On Autonomy—As Language & Law

This second part of a 3-part series explores the semiotics of “autonomy” & how autonomy gets formalized, normalized & legalized. Part 1 is here.

Anuj Das Gupta
Sep 8 · 18 min read

1. A Language of Autonomy

1.1. Framing Autonomy

In terms of linguistic style, there is a general style used throughout our arguments here, where we have been privileging one type of framing over another even though it might seem both forms mean the same: “removing obstructions to freedom” over “freeing”, or “unfreeing the free to not be able to use it’s freedom to unfree another” over “freeing the unfree” .

Both frames look the same because the former is a double negation while the later one is a positive framing look to be saying the same thing. If so, the former frame is then considered to be a roundabout way of saying the latter framing. This is not always true.

A thing and its double negation are not the same things when they are part of a non-binary-spectrum.

  1. The sun rises in the east
  2. The sun does not rise in the west

The two do not mean the same. The second statement could mean that the sun rises in the north, south, east, that is, any direction other than the west.

On the other hand, if we played with only two colors, say, green and red:

  1. This is not green
  2. This is red

They mean and signify the same thing.

Only in a binary system, double negation is an undo operation. Not so in a non-binary spectrum as there are more options when we negate.

Double Negations

1.2. Expressing Autonomy

Consider the two framings (positive and double negation) on something that is held pivotal to the life and societal necessity of public blockchains:

  • Exp 1. “You may express yourself freely”
  • Exp 2. “No one can prevent anyone from expressing themselves freely”

As a linguistic device:

  • Exp 1 is framed in a positive tone: one’s ability to do, as what one may do — As a right.
  • Exp 2 is framed as a double negation: Our inability (1st negation) to prevent (2nd negation) someone from doing something — As a wrong.

Exp 1 is about Freedom of Expression, while Exp 2 is about Censorship Resistance, not the same.

The expressions do not mean the same thing

Exp 1 is from the perspective of the speaker (being suggested to express freely) and the individual (“anyone”) who is the speaker, whereas Exp 2 is from the perspective of the listeners (asking them to not censor) and the society of listeners (“no one”). In that way, Exp 2 encourages self-policing by way of peer pressure, whereas Exp 1 hints at a sovereign ready to enforce it.

While the urge to express freely comes from the heart of the individual speaker, the question of whether one is free enough or not, lies in the hands of the society of listeners — Exp 2 is focused on the question of freedom, but Exp 1 is focused on the urge of freedom. Thus, exp 2 sounds more emotionally appealing to those wanting to focus on the urge, but if to address dispute resolution as to our freedoms, Exp 2 is spot on. Exp 1 treats the symptoms, and Exp 2 treats the root cause behind it.

Censorship resistance is not so much about speaking as it is about the act of listening, unlike freedom of expression which is focused primarily about speaking.

  • Exp 1: The discussion will be around “Was I free enough to express?”, “Was my expression unhindered?”
  • Exp 2: “Did someone prevent free speech of another?”, “Can we call that act of choosing to stay silent as out of fear of getting censored?”

If we use the language of double negations in terms of blockchains

1.3. The Letter of Autonomy

Injunctions governing our freedoms must be framed in a socially embedded way focusing what we can not undo: whether we lack the capacity to undo (censor, ignore, suppress, applaud, repeat, etc) what in relation to whom.

The language of double negation can be seen throughout the US Constitution deployed in the service of upholding civil liberties, such as its use in the first amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

By way of its “no law […] prohibiting”, it has a prohibitive injunction, not an enabling one. It directly prohibits the state to intervene in people’s freedom of expression, but it does not directly grant freedom by way of suggesting people act free!

On the other hand, consider the Article XI of the Declaration of the Rights of Man and of the Citizen, aimed to achieve a similar goal:

The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law.

This has a positive language, which leads go it being a prescriptive injunction, narrowing down the field of possibilities.

Other examples from the US Constitution where the double negation has been deployed in its framing:

Amendment XIV aiming to formalizing the “Equal Under Law” principle. Here’s Section 1 from it:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Notice the double negation, “no state […] shall abridge”.

Amendment V in relation to both criminal and civil legal proceedings, “No person […] be deprived of life, liberty, or property, without due process of law” instead of “Every person has the right to liberty, or property, unless it is deprived with due process of law”

Amendment II, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” — using the double negation, “shall not be infringed” instead of “shall be respected”

Amendment III, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” instead of the positive framing, “ Soldiers may, in time of peace be quartered in any house, only with the consent of the Owner, or in time of war, but in a manner to be prescribed by law.”

2. A Law of Autonomy

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. Law is a system that regulates and ensures that individuals or a community adhere to the will of the state.

— Wikipedia entry for “Law”

2.1. The Experience of Law

As a system of rules, not all systems constitute as Law. It does so if it is enforceable.

However, enforcement of a rule only makes sense when there is an attempt to resist the rule because force and resistance go together; if you don’t have one, the other does not exist.

In terms of our autonomy under the rule of law, unless we know we can resist a rule, we can never experience what it means to follow a rule for even if we did, that would be just a mechanistic (blind, dead) observance of a code. The computer screen displaying what I type is executing the code to display characters, but that is not following the rules of the code for it lacks any knowledge that it can resist. But a court stenographer typing what she hears is following the law as she is doing so under a contractual obligation that acknowledges her autonomy as an employee of the court.

If we don’t know we can resist, we don’t know we are following, even if we follow. But if we don’t know what’s at stake if we resist, we don’t really know what it is to actually resist.

In our autonomy to resist the rule of law, when we still chose to be subjected to the rule of law, we find the meaning (“inspite of”, “even though”, “still”, “nonetheless”, “rather”, “and”, etc.) in our experience of law. We chose to engage with the law by way of interpretively playing

  • within the rules: a submissive stance
  • by the rules: complaint stance
  • with the rules: legislative stance
  • of the rules: exploitative stance
  • against the rules: antagonistic stance
  • without the rules: nihilistic stance
  • for the rules: lobbying stance

But when we lack the autonomy to play ______ the law, rather the law plays us, it devolves to a mechanistic observance of a code, which is precisely the alegal situation — neither legal, nor illegal, but outside of the purview of the experience of law. My computer, amoebas, newborn babies (being pre-symbolic) lack any experience of the law, they remain alegal.

Before Eve realized she could resist the Divine Law (which she eventually did and chose not to), she never experienced the Law, which is a testament of her being innocent for before the fall G-d’s creation did not know the difference between good and evil, between legal and illegal, just like a newborn baby. Before the fall, Eve lived in an alegal universe inspite of G-d’s commandments as they meant nothing of significance.

The #ExperienceOfLaw is borne at the moment the possibility of resistance occurs for the first time but is given the name of “Law” only retroactively when enforcement comes in.

It is only after TheDAO hack, that #EthLaw came into its own. With the episode of TheDAO hack, was the #ExperienceOfEtherLaw birthed by way of the hard fork (enforcement) to respond to the hack (resistance).

2.2. Rechtsstaat: Blockchain State of Law

How the law related to us as citizens of a jurisdiction shaped if and how we experience the law for what is mechanistic observation living in under a rule of law, can be made to count as a legitimate experience of law if the action in question is cast in light of a higher law, such that it that endows her with the possibility of choice, whether to follow the rule or not.

During the Nuremberg trial, many of the Nazi soldiers in trial claimed they did nothing illegal, as they just [read: mechanistic observance of code] followed the law by taking part in the Jewish genocide — in that, being part of the army, they lacked the capacity to resist orders from their superiors, which ultimately came from the supreme leader of Germany, Hitler.

Basically, their logic was that their involvement in the genocide was alegal because of their lack of resistance from the law.

The Allied force’s response to that was by invoking a higher rule, one of basic human rights but clothed in natural law, where the argument went that while the soldiers followed the rules of the Third Riech, they broke the International law. The Nazi soldiers lost the case.

As a result, they drafted the Nuremberg principles, of which Principle IV is especially revealing, as follows:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

By adding the “moral choice” clause, they reintroduced resistability to be in the hands of the soldiers, thereby, framing their actions as an experience of law, which in this case, constituted a crime. By doing so, they ended up invoking a higher rule, one of International Law, making it a case under rule according to a higher rule. This is appropriate in the German context, as their conception of the constitutional state is of Rechtsstaat [literal translation: “legal state”], which is mostly a rule of law, with exceptions such as these to apply rule according to a higher law.

The hard fork that happened as a response to TheDAO hack, where the Ethereum Foundation had to appeal to a rule beyond that in the code, as of protecting against a hack, and even framing it as a hack, was an exercise of applying a legislating using a rule according to a higher law. In the normal course of the life of Ethereum, it follows the rules of law, except for exceptional cases, thereby making the legal state of EThereum as operating as a Rechtsstaat.

If blockchains are to be conceived of as having a state of law, Rechtsstaat might be more appropriate over a Rule of Law.

2.3. Interpretive Autonomy under The Rule of Law

Living under the rule of law obliges all of us to act in reciprocal resistance towards each other’s unlawful advances as it constitutes our social duty of holding no one above the law.

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions… (and) when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

— John Locke, The Two Treatises of Civil Government

(Emphasis solely by me)

At the same time, living under the rule of law confers upon us the reciprocal autonomy to resist a law by way of resisting each other’s compulsions to mechanistically observe it. This is possible thanks to the enforcement mechanisms that has always already been set in place, that which creates the safe space for us to express our creativity by resisting the law being sure in our hearts that it will push back against any resistance, This tension is what gives the meaning to our legal subjectivity — as subjects to the rule of law.

A perfectly frictionless surface is unwalkable, that makes for a slippery slope. We need just enough friction to walk, not too much, and this is always a conversation between the feet and the friction that makes walking possible. Resistance as a legal fr̵iction that makes it possible for us to act with autonomy from each other as promised by the enforcement mechanisms operating under the rule of law.

But enforcement is never a straightforward movement for law becomes the law-that-is-enforced only after it is interpreted by human institutions of authority and power. These institutions provide the formalized rules to interpret the legal text correctly — which other cases or contracts may be cited, what type of authority can override it, criteria for the applicability of the legalese and so on.

However, no set of instructions on how to interpret a text, legalese or not, is free from its own dilemmas of interpretation for the instructions-to-interpret are only another piece of text that needs to be read, and hence — interpreted. This inevitable necessity of meta-interpretation runs into the dictionary paradox: if the meaning of every word in a dictionary points to other words in the same dictionary, how do we know the meaning of words beyond words, as meaning in the physical and material world of facts and objects around us?

This paradox opens up space for us to be able to express our creativity in interpretation, as an act of resistance as manifested by our individual and unique differences with which we read these interpretations.

Any interpretation still hangs in the air along with what it interprets, and cannot give it any support. Interpretations by themselves do not determine meaning

— Wittgenstein, Philosophical Investigations, 198a.

Thus, no text, be it of law or math, is ever final.

Nothing is obvious, not even if, and especially when, rules-to-interpret are specified, except for what we all agree to as part of the social contract. This is true for what some would consider as the divine laws of math as well.

Under the rule of law, our reciprocal resistance from each other — as guaranteed by the inevitability of the interpretive uncertainties of law — is what gives meaning to the enforcement mechanisms. Our interpretive autonomies as a modality of legal fr̵iction make it possible for the force of law to be in the world.

This gives life to law by never letting it get frozen to what’s in the text only, but what we all humans are always in dialogue with, the ever-changing flux of the law.

While no one is above the law, everyone is autonomous under the rule of law as guaranteed by the inevitable uncertainties and openness that all rule-based system (such as law) comes with.

2.4. The Legitimization of Our Reciprocal Autonomies

Eve’s initial thought of and the eventual desire for resistance legitimized her autonomy from G-d even before she acted on it because in that movement in her mental space lies dormant the possibility of a future punishment from G-d, something that she felt creeping under her skin without being able to articulate it as so.

Resistance is not resistance if the one resisting or is about to, does not get preoccupied with possible speculations as to the ramifications of one’s act of resistance. One might be speculating whether one will be

  • bound to obey nonetheless (“While boots-on-the-ground, SWAT-team-in-your-door”)
  • made to pay for it (penalties, bribes, boycotts, embargos)
  • invited upon to deliberate on the rule (citizen’s advice, public referendums)
  • intentionally forgiven (Presidential pardon, clemency, sentence commutation, Truth & Reconciliation Commissions, loan forgiveness, peace & reparation treaties)
  • ignored (go unnoticed, look away)

The act of resistance or our perceived ability to thereof (even if we end up not acting on it) legitimizes our reciprocal autonomy from whoever we resist from or try to.

Seen in this lens, resistance forces the rule-giver to respond with a force of her own such that, not just enforcement, but resistance in itself is a type of a force as well — both being part of the same movement, that of the force of law.

This makes it blurry as to the question of the most originary movement of law, for both resistance and its enforcement as a response thereof acts as symbiotic sides of the force of law, co-creating each other. Thus, the movement of resistance is as within law as is its enforcement against any resistance (actual or potential). This might be contrary to what may seem prima facie of resistance being outside of the law, as that which helps creates the alegal space. On the contrary, it is what legitimizes the need for enforcement mechanisms to be set up as the same the time of legislation, long before its ever needed to be used.

If no one resisted anyone’s injunction, law would be an overkill, which makes it into an alegal space. Law, as a system of rules, provides the framework that enables and ennobles us to be able to consider strategies of resistance but legally, it even provokes us to consider resisting now and again lest it becomes dead law, which is the letter of law sans any spirit.

As subjects of law, we are conscious of our capacity to resist but choosing not to, being conscious of the presence of enforcement which ironically never comes as a result of our eventual choosing to resist our desire to resist because of the speculation of retributive action — like the image of Ouroboros, a serpent eating its tail.

There be Law -> To Which, I May Resist -> But It Can Always Enforce Back-> So I Chose to Resist My Temptation to Resist -> ∴ Enforcement Not Needed to be Called Upon -> Prima Facie, No Signs of Resistance

On the outside, the Ouroboros would make it look like we have been following the law without resistance. But by dint of the knowledge hidden deep in our hearts of our capacity to resist at the cost of death and suffering, we experience the law, silently still far from any harm to us.

Every time we cross the street, whenever we use our bank card, the moment we are called by your name, we are experiencing the law.

2.5. Crypto Law: Vive La Résistance

The Times 03/Jan/2009 Chancellor on brink of second bailout for banks

— The preimage of the coinbase parameter of the genesis block of Bitcoin, Jan 2019

This was an act of resistance, one initiated by Nakamoto against Fiat Law. In that act of resistance, was the Experience of Crypto Law borne, being in between the tension of the two sides of the force of law — Chancellor with his Fiat force on one side, Nakamoto with their Crypto force on the other.

Being a law of a new kind, the rules of the fiat world had to die by the hands of the 2008 global financial meltdown to eventually be reborn in Jan 2019 with the genesis block in a whole new form, that was captured by Nakamoto in that preimage.

Crypto Law = Born-again Fiat Law

Nakamoto’s crypto lawgic created a novel set of rules for “A Peer-to-Peer Electronic Cash System” to frame our experience so as to qualify distinctly as that of crypto law, rules that are enforceable every 10 minutes by every full subject of that law as its consensus law:

  1. The number of bitcoins going in a transaction can never be greater than what comes out, where the difference is collected as fees by the miner. This prevents minting eh nihilo.
  2. Transactions must have signed approval from the owner of the coin, which goes in the input of the next transaction that is then signed by the new owner, thus, forming a chain of approved outputs. This ensures only the owners of a coin get to spend it.
  3. Each transaction output can only be spent by only one subsequent transaction. This ensures that the same coin is not spent in parallel in multiple copies.

However, just the execution of code — as instructions on a CPU or VM — that operates under the above rules do not alone make it into being classified as a modality of law. This is because such CPU instruction execution is not pitted as or against any type of force or friction; execution in itself is not enforcement, it is a mechanistic observance of a code.

It is when we take the same execution in contexts where the blockchain code meets our human consciousness that the experience of crypto law is realized:

  1. Fiat Resistance: Going beyond the code, we must look at the software as a whole as it applies to its human stakeholders who are to benefit or be at risk as a consequence of their choosing crypto over fiat. Theirs is as an act of resistance against the “fiat” of the fiat legal systems, as legal autonomy from their banks with their boundaries of nation-states, the experience of which presents itself through the modality of law: the experience of crypto law
  2. Censorship Resistance: Deep in the ethos of blockchains, there is the social enforcement of censorship resistance. This brings in both sides of the force of law — enforcement &/of (censorship) resistance — both of which are possible because of the politics of the ecosystem. Being able to support Wikileaks via XBT is an experience of crypto law. (Note. Crypto lawgic leverages censorship resistance, not to be confused with freedom of expression, as we argued in §1.2.)
  3. Hack Resistance: All actions (e.g., hard forks) that are taken to recover from a hack as per crypto’s moving-forward mechanisms
  4. Bailout Resistance: What started it all, the original experience of crypto law — resisting the Chancellors of the fiat world.

This is reinforced with the enforcement of the moving-forward mechanisms (recovery, hard forks, etc.) implemented after hacks, which makes crypto law a modality of “law” all over again.

2.6. Crypto Law: Back to The Future

The origin of the usage of the word, “fiat” is from the Latin Vulgar Bible, “fiat lux” [Genesis i.3] meaning “let there be light”, where “fiat” translates to “let there be”. The act of letting comes one who has the power to let, the source of authority, G-d.

Fiat law = “let there be law “ = law by decree

Fiat money = “let there be money”= money by decree

If we look at crypto meaning “secrets”, then cypto law presents itself as “let secrets [Private Key] be the source of law” instead of authorities being so.

As an act of autonomy, what would you choose as your Genesis Block: “fiat lux” or crypto lux (“The Times 03/Jan/2009 Chancellor on brink of second bailout for banks”)?

Crypto Law Review

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

Anuj Das Gupta

Written by

Crypto Law Review

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

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