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Law and technology  Title:
THE TECHNOLOGICAL EMBODIMENT OF LAW
 From modern law to ambient law?

 

The technological embodiment of law

From oral to written law

A society based on oral communication depends on face-to-face contacts, spoken language and artefacts in a shared Umwelt (Jiang 2002, Blavin and Cohen 2002, Goody and Watt 1963, Ong 1982). Language can represent what is not present in the immediate here and now, but in order to sustain and hold together a people, oral law depends on individual human memory. Mnemonic techniques and highly ritualised exchanges embody the normativity of oral law. The only way to sustain a legal tradition from one generation to the next is to store the way things should be done in the long-term memory of those who share jurisdiction, having no access to external storage like clay tablets, papyrus scrolls, or the pages of a book. Because of the need for face-to-face communication to establish and re-establish what counts as the law, jurisdictions are small: polities do not exceed a certain number of people, due to the limited means to create a shared understanding or common sense (Eder 1976, Wesel 1985). 

Once the script enters the picture, it becomes possible to write down the law for people one will never even meet: the inscription allows communication beyond the context of the author of the law. Trans-local and trans-generational law can now generate a community of people who may share little else than a common law, enacted by a king or an emperor who has instructed his officials to spread the same – written – law across a vast territory. To keep a grip on such a vast polity, the king will be modest in the claims this law exercises over his people, by leaving them their local, unwritten law for the settlement of local conflict. But the written law does enable him to register people for the purpose of taxation and subscription, which form the backbone of the emerging state, together with royal or imperial jurisdiction (Scott 1998, Torpey 2000, Caplan and Torpey 2001).  

The move from oral to written law thus affects (Hildebrandt 2002, 2008, Ricoeur 1992, Lévy, Goody and Watt 1963, Geisler 1985): 

  1. distantiation of meaning: material fixation of legal rules;  

  2. distantiation of the author: loss of control of the author over the meaning of the law, creating the need for interpretation; 

  3. distantiation from face-to-face communication: establishing non-ostensive reference; 

  4. distantiation of the public/audience: creating the possibility to form large trans-local communities. 

From written law to modern law

The move from (hand)written law to printed code is as revolutionary as the move from orality to the script. As Eisenstein (2005) and Lévy indicate, the age of writing necessarily centers around a limited amount of primary texts, which are commented upon in subsequent centuries. The advent of printed matter extended the scope of texts to be read, initiating an era of proliferating cross-textual reference, creating a knowledge explosion that was previously unthinkable. This proliferation called for some kind of categorisation to keep track of the overdose of available information. Besides the fact that the material fabric of printed matter (‘letterisation’ in terms of Lévy) implied some kind of standardization (Eisenstein 2005:56-70), the sheer quantity of available texts initiated a process of rationalisation, codification and cataloguing of information. 

The impact of all this on law cannot be underestimated. The manuscript of a hand-written law needs to be copied by clerks to reach its full audience, and one is never sure that no mistakes have been made; in contrast, ‘letterisation’ seems to rule out mistakes (or enlarge them as the mistake is repeated), easily creating a community that is now effectively bound together by the same unified text. This first enabled the rule by law, providing kings and emperors with an unprecedented consistent rule over their subjects, kept in line by a bureaucracy of civil servants obliged by identical royal instructions. Modern law – the condition of possibility of the modern state (Berman 1983) – owes its reach, efficiency, and effectiveness to the transition from hand-written common law and enacted decrees to full-fledged codes as they emerged at the beginnings of modernity (16th-18th centuries), coming of age in continental 19th-century national codifications. Codification differs from mere statutory law in its systematic approach of an entire legal field (private law, criminal law, administrative law). Especially in the continental European legal tradition, one can detect how the proliferation of legislation called for a categorisation of the sources of the law, initiating a strict hierarchy between different sources, in order to prevent a chaos of authoritative texts. At the same time, the need for interpretation that arose with the transition from orality to script is reinforced to an unprecedented degree, creating the need for a highly complex body of doctrines to prevent interpretation from running amok. So, the printed code was a fierce instrument in the hands of those who governed their subjects, allowing a detailed control of their lives. It thus initiated the birth of the police states of the 18th and 19th centuries and was a trailblazer of the 20th-century welfare state. However, the same need for reiterative interpretation and the same growing distance between author and addressees of the legal codes facilitated the birth of the rule of law and of constitutional democracy, with its emphasis on individual liberty, plurality, and contestation of the rule of government.  The volatility of all interpretation created the middle ground for citizens to contest dominant interpretations in a court of law, thus providing the means to speak truth to power.

In other words, the move from hand-written to printed code thus effected: 

  1. proliferation of legal texts, increasing the need for interpretation, 

  2. resulting in a quest for legal certainty 

  3. to be provided by:  

    1. systemisation of enacted law: codification; 

    2. systemisation of the interpretation: doctrine;  

  4. rule by law:  

    1. of a sovereign over his subjects, 

    2. unifying enacted law over a vast territory; 

  5. rule of law: 

    1. the author/authority of the law cannot entirely determine its interpretation; 

    2. dominant interpretations can be contested in a court of law (separation of powers). 

 

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