Code is code and law is law—the law of digitalization and the digitalization of law

TLDR

The article argues that digital technology does not fundamentally challenge law, but the relationship between law and digitalization depends on whether the law can or may be digitalized, requiring a sharp analytical distinction between technology and law. The article seeks to explore the extent to which law can and may be digitalized. It proposes an analytical framework for the law of digitalization and the digitalization of law.

Abstract

Abstract The article argues for a sharp analytical distinction between the realms of technology and of law. The question to what extent the law ‘can’ be digitalized relates to technology, whereas the question to what extent it ‘may’ be digitalized falls within the realm of the law. Against this backdrop, it is argued that digital technology does not challenge the law fundamentally. Instead, the crucial questions on the relationship between law and digitalization lie in the details. The article raises those questions and provides an analytical framework for the law of digitalization and the digitalization of law.