The law between books and bits
Cedam, Padova, 1997

Versione italiana

The evolution of the law coincides with the evolution of expressive means and with the technologies connected with them. Each stage of evolution has derived some of its features from the characteristics of the technologies used to represent and communicate the law. It is thus essential to grasp what of a certain evolution is due to the distinctive features of a particular technology.

The law of primitive peoples (so-called ‘mute law) differs from that of the oral societies that still had not invented writing. Likewise the legal culture produced by the wide use of the printing press (books, series, journals, and so on) is very different from the legal culture which could only rely on rare manuscripts. It is likely that the use of bits to represent and disseminate legal knowledge alters its cultural and operational contents. In short: it is probable that the use of information technology changes the law itself.

This latter statement has at least two implications. Law changes because its operational rules must adjust to changes in reality - that is, because the construction of legal reasoning obeys different principles.

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Before exploring this latter aspect, a few brief remarks are required concerning the former.

Two examples may help to show how operational rules change according to the form of expression used.

A) Consider the characteristics that the rules protecting literary (oral) works must have possessed in societies without writing or books. Today there exist numerous editions of Homer’s Odyssey. It is well known, of course that the Odyssey is an oral poem (only at a certain point was it transcribed, and we do not know to what extent the transcription is faithful to the original or originals). Indeed, it is not certain that Homer actually existed. It is said that he was blind: he therefore could not write, and he was certainly unable to read. The Odyssey was recited or transmitted orally (as are all literary works in a society without writing). Let us try to conceive a possible law to protect the copyright on the Odyssey (or, more importantly, oral works). Homer had to transmit his work. If he did not wish it to be lost, he had to do everything possible so that others learnt it by heart. If he wished it to be presented in several places at once, or in places where he himself could not be present, he had to ensure that several persons memorized it and broadcast it. It is not credible that Homer sought to protect his exclusive right to copy his work. His concern was probably precisely the opposite. He would not have welcomed contemporary laws on copyright (indeed, if they had been inflexibly applied every trace of the Odyssey would have been lost). At most he would have asked the persons who had memorized the Odyssey to spread it around that the poem had been conceived by him, the blind bard. The laws on copyright take it for granted that there exist means other than our minds with which to record a work of the imagination. And paramount among these is the book. When the means of expression change, this model enters crisis. Electronics has made new communication means available to us, and we cannot assume that they can be understood, even less disciplined, by laws which take different phenomena as their points of reference.

B) The second example more specifically concerns the features of an ‘electronic society’ like that of the Internet; a society in which the means of expression consists of electrons which light up dots on the monitor according to the specific message transmitted from the place in which it is been committed to memory (and where it can be erased at any moment). In the real world (and for jurists), script and print are synonymous with certainty and immutability. In what way can certainty and immutability be guaranteed in the electronic society? Obviously, the problem is directly connected with the security and stability of the activities conducted by means of electronic media. In this context it is inevitable that our current idea of ‘document’ must change. It is destined to split away from the material support with which it has hitherto been customarily identified. ‘Electronic document’ will coincide with its content (from a deed to an administrative act, to a judgement). The electronic support will only guarantee its memorization, conservation and dissemination. Its certainty and authenticity will be guaranteed by devices such as the ‘digital signature’ and cryptography. Thus the notion and discipline of documents will change, and so too will the activities undertaken by jurists.

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This book will concentrate on the relationship between the expressive means used and the manner in which it structures legal reasoning.

When reference is made to statutes, to case law or to legal writings it is often implicitly assumed that they are all equally known to and knowable by the operators of a legal system. The ability of statutes, case law and legal writings to affect the system depends to a large extent on the way in which they are represented, transmitted and disseminated.

In the experience of the Western legal tradition, legal knowledge has been stored in books - that is to say, in sequences of words impressed on paper and fixed by the pages and the binding. Inscribed in the linearity of the pages is legal reasoning, in the sense of the set of discourses of and about law that can be conceived and realized by re-elaborating and advancing the accumulated stock of knowledge.

The advent of information technology has changed this scenario.

Comparison between the old and new conditions highlights the way in which rules, case law and academic reflection are represented and transmitted substantially alters the nature of a legal system.

This conclusion is merely confirmation of the historically demonstrable assumption that the manner in which thought and knowledge are structured and transmitted is shaped by the expressive means used. Just as articulated language and writing brought significant changes to the characteristics of the legal culture of the past, so one may expect changes to be wrought by the use of computers to guarantee the knowability of the law and, above all, to represent thought.

One must therefore seek to understand the nature of these changes (although their impact and reach cannot be specified with precision).

The use of paper to store and broadcast knowledge involves the use of filters, of which there exist at least three. The first establishes what is to become part of the knowledge stock; the second acts on the content of the knowledge stock; and the third decides how the knowledge stock is to be classified.

In the traditional scenario a more or less fundamental role is played by all the actors involved in the professional activity of publishing juridical materials, notably the editorial staff of journals (who select materials, write headnotes, compile case digests), as well as the series editors, publishers, distributors, and booksellers who, by ensuring the marketing of publications and their circulation, in some manner become the arbiters of the ideas destined to become part of the shared baggage of legal culture.

Information technology has furnished jurists with systems that enable direct and continuous contact to be made with the datum without a need for filters, thus correcting the distortions generated by paper media. There are two features to be stressed here: (a) the breaking down of the physical limits imposed by books makes a limitless number documents available in real time; (b) information retrieval programs allow one to work directly on the text of a document without having to rely on the grids constructed by third parties in the digests. It may in the future not be necessary to ask someone to select the materials to be disseminated because all documents will be digitalized and consulted on-line: likewise it will not be necessary to filter knowledge or catalogue it because it will be immediately evident of what type it is.

Of course, the changes introduced by information technology and telematics are not all a priori positive.

The possibility to access an enormous amount of data and documentation in real time may provoke an ‘overdose’ of information: indeed, having a huge amount of data available is like having none at all.

The users of information digitalized and stored in electronic data bases may suffer from a sense of disorientation provoked by the lack of hierarchies and by the absence of the physical location of documents in space. Materials appear as an indistinct, intangible and disorganized mass.

Important data are accessed by means of so-called ‘occurrences’. Information retrieval programs search texts for the words indicated in the search string. If the latter contains an error (perhaps merely a spelling mistake), important documents will not be retrieved. There are then the problems caused by synonyms and linguistic variants to denote the same objects or to express the same concepts (‘child’ is synonymous with ‘infant’, but the text search will identify them for what they are: two different words).

These and other considerations revive the role of so-called ‘orientators’, revaluing and updating their function. But it should be borne in mind that they are no longer indispensable as mediators of knowledge.

And this should be stressed. If the function of mediation means replacing direct access to the sources of information, the scenario that emerges is anything but reassuring. Action must be taken to prevent a divide opening up between those who use technologies and those who are unable to do so because of incapacity or for some other reason. Today, numerous commentators emphasise that the Internet has created the greatest form of discrimination that the history of mankind has ever known: an enormous gap (generational, cultural, geographical, economic, social) exists between those who ‘surf’ the net and those who, at most, hear it talked about. The Internet, and more in general the information technologies, has determined the conditions for an planetary elite of those able to use these tools. It goes without saying that this elite enjoys an undisputed position of privilege and power. Efforts should be redoubled to curb the harmful effects arising from the new form of illiteracy consisting in an inability to use information technologies. And the machinery should be put in place so that generalized access to networks is guaranteed to everyone.

But the ‘cultural’ effects of telematics and the Internet are immediately evident. These are effects that derive directly from the fact that millions of people gain access to and exchange information by using the same means of expression and the same communicative channel. I shall limit my discussion here to the field of the law.

Information technology favours the circulation of cultural models, of styles, of thoughts. It facilitates the knowledge of alien experiences. In many respects it increases standardization. One example suffices. There is a service which enables on to receive for free, and almost in real time, the rulings of the United States Supreme Court via e-mail. And yet does not ease of access to these documents excessively favour the circulation that they contain, the models on which they are based, of the culture that has produced them? There is one circumstance that suffices to dispel all doubts. The need to use a single language to understand and to make oneself understood is turning English into the standard world language, with all that this brings with it in cultural terms.

Information technology and telematics open up science-fiction scenarios for legal comparison. The opportunity they provide to interrelate pre-existing information, learning and knowledge generates new learning and new knowledge. If there is an increase in the elements (e.g. different legal experiences) that can be straightforwardly set in relation, then there is an automatic increase in the knowledge value that derives from these elements and from the connections that can be established among them. Even those who continue to use paper as a writing medium can only benefit from the changes just described.

Internet will redesign our relationship with the oblivion. Hitherto the availability of knowledge data has depended on two factors: the natural tendency of humankind to forget, and the laborious process of gaining access to information contained in (paper) books. In some manner, new data (in the legal field: new judgements, new statutes, new essays) which for some reason attract public attention (i.e.: in the shared knowledge stock) tend to supplant older information. The situation in the electronic society is different. Computer memory does not forget and does not have problems of space. Moreover, information retrieval programs can gather information wherever it is stored. In principle, nothing is forgotten any longer, and everything can be simultaneously recovered. Computer networks form an enormous memory which can at any moment collect (and collate) the most disparate data. And perhaps testify to their ineradicable incoherence. The memory that the computer equips us with is not comparable with the memory of books: not only because the former is more easily consultable but also because printed books are immutable (unless they deteriorate or are destroyed). The documents stored in a computer’s memory can be easily altered - and at any moment unless specific counter-measures are taken. The immutability inherent to books must be deliberately added to electronic documents; but immutability is not a value taken for granted in the world of bits.

Furthermore, it is not difficult to imagine changes also in the paradigms relative to the education of new generations (but not only these …). Our university system is patterned on a model established centuries ago when access to knowledge required ‘physical’ presence in the places where books were kept and the professors transmitted their knowledge: the reproduction of the knowledge stock required physical co-presence in predetermined spaces. Before long, however, I believe that it will be possible for a student to follow on his/her computer screen (or, for that matter, on his/her television at home) a lecture on torts delivered by a lecturer at Harvard, a seminar on Grundgesetz led by a lecturer at Hamburg, and a lesson on comparative private law taught by a lecturer at Trento. Everyone will be able to create his/her schedule of lessons. One may discuss the didactic efficacy of this model, but bearing in mind that the new does not replace but adds to the old, it would be short-sighted to deny that entirely new horizons are opening up.

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 The challenge of the future concerns above all the possibility of devising new ways to represent thought.

Legal reasoning is based on associative mechanisms which generate argumentive trajectories. When addressing a specific problem, jurists look for the best way to collate a certain quantity of data (elements of knowledge) in order to solve it and thereby produce new knowledge. A grid composed of numerous (directly or indirectly) interconnected nodes is the image that best illustrates this operation. Legal reasoning proceeds by moving through these nodes according to a trajectory (among the many possible) which depends on the associative patterns of the person performing the operation. A paper text requires the reticular structure of knowledge to be reduced into a rigid linear sequence. Reasoning is function of numerous elements, of the relations among them, and of the specific weight of each of them in determining the final outcome.

The (paper) book does not always provide access to all the links in the grid, and consequently a part of the knowledge that should emerge is precluded. The advent of first information technology and then telematics (with the Internet as the most significant application of the latter) has engendered alternative literary genres: expressive forms which draw their specific nature from the electronic support and which enable one to hypothesize new methods to produce culture and knowledge.

Language and print (in its immutable form imparted by the printing press) have one feature in common: linearity. That is to say, they sustain the notion of a succession, of something that comes first and something that comes next.

The sequential nature of verbal expression and of the means used to conserve and broadcast it (the book) have established the premises for writing to become synonymous with linearity. This feature derives only from the nature of the technologies available, but the necessarily sequential character of text has become axiomatic over the centuries. The equation between text and sequence has determined the way in which culture (not only legal) is produced in our society, and no one has been prompted to test its validity (at least not until recently with the advent of new expressive means able to falsify it).

For hundreds of years, legal thought has been represented through the use of the linear script which, as we have seen, is the unifying feature of the various literary genres that characterize different epochs and different places.

And yet our mental processes, our patterns of thought, are not sequential. The structure of ideas at the basis of reasoning is not linear. There is no idea that comes first, or one that comes second. It is the context of associative relations that produces a plot argumentative (among the many possible), but it would be mistaken to view the set of these relations as a straight line.

Can linear script describe a structure of ideas which by definition is non-sequential? Are there forms of non-sequential writing more akin to the ways in which our minds work?

The equation between text and sequence is not necessarily valid, just as the modes of text construction are not formalizable in deterministic manner. Linear script cannot represent all the relations that hold among the constitutive elements of discourse and reasoning.

Electronic media enable us to conceive a different form of writing and reading: namely non-linear writing and reading.

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 A hypertext corresponds to a style of intellectual work.

Jurists (as well as others) operate by putting together, in the manner they deem most appropriate, a certain number of knowledge items in order to achieve results, like the solution to a problem or the production of new knowledge. The knowledge items are selected on the basis of their relationship in order to build a knowledge route which then is represented in the oral or written speech.

A hypertext is closely akin to the manner of proceeding just described. It is structurally bound to show - visually as well - the associative mechanisms and interconnected segments of reasoning. And these are innovative features with respect to the traditional technologies of the word. Analysis of a legal problem, insofar as it is a function of numerous elements, requires the singling out of the complex relations among these elements.

The discovery of the inherent limitations of writing is, on closer inspection, the outcome of the need to communicate our mental operations to others. The exposition of legal reasoning is also a problem of text construction. At bottom, literary genres are all merely more or less alternative ways to construct a text (and to organize information).

A linear expressive form does not match the reticular structure of knowledge. The hypertext embodies the image of the grid, and it enables the continuous re-construction of the text. The work (and the reasoning set out in it) no longer has a single centre of gravity. Instead there are multiple focuses around which portions of the text (i.e. the constitutive elements of the reasoning) are endlessly reorganized. The knowledge base can be rearranged according to the interests of the reader. It is possible to constantly redefine the text’s location in the space: that is to say, it is possible to establish several relations, and not just one, between what comes first and what comes next.

A hypertext lacks organization and a predefined hierarchy. In this regard it is markedly different from a book, whose mere physicality is already synonymous with organization: the sequential flow of the pages proposes a (reassuring) hierarchy made up of parts, chapters, sections, paragraphs, and so on.

The author of a hypertext does not set up a single text. S/he creates a structure able to generate a plurality of narrative plots (the parameters on which the knowledge base is organized). Not surprisingly, therefore, a hypertext has been called a structure of structures.

The lack or organization and predefined hierarchies once again highlights the active role played by the reader, who may single out associative paradigms in order to construct a conceptual framework which may be very different from what the author imagined.

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Centuries ago humans invented books, and books have shaped humans and their thought. Today, humans have invented computers. The rest of the story we have only just begun to write.