Life of the Law Online

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* Article: The Life of the Law Online by David R. Johnson First Monday, Volume 11, Number 2 - 6 February 2006

URL = http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1314/1234


Abstract

"I would like to suggest that the law (a legal system, generally, such as the U.S. legal system as we know it) has a life of its own. The law is an organism rather than a mechanism. It is alive. And I want to explore the implications of this for the development of law(s) to govern the global Internet." (http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1314/1234)

Excerpt

The rise of netizenship

David R. Johnson:

"It may be that we can repair the current legal organism — more accurately, create a new one — by telling a different meta–story, catalyzing the creation and repair of a new legal metabolism. But, given the widely differing values found around the globe, and given the widely differing populations occupying many different online places, there will not likely be just one new meta–meta–story, one new legal organism. That’s great news. If we treat the people primarily affected by the rules of particular online places as the citizenry whose consent to particular sets of rules (governing that online space) should be deferred to, we’ll begin to have a real competition among rule sets, at least online. And evolutionary forces may be able to guide the competing legal organisms that do arise online towards optimal levels of legitimacy and complexity. Excessively rigid regimes will lose adherents, rule–less random frontiers will be avoided by most, and regimes that spillover unacceptable adverse impacts on other groups will be shunned. We’ll see the rise of a self–causing legal order composed of systems that adopt goals that serve the values of those they regulate, without excessively imposing those goals on others.

Traditional liberals look upon the evolution of diverse rule sets online with horror. They fear the loss of the single “civic” perspective that guides government — contemplated as a single geographically defined sovereign — towards the “public good.” Evangelical conservatives and security hawks are just as appalled by the prospect of multiple, differing rule sets chosen by means of deciding to log onto one online place rather than another. Yet neither would support the creation of a global state they might not run. Neither can explain why the collective action of online groups to make and consent to rules to govern their own actions is any less “civic–minded” than voting for a local sheriff offline. We’ll make rules for online life by choosing among competing regimes, rather than by voting for particular officials within only one legal system.

Rosen’s perspective clarifies various previously imponderable questions regarding jurisdiction and the legitimate source of rules for global online activities. First, the act of logging into an online space and agreeing to abide by its rules is every bit as much a “legal” action as voting — it just doesn’t happen to be a part of the same legal organism we have been used to being embedded in. By participating in a variety of online legal regimes, we are collectively telling and repairing a legal, civic story — several of them, simultaneously — just not the single story we have told before. By treating the intangible boundaries around online spaces as more significant than the geographic boundaries around countries, we are redefining the social cell(s) in which we have our (online) legal/civic life. Because these cells must now compete, they may well become healthier than was our prior legal organism. These cells may even find ways to coordinate their actions to become a new kind of multi–cellular legal/social animal — unlike anything we’ve seen before. They will certainly seek more diverse goals, make more varied rules (better tailored to the shared goals of participants), invent more interesting roles.

A widely accepted part of our previous legal stories has been the sharp distinction between the private and the public, the selfish and the civic. The new legal organism(s) of the Internet will not support this distinction, because no online population can give any online government an exclusive right to the legitimate use of (online) force. Netizens can agree to allow a sysop to terminate their online identity within a particular virtual world, for example, if they break the local rules. But the laws of other online spaces will not defer to those decisions if they provide a haven for actions that harm outsiders. Netizens can agree to abide by the rules of an online space when they go there. But they don’t have to log in. In consequence, the new legal systems of the Internet will not be quite as powerful as existing governments. Groups of netizens will be able to create new spaces, with new rules, any time they want. When acting in groups, for their mutual good, they will be engaged in actions more like self–government than purely private action.

One accepted subtext of the current legal story is the idea that robust organizations — corporations and schools, political parties and unions — owe their existence to the state. Our law says it has “deemed” such organizations to be legal persons, nervously suggesting that this is just a convenient fiction. That perspective treats organized groups as if they were mere mechanisms — social artifacts that could be assembled and disassembled by a central engineer. Rosen’s insight makes clear that robust organizations are themselves organisms, nested inside the state. They are self–entailed, just like the overall legal system. And they develop and evolve, with lives of their own, when conditions are right. They repair their internal structures by positing their own immortality! Like any organism, they have to figure out how to co–exist peacefully with an external environment (and how to keep their own metabolisms going). But they are not structurally (causally) different from other legal organisms. They have internal rules, defining differentiated roles, all in service of goals that have in just as real a sense been consented to (collectively created) by an internal citizenry.


As the meta–meta–story of our current geographically–based legal organism breaks down, it will become clearer that all social order arises from this same basic mechanism. And it will become clearer that we need new types of robust organizations to serve all of the goals we have as individuals and groups, globally — not just profit–seeking corporations on the one hand and public good seeking governments on the other. We are on the brink of a Cambrian explosion of differentiation of legal organisms. We should allow lots of new forms of self–governance and collective goal–seeking to arise. We can’t engineer legal systems from the outside. But we can create the conditions of mutual tolerance that will allow the most productive new forms (the ones that best serve shared values of participants and do the least harm to outsiders) to prosper. Legal systems may have lives of their own. But we can all tell a meta–meta–meta–story — about the relationships among legal systems — that promotes and allows diversity. We can promote a healthy ecosystem by giving up the idea that there is only one legal system for any territory and giving up any efforts to impose the legal systems we prefer on others who mostly mind their own business. We can insist on congruence rather than sovereignty."


About the Author

"David Johnson is a graduate of Yale College (B.A. 1967, summa cum laude) and Yale Law School (J.D. 1972). In addition, he completed a year of post–graduate study at University College, Oxford (1968). Following graduation from law school, he clerked for Judge Malcolm R. Wilkey of the United States Court of Appeals for the District of Columbia. Mr. Johnson joined Wilmer, Cutler & Pickering in 1973 and became a partner in 1980. He recently retired as a partner of WCP and is devoting substantial time to the development of new types of “graphical groupware” software products. His previous legal practice focused primarily on the emerging area of electronic commerce, including counseling on issues relating to privacy, domain names and Internet governance issues, jurisdiction, copyright, taxation, electronic contracting, encryption, defamation, ISP and OSP liability, regulation, and other intellectual property matters. He helped to write the Electronic Communications Privacy Act, was involved in discussions leading to the Framework for Global Electronic Commerce, and has been active in the introduction of personal computers in law practice. Currently, he is a Visiting Professor at New York Law School where he teaches Cyberlaw." (http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1314/1234)