THERE ARE FOUR-LETTER WORDS and there are four-letter words; and despite the common proclivity to deploy the more commonly associated ones to inevitable frustrations with both law and technology, there is still one word, common to both fields, that exemplifies the best of each: ‘Code’. Consider this: programmers write code; lines and lines of it. And the law frequently uses the phrase ‘a complete code in itself’. What does this mean, and why should it concern us?
For a subject as vast as ‘technology and the law’, it is easy—and facile—to fall into the trap of thinking only about computers, the internet and yes, that 800 tonne monster in the room, ‘artificial intelligence’. But ‘technology’ has implications that are far more profound.
Consider the parallels. At its heart, law when codified—that word again—is nothing but a set of instructions: dos, don’ts, consequences, instructions, and directions. All law has always been like this, throughout recorded human history. Every sacred text has this from the Bible to the Qur’an and the Bhagavad Gita. What are the Ten Commandments if not a set of directions and commands? Humankind has been coding for millennia. Our earliest codes followed patterns and rhythms that are still in use today in both law and technology. There are defined structures, now so familiar we barely pay them any heed. The purposes are actually identical: orderliness, predictability of outcomes, certainty—at least in theory.
Legal code regulates society and societal structures while programming code controls how computers and networks function. Both have very similar structural typologies. At the most basic level, for instance, programmers know of if-then-else-end command lines: if x happens, then perform y, else do z. There are many such: while/wend loops say that while a particular statement exists, the program should loop through another set of instructions. This is not very different from the codification we see in law; it is only expressed differently. The Income Tax Act, for instance, is a very good example of a highly complex set of what are essentially binary instructions and consequences. Most fiscal statutes are like this. Codification, wherever it exists, strives for the clarity of a binary result – yes/no, zero/one.
