Laurence’s article ‘Interpreting the Rule(s) of Code: Performance, Performativity, and Production’ has been published open access in Release 3.2 of the MIT Computational Law Report.
The paper discusses the essential role of performative speech acts in law, and how these are (and are not) reflected in the language(s) of code. Can the ‘legalism’ of code, which is antagonistic to the text-driven normativity that underpins the law, be mitigated within the design process?
Software code is built on rules. The way it enforces them is analogous in certain ways to the philosophical notion of legalism, under which citizens are expected to follow legal rules without thinking too hard about their meaning or consequences. By analogy, the opacity, immutability, immediacy, pervasiveness, private production, and ‘ruleishness’ of code amplify its ‘legalistic’ nature far beyond what could ever be imposed in the legal domain, however, raising significant questions about its legitimacy as a regulator. With the aim of mitigating this ‘computational legalism’, the article explores how we might critically engage with the text of code, rather than just the effects of its execution. This means contrasting the technical performance of code with the social performativity of law, demonstrating the limits of viewing the latter as merely a regulative ‘modality’ that can be easily supplanted by code. The latter part of the article considers code and the processes and tools of its production, drawing on theories of textual interpretation, linguistics, and critical code studies to consider how its production might be legitimised.