The post discusses the discourse theory of law, attributed to the later, matured Habermas. According to it, the law serves as a transmission belt between legitimate norms established by civil society and a system of power, money, and technology. When it is efficacious and legitimate, society prospers in its legitimacy. The blog post toys with the idea of normatively aligned algorithm law established in a similar way: through the norms established by civil society.
I wrote about this in 2014 and I’m surprised to find myself revisiting these themes in my work today on privacy by design.
What this requires, however, is that civil society must be able to engage in mathematical discourse, or mathematized discussion of norms. In other words, there has to be an intersection of civil society and science for this to make sense. I’m reminded by how inspired I’ve felt by Nick Doty’s work on multistakerholderism in Internet standards as a model.
I am more skeptical of this model than I have been before, if only because in the short term I’m unsure if a critical mass of scientific talent can engage with civil society well enough to change the law. This is because scientific talent is a form of capital which has no clear incentive for self-regulation. Relatedly, I’m no longer as confident that civil society carries enough clout to change policy. I must consider other options.
The other option, besides voicing ones concerns in civil society, is, of course, exit, in Hirschmann‘s sense. Theoretically an autonomous algorithmic law could be designed such that it encourages exit from other systems into itself. Or, more ecologically, competing autonomous (or decentralized, …) systems can be regulated by an exit mechanism. This is in fact what happens now with blockchain technology and cryptocurrency. Whenever there is a major failure of one of these currencies, there is a fork.