Digital distribution of law is not a future fancy, but present fact. The rapid shift from print to computer-based systems, now well underway, represents visible change for sure, but of what deeper significance? Will the change have other than superficial implications for the set of activities or functions we call law? Is this likely to be a case of same basic activity, new platform, or more unsettling change?
For good reasons, the technology of law is normally background technology, largely transparent to those who deal with it, especially those who deal with it regularly. As a beginning law student, I learned how to do “legal research”; I was not led on an exploration of the history nor the strengths and weaknesses of the legal information system of the early sixties. Having mastered a set of information access techniques, I assumed, as my instructors seemed to, that they would become part of a professional competence that would allow me to do the real work of lawyering.
The change to digital media has forced these tools into the foreground. Today, those who work with law cannot take legal information technology for granted. And our normal inattention to these matters, puts us at a disadvantage in facing change. Without understanding the important questions that have surfaced at past points of transition or how key features of current information tools have evolved, it is difficult to comprehend the issues and opportunities posed by new ones. Furthermore, a failure to note the evolutionary process that has shaped the system we have taken for granted can easily lead to exaggerated or distorted notions of the difficulty of dealing with its imminent change.
This paper undertakes an examination of the past in order to put the issues, challenges, and possibilities of digital law in some perspective. Since objects called “law books” and collections called “law libraries” have existed for hundreds of years there is a natural tendency to project present understandings of those words on that past and believe, as a consequence, that legal information technology has been stable for quite some time. It has not.
The quickest way to break through the “book is a book”, “library is a library” fallacy is by examining a few specimens. While on a hike in Yoho National Park, Canada, this past summer, I met and learned from a geologist whose research focused on lake beds. As we climbed by a number of small mountain lakes, he explained how he obtained information about the region's past by boring into the sediment beneath them, studying small samples drawn from a few locations, in detail. His technique involved inferring changes in the lake, climate, and surrounding life forms from what he found at different levels in those samples. In loosely analogous fashion, the following reflections rest on or are at least illustrated by samples drawn at a range of depths from sediment found beneath the lake called “Law”.
Before examining these samples, consider briefly what we might be looking for. The area of this exploration, law, has had a long and, may I say, fluid history, interacting with its surroundings in strong but complex ways. Its boundaries have fluctuated over time. The long range dynamic appears almost certainly to have been expansion. The following samples have been drawn not only from different depths but from different locations – including one proximate to an area we now call by the name “legislature”, another next to a growing cluster of “administrative agencies”, several from the ancient region known as the “judiciary” and a few from spots in between.
Since the inquiry concerns information technology, rather than particular law content, analysis of these samples will focus on three components of communication that appear fundamental to the legal system however it flows. These components are: 1) transmission (i.e., the straightforward process of sending out legal information from sources of legal authority); 2) access or retrieval (the process of acquiring relevant legal information); and 3) interpretation and comprehension (this involves both sorting out bogus representations about what the law is from the accurate and translating law into the terms in which life and commerce are understood by those affected). While this paper concentrates on these three elements, the specimens will surely reveal other striking features of the legal orders of their times. The inquiry, though, will not be what does a particular law fragment say but what does it suggest about the means of communication. The underlying aim will be to understand how these fragments fits into functioning legal systems, and, in particular, what they reveal of how law-related official information was, at some particular past time and place, being communicated.
I. EARLY SAMPLES
How deep should we dig? With more time, we might try to pull a sample from an oral society. There is ample evidence that law goes back that far. However, finding any observable trace of the communication elements of law in such a sample is near impossible because we are dealing with soft tissue organisms, without exoskeletons. Under the press of thousands of years few traces survive. These problems notwithstanding, useful speculation is possible. Modern scholarship has suggestively illuminated the characteristics and techniques of law and information transfer that likely operated pre-writing – the importance of repetition, of poetry, and acoustic rhythm, of narrative and public occasions, notions of justice or rightness expressed in examples, instances rather than abstract statement.1
If we probed for the oldest writings on the subject of law, that would still take us down several millennia. At that level even if we struck a cuneiform tablet, say, or similar piece of ancient law writing, we would encounter insurmountable difficulty trying to determine for whom and what purposes it was set down -- essential questions for one seeking to understand what function the writing performed. Scholars debate quite vigorously, for example, whether the codes of Hammurapi and other Mesopotamian rulers counted as law with Babylonian judges.2 In other words, reliable information about sources of authority and how law was communicated during this period are missing.
Because of these concerns, this paper's samples begin at a much more recent level. I've chosen one of great turbulence and therefore special interest, the onset of print. From the early days of printing, one can find both intact specimens and, significantly, sufficient information about the surrounding legal structure to draw conclusions about how they were used.