Matyas Bodig (University of Aberdeen - School of Law) & Zsolt Ződi (National University of Public Service) have posted Is Code Destined to Supersede Law? Behavioural Control by Code and Legal Theory on SSRN. Here is the abstract:
Focusing on the challenge of the growing prominence of ‘behavioural control by code’ from tnhe perspective of modern state law, the article assesses the ‘legal theory of code’ – a theoretical framework pieced together predominantly from the works of Roger Brownsword, Mireille Hildebrandt, and William Lucy. The article sets the conceptual parameters with an analysis of ‘normative guidance’ and ‘modern state law.’ It also outlines an explanatory framework (with concepts like the ‘administrative state’, ‘control society’, and ‘platform society’) to capture the broader social and institutional trends driving the transformation of the law. This way, the growing prominence of behavioural control by code can be related to a series of facilitating factors (the rise of ‘compliance regulations’, ‘bespoke law’, and ‘outsourced law’), complicating factors (the ‘translation gap’ between law and code), and countervailing factors (the continued influence of human rights doctrine over regulatory frameworks). We argue that the conceptual novelty of the transformation of the law (despite its capacity to reshape power relations and redistribute normative competences) should not be overstated. The administrative state retains crucial levers of control, and behavioural control by code does not penetrate all fields of law. However, it remains a real danger that modern state law proves unable strike a reasonable balance between different modes of normative ordering. Keeping the law adequate to the shifting regulatory challenges remains an ongoing (and daunting) challenge of institutional design.
Very interesting and recommended.
