JurPC Web-Dok. 84/1998 - DOI 10.7328/jurpcb/199813678

Maximilian Herberger *

Can computing in the law contribute to more justice? (1)

JurPC Web-Dok. 84/1998, Abs. 1 - 26


Herberger, Maximilian

Introduction

In the movie "Philadelphia" the lawyer Denzel Washington is asked, what he likes most in his profession. The answer is: "That sometimes justice can be done - and when it happens, it´s quite a thrill". Today I want to analyze with you, whether computing in the law can make a definite contribution to this "thrill". JurPC Web-Dok.
84/1998, Abs. 1
As far as I know the explicit question "Is the computer fostering a more just justice system?" was first asked ten years ago within a survey conducted by the journal "Datamation". The introductory words to this survey still deserve special attention:Abs. 2
"Unlike their usage in standard businesses, technologies employed in the legal system must contribute to a very elusive end result: justice. In the corporate world it´s a given that computers can be a competitive weapon. What then is their role in the justice system? Can computers lead to a greater ability to provide justice? The question produces unease in some interviewees, who seem to be struggling with the issue for the first time."
(Susan Kerr, Is the computer fostering a more just justice system?, Datamation, January 15th, 1988, p. 45 - 55, 45.)
Abs. 3
I have the impression that even ten years after this statement (at least in Germany) some unease could still be felt, if the question of a computer-specific contribution to justice would be asked again.Abs. 4

Preliminary considerations

The question "Can computing in the law contribute to more justice?" implies some preliminary considerations. Abs. 5
Perhaps the most important one among them is that computing in the law has to be justified. We don´t have to use computers, just because they are available. This is, by the way, true for every instrument. Or, to say it in more philosophical terms, the "is" - without further arguments - does not imply an "ought".Abs. 6
Certainly people before were also aware that computing in the law has to be legitimated. In the early times they were forced to put forward arguments of this type by a sceptical attitude prominent among decision-makers (by the way a situation more typical for Germany than for other countries). The reasons given for the necessity to apply computers were mainly of a quite practical type, which can again be explained by the expectations of decision-makers. Pleading for computing applications it was said for example that things can be done more quickly with computers than without them. Though these practical considerations were (and are) not without value, it cannot be ignored that we do not get a fundamental justification, if we only have recourse to short aimed practical interests. The only possibility to go further lies in the attempt, to link those practical interests to more fundamental concepts, and finally to the concept of justice, which gives the dignity to our profession. Methodologically speaking: Under this approach practical gains are not accepted as an end in itself, but only as means to and end, and that is - justice. As we will see, an acceleration in the judicial procedure can be seen as contribution to justice, thus serving as our first example.Abs. 7

"Justice delayed is justice denied"

There is a relationship between justice and time. Using the language of work-flow we could say that justice is a "just in time"-concept. If we do not administer justice in the appropriate moment, what we administer then is no longer full justice, it might even be injustice. In Greek philosophy, by the way, this is a consequence of a more fundamental principle. According to the Greek every action has it´s right moment. This moment was called "kairos". If a responsible actor missed this right moment, the full quality of his action was no longer guaranteed. A Roman proverb can be seen in the same context. The Romans said: "Bis dat qui cito dat", which means, that the one who gives quickly, id est directly in the moment of necessity, gives twice. In the field of law the English tradition has drawn the consequence from observations of this type to the question of justice. They say " justice delayed is justice denied". Because this is true (almost by evidence), computing can help to avoid this specific denial of justice by delay, thus contributing to more justice.Abs. 8
Having said this, a possible misunderstanding must be ruled out. I am by no means convinced that computing (everywhere, not only in the law) is by itself a guarantee for a speedier expedition of things. We have seen computing applications in the law (again I am speaking of some German experiences) that slowed down well established traditional computerless procedures. Wherever this was the case, the responsible computing-mismanagement was more than a practical failure. It was - and here our analysis has it´s value, too- an action doing harm to the full realization of justice, which is worse than ordinary mismanagement. From this observation results a high level of responsibility for the computing departments in legal institutions.Abs. 9

Publication of the law

We all agree that publication of the law is a necessary prerequisite of justice. This experience is deeply rooted in the conscience of people in different periods of history. When we look into the book Nehemia, chapter 8, we find the especially impressive story of Esra reading the law to the people from morning to noon. In medieval Europe we find many documents describing the procedure whereby special envoys of the king were bringing the law to the people in the villages by reading it to them in special assemblies. Not too long ago a French colleague (Christian Scherer) has published a collection of those texts in the Internet under the title "L´Internet au moyen age" ("Internet in the medieval period"). I will come back in a few moments to the idea implied in this interesting title.Abs. 10
Naturally kings taking care for the publication of the law might not have been driven primarily by considerations of justice. Their primary concern might have been the effectiveness of their law in order to guarantee complete obedience by their subjects. Nevertheless they cannot have ignored completely the relationship between making the law public and the idea of justice. It would be fundamentally unjust to punish someone for violation of the law, if this person did not have a fair chance to know the law beforehand. This would be, as Jeremy Bentham has put it in criticism of his contemporary law, a kind of "dog law", the point of comparison being that the dog learns about his failures only by being punished. He has (in this view) no chance to know the applicable rules before.Abs. 11
Nowadays the concept of "secret law" that existed in former periods of history and totalitarian governments has almost vanished. We have the well established feeling that by the publication of the law in the official law bulletins and law gazettes every citizen has the fair chance to learn about what we deem necessary. But this might well be a collective illusion. A more realistic approach reveals that without a stronger effort to bring the law to the people even nowadays "dog law" might be a danger. And to go one step further: What Esra did and what the messengers of the kings did might have been much more "user friendly" than what our seemingly more "modern" routines do. And here "user friendliness" is a justice related value. To link this idea to other legal concepts, we might have recourse to a comparison with two types of obligations. We distinguish obligations, where under the contract a good has to be transported to the creditor (Bringschuld), from obligations, where the creditor has to go and get the good by himself (Holschuld). There is a better administration of justice, when the law is conceived as "Bringschuld", id est as something the public authority has to deliver to the people as directly as possible.Abs. 12
At this point modern network computing technologies (especially the Internet) are valuable as instrument to provide for better publication of the law and thus contribute to more justice giving citizens an improved chance to learn about the rules they are expected to follow. To grasp this idea it is important to see that some limitations in our present law publication system are caused by technical and economical circumstances. If you imagine for a short moment the idea that the state would give one copy of the official law gazette to every citizen for free, the financial consequences make the idea almost self-destroying. But if we turn to a different publishing environment, in this case the Internet, we can see that with a good organization it is very well feasible, to publish all law texts in way that are directly accessible by every citizen having access to the net. Abs. 13
(This is, by the way, if we use this technology, another justice-related question: Network-based computing applications fostering a more just justice system only do so, if their is a fair chance to have access to the net. In the interest of a sound analysis, this point has to be stressed throughout our discourse. The people and the countries lacking this possibility should not be forgotten.)Abs. 14
Fortunately many governments and the European Union have realized that the Internet can (and should) serve as medium transporting the law-texts right into the home of the citizens - and that for free. I like to break down this idea to the formula "free law for free citizens". Perhaps the obligation to provide the law texts for free can also be brought into a relationship with the idea of justice. Only ask yourself the question, whether it can be deemed just, that the citizen has to pay a second time to get the law text, for the production of which he has already paid for by his taxes. Or, facing the problem from another viewpoint: Is it justto expect obedience to the rules of the law the citizen can only learn about after a financial contribution? Whoever is tempted to answer in the affirmative must have recourse to the existence of public libraries, where citizens can have access to the law for free. Otherwise the present system could not even be qualified as fair (fairness being an implication of justice). Would it not be a more just situation and a better "fair play", to establish the Internet as "virtual" library of free law texts accessible by (almost) everyone from (almost) everywhere? This was the idea leading the French colleague I cited a few moments ago to create the paradox title "L´Internet au moyen age" ("Internet in the medieval period"). He wanted to stimulate the appropriate thought that now is official French policy. Abs. 15

Publication of case law

So far we have been talking about the text of the law only (law in the sense of "statute law"). But there is also the case law as important part of the law system. Should not everything, we have said about the publication of the statute law, apply to the publication of the "leading cases", too? The answer must be "yes", because the rules in the leading cases have the quality of being potentially applied to future cases - and that is the quality of legal rules, a citizen must know about, because he can be subject to the application of these rules. Hence one should have a fair chance to know about them beforehand. As you can see the argument is structurally equivalent to the argument just proposed in the case of the text of the law. And it is by more than coincidence that Jeremy Bentham has proposed his "dog law"-argument specifically with regard to the case law of his times.Abs. 16

Other forms of publication

In the law not only the text of statutes or cases requires publication. In addition there are further special requirements for publication that can be rethought within the background of new technical possibilities. One instance may serve as example for this line of thought.Abs. 17
When the place of residence is unknown for the party of a civil case a public delivery is possible. (Details can be found in §§ 203ss. of the German Code of Civil Procedure -ZPO-). As instrument for this public delivery two means of publication are possible. One is a proclamation on a public board in the court, another one is (under certain circumstances) an additional notice in a newspaper.Abs. 18
The reason for this rule of public delivery is the underlying idea that the party concerned through this form of publication has a fair chance to get knowledge of the state of affairs. To further proceed in the case without having provided this fair chance would be considered as unjust. Though this may be sound in theory, in practice it is not. For all experience demonstrates that even with a public delivery the probability to really get informed is very low. If legislation could take into consideration to change the relevant rules in such a way that for example the publication by means of the Internet would have the same quality as the publication in a newspaper, a modern computing environment would by improving the chances to be informed contribute to a higher level of justice. Abs. 19

Equal treatment under equal circumstances

Justice has two aspects: The formal one and the materialone. The formal one requires that equal cases be treated equally under equal circumstances. The material one asks for a treatment that is fundamentally right (or appropriate) taking into consideration the structure of the situation at hand. On a scale of difficulty formal justice is easier to discuss than material justice. I will try to propose an argument that for reasons of formal justice certain information management conditions must be met that can only be guaranteed by computing environments.Abs. 20
It is evident that the principle "equal cases should be treated equally under equal circumstances" requires knowledge of the previously decided cases, because otherwise the comparison required by this principle cannot be realized. This is not at all a new idea: Wherever the principle of equality has been evoked in the sense just described we encounter the effort to provide collections of relevant jurisprudence. But the more we approach the present state of affairs the more traditional (printed) collections of jurisprudence have a tendency to become inefficient. The reason is simple: There are far too many cases to be taken into consideration than can be dealt with by a paper-based "retrieval" alone. It is no longer an isolated experience that a case, which according to all rules would have to be taken into consideration, is discovered only after the decision has been made. Computer-based retrieval technologies definitely improve this situation (if mastered competently). It is interesting to see that there is a certain parallelism between the result arrived at here and the proposal to publish freely the relevant mass of leading cases. This parallelism in a way can be interpreted as proof for the coherence of the justice-related argument outlined here. If in accordance with this view the relevant case-law material is published electronically, by the very act of this publication the material is subject to the retrieval facilities that are required in order to do the necessary similarity-comparisons. I do not by any means underestimate the difficulties of efficient procedures for similarity-comparisons between cases. But the proof to be made today is an easier one: Chances to get to a better level of formal justice in case-based environments are definitely improved by computer-based retrieval facilities.Abs. 21

And the answer?

What is the answer then to our initial question "Can computing in the law contribute to more justice?" For me (and I invite you to share this view) it is a cautious "yes". A cautious "yes", because no guarantee is implied (especially no "money back guarantee"). But chances are that with computers in the law some ancient justice-related hopes might finally prevail in a more appropriate environment than available before. Thus ten years after the studies conducted by "Datamation" the overall assessment can still be quoted:Abs. 22
"Technology´s ramifications also aren´t clear-cut. It´s a good bet that information technology will help in the processes of the court, thus alleviating some of the injustices caused by today´s overburdened system. In and of itself, however, technology isn´t enough to guarantee a justice system that is more just, a system that is and will continue to be dependant upon human judgement."
(Susan Kerr, Is the computer fostering a more just justice system?, Datamation, January 15th, 1988, p. 45 - 55, 55.)
Abs. 23
So we are finally back at the point the Roman lawyers stressed as essential: It is the character that makes up a lawyer (pectus facit iurisconsultum). Though this is true, it might well be, that without adequate computing technology even the lawyer of good character might be lost within the complexity of modern legal work. Once this situation has been understood and the necessary means of assistance have been put to practice, the next question will be another one. As the brothers Dreyfus have put it:Abs. 24
"The chips are down, the choice is being made right now. And at all levels of society computer-type rationality is winning out. Experts are an endangered species. If we fail to put logic machines in their proper place, as aids to human beings with expert intuition, then we shall end up servants supplying data to our competent machines. Should calculative rationality triumph, no one will notice that something is missing, but now, while we still know what expert judgement is, let us use that expert judgement to preserve it."
(Hubert L. Dreyfus/Stuart E. Dreyfus, Mind over Machine: The power of Human Intuition and Expertise in the Era of the Computer, New York: The Free Press 1986, p. 206).
Abs. 25
But that is another story that might have to be told in another moment.
JurPC Web-Dok.
84/1998, Abs. 26

Fußnote:

(1) Video-lecture given for a conference of the Ministry of Justice in Israel. The form of the presentation has been kept.
* Dr. Maximilian Herberger ist Professor für Bürgerliches Recht, Rechtstheorie und Rechtsinformatik an der Universität des Saarlandes, Direktor des Instituts für Rechtsinformatik und Herausgeber der Online-Zeitschrift JurPC.
[online seit: 12.06.98]
Zitiervorschlag: Autor, Titel, JurPC Web-Dok., Abs.

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