Law is Not Law28 Aug 2021
There is a conceit among the purveyors of decentralized, open, or otherwise distributed network protocols that code is law which, while often invoked in the negative sense of rationalizing the exploitation of vulnerabilities within code, has more lately come to posit more materially consequent implications.1 Specifically, consensus as a mechanism of a protocol’s operation as well as its proliferation bears forth new meaning for code as law; as in, a protocol’s operation by and through the prerendered consent of those subject to that protocol approaches the formation of something more law-like than is actual law.
Let us consider, for instance, that state legal formations emerge actualized only by means of coercion at the discretion of those monopolizing the means of coercion (application of violent force, wielding overwhelming force of arms, tactical posturing, etc.); such law bears no more guarantee of consistency or persistence than some despotic reign in a state of general anarchy. What sets some legal structures indubitably aloft others, however, is its totalitarian pervasion through materially conditioned enactments of mutual surveillance, gamesmanship, and particularly the ways in which these enactments play out within, rather than between individuals–an ideological framework, effectively automating away some portion of the coercive burden of state-sanction (sometimes referred to as the punitive or disciplinary sort which nevertheless must rear its head from time to time). One might well imagine that herein lies the distinction between the authoritarian injunction and that of the social (or even commercial, as it were) “manufacturing of consent”2 within the complex of their effectively, albeit largely spontaneous totalitarian collusion.
A key feature of contemporary notions of code as law is the quality of being trustless. To better understand what this means, we must first consider exactly how trust is operative within conventional legal structures. The peculiar dimensions of this dichotomy are illustrated quite well in a piece regarding the “Byzantine Generals Problem” by Kei Kreutler.
Blockchain technology claims to be trustless, in the sense that individuals don’t have to trust intermediaries or more powerful single actors in order to act and interact. The technical system off-loads authority onto a transparent and public consensus history, created and validated by the protocol and some of its users. The technical system could be considered a “trustless,” multiauthored actor in its own right, with the however unlikely and expensive scenario of its own validators’ collusion. “We don’t need to trust each other before we can begin to collaborate,” blockchain technology claims. Through the massively poor media reporting on blockchain, this claim can come to be misinterpreted, as today’s dominant connotation of trust suggests something interpersonal and chosen. The term “trustless” skims over that what may have been previously defined as “trust”—as in trusted institutions—and in many scenarios may not refer to voluntary, cultivated relationships but instead arise as a result of contingency and lack of alternatives. In this light, trust was the network effect of rumors around consolidation of power.3
Let us consider that commodification is perhaps the prevalent form of social mediation operative today. Marx most aptly referred to this phenomenon as material relations between people and social relations between things (we might also extend this to social relations between people only as things or, in other words, as themselves commodities of a sort); hence may we observe, in whatever various dealings and interactions people might engage, the implication of trust, but a trust in what if not in the other party’s embroilment in a common distance or alienation from the social course of transaction? It is a trust in the thoroughness of commodification, that a counterparty might prove similarly compelled to act only in capacity as arbiter of material relations so that the social relations of the commodity form or that of the market be simply allowed to play out (or merely imagined to do so), and all in effect that one might set aside more natural or even, to some extent, rational compulsions. (or that one’s habit of compulsion prove sufficiently denaturalized)
Trustlessness, on the other hand, removes any need for whatever presumption of effectively enacted commodification by relegating the hypothetically smooth operating of a network of transaction (really just the consultation of the public ledger through the validation of its addenda) to deterministic mechanisms of consensus: breaches of trust only proving possible off-network or off-chain (misrepresentations only by intermediated obfuscation of what is otherwise its public and disintermediated process). To the extent that this is representative of code as law, we can see quite plainly the extent to which this paradigm begins to exceed and supplant any hypothetical code of law. This would apparently juxtapose our sense of the former as something of a referendum on the latter, casting doubt upon the mythic foundations of state and law4–upon its very legitimacy.5
Where a people still exists, there the people do not understand the state and hate it as the evil eye and sin against custom and law. — Friedrich Nietzsche, Thus Spoke Zarathustra
Yet even some hypothetical succession or displacement of any older sense of law by such a radical innovation would not in and of itself decouple some newly emerging socio-legal formation from the comparatively criminal origins of its predecessor–that is, if we consider closely the most pernicious and persistent quality of said criminality in the illegitimate (which is to say, merely retroactively assumed as legitimate) agglomeration of resources, power, etc.. Even if we consider coercive capacity–assymetric application and monopolization of violence–as the defining feature or definitive means of all law-making and law-preserving, that very capacity emerges of definite historical moments of some consolidation of its means and the redistributive effect of violent upheaval emerging of the inner tension or the contradictions straining such moments to the point of rupture. And what are these means of coercion other than a primitive and subordinate means of social production? The redistributive rupture of which proving ultimately the cesarean delivery of a new mode of production more generally.
Suffice to say, a transfer of power is seldom cleanly discernible from an accompanying transfer of wealth, and what else constitutes wealth other than the means to exploit productive power? Thus might we find the locus of power and the very object of law as such as merely or preeminently the reproductive capacity or productive mode by which some historical distribution of its means expresses itself, however obfuscated by the mythic origins of its accompanying legal apparatus, its instrumentation of the state.
Given such incidental beginnings, law-as-such might be seen to suggest a strained and desperate sort of legitimacy–one garnered ad hoc and at great pains of subjection and destitution for those who find themselves under its heel. Comparatively, a programmatically deterministic elimination or minimization of counterparty risk, empirically auditable, and resting mechanistically upon a wide base of consensus might well strike us as rather securely legitimized within its narrow and relatively well-defined scope of mediation. Herein do we better glean the extent to which trust is operative within the code of law only as an abstraction of what amounts to a discipline of co-learned helplessness before some well-established injunction, rather than a common civic duty among free and dutiful subjects (certainly far from any free association between such subjects); hence, trustlessness within code as law is operative only in the degree to which any such “trust” be rendered unnecessary in advance or, rather, to the extent that legitimacy garnered by a specially coercive apparatus be displaced by that emerging from the commonplace coercion levied by society at large. (i.e., custom or social convention, or perhaps even approaching a more sophisticated sense of protocol)
Is this not something hardly, if ever, imagined possible? that some semblance of orderly mediation between individuals at scale might emerge of the society itself without special sanction of an intermediary? a sort of mediation more a law than law itself?
[The Expeditionary Tendency]
Here might we comprehend the discernibly political implications of any technical matter of consequence pursued to its end–to its final analysis. This manner of analysis should prove essential to any coherent formulation of what we might refer to as the expeditionary mode (or that of rapid expedition6) and, thus, constitutes what we might refer to as the _Expeditionary Tendency_. Implied here is the extent to which an orientation toward such a mode is necessarily of political consequence, if any at all.
Hence shall we proceed under this distinction insofar as we concern ourselves with the broader scope of application around and within the practice of Rapid Expedition7 as it might be seen to converge with the project of American Contra,8 further clarifying that represented more generally in the project of Weaponize!;9 indeed might we detect some semblance of its aesthetic aims protruding in the very shape of this convergence. As such might this tendency as demonstrated here and hereafter be considered definitive of that exhibited by this publication more broadly.
Referring largely here to Walter Benjamin’s notion of law-making and law-preserving violence as demonstrating a mythic character or status. ↩