Augmented Order: The Hyperformalism of Blockchain or Blockchain as Trans-legalism

Paper presentation, Philosopher’s Seminar 2021, ‘Legal effects of ‘code-driven law’?’, COHUBICOL, Vrije Universteit Brussel – VUB – With co-author Andrea Leiter, 11-12 nov. 2021, Brussels.

Abstract

Prompted by the theme of the workshop ‘Legal effects of ‘code-driven law’?’, we propose to engage with code-driven law, or blockchain-based normativity, through an inquiry into the role of form and formalism. Contrary to the claims of disruption and displacement of law through technology, the paper explores the relationship between law and code in blockchain technology as one of affirmation and continuation of a particular stream of legal thinking, a commitment to a strong, yet crude version, of formalism. A strong will theory coupled with automated rule application makes blockchain the pinnacle of formalist legal thought. This automation and the fantasy of unambiguous language in code also indicate that blockchain technology attempts to enhance human law by superseding the limitations of the human mind with the help of technology. Depending on the angle of the inquiry, this augmentation can either be read as hyper-formalist, where the greatest danger is perceived to stem from a loss of humanism, or it can be read as ‘trans-legalist’ where the trans-humanism espoused by the project is problematic in light of the disembodied, representational relation to life it creates. We draw on familiar critiques of formalist law to make the ordering proposition of blockchain as a ‘hyper-formalist’ project more legible to legal scholars, while pointing to the limitations of such a critique in grasping the ‘trans-’ aspect of the technology.