Regulatory Fitness: Fintech, Funny Money, and Smart Contracts

Abstract

This article argues that there are many questions that lawyers might ask, and conversations that they might have, about smart contracts; that some questions that are asked are more important than others; and that there are some questions that are not asked but which should be asked. First, it is argued that the question that preoccupies ‘coherentists’ (concerning the application of the law of contract to smart contracts, and the fit between smart contracts and the paradigmatic ‘fiat contracts’ that are recognised by the law of contract) is neither as puzzling nor as important as might be supposed. Secondly, it is argued that, if there are concerns about the acceptability of smart contracts, then the conversation that needs to be had is of a ‘regulatory-instrumentalist’ nature; in particular, if the question is one of public policy restrictions on the use of smart contracts, then the appropriate balance of interests needs to be made by an institution that has both the necessary mandate and the appropriate mind-set. Thirdly, it is argued that there are conversations that we currently do not have but which urgently need to be had. Blockchain is a potentially transformative technology and it is important to have more fundamental conversations about the kind of community that we want to be.