Whether it concerns tax returns, car parking or public participation, governments are increasingly making use of software to develop and execute public policy. As a consequence, laws and regulations need to be molded in software and the process of policy-making will start to look more and more like writing code. However, code and (traditional) law are, partly, at odds with each other and it is questionable to what extent code can replace laws written in natural language. Similarly, the question is to what extent automated systems can replace current judicial processes.
The codification of public policy presents many benefits for governments and citizens as it allows for processes to be made more efficient and transparent and, ultimately, more just and democratic. It also comes with challenges and to a large extent, these are not too different from those faced by businesses or other organizations. Software is expensive to build (or tailor to one’s needs) and actually implementing technology comes with many unforeseen hurdles as adjacent processes (and people) need to adjust to the new system. And, possibly one of the biggest challenges when software is developed specifically for a single organization is that it has proven difficult to keep the application up-to-date and to incorporate new features without ending up with a messy and poorly working patchwork.
In the longer term, however, the challenge will become more fundamental. As regulations are increasingly finding their way into code, the question is whether code can ever be a substitute for laws written in natural language and what role automated systems can, and should, play in the execution and enforcement of regulations. To start with the first, Lawrence Lessig, the Harvard law professor who coined the phrase “code is law”, is quite clear on this matter: as it stands, code cannot fully replace traditional law as it does not allow for the kind of deliberate ambiguity that is typical of today’s legislation. There is, for instance, an inherent tension between the right to free speech and laws against discrimination, defamation or insult. For a code-based system such ambiguity would be impossible to deal with and this “bug” would have the system crash. In the current judicial system, ambiguity is a feature, not a bug, as it acknowledges that it is practically impossible (and certainly inefficient) to write laws so elaborate that they cover (unambiguously) every conceivable dispute; it is better to leave these kinds of decisions up to court. In a similar vein, in some cases courts have to deviate from the “letter of the law” in order to prevent “unjust” outcomes or protect greater societal
interests. As the example of the Ethereum-based DOA has shown, a tiny mistake in a piece of software (i.e. codified law) can lead to undesirable outcomes when there is no room left for common sense or an appreciation of the spirit of the law (similar dynamics appear with the VAR system in football). In the future, machine learning may allow for more complex and context-dependent decision making (e.g. on the basis of automated analysis of jurisprudence), but it is unlikely that such a system could deal with all conceivable cases.
On the execution side, the future is likely to bring many more code-based applications that directly enforce policy on the basis of (increasingly automated) input. To illustrate, (some) speeding tickets are already produced by fully automated systems that measure a vehicle’s velocity, record its license plate and calculate a fine. In the future, similar systems may be allowed to revoke someone’s driver’s license or to remotely disable one’s car. Effectively, such systems would entail smart contracts between citizens and the state with varying legal capacities. These may, or may not, run on a (private or public) blockchain to make sure that every citizen is treated the same and no records or rules can be tweaked in favor of individuals or special interests. Such rigidity would, however, come at the expense of the kind of fairness and common sense that is still part of today’s judicial system. It will thus be very much a challenge to increase efficiency and transparency without ending up with a “Judge Dredd”-like scenario that disregards the fundamental limitations of code-based rule-systems. Because of this, the smart social contract of the future will always have to contain meaningful possibilities to appeal a decision or for humans to intervene somewhere in the process, without re-opening the door to bureaucratic friction or legal inequality.