive law, with its res judicata and litis finiri oportet, became an instrument to regulate large populations, but – ultimately and simultaneously – also turned into an instrument to regulate the regulator.
• If the legislative and executive subdivisions of a sovereign know that their enactments will be interpreted and enforced by an independent subdivision they will reconsider their enactments in the light of potential uncertainty of such enactments, as this will boomerang back to their own operations.
• They will have to anticipate the enforceable expectations raised by their rule-makings.

• This is not a matter of moral economy or conceptual elaboration but foremost a matter of procedural justice in the sense of architecting effective remedies.

• Once democracy became part of the equation, sovereign rule became selfgovernment, creating and confirming a double form of transparency:
  (1) people live under rules of their own making (democratic participation), and
  (2) the application of those rules can be contested in a contradictory procedure capable of opening the black box of their interpretation (the Rule of Law).

Modern law has thus been instrumental in establishing one of the most successful cybernetic systems avant la lettre, that of constitutional democracy.
- Note that the checks and balances are achieved by making the success of the control dependent on those who are to be controlled, instituting a pertinent and permanent feedback loop in both directions (between rulers and ruled).
- This entails that those ruled are not seen as mere objects to be controlled, but subjects participating in self-rule, accountable for their actions to their government and to each other.
- **This is not equivalent with self-regulation per se, but can be defined as a specific cast of self-regulation, that is contingent upon a particular structure that generates iterative reflection on the rules that define the societal probability space.

-lawyers need to engage with the concepts, operations and grammar of
computer science and information theory, collaborating to redesign the upcoming data-driven architectures to accommodate human action, to safeguard the fundamental uncertainty and indeterminacy it assumes, and to protect the pinch of freedom and autonomy that defines us.
-We need to move beyond merely embracing or critiquing the mathematical theory of information, to an engagement with the assumptions of what turns a data point into an agent of intervention.
-**We must proceed to build contestation into the heart of the
upcoming cyberphysical architectures, notably requiring alternative ML algorithms and open source code to make sure that defaults can be contested andreset.

-We must explain to the architects of the onlife world that law is not just
information about the legal effect of our actions, but also the performance of
that effect, while demonstrating that the force of law is not equivalent with the effects of computer code.