ABSTRACT
Having examined the defining technical features of blockchains and the corresponding challenges for private law, it seems clear that regulators, courts, and legislators, will face difficulty in designing solutions preserving doctrinal and theoretical integrity, while not disincentivizing the use of the technology. At the same time, by observing certain similarities between the blockchain era of private ordering and the ones of yesterday, we can evaluate the far-reaching jurisprudential claims of lex cryptographia proponents negatively. Rather than to approach blockchains as separate legal systems prone to the synchronicity problem, they should be seen as separate social orders and regulatory modalities; ones that do create systems regulating human behavior, yet one with which the nation state law interacts, and at least from the legal, internal point of view, retains supremacy thereover. In this way, we avoid venturing into legal pluralist terrain: admittedly, there is nothing natural, ahistorical, or inevitable in the paradigm of legal centralism, our examination of the regulatory drive shows that while blockchains do regulate, state-based private law will exercise its power as the ultimate arbiter of legal entitlements, at least for now. Finally, we distinguished several distinct ways in which private law can respond to disruptive technologies, predicting that there will be a move towards specific laws and codification, despite some objections from private law scholars. In the meantime, we observe that the courts and regulatory agencies are burdened with extending general principles and rules to blockchain and its applications, demonstrating that lex cryptographia victory had been proclaimed too early.
Blaszczyk, Matt, Blockchain and Private Law (January 6, 2023).
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