Crypto Legal Theory
Like it or hate it, CryptoLaw is here to stay. This is a theory of what it’s doing & how it’s doing it.
Everyone knows that today’s crypto is deeply legalistic.
Few people know, however, that the blockchain revolution started with a quintessentially legal act — theorists suggesting we should replicate existing contract law forms to create better instruments, such as “smart contracts.”
The 2008 release of Bitcoin gave the world its first glimpse into a truly decentralized rule-based socio-legal monetary order.
Five years later, Ethereum declared the existence of an entirely new legal discipline — called CryptoLaw.
For the past decade, global blockchains like Bitcoin and Ethereum have continued to evolve along complex (and often contradictory) technical and socio-legal vectors.
- Bitcoin, which operated in alegal and outright illegal ways for much of its infancy, is now a mainstream crypto instrument — becoming more legal by the day, while simultaneously inviting more and more legal scrutiny each day.
- Ethereum, which began as an explicitly legalistic project,¹ is amidst a big alegal turn, while simultaneously serving as the technical & conceptual backbone for OpenLaw — one of CryptoLaw’s most ambitious legalistic/formalistic moves yet.
At the close of 2018, crypto is more legalistic than ever, and that trend shows no sign of slowing, let alone reversing.
And yet despite all this legalism, there’s very little in the way of a coherent crypto legal theory — an account of crypto’s (1) legal origins, (2) present, and (3) future.
This essay is a preliminary sketch of a crypto legal theory.
The core thesis is that to know where crypto’s going tomorrow, we must do deeper crypto legal analysis today.
(1) Crypto’s Legal Origins
A. Journalistic Accounts
In 2015, Rob Price wrote a good journalistic intro to Szabo’s conception of crypto legal relations in relation to existing legal frameworks.
The logic is that “wet code” (as Szabo describes traditional law) has huge drawbacks: It’s vague, expensive, varies from jurisdiction to jurisdiction, and is “based ultimately on the threat of coercion.” But “dry code” — AKA computer code and Ethereum — has none of these problems. It’s precise as only computer code can be, cheap to deploy after initial outlays, is universally constant, and its security is based on the blockchain.
This narrative captures the essence of how most people understand “smart contracts” and CryptoLaw:
- “smart contracts” that are formed on some blockchain process become “self-enforcing” legal obligations;
- these automatic “self-enforcing” processes are faster, cheaper, and more predictable than ambiguous traditional contract;
- CryptoLaw is the body of on-chain and off-chain enforcement, execution, implementation rules for these new digital instruments and new types of digital markets.
B. Theoretical Accounts
The journalistic accounts, of course, leave much unsaid. For instance, what exactly is the nature of the legal form commonly known as “smart contract” — ? Is it a legal form? An alegal form? How, exactly, are these “smart contract” creatures enforced?
Proponents of “smart contracts” want to have it both ways: legal & alegal.
They want the advantages offered by contract legal forms; but they also want the supposed flexibility, control, and advantage that comes from taking their legal relations completely away from all existing legal systems (not illegal, but alegal).
SC folks claim that “the Law” gives everyone the power to “write your own laws,” and that it’s both (1) possible, and (2) desirable to do that. A good analogy for this is the ongoing trend away from (public) litigation towards (private) arbitration, except for smaller and smaller value transactions, at greater volumes, on global scales.
C. Procedural Mechanisms
Although it’s not stated clearly, the underlying procedural argument goes as follows:
- contract parties can choose their own governing law (choice of law) & governing forum (choice of forum);
- contract parties can effectively opt out of public dispute resolution forums altogether and opt into private arbitration (a contract right that courts consistently enforce all over the world);
- because courts consistently enforce arbitration provisions, there is doctrinal, theoretical, and practical precedent for privatizing “smart contract” enforcement as well.
D. Substantive Assumptions
The “smart contract” / “smart property” / “smart law” argument is premised on the assumption that we can actually define and formalize legal relations with mathematically rigid logics.
In other words, CryptoLaw is premised on the idea that algorithmic justice is possible, and that algorithmic justice is qualitatively smarter and better than human justice.
When everyone has clearly defined SmartProperty & SmartContract rights, then contract parties can unleash their primal capitalist instincts — and live their best homo libertarian lives. That’s the theory, at least.
Crypto legal theorists posit that it’s possible and desirable to define fundamental legal relations in a single objective, formal, and deterministic way. Crypto legal theorists claim they have “solved” legal ambiguity.
In order to appreciate the audacity (and fragility) of this move, we need to take a moment to define some terms.
(2) Defining Crypto Legal Terms
Legal definition is the starting point for legal analysis.
Typically, this involves taking a seemingly simple concept — say, contract — and defining it by reference to certain constitutive parts, called elements. Just like classification and taxonomies in the hard sciences, “legal science” (an ironic term) has many shorthand formulas for describing complex legal and quasi-legal relations.
But these formulas don’t represent hard logics. They’re just shorthand that law people came up with to make note-taking easier.
The words “form,” “contract,” and the very word “legal” have many very narrow meanings in Legalese. Thousands of words that non-lawyers use in every day usage, like “Terms” & “Conditions,” turn out to have extremely technical and precise definitions (plural) in Legalese.
Legalese terms, like, say, “execution,” can have many unrelated narrow meanings within a particular Legalese tradition (e.g., U.S. law). For instance:
execute (verb): (1) to sign a memorandum that purports to create contractual relations; (2) to fully perform the terms of a contract, thereby discharging all outstanding performance obligations; (3) to enforce capital punishment (e.g., death penalty, “to execute by hanging…”); (4) etc.
Moreover, the same term can mean radically different things in the same doctrinal field in a given legal tradition (e.g., the word “execute” in California common law of contracts — definitions #1 & #2, above).
As we proceed to offer some legal definitions of core terms, we must remember that these are incomplete definitions. They are accurate working definitions, but they are always changing.
Once we work through a few legal definition exercises, we see that mutability and adaptability are features in legal systems, not bugs.
A. Formalizing Form
For instance, let’s try to define the word “form.”
This may seem like a boring exercise. But this exercise goes to the very heart of crypto legal theory. We can’t appreciate crypto legal theory without understanding what proponents of “smart contract” see as the core problem (e.g., ambiguity) that SCs claim to fix.
Defining “form” is also a worthwhile exercise in the context of SCs because: (1) SCs purport to “formalize” parties’ understandings; (2) SCs can be considered contractual forms; and (3) many projects like OpenLaw are trying to make it easier to generate “form” contracts & “form” elements much easier, including making it easier to integrate “smart contract” forms with existing “forms.”
This will seem like splitting hairs at first, but we’ll appreciate why we’re doing this very shortly. Promise.
B. What is “Form” — ?
form (noun): (1) a standardized document that purports to encapsulate or memorialize legal relations (e.g., Ann & Beth are executing a standard real estate conveyance form; a purchase order form; etc.); (2) a sum total of defined legal or quasi-legal relations with respect to a party, parties, object, etc. (e.g., “gift” is a property law form; contract is a legal form; promissory estoppel is a quasi-contractual form and theory of obligation); (3) etc.
form (verb): (4) to form a contract; (5) reform = to modify contractual relations (typically in the process of implementing a judicial remedy); (6) etc.
formalize (verb) (7) “… an agreement” = to define the terms of a bargain and to memorialize these terms with written, electronic, or other concrete evidence of contract formation, modification, etc.; (8) “… a dispute” = process of defining parties’ legal rights & obligations into established cognizable claims, including potentially submitting a dispute to a trier of fact such as an arbitrator or a court; (9) etc.
Please note that our quick back-of-the-envelope definition exercise has produced nine (9!) possible definitions of just the word form. And we haven’t even opened a legal dictionary, or a single other formal source of authority. Already we can start drawing lessons:
- we must include definition #3, #6, #9 in our total count because there are many formal sources of law with definitions of the word form in existing statutory and/or decisional authority;
- there are many more definitions of the word form in pending/future case & code law, which will give us new definitions of form tomorrow, the day after tomorrow, next week, month, year, etc.
- our supposedly technical and narrow noun definitions of form like #1 & #2 are actually worlds apart. They are both narrow (in absolute terms, in their respective usage contexts), but with respect to one another #1 is much more narrow than #2. And yet both versions of the noun form that we defined above are used on a daily basis in legal practice (sometimes in the same sentence — “Jen, do you have a form (#1) complaint for a hybrid negligence-contract form (#2) of action?”).
C. Legal Formalism
The goal of careful legal definition isn’t to arrive at one objectively true meaning. Instead, the payoff is a much more precise understanding of the contours of a particular rule or concept. This, in turn, allows us to identify multiple potential points of failure that opponents may try to exploit or broaden.
Ambiguity includes latent ambiguity (inherent in the norms or concepts being analyzed) & patent ambiguity (inconsistent or contradictory usage of words).
Even though they are formal legal creatures, contracts tolerate a great deal of latent and patent ambiguity. For instance, under American law, parties can form a legally enforceable agreement even if they can’t ever identify who made an offer or who accepted; parties can enter into a binding contract even if the moment of contract formation is never identified. Similarly, the third party tasked with deciphering the parties’ bargain may not need to answer these questions.
Something can be formal (like a contract), while also being factually ambiguous.
D. CS Legal Formalism
When CryptoLawyers blend formal legal logics and formal CS logics, the result is often more ambiguity, not less.
What follows is a random sentence copied from OpenLaw’s markup language page, followed by an excerpt form OpenLaw’s object documentation, followed by sample OpenLaw code, all three using the word form —
Once identified, the variable can be transformed into a form element (#10) in our contract generation application, which is accessible through OpenLaw’s contract creation application’s “Draft View.”
Check if variable is shown in the input form (#11) in draft mode (e.g., input variables like Text, Number, Date, Address, etc.).
A twelfth (#12) possible use-case/definition for form appears in the OpenLaw code, as follows:
Which of our nine definitions of form is being used where? How? What’s being said?
If you’re confused, that’s the point. You’re seeing just how easy it is to highlight legal ambiguity, even in projects that are premised on the elimination of legal ambiguity.
D. More Formal Lawgics
OPENLAW, ITS SERVICES, AND ITS FORMS [#13] OR TEMPLATES ARE NOT A SUBSTITUTE FOR THE ADVICE OR SERVICES OF AN ATTORNEY.
We do not verify or pre-approve any posted User Content, and material in the form of opinions [#14] are not our opinions.
E. More CS Formalism
Let’s close our illustration of form by peppering it with some definitions of formal specifications from computer science.
Formal specification: (#15) the set of preconditions and postconditions of a function. Formal specification describes the inputs, outputs, and any other assumptions about the data or the effects of an operation.
(3) Definition is Hard
Our quick attempt to define form highlights how ambiguity is compounded in places where a given term is jargon in both legalese and, say, in computer science. Now, let’s broaden our aperture to appreciate that this is not a localized problem. The word form is not an exception.
Practically all legal definitions are fuzzy like this because all language is fuzzy like this — including machine languages.
Think back to the many meanings of the word “execute” in Legalese, and let’s superimpose that meaning on the way “execute” / “execution” is used in CS parlance.
You should see just how confusing it is for anybody — including (1) CS folks and/or (2) Law folks and/or (3) non-CS/non-Law folks — to understand what’s meant whenever anyone casually talks about how “smart contracts” are “self-executing and self-enforcing.”
In CryptoLaw, the same conceptual confusion plagues the words “contract,” “enforcement,” “performance,” “law,” “legal,” “derivative,” “lien,” etc.— really, any term that’s traditionally used in Legalese, and which has been appropriated to describe new crypto legal relations.
This includes seemingly obvious words like “contract” and “form” — semantic structures that are supposedly so basic that “everyone knows what they mean.” Except that last part can never be assumed. Please recall our fifteen possible uses of the word “form” above.
You may think that there’s one “common knowledge” definition of this or that term. But that’s a risky assumption.
(4) What the … Form?!?
Fifteen legal definitions of just the word form? Yes!
But, c’mon, gimme a break!? Not all fifteen are “law” — only three or four, max, right?
Well, it depends.
For as long as we’ve had law, we’ve had people like Justinian, Jeremy Bentham, Napoleon, Germans, the American Law Institute, and most recently “smart contractarians” reject the status quo because of its complexity, ambiguity, unpredictability, and so on. Fifteen seems like too much (too complex, too costly, too unpredictable, too …) and one is a great number, so full steam ahead.
Frustrated by the inability to define basic legal constructs — like form, property, title, and so on — Jeremy Bentham once called the complex corpus of English law the very “Demon of Chicane,” the devil of curveballs, intellectual twisties, and exceptions to the exceptions to the exceptions that confirm neither the exception nor the purported rule.
A. Begone Ambiguity!
The law has many different ways of dealing with legal ambiguity.
One strategy for dealing with ambiguity is to eliminate it altogether by going through a definitional determinacy-seeking process like the one above. There are many names for this process, including codification and restatement. There are also many different names for the theories and outlooks that say that law can be codified, and/or precisely defined, including: positivism, formalism, originalism, plain language-ism, etc.
The key point is that there are serious people who believe that it’s possible to define all legal rights, obligations, relations, and forms (within the bounds permitted by human Reason, of course). These people know that it’s a difficult task, but they think the reward is well worth it.
Once we succeed in defining the summa ius (the sum total of law), then life becomes a lot easier. We just have to “apply” the law by holding individuals and organizations to those definitions. This is the strategy favored by Justinian, Jeremy Bentham, Napoleon, Germans, the American Law Institute, many other learned bodies, and, again, the “smart contractarians.”
Of course, there’s a political motive for these people — the desire to restrict the power of those who exercise discretionary legal authority. It’s a compelling argument because any political project that seeks to curb the arbitrary exercise of en-force-ment authority is probably better than the alternative (continued exercise of arbitrary law en-force-ment authority).
Too much ambiguity, like too much salt or sugar, will likely lead to bad outcomes. At a certain point, populations get fed up with ambiguity and arbitrary exercise of authority. When people rise against these abuses, we get vivid revolutionary manifestos and declarations of independence. The U.S. Declaration of Independence, for instance, complains of lack of rights, but it also complains about the arbitrary exercise of authority — to wit, legal ambiguity.
B. Welcome Ambiguity!
Standing in sharp contrast to the formalists (or the idealists, Romantics, etc.) are legal theorists called realists, pragmatists, etc. Like right-handed people and left-handed people, formalists and realists are born into every society, across all ages.
Realism & formalism are not ideologies per se, they are best thought of as distinct outlooks or approaches to law. They don’t necessarily correspond to this or that party or to any narrow political project or network.
Like ambidextrous people, there are also realist-formalisms, and formalistic-realists — many gradations between these two broad theoretical outlooks (and also many schools that define themselves in sharp contrast to both the formalist and realist traditions).
Generally speaking, legal realists believe that “law on the books” can only be understood by reference to “law in action.” So returning to our fifteen definitions of “form,” realists would argue it’s important to look at how OpenLaw’s own contracts use the word form.
For realists, “law on the books” is very important. Analysis starts with accepted statutory or case law definitions (& even uncontroversial broadly-accepted dictionary definition) — just like for the positivists. But realists add that to appreciate how a given rule works in action, we must understand how a given legal concept is being used out there in everyday contexts.
(4) Language Games
Our definitions cannot be fully self-contained, determinate, and complete because all language, including Legalese, includes inherent ambiguity. Legal ambiguity is impossible to eliminate. This includes ambiguity in seemingly concrete and clearly-definable words.
Legal ambiguity is impossible to eliminate for the same basic reason that linguistic ambiguity is impossible to eliminate: time.
The moment (t) that you think you’ve captured all the defined meanings of term X, you turn around and it’s (t + 1), and term X has far more meanings than it had at (t).
We can keep adding those new meanings to our ever-expanding and ever-changing definition. But eventually, everyone realizes that trying to capture time is futile. The best we can do is operate on rough approximations and probabilistic accuracy rates.
Meaning is contextual and fluid; the only thing constant is change.
This is not opinion; this is verifiable fact. This isn’t abstract philosophy; this is Contract Law 101. These is exactly the way that first year students all over the world are taught to approach contract interpretation rules. It’s not about learning rules for scanning a document and then saying, “paragraph 15, 18, 21 are ambiguous; but everything else is fine.” Quite the opposite, it’s about learning to take a seemingly straightforward term and exposing its latent ambiguity; or, taking a patently ambiguous term and arguing that it’s actually reasonably clear.
It doesn’t matter how “smart” or supposedly clear one’s formal language is — its legality will still be analyzed by imperfect human actors applying ambiguous standards, doctrines, elements, and rules.
(5) Crypto Legal Theory = Lawgic
CryptoLaw is an attempt by some actors to distill and crystallize an objective & deterministic body of crypto legal forms and crypto rules. These crypto legal relations are scripted in what can be called CryptoLegalese. These crypto legal relations follow certain well-established patterns, what we can call “crypto lawgic.”
If you think describing crypto forms like “smart contracts” as CryptoLegalese is a stretch, please realize that this is how the Ethereum Whitepaper & Ethereum Yellowpaper describe crypto forms like “smart contracts.” We’re not ascribing CryptoLegalese onto crypto actors; we’re trying to understand CryptoLegalese as it’s already being used by crypto actors.
CryptoLegalese (noun): a collection of terms, concepts, and operational logics for creating crypto legal relations. This includes formal operational logics (like OpenLaw’s markup language or Szabo’s formal language for Ks) that rest on purportedly objective definitions of core legal terms from the non-crypto world.
This is not a new process. For the past 25 years, Szabo, Mark S. Miller, and many others have been steadily appropriating American contract legalese — trying to transform it into a formal (e.g., scriptable) language for analyzing contracts. Their efforts went largely under the radar of mainstream legal theory. Today, Ethereum’s success suggests a showdown between the legal mainstream and purportedly alegal crypto is inevitable.
A showdown is inevitable because crypto believes in a broad version of contract rights to to “write your own laws;” the Law will assert and defend its sovereignty, affirming that, yes, parties do have limited powers to write their own laws, but only within the bounds set out by “the Law.” In other words, Law will intervene — and very forcefully & publicly — to show crypto that crypto’s power to “write its own laws” is not limitless.
Whether we think of the conflict as inevitable or avoidable, the most resilient actors will be those with the best understanding of different crypto lawgics.
(6) Crypto Lawgic Games
Projects like (1) OpenLaw, (2) Szaboian “smart contracts,” and/or (3) Ethereum “smart contracts,” may have slight differences of approach, may be working towards similar or different aims, and may employ different tactics in achieving their respective formalization/codification objectives.
These three representative embodiments of crypto legal theory share one main commonality — the use of legal concepts (forms, terms, processes, and institutions) in attempt to create alegal replicants of these very same legal concepts. Using legal forms for alegal purposes &/or using alegal forms for legal purposes = “crypto lawgic.”
Two examples of crypto lawgic from OpenLaw illustrate this point² well:
A. OpenLaw “Conditions”
Changing the conditions of a contract requires formal amendments, waivers, or renegotiation.
It is not clear whether the word “conditions” refers to an express condition precedent,³ an express condition antecedent, or some other condition. Because it’s not clear whether OpenLaw describes an express condition or an implied condition in this context, “the Law” (by which is meant, let’s say, Anglo-American common law, broadly construed; or New York State common law of contracts; or American common law of contract; or etc.) would have to interpret the meaning of the word “conditions” — one of the most difficult interpretive tasks that American courts undertake in contract disputes.
In the event of a dispute arising out of the word “conditions” here, a court could construe the “conditions” language as a constructive condition, which has the functional effect of rendering the “condition” a regular contract term. Or not.
B. “Smart” Legal Agreements
With OpenLaw, parties can now —
Create “smart” legal agreements
Create, store, and execute legal agreements that interact with blockchain-based smart contracts without the need for any intermediaries.
To eliminate even the mere appearance of untoward motive, please understand that this is a direct quotation from OpenLaw’s homepage. We’re not looking deep in the Terms & Conditions to find tiny errors that are then stitched into big problems. On the contrary, ambivalent usage of Legalese is so deeply constitutive of how crypto folks see SCs that few people seem conscious of the legal problems under the surface.
However, let’s remember that the word “legal” is itself a Legalese term with many specific meanings. Thus, looking at just OpenLaw’s own usage in this short blurb, the following question arises: are (1) “‘smart’ legal agreements” = (2) “legal agreements” = (3) “smart contracts”?
We’re mindful that non-lawyers will probably react to this question with a smile, a yawn, or a roll of the eyes: “There they go again, these lawyers being lawyers — making mountains out of molehills.” Or, “that’s just semantics, a ‘smart contract’ isn’t legal, you dummy, it’s a [insert preferred name of technical process here, such as, persistent script].”
But with all due respect to the Herculean efforts of persistent script developers & consensus protocol builders, we’ve already demonstrated how “the Law” doesn’t really care about whether parties’ or developers’ intent is to create a contract or not.
Instead, contract law looks to the external manifestations of the parties’ intent to enter into a contract. And calling a persistent script a “smart contract” is precisely the type of “external manifestation” courts would look to in the case of a dispute.
It’s impossible to code around legal intermediaries — they will keep sticking their nose in crypto and defining crypto legal relations along lines that they think are fair, reasonable, and just.
C. SC’s Legal-ness
The question of whether (1) “‘smart’ legal agreements” = (2) “legal agreements” = (3) “smart contracts” isn’t some academic thumb-wrestling exercise. In the context of OpenLaw, Ethereum, and broader blockchain currents, this question is actually one of the most important and consequential questions in all of crypto.
(1) “‘smart’ legal agreements” = (2) “legal agreements” = (3) “smart contracts” — ???
Our position is that nobody, not Szabo, not Ethereum devs, not OpenLaw and/or Aaron Wright (the U.S. law professor behind OpenLaw) can actually answer this question in any way other than:
Unsurprisingly, that is the overall thrust of the Cardozo Smart Contracts & Legal Enforceability Report published this week.
D. Crypto Lawgic or Misuse of Terms?
Please note that from a positivist perspective, what we call crypto lawgic would most likely be seen as just misuse² of terms.
But even under this view, systematic misuse of Legalese by “smart contractarians” can be thought of as a series of minor exceptions (or bugs) that cumulatively prove the rule (aka, the main feature): perfect objectively clear Legalese is impossible (just like it’s impossible to implement completely bug-proof real-world code-based processes).
(7) Persistent Scripts (2019 — )
We glean five insights about crypto legal theory from our legal audits of today’s “smart contract” platforms as contract formation engines (Szabo = theoretical; OpenLaw = legal professional; Ethereum = backend processual):
- eliminating contractual ambiguity altogether is impossible;
- legal ambiguity (inherent in legal forms) coupled with linguistic ambiguity, bracketed within the specific jargon of programming code & different CS process-design vernaculars (which do overlap & will continue to overlap with Legalese) means that persistent scripts will present on- & off-chain dispute resolution forums with extremely complex questions of interpretation in the event of a dispute;
- the less Legalese, the better (the less Legalese that persistent scripts employ to describe internal logics, the easier it will be for parties to resolve their disputes);
- the less Legalese, the cheaper (at all stages of persistent script life-cycle, from design, to implementation, to dispute resolution);
- because of the ambiguity inherent in all language (including computer languages), even the most permissive “Write Your Own Law” jurisdictions (so-called Willistonian jurisdictions) will permit off-chaining of on-chain disputes.
Each of these points may seem unsatisfactory to developers who genuinely believe they can “write their own law” and create “self-sustaining SCs” without the need to rely on a third party. But though these points may seem unsatisfactory, and may even appear to be problems that need to be fixed, ambiguity actually serves important rights-defining functions.
Even though it seems like a bug in the system, it’s actually one of contract law’s and Law’s most ingenious features. The fact that even the most stridently deterministic, sophisticated, and objectivist “smart contractarians” have not been able to transcend legal ambiguity affirms its wisdom as a governance sword and shield.
(8) Ambiguity is Carrots Not Sticks
Writing in 1996, Szabo (citing Hayek) observed that “If we started from scratch, using reason and experience, it could take many centuries to redevelop sophisticated ideas like property rights that make the modern free market work.”
You might not have ever viewed it this way, but legal ambiguity is also a really sophisticated legal idea, one that that makes “property rights” and “contract rights” seem quaint by comparison.
The blurred line between property rights and contract rights (public law and private law, and so on) that allows all participants in on-chain and off-chain legal disputes to have equal rights to seek meaningful on-chain and off-chain relief is a grossly under-appreciated feature of our current legal system, not a bug.
Blockchain’s failure to see this feature thus far represents crypto’s single greatest missed opportunity to date. Blockchain’s inevitable realization that law is not the enemy, but that (1) legal systems are social embodiments of blockchain’s ethos of (2) maximally secure & (3) maximally distributed & yes, (4) maximally disintermediated (5) social and market networks — is an prerequisite⁴ to blockchain’s full realization of its potential.
Nobody can ever have 100% knowledge or control over the Legal Matrix. It’s the ultimate decentralized crypto platform.
At the end of 2018, crypto lawgic & ambiguous CryptoLegalese are crypto legal theory. Over the coming months and years, crypto lawgic will get more and more complex. There’s no reason to be anxious about this. If anything, it’s a very healthy realization because it allows us to re-engage with Law’s many known and hidden features much more constructively and creatively.
In the end, it’s not about obeisance to law; it’s about command of law. The only way to get command of anything is to start with basics.
¹ The Ethereum Whitepaper is even titled A Next-Generation Smart Contract and Decentralized Application Platform; the Ethereum Yellowpaper expressly proclaimed the birth of CryptoLaw as a discipline.
² The analysis here is NOT a values-based assessment of the skill or capacity of the OpenLaw team. That is not the point of this essay. CleanApp has a consistent and uniform record of applauding and supporting the OpenLaw project, along with similar support and depth of engagement with the two other CryptoLaw projects discussed here. The point is not to highlight potential tensions so as to ridicule them; the point is to highlight ambiguities so that we all learn from them.
³ Please note, this is not a normative critique; it’s not suggesting that misuse is “bad” or “reflects poorly” on the people behind these projects. This is not meant as a normative critique, but rather as an empirical/descriptive observation.
⁴ Express condition precedent: an event, not certain to occur, but which must occur, for contract performance obligations to become due.