Jusletter IT

The transnational flow of legal standards seems no longer to be a questionable issue, but rather looks like an undeniable fact at the centre of a vivid discussion within the international community of jurists, scholars and Courts¹ .

In the 1990s the crucial discoveries were that national judge-made laws were more coincidental than they were expected to be (because of cultural and linguistic barriers) and that such coincidence, initially unconscious, was becoming conscious and active² . In recent years the situation moved very quickly to a general acceptance of the fact that such a legal flow exists, that it has a transnational dimension, that jurists and judges have to face this «new way of doing their job» and that understanding it and taking position on it is unavoidable.

Although the problem is to some extent common to all fields of law, in some areas traffic is undeniably heavier. Law and biotechnology, law and converging technologies (such as biotechnologies, neurosciences, nanotechnologies and informational technologies), law and economics are the most troubled fields. All this is largely due to the increased universal attitude that technologies and economics have showed. From the point of view of law this means that the question of legal regulations of conflicts arising from these areas immediately has a worldwide dimension.

We have now a vast bibliography describing the different aspects of legal globalization. What has been relatively overlooked is the question how to conceptualize all that and what could be the disciplinary field, which could be able to explain what is happening and to include it in a consistent body of principles and law. Some unavoidable questions are the following: what should be done in the present situation? Should we continue listing the exceptions affecting the ordered world we were used to and missing ancient times? How the globalization of law (which is usually described in fields where it is matter of human rights or private economic transactions) can work in fields like war or preventive war (on terrorism), where the role of States remains essential?

The basic question this paper deals with is whether and how a thread of consistency can be found within the multifaceted and heterogeneous worldwide reality of transnational law. Firstly the international scenario of crisis of Nation state and law is outlined; secondly main theoretical attempts of explanation are presented as well as the disaggregation of law into single pieces of law likeelementary particles ; thirdly the need for a new conceptual framework is outlined and tentative explicative models are discussed (whether science may work as an explicative model); fourthly, the project for a laboratory bench is presented. On such a bench some assumptions and findings, which the present status of the scholar debate has shown, can be observed and experimented under controlled conditions. This is the project of The Multilanguage Archive on the Law of Science and New Technologies – ALST³ .

The transnational flow of legal standards is not (at least under some respects) a novelty. Philip Jessup coins in 1956 the expression «transnational law» and includes in it «all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories»⁴ .

What nowadays is new is the awareness the actors have developed since the 90’s of the last century about the reality and possibility of an open dialogue between different legal systems and judges from different countries. Furthermore the spread of supranational documents and instruments is fuelling this new attitude. For example, in the field of science and law parliamentary acts have regulated many aspects of women's and men's choices regarding their own bodies. Codes of conduct have been enacted in many fields: we may remember, in the field of experimentation on human beings, theGood Clinical Practice or the new issues of theDeclaration of Helsinki or the documents by theWorld Health Organization . They all lay down greatly important regulations, although not in a legally binding way. In addition, a new wave of solemn declarations has sprung up from international institutions. TheEuropean Convention on Human Rights and Biomedicine (Oviedo, 1997) is one of these, but not the only one. Let's remember theUNESCO Genome Declaration (1997) and theCharter of Fundamental Rights of the European Union (in force from December 2009). Significantly the Charter puts issues such as personal integrity, informed consent or cloning in its first articles.

As a matter of fact cultural and national barriers (and long lasting linguistic barriers) have not prevented the formation of what seems to be a sort ofcommunis opinio (a shared set of legal standards) between judges and jurists from widely differing legal systems.

In more general terms, we may remember that the Constitution of the Republic of South Africa (1996) explicitly authorizes judges to «consider foreign law» when interpreting the Bill of Rights⁵ and is a real novelty in the worldwide landscape of national Constitutions, a novelty of which South Africa is proud.

Even the country, which shows an opposite attitude toward foreign law (the USA), paradoxically confirms the same reality. The questions Norman Dorsen put on the table of a widely known debate between Justice Antonin Scalia and Stephen Breyer are extremely clear:

Such a list of questions might be accepted as universal, once U.S. is replaced with whatever other country. Generally speaking we could say that a huge body of legal literature in USA and (with a more open-minded attitude) in other countries witnesses this new reality⁷ . The attitude about such a magmatic worldwide reality is currently a crucial divide in international legal debate. Harold Hongju Koh argues that the distinction betweennationalists andtransnationalist has replaced in USA the traditional betweennationalists andfederalists and outlines it as follows:

The story of the European countries and of the EU as a whole is a story in the story of legal and judicial globalization. If we look at the EU as a real fully existing political entity, we’ll probably overestimate the real status of the Union and, at the same time, will reduce all the legal flows from/to the EU and States and among States as a national «internal» matter. On the other hand, if we stress how much the EU lacks for being a full political entity, we’ll probably be closer to its reality of a «political process» and, at the same time, the same flows of legal standards and rules will come into sight as an extremely interesting «regional globalization» in an area whose main problem seems to be the extremely high number of languages spoken within (a glance at the EU website home page is more instructive than any other discourse). In addition, the co-presence of different levels and kinds of law makes uncertain the disciplinary set of rules which are appropriate to them, if International law (the EU is still a set of international treaties) or European law (enacted according to the treaties) or Comparative law (being national laws not yet totally integrated and not to be integrated in all cases) or national and/or EU case-law and so on.

As a matter of fact Europe has the extraordinary chance to be an experience of small scale globalization, which cumulates thefederalist and thetransnational dimensions in two directions: within the same European Union (due to the co-presence of federal and inter-national or trans-national aspects) and toward the world, similarly to the USA and other non European countries. Looking at this reality with the old lens of the legal traditional categories would lead us to write down a long list of exceptions and to increase our level of theoretical frustration. Indeed, if we turn our eyes to the Westphalian concept of sovereignty as «the legal identity of a state in international law» and as a «concept which provides order, stability and predictability in international relations since sovereign states are regarded as equal, regardless of comparative size or wealth» and as «the capacity to make authoritative decisions with regard to the people and resources within the territory of the state» we could conclude somebody has thrown us in the wrong planet⁹ .

Assumed that the transnational flow of legal standards stands as an undeniable fact, the further question is about the ways the legal scholarship has followed trying to outline a conceptual frame, able to encompass the new symptoms, and to explain them in a hopefully consistent way.

Indeed many attempts have been done according to traditional disciplinary approaches. An incomplete and provisional list encompasses the Common Law, the Global Common Law or General Common Law; the Constitutional Law¹⁰ or Comparative Constitutional Law and similar labels (as Comparative Constitutionalism or Constitutional Comparativism)¹¹ . A further attempt comes from transnational approaches, i.e. a group of disciplines whose more common labels are transnational law, transnational legal process¹² , international law, natural law¹³ , general common law, ius gentium¹⁴ or consuetudinary law . Among those approaches Anne-Marie Slaughter’s transgovernmentalism is perhaps the most interesting description of the worldwide situation. The main points of her position are as follows¹⁵ : the state is not disappearing; it is disaggregating into its separate, functionally distinct parts. These parts – courts, regulatory agencies, executives, and even legislatures – are networking with their counterparts abroad, creating a dense web of relations that constitutes a new, transgovernmental order; transgovernmentalism leaves the control of government institutions in the hands of national citizens, who must hold their governments as accountable for their transnational activities as for their domestic duties; judges are building a global community of law; the global community of law emerging from judicial networks will more likely encompass many rules of law, each established in a specific state or region (no high court would hand down definitive global rules).

The result is the nationalization of international law. Laws are binding or coercive only at the national level. Creating a genuinely new world order in which networked institutions perform the functions of a world government – legislation, administration, and adjudication – without the form. The activities of the many different types of courts do not conform to a template of an emerging global system in which national and international tribunals play defined and coordinated roles. They take different shapes according to the kind of relations they happen to be involved in:vertical relations (national courts and supranational courts) andhorizontal relations (between courts of the same level),constitutional cross-fertilization andmeeting of judges face to face.

Anne-Marie Slaughter’s approach has several advantages: it is realistic and outlines a sort of open theory, rather than a template of a centralized universal legal order; it does not imply a hierarchical organization of courts or other institutions; the constitutional cross-fertilization is only one of the aspects.

Transgovernamentalism, as an approach stemming from international law, is extremely helpful and explicative with regard to institutions, subjects and agencies. What we need now is a further step and an investigation in the field of legal systems, the sources of law and relations and hierarchies within them. In other words, if Slaughter talks about disaggregating of nation State we have to focus on disaggregating of law sources, bodies of law and their internal hierarchies. The two issues, although closely related, are different in kind and require different conceptual tools and frame. The first question is as follows: may we say that legal systems are disaggregating and what does it mean? If we think about civil law systems we know that since early or late Nineteenth Century they have laws grouped in codes, modelled on the Napoleonic Code. Even though the Napoleonic code was not the first legal code to be established in a European country with a civil legal system – it served as the model for the codes of law of more than twenty nations throughout the world¹⁶ .

Codes are conceived as bodies of law organized in a rationalistic way, inspired to Roman law and Justinian's Corpus Juris Civilis. No matter how much true (in the sense of historically correct) was the idea of Roman Law that inspired the drafters, it is a clearly rationalistic approach. In this light, the conceptual distance between the code-based legal systems and the case law systems is shorter than usually supposed. If we look at the Common law side we might notice that Commentaries are often inspired to a strong rationalistic approach. Sir Edward Coke, the jurist whose writings on the English common law were the definitive legal texts for centuries, in his Commentary Upon Littleton (1628), strictly ties law and reason:

Thus, each piece of legislation, legal rule or judicial binding precedent is supposed to have a place (Code, Commentary or case book) where it has clear relationships with the system as a whole and other (broader or narrower, superordinate or of lower rank) rules. In this light the enduring opposition between the rationalistic and the pragmatic (or realistic) approaches to the law probably is the most important divide in the law and crosscuts even the civil law – common law divide.

If we look at the claim for harmony, completeness and comprehensiveness of old codes and commentaries and compare that claim with the present status of law, we may notice that what has disappeared are not codes and commentariesper se (the Italian Four Codes are stably pitched on my desk in the Court and are still an unsuspected source of information!), but, rather, their ability to assure harmony, completeness and comprehensiveness. In other words, it seems as if nowadays (unlike in the past) each provision, legal rule, article had more lives. One life is regular (according to the place it was originally given in the code/case book/commentary) and other lives are adulterous. In these lives they acquire new meanings, new normative contents according to external sources of law, no matter if they are constitutional rules, supranational treaties, foreign legal standards or case law and so on.

One of the problems is that these intercourses, although more frequent in boundary zones (as where science or economics affect law), are increasing every day. Moreover they tend to legitimate themselves on the mere fact of their existence, while a comprehensive theory of such flows and migration of legal standards and of such intercourses is reasonable needed. If we imagine theold order of legal rules and provisions as a necklace or a strand of pearls (where each pearl is arranged in a proper way in the order of the necklace) the present situation of law looks like the necklace Cecil Balmond, the famous architect and engineer, talks about in his workInformal :

In the light of Balmond’s metaphor, the disaggregation of legal systems leaves on the ground a huge amount of single pieces of law, of bricks, of elementary particles¹⁹ , which are able both to work in their original context and to refigure in different moments. Thus they are definitely alloweda charmed life .

What seems to be the main novelty is not the subversion of the old legal systems or their disappearing, but, rather, the co-presence of the old system (which still perfectly works in non boundary zones or in fields that are closer to democratic political legitimacy) and several different kind of interactions (old and new) corresponding to different and unstable hierarchies of laws.

The need for a new conceptual framework is reasonably high. Such conceptual framework should be able to explain and encompass the following aspects of the present transnational legal experience:

• Being neither unified nor uniform, in space and time (fragmentation).
  
• Being not hierarchically organized, at least, in a stable and binding way.
  
• Being no necessarily directional²⁰ .
  
• Having many different in kind actors with different legitimacy.
  
• Being science (technology)-driven.
  

Again the problem is whether there is a thread of consistency within such a multifaceted and heterogeneous reality. Firstly it is worthy to clean up the table of some false problems. To all people who, mainly in civil law countries, are scandalized for judicial activism and the fact that judges play a role in the creation of law it is really easy to reply with the words of Hans Kelsen, in a clear passage of hisGeneral Theory of Law and State (1945):

However Kelsen stresses that the Courts may also be creators of general norms, in countries where the judicial decision has a character of a precedent. Thus, according to his theory, there will be no scandal at all if courts create individual or even general norms,on the condition that the legal order, of the place where the court is operating, authorizes such a conduct.

At first glance such a norm does not exist or does not show itself, at least at the level of the legal order of a single state. Indeed, the problem of the legitimacy of the judiciary²² (and of the rights of democracy), even if correctly posed, cannot be solved within the horizon of the concepts forged in the traditional arena of the nation state and we have to turn to a broader (if not universal) level. In other words the international patchwork of states, institutions and transnational judge-made-law becomes richer and more complex everyday and is waiting to be further explored.

In Europe, for instance, the constitutional framework of the Union is under discussion and, as a matter of fact, the European constitution is a building body. What is the legal order to refer to in Europe among the throng of national laws and Constitutions, EU treaties and rules, case law of the European Court of Justice and so on? Are we sure that courts that eventually refer to precedents from other European countries or, for instance, toThe Declaration of the Rights of European Citizens are, by definition, outside thelegal order ? On the other hand, it is not the first time that courts conceptually exceed the boundaries of the national legal order which they are embedded in. Do we have to recall how in ‘800 the Italian and other European countries Courts usually referred to the France jurisprudence on Code Napoleon and when every good lawyer had in his library a copy of aTraité de Code Napoleon ?

Reviewing Anne-Marie Slaughter's A New World Order Kenneth Anderson²³ stresses how her main concept of global governance through global policy networks suffers from a lack of genuinely democratic accountability²⁴ . Other authors point out that, despite the criticism of «judicial usurpation», judicial legislation is an innate, unavoidable function of adjudication²⁵ .

Despite the scandal which all this might provoke - especially if we consider that European countries are mostly of civil law tradition - it is not so strange in the present EU reality, where, in the preamble of the EU Bill of Rights, the case law of the European Court of Justice (ECJ) and of the European Court of Human Rights (ECHR) are recognized as a source of EU constitutional law. Of course the ECJ and ECHR cannot be compared with any ordinary judge in the Union, but the clear provision (which is not common even at constitutional level²⁶ ) is enough (besides other symptoms, see above) for saying that the taboo of civil law has been formally violated.

A further, interesting question is whether the scientific way of thinking could be the solution of our search. Looking for a theory able to explain present legal world experience, some authors have assumed science as a model or, at least, as a source of inspiration²⁷ . Jeremy Waldron has deliberately used the analogy «between the law of nations and the established body of scientific findings»²⁸ :


And then


Finally

Waldron’s approach, which pragmatically assumes the law to be «essentially a problem-solving enterprise», can of course be criticized when it plainly puts lawmakers and judges on the same step (which is a worldwide and even in his country questioned issue) or when it seems not to consider the effects of his recourse to international sources on the hierarchy of sources of law (being exposed to the criticism of who, as the current President of the US Supreme Court, says that «looking at foreign law for support is like looking out over a crowd and picking out your friends»²⁹ ) or when it does not consider that one of law’s aim is to minimize arbitrariness³⁰ or when it does not explain what could work in the legal field (especially if we think at the judiciary) as the peer review system does in the scientific field.

Anyway some points are undeniable. Waldron’s proposal cannot be criticized as if the nation state and his proper law-making system were today the same as ever. Furthermore, it has to be recognized that he avoids the pitfall of the positivistic assumption of science as the realm of the truth. The opposition is not truth = science v. falsity or uncertainty = law, but rather between a worldwide engagement of scientists and a still nationally narrowed approach of jurists. Indeed, he finds unreasonable the legal reasoning being confined within national boundaries.

This is a very important point as we know that even well known and experimented scientific theories, which were traditionally considered conceptually unproblematic (as classical electrodynamics was), may reveal their theoretical inconsistency at a closer view. This implies that «truth», theoretical consistency of a theory, truth of its empirical consequences and reliability of the theory are all different things, and that even «inconsistent theories can indeed play a legitimate role in science» and, finally, that a theoretical model can be «inconsistent yet empirically strikingly successful»³¹ . The issue is extremely complex and I have neither chance nor ambition to add anything to the philosophical debate. However, from a very practical point of view, we could say that if even a scientific inconsistent theory can be empirically successful and play a legitimate role in science, then also legal standards and rules, which are less familiar with mathematically sound theories, have a chance to work and act in the international arena, of course under the rational scrutiny of the community of jurists, lawmakers, judges and citizens.

In this sense science might be a traveller companion rather than a pattern or a template. For example, we shouldn’t overlook the interweaving of scientific and legal legitimacy. As courts unavoidably use nonlegal information in support of their decisions, judges can undermine their own legitimacy when they make «decisions that deviate too strongly from the public’s understanding of the issues because the public faith in the justice of the Court’s decisions is tied to its understanding of the issue»³² , unless the legal (or factual) reasons of such a deviation are explained in a clearly understandable and convincing way.

Needless to say that all comparative or open to foreign influence approaches are exposed to the criticism of being functionalist and thus to assume that legal problems could simply be excised from their political context³³ . Criticism over functionalism, although basically sound (as political, economic, and social realities cannot be elided), should probably be reconsidered in the light of scientific and technological advances:

In short, it cannot be assumed anymore that the cultural distances (in space) between nation states are, by definition, bigger than those existing within the territory of the same state or (in time) between the moment of application of a provision or legal rule and the time of its (judicial or legislative) creation.

The need for a new conceptual framework will probably remain unsatisfied for some time. Besides the obvious limits of this paper (and of his author), it is the historical situation that makes such step ahead hard. Moreover, the expected move towards a multipolar world (which seems to be made faster by the present financial worldwide crisis) is an additional factor to be taken into account.

Thus it seems wise to adopt an experimental approach and thus to collect as much information as possible; to organize them in a frame; to observe the relationships among them; to set up a network of observers/actors in the chaos; to try to outline one or more threads of consistency in some experimental fields; and finally to go back to the starting point with the new information and start again with further explorations.

The first step is to create an experimental confined field where to observe interactions and spontaneous ways of action within the transnational domain. The University of Pavia has launched a project for The Multilanguage Archive on the Law of Science and New Technologies – ALST, which has been conceived as an experimental environment in the specific area of science and law³⁵ .

The long-term objective of ALST is to respond to the general need for a comprehensive picture: a) of the rules, which are actually produced and enforced in Europe (and worldwide) in the field of science and law, and b) of the different players involved in the production and enforcement of the law. These main objectives will be achieved by bringing together cases and materials (cases, legislative sources, regulations, main scientific and legal literature, rationale of scientific projects and so on), and by organising and making them easily accessible to Courts, scientists, jurists, regulators, firms, scholars and citizens.

The mid-term objective is to develop the Archive project in some specific sectors, such as Neuroscience and Law³⁶ , Intellectual Property Rights & Biotechnologies, End-of-Life Decisions and the Law, DNA in Criminal and Civil Law. Thus the Archive, rather than a theory, is a laboratory bench where some assumptions and findings, that the present status of the scholar debate has shown, are observed and experimented under controlled conditions.

If we go back to the above-listed critical points of the present transnational legal reality, the Archive deals with them in the following way.

Fragmentation is the result of the variety of legal sources that co-exist even within the same country. This phenomenon is very common in the EU, where the co-existence of EU, national and international legal sources often makes it hard for jurists and citizens to perform their most common task, i.e. to identify a determined law in a given place and time. The main reason for this fragmentation is that a given legal norm may have different derivations and connections based on the situation it addresses. ALST's response to this situation is to consider each case law or legislative material as «a piece of law», a sort of «elementary legal particle» (see above), which is able to establish several kinds of connections with a potentially unlimited number of similar legal particles (national, European, international or from other countries). These contacts/connections may be different in kind, level and content. They may be merely lexical, ontological, legalistic (established by an explicit provision or coincidence contained in an act), historical (established by tradition) or functional (whenever a connection «works»). The IT platform makes such connections possible and materials retrievable. Jurists may select the material they are interested in and provide them with legal sense based on a given situation and time.

The above co-existence of EU, national and international legal sources is a further critical point, which challenges the traditional (and still prevailing) concepts of national boundaries and nation-state identities. ALST is by nature trans-national. This does not mean that it intends to overcome national jurisdictions and prerogatives, but it rather attempts to link each case law or legal material to similar pieces from different countries, sources and languages. In other words, the link created by ALST (to connect cases from different countries) does not imply that foreign cases shall necessarily create binding precedents in another country. ALST's aim is simply to provide a piece of legal information to point out a conceptual possibility rather than a mandatory connection. In this sense, ALST does not simply reflect the present situation of life sciences and law, but outlines the horizon for possible developments. Although it fundamentally is a repository of law it may also sometimes work as a source, which opens interpretative paths and might facilitate the sources of law to do their job.

The system is adaptive and dynamic. There are three levels of interrelation among the different contents:Strong interrelations define the close links between two or more materials and are set by editors when materials are entered into the Archive;Weak interrelations are constructed automatically and are based upon shared classification keywords (two or more materials with the same taxonomy keywords will certainly be related);Dynamic interrelations vary continuously and unexpectedly, depending on the uses of the Archive. One of the main technical/logical concepts at the basis of this IT platform – and the main instrument used to obtain such results - is the use of complex Legal and Scientific Taxonomies to index all the Archive's content. As a result, each piece of law can be retrieved through keywords entered both in English and national languages (the latter will return fewer results, but will allow users to move on, in a further step, to a wider retrieval in English).

One of the main effects of the plurality of actors is the existence of a great variety of languages. Linguistic barriers are very strong in the legal field, as jurists, unlike scientists, who are traditionally used to communicate internationally through the same language (i.e. English), use their own national languages and have only recently developed a new attitude towards international cooperation.

ALST stores pieces of judge-made law or legislation in their original languages and creates a high degree of connectivity thanks to the adoption of a FILE CARD³⁷ (in English) for each «elementary legal particle». The rich variety of the material collected from different sources can be accessed directly by users and is available in full text and original languages. At the same time, when entered in the Archive, each «elementary legal particle» is linked to a FILE CARD in English and, through this file card, it can be linked to other sources from the same or similar sectors in the Archive. Whenever a user decides to retrieve information based on a search or a query in the Archive, results will show the content in the FILE CARD as well as all the links to any relevant material. This result is achieved through a sophisticated IT platform, which enables custom information to be duly organised and extracted.

Science (especially life sciences) and technology are having a deep impact on basic law categories, such as the concepts of individual personal responsibility, free will, privacy and so on. On the other hand, the world of the law is discovering unexpected points in common with science (see above) and is gaining new perspectives and opportunities of «cross-fertilisation». Moreover, Information Technology, which is part of the problem, is also a powerful answer to the problem itself, as the ALST IT platform shows.

Life Sciences and Information Technology (IT) on the one hand, and the Law on the other, can be deeply integrated in a way which allows to convert the current critical points of legal systems into functional elements that are able to work within a dynamic, adaptive and continuously evolving context. The law system will take the shape of an ever-changing adaptive network rather than that of the cathedral like stable and well ordered hierarchy of law sources. What could appear as a dramatic catastrophic condition of the law is, on the other hand, an exceptional opportunity for intertwining and dialogue with science and its way of managing the boundary between stationarity and chaos as an extremely dynamic state³⁸ .

Trying to answer the initial question of whether there is a thread of consistency within present multifaceted and heterogeneous reality of science and law we could say that many threads seem to be possible and each of us is given a chance of playing as an actor both in exploring new ways and bearing all the responsibility for their creation, of course.

Giorgio Manganelli outlines the human/non human condition as follows:

Why should ourelementary legal particles not have the same chance of a stone or bacterium to be an active centre, among infinite centres in the world?

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Amedeo Santosuosso serves as a Judge at the Milano Court of Appeal and is Professor of Law, Science and New Technologies, at the University of Pavia (I)
He took part in severalad hoc committee set up by Italian Government, such as the committee on «Hydration and Nutrition in PVS patients» (2000), the committee on «Transplants from living donors» (2001), the Ministerial Commission on «End of Life Decisions» (2006) and Ministerial Commission on «Spare Embryos in IVF Practice» (2009). His publications and books are listed athttp://www.unipv-lawtech.eu/lang1/founders.html .
He is among the founders and currently the President of the Interdepartmental Research CentreEuropean Centre for Law, Science and New Technologies (ECLT,http://www.unipv-lawtech.eu/ ) University of Pavia (I).

santosu@unipv.it

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