Code vs. Law: Not Always Equivalent

In an increasingly digital world, the phrase “code is law” has become a common mantra among technologists and cyberpunks. Coined by Lawrence Lessig in his book “Code and Other Laws of Cyberspace,” the term reflects the idea that software and algorithms can regulate behavior in digital spaces as effectively as legal codes do in the physical world. As programmers write the software that underpins everything from our social interactions to our financial systems, there’s a growing belief that code has an intrinsic authority akin to law. But is this belief justified? Does code truly possess the ultimacy of law, or is it, in reality, an entirely different species of ruleset?

To start with, law is a system of rules which has been developed over centuries, through legislature or precedent, and is enforced by a complex hierarchy of institutions ranging from police to courts. Its primary role is to resolve conflicts, provide justice, enforce social norms, and protect individuals’ rights. Laws are typically created through a democratic process or other forms of collective decision-making and are grounded on a set of moral and ethical foundations accepted by society.

On the other hand, code is a set of instructions written in a programming language understood by computers. It governs how a software program operates and interacts with other systems and users. While code has the capacity to control behavior and limit choices within digital architectures, it does so without the direct moral and ethical considerations intrinsic to law. Its creation is often the result of decisions by individuals or small groups, typically focusing on functionality and efficiency rather than the broader social impact.

The notion “code is law” breaks down when considering accountability and adaptability. Legal systems have mechanisms for holding people accountable for writing and enforcing unjust laws. Laws can be repealed, amended, or struck down through various democratic processes. Code, Is often proprietary, inscrutable or too complex for those it affects to easily scrutinize or alter it. The power to change code often rests in the hands of a select few, such as developers or companies, who may not be held to account in the same way public officials are.

While law has the built-in capacity to allow for interpretations in its application by judges, juries, or lawyers, code tends to be inflexible. It operates as written, even in cases where its application may result in outcomes that are absurd or unintended. Human subtleties and complex moral judgments simply cannot be anticipated and programmed into code with the same nuances afforded by human judgment in the context of law.

Legal frameworks encompass protections such as due process, equality before the law, and the right to appeal. These rights are designed to ensure fairness and justice within society. Code lacks these protections inherently. Users subject to code, for instance in social media or online marketplaces, often find themselves at the mercy of obscure algorithms with little recourse should a dispute arise.

Interoperability between different systems of law is a challenge, yet harmonization efforts exist through international laws and treaties. Conversely, interoperability between software can be even more problematic, and there is rarely a comprehensive “treaty system” that governs how different pieces of code from diverse developers and platforms interact.

Take, for example, the governance of blockchain and cryptocurrencies. Their underlying code dictates transaction irreversibility and wallet security, yet countless thefts and scams have left users without recourse as the code lacks a traditional legal framework for restitution. These incidents highlight a stark contrast between the finality of code and the nuanced flexibility in the law.

While legal systems value transparency to some extent in their operation and development, much code is not subject to such transparency. Proprietary algorithms that drive decisions in finance, insurance, and justice can have massive impacts on individuals’ lives, yet remain black boxes to those affected.

Ethical considerations are a mainstay in the interpretation and application of the law, aiming to reflect collective social values and principles. These necessarily involve human input and debate. Code, while it can be designed with ethical considerations in mind, often misses the breadth of discourse typically involved in the creation and revision of laws.

The idea that “code is law” fails to recognize the distinction between the forces that shape each domain. Governments, societies, and individuals have evolved legal and judicial systems through a mix of philosophy, culture, religion, politics, and history. Conversely, code is shaped by mathematical logic, engineering principles, and design choices focused on the performance of tasks within a system.

This is not to understate the influence of code in our modern society. Indeed, code does regulate behavior in digital spaces with increasing authority. In some ways, it accomplishes the objectives of law — but without many of the safeguards and with a different underlying ethos.

While code does possess regulatory power within its native digital realm, equating it to law underestimates the complexity and human-centered design of our legal systems. Code and law overlap and interact in profound ways, but they are distinct in their foundations, purposes, and methods of governance. As society wrestles with the implications of technology’s rapid growth, it is crucial to understand that while code can enforce certain rules, it is simply not always law. Bridging the divide between what code is capable of governing and what law should govern remains an essential challenge for the digital age.