Smart Legal Contracts: Computable Law in Theory and Practice is a landmark investigation into one... more Smart Legal Contracts: Computable Law in Theory and Practice is a landmark investigation into one of the most important trends at the interface of law and technology: the effort to harness emerging digital technologies to change the way that parties form and perform contracts. While developments in distributed ledger technology have brought the topic of 'smart contracts' into the mainstream of legal attention, this volume takes a broader approach to ask how computers can be used in the contracting process. This book assesses how contractual promises are expressed in software and how code-based artefacts can be incorporated within more conventional legal structures. With incisive contributions from members of the judiciary, legal scholars, practitioners, and computer scientists, this book sets out to frame the borders of an emerging area of law and start a more productive dialogue between the various disciplines involved in the evolution of contracts as software. It provides the first step towards a more disciplined approach to computational contracts that avoids the techno-legal ambiguities of 'smart contracts' and reveals an emerging taxonomy of approaches to encoding contracts in whole or in part. Conceived and written during a time when major legal systems began to engage with the advent of contracts in computable form, and aimed at a fundamental level of enquiry, this collection will provide essential insight into future trends and will provide a point of orientation for future scholarship and innovation
This chapter explores the interparty electronic agreements known as ‘smart contracts’ against the... more This chapter explores the interparty electronic agreements known as ‘smart contracts’ against the established boundaries of contract law and theory. Underpinning the question of characterization are three overlapping legal and extra-legal factors. The first concerns legitimacy, in law and fact, of smart contract agreements. Second are uncertainties regarding applicable remedies at law and in equity. And third, fetishization of the perfectibility and legal certainty of smart contracts by technologists and other stakeholders that risks undermining and impoverishing contracts as socio-legal institutions and processes. Set against the backdrop of a fetishistic techno-legal imaginary in which smart contracts echo science-fiction writer Brian Aldiss’ conception of ‘supertoys’, this chapter argues that legal legitimacy and certainty of smart contracts rests on fundamental principles of contract law and theory, not on quasi-legal conditions determined by the limits of coding and design. Roo...
This book explores the phenomenon of data – big and small – in the contemporary digital, informat... more This book explores the phenomenon of data – big and small – in the contemporary digital, informatic and legal-bureaucratic context. Challenging the way in which legal interest in data has focused on rights and privacy concerns, this book examines the contestable, multivocal and multifaceted figure of the contemporary data subject. The book analyses "data" and "personal data" as contemporary phenomena, addressing the data realms, such as stores, institutions, systems and networks, out of which they emerge. It interrogates the role of law, regulation and governance in structuring both formal and informal definitions of the data subject, and disciplining data subjects through compliance with normative standards of conduct. Focusing on the ‘personal’ in and of data, the book pursues a re-evaluation of the nature, role and place of the data subject qua legal subject in on and offline societies: one that does not begin and end with the inviolability of individual rights but returns to more fundamental legal principles suited to considerations of personhood, such as stewardship, trust, property and contract. The book’s concern with the production, use, abuse and alienation of personal data within the context of contemporary communicative capitalism will appeal to scholars and students of law, science and technology studies, and sociology; as well as those with broader political interests in this area
Desire lines occur wherever we find human and animal movement. Desire lines dissect the planned s... more Desire lines occur wherever we find human and animal movement. Desire lines dissect the planned spaces of Milton Keynes and have done since its creation 50 years ago, and they will continue to show us how people use, abuse, and manipulate the spaces of Milton Keynes long into the future. Accompanying Robert Herian’s chapter is a short video installation bringing together local council planning documentation, bureaucratic theory, personal accounts, storytelling, photography, and music to describe the nature and power of desire lines in our lives and imaginations
ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine ... more ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine without prejudice, guarantees performance of ‘contractual terms’ enabling the exchange or transaction of cryptoassets and other forms of property. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law remain uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the technology's failure to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts appear to reduce contracting to a form and standard well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Including elements of the law of restitution, this article's remedial analysis will examine smart contracts considering ‘traditional’ contract law to understand and, where possible, test the legal legitimacy of this post-human technology, and explore the potential of smart contracts to supplement or, in time, supersede traditional contract law.
Like the European Union's General Data Protection Regulation (GDPR), the broader, mainstream emer... more Like the European Union's General Data Protection Regulation (GDPR), the broader, mainstream emergence of blockchain technology in the present moment of, what I call, data dysphoria is no accident. It is in part reaction to data dysphoria, and in part exploitation of it, a duality underpinned by the tantalizing promise of the prosumer 'taking control' of their data and establishing sovereignty over it. Blockchain and GDPR alike aim to resolve 'problem'/'solution' matrices with deep roots in a wide variety of global economic, political, social, legal and cultural contexts. This article explores the problem of achieving resolution based on innovation and technology by offering an account of the rise of blockchain and implementation of GDPR within a psycho-political framework, one in which fantasies of taking control are predominant yet highly contestable actualities in the lives of technology users.
In the present techno-political moment it is clear that ignoring or dismissing the hype surroundi... more In the present techno-political moment it is clear that ignoring or dismissing the hype surrounding blockchain is unwise, and certainly for regulatory authorities and governments who must keep a grip on the technology and those promoting it, in order to ensure democratic accountability and regulatory legitimacy within the blockchain ecosystem and beyond. Blockchain is telling (and showing) us something very important about the evolution of capital and neoliberal economic reason, and the likely impact in the near future on forms and patterns of work, social organization, and, crucially, on communities and individuals who lack influence over the technologies and data that increasingly shape and control their lives. In this short essay I introduce some of the problems in the regulation of blockchain and offer counter-narratives aimed at cutting through the hype fuelling the ascendency of this most contemporary of technologies.
This report is the first of a series of brief papers relating to the main legal aspects of non-fu... more This report is the first of a series of brief papers relating to the main legal aspects of non-fungible tokens (NFTs). The aim is to highlight NFT characteristics and provide an extensive but not exhaustive overview of the legal classification and frameworks across the globe. The report places a special focus on EU laws, but it is not limited to this. Disclaimer The information and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of the European Commission. The Commission does not guarantee the accuracy of the data included in this study. Neither the Commission nor any person acting on the Commission's behalf may be held responsible for the use which may be made of the information contained herein.
Smart Legal Contracts: Computable Law in Theory and Practice is a landmark investigation into one... more Smart Legal Contracts: Computable Law in Theory and Practice is a landmark investigation into one of the most important trends at the interface of law and technology: the effort to harness emerging digital technologies to change the way that parties form and perform contracts. While developments in distributed ledger technology have brought the topic of 'smart contracts' into the mainstream of legal attention, this volume takes a broader approach to ask how computers can be used in the contracting process. This book assesses how contractual promises are expressed in software and how code-based artefacts can be incorporated within more conventional legal structures. With incisive contributions from members of the judiciary, legal scholars, practitioners, and computer scientists, this book sets out to frame the borders of an emerging area of law and start a more productive dialogue between the various disciplines involved in the evolution of contracts as software. It provides the first step towards a more disciplined approach to computational contracts that avoids the techno-legal ambiguities of 'smart contracts' and reveals an emerging taxonomy of approaches to encoding contracts in whole or in part. Conceived and written during a time when major legal systems began to engage with the advent of contracts in computable form, and aimed at a fundamental level of enquiry, this collection will provide essential insight into future trends and will provide a point of orientation for future scholarship and innovation
This chapter explores the interparty electronic agreements known as ‘smart contracts’ against the... more This chapter explores the interparty electronic agreements known as ‘smart contracts’ against the established boundaries of contract law and theory. Underpinning the question of characterization are three overlapping legal and extra-legal factors. The first concerns legitimacy, in law and fact, of smart contract agreements. Second are uncertainties regarding applicable remedies at law and in equity. And third, fetishization of the perfectibility and legal certainty of smart contracts by technologists and other stakeholders that risks undermining and impoverishing contracts as socio-legal institutions and processes. Set against the backdrop of a fetishistic techno-legal imaginary in which smart contracts echo science-fiction writer Brian Aldiss’ conception of ‘supertoys’, this chapter argues that legal legitimacy and certainty of smart contracts rests on fundamental principles of contract law and theory, not on quasi-legal conditions determined by the limits of coding and design. Roo...
This book explores the phenomenon of data – big and small – in the contemporary digital, informat... more This book explores the phenomenon of data – big and small – in the contemporary digital, informatic and legal-bureaucratic context. Challenging the way in which legal interest in data has focused on rights and privacy concerns, this book examines the contestable, multivocal and multifaceted figure of the contemporary data subject. The book analyses "data" and "personal data" as contemporary phenomena, addressing the data realms, such as stores, institutions, systems and networks, out of which they emerge. It interrogates the role of law, regulation and governance in structuring both formal and informal definitions of the data subject, and disciplining data subjects through compliance with normative standards of conduct. Focusing on the ‘personal’ in and of data, the book pursues a re-evaluation of the nature, role and place of the data subject qua legal subject in on and offline societies: one that does not begin and end with the inviolability of individual rights but returns to more fundamental legal principles suited to considerations of personhood, such as stewardship, trust, property and contract. The book’s concern with the production, use, abuse and alienation of personal data within the context of contemporary communicative capitalism will appeal to scholars and students of law, science and technology studies, and sociology; as well as those with broader political interests in this area
Desire lines occur wherever we find human and animal movement. Desire lines dissect the planned s... more Desire lines occur wherever we find human and animal movement. Desire lines dissect the planned spaces of Milton Keynes and have done since its creation 50 years ago, and they will continue to show us how people use, abuse, and manipulate the spaces of Milton Keynes long into the future. Accompanying Robert Herian’s chapter is a short video installation bringing together local council planning documentation, bureaucratic theory, personal accounts, storytelling, photography, and music to describe the nature and power of desire lines in our lives and imaginations
ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine ... more ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine without prejudice, guarantees performance of ‘contractual terms’ enabling the exchange or transaction of cryptoassets and other forms of property. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law remain uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the technology's failure to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts appear to reduce contracting to a form and standard well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Including elements of the law of restitution, this article's remedial analysis will examine smart contracts considering ‘traditional’ contract law to understand and, where possible, test the legal legitimacy of this post-human technology, and explore the potential of smart contracts to supplement or, in time, supersede traditional contract law.
Like the European Union's General Data Protection Regulation (GDPR), the broader, mainstream emer... more Like the European Union's General Data Protection Regulation (GDPR), the broader, mainstream emergence of blockchain technology in the present moment of, what I call, data dysphoria is no accident. It is in part reaction to data dysphoria, and in part exploitation of it, a duality underpinned by the tantalizing promise of the prosumer 'taking control' of their data and establishing sovereignty over it. Blockchain and GDPR alike aim to resolve 'problem'/'solution' matrices with deep roots in a wide variety of global economic, political, social, legal and cultural contexts. This article explores the problem of achieving resolution based on innovation and technology by offering an account of the rise of blockchain and implementation of GDPR within a psycho-political framework, one in which fantasies of taking control are predominant yet highly contestable actualities in the lives of technology users.
In the present techno-political moment it is clear that ignoring or dismissing the hype surroundi... more In the present techno-political moment it is clear that ignoring or dismissing the hype surrounding blockchain is unwise, and certainly for regulatory authorities and governments who must keep a grip on the technology and those promoting it, in order to ensure democratic accountability and regulatory legitimacy within the blockchain ecosystem and beyond. Blockchain is telling (and showing) us something very important about the evolution of capital and neoliberal economic reason, and the likely impact in the near future on forms and patterns of work, social organization, and, crucially, on communities and individuals who lack influence over the technologies and data that increasingly shape and control their lives. In this short essay I introduce some of the problems in the regulation of blockchain and offer counter-narratives aimed at cutting through the hype fuelling the ascendency of this most contemporary of technologies.
This report is the first of a series of brief papers relating to the main legal aspects of non-fu... more This report is the first of a series of brief papers relating to the main legal aspects of non-fungible tokens (NFTs). The aim is to highlight NFT characteristics and provide an extensive but not exhaustive overview of the legal classification and frameworks across the globe. The report places a special focus on EU laws, but it is not limited to this. Disclaimer The information and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of the European Commission. The Commission does not guarantee the accuracy of the data included in this study. Neither the Commission nor any person acting on the Commission's behalf may be held responsible for the use which may be made of the information contained herein.
Performance of "contractual terms" in an agreement or to enable the exchange or transaction of cr... more Performance of "contractual terms" in an agreement or to enable the exchange or transaction of cryptoassets and other forms of property both on-and off-line is guaranteed by the perpetual script of a smart contract that executes the agreement machine-to-machine without prejudice. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law are uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the failure of the technology to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts, in that sense, appear to reduce contracting to a form and standard that is well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Focusing on elements of the law of restitution, this article analyses smart contracts with the aim of testing the legal legitimacy of the technology, and to explore the potential for smart contracts to supplement or, in time, supersede traditional contract law.
This draft report was prepared with the EU Blockchain Observatory & Forum as a discussion documen... more This draft report was prepared with the EU Blockchain Observatory & Forum as a discussion document for the workshop, “Blockchains & smart contracts legal and regulatory framework”, held in Paris, France, 12th December 2018.
IN PROGRESS ... The focus of this article is to update (or salvage) the arguments put forward pre... more IN PROGRESS ... The focus of this article is to update (or salvage) the arguments put forward previously with regard to private trusts and a public blockchain trustee architecture. Instead we will examine how so-called consortium blockchains, existing in a middle ground between the public and private and straddling the two, might provide compromise whereby it is possible to create new forms of digital private trusts. This article will explore two examples which could potentially fit the consortium trust blockchain model. Firstly, whereby all private trusts must at the point of creation be annexed digitally to a given national tax authority; secondly, from the point of view of beneficiaries, a transparent investment record that would allow beneficiaries, in real time and at any time, to scrutinise trustee investment activity.
This article will explore potential impacts to the practices and principles of trusts law as a co... more This article will explore potential impacts to the practices and principles of trusts law as a consequence of rapidly evolving blockchain technology and other technologies associated with it, namely “smart property” and the “internet of things”. The relevance of the blockchain to trusts law that this article with argue for, is based on widely-held yet generic characterizations of the technology that can be summarized in the following way: the blockchain is a decentralized and disintermediated system based on cryptographic proof instead of trust; a “peer-to-peer network using proof-of-work to record a public history of transactions” that creates a post-trust paradigm in which there is no need “for participants to be trusted”, and which provides “no centralized, single point of failure” .
There is already good cause to believe that blockchain architecture can be mapped onto trusts, or vice versa. Evidence of this comes from an existing, if still somewhat immature, post-trust paradigm facilitated by the blockchain in the growing legal domain of smart contracts. Comparable with smart contracts, “smart trusts” would, for example, involve trusteeship (in terms of duties and obligations etc.), being distributed across a public computer network involving varying numbers of anonymous nodes all working to securely facilitate and verify property transactions. A distributed “trustee” architecture could, in theory, remove the need for continuous human intervention in and monitoring of, for example, trust fund investments by a single trustee, group or board of trustees, and thus remove key issues relating to accountability and, more importantly, the potential for any breach of trust . Moreover, the potential for increased security and efficiency of smart trusts and distributed trusteeship would arguably improve the overall investment strategy of the trust, thereby creating better returns for beneficiaries. As a tentative early exploration into the compatibility of blockchain architecture and trusts, this article will explore these ideas in relation to basic principles of express trusts and trusteeship.
This book is a provocative, interdisciplinary, and critical appraisal of civil justice, property,... more This book is a provocative, interdisciplinary, and critical appraisal of civil justice, property, and the laws that shape and command them within capitalism. Dr. Herian’s book is both a complementary and countervailing narrative to many mainstream legal accounts, one that critiques core and influential areas of legal knowledge and practice. Central to the book’s thesis is a rich collaboration of ideas and perspectives that consider what is at stake from institutions, concepts, and practices of equity and civil justice tied to the subjective psychic life and the unconscious desires of capitalist stakeholders. The book aims to address several questions, including how capitalism has imagined and shaped equity and civil justice since the nineteenth century; how capitalism acts as a well-spring of desire for forms of justice that wrap-around and sustain complex frameworks of private property power and ownership; and how equity supports agile neoliberal strategies of justice and reason in the twenty-first century.
As the distributed architecture underpinning the initial Bitcoin anarcho-capitalist, libertarian ... more As the distributed architecture underpinning the initial Bitcoin anarcho-capitalist, libertarian project, "blockchain" entered wider public imagination and vocabulary only very recently. Yet in a short space of time it has become more mainstream and synonymous with a spectacular variety of commercial and civic "problem"/"solution" concepts and ideals. From commodity provenance, to electoral fraud prevention, to a wholesale decentralization of power and the banishing of the exploitative practices of "middlemen", blockchain stakeholders are nothing short of evangelical in their belief that it is a force for good. For these reasons and more the technology has captured the attention of entrepreneurs, venture capitalists, global corporations and governments the world over.
Presentation to Open University Business School masterclass, London, May 2018
https://www.youtub... more Presentation to Open University Business School masterclass, London, May 2018
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Papers by Robert Herian
There is already good cause to believe that blockchain architecture can be mapped onto trusts, or vice versa. Evidence of this comes from an existing, if still somewhat immature, post-trust paradigm facilitated by the blockchain in the growing legal domain of smart contracts. Comparable with smart contracts, “smart trusts” would, for example, involve trusteeship (in terms of duties and obligations etc.), being distributed across a public computer network involving varying numbers of anonymous nodes all working to securely facilitate and verify property transactions. A distributed “trustee” architecture could, in theory, remove the need for continuous human intervention in and monitoring of, for example, trust fund investments by a single trustee, group or board of trustees, and thus remove key issues relating to accountability and, more importantly, the potential for any breach of trust . Moreover, the potential for increased security and efficiency of smart trusts and distributed trusteeship would arguably improve the overall investment strategy of the trust, thereby creating better returns for beneficiaries. As a tentative early exploration into the compatibility of blockchain architecture and trusts, this article will explore these ideas in relation to basic principles of express trusts and trusteeship.
https://www.youtube.com/watch?v=4Mbycl9Uqtw