Jusletter IT

As we all know, law is being changed all the time, what is related to the changing reality. This dynamism is caused by many reasons starting from changes of history, social situation, economy and many others.

At today time there can be noticed a new model of society which has been called «the information society». It is very hard to find one comprehensive definition which describes this specific society. This modern type of society can be defined by many characteristic features like: fast dissemination of information, which is one of the most important good in nowadays world. It can even be said that our economy is based on information – its production and also dissemination. Moreover the information society strives to sustain a process of communication and also create new technologies, which may facilitate this process. T. Goban-Klas says that «the information society» is mainly characterized by a massive increase of production and spreading of information what also cause integration of all mass media, showing one huge infrastructure. He also stands out new ways of flowing of information, what he calls «information highways»¹ . Some authors say that «the information society» is dependent on information and electronic means of communication. This vision of very modern type of society was noticed and popularized more than fifty years ago, by such big names like M. MacLuhan who wrote his excellent work – «Understanding media. The Extensions of Man», in which he described our world as a global village² . «The information society» has been developing very rapidly, what was mainly caused by technological development. Industrial system of work was turned into system based on knowledge. Power of human’s hands was replaced by intellectual and well qualified workers. The appeared many scientists and specialists creating new ways of development and modernity³ . According to Manolo Castells, nowadays world is still developing and evolving. We forget everything what is old and create new and modern things which help us in our everyday life. «Digital» is a synonymous of modern society⁴ . J. Katz went even further calling today societies – «digital nations»⁵ . Mobile phones, faxes, communicators, finally the internet broke down a barrier of time and distance. Today technology gives us a chance to communicate with tremendous speed between far-flung corners of the world. «The information society» can be described from many points of view: technological, economic, social or cultural. As a result, new technologies spread in any possible way merging of different fields of science. Law as a type of science is also included in this interesting process.

There appears one very basic question, do new technologies (Information and Communication Technologies [ICT] to be exact) really strengthen or maybe weaken our law?

Firstly we must define the term – Information and Communication Technologies. ICT may be described as all possible devices, technologies, software and activities connected with servicing, processing or archiving all types of information, using digital techniques. It also includes many fields of science, for instance: informatics, telecommunication and other connected with information. As I have already mentioned, ICT can be found in many parts of our life, including law. Have a look on both sides of this problem starting from pros of implementing ICT to the system of law.

First of all it should be noticed that ICT make our communication faster and easier. As I said before, communication and dissemination of information have become very important for all people around the world, including lawyers. Today communication between professional lawyers (example: sending information about trials, sharing knowledge or opinions), between courts and lawyers (example: quick communication about cases and trials by any possible means of communication) and also between parties to the suit (quick sending of writings of a case and other information) can be crucial point for many trials and their results. Furthermore new technologies give us a chance to speed up communication between citizens and administration or government bodies. The best examples are: possibility to fill in on-line forms and send them via an e-mail to the appropriate office, on-line voting or on-line filing of taxes. Usage of digital signatures, protected data protocols or encrypted data cause that work of every lawyer is faster, easier and less expensive. Thanks to these, people are ready to solve their legal problems with assist of professional lawyers. Firstly they can afford that and secondly they are sure that the case will be solved quicker than it used to be. Thanks to e-mails, digital transmission of data or mobile phones people got easier contact with lawyers who can be quickly informed about their problems. Everyone saves time, which may be very valuable good in nowadays world, and money as well.

Secondly, ICT give us many useful tools and devices which are used by lawyers. Today computer and informatics tools are used very commonly. They are helpful during a lawsuit in a courtroom, for instance cameras which replace minutes done by secretaries, computers which allow showing varieties of evidences or allow to prepare simulations by expert witness. Witness can be examined on-line when it is not possible to see them on-site. Lawyers have opportunity to communicate via e-mails, smart phones and any other means. Moreover, they can easily get important information from the internet and extranet sources. Extranet may be content: on-line workplace, litigation calendar, archived data, briefs and other needed information, databases, news, etc. Sometimes it may be a key to provide clients with value, because extranets can easily save client’s time and money and give them the highest quality of service.

ICT give also chances to everybody to get quick and professional information from the internet about interesting topic connected with law. Today it is possible to find almost all laws, acts or statutes on the net or even ask a professional lawyer a question.

Also archiving has become easier. Now it is not needed to have large number of rooms for all acts and documents. One hard disc with written data can replace tons of papers that should be archived.

Not only professional lawyers take advantages of ICT in law but also other participants of law life. Participants mean normal people who are involved in law cases or those who have interests in law. ICT give them chances to communicate with their lawyer much quicker than it was in the past. In addition they can also do many important activities using the internet like: paying taxes, download documents, forms or communicate with public administration.

Usage of ICT by law causes that activities connected with law are faster (example – sending procedural documents via the internet instead of traditional post),

Having a view from more theoretical side of this topic it is worth considering if ICT do strengthen instrumental function of law. In my opinion today law is a kind of tool that can be used by legislators (maybe even by governments) to achieve their main goals. It is really easy to create the law that can serve our intensions. It is believed that law is good when it achieves intended aims. Instrumental function of law fulfils our deliberate activities through competent usage of our empirical knowledge. Empirical knowledge is taken from real life and when there appears ICT as very useful tool that influences almost every part of our life, so it is obvious that also modern law can implement it to its system. According to J. Habermas or M. Weber, instrumental conception of law can be considered as a type of social technique. This technique can be used to control all social process or communication between the authorities and people. Lawmakers should choose the most rational means in order to realize appearing problems, thus if ICT bring useful and helpful solution, there is no reason not to use them. It is also believed that nowadays science and technology are a very important base creating new strategies of actions, organisations and rationalisation of our societies. Lawmakers are trying to optimize current law by finding better means and changing the old ones for the new ones which are better and more useful (justified with empirical evidences). The best example is a usage of the internet and electronic post. Both appeared in our societies many years ago and became one of the most important means of communication throughout the world. It also influenced on law so that our law systems had to implement it in order to become modern, more useful and prepared for existing in nowadays reality. To sum up this part, ICT make our law modern, very relevant and valid.

But on the other hand also bad sides of implementing new technologies to law there can be noticed. First of all there can be found some problems with popularization of ICT, because some societies are sceptic to new things or there is seen very conservative way of thinking. Many people do not find ICT as a useful tool that can make our law better, what is more they think that it is wasting of time and money. Furthermore not everyone can or is able to use tools and devices brought by ICT. There appears the first problem – people who can or are able to use new technologies are privileged what may mean that ICT implemented to law cause breaking one of the most important rule, namely equality. This problem is connected with another one, noticed by M. Castells. There appeared visible stratification of the society referring to those people who wilfully and consciously decide to use ICT – these are interacting people and those who are «forced» to do that – those are interacted people. A good example is home banking based on ICT. Sometimes it is not possible to do some operations without cash machine or electronic transfer. That may cause that some people are forced to do that only this possible way (law allow banks to act this way). It may lead to a social segmentation causing social antagonisms among people⁶ . The best example may be taken from Polish Code of Civil Procedure. People who have abilities to conduct writ-of-payment proceeding using electronic means of communication can fix their case easier and much faster than ones who send their motion by post. As a conclusion it should be mentioned, that ICT come with help, but only for «chosen» part of the society. Another example is taken from banking law and electronic means of payment. Some banks do not provide cash points so the one only way to money transfer is using electronic means – for instance the internet electronic account or credit card. For most people, it is not too difficult. But there are also people who are not able to do that. Can we name it as equality to law?

Another controversial issue is «perfect search». What is perfect search? There are many computer software (used by lawyers), which give us chance to find all needed information by typing key words or a sentence. From one point of view it is a great convenience for the lawyer who does not need to waste time. But on the other hand there appears a real threat connected with certainty and effectiveness of adjudication. Mentioned problem appears especially in the common law system, when adjudication can be (or is) based of precedents. A judge who is too lazy to search the case, can easily use his software searcher in order to find similar cases or adjudications. All he needs to do is too compare previous ones with his case that is being examined by him and the new adjudication is ready⁷ . «Perfect search» brings a threat that many cases will not be examined at all, and adjudications may be issued in «mechanic way». Another important rule of law is broken – right to reliable process.

Another con of implementing ICT to the law system can also be found. It is said that ICT in law may be used to control or even manipulate people. Thanks to creating appropriate law, lawmakers can impose the way of our behaviour connected with law. There are many examples that the internet or other media are being used by governments of many countries. Have a look on China. The government of this country uses ICT to control their citizens by creating better law institutions helpful in achieving its main aims. The best example is showed when the government blocks access to most inconvenient websites. According to Chinese law, it is prohibited to search any information which is connected with freedom, human rights or even sex. The easiest way to prevent such activities is to use appropriate software which informs authorities about all types of infringements. Moreover creating of appropriate constructed regulation, lawmakers may easily impose their own way of behaviour or determine borderline between our will or freedom. Have a look on pleading motions by electronic means of communication. Doing this way, we may use forms which are created by lawmakers. So far everything seems to be good, but... Those forms may be constructed in special way, which enable filing only those information, which are wanted by the lawmaker. We may compare this situation to Foucault’s conceptions called ‘power – knowledge’ which presents existence of information giving some individuals power and advantage over others⁸ . What is more, authorities may also transmit all information the way they want. Jean Baudrillard said, that «(...) mass media are manipulating and can be used to manipulate everything we want⁹ ». To sum up this part it can be said that, ICT tools in a hand of one person cannot be good for other one. Law as a communication can also be deliberately distorted in order to manipulate the society. Thus it is seen that instrumental function of law is strengthened again but not in good way.

The next obvious problem is connected with a wealth of particular societies. Rich countries can quicker and easier chances to develop, especially in a field of science, so they can invest in new technologies and thus give more rights (possibilities) to their citizens. Poor countries cannot effort doing that. Does it mean that people have the same rights in every part of the world? This problem can be found in the European Union if we compare rich countries like Germany or France with those which are believed to be poorer, like Romania or Bulgaria.

The result of my research is not so obvious. It is very difficult to answer the question appearing in a title of my paper. As it can be seen, there are both pros and cons of implementing new technologies to law. Are there more pros than cons? It is very hard to say. Maybe there is another solution which may provide help in answering to that. Everything depends on people who use ICT. Only human’s brain can decide whether or in what way particular mean or device of ICT can be used. If lawmakers act rationally, it is obvious that modern law is as good as it should be, if not we may find many problems referring to new technologies in law.

T. Goban – Klas, «Media i komunikowanie masowe. Teorie i analizy prasy, radia, telewizji i Internetu »(«Media and mass communicating. Theories and analyses of press, radio, television and the internet») , PWN, Warsaw (1999).
M. MacLuhan, «Understanding media. The Extension of Man », 1st Ed. McGraw Hill, NY; reissued MIT Press, 1994, with introduction by Lewis H. Lapham; reissued by Gingko Press, (2003).
J. Katz, «Birth of a Digital Nation ». Wire – the Netizen, (http://www.wired.com ), April (1997).
R. Susskind, «The End of Lawyers ?», Oxford University Press, Oxford 2008
M. Foucault, «The Archaeology of Knowledge» , London, New York, Routlege (2002)
J. Baudrillard, «Simulacra and Simulaction» , Warasw, Sic, (2005)

Castells, Manuel «The Rise of the Network Society, The Information Age: Economy, Society and Culture» Vol. I. Cambridge, MA; Oxford, UK: Blackwell, (1996, second edition, 2000). 

Castells, Manuel «The Power of Identity, The Information Age: Economy, Society and Culture» Vol. II. Cambridge, MA; Oxford, UK: Blackwell, (1997, second edition, 2004).

Castells, Manuel «End of Millennium, The Information Age: Economy, Society and Culture» Vol. III. Cambridge, MA; Oxford, UK: Blackwell, (1998, second edition, 2000). 

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Dominik Góra, PhD student at University of Wrocław – Department of Theory and Philosophy of Law, associate of The Research Center for Legal and Economic Issues of Electronic Communication, University of Wrocław, ul. Uniwersytecka 22/26, 50-145 Wrocław, PL,dominik.gora@prawo.uni.wroc.pl

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