john haskell
Sep 26 · 5 min read

This is meant as the first of a series of very brief reflections about ongoing conversations within the social media interface of ‘lawtech’.

In my experience, a reoccurring question echoes in a variety of ways through our law/tech discussions: ‘Can we develop relationships outside the confines of state-backed law?

Beneath this question is an even heavier philosophical concern — that elusive Western grail, ‘Freedom’.

What do we talk about when we talk about freedom? I want to make two initial observations. In some crypto threads, ideas of freedom sometimes end up just meaning a) the freedom to accumulate more money (eg libertarianism), and b) in seeking freedom through algorithms, we often associate law with non-freedom.

Freedom is just another word (for show me the money)…

Consider the key words that describe the allure of blockchain: decentralised, trust-less, autonomous…

The promise of code is that it allows for individuals to coordinate their desires with one another, without an intermediary, and without needing to invade one another’s personal space. Blockchain is discrete, but intimate. We get what we desire, we never need to meet up in person, and the process brings us together in a self-aware collectivity.

At the same time, these imagined relationships are increasingly conceived as monetized relationships (“Eth is Money”). Or more specifically, we are not talking about some generalisable idea of ‘relationships’, but a specific type of engagement premised on a type of quid pro quo, perhaps most easily described as a ‘transaction’ and that is particularly meant to generate private wealth.

This is not meant as a critique, just an observation. We need to be conscious that when we talk about freedom, it may often be talking about a very narrow conception of (transactional) freedom (“blockchain as financial infrastructure, first & foremost; Ethereum as a new type of financial operating system”)

Sometimes the focus on money & monetization is overt. Sometimes it’s more subtle, such as when blockchain’s promise is explained through appeals to some greater universal good: nature, the public, censorship-resistance, decentralization-as-security, etc.

More often than not, our mindsets seem to follow the dogma of enlightened self-interest, this belief that the public good is achieved through (or inside) private pursuit and to ultimately measure that effort through its financial payout. I’m not making a value judgement about this here. And I don’t mean to suggest the appeals are not sincere. Ideology works at its best when one actually believes in the reasoning, in total good faith.

Law is (Not) the Antithesis to Freedom…

I’ve noticed a number of conversations that seem to equate code with freedom and law as its antithesis.

Even if we took this as the case, there is a bit of a paradox here because the more code is fixed (e.g., immutable, etc), the more it looks like our common idea of law, which is supposed to be the antithesis to freedom (e.g., a check on politics, etc).

Vice versa, the more code is open for anyone to change (think large open software communities), the more code can be said to represent freedom. But! Usually the ‘anyone to change’ is actually just a small subset of folks who can do a lot of the actual governance design and maintenance. The freedom potential here becomes increasingly questionable, or at least corralled.

Can we develop relationships outside the confines of state-backed law?

(As an aside, this idea of freedom as having the ability to act is only half the picture. Freedom can also be seen as the freedom to not have to bother or care about how things get done. In other words, freedom requires a huge amount of collective trust and communal purpose to really work in a substantive way. We have to trust that, even as we sleep, a lot of people are doing things ‘as they should’ for ‘our benefit’. Freedom is inherently non-individual centric but patterned relations).

There is another fallacy in the typical way we frame the law/freedom relationship. Law, in my mind, doesn’t actually stand in opposition to freedom; in fact, ‘freedom’ is always actually a question of who can do what to whom.

So while we tend to think of freedom as ‘freedom from coercion’, the point here is that coercion doesn’t actually carry a value: it isn’t just generally good or bad.

There is always an institutional background (or some prior settlement) that is already making claims and (if it will have a long life) capable of backing them up. And even when we try to act in a way that is personal and non-social, even this space requires the ability to make claims to keep others at a distance and to be able to enforce this exclusion. Coercion is just cooked into any decision. The questions we want to ask then, are — coercion to do what, for whom, to whom, by whom???

For instance, outlawing slavery is a coercive act toward a type of freedom. The southern slave-owning states had a different idea of freedom from their northern counterparts and that entailed the right to own other people without government intrusion. In other words, truths aren’t always reconcilable with each other or to a higher principle. Sometimes it just comes down to one truth ‘winning out’ over another. Slavery was either going to continue or it was going to end.

So we need to identify what type of freedom, what actual aims, and what specific people we really want the law (and code) to serve, and not fall back into the tired feedback loops of for/against law/government. That could be a deeply democratic vision. Or it could be something else.

But we might link in more to the deeply philosophical, really heavy questions that are embedded in the work of our cultures of expertise. Make them more front and centre. Name your freedom(s)!

But I sometimes wonder if we can do it in a way that doesn’t end up in the cul-de-sac of ‘show me the money’, and what it would really look like if it became a collective — albeit diversified — effort.

Crypto Law Review

A journal pushing the bounds of our legal imaginaries, on-chain, off-chain, and against the chain.

john haskell

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Crypto Law Review

A journal pushing the bounds of our legal imaginaries, on-chain, off-chain, and against the chain.

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