Code as Contestable Law

People tend to think of laws as set in stone, but they’re very changeable. They’re changeable in at least two ways: the laws themselves can be altered, through formal legal mechanisms like passing a bill through Congress, or laws can change through how they’re enforced on the ground.

It’s tempting to say that only the first of these two mechanisms is legitimate. We should always enforce all laws that exist! If we don’t like the laws, we should change them, not disobey them! But the first mechanism actually relies on the second. We don’t know what formal changes are necessary until we’ve seen people contesting the enforcement of existing laws.

When people disobey a law in order to draw attention to the importance of changing it, we call it civil disobedience. Or, as civil rights activist and longtime Congressman John Lewis called it, “good trouble”.

In the language of interpretive labor, civil disobedience happens when people without direct power over a system recognize a gap between “how things are” and “how things should be” and decide they are not going to quietly bridge that gap but instead call attention to it. By making the problem a problem for everyone---or at least, a problem for more people---they increase the likelihood that the system itself will be changed.

Laws can also be contested by the people tasked with enforcing laws. We might call this “mercy”.

Elinor Ostrom, in her book Governing the Commons, talks about a village near a forest that relied on cutting and selling timber. To keep the forest from being over-logged, the villagers had adopted rules limiting who could log what. But during dire economic times, people couldn’t always follow those rules.

“Almost all the villagers knew that almost all the other villagers were breaking the rules: sneaking around the commons at night, cutting trees that were larger than the allowed size, even using wood-cutting tools that were not permitted. […] The violators themselves tried to exercise self-discipline out of deference to the preservation of the commons, and stole from the commons only out of desperation. Inspectors or other witnesses who saw violations maintained silence out of sympathy for the violators’ desperation and out of confidence that the problem was temporary and could not really hurt the commons.”

Mercy granted by those tasked with enforcing rules helps the system to be more tolerable, which gives communities the time and the mental and emotional energy to engage in fixing flaws more formally.

Contesting the Law of Code

Contestation is a vital part of governance. But software systems often make our governance less contestable, not more. Code automatically enforces itself, leaving little space for disobedience or mercy.

This is ironic. Code is so easily changeable*! It’s a lot easier to rewrite a few functions than to pass a law and then communicate the new law to everyone in society.