E-legislation: law-making in the digital age.

• Author: Howes, David

This article takes a communications approach to law. The author argues that the formulation, dissemination, and reception--as well as doctrinal notions--of legislation are shaped by the prevailing mode of communication. Three such modes are distinguished: oral, print (or typographic), and digital (or electronic). The doctrine of legal positivism is shown to derive from a text-based communications order. The legislative ideals associated with this doctrine, such as generality, promulgation, clarity and absence of contradiction, and top-down authority, all reflect the imprimatur of the printed text. In pre- and post-typographic (i.e. oral and digital) communications orders, the predominant legislative values are flexibility, participation and accessibility, contextuality, and multicentric authority. These tenets are summed up by the notion of legal interactivism. The author shows this notion to be motivated by the ubiqulty, multisensoriality (or organicity), and instantaneous-interactive quality of communication in both the oral and digital modes. It is for this reason, the author argues, that the best way to envision the future of legislation is by recurring to the model of law in pre-modern oral societies. Two such models are presented--the corporeal model of the Inca Empire and the gastronomic (law as feast) model of the Witsuwit'en--and their implications for conceptualizing lawmaking in the digital age are discussed.

L'article examine le droit en adoptant une approche du champ des communications. L'auteur soutient que les modes de communication dominante modelent la formulation, la dissemination, la reception ainsi que les notions doctrinales de la legislation. Il distingue trois de ces modes de communication : l'oral, l'impression (ou la typographie), et le digital (ou l'electronique). La doctrine du positivisme juridique decoule de l'ordre des communications fonde sur les textes. Les objectifs legislatifs de cette doctrine telle la generalite, la promulgation, la clarte et l'absence de contradictions et l'autorite hierarchisee representent l'imprimatur des textes imprimes. Dans les ordres de communications pre et post-typographiques, c'est-a-dire l'oral et le digital, les valeurs legislatives predominantes sont la flexibilite, la participation et raccessibilite, la contextualite et l'autorite multicentrique. L'auteur etablit que la notion d'interactivisme juridique, resume par ces doctrines, est justifiee par l'ubiquite, la multisensorialite (ou l'organicite) et la qualite instantanement interactive dans les formes de communications orale et digitale. L'auteur suggere ainsi que referer au modele de la loi des societes orales pre-modernes constitue la meilleure facon d'envisager l'avenir de la legislation. En presentant deux modeles de ces societes, soit le modele corporel de l'Empire Inca et le modele gastronomique des Witsuwit'en (la loi en tant que festin), l'auteur explicite leurs consequences pour la conceptualisation de la legislation a l'ere digitale.

Introduction I. Charting Cyberspace II. Legislation in a Digital Age III. The Cyber-Village IV. Governing the Electronic Tribe or Feasting on the Law Conclusion Introduction

This article explores the iconic implications of the materiality of legislation, or law's "embodiment" as digital versus printed text in the network era. With Desmond Manderson, I am interested in how one can "illuminate both the meaning and force of law" by being "sensitive to the form and imagery of legal texts." (1) Framing the issue of law's expression in this way puts the medium through which legal norms are communicated before the articulation of the norms themselves in what can prove to be a highly instructive manner. As regards electronic communication, for example, digital texts may be seen to evoke a different understanding of authorship and authority from printed texts. Digital texts have the potential to be interactive, whereas there is no back and forth between sender and receiver with printed texts. This makes the former appear more collaborative than "authoritative" (in the conventional unidirectional sense that a printed text displays). How much does out common-sense notion of the (top-down) authority of legislative acts depend on their form as printed texts? Forget the doctrine of legal positivism. How will out understandings of the force of law have to change to accommodate the authorial and other implications of the digitization of legislation?

Most of the books and articles regarding law and cyberspace are concerned with how existing legal rules may be adapted to suit the particular features of the Internet. (2) The assumption throughout this literature is that standard forms of legislation will continue to hold in the "real world". Those who take this assumption for granted seriously overlook the influence that Internet use will likely have on ways of thinking about government and the law even outside cyberspace. Indeed, I want to argue that the implicit normative structure of Internet communication has already had a profound impact on the form in which legislative activity is conceptualized and received by those whose behaviour it is intended to govern. Moreover, I consider that the very distinction between cyberspace and "real" space will become less apparent and important as digital forms of expression come to pervade our rives and consciousness, and the whole world becomes a cyber-village.

It has been suggested that the network era, with its dynamic and instantaneous forms of communication, actually represents a return to the tribal era, for network society displays many of the characteristics of preliterate oral societies. (3) Following up on this perceived resemblance, I want to examine how examples of law-making drawn from pre-modern societies may provide models for legislative activity in cyber-village of postmodernity. As cyberspace becomes more interactive, more sensuous, and more ubiquitous through new developments in network technology, the way in which legislation is conceptualized and experienced may become less and less textual (i.e. informed by the icon of the statute book) and more like a song, a dance, or even a feast--all traditional forms of legal expression in oral societies.

The argument of this paper can be summed up as follows: both the construction and dissemination of legislation tend to be inflected by the implicit normative structure of the prevailing mode of communication (oral, print, or digital). (4) The paper begins by charting the distinctive features and dominant trends in the development of cyberspace, then traces the implications of these features and trends for the future shape of legislation, and concludes by finding confirmation for this analysis through an exploration of law-making in oral societies.

1. Charting Cyberspace

   Cyberspace has been called a world of electrons in contrast to the physical world of atoms. In the world of atoms things exist as objects in three-dimensional space; in the world of electrons things exist as patterns of energy. This distinction is indicative of the unique nature of cyberspace. It is only metaphorically chat it can be described in spatial terms at all.

   Consider the example of a community of Internet users, or "virtual community", consisting of, say, all of the participants in the same Usenet discussion group or chat room. In the physical world communities have customarily consisted of people living in close proximity to each other, A virtual community, however, may consist of people living in many different locations who never have any physical contact with each other. Even though the members of such a community are widely dispersed geographically, they can neverthless enjoy instantaneous communication due to what has been called "the collapsed space-time of the Web." (5)

   Just as computer-generated cyberspace has created a parallel universe of virtual locations, so has it created a parallel realm of virtual selves--that is, a space in which "You are not your body", in Douglas Coupland's phrase? Internet users cannot enter cyberspace with their physical bodies, but they can transmit body images, and the image that a user presents in cyberspace need in no way correspond to his or her actual physical body, A male user, for example, may present himself as female to his Internet companions; a child user may present herself or himself as an adult. Other aspects of personal identity, such as character, disability, or ethnicity may similarly be altered in Net communications. Users usually have little possibility to verify the actual identity of the persons with whom they communicate on the Internet--or even where they reside, since country codes (such as ".ca" for Canada or ".uk" for the United Kingdom) do not reveal a discrete physical location within the country concerned. Cyberspace is therefore a world of virtual selves with no fixed addresses.

   Many proponents of Net society have taken this characteristic of cyberspace to be one of its most liberating features, arguing that the virtual identities of cyberspace allow people to escape the limits imposed by the particular physical and cultural conditions of their embodied realities and to present themselves as whomever and whatever they wish. In cyberspace everyone participates as equals, while at the same time an infinity of experiments with self-fashioning is possible. It has also been claimed that the Internet helps users to overcome the isolation of contemporary lire, where many people do not interact with their neighbours in their own geographical communities. With the Internet, so the argument goes, it has become astoundingly easy to find a community of like-minded individuals no matter what one's personal interests may be. (7)

   The peculiar characteristics of life on the Internet are likely to become increasingly normative as computer use becomes more integrated with everyday life, or part of a "seamless web". For...