SAS Open Journals
Not a member yet
4299 research outputs found
Sort by
Freedom to (Smart) Contract: The Myth of Code and Blockchain Governance Law
Get PDFSince Friedrich Kessler wrote “Contracts of Adhesion-Some Thoughts About Freedom of Contract” in 1943, condemning narrow adherence to the principle of “freedom to contract” in the face of large scale enterprises’ growing preference for standard form contracts, Courts have balanced their desire to uphold contracts while protecting weaker parties from adhesion. Today, they face similar challenges with the rise of code-driven smart contracts and blockchain governance. Similar to Kessler’s world, where standard-form contracts were a tool for “excluding or controlling the ‘irrational factor’ in litigation” such as uncertain outcomes of judicial interpretation, automated smart contracts aim to put themselves outside the control of both contractual parties and the courts, thus removing any ability to breach or tamper with the original terms. Smart contract advocates contend that removing the judiciary as the governing body over contract law and imposing contractual performance via decentralized blockchain governance improves efficiency and certainty.
But, how much can one really write a contract that completely circumvents the potential for legal intervention or judicial enforcement? Will smart contracts finally achieve the complete separation between private and public law that advocates of “freedom to contract” originally claimed, or does the common law legal system’s deep-rooted belief in the rule of law and due process prevent the judiciary from being excluded from contract enforcement regardless the medium? And is there a risk that, as smart contract sceptics posit, smart contract platforms and blockchain governance create a new feudal order with a “potentially illegitimate exercise of power” and “normatively suspect” wealth distributions?
The short answer, as this paper will demonstrate, is that as long as smart contracts meet the traditional requirements of a contract, they cannot fall outside the establish legal system’s purview. The only thing a smart contract truly adds to traditional contracts is automated execution that is enforced by the blockchain’s consensus mechanism; this may provide some efficiency to the legal system by streamlining basic performance but it cannot be the only form of governance over smart contracts. While there may be procedural challenges to undoing or enforcing specific performance under smart contracts because of their decentralized features, any substantive problems that could occur within a smart contract are imminently addressable with and must be subjected to the principles and remedies found in traditional contract law. Finally, I will conclude with current developments in smart contracts which point to a potential for them to become an integral part of our legal system going forward. Overall, I will argue that smart contracts, if carefully drafted to consider potential pitfalls and the future needs of contracting parties to amend or enforce, can hold the potential to provide efficiencies and greater legal certainty to contracting parties. This is achieved, not through circumventing the legal system, but by working with it to automate simple performance enforcement and deferring more complex contractual breakdowns to the judiciary
Limits to Terror Speech in the UK and USA: Balancing Freedom of Expression with National Security
Get PDFArticle 10(1) of the European Convention on Human Rights, freedom of expression, is incorporated into UK law. With the growing Islamist terror threat after 9/11, particularly threatening European security, the Council of Europe introduced the Convention on the Prevention of Terrorism (CPT) 2005. One of the Articles within the Convention, Article 5, obliges states to outlaw ‘public provocation to commit a terrorist offence’. Drawing on its obligations in the CPT, the UK enacted section 1 of the Terrorism Act 2006: ‘encouragement of terrorism’. But, in implementing its duties, the UK went further. There are very real concerns, therefore, about the effects of this legislation on freedom of expression. The test for interpreting breaches of Article 10 is ‘proportionality’. Comparatively, in America there is a much stronger test than proportionality, ‘strict scrutiny’, in assessing limits to terror speech. However, in the age of Islamism, together with the speed, ease and little cost incurred in sharing terror speech online, should there not be a reappraisal of American law? The author is based in the UK. But the UK’s approach to limiting terror speech is arguably too intrusive of freedom of expression. This paper, therefore, proposes a compromise approach between the two jurisdictions
‘Ai Theory of Justice’: Using Rawlsian Approaches to Legislate Better on Machine Learning in Government
Get PDFPolicymaking is increasingly being informed by ‘big data’ technologies of analytics, machine learning and artificial intelligence (AI). John Rawls used particular principles of reasoning in his 1971 book, A Theory of Justice, which might help explore known problems of data bias, unfairness, accountability and privacy, in relation to applications of machine learning and AI in government. This paper will investigate how the current assortment of UK governmental policy and regulatory developments around AI in the public sector could be said to meet, or not meet, these Rawlsian principles, and what we might do better by incorporating them when we respond legislatively to this ongoing challenge. This paper uses a case study of data analytics and machine-learning regulation as the central means of this exploration of Rawlsian thinking in relation to the redevelopment of algorithmic governance
Homeless Applicants with Dissatisfactory Decisions, Appropriate Dispute Processing and Access to Justice
Get PDFThis short article examines the situation of the homeless applicant in relation to unsatisfactory decisions when attempting to secure temporary accommodation from local government in England. The issues of appropriate dispute processing, or methods of redress, and whether in practice legal and other remedies are available to applicants, should be analysed in the context of power imbalance in the applicant and local government officer relationship. Additionally, the applicant’s vulnerability, which led to the request for assistance in the first place, would need to be considered. Given that applicants are more likely not to challenge unsatisfactory decisions, socio-legal tools could assist in acquiring an insight into why this might be the applicant’s default position.