Thread by @lex_node

Had a chance to review this "Tractatus" by @judge_jowday this morning. . . very interesting.

It appears to be a sort of gnomic, Wittegenstein-style philosophy of cryptolaw, intended to reconcile the two paradigms of "law is law" and "code is law".

https://twitter.com/judge_jowday/status/1452039249809793025

There is no 'color commentary' provided on what the 'Tractatus' is supposed to mean or do, who would use it, whether it's meant to be descriptive or prescriptive, etc.

@judge_jowday 's intentions are open to interpretation.

The first few sections (1-3) are pretty boring, and appear to just be setting the stage for how to talk about law. They define law as an enforceable and enforced governance system consisting of rules, rights, duties and canons. (Debatable definitions).

Section 4 is where it gets interesting--defining "autonomy" as the state of "independence from laws".

It defines two flavors of "autonomy". The interesting flavor--"absolute autonomy"--arises when law is "unenforceable" against certain persons or in certain circumstances--arguably (I think?), like in robustly decentralized blockchain/DeFi systems.

I guess the idea here is that if a law is, for practical purposes, unenforcable re: certain users of certain technologies (due to decentralization + anonymity + mutation-resistance), it's not really "law" in those circumstances.

"Autonomous law" (Section 5) is defined (a bit mysteriously) as "the law-of-the-absence-of-law". I don't fully understand this, but I guess the idea is to deduce a sort of "law" from the outcomes that consistently arise in autonomous circumstances.

Sections 6-7 are about "cryptolaw"--a type of autonomous law governing "autonomous cryptosystems"--and "metalaw"--a type of "treaty" between cryptolaw and ordinary law.

"Cryptolaw" seems to me like an attempt to explain the intuitions behind "code is law" more precisely, and as trying to show the ways normal legal assumptions break down within "autonomous cryptosystems".

"Cryptolaw replaces rules with code, rights with powers, duties with incentives and canons with consensus."

This strikes me as a really concise way of explaining the paradigm clash.

In legacy finance, transactions do not occur without agreements, rights and duties. If two parties want to transact, they make mutual promises which are enforceable in law if breached.

By contrast, if someone fails to "pay back" their tokens borrowed from Compound or RAI borrowed from Reflexer, no one thinks they've "breached a contract" or "violated a promise"--instead, they just take a haircut on their deposit.

Smart contract enforcement mechanisms can always be *analogized* to traditional contracts, but there is no real need for this. It would be silly to say that someone has *promised* to pay their RAI back--they merely have a strong mechanically enforced incentive to do so.

So, I think this is sort of the point of this definition of "cryptolaw". There's a lot more there & I don't fully understand all of it, but I feel like I get the gist and that it (mostly) makes sense up to a point.

Finally, we get to "Metalaw" (Section 7), which is probably the densest and most interesting part. This basically sets forth a set of presumptions that traditional law is supposed to apply when dealing with autonomous cryptosystems / cryptolaw.

I suppose the idea behind this is that, although traditional law is practically unenforceable "on-chain," it can still try to impose "off-chain" remedies relating to on-chain events.

But it should do so with greater deference to the cryptolaw paradigm.

More pointedly, this could be seen as a proposal for a sort of 'crypto bill of rights' that the "laws of states and nations" should respect.

This 'metalaw' has too much for me to summarize, but the core proposal seems to be that people have a basic right to write create, deploy and use autonomous cryptosystems.

When people use autonomous cryptosystems to achieve essentially normal ends--e.g., centralized control of an asset--they can have the normal liabilities associated with ownership, etc.

But the truly autonomous uses of these systems--e.g., use of an immutable smart contract--should not carry the ownership/causation prejudices from traditional law. Such smart contracts would be independent "legal persons"--like corporations--and users would have limited liability

The Tractatus proposes that these autonomy-favoring presumptions could only be overcome using the standard of criminal liability--i.e., with evidence beyond all reasonable doubt, as decided by a jury of 12 independent experts.

All in all, while I am not sure what exactly could be done with the Tractatus practically--obviously, it would be tough to get governments to adopt the 'metalaw'--it does a good job of capturing some of the deep 'paradigm clash' legal issues & provides some good conceptual tools.