Diver spoke at the Scottish Law and Innovation Network (SCOTLIN) last month, setting out the main contours of his new book, Digisprudence: Code as Law Rebooted (EUP 2022, open access). The talk was moderated by our COHUBICOL colleague Pauline McBride.
You can watch the full talk here:
Whenever you use a smartphone, website, or IoT device, your behaviour is determined to a great extent by a designer. Their software code defines from the outset what is possible, with very little scope to interpret the meaning of those ‘rules’ or to contest them. How can this kind of control be acceptable in a democracy? If we expect legislators to respect values of legitimacy when they create the legal rules that govern our lives, shouldn’t we expect the same from the designers whose code has a much more direct and pervasive rule over us?
Code may not be law (pace Lessig), but its pre-eminent ability to regulate behaviour and action means it is of primary interest to lawyers, and indeed to anyone concerned about the legitimacy of regulation within the democratic state. But how exactly does code regulate? What standards should we expect its design to meet in order to be democratically legitimate? And how can we engage with code development tools and processes to ensure Rule of Law values are properly represented?
In this talk, Laurence Diver sets out a theory of ‘digisprudence’, taken from his book Digisprudence: Code as Law Rebooted (Edinburgh University Press, 2022, open access). The book combines legal theory, philosophy of technology and programming practice to develop a new theoretical and practical approach to the design of legitimate software. Ultimately, legitimate code can only be realised by engaging with the programming languages, integrated development environments, and agile development practices that are the foundation of all modern software applications. And so, just as legal constitutions bind legislators in the forms of legal rules they can legitimately create, these technical foundations ‘constitute’ the regulative code that programmers create. By targeting legal values at this foundational level, we might ultimately be able to ensure ‘compliance by design, by design’.