Core Post 3 -- Some Thoughts on Code, Software, and the Law

“The complete syntactic and semantic rules of a computer language must be defined and written into any environment designed to interpret, parse, or execute it. (As an aside: in the so-called natural languages this is never the case, despite style guides and dictionaries, as unforeseen ‘inductive’ uses of language may be stumbled upon or invented without the blessing of provenance, whereas with software the unforeseen articulations of language are essentially dismissed out of hand as errors or ‘exceptions’.” 

(Galloway, 322).

“What is surprising is the fact that software is code, that code is—has been made to be— executable, and that this executability makes code not law, but rather every lawyer’s dream of what law should be, automatically enabling and disabling certain actions and functioning at the level of everyday practice.” (Chun, 309).

I’ll be honest; I found the substantive differences in the back-and-forth between Galloway and Chun to be rather opaque. It seems to me that Galloway, in his attempt to  animate an allegorical relationship between ideology and software, needed to argue that while both are often viewed as immaterial and discursive, they are in actual fact material and active. It seems Chun was arguing that while high-level source code is executable, it is not necessarily so until it is executed, and that collapsing the difference between machine code and source code elides an important gap, which allows “we ‘primitive folk’ [to] worship source code as a magical entity—as a source of causality— when in truth the power lies elsewhere, most importantly in social and machinic relations.” (Chun, 311) This allows us to mistakenly treat our interactions with computers fetishisticly, in much the same way we treat commodities as real things with a common sense provenance that obscures the material facts of the social relations involved in their production. I’m pretty sure I am missing something important, because it felt to me that both writers had the same general conception of the ideological nature of software, but highlighted different theoretical approach vectors, with a bit of good natured snark thrown in to keep things interesting.

What I really found very interesting was an aside in her main argument, captured in the second epigraph above. The code-law analogy to me is very compelling and to my mind goes a long way to illuminating the argument that both of them make from different angles: that the encapsulated nature of software by design obfuscates the “social and machinic relations” which determine it. While I don’t have an fully fleshed-out argument, here are some of my first thoughts on this:

1. I think that this analog helps me think through the way machine learning algorithms act upon us biopolitically. The law (formulated in codes) like source code can be executed to perform an action. It can be used to formalize certain social relations (through a contract) just as code is used to create social relations (a Skype call, or an Uber pickup). But increasingly as our tastes, moods, movements (our data body, if you will) are collected, stored, and often without our knowledge, algorithmically transformed into accurate predictive models (this is a thorny assertion that needs to be unpacked, but in many ways is materially true) that act upon us ideologically to convince us to buy products, look at certain content while hiding others, and as many are actively researching, used to create predictive policing, urban transportation management, city planning and zoning decisions, etc. In this way code is slowly becoming law, presumably to the delight of the fictional lawyers that Chun conjures.
2. As code slowly incorporates itself into the legal and biopolitical landscape we add an additional layer of abstraction and obfuscation to an already arcane process, wherein it is not out of bounds to imagine that even professional technocratic experts will be unable to grasp how legal decisions and policy are made.