Law as a singular social phenomenon
Law as a singular social phenomenon.
Institute for Law and Informatics
Faculty of law
Law is a singular social phenomenon. It affects each and every one of us. It interests each and every one of us. It is easy to talk about; it is easy to write about. And it is easy to criticize. Law and justice do not always go hand in hand, however. The work we do and the tools we use to determine what is right and what is wrong are inadequate. In the modern constitutional state, law and justice should coincide as closely possible. This is one of the fundamental requirements of democracy.
The principal way in which we, as a society, pursue, articulate and realize justice is to draft and enact laws. Laws are codes that impose obligations in various ways. The world we live in is a world of legal codes. There is no shortage of laws, and more are being enacted as we speak. This is a problem. In a democracy individuals should know the law. This is a sound principle. Otherwise we would not be living in a democracy.
At one time, it was thought that open information networks required no regulation. That is, information space would be a realm of freedom. This was a noble enough notion before open information networks became an infrastructure of and for the masses; this is what they most decidedly are today. The information highway was a good slogan in its day.
Regulation of infrastructure is an exceptionally difficult form of regulation. The rationale for it must always be grounded in the social contract and basic rights. Yet this has been largely forgotten when enacting provisions that govern open information networks. Convergence has yet to reach to the level of basic rights.
Lawrence Lessig has proposed that we invert the perspective to view programming code as law. This is the correct point of departure. It is in fact a good example of how science should carry out its critical function in society. What happens after that is more problematic. It is easy enough to write about law.
But if we keep a close eye on the position of information networks as part of society’s infrastructure, the crucial role of programming code becomes apparent. Open- and closed-source code are both important in legal terms. And – as I will argue – it is the regulation of open-source code that is the priority. It is a crucial step towards the goal of keeping democracy simple.