The drive towards certainty: a short reflection on "law is/as code", complexity, and "the uncontract"

Abstract

Increasingly, technology is used in the enforcement of legal rules. These changes, in addition to establishing new forms of regulation, have implications for the future functioning of the legal system. Most of the current debates around technology’s impact on existing legal frameworks centre around self-driving cars and aspects of liability. Other popular examples include the United States’ No Fly List that relies on data mining for predictive analysis regarding potential national security threats as well as the use of computer algorithms in judicial decisions relating to criminal sentencing and parole. In the South African context, there are plans to use smart technology including facial recognition to keep law and order (Swart “Eye on Crime” Daily Maverick 2021-03-03). In this regard, many computer scientists as well as those in the field of critical algorithm studies have pointed to the possibilities of false arrests, discrimination, and the targeting of innocent citizens by using technologies that reflect prejudice and bias rather than eliminating it. Further, technologies such as Blockchain and Machine Learning is progressively moving into the law’s domain (Hassan and De Filippi “The Expansion of Algorithmic Governance: From Code is Law to Law is Code” 2017 Field Actions Science Report 89). For example, “smart contracts” are contracts that transpose legal and contractual provisions into a blockchain based agreement that guarantees execution (as above).