I think that protocols can have a great impact on how our legal systems work. Protocols have proven to be unreasonably sufficient when functional. Imagine if we could regulate basic human conduct with protocols: no bureaucracy, no regulatory costs and maybe no lawyers. I propose two different approaches on how protocols can be used for regulatory/normative purposes. The first approach asks the question on whether a society can actually be governed through protocols. The second approach explores the idea that through technology, law will morph into individual directives delivered in real time. Protocols appear to be the best solution to administrate such digital future.
First approach: Protocols as a substitute for legal systems
Protocols are self sufficient instructions to attain a predetermined result, whereas legal systems are incremental by definition. The job of a lawyer is to find loopholes in regulations to accommodate their clients needs. Law and regulation are incremental since legislators and regulators want to catch up and close those loopholes in order to obtain absolute compliance.
We are condemned to a regulatory inflationary phenomena that paralyzes business and creates regulatory moats for a few players. All systems are incremental and the larger the system the more it’s likely to fail. The more we regulate the more we expose ourselves to unforeseen results of different orders. Every law system should follow the “De minimis” principle and regulate only what is really necessary in the least intrusive way. Protocols are, in my opinion, the best suited to make work a legal system with minimum necessary and without introducing entropy. Can we change law for protocols? Can a society run on protocols and not law?
Protocols consist of specific, detailed instructions designed to achieve a predefined outcome. They are often precise and finite, clearly delineating what is allowed and what is not. In computing, protocols are self-executing and inherently unambiguous, which aids in automation and consistency (as we know protocols are unreasonably self sufficient).
Legal systems are often more nuanced and open-ended than protocols. They evolve incrementally through legislation, judicial interpretation, and regulatory changes. The incremental nature reflects the diversity and complexity of human societies, which often require exceptions, adjustments, and interpretations to address novel situations.
Lawyers, in their advocacy for clients, often exploit ambiguities or inconsistencies in laws to achieve favorable outcomes. This process reveals the inherent flexibility of legal systems, which can adapt through case law or legislative reform in response to such challenges.
As societies evolve, so do their laws. The desire to achieve comprehensive compliance leads to ever-increasing layers of regulation, creating what you call “regulatory inflation.” This incremental addition of rules aims to cover new scenarios and close loopholes, but it can also lead to an overly complex system that is hard to navigate and enforce.
Protocols are inherently rigid, designed for consistent application in predictable scenarios. Legal systems, on the other hand, need flexibility to handle the unpredictability of human behavior. A system entirely reliant on protocols might struggle with ambiguity, unique cases, and societal changes.
We do not know how things work, even though we pretend we do. There are always unforeseen consequences of regulating things we do not fully understand.
The “De Minimis” principle suggests that laws should focus on significant matters and avoid over-regulation of minor issues. A large percentage of all the things that we regulate could function via protocols, thus avoiding the use of state resources for supervision and enforcement. Protocols could also help simplify legal processes in specific areas by automating routine matters.
However, applying protocol-like rules to all aspects of governance would be difficult because society is inherently diverse and complex, requiring constant adjustments and human interpretation.
While it might not be feasible to replace laws entirely with protocols, the idea can be partially applied:
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Technologies like blockchain and smart contracts can automate certain legal agreements, enforcing protocol-like rules within predefined scenarios. These can streamline and enforce contractual agreements but remain limited to specific, well-defined situations.
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The legal system could adopt more protocol-like structures in areas where consistency is critical, such as administrative procedures or regulatory compliance. This could reduce the regulatory burden and improve efficiency in certain contexts.
Second approach: A Nimbusian Legal System. Protocols as administrators and adjudicators.
Law is going to shift from a system of general and abstract legal norms to a system of machine produced individual digital directives. Protocols are the only way to ensure the viability of this new legal paradigm.
The digitalization of law represents a significant evolution in how laws are conceived and applied in modern society. This transformation implies that traditionally written rules transcend to become directives capable of being automatically executed by computer systems. This phenomenon marks the transition from a normative universe, based on legal texts subject to interpretation, to a cognitive scenario, where the understanding and application of law are the product of computational and logical processes.
In the traditional context, the interpretation of legal norms often falls to the discretion of legal operators, such as judges and lawyers, who seek to unravel the legislator’s intention and the appropriate application of the law to specific cases.
However, with the digitalization of law, this margin of interpretation is reduced or even eliminated. Rules are programmed to be executed precisely, with algorithms that make decisions based on data and predefined parameters.
Thus, both the content and the form of law transform. Digitalization not only changes the way law is accessed and interpreted but also reinvents the very structure of law. Legal norms evolve to be formulated in such a way that they can be processed by algorithms
This digital evolution will lead us to the “nimbusian” systems, where the computational power of the cloud will allow the creation of rules tailored to individuals based on their real-time behavior.
We have borrowed the term “nimbusian” from the novel Purity by Jonathan Franzen, in which it is imagined that in the not too distant future the justice apparatus that we currently know will be unnecessary since we will have access to all of a person’s information in real time. This will make it unnecessary to maintain a system of assumptions, presumptions and evidence in order to prove that someone committed a fault or crime. We believe that this description is very close to where legal systems will actually evolve.
We will replace ministries, agencies, and entire bureaucracies with computer code that can execute ultra-personalized directives in real time. It should be clear that the issue here is not merely the replacement of humans by machines, as it is evident that the legal profession must evolve to meet the needs that these new systems will generate.
The concept of the nimbusian legal system anticipates a radical transformation in the creation and application of legal norms, motivated by the availability of personal data stored and accessible in the cloud instantly.
It predicts the obsolescence of law as we know it. General and abstract rules will give way to highly personalized regulations that dynamically adjust to the particular circumstances of each case.
The era of the digitalization of law will relegate current norms and standards to the background, considered too rudimentary in the face of the possibility of accessing detailed and complete real-time information about people’s behaviors at a significantly low cost.
Traditional legal rules, prone to over-inclusion or under-inclusion and thereby violating the principle of equality and non-discrimination, could be supplanted if we adopt a new paradigm that uses protocols based on specific parameters, allowing the creation of individualized directives that dynamically adjust to the particular circumstances of each case and in accordance with the parameters of human rights/constitutionality established beforehand in the architecture of the algorithms. In this new normative system, we would have norms that are purged of problems of constitutionality ex ante.
This change brings numerous advantages, including the possibility to anticipate the legal consequences of our actions. Technology allows individuals and companies to access systems that inform them, prior to their actions, whether these would be in conformity or violate current law. It reduces legal uncertainty and strengthens the principle of legality, which maintains that no one is obliged to do what the law does not mandate, nor deprived of what it does not prohibit.
Another revolutionary aspect of the digitalization of law is that it combats ignorance of the law. The famous maxim “ignorance of the law excuses not” loses strength in a world where the law is not only accessible but also understandable to any citizen, without necessarily requiring the mediation of legal experts. This leads to a democratization of legal knowledge and greater equity in its application.
Additionally, the possibility of being subject to obscure regulation that are applied discretionally is eradicated. Arbitrary decisions and the unequal application of the law are significantly reduced when norms are programmed and executed transparently and coherently. Digitalization implies a law that is predictable, fair, and equitable.
Anatole France said that “the Law, in its magnificent equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” In a nimbusian system, it would be possible to address the particular characteristics of each person and attend to them based on minimum predefined principles or parameters.
While the current legal system operates a posteriori, a nimbusian legal system would facilitate the establishment of proactive guidelines, such as in the delimitation of medical responsibilities before conflicts arise.
This transition from a general norm to a personalized directive challenges the principle of equality before the law.
Traditional legal presumptions will be affected as recordings of reality in their entirety nullify the established legal fictions. The law will evolve into an entity unlinked from morality, focusing solely on risk and fact analysis, as illustrated in models like “pay as you drive.”
Finally, with the advancement of the Internet of Things, access to goods and services may be conditioned on the fulfillment of specific behaviors, reflecting an adaptation of law to daily technology-mediated interactions.
The law will become a universe of directives aimed at guiding people’s behaviors and the feedback generated about the compliance given to them in real time.
We are now facing coordination problems on how to manage a world where the communications, directives, and incentives given to each human being on how to behave will function differently from the Kelsenian “abide or be sanctioned if caught” normativ systems we know.
We will move from a bureaucratic, complicated and saturated system to a new fully digital legal system where it will be necessary to coordinate the back-and-forth communication between millions of electronic devices in order to direct the while respecting basic human rights issues such as due process.
Protocols turn out to be a simple instrument that allows solving complex coordination problems. Hence, we can use protocols to supervise compliance and adjudicate disputes in this digital universe.
Blockchain protocols can be used to adjudicate disputes in an automated way in case any directive is considered to be outside the protocol (just like Bitcoin or Ethereum). Layer 2 blockchain could coordinate how directives are delivered and acted upon according to given parameters and a Layer 1 chain can adjudicate cases that are considered to be outside the Layer 2 protocol.
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Venkatesh Rao, Tim Beiko, Danny Ryan, Josh Stark, Trent Van Epps, Bastian Aue. The Unreasonable Sufficiency of Protocols. 2023. The Unreasonable Sufficiency of Protocols | Summer of Protocols