JILT 1998 (1) - Archie Zariski
Virtual Words and the Fate of Law
Archie Zariski
Murdoch University School of Law
zariski@central.murdoch.edu.au
Contents
| Abstract |
|
| 1. | Introduction |
| 2. | Sensual Text |
| 3. | Word Power |
| 4. | Conclusion |
| References |
|
| Links |
|
Abstract
This article considers the consequences for law of the digitalisation of its texts and experiences in cyberspace. It brings into play the writings of Marshall McLuhan and Northrop Frye which yield insight into the possible futures of law in cyberspace and concludes that digitalisation in itself will not satisfy the human need for meaningful personal narrative in law as in other interpersonal affairs.
Keywords: law - cyberspace - virtual reality - McLuhan - Frye
This is a Refereed Article published on 5th December 1997.
Citation: Zariski A, 'Virtual Words and the Fate of Law', 1998 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/elecpub/98_1zar/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_1/zariski/>
1. Introduction
The life of the law increasingly is being lived in cyberspace, that new electronic environment created by the potential for communication amongst linked computer networks worldwide. Current legislation, case reports and legal commentary are now available for many jurisdictions through the web at sites such as AustLII for Australia and the Web Journal of Current Legal Issues produced in the United Kingdom. Lawyers are now to be found and may be retained through websites such as Hieros Gamos and the public may act as jurors in trials viewed audio-visually as entertainment on the web courtesy of The People's Court. It is now possible to file documents with some courts and public registries via email and the documents themselves may be in hypertext or multimedia formats. For some time numerous courts have held some proceedings by way of videoconferencing and as computer networks grow in capacity these also may migrate to cyberspace. Some dispute resolution agencies now exist only on (and for) the web such as the Virtual Magistrate and the Online Ombuds Office.
Faced with these developments it seems natural for us to ask whether law and its processes will change in their essential characters as they become electronically digitised phenomena. It seems an automatic reflex to answer 'yes' with an implication that the changes wrought will be beneficial and should be welcomed. Such is the state of our late twentieth century existence that technological change enjoys the benefit of the doubt; the phrase 'new and improved' has become almost a redundancy. My purpose here is to consider where the migration of law to cyberspace (or vice versa) may take us and whether this technological optimism is warranted by the foreseeable consequences.
A threshold question is whether this electronic technology will have any effect at all on what we conceive as the essential elements of law in our societies. I believe the answer to this question is 'yes it will'. In my view one of the major strands of modern Western culture has been the analysis and elaboration of the interrelation between humanity and its products, the individual and her technologies. In the late modern period we live in these inquiries lead many to view the concept of technology as central to our understanding of the human condition. Here technology is abstracted to technique as a basic instrumentalism underpinning the nature of the individual. Language and other symbolic systems may be seen as some of the most basic techniques employed by the human being to accomplish the purposes that emerge from an internal economy of desire. Study of languages has led to the conclusion that they embody fundamental ideologies of perceptual, personal and social constructs lying below the surface of all expression within their bounds. Consideration of the degree to which our thought and action can be channelled and constrained by such a human artefact has also yielded the insight that all technologies appear to have the potential for reflexive modification of their users' lives.
Communication technologies perhaps have the greatest potential for changing the way of life of those who employ them due to their close connection with the fundamental technology of language. Just as the telegraph provided a medium most compatible with abbreviated pithy expression and thus likely influenced the style of journalistic prose we can expect that the newest medium, the web, will have its own impact on the practices carried out within it. Whether the changes to law in cyberspace will be consequential and beneficial is the question then to be pursued.
What new capacities does the web offer law and its agents? A list would include storage and retrieval of vast and heterogeneous databases of information; indexing and display of written texts and audiovisual materials of all kinds; communication by way of documents, images and sounds over great distances and at this stage perhaps the most novel ability to produce and experience 'virtual realities'. The latter may be briefly defined as the creation of environments by means of multisensory stimuli electronically produced and controlled that encourage the participant to believe they are within other spaces and situations. At present the technology for the production of such effects through the web is rudimentary but I will assume that this development will occur and likely with rapidity. I make this assumption appreciating the hazards of prophesy and I will make more later in reliance on my view of change in this area.
I am less certain of the impact of the changes I envisage to the techniques of creation and implementation of law in a society dominated by cyberspace. This attitude of 'technology scepticism' (Postman, 1992) grows out of my experience that may be illustrated by three vignettes: First, my parents tell a story of me as a small child in the early 1950s. I am said to have reached and asked for the moon. Today, given the wealth of a Bill Gates I suppose I could hire a ship and crew to actually take me there, but I doubt I would make the trip even if it were possible. Rather, I continue to desire to know and embrace the elsewhere and the other, but I would prefer to do it through my research and this writing. Second, later in the 1950s, our grade school class participated in a trial of television as a teaching tool. I have not noticed to date any significant further steps in this direction. Finally, for some years now I have not owned a television set. Now, when I am an occasional viewer, watching television is an enthralling experience but one which seems to me by nature an entertainment. This is all to say that even changes in communication (and their cousin transportation) technologies do not necessarily reorient our lives. Fundamental human aims and strategies have their own weight when confronted by technique.
My point of departure for these hazards on the future of law in cyberspace will be a view of modern law as a text-based enterprise. This seems to me fundamental to the assumptions of stability, permanence and objectivity associated with conceptions of the rule of law in Western societies. In capsule form the predominant view might be stated as 'the law is in the books'. Put thus, the law then shares with literature some of the same history and perhaps some of the same fate. To the book should of course be added the assumption of a reader of law, the judge, corresponding perhaps to the literary critic. While we do not understand fully the experience of judging according to law undoubtedly it is heavily weighted in favour of reading and writing. What becomes of the book and its reading in a cyberspatial world seems therefore to be a crucial question bearing on the fate of law.
I will use the word 'virtual' to describe words that have undergone some change from how they appear to a reader of print as a result of their being subject to electronic production, dissemination or display. This usage adopts the assumption described above that Western law has become identified as existing in its primary state as printed words on paper. Virtuality has a variety of dictionary meanings, several of which I will bring into play: a quality of being something 'that is such (for practical purposes) though not in name or according to strict definition'; and a relation 'to points at which rays would meet if produced backwards'. [1]
Consideration of these nuances of meaning leads me to mine principally two diverse bodies of critical writing about writing and reading: that of Marshall McLuhan and Northrop Frye. Although varied, their writings seem to me to share a common trait that may be phrased as a deep concern relating to the creation, dissemination and influence of text in our lives. McLuhan's attention is focussed primarily on the embodiment of texts made available to the senses while Frye's concern is for texts' modes of address to readers. For me they both provide keys to working through the possibilities of law in a digital world. Through McLuhan we see the importance of the physical form and sensual impression of a communication technology for its ability to affect its users. Frye teaches us to be aware of the content-related biases of a communicative medium in order to understand its impact on the mind.
This speculative reflection on the future of law in cyberspace is not an empirical study. Here I will rely often on my own observations in the course of several years of 'surfing' this new environment and my experience with it as a producer of hypertext and multimedia. Nevertheless, I believe evidence for the plausibility at least of many of my projections can already be found. For this reason I will refer to one of the leading established electronic journals in law, the Web Journal of Current Legal Issues as an example of what I see as confirmation of some of the trends to be suggested here.
2. Sensual Text
'You can't see if I'm not listening
You can't hear with my eyes open
I can't hate with my eyes open
I feel better when I'm numb'
Holly McNarland
What effects on law might we foresee resulting from 'the law in the books' becoming the law in a digital archive or the law in a virtually real courtroom? Will the eclipse of the book as an essential instrument of law affect law's impact on lives lived in or through cyberspace? Here we will consider how words formerly printed but now made 'virtual' through digitalisation may function in the name of law in cyberspace. As a starting point, Marshall McLuhan's work helps us to grasp the importance of print on paper to Western culture and to consider what significant changes may be prompted by the emergence of electronic communications media. Central to McLuhan's thought is the importance he attached to the unique sensual signatures of varied communication systems. Each such sensual complex he believed had a distinct effect on the thought and action mediated by it. McLuhan's focus was largely on the difference between print and television and he had no experience of the web but his method will prove useful when considering virtual words in cyberspace.
Relevant here is the book The Gutenberg Galaxy: The Making of Typographic Man (McLuhan 1962), an extended investigation of the effects of the printed word on western culture. Gutenberg Galaxy directs us to the sensual elements of the text represented as print on paper and focuses on the centrality of the visual impact of the words before us. (It is perhaps worth noting that even in this observation there is a little of being 'blinded by the light' since undoubtedly book reading involves a multi-sensual experience including heft and smell.) McLuhan suggests that the predominantly visual experience of reading text from a page has contributed significantly to forming some of the dominant characteristics of modern Western culture including its orientation to individualism, private points of view and tendency to universal abstractions.
Gutenberg Galaxy asserts that the impact of different forms of communication on the senses has a strong effect on the 'sense' perceived. Thus, predominantly visual means of presentation in the book form leads to a heightening of visual awareness and corresponding tendency to apply the usual assumptions and propositions of sight in all aspects of our lives. Correspondingly, auditory and tactile phenomena are given short shrift and may even be characterised as 'primitive' or 'puerile'.
In McLuhan's view typography was the inaugural industrial process, bringing mass production and consumption of ideas into the world and thus shaping our key perceptions both of the ideal and material economies. Recognition of a 'reading public' both as mass audience and as a collection of atomistic individuals was thus perhaps the most significant social effect of the appearance of the modern printed book.
The McLuhan approach has two levels upon which it can be appreciated: the psychological level of the relation between the senses and 'sense'; and the sociological which evaluates printed text as a material force. Both have relevance for an investigation of digitalised words.
Reading text on paper is said to have contributed to the rise of western individualism partly through the heightening and valorisation of the sense of sight. Acquiring information through a repetitive pattern of a limited number of characters upon a page where we focus our searchlight gaze in the privacy of our own concentration is probably one of the most significant experiences in the western cultural tradition. For an individual this may have the significant effect of fostering the predominance of a private 'point of view' or perspective as the hallmark of personal identity. Gutenberg Galaxy also suggests that the printed page with its carefully spaced and punctuated succession of almost perfectly repeated characters leads to a perception of homogeneity of time, space and the human condition related in an organic way to the abstract universality of western thought. In law this has led to the familiar tension between application and interpretation of words. As put in Gutenberg Galaxy (p165):
'In our legal world words are carefully reduced to homogeneous entities so that they can be applied. If allowed any grace or life such as is naturally theirs, they would not serve their practical, applied function.'
Cyberspace researchers also help us to understand how individuals can be affected by communication technologies such as the book and the web. Virtual reality designers and theorists have adopted the concept of 'telepresence' or simply 'presence' to describe the phenomenon of people's involvement in environments created by intentional technological mediation. 'Presence' in other words is a measure of the extent to which individuals believe themselves to be in worlds other than their actual physical circumstances. Biocca (1997) for instance refers to the capacity of communication media to create 'imaginal environments'. Proponents of the digital environment view printed text simply as a 'low bandwidth' technology with little capacity to induce 'presence' (Kim and Biocca, 1997). This treatment of books is countered by critics of the electronic revolution such as Birkerts (1994) who insist that reading from the printed page does create its own sense of being elsewhere which has shaped thought and action in Western society along distinct individualist lines. Birkerts for instance refers to a unique sense of time which he calls the experience of 'duration time', a feeling of sanctuary from the normal worldly pace, as one of the essential characteristics of the reading experience. We would do well I think to take seriously McLuhan's insistence that the print medium had powerful effects on psyche and culture and that electronic media may produce quite different consequences.
The McLuhan analysis centred on the potential of new electronic media to subvert and invert the visual bias of 'typographic man'. Radio and television were said to involve a new interplay of the senses that would alter the sense of perceived content. In Gutenberg Galaxy the aural and instantaneous nature of these media were emphasised and the form of the broadcast was considered revolutionary. Since those speculations we have perhaps seen some of the impact of McLuhan's predicted 'global village' and no doubt some exceptional events (walks on the moon, state funerals and weddings, hostage takings) have taken on the character of neighbourhood happenings. In the Internet age however we must also now take account of the dissemination of information via computer networks that have the same elements of instantaneousness as radio broadcast technology and are increasingly capable of delivering multi-sensual experience by means of multimedia capable of producing 'virtual realities'.
Gutenberg Galaxy sensitises us to the importance of the sensual in communications. McLuhan taught us that western culture has produced epistemological and ontological paradigms that are strongly tied to the visual perception of printed words on a manipulated page that is the focus of light and attention. What then will be the reaction to information that arrives as a multi-sensual event? Rather than a representation of reality, what if this information amounted to a simulation of its message?
Here it may be appropriate to call upon one of the meanings of virtuality in aid of understanding. Printed text may be thought of as calling upon the power of the reader's receptivity in association with the author's motivation to 're-present' reality. This process of reading has been traditionally thought of as originating in intent and culminating in assent, a kind of experiential dialectic resulting in the transmission of knowledge. Gutenberg Galaxy suggests this process has helped create our conceptions of the letter and spirit of a written text for instance. A reader is impelled to look through the letter to discern the author's true intent shining from within.[2] Simulation in virtual reality however seems to work in the reverse direction, like 'rays' projected backwards to a virtual point in space, starting with the assumption of a participant. The effect is to conceal authorship of the program the participant activates.
Given sufficient data a computer simulation can reveal a history that is compatible with such input and thus re-produce the past. Such a process can be said to make the past speak in virtual words. One example here is the use of computers to 'age' and now to 'rejuvenate' suspects for the purpose of identification in criminal proceedings (CBC, 1997).
We may wonder whether evidence given by means of multimedia and simulation and may be more persuasive than any oral testimony or written document. This possibility has been acknowledged by the author of one of the articles in the 1996 Web Journal of Current Legal Issues who relies on a modified McLuhanism:
'Just as a writer uses punctuation, the selective use of a zoom, close-up and fadeout can accent different points. A constantly moving object can appear to change speed or direction by merely changing the point where it is viewed. While the animation may be technically correct, it can be misleading. The medium shapes the message.' (O'Flaherty D; 1996)
A concern for our critical and evaluative capacities when faced with multimedia and immersion in virtual realities seems warranted. Kim and Biocca (1997) for instance have reported experimental results which appear to show that inducing a stronger sense of 'presence' through communications media has positive effects on the persuasiveness of the message conveyed.
Computer simulations have now a limited capacity to re-create the past and thus reproduce words and actions for which no record exists. It is not too much to consider such evidence as consisting of virtual words which have never been spoken by a human voice nor written by a living author as known to 'typographic man'. As Bernard Hibbitts points out, book-literate individuals may be ill prepared to appreciate and evaluate evidence that has a non-visual or multi-sensual form (Hibbitts B J; 1992). The effect may work in reverse moreover and make it difficult for those whose experience has not been shaped by reading text to experience the form of 'presence' which it offers. To those accustomed to receiving aural and visual clues to meaning (through the experience of television for instance) written words may present a formidable obstacle to interpretation. Perhaps this is the cause of much unfortunate misinterpretation resulting in abusive 'flaming' amongst senders and receivers of electronic mail who are not book-literate. 'Emoticons' placed in the text of email messages thus occupy the place of the television laugh track as an auxiliary communication tool.
Despite the dangers, the law in cyberspace will, I think, increasingly deal in virtual realities particularly in the area of fact finding. These computer-generated experiences are even more remote from the compartmentalised interaction involved in silent reading and contemplation of an author's meaning or even hearing a witness speak on the stand. In their multidimensionality they may in some ways be more congenial (through enhancement of 'presence') and therefore persuasive. To follow the McLuhan logic, any experience overworking one faculty over others is bound to lead to distortions in cognition. The corollary of this would seem to be that an experience that appeals to all in a balanced way may be easier comprehended. Still, we must keep in mind that we are dealing with reproductions of reality subject to the computer axiom 'garbage in, garbage out' rather than textual re-presentations for which we have developed complex procedures of analysis and critique. These new interpretive skills and abilities will acquire increasing importance as phenomena such as web-based The People's Court, and Court TV acquire recognition and legitimacy.
Despite the dangers I can foresee virtual realities for instance being used to create a hypermodern type of 'trial by ordeal'. In such a system a witness would be challenged to enact in a simulated world (created using other data) the events for which she contends. The reactions of the virtual environment to her embodied assertions would provide feedback confirming or denying the truth of her enacted history.
A digital age may bring forth multitudes of virtual words and worlds to confront the law. In some respects renewing ancient aptitudes may be the most appropriate response to the challenge of understanding simulated realities. Mere visual acuity together with analytical sharpness may not be enough. As McLuhan writes in the Gutenberg Galaxy (p276) book culture has fostered a view 'that insists on repetition as the criterion of truth and practicality'. When repetition of information is produced by a digital device is it to be given the same credence as testimony flowing from the senses of multiple human witnesses?
Will the acquisition of information through electronic networks be accorded the same value and cognitive significance as perusal of a printed text now enjoys; will a less exclusive, less personalised access to knowledge result in a decline in western individualism in favour of a more collectively oriented consciousness? In Gutenberg Galaxy we read (p157):
'The highly literate and individualist liberal mind is tormented by the pressure to become collectively oriented. The literate liberal is convinced that all real values are private, personal, individual. Such is the message of mere literacy. Yet the new electric technology pressures him towards the need for total human interdependence.'
Such interdependence is an acknowledged aim of cyberspace technicians who see digital communications bringing 'shared experience and relationships' to ever greater numbers of online participants (Lauria, 1997). By the same token will a more multi-sensual perception of the world of knowledge lead to less abstract universalistic thinking in the law and a corresponding heightened attention to the local and singular? If that should occur, will there be more local and particular laws such as is intimated in the legislative activism now seen in the cities of the United States? Will the web thus be a centralising or decentralising force in legal culture?
These large questions I will not attempt to answer here.
3. Wordpower
In the beginning was the Word, and the Word was with God, and the Word was God.
John 1, 1
I turn next to the question whether digitalisation of the texts and experiences of the law is likely to have a significant impact on its explicit content and conscious processes rather than its embedded ideology and perceptual biases. This issue focuses attention on what can be called the mental effects of law in cyberspace - possible changes in our modes of legal thinking as a result of moving away from 'the law in the books'.
For me the most striking effect of cyberspace at this point is the explosion in volume of text available online. Whether or not the printed book is dead as a medium, as some proclaim, there is no doubt that written words are proliferating on the web. This phenomenon is due to digital conversion of printed works, dual publication of legal sources in electronic and print formats, and the accelerating accretion of new writing in electronic discussion lists, ejournals and newsgroups. To deal with this mass of text sophisticated computerised search and retrieval tools are being made available. It is with reference to this environment that I wish to pose the question of what becomes of law's words in such conditions of production, diffusion, and use.
Let us assume that any text of written law in the world is available instantaneously to web users as soon as it appears as law, a prospect which is not distant in time in my view. In such circumstances it seems to me that the most pressing issues for those interested in this corpus will be similar to those associated with managing and using any large database. Efficient location and retrieval of usable materials will be the primary concern and this of course is where 'search engines' come in. Lawyers have in fact been using such techniques for years to find precedents in the large proprietary databases of reported judgements. Consequently it may be the case that some of the changes to be wrought by advent of cyberspace have already begun. What are some of these possible consequences of viewing law as information to be retrieved efficiently?
The changes to be expected will lie in directions taken through resolution of the tensions between calculation and judgement, reference and representation, mapping and meaning. These conflicting approaches to text will I think result in a modification of the accepted 'genres' of law to be seen in the ascendance of rules over principles and in a decline in the importance of analogical processes in legal reasoning. Virtuality thus may mean a loss of virtuosity for law.
The danger for law considered as a database of information is similar to that facing literature in an age of descriptive prose and the literary critiques of Northrop Frye can help us better understand the threat. Two books in particular, The Great Code: The Bible and Literature (Frye N; 1982) and Words With Power (Frye N; 1990) I believe have important lessons for lawyers although they are literary criticism of Biblical text. The concern expressed in these writings encompasses the whole area of the 'social function of words', their power, use and misuse.
Central to these two books is a taxonomy of writing which includes the metaphorical or poetic, the metonymic or conceptual and the descriptive or demotic. In The Great Code and Words With Power we read of the imaginative power of poesy found in the Bible contrasted with the power expressed in abstract and unidimensional prose.
As Frye notes, metaphor derives its power from reserves of 'polysemous sense' which in turn link with the core myths of human existence expressed in narrative patterns. Thus, the power of poesy is the expression of multiple meanings connecting man and the world with a sense of unity. Poetry opens the power of life to human comprehension. Metaphor is immanent in any conceivable human world.
In metonymic or analogical, conceptual writing the focus shifts to the unity foretold by language itself. This unity is in potential only and therefore contestable through dialectic, the most developed form of conceptual writing.
Finally, the most recent mode of writing, the descriptive, undertakes to reproduce the sensual world in language and in so doing record the unity of the present.
It will be apparent that modern western legalism fits traditionally within the analogical, conceptual mode of expression and Frye's writing takes no exception to the power wielded by dialectic in human affairs. We read rather that conceptual language is the inheritor of some of the poetic power:
'We spoke of a verbal magic in the metaphorical phase, arising from a sense of an energy common to words and things, though embodied and controlled in words. In the metonymic phase this sense of verbal magic is sublimated into a quasi-magic inherent in sequence or linear ordering. Hence the medieval fascination with the syllogism and the great medieval dream of deducing all knowledge from the premises of revelation. Later we have the 'I think, therefore I am' of Descartes, where the operative word is 'therefore,' because before we can accept the proposition we must accept the cogency and reality of therefores.' (Frye N; 1982, p11)
These texts of Frye lead me to the conclusion that the descriptive mode of writing poses a threat to human dignity and agency not only in literature but in legal culture as well. Closely allied with inductive logic and scientism, the descriptive mode of expression aims to set up a parallel world which refers in all essentials to the world of experience. This is mechanical reflection or simulation of reality rather than the kind of concerned questioning we have known as reflective thought. Texts that attempt to reproduce reality are hostile to visions of the immanence of the human spirit and to the transcendentalism of human speculation. Thus, rules most naturally flow from the desire to create an accurate picture of legality by mapping lawful action, a motivation that can be contrasted with faith in justice reached through dialectical processes. Metaphorical or analogical representations are supplanted by calculable references.
The digital age affords new resources for descriptive expression. Massive databases allow the cataloguing of nature (including humanity) on a scale not possible before and search and retrieval mechanisms permit manipulation of this information in milliseconds. The power of this approach may be seen in the recent defeat of a human champion by means of the descriptive knowledge available to a chess-playing computer. Where once the quasi-reproduction of reality was far beyond human capacity in selected areas it now seems possible.
Another of the meanings of virtuality may now be brought into play. In a drive for practical, calculable solutions to legal problems we may be asked to accept as law texts which do not flow out of the agony of human decision but result only from the mechanical application of formulae to catalogued facts. These virtual words will issue from computer programs that may be called intelligent but cannot be considered human or just.
In The Great Code we are given a key to understanding the danger inherent in this approach which treats written expression solely as the efficient instrument for subduing practical necessity. It is found in the inescapable connection of humanity to its own world of words:
'… man is a child of the word as well as a child of nature, and … just as he is conditioned by nature and finds his conception of necessity in it, so the first thing he finds in the community of the word is the charter of his freedom.' (Frye N; 1982, p22)
This freedom consists in the agon of humanity to decide the future, a responsibility that cannot be shared, only avoided. Integral to this challenge is acceptance of and accommodation to the multiplicity of meanings attached to the words we use. As poetry shows us this is not to be considered a disability of our existence but one of its redemptive features. In Words With Power we find the following:
'In conceptual writing the emphasis is on the power of words to co-ordinate verbal elements, hence conceptual writing concentrates on the elements most closely related to co-ordination. These are expressed in such terms as time, nature, substance, being, all of which are necessarily abstract, related immediately to the verbal construct itself and withdrawn to some degree from the external world.
Two features of such writing are important for us here. One is that ambiguity may become, not a mere obstacle to meaning, but a positive and constructive force. Such words as time in Bergson or substance in Spinoza have to be used in a great variety of contexts, and while the different uses may be consistent, consistency is not simple identity.' (Frye N; 1990, p10)
To which might be added examples of use of the word justice in legal texts.
Such flexible writing and reading may be contrasted to the position in descriptive expression where 'metaphors are something of an obstacle because of their ambiguity' (Frye N; 1982, p55). Rather than avoid this obstacle poetic and conceptual writing confronts it directly in the struggle to make meaning of existence. It is in meaning-making decisions that humanity enjoys its freedom; in this predicament justice is the guide and goad:
'For Socrates, real justice, the justice to be reached by dialectic, not talked about rhetorically, can exist only in a different world from this. But where is such a world, if the word where in fact applies to it? Is it another world, or the world we enter at death, or this world after a revolution? Or is it simply the community of those who know that it is better to endure than to inflict injustice, because they also know that the word justice, however impotent as a word, still does have a meaning, and to acquire meaning is to acquire power, of a sort?' (Frye N; 1990, p14)
By way of example there are several intimations in the 1996 Web Journal of Current Legal Issues of the ascendancy of the descriptive mode of expression in law and the concurrent decline of the analogical. Perhaps the primary indication is the pervasive discussion of rules rather than principles of law. Many of the articles are directly concerned with legislation that attempts to lay down comprehensive regulations for the conduct of carefully described matters. Where these rules are perceived to have allowed ambiguity or uncertainty to creep in they are criticised. Thus, Alison Dunn (1996), commenting on new guidelines for the conduct of charities states: 'It is in this lack of precision upon acceptable behaviour that the Charity Commission's guidelines disappoint.' An article on legislative changes to family law affords a clear example of the extent to which the discretion of judges is now often circumscribed through the promulgation of lists of factors which they must take into account in making delicate decisions (Lind C and Barlow A; 1996). Speaking of the field of conflict of laws one author approvingly notes that 'the new rules embrace certainty, simplicity and ease of application and limited flexibility, which are vital qualities in the underlying jurisprudential policy.' (Mayss A; 1996) In a digital environment it becomes increasingly easy to generate, store, index, retrieve and apply rules governing the most precisely specified situations, obviating most of the inconvenience of interpretation.
As a corollary to the cry for clear legislated rules, 'judicial law-making' also comes in for criticism in this law ejournal. Professor Allen (1996) scolds the English Court of Appeal for a decision he believes 'extended the ambit of the law of assault in an unquantifiable way.' This despite two law teacher authors' assertion in another article that 'extrapolation and reasoning' is 'the very essence of lawyering' (Brayne H and Breakey P; 1996).
Two articles in the Web Journal of Current Legal Issues for 1996 report computerised decision-making in law. Kosten and Pounder (1996) in their discussion of data-protection in the European Community note that decisions with legal effects may be made by 'automated processing' of data if there are safeguards for a subject's unspecified 'legitimate interests'. Archbold and Xanthaki (1996) report that
'… the UK has moved from a child support system in which a judicial body was arguably taking an administrative decision, to one in which an administrative body is taking a judicial decision. Although the decision of the CSA [Child Support Agency] is made using a computer, the formula is set out in law, and although ancillary decisions such as whether to deduct benefit from a non-co-operative parent with care, or to make a departure order, involve an element of discretion, the primary decision could fairly be categorised as judicial, although essentially mechanical.'
For whatever reasons of convenience or cost it appears that legal decision-making is becoming amenable and indeed subject to automation. In such a world an individual's legal rights and obligations will be bound up with the accuracy of her personal records in the data storage banks of the state. At that point we risk becoming avatars of our primary digital identities. And in that time justice may disappear as part of humanity's abdication from the seat of judgement. So much has already been foreseen by the Australian jurist Justice Michael Kirby whose remarks are reported as follows:
''Our laws will be written in the future in a way that makes many issues susceptible to resolution by artificial intelligence,' he told Sydney University law students.
'This will be because our profession – your profession, mine, the law – has really just priced itself out of availability to most ordinary citizens.'
'That can't be a good thing.'
But he said it seemed unlikely any 'push-button judge' would be able to supply the 'will to do justice according to law' that was so necessary for hard cases.
This will was 'at the heart of our mission for justice'.
'No machine can yet be programmed which takes our place in that respect.'' (Lane B; 1997)
Cyberspace opens the possibility of mapping experience to a virtual world of legality expressed in comprehensive accessible rules but I have little confidence in the result. I do not think we should settle for such virtual justice.
4. Conclusion
I am a cybernaut. My webspace has become the centre of my academic existence where I organise my thoughts and present my writing to the online world. I am an editor of an ejournal and get my news and weather exclusively from the web. My credentials as a citizen of the electronic frontier I think are as good as any. This article has been composed of course entirely on a computer and I have never printed it out; further much of the research and reading for it has been done on the web. Yet when I reflect on the experience of this writing I feel it reflects a struggle for which the supporting technology in the end has been of minimal help. I refer to the struggle to uncover my own thought, find words that seem to fit it and present a coherent whole that will make sense to others.
This text could, I suppose, be presented in multimedia format with audiovisual clips of me and other writers I have referred to; it already contains many hypertext links to other sources. Perhaps it could even be made into some kind of virtual information environment involving most of the senses. Yet in all these transformations I believe it would not cease to be a text, that is a representation of my thought. It cannot be me or the world I see. The reader must exercise her judgement in creating meaning from these words.
What I hope is that in this survey of the possibilities of cyberspace I have given due credit to its positive potential while reigning in some false hopes. Let me record some advantages of this environment: the ease with which I have been able to reconsider and modify this digital text on screen; the existence of so many valuable sources on the web, accessible from home and office; and the benefit of email in allowing me to meet editorial deadlines. Nevertheless the worth of this article (such as it is) depends on a particular resolution of the agon of representation, of the struggle to make meaning which is judgement itself. That cannot be digitalised I think. In the result, therefore, cyberspace will not, in my view, be of great help in resolving some of the dilemmas at the core of modern western law and the resulting tensions in the systems that embody it.
Virtual realities appear to hold the promise of connecting the law more firmly to the life experiences it attempts to comprehend and control. It may be argued that the technology for producing such effects, by shortening the distance between what is perceived and what is legally established as 'fact' can do much to narrow the gulf separating law as a formal system from contingent reality. However, while it may be true that courts may have more direct access to the echoes of the past this does not obviate the need to determine a history, to represent experience as legally significant 'facts'. A job remains, which is to make sense of experience according to the vocabulary and syntax of law, in other words to undertake the task of characterisation within a formal system. To do less is merely to empathise, and not to judge. We ignore at our peril this vital step of naming the events of the world in the course of seeking to do justice. To assume that experience will name itself is to abdicate the responsibility of making meaning and to invite assumptions and prejudices to work unseen and unquestioned within the mechanisms of computer programs and display devices. Modern law cannot escape from its burden of formal rationality so easily. Virtual reality is not real justice.
Cyberspace also seems to offer an attractive way of getting around the difficult dialectic of rule and principle, of the particular and the universal, that dogs modern law. Dreams of 'scientific jurisprudence' and 'gapless law' that perennially give rise to codification movements are rekindled in the digital environment. Instant accessibility, powerful search tools and intricately cross-linked texts are a legal codifier's godsend. Law without limits of volume and complexity! The web may thus seem the ideal instrument by which we may extend a finely detailed map of legality over the world and an answer to the cries of those who seek certainty and predictability from law. This vision, however, also seems to me to underestimate the challenge we pose for our law to be both humane and objective, to decide today's case without neglecting the implications for the future. Law without ambiguities or unanticipated instances may be called well ordered but will not have the potential for flexibility that justice requires. Digitalisation of texts may therefore promote the continuing explosion of law as rules while prejudicing the vitality of law as principle. Law considered as a map, however finely grained, is not a substitute for justice viewed as a journey.
For those who continue to believe in the irreplaceability of human judgement, as I do, cyberspace is a temptation and possibly a trap for the law. Our societies will, I believe, continue to insist on interaction with a view to sharing meaning as essential to any process for resolving human differences. This demand is not met by immersion in immediate sensory experience or by automated rule following; it is a demand that we all be represented fairly in our dealings with each other, that the meaning we give to our lives be understood. There will be a turn away from law as we now know it if this basic human need is ignored by law in cyberspace.
References
Allen M J (1996) 'Look Who's talking: Seeking a Solution to the Problem of Stalking', Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue4/allen4.html.
Archbold C and Xanthaki H (1996) 'The UK Child Support Agency: A Step Towards EU Co-operation in the Field of Family Law', Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue5/archbol5.html .
Biocca F (1997) 'The Cyborg's Dilemma: Progressive Embodiment in Virtual Environments', Journal of Computer-Mediated Communication http://www.ascusc.org/jcmc/vol3/issue2/biocca2.html.
Birkerts S (1994) The Gutenberg Elegies: The Fate of Reading in an Electronic Age (New York: Fawcett Columbine).
CBC (Canadian Broadcasting Corporation) (1997) 'Police use computer to take suspect back 30 years', Newsworld Online, October 17, 1997 http://newsworld.cbc.ca/archive/html/1997/10/17/pedophile17.html
Dunn A (1996) 'Charity law - a political scandal?', Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue2/dunn2.html .
Frye N (1982) The Great Code: The Bible and Literature (Toronto: Academic Press).
Frye N (1990) Words With Power (New York: Harcourt, Brace Jovanovich).
Hibbitts B J (1992) 'Coming to Our Senses: Communication and Legal Expression in Performance Cultures' http://www.law.pitt.edu/hibbitts/ctos.htm .
Kosten F and Pounder C (1996) 'The EC Data Protection Directive 1995: An Analysis', Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue2/kosten2 .
Kim T and Biocca F (1997) 'Telepresence via Television: Two Dimensions of Telepresence May Have Different Connections to Memory and Persuasion' Journal of Computer-Mediated Communication http://www.ascusc.org/jcmc/vol3/issue2/kim.html .
Lane B (1997) 'TV coming to court, says Kirby', The Australian Online, August 18, 1997 .
Lauria R (1997) 'Virtual Reality: An Empirical-Metaphysical Testbed' Journal of Computer-Mediated Communication http://www.ascusc.org/jcmc/vol3/issue2/lauria.html.
Lind C and Barlow A (1996) 'Family Redefinition under Part III of the Family Law Bill 1996', Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue2/lind2.html .
Mayss A (1996) 'Statutory Reform of Choice of Law in Tort and Delict: A Bitter Pill or a Cure for the Ill?', Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue2/mayss2.html .
McLuhan M (1962) The Gutenberg Galaxy: The Making of Typographic Man, (Toronto: University of Toronto Press).
O'Flaherty D (1996) 'Computer-Generated Displays in the Courtroom: For Better or Worse?' Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/1996/issue4/oflah4.html citing Marcotte P (1989) 'Animated Evidence: Delta 191 crash re-created through computer simulations at trial' ABA Journal, December 1989, p52.
Postman N (1992) Technopoly: The Surrender of Culture to Technology (New York: Vintage).
Links
John Perry Barlow Home(stead)Page http://www.eff.org/~barlow/
Bridging the Gap: Where Cognitive Science Meets Literary Criticism, Stanford Electronic Humanities Review (Vol 4, Issue 1) <http://shr.stanford.edu:80/shreview/4-1/text/toc.html>
Constructions of the Mind: Artificial Intelligence and the Humanities, Stanford Electronic Humanities Review (Vol 4, Issue 2) <http://shr.stanford.edu:80/shreview/4-2/text/toc.html>
Court TV http://www.courttv.com/
Electronic Frontier Foundation http://www.eff.org/
George P Landow, Hypertext and Critical Theory <http://www.stg.brown.edu/projects/hypertext/landow/ht/contents2.html>
David Miall, Reading, Hypertext, and the Fate of Literature http://www.ualberta.ca/~dmiall/hyperlit/course.htm
Stuart Moulthrop, Essays <http://raven.ubalt.edu/staff/moulthrop/essays/>
Online Ombuds Office http://www.ombuds.org/
Special Hypertext Issue, Postmodern Culture (Vol 7, No 3, May, 1997) http://jefferson.village.Virginia.EDU/pmc/text-only/issue.597/contents.597.html
Andrew Terrett, Review of M Ethan Katsh, Law in a Digital World http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_1/terrett1/
The People's Court <http://www.peoplescourt.com/bindev/wb.cgi?MIval=main_promo>
Virtual Magistrate http://vmag.vcilp.org/
Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/
Footnotes
[1] All from The Concise Oxford Dictionary of Current English, 7th edition, Oxford: Clarendon, 1982, reprinted 1987.
[2] 'The letter appears as the flesh; but the spiritual sense within is known as divinity. This is what we find in studying Leviticus … Blessed are the eyes which see divine spirit through the letter's veil.' Origen, cited by Beryl Smalley, Study of the Bible in the Middle Ages, Oxford: Oxford University Press, 1952, cited in Gutenberg Galaxy, (McLuhan, 1962, 105).
