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How the New ICTs Matter to the Theory of Law
Published online by Cambridge University Press: 20 July 2015
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Recent writers concerned with general theories of law have taken little notice of the new information communication technologies (ICTs). This situation ought to change. General theories of law ought to take into account the potential of the new ICTs to enable significant changes in the relations between legal authorities and legal subjects. This paper takes legal positivism as a stalking horse for examination of the way the new ICTs may affect presumptions regarding citizens’ and officials’ knowledge, attitudes, and allegiance to law. The positivist account of legal normativity, key to its general account of law, is significantly threatened by the prospect that e-consultation and e-petitioning may breach presumed differences between officials and citizens in life under law. This argument brings various consequences for the positivist view of normativity and legal system, all inclining toward the conclusion that the positivist view may lose its basis in social fact and so present an unrealistic account of law.
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- Copyright © Canadian Journal of Law and Jurisprudence 2004
References
This argument was initially presented to the Department of Philosophy of the University of Stirling, November 13, 2003, in Stirling, Scotland. I am grateful to Antony Duff and Rowan Cruft for their responses to the argument in that forum. Norman Siebrasse and Michael Giudice are also owed thanks for remarks on earlier versions of the argument.
1. There is an interesting contrast between this situation and the relative wealth of work on the relation between democracy and the new information communication technologies. See, for example: Hague, Barry N. & Loader, Brian D., Digital Democracy: Discourse and Decision-Making in the Information Age (London: Routledge, 1999)Google Scholar; Horrocks, Jens Hoff Ivan & Tops, Pieter, eds., Democratic Governance and New Technology (London: Routledge, 2000)Google Scholar; Norris, Pippa, Digital Divide? Civic Engagement, Information Poverty & the Internet in Democratic Societies (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar; Coleman, Stephen & Gøtze, John, Bowling Together: Online Public Engagement in Policy Deliberation (London: Hansard Society, 2001)Google Scholar; Office of the e-Envoy, In the Service of Democracy: A Consultation Paper on a Policy for Electronic Democracy (London: Office of the e-Envoy, The Cabinet Office, 2002).Google Scholar
2. My target here is a broad and general version of positivist commitments in which I hope inclusive, exclusive, and other varieties of positivist will find a plausible resemblance to their own particular working out of the positivist theory. A touchstone for this account is Hart’s assertion that “There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.” Hart, H.L.A., The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994), at 116 Google Scholar. Here I follow Waluchow, Coleman et al. in understanding the rule of recognition as rooted in the practice of officials, notwithstanding the existence of illuminating argument to the contrary. See, e.g., Zipursky’s argument for the rule of recognition as a propositional entity. Zipursky, B.C., “The Model of Social Facts” in Coleman, Jules, ed., Hart’s Postscript: Essays on the Postscript to The Concept of Law (Oxford: Oxford University Press, 2001) 219 at 224–27Google Scholar.
3. Hart, H.L.A., “Positivism and the Separation of Law and Morals” (1957) 71 Harv. L. Rev. 593 at 623.Google Scholar
4. Judges are the central case official discussed by positivists, and for that reason perhaps, the role of officials as norm-setters is often not emphasised as it might be if the notion of an official were routinely interpreted in a broad sense to include, with equal emphasis, members of legislative, executive, and judicial activities typical of modern municipal systems of law. Nonetheless, positivists do typically recognise that there is a creative, norm-setting element in judicial interpretation and application of legal norms and further that an executive dimension of enforcement sometimes just is simultaneous and almost coextensive with judicial findings of some norm-subject’s legal obligations, together, perhaps with a judicial directive to make good on those obligations. The sketch of the official offered here is certainly not intended to lump positivists with an unduly narrow view.
5. It is not easy to identify the presuppositions embodied in this part of the positivist view, in part because the positivist commitment to a descriptive-explanatory method does not entail the further claim that the positivist view is properly evaluated according to its descriptive accuracy with respect to any particular social situation. The method’s distinctive feature is instead the way in which its explanation of legal phenomena ascribes salience to the various social facts described. In identifying what I take to be presuppositions undergirding the explanation of legal normativity which ascribes a certain primacy to officials’ intermediary role, I am necessarily engaging in an equally general exercise departing from ‘central case’ features of officials’ and citizens’ life under law.
6. This phrase is borrowed from Coleman, Jules, The Practice of Principle (Oxford: Oxford University Press, 2001) at 96–100 Google Scholar. Coleman derives his application of ‘shared cooperative activity’ from Bratman, Michael E., “Shared Cooperative Activity” (1992) 101 Phil. Rev. 327 and “Shared Intention” (1993) 104 Ethics 97 Google Scholar.
7. This might be ex Pressed in Hartian terms as knowledge of secondary rules of introduction, change, and elimination of primary rules.
8. This use of ‘dependent reasons’ follows Raz. He characterises authoritative reasons for action (such as legal norms) as preempting and taking the place of other reasons for action on which norm subjects might otherwise depend, in a situation where an authority’s directives apply and norm subjects must act. As he puts it in discussion of the authority of an arbitrator, “… the arbitrator’s decision is for the disputants a reason for action. They ought to do as he says because he says so. But this reason is related to the other reasons which apply to the case. It is not … just another reason to be added to the others, a reason to stand alongside the others when one reckons which way is better supported by reason. The arbitrator’s decision is meant to be based on the other reasons, to sum them up and to reflect their outcome. For ease of reference I shall call both reasons of this character and the reasons they are meant to reflect dependent reasons.” Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1985) at 41.Google Scholar My discussion here uses the notion of dependent reasons to capture those reasons for action which continue to bear on abstract reasoning regarding action in some situation even while their employment in practical reasoning in that situation may be precluded. These dependent reasons arrive at their subsidiary and merely abstract relevance when some one or more of these reasons for action gains practical priority via its special endorsement by an authority whose reach extends to the matter under abstract debate. I take it that debate regarding legal reforms, for example, often involves attention to the dependent reasons which are subsumed into a particular legal norm whose special, authoritative force is partly grounded on the practical meaningfulness of the dependent reasons it summarises, reflects, and replaces.
9. This is true of Hart quite explicitly in The Concept of Law, and demonstrably true of other contemporary positivists.
10. Private citizens may of course individually or collectively in their capacity as private citizens use legal norms to advance what they believe to be in the public interest—but this typically occasional convergence of purposes remains quite unlike officials’ collective practice of using, modifying and reaffirming modes of use of legal norms.
11. On some positivist views, it may even be the case that citizens lack any intentions with respect to legal norms, perhaps merely complying with threats in a sheerly prudential way not properly characterised as reasons-responsive in the manner characteristic of the intention to comply with what is presented as an authoritative, non-optional legal norm. As Raz argues, “what counts, from the point of view of the person in authority, is not what the subject thinks but how he acts. I do all that the law requires of me if my actions comply with it.” Raz, The Morality of Freedom, supra note 8 at 39.
12. Unsurprisingly, I hope, temporal and geographical constraints on acquisition, manipulation, and communication of legal knowledge are precisely what the new ICTs disrupt most effectively, or so I shall argue once I have explained a little more about contingency in the relations between officials, citizens, and law.
13. While Hart certainly thought about law in a broad fashion not entirely aligned with the notion of the state, subsequent positivist writing is often quite explicit in its focus, as, for example, Joseph Raz’s The Concept of a Legal System (Oxford: Clarendon Press, 1967), and Leslie Green’s The Authority of ‘the State (Oxford: Clarendon Press, 1988).Google Scholar
14. Hart, , The Concept of Law, supra note 2 at 240.Google Scholar
15. Ibid.
16. One useful definition of ICTs is as follows: “Information and communications technologies (ICTs) is a term which is currently used to denote a wide range of services, applications, and technologies, using various types of equipment and software, often running over telecom networks. ICTs include well known telecom services such as telephone, mobile telephone and fax. Telecom services used together with computer hardware and software form the basis for a range of other services, including email, the transfer of files from one computer to another, and, in particular, the Internet, which potentially allows all computers to be connected, thereby giving access to sources of knowledge and information stored on computers worldwide. Applications include videoconferencing, teleworking, distance learning, management information systems, stock taking; technologies can be said to include a broad array ranging from ‘old’ technologies such as radio and TV to ‘new’ ones such as cellular mobile communications; while networks may be comprised of copper or fibre optic cable, wireless or cellular mobile links, and satellite links. Equipment includes telephone handsets, computers, and network elements such as base stations for wireless service; while software programmes are the lifeblood of all these components, the sets of instructions behind everything from operating systems to the Internet. Thus services as basic as telephones are at issue, as well as applications as complex as ‘telemetering’, for example, to remotely monitor water conditions as part of a flood forecasting system. Indeed, many services and applications can be made available as soon as telephone service is provided: the same type of technologies that are used to transmit voice can also transmit fax, data, and digitally com Pressed video. The importance of ICTs is not the technology as such, but its enabling function in access to knowledge, information and communications: increasingly important elements in today’s economic and social interaction.” European Commission: Communication from the Commission to the Council and the European Parliament: Information and Communication Technologies in Development. The role of ICTs in EC development policy. (Brussels 14.12.2001) COM (2001) 770 final, at 3. Viewable at http://www.ecomaccess.com/iim/pdf/ict_en.pdf (date accessed: June 10, 2004).
17. Service New Brunswick, http://www.snb.ca (date accessed: June 10, 2004) is a useful example of a government service organisation committed to ‘spin the terminal’ development. Employees providing over the counter service to citizens use software and provide services which are identical in form and content to the software and services available to any citizen choosing to go online to access those services at the Service New Brunswick website. An employee may ‘spin the terminal’ screen toward the citizen standing at the counter to show how the transaction is carried out, and how the citizen might independently carry out the same transaction online.
18. See, for example: In the Service of Democracy: A Consultation Paper on a Policy for Electronic Democracy, supra note 1; OECD Policy Brief “Engaging Citizens Online for Better Policy-Making” 00 2003 50 1, March 2003; Lenihan, Donald, “Realigning Governance: From E-Government to E-Democracy” (Ottawa: Centre for Collaborative Government, 2002)Google Scholar; Fountain, Jane E., Building the Virtual State: Information Technology and Institutional Change (Washington, D.C.: Brookings Institution Press, 2001).Google Scholar
19. One good example is the website used to inform citizens of the progress of national consultation on GM foods in the UK, available to citizens, available at http://www.gmnation.org.uk (date accessed: June 10, 2004).
20. I draw this standard three-part division of engagement from: Citizens as Partners: Information, Consultation, and Public Participation in Policy Making (Paris: OECD, 2001); OECD Policy Brief “Engaging Citizens Online for Better Policy-Making” 00 2003 50 1, March 2003.
21. The International Teledemocracy Centre at Napier University, Edinburgh, Scotland has conducted a variety of consultations whose fundamentals are recorded on their website at http://www.itc.napier.ac.uk (date accessed: June 10, 2004). Broader experience in the UK is recorded in the policy consultations portion of the main UK e-government site http://www.direct.gov.uk/QuickFind/Consultation/fs/en (date accessed: June 10, 2004). Useful Canadian experience includes the national policy e-consultation on how citizens ought to be consulted regarding placement of wireless transmission towers, available at http://www.antennareview.ca (date accessed: June 10, 2004) and run in September and October of 2003 by a group of researchers based at the University of New Brunswick, working under contract with Industry Canada. More general examples of e-consultation in Canada can be found at http://www.consultingcanadians.gc.ca (date accessed: June 10, 2004).
22. Or, as the Canadian province of New Brunswick’s on-line government service provider Service New Brunswick puts it, it is better to go online than to stand in line for government services. See http://www.snb.ca (date accessed: June 10, 2004).
23. See, e.g., the work of the Online Digital Democracy Group of the Centre for Computational Geography at the University of Leeds. They used interactive online mapping techniques in a June 1998 sustainable re-development planning exercise in the Village of Slaithwaite, West Yorkshire. The ‘Virtual Slaithewaite Participatory Planning System’ is available at http://www.ccg.leeds.ac. uk/slaithwaite/ (date accessed: June 10, 2004).
24. Note the flourishing of online education, including online legal education, e.g., the Canadian Bar Association’s Continuing Legal Education program (http://www.cba.org/cba/cle/cle00/) which encourages lawyers to: “Gain insight into today’s issues via our Continuing Legal Education (CLE) programs. Our CLEs are now even more convenient and current thanks to high-tech developments such as the Internet” (Accessed February 19, 2004). See further in the American context accredited continuing legal education courses offered by Lawline.com, “broadcasting continuing legal education and programming on the internet” available at http://www.lawline.com/ (date accessed: June 10, 2004).
25. See, for example, the Aboriginal Justice Strategy of the federal Department of Justice at http://canada.justice.gc.ca/en/ps/ajln/strat.html (date accessed: June 10, 2004).
26. As the FAQ portion of the Scottish e-petitions facility explains, “The public petitions process is a key part of the Scottish Parliament’s overall commitment to openness and accessibility. It allows individuals, community groups and organisations to participate fully in the democratic process, by raising issues of public concern with the Parliament and allowing members to consider the need for change. Any person or group may submit a petition to the Parliament. http://www. scottish.parliament.uk/factfiles/ff5.htm (date accessed: June 10, 2004). Further, as the co-developer of the system explains it, “The e-Petitioner system, which was developed by the International Teledemocracy Centre (ITC) at Napier University in partnership with BT Scotland, allows the petitioner the opportunity to gather support from a much wider constituency than traditional methods and, indeed, some electronic petitions have attracted support from as far as Australia, Barbados, New Zealand and the United States” http://itc.napier.ac.uk/ITC_Home/News/ePetitionerformallaunch.asp (date accessed: June 10, 2004).
27. Hart, , The Concept of Law, supra note 2 at 240.Google Scholar
28. See, for example, Coleman arguing in the context of the inclusive vs. exclusive positivist debate that “Of course, no one denies that descriptive accuracy is a virtue of a theory. But the dispute between exclusive and inclusive legal positivists cannot be resolved on descriptive grounds, for the simple reason that the dispute is not a descriptive one. It is an interpretive dispute.” Coleman, The Practice of Principle, supra note 6 at 109.
29. Raz, Joseph, “Two Views of the Nature of the Theory of Law: A Partial Comparison” in Coleman, Jules, ed., Hart ‘s Postscript: Essays on the Postscript to The Concept of Law (Oxford: Oxford University Press, 2001) at 10.Google Scholar
30 Ibid.