The Life of the Law Online
First Monday

The Life of the Law Online by David R. Johnson

 


 

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.

 

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What is life?

Robert Rosen has been called the Newton of biology. Yet his work is known to few biologists. How could that be so? He didn’t study evolution, the subject on which most biologists currently focus. Instead, he asked the biggest biological question of all: what makes something that is “alive” different from something that is not? How does an organism differ from a mechanism?

Rosen found the beginnings of an answer by looking at the structure of the causal relationships within living things — contrasting that with the structure of causation in mechanisms, as understood by traditional, reductionist science. In his major book, Life Itself, he explained that organisms differ from mechanisms precisely insofar as the former are “closed to external entailment”.

Any order achieved by a mechanism is created in part by external causes. Non–living physical systems are moved from state to state by forces that are, by definition, located in an external environment. Complicated machines must be made and repaired by external makers. Non–living systems that are not so fashioned inevitably run down to a state of equilibrium as entropy increases.

In contrast, the far from equilibrium order that characterizes life is the continuing and exclusive cause of itself. Organisms persist and develop by combining (1) catalyzed metabolism with (2) repair (of the metabolic catalysts) and (3) persistent (and malleable) organizational identity (essentially, catalysis and repair of the repair function) — into a self–referential loop. Life is a sort of moebius strip of causality. This introversion and self–reference creates complex systems composed of components whose functions can only be explained with reference to all the other components and all of relationships among them. You can take a machine apart and understand how its parts work in isolation. If you take an organism apart, it dies.

According to Rosen, then, “life” is a certain type of entailment structure — describable in the abstract, in mathematical terms. He explains that this type of structure allows us to answer the question why a component of an organism is the way it is with reference to what it causes, rather than what causes it. This explanation from forward–looking causation is expressly forbidden in reductionist, Newtonian science. Rosen argues that traditional physics is studying a special case — the keys it finds under its available lamppost — and that richer causal structures are the more “general”. He does not answer the question how life arose — that is a very different, historically contingent inquiry. But he does argue that, once we are dealing with something that is alive — and we know it when we see it — we have to use very different tools to understand why it is the way it is.

Again, life is very different from non–life. When machines rust and fall apart, they have to be repaired by external agents. Organisms stay highly ordered — far from equilibrium — as long as their metabolisms can find raw materials and energy sources and as long as they are not injured by forces from outside — precisely because the internal causal loops that create order within them know how to repair themselves and how to remember or determine what those “selves” want to be. Those loops are composed of components that cannot be fully understood in isolation from the rest of the living system and involve relationships that include “final causation” — explanation with reference to purpose or result.

Rosen’s insight has profound implications for biology and, indeed, for all of science. We can’t fully understand organisms by dividing them into separate parts. The relatively simple systems studied by traditional science may only be special cases in a much more complex (causally rich) universe — a universe in which the question why something is the way it is may be answered with reference to the emergent goals (self–referential organizational identity) of a larger system in which it is embedded — an emergent identity on which each component of the system, at every level of detail, has some potential to have an effect.

 

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What is law?

What does this new mathematical biology have to do with law? Rosen doesn’t limit his analysis to any particular physical instantiation of the kinds of causal relationships in question. His description of life could apply equally well to “systems” for which the substrate is not organic molecules but people and social relationships. The legal academy talks all the time about analyzing legal doctrine, “making” law and designing social organizations and legal institutions. So it would be quite arresting to learn that law is more like life than like a machine — that social organizations and legal institutions are more like organisms than mechanisms — and to discover that this means we can do none of those things. If law has a life of its own, and in some sense causes its own form of order and persistence, we should be studying its biography rather than pretending that we can design and repair its mechanisms from the outside. If law is the kind of “system” that is closed to external entailment — the kind of system that Rosen proves differs fundamentally from mechanism and machine — then notions of rational social design go out the window. We’re left with looking for environmental conditions that favor the evolution of one kind of legal organism rather than another. We’re all gardeners, not social engineers.

If law has a life of its own, and in some sense causes its own form of order and persistence, we should be studying its biography rather than pretending that we can design and repair its mechanisms from the outside.

However it first arose, law is like life in precisely the ways that mattered to Rosen when he studied living organisms. It has a metabolism, of course. It uses various forms of energy to convert facts into cases, words into rules, rules into roles, rule–based actions in roles into social institutions. More importantly, law systematically repairs this metabolism and preserves its organizational identity in the face of pressures from the external environment. Allow me to elaborate.

Law is a story we tell each other about justice and shared social values. We have to retell this story every day — it replicates and persists only insofar as we do that. Legal institutions have a robust metabolism: facts and arguments, processed by legions of lawyers and judges and legislators and regulators, are converted into ever more complex structures of rules. Legal institutions are a far from equilibrium event — they could never arise by chance and they stay highly ordered (interesting, rather than random or rigid) despite the transience of clients and citizenry and representatives, the deaths of individual lawyers and judges, the decay or increasing irrelevance of once “authoritative” texts.

Law stays highly ordered by repairing itself (replacing components of its metabolism as they wear out). It does this by means of a meta–story that we tell ourselves as we tell the baseline story of any given case. We don’t just say “this is the legal rule in this case or circumstance.” We also say: “this law is part of THE law” — meaning that we can change or replace this particular rule if it seems inappropriate in the future in light of our sense of justice or if our shared values change. And also meaning that any new law or legal institution will also be part of THE law. We don’t just say that legal rules are texts that come from courts or Congress. We also say that these institutions are still themselves even if the identity of all their individual members changes over time, even if their procedures and rules and structures change over time, even if the very mode of argument that counts as “legal” changes over time. We teach law students with the expectation that they will interpret statutes yet unwritten, serve in legal roles not yet defined, make legal moves not yet invented.

In the context of U.S. law as applied to local phenomena, we tell another story — a meta–meta–story — that completes the moebius strip–like self–referential loop required for persistent identity of the legal organism. We say that the legitimacy of our constantly self–repairing law comes from a particular source. We say: “We are the people and we are sovereign and the legitimacy of the law comes, ultimately, from our consent and our shared values.” This meta–meta–story preserves the organizational identity of law. It catalyses and repairs the repair function of the law. The citizenry, which repairs and preserves the meta–story that itself repairs and preserves the legal metabolism, is internal to the system of law. Each component of this complex system can only be explained with reference to all the relationships among all the components. Thus, there is no possibility of explaining the state of the law with reference to external causes. The law is closed to external entailment. It is not a machine built by an outsider. In Rosen’s sense, then, the law is alive.

Legal institutions cannot be taken apart and understood as fragments.

You may object that, at least in common parlance, “we” (current legal actors and the sovereign people) do “make the law” — that the law is in some sense a social artifact. Surely human, intentional (sometimes intelligent) design is what creates particular legal doctrines, client–affecting outcomes, legal institutions of all types. So, you could ask, why can’t we think of the law as a very complicated machine, engineered by social designers, rather than the kind of “complex system” Rosen describes? But this objection misses the central point. Those who create particular legal arguments and rules and institutions act as part of the system itself and, importantly, subject to its internal constraints. The point is that, when the entailment structures leading to repair and to persistent identity are in place, the causes that lead to order are a part of the current system itself. The individuals who make or change legal rules are acting in roles created and defined by the system itself. What they can do, even what they can legitimately say, is determined by the complex relationships among all of the components of the system. Their actions cannot even be understood in isolation from those relationships. Legal institutions cannot be taken apart and understood as fragments.

The law is not a machine that can be repaired by an external engineer. Its legitimacy comes from components (citizens, acting in their roles as such) that are defined within the legal system in question and and that simultaneously (there’s that moebius strip loop) determine the goals of the system itself. We are part of the metabolism and repair functions of the law only insofar as we are acting in lawful (legally defined) roles. Legal actors always act in roles, and in relationship to goals, that emerge from the complex interdependencies of all (and only) the other components of the legal system in which they participate. There is no litigant without a judge, no judge without a congress, no congress without a constitution, no constitution without a people. A corporation is a legal person because “we” treat it as such, because it has employees and agents whose roles are defined with reference to it. What any legal actor can say — even the question whether any particular person has standing to make a legal argument — is always (and only!) determined by that actor’s complex relationship to every other part of the system.

This is not to say that external forces cannot have any impact on the law. Organisms can be killed and must continuously adapt to external environments. Just so, a physical disaster can destroy the infrastructure on which the legal organism relies. Actions by people not purporting to act in legal roles can pull and push the legal system into new shapes. Assertions of power unconstrained by law (as in the case of tyranny) can destroy the system itself. But all these external forces account for potential loss of order in social institutions. They don’t account for the increase in social order that law (any given legal system) causes to emerge.

The question Rosen asks concerns only the structure of causation, not the details of any particular catalysed reaction. Rosen uses the word “entailment” rather than “causation” because the structures he studies are not limited to physical systems with physical, billiard ball forms of “cause and effect.” He is just as concerned about ideas that “entail” other ideas as he is about real physical system states that entail future physical system states. As he notes, we can only think about “systems” in the physical world by creating mental models — the task of science is to bring the entailments into our mental models into congruence with the entailments in real systems. And we can make mental models of mental systems. So it is entirely appropriate to bring his mathematical categories to bear on social institutions as well as physical systems.

Any legal system involves multiple “entailments” — certain arguments imply certain rules, various social states suggest various social organizations, particular legal rules require particular case outcomes. The question of “what follows, as a matter of law” from a particular set of circumstances is, at bottom, very much the same kind of “entailment,” for a legal system, as the causal relationships studied by science (which simply involve entailments within the data structures we obtain by measurement of the physical world). In Newtonian, reductionist physics, we look for the answer in the nature of external forces (forces outside the system under study) acting on particular sets of system states. And we break systems up into parts, confident that we can understand much, if not everything, about those parts in isolation. In biology, Rosen tells us, we must look exclusively inside the system under study in order to understand why it remains orderly. And we must study it as a whole. In this precise sense, an organism has a life of its own.

Law has a life of its own.

Because law has the same kind of entailment structure as an organism, the same is true of law. It repairs itself and defines its own persistent identity. If its future can be predicted at all, this can be done only in reference to its internal goals and relationship structures. Law and legal institutions (including “private” social organizations) may and must be explained by what they cause, not by what causes them. Law has a life of its own.

So what? Why does this apparent similarity between law and Rosen’s organisms matter? What does the nature of the source of legal order imply? First, we have to recognize that we cannot analyze particular portions of the legal system in isolation from one another. Second, we have to admit that legal institutions can’t be designed in the abstract and should not be restructured by those who are not themselves embedded in legitimate roles within the legal system in question. Third, we must acknowledge that legal systems, as organisms, may die when the meta–stories and meta–meta–stories that repair them and preserve their identity cease to function.

These three fundamental insights translate into lessons for important social and legal dilemmas of our day. The first helps us understand the origins of and find a cure for the excessively complicated regulatory and statutory structures we have created. The second provides a useful caution against undemocratic or illegitimate forms of rule–making. The third elucidates the impact that the Internet may have on current legal systems and suggests new ways to rethink global jurisdictional questions and the relationship between public and private social order. Rosen’s insights suggest new ways of thinking about how to produce an environment conducive to the development and evolution of much healthier legal organisms.

 

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Too much law

It is a commonplace that the law has grown too complex for anyone to deal with. Statutes and regulations have proliferated to the point that no one, not even experts, can hold them all in mind, much less provide a consistent, theoretically satisfying, gloss. Expenditure of energy (money) to drive a case down to any given scale in the legal fractal can produce just about any tangent, any result. In consequence, law has become a form of force — it’s invocation is often a use of power rather than an appeal to justice.

How did this happen? The fundamental reason is that law–makers tend to think about each problem they confront in isolation. They think of themselves as designing just a piece of a social machine — one that may be complicated but that has components that can be understood in isolation as fully functional “parts” — parts that can be analyzed as if they function independently and then assembled as an afterthought. But, as Rosen’s perspective makes instantly clear, the individual components of the legal system operate as they do only when and because they are all put together. New “rights” (seemingly sensible when contemplated in the abstract) create complex new ecologies of lawyers who, once established, seek the creation of still more rights (to fuel their class action practices or provide funding for public interest enterprises). New duties, seemingly reasonable in isolation, create costs that drive investments into less regulated channels, effectively accomplishing little for the social goals in question. No one asks whether the creation of a new law should be accompanied by the elimination of an old one. No one has a mandate to look at the overall picture, to ask whether the entire system of law is optimally organized. No one standing outside the system CAN ask that question. Only the system itself can do so.

No one asks whether the creation of a new law should be accompanied by the elimination of an old one.

The legal system does reject dysfunctional components and becomes more successful in some ways over time. But this doesn’t stem from abstract analysis, even by experts. In the U.S. legal system, law professors do not have “standing” to bring a case to change the law. That’s a good rule (differing from the French legal system’s tendency to cite law journal articles as authoritative and sometimes ignored even here in the context of amicus briefs). It tends to keep the developing order of the legal system tied to its ultimate sources of legitimacy — not logical analysis but the consent of the people to rules that affect them directly, developed by processes that seem fair to them. Law professors may hold up a mirror in which the society sees itself — but the social/legal face reflected in the mirror can only change from inside.

The rise of complex systems is always accompanied by specialization. Multi–celled organisms quickly differentiate into discrete organs that play differing roles. So why shouldn’t the law, as organism, also have specialists and specialties? It should. The problem is that our current legal system lacks the most fundamental mechanism, used by more rapidly replicating and adapting biological organisms, to keep undesirable levels of complication under control. We haven’t had competition for survival. In biology, if an organism becomes too complicated for its own good, it fails to mate and its line dies out — replaced by other systems, with other kinds of order. Because of the particular nature of law’s meta–meta-story, it’s historical rooting of legitimacy in a particular geographic area, we’ve developed only one legal organism per country. We haven’t had a real competition for survival among rule sets. The competition is only between the rule of (our one) law and, presumably, anarchy. So the tendency of all rule sets to become more complicated over time, especially when written by people considering only parts of the system in analytical isolation, has not been checked by evolutionary forces. We replicate the law by telling (slightly different versions of) its story every day. But we tell only one story and we don’t shorten the story very often because we don’t have to compete very hard for our own attention.

Fortunately, that is about to change. But not without considerable disruption for all the organisms involved.

 

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Too little citizenship

Rosen teaches us that the entailment structures internal to an organism continuously repair the order created and sustained by its metabolism. The corollary is that the order found in an organism cannot be attributed to external causes. Social or biological engineers, as it were, can create lots of disorder, as they fractionate the complex systems that they study. But they cannot themselves create a new organism, of their own design, from without. Living organisms develop and emerge and evolve, they are not built.

Most people understand that the U.S. cannot impose democracy on Iraq, for example. A real democratic legal system requires a rich substrate of engaged citizens, shared civic values, people playing all the different roles that constitute a polity. Less well understood is the relationship of legitimated roles to political corruption in the U.S. When Congress critters sell their votes for favors, they are stepping out of the roles that the sovereign people defined for them — changing laws by taking steps not permitted of legal actors. That’s why their actions can create only disorder, not social order, and are widely condemned. The legal definition of a crime must be based on widely shared values because the resulting social order must be tied to the consent implicit in law’s meta–stories. When legal rules condemn actions the people do not want to prohibit, the result is tyranny and rebellion, not increased social order. When selfish or evangelical actors seek to use the law’s power to impose their own values on a larger public, they wound the social organism.

Corruption and selfishness (and lack of civic virtue) are old stories. The meta–metabolism of the law can to some degree repair these lesions. But, as noted, the quality of the social order created by geographically defined legal systems can suffer from the fact that the citizens of any country have all our eggs in one basket. And our singular local legal organism is now facing a potentially fatal threat (or salvation, depending upon your point of view) — the death of the meta–meta–story on which its legitimacy rests. This threat comes from the rise of the global Internet. By connecting arbitrarily located people and groups, the net drastically undermines any non–global definition of the “we” who are supposedly sovereign. Anyone can instantly affect anyone else via the Internet. We need rules to govern these online interactions. But there is no apparent reason why the rules of any particular geographical sovereign ought to apply to actions that may involve people from many different countries. Local rules conflict and values are not globally shared. We have no world citizenry to resolve the differences — either directly or by delegating the power to do so to some elected or otherwise “representative” governmental structure. The life of the law, as we have known it, is therefore threatened. If the law is an organism, it can die — or, at the least, give way in various online spheres to more robust competitors.

 

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The rise of netizenship

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.

We are on the brink of a Cambrian explosion of differentiation of legal organisms.

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.

 

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A few examples

Some virtual worlds offer benefits of various kinds to players who have more experience points, more digital objects, more virtual currency. Some online games have sought to ban the practice of selling such things — to preserve a sense of fair play. But entrepreneurs in Romania have started a business of “power leveling” avatars for U.S. customers. If this practice should be regulated in some fashion, who should do it? The United States? Romania? The “game gods” who created the affected online world? The users of that virtual world? It’s hard to imagine Congress passing, much less enforcing a law against such practices. It’s harder still to imagine the company that owns the game enforcing rules against the practice if it is widely supported by the players. It may seem like a trivial question — hardly the stuff of social order. But the problem of whether and when to have rules that prevent or allow an online activity is similar in form to every other question about which legal academics theorize. It seems clear that the answer to this question — really a question about the shared values of those who participate in the virtual world in question — won’t be found in rational analysis, territorially local law, or tyrannical action by those who happen to control software code. The virtual worlds in question are allowing a new online citizenry to develop, and the complex relationships among these groups will facilitate the emergence of rules and roles that form a new social order.

Users who buy and sell goods and services through eBay have long understood the value of law in enabling the creation of trust and resolution of disputes. But they don’t often look to local courts for redress in the event of disagreement. Instead, they participate in a robust reputation system — seeking to identify and ostracize cheaters — and they use an online dispute mechanism (SquareTrade) to self–mediate most of their disputes about shipments broken on delivery or misrepresented qualities of goods. As a practical matter, the local consumer protection laws that would otherwise have had to step in to protect this marketplace have proved unnecessary. A new form of legal order is emerging in this particular online space.

The domain name system poses lots of new and interesting legal questions. Should you have to be a cooperative to register in .coop? What should you have to do to transfer a domain name to another party or change your registrar? What level of information, with what accuracy, must be disclosed, and to whom, as a condition of registration? Local governments have tried to make some rules governing this kind of issue. But, for the most part, the rules are made by many different actors and in many different ways. The application of the rules is defined by the DNS domain, not by any geographically defined territory. People become subject to the rules by deciding to register within a particular domain, not just because they live physically in a particular place. There are some global rules. But even these are constrained by the ability of users to migrate to other identification systems, to the less regulated lower regions of the domain space (third level domain names) or to so called country code domains (ccTLDs) that actively compete against each other for registrations on a global basis — using differing rules as a part of their competitive appeal.

Offline law will not be the “law of the Internet” indefinitely unless it provides a better, more legitimate, form of social order than that created by the legal systems that emerge, organically online.

None of these examples involves life or death issues we sometimes think of as the core subject matter of the law and the core goal of social order. But most of the traditional law, as embodied in our ever more complex legal institutions, doesn’t involve life or death issues, either. Territorial legal rules tell us when and how we can form a corporation (based, say, in Delaware). In virtual worlds, guilds and businesses that make money in a virtual world currency that converts to real world dollars, form in very different ways — using contracts recorded at virtual notaries and enforced in online courts. Territorial rules define and punish fraud. Online rules establish reputation systems that predict it and seek to route around the perpetrators. Territorial rules define and create causes of action to remedy torts, such as defamation, or to protect intellectual property. Online worlds can, at least among their inhabitants, redefine the rules to allow avatar battery (it’s fun!) or to insist that all in–world creations be freely shared, to empower the creation of derivative works. Some have suggested a “trademark free Top Level Domain.” Will local governments defer to these new legal systems? It depends on whether they create a better form of social order, one supported by the consent of willing participants, one that does not unduly spill over adverse consequences on outsiders who are not part of the consenting citizenry. But that question works in both directions. Why should netizens defer to local governments (other than the one located where their bodies happen to be)? Offline law will not be the “law of the Internet” indefinitely unless it provides a better, more legitimate, form of social order than that created by the legal systems that emerge, organically online. If law is an organism that repairs and re–creates itself, then the only reasonable expectation is that legal systems that preserve a compelling form of social order, one that provides institutions adapted for the environment in which the law must operate, roles welcomed by those who must play them, rules repaired with the consent of those affected by them, will prosper.

 

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Long live the law(s)

Sometimes sick organisms die hard — potentially taking others with them. We have seen many efforts by governments and even academics to explain why it is essential that geographically defined sovereigns — and associated legal institutions — should continue to regulate the Internet. China is trying to re–establish its territorial border inside the Internet itself. But all of these efforts and arguments have a tellingly desperate air. They will fail because their proponents haven’t recognized what makes any legal system “viable” over the long term — what kinds of entailments create social order. To live, a complex legal system must repair itself (fill roles that have been vacated, revise rules that have become outmoded) and it must do so with reference to a shared meta–meta–story that the people most affected by the resulting legal rules and social organizations agree that a story should be told — a story that is their story. The goals of a successful legal organism must be agreed upon by those who live within it, because a legal system is nothing more than a collective conversation about shared values. When it ceases to be that kind of internally entailed organism, the law becomes mere power, social “order” becomes tyranny, and the only option, over the long term at least, is war.

A legal system is nothing more than a collective conversation about shared values. When it ceases to be that kind of internally entailed organism, the law becomes mere power, social “order” becomes tyranny, and the only option, over the long term at least, is war.

Organisms can’t be repaired from the outside. But, with reference to interactions that take place primarily online, among willing participants who seek primarily to regulate their own affairs, that’s exactly where existing governments are situated — outside the vibrant, self–regulating online spaces they seek to regulate. Their efforts to engineer the Internet as if it were a mechanism are not only fundamentally illegitimate but doomed by the very nature of the thing they seek to regulate. They are trying to create social order, of course. But they have not recognized, as Rosen did, that order in complex systems creates itself.

Our geographical, sovereign law may be well suited for regulating physical things and protecting us from real world threats. It will undoubtedly persist in its own appropriate environmental niche. But, even in that context, we would do better to treat it as an organism, rather than a mechanism — viewing it as a complex whole, disallowing efforts to redesign it from outside, discrediting efforts to analyze it by reductionist means. In any event, we must recognize that our current legal organism, transplanted online, will not prosper. As we interact globally over the Internet, we create a new non–local citizenry, a netizenry, occupying many different kinds of online spaces that both need and can create rules of their own. The new global metabolism will produce new forms of social order that use fundamentally different forms of repair, goal setting and legitimation. Our old meta–meta–story of citizen consent to a social contract empowering a territorially local government just won’t work in this new context. But new repair mechanisms, new complex systems, new forms of social order will arise. These will involve voluntary navigation and filters, not voting. They will demand and receive deference from local legal regimes, because they will be better than any current legal systems at creating social order online. Long live the new legal organisms of the net. End of article

 

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.

 


Editorial history

Paper received 1 February 2006; accepted 3 February 2006.


Creative Commons License
This work is licensed under a Creative Commons Attribution 2.5 License.

The Life of the Law Online by David R. Johnson
First Monday, Volume 11, Number 2 - 6 February 2006
http://firstmonday.org/ojs/index.php/fm/article/view/1314/1234





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