On Hildebrandt's 'Code-Driven Law'

Hildebrandt (2020) contributes some refreshing new terminology to the blockchain-law discourse. For instance, her notion of ‘code-driven law’ provides a useful analytic crutch for those presently excavating the enigmatic space between code and law. Her core argument is that “code-driven normativity scales the past..[since] it is based on insights from past decisions and cannot reach beyond them…[it simultaneously] freezes the future..[since] it cannot adapt to unforeseen circumstances due to the disambiguation inherent in code.” (78)

She calls this tactic ‘underdetermination’ since it is unable to fully account for the radical uncertainty of the human condition. To be sure, the whole argument revolves around temporality. Hildebrandt keeps reminding us, and rightly so, that code-driven law does not hope to predict the future but the ‘distribution of future data’. (73) The continued use and adoption of such law is inadvisable because it exerts an explicit influence on our present and an implicit one on our future.

Rather, she argues, we must return to ‘text driven normativity’ which leaves room for ambiguity and is therefore better suited to unforeseen exigencies. Although the political strand of her argument is not very prominent, one could easily extrapolate the value of ambiguity in law by linking it with democratic decision-making. Unsurprisingly, the two legal theorists Hildebrandt relies on are Hart and Dworkin, borrowing ‘open texture’ from the former and ‘integrity’ from the latter. But she forgets, perhaps, that both of them can be used to defend a technocratic society. Hart’s secondary rules derive legitimacy from the official class and Dworkin’s ‘Hercules’ is the very embodiment of it.

To a large extent, Hildebrandt’s basic advice – ‘keeping the rule of law on track’ (83) – is already being heeded by policy makers (e.g. see the recent push towards ethical AI). But what of those who have consistently argued that the rule of law is a western foil? And what if some of the principles she is urging us to defend are inherently in tension (say freedom and equality)? More importantly, however, what of ‘proportionality’ – the single most convenient crossroad for the law and code superhighways?