Title: FROM MODERN LAW TO AMBIENT LAW?

From modern law to ambient law?

From letterisation to digitisation

The move from oral to written culture did not always involve letterisation or the use of the alphabetic script. Many ancient civilisations developed pictographic or ideographic scripts, which were much harder to translate into letterpress printing. Chinese ideographic script, for instance, was printed by means of woodblock prints, not capable of constituting on the basis of a limited set of letters an unlimited set of words, sentences, paragraphs, chapters, and books. So, even though the printing press flourished in China long before Gutenberg invented letterpress printing (Reinhardt 2005), it did not entail the revolutionary effects discussed above. Though woodblock printing enlarged the scope of written text, it did not entail the kind of proliferation of printed texts flooding the mind of European lawyers.  

The recent emergence of digital code as the latest revolution in communication technologies (after orality, the written script, the letterpress, and – we may add – mass media) again entails major shifts in the way society is organised. For the sake of the argument, here are just three witty reminders of the speed with which everyday interaction is changing – which should not surprise anybody who talks with their parents or grandparents:

I once received a fax with a note on the bottom to fax the document back to the sender when I was finished with it, because he needed to keep it. 

Customer in computer shop: “Can you copy the Internet onto this disk for me?” 

Customer: “So that’ll get me connected to the Internet, right?” Tech Support: “Yeah.” Customer: “And that’s the latest version of the Internet, right?” Tech Support: “Uhh…uh…uh…yeah.” 

The first witz reminds us of the fact that digitalisation has created a proliferation of copies that change the nature of concepts like ‘theft’ (e.g., in the case of data and music), calling for new measures of protection in the field of intellectual property, security, and privacy. The second and third witz remind us of the dynamic, ever-expanding nature of the Internet, moving from text to hypertext, from content to relationship (from semantics to syntaxis), from correspondence to reality to the creation of virtual realities with effects in the real world (from semantics to pragmatics). Accumulation of texts that build up into a comprehensive system is no longer necessary, nor feasible. The sheer volume of potentially relevant texts to which one has instant access and the possibility to surf right through them via hyperlinks, creates a need to develop pattern-recognition (profiling) technologies, without which one will be flooded by information that ends up as noise.

If the vision of AmI is realised, the off-line world will be turned online, and many of the features of cyberspace will invade and transform ordinary space. Summing-up cyberphilosopher Pierre Lévy, a transition can be detected: 

1. from a linear sense of time to segments and points; 

2. from accumulation to instant access; 

3. from delay and duration to real time and immediacy; 

4. from universalisation to contextualisation; 

5. from theory to modelling; 

6. from interpretation to simulation; 

7. from semantics to syntaxis and pragmatics; 

8. from truth to effectiveness; 

9. from stability to change. 

Following his line of thought, we may expect new paradigms in law, e.g.: 

1. from the careful study of legal texts from beginning to end to the screening of cross sections to find relevant patterns (using profiling technologies); 

2. from compilations of authoritative texts, selected by authoritative scholars and judges, to instant access to all the sources of the law (legislation, case law, doctrine), flooding us with data to an extent beyond our capacity for comprehension, calling for profiling technologies to distinguish noise from information;  

3. from the delay and hesitation inherent in procedural safeguards that build on reflection to real-time autonomic decision-making by means of jurimetric technologies;  

4. from the ambition to achieve equal application of general legal norms to equal cases to a personalisation that comes close to ‘Einzelfallgerechtigkeit’ (the notion that justice is established for each and every single case);  

5. from the complex theoretical constructions of legal theory to pragmatic legal modelling;  

6. from hermeneutic practice of law, based on the need to interpret the sources, to a pragmatic practice of law, based on the need to anticipate future impacts; 

7. from an emphasis on the meaning of legal texts to an emphasis on the legal consequences of their application; 

8. from an emphasis on legal certainty, intra-systematic coherence, continuity, and stability (legal doctrine and jurisprudence) to real-time adjustment to a rapidly changing fluid world that needs permanent real-time monitoring instead of the slow construction of durable knowledge that is universal and survives the ravages of time. 

From printed code to digital code

The advent of printed legal Codes (like the Code Civile or the Code of Criminal Procedure) called for rationalisation and stimulated the construction of hierarchical systems of law. Digital Code, or computer code as a kind of Law (Lessig 1999), may lead to networks of overlapping codes that negotiate their application. This move from system to network, from imperative to negotiated authority, may be complemented with a move from creative application of the law, based on human interpretation, to mechanical application of the law, based on M2M communication and real-time monitoring (modelling, simulation, feed-back and implementation).  

Printed codes in the end terminated the reign of the literate class, allowing everybody to become literate, to participate in the creation of law (democratic legislation) and to contest the application of the law in a court of law. This way, printed codes have been a precondition for the rise of constitutional democracy as we know it today. Digital code, however, seems to introduce a new ‘literate’ class, creating at the same time a class of computer illiterates. This can be illustrated by referring to the case of Ambient Intelligence, where the idea is that technological (digital) complexity is hidden, to make life easier for the user, which enlarges the gap between illiterate users and knowledgeable providers.

If digital code is naïvely understood as (a) a neutral tool to implement the law – e.g., by using DRM to enforce intellectual-property rights without paying attention to the impact of such implementation for ‘fair use’ – then the normative impact of the technology itself is hidden, which may have serious consequences for the scope and the nature of law in AmI environments. If digital code is naïvely understood as (b) just another tool for the implementation of government policies – exchangeable with legal instruments depending on their foreseen efficiency and effectiveness – then the specific constraints of constitutional democracy can be bypassed at will. 

For this reason, we must acknowledge the fact that for Ambient Law to be effective and legitimate it must be understood as (c) the technological embodiment of legal norms, requiring democratic legitimisation as well as the possibility to contest its application in a court of law. While these two requirements of law in a constitutional democracy are taken for granted in a society based on printed code, we may have to reinvent them in the case of digital legal codes.