Rules and Nudging as Code: Is This the Future for Legal Drafting Activities?

Abstract

In the advent of a risk society in which even a more conservative area such as the Law begins to understand, transfer and use technology, in addition to regulating it, with blockchain potential in terms of contracts or artificial intelligence with chatbots for legal advice. Also, voices are being raised in favour of machine-consumable legislation and intelligent nudging, in order to increase legislative effectiveness, efficiency and transparency, thus enhancing compliance at a lower cost thanks to greater simplicity, lower error rate, clarity, accessibility and accountability. The traditional models of drafting and applying legislation were constructed to be used in a non-digital environment, especially because of the underlying hermeneutics process, although it may be interpreted and transformed in a more automatic and operational way in certain topics such as taxing or social security. Nevertheless, the cost required to understand and comply is often disproportionate comparing with the benefit of compliance. Therefore, there seems to be a language gap between production and consumption of legal rules. A (new) solution for this problem may lie in machine-consumable legislation, i.e. transforming legal text, concepts and rules (e.g. procedures, requirements and exemptions) into code that can be read, understood and interacted with by specific software. Also (legal) nudging can benefit from a more technological approach, by helping simplifying and making behaviour more automatic in the “right” direction. The digital world is already well aware of the power of nudging. It is time for the law and policy makers to grasp or at least look at similar instruments. The challenge to overcome the legal language and implementation disparity with technology in a digital era, which is still at an embryonic stage, despite its potential, presents several obstacles, from legal conservatism and a tendency towards inertia, to issues of legal certainty and the loss of humanism. Thus, this chapter intends, beyond a survey of the state of the art of rulemaking and nudging as code, to understand how it could work, its advantages and pitfalls, preferential areas of application, caution and limits in its implementation.