Mireille Hildebrandt (Vrije Universiteit Brussel; Radboud University) has posted Code Driven Law. Scaling the Past and Freezing the Future (Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (Forthcoming 2020)) on SSRN. Here is the abstract:
This paper will explore what has been called ‘cryptographic law’ or ‘smart regulation’, referring to self-executing code as a new type of legal regulation. The first part of the paper describes what code-driven law ‘is’ by explaining what it ‘does’. We will then investigate the assumptions of code-driven law, notably concerning our ability to sufficiently foresee the future at the moment of codifying legal norms. This will be related to the concept of legal certainty and connected with the other constitutive aims of the law, those of justice and instrumentality. Finally, the paper will inquire into the nature of code-driven law, raising the question of the meaning of ‘legal by design’ and its relationship to ‘legal protection by design’.
For another take, see Artificially Intelligent Law.