The establishment of a new legislature with power to legislate for anancient and distinctive system of law is in itself a remarkable event. Thedecision to provide the new legislature with a purpose-built Parliament buildingon a cleared site creates the ideal opportunity to build into the Parliament thefullest capability for applying information technology to all aspects oflegislative business and in all phases of legislators’ (and their staffs’)performance of their duties. Such a new legislature is created by the ScotlandAct, and Secretary of State Dewar has announced the winner of the competition todesign the new Parliament House at Holyrood – appropriately enough, a Catalanarchitect Enric Miralles working with an Edinburgh-based team.
A Legislature for the Information Age?
It seems likeliest, therefore, that a new legislature in a new building willcome into being properly equipped to take advantage of the informaticsrevolution, with adequate internal networking and external interfaces and allthat could go to facilitate open and well-informed debate, and to secure thatall citizens, in remote as much as in near parts of Scotland, can keep abreastof the legislative and governmental debate and can communicate opinions to theirlegislators. The opportunities for running an efficient and openly democraticlegislative process are exciting.
But apart from questions of process there are possible questions of output.The Scottish Parliament, when it begins its business, will have an extraordinaryopportunity: the opportunity provided by a blank page. As a legislator, itcommences with a statute book wholly unwritten. Of course, it will not beoperating in a legal vacuum. On every topic on which it can enact laws, there isalready some extant body of law. So the pages of the blank statute book willfill up over time with laws that take effect by amending, or repealing andsuperseding, the laws by which Scotland is currently governed in those domainsof law that are to lie within the legislative competence of the ScottishParliament – or that may subsequently accrue to it.
The existing body of law has been shaped in part by the technology availablefor promulgating the law, namely the printed document, the printed book.Accordingly, the legislation takes the form of a chronologically ordered seriesof statutes, a book for every year, a chapter of the book for each separate Actpassed in the year, each chapter subdivided into sections and subsections.
To find out what the law is on any topic, you must therefore interrogate thestatute book, working in inverse chronological order – what is the most recentAct on the subject that concerns you, how did it modify previous legislation,how much of that legislation is still in force? And how much from an earlierperiod was carried forward by the earlier Acts? And so on. Also, of course, youneed to know about judicial precedents – how have the courts interpreted theprovisions of the legislation you are interested in, and what is the generalbackground of common law (custom, precedent, and legal doctrine) with which thestatutes you are reading interact? A further complication arises from the factthat many statutes confer on ministers or local authorities or others a power tomake subordinate legislation on given topics, and this is also collected intochronologically ordered printed series of `statutory instruments’ and the like.
Under the influence of the technology of Gutenberg, the law by which we livebears very markedly on the face of its printed repositories one very importantfeature: its diachronic character. A legal system is strung out in time, and itscontent at any moment of time depends on the output of a complex historicalprocess. This is because of the way in which, as it has been said, law`regulates its own creation’, having thus a dynamic character. The law is whatit is now because law at an earlier time enabled somebody by an act or a seriesof acts strung out in time to mould it into the shape it now has.
But law has another vital characteristic. A legal system is something that atevery moment in time we envisage as having a synchronous or momentary existence.As a result of all the relevant acts strung out in time, just at this moment intime there is a complete and (in principle) coherent body of law located in aset of conceptual sources discoverable through oral, or handwritten, or printedor other repositories.
This momentary system matters urgently for law-in-practice. What are myrights now? What are my liabilities now, civil or criminal? One reason forprofound complexity and need for high expertise in law is that the constructionof the momentary system or systems that we require for answering such questionsrequires a highly skilled reading of the diachronic record, aided by textbooksand learned articles that themselves have tried to apply similar skills to acompendious view of a certain legal topic.
What then about the new technology? Could a statute book shaped byinformation technology rather than Gutenberg technology not adopt a whollydifferent principle of order. Instead of having chapters strung outchronologically, could it not from the beginning be designed thematically, withchapters such as property, persons, obligations, actions or other more modernthematic subdivisions? Each act of legislating would then take the form ofinserting material into a chapter, or deleting matter from it, or changing it insome way. The output would then appear always, or perhaps from some agreedsessional date for change, as a single coherently ordered statute book, arepresentation of the current momentary system in its statutory part.
Diachronicity
Of course, this would not elide the other vital element in law’s character,its diachronicity. At any moment in time, my rights likely depend not only onhow the law now stands, but on how it stood at some earlier moment or moments intime. To produce an always up-to-date statute book that deleted or obliteratedwhat went before, casting it into an Orwellian memory hole, would be a disaster,and in an important way destructive of the rule of law. My rights or myliabilities must at this moment be judged, not only by reference to the now-law,but primarily by reference to the then-law, the law as it stood at the time ofoccurrence of acts and events from which rights or liabilities are claimed toflow.
Critical therefore would be maintenance of data and information in a formsuch that changes affecting any section of the book as a whole can be tracedback from the current form, and that any earlier state of the whole book can bereconstructed on demand. Even in the present state of the technology, thereought to be no problem about that. Is there then a problem from the legal pointof view?
One objection that could be raised is that the conception of a legal systemas a synchronous body of laws-in-force is a monstrous misunderstanding of law’scharacter, a chimera of legal positivism’s dark imagining. This objection, drawnfrom the work of Ronald Dworkin, would stress law’s intrinsically `interpretive’character. The interpretation of any act of legislation or other legalinstrument depends crucially on reading it as part of an unfolding series ofhistorically located attempts to elaborate a scheme of civil and criminaljustice for members of a polity who, at least in principle, regard each otherwith equal concern and respect. Trying to read the law in terms of ordinarylanguage semantics as a text in an always-continuous present is simply a way ofdenaturing the law – every legal provision comes as part of an historicalprocess, and each act of judicial or scholarly interpretation amounts, as itwere, to adding another chapter or part-chapter to a kind of `chain novel’,produced by many authors each of whom has due regard for the integrity of thewhole product.
The only reasonable response to this point is a kind of confession andavoidance. The confession confesses that law must indeed always be interpretedand understood in its diachronic character, so that each provision has meaningonly in the context of the whole, where the whole is not a series of discretemoments but a process extended in time. The avoidance says that nothing in theproduction of a more logically arranged statute book would conflict with this,provided that, as suggested, the historical record could be traced out afteraccessing the contemporary provision by way of statute law in force in thetopically-structured always up-to-date statute book. In fact it ought to beeasier, not harder, especially if adequate interfaces were maintained to lawreports. Current UK developments give a hopeful pointer in what is here proposedas the right direction.
| 1 | This is a revised text of the Annual Lecture to the Scottish Section of the Society for Computers & law, delivered in Edinburgh on 18 June 1998. I am most grateful to the Chairman, Mr John Sibbald., for most helpful criticism of the earlier version of the paper, and to members of the audience on 18 June, particularly Professor Alan Paterson, for raising questions that have led (I hope) to improvement. Faults remaining are mine only. |
