The most difficult thing in examining current trends is to judge how many are actually significant and how many are transient, idiosyncratic, or simply more of the kind of thing that society recurrently experiences and that the established elements almost always view with raised eyebrows or alarm (Kahn and Weiner, 1967, p.341).
Are we, today, seeing unprecedented technological effects on law? I argue that we are, and at the heart of that relationship is a tension between law only now recognising the unavoidability of its future under the sway of increasingly sophisticated networks and autonomous systems, and only slowly communicating the impact of technologies through legal education. The following discussion draws on aspects of my research on blockchains within Anglo-American common law jurisdictions, and my wider research on law, data, and technologies.
Distributed ledger technologies (DLTs), of which blockchains are a species, are a form of ICT infrastructure used across commercial and civic sectors. In reality, however, the bulk of present DLT use-cases involve financial services. These “ledgers” are cryptographically secure databases for storing and recording novel forms of digital property (e.g. tokens), relying on quasi-legal forms, chiefly “smart contracts”, to transact across networks without prejudice (Herian, 2021). Here I am interested in two aspects of DLTs. First, how DLTs and their stakeholders make use of and exert control over particular legal forms and vernacular (i.e. property, contracts, etc.). Second, how legal education, in providing the underpinnings for legal practice and helping to shape legal ideas, confronts and deals with technological phenomena such as DLTs to ensure the integrity of tomorrow’s lawyers and legal thinkers.
Like learning any new system of language, legal education has a significant role to play in the general reception and adoption of technologies by society. This may not seem obvious at first blush and, I argue, legal education in England and Wales does little to express the deep technological contexts in which legal subjects are embedded. This is a mistake. It is no longer workable for legal education or the different legal environments it feeds to pick whether technologies matter. Of course, some matter to the law more than others, or rather are of greater legal significance. I use the term “technologies” generally here, but it is reasonable to argue that, for example, surveillance technologies (drones, CCTV, face-recognition algorithms, etc.,) ought to be of greater concern to law’s social and political obligations than other technologies. Perhaps only because such technologies and the law and order strategies that rely on them arouse greater moral outrage?
Technology effects humanity, non-humanity, and the environment in many direct and indirect ways. Many technolgies also shape the methods and purposes of other technologies in an onward chain of global techno-mobilization occurring machine to machine. This is so with aspects of artificial intelligence (AI), machine learning algorithms, and the distributed networks that encompass DLTs and blockchains. As a result, there are several factors we need to take into consideration when approaching the subject of technologies with law. A key one which does not concern the engineered tool or object we refer to as a “technology”, is the language and jargon of technologies. This includes what such language conceals or does not say, yet still contributes to the pervasive techno-morality we all find ourselves enmeshed in and from which laws must and do develop.
Design, engineering, and implementation determine how technologies are spoken by technologists, stakeholders, and acolytes. Adopters of technologies, whether early or late, savvy or ignorant, thus find themselves amongst a vernacular barely understood. The language of our technologies commands us as much as the technologies themselves. We “speak in tongues” in the Information Age of data, apps, bytes, bits, uploading, downloading, logging on, and so on. As users of ICTs and subscribers to online platforms, humanity is interpolated by powerful and growing ecosystems that create physiological and psychological change in the individual. Change that offers little or no time for acclimatisation yet renders identities anew as a priority in the historical march of informational societies (Castells, 2010, p.22). Socialisation through and by technology is symptomatic of our existence in the twenty-first century effecting all areas of life, including the law. Legal education, therefore, must confront these effects, which means understanding how they transform law itself.
There are always problems getting to grips with the language of the new. But it is perhaps comforting to recognise that this is a fundamental legal task, and that lawyers, therefore, are well-placed to understand and interpret these strange languages and alien concepts. I refer here to how technologists speak about technologies, but also to the code that technologies and software are themselves written in. ‘Whenever something online appears to be simple, indeed whenever anything at all is done online’, claim Ethan Katsh and Orna Rabinovich-Einy, ‘there is a great deal of complexity hiding somewhere in the background […] the magic of software hides complexity, thus providing the users of well-designed software with the illusion of simplicity. The interface may be simple to use but the infrastructure is anything but’ (2017, p.76).
Melanie Swan makes a similar point: ‘new technology application’s pass into public use without much further consideration of the technical details as long as appropriate, usable, trustable, frontend applications are developed’ (2015, p.xiii). Terms such as ‘spreadsheet’ or ‘ledger’, therefore, conceal the fact that a DLT or blockchain is, to paraphrase Alexander Galloway, ‘a decentralized network composed of many different data fragments’ (2004, p.64). We cannot expect lawyers (leaving to one side patent attorneys) to understand the full complexity of technologies at the level of engineering. Of primary importance, therefore, is to understand what informs or lies beneath the language of technologies, including the contexts (social, cultural, economic and political) in which they operate.
Blockchains are a good of example of this. Described in a convenient and recognizable form, “a ledger”, normalizes a blockchain by accessible comparison, but it is also situates that blockchain within the long durée of double entry bookkeeping and thus technologies as central to performing capitalism. The plain language of “the ledger” invokes important bureaucratic features, such as auditability, accountancy and calculability. But it also aims to normalize and thus encourage adoption of a technology that, I argue, makes the line between consumer and citizen fainter (Herian, 2020). The language of blockchain, we can say, is the primary symbolic system used to give the social reality of the technology an intelligible form. Hence in a RAND Europe and British Standards Association (BSI) 2017 report it was proposed that there was a need to focus on terminology and vocabulary as a short-term goal in determining standards to support the development of the technology (Deshpande et al, 2017, p.xiii).
Smart contracts are another good example of how a new technological paradigm skews language, and in this case the specific legal terminology of “contract”. With smart contracts we find a rather confused mix of definitions. Some play-down the legal validity of smart contracts by claiming that “contract” refers to a programming convention rather than a legal instrument. While others, such as the Blockchain Technology Act passed by the Illinois General Assembly (IL-HB553), invoke the authority of a smart contract as a record stored and verified on a blockchain. This is not the place to delve, in depth, into smart contracts – something I have covered at length elsewhere (Herian, 2021) – but it is worth noting how smart contracts are an important example of technology changing laws directly and indirectly. Not only do they transform our view of the law of contract, but also of the law of property and conceptions of obligation, all of which are longstanding conventions of private law placed into question by the forms and processes that smart contracts represent.
We do not have to look hard to see a refraction of legal conventions by different technologies. But technologies, in turn, offer us novel ideas and practices that may find their way into law. This is something that legal education must seize upon. For example, my first foray into legal analyses of blockchains looked at trust. An overlap (homology) between the “post-trust” promised by blockchains to counter-parties transacting online who are unlikely to know and, therefore, trust one another (a key the rationale of Bitcoin, for instance), and the equitable concept of trusts involving separation of legal and beneficial ownership (Herian, 2017).
Whilst there are several things we can say about the philosophy, politics, and psychology of trust relating to blockchains, it was a fundamental question of technology redefining an ancient legal mechanism (trusts) that interested me. What begins with a simple slip from one definition to another, therefore, develops into an analysis that runs deep into the seams of laws that have held fast for centuries, bringing into question many fundamental legal principles and doctrines. And, crucially, through these analyses we can see threats and potential for technology to unpick, remake, and remodel legal ideas.
This is a terrifying prospect for conservative legal thought and practice, not least because the speed of technological evolution pushes law to think faster than it is comfortable doing. “Agility” has become a byword for neoliberal subjectivity in the forging of the contemporary entrepreneurial imaginary. To be agile is to bend and work with prevailing economic winds, and, importantly, to be willing to do so as a matter of systemic faith and allegiance. Technological “disruption” is key to agility, and, therefore, as a critique of neoliberalism we can point to the slow flow of the law as an important brake on ever accelerating progress. The threat that technology might summarily overturn the steady and certain applecart of the law thus invites scepticism and restraint from legal quarters (and beyond).
The correct response is not to bury one’s head in the sand, however. As an opportunity to experiment with the law, legal education can confront the looming spectre of technological disruption head-on and, by extension, place checks on neoliberal strategies. Technologies or law are never ascendant or unassailable truths. They are ripe for challenge and change. Legal education ought not to pick sides between the two so much as consider hermeneutics of technology with law (or vice versa). The two reveal much about one another and it would be wrong to use one as a stick to beat the other.
While a coherent discipline ― or perhaps this is the root of the problem ― law and technology has never been a core area of legal knowledge taught as part of the qualifying law degree (QLD) in the law schools of England and Wales. Even though the QLD, as the main contemporary form of legal education in England and Wales, emerged and developed in step with the rise and amid public fears of ‘data bank societies’ from the late 1960s, technology remains peripheral (Warner and Stone, 1970). Few traditional areas of legal knowledge – contract, constitutional, tort, equity, etc. – address the role technologies play in shaping them. Technology, it would seem to me, in the estimations of conventional legal education, is something that happens in the background, not something that shapes the social contexts in which law operates.
Legal education involving computer coding is increasingly commonplace, especially in the North American system, enabling the lawyers of tomorrow to read, interpret, and draft the language of sophisticated self-executing, intelligent computer contracts (e.g. smart contracts run by AI) and not just the natural language of dusty old calligraphic deeds or boilerplate terms and conditions. But if there is any truth to the long-held belief that law’s inherent conservatism leads it to trail behind innovation, legal education provides abundant examples to support this belief. Simply, it is not good enough for lawyers or legal academics to ignore the role technologies expressly play in shaping legal knowledge, understanding, and processes.
Dr Robert Herian is a Senior Lecturer in Law at The Open University Law School. Robert is Co-founder of the Law, Information, Future, Technology (LIFT) research cluster.
Email Robert, or tweet @OU_LIFT.
Dr Clare Jones and Dr Robert Herian are currently advertising for prospective PhD students within this area and would welcome applications and interest.