e-Legislation: Law-Making in the Digital Age
David Howes’
This article takes a communications approach to
law. The author argues that the formulation, dissemina-
tion, and reception-as well as doctrinal notions-of
legislation are shaped by the prevailing mode of com-
munication. Three such modes are distinguished: oral,
print (or typographic), and digital (or electronic). The
doctrine of legal positivism is shown to derive from a
text-based communications order. The legislative ideals
associated with this doctrine, such as generality, prom-
ulgation, clarity and absence of contradiction, and top-
down authority, all reflect the imprimatur of the printed
text. In pre- and post-typographic (i.e. oral and digital)
communications orders, the predominant legislative
values are flexibility, participation and accessibility,
contextuality, and multicentric authority. These tenets
are summed up by the notion of legal interactivism.
The author shows this notion to be motivated by the
ubiquity, multisensoriality (or organicity), and instanta-
neous-interactive quality of communication in both the
oral and digital modes. It is for this reason, the author
argues, that the best way to envision the future of leg-
islation is by recurring to the model of law in pre-
modem oral societies. Two such models are pre-
sented-the corporeal model of the Inca Empire and
the gastronomic (law as feast) model of the Witsu-
wit’en-and their implications for conceptualizing law-
making in the digital age are discussed.
L’article examine le droit en adoptant une appro-
che du champ des communications. L’auteur soutient
que les modes de communication dominants mod~lent
]a formulation, ]a diss6mination, la rception ainsi que
les notions doctrinales de Ia l6gislation. II distingue
: l’oral,
trois de ces modes de communication
l’impression (ou la typographie), et le digital (ou
l’61eclronique). La doctrine du positivisme juridique
d~coule de l’ordre des communications fond6 sur les
textes. Les objectifs 16gislatifs de cette doctrine telle la
g6n6-alit6, la promulgation, la clart6 et l’absence de
contradictions et l’autorit6 hi6archis6e reprdsentent
l’imprimatur des textes imprim~s. Dans les ordres de
communications pr6 et post-typographiques, c’est-ii-
dire l’oral et le digital, les valeurs 16gislatives pr&Iomi-
et
nantes
l’accessibilit6, ]a contextualit6 et l’autorit6 multicentri-
que. L’auteur 6tablit que la notion d’interactivisme juri-
dique, rsum6 par ces doctrines, est justifie par
l’ubiquit6, la multisensorialit6 (ou l’organicit6) et la
qualit6 instantandment interactive dans les formes de
communications orale et digitale. L’auteur sugg~re ain-
si que r6f~rer au module de la loi des soci6ts orales
pr6-modemes constitue Ia meilleure fagon d’envisager
l’avenir de ]a l6gislation. En prdsentant deux modules
de ces socidt6s, soit le module corporel de l’Empire In-
ca et le module gastronomique des Witsuwit’en (a loi
en tant que festin), l’auteur explicite leurs consquen-
ces pour ]a conceptualisation de la l6gislation A l’6re
digitale.
la participation
sont
la
flexibilitY,
“Of the Department of Sociology and Anthropology, Concordia University. I wish to thank the or-
ganizers of the Roundtable on Legislation for the invitation to participate, and my fellow participants
for the inspiration I received from our discussions.
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 47 McGill L.J. 39
Mode de rf6rence : (2001) 47 R.D. McGill 39
40
McGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 47
Introduction
I. Charting Cyberspace
I1. Legislation in a Digital Age
II1. The Cyber-Village
IV. Governing the Electronic Tribe or Feasting on the Law
Conclusion
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D. HOWES – E-LEGISLATION. LAW-MAKING IN THE DIGITAL AGE
41
Introduction
This article explores the iconic implications of the materiality of legislation, or
law’s “embodiment” as digital versus printed text in the network era. With Desmond
Manderson, I am interested in how one can “illuminate both the meaning and force of
law” by being “sensitive to the form and imagery of legal texts.” Framing the issue of
law’s expression in this way puts the medium through which legal norms are commu-
nicated before the articulation of the norms themselves in what can prove to be a
highly instructive manner. As regards electronic communication, for example, digital
texts may be seen to evoke a different understanding of authorship and authority from
printed texts. Digital texts have the potential to be interactive, whereas there is no
back and forth between sender and receiver with printed texts. This makes the former
appear more collaborative than “authoritative” (in the conventional unidirectional
sense that a printed text displays). How much does our common-sense notion of the
(top-down) authority of legislative acts depend on their form as printed texts? Forget
the doctrine of legal positivism. How will our understandings of the force of law have
to change to accommodate the authorial and other implications of the digitization of
legislation?
Most of the books and articles regarding law and cyberspace are concerned with
how existing legal rules may be adapted to suit the particular features of the Internet!
The assumption throughout this literature is that standard forms of legislation will
continue to hold in the “real world”. Those who take this assumption for granted seri-
ously overlook the influence that Internet use will likely have on ways of thinking
about government and the law even outside cyberspace. Indeed, I want to argue that
the implicit normative structure of Internet communication has already had a pro-
found impact on the form in which legislative activity is conceptualized and received
by those whose behaviour it is intended to govern. Moreover, I consider that the very
distinction between cyberspace and “real” space will become less apparent and im-
portant as digital forms of expression come to pervade our lives and consciousness,
and the whole world becomes a cyber-village.
It has been suggested that the network era, with its dynamic and instantaneous
forms of communication, actually represents a return to the tribal era, for network so-
‘D. Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice (Berkeley: Univer-
sity of California Press, 2000) at ix. This essay may also be read as a companion piece to Nicholas
Kasirer’s paper on the successive material embodiments of Quebec’s civil code entitled “If the Mona
Lisa Is in the Louvre, Where Is the Civil Code of Lower Canada?” (Paper presented at Law Commis-
sion of Canada, First Roundtable on Legislation, McGill University, Montreal, 28 January 2000) [un-
published, archived at McGill Lmv Journal.
2 See e.g. M. Racicot et al., The Cyberspace Is Not a “No Law Land”: A Study of the Issues of Li-
ability for Content Circulating on the Internet (Ottawa: Industry Canada, 1997).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 47
ciety displays many of the characteristics of preliterate oral societies Following up
on this perceived resemblance, I want to examine how examples of law-making drawn
from pre-modem societies may provide models for legislative activity in the cyber-
village of postmodernity. As cyberspace becomes more interactive, more sensuous,
and more ubiquitous through new developments in network technology, the way in
which legislation is conceptualized and experienced may become less and less textual
(i.e. informed by the icon of the statute book) and more like a song, a dance, or even a
feast-all traditional forms of legal expression in oral societies.
The argument of this paper can be summed up as follows: both the construction
and dissemination of legislation tend to be inflected by the implicit normative struc-
ture of the prevailing mode of communication (oral, print, or digital).’ The paper be-
gins by charting the distinctive features and dominant trends in the development of
cyberspace, then traces the implications of these features and trends for the future
shape of legislation, and concludes by finding confinmation for this analysis through
an exploration of law-making in oral societies.
I. Charting Cyberspace
Cyberspace has been called a world of electrons in contrast to the physical world
of atoms. In the world of atoms things exist as objects in three-dimensional space; in
the world of electrons things exist as patterns of energy. This distinction is indicative
of the unique nature of cyberspace. It is only metaphorically that it can be described in
spatial terms at all.
Consider the example of a community of Internet users, or “virtual community”,
consisting of, say, all of the participants in the same Usenet discussion group or chat
room. In the physical world communities have customarily consisted of people living
in close proximity to each other. A virtual community, however, may consist of people
‘ See D. de Kerckhove, The Skin of Culture: Investigating the New Electronic Reality, ed. C. Dewd-
ney (Toronto: Somerville House, 1995) especially at 99-112. See further the sources cited infra note 4.
4 On the impact of the printing press, see E.L. Eisenstein, The Printing Press as an Agent of
Change: Communications and Cultural Transformations in Early-Modem Europe (Cambridge:
Cambridge University Press, 1979), and of print media generally, see B. Anderson, Imagined Com-
munities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991). On
the impact of electronic communication, see J. Baudrillard, Les strat6gies fatales (Paris: Bernard
Grasset, 1983); de Kerckhove, supra note 3. The first to map this terrain in a comprehensive (if mo-
saical) way was, of course, Marshall McLuhan in The Gutenberg Galaxy: The Making of Typographic
Man (Toronto: University of Toronto Press, 1962). It is his lead that I follow in this paper when I treat
the modal medium of communication in a given culture as inflecting all other aspects of the culture
with its biases. Or as McLuhan himself put it in Understanding Media: The Extensions of Man (New
York: McGraw-Hill, 1964) at 8: “For the ‘message’ of any medium or technology is the change of
scale or pace or pattern that it introduces into human affairs.”
2001]
D. HOWES – E-LEGISLATION. LAW-MAKING IN THE DIGITAL AGE
43
living in many different locations who never have any physical contact with each
other. Even though the members of such a community are widely dispersed geo-
graphically, they can neverthless enjoy instantaneous communication due to what has
been called “the collapsed space-time of the Web.”‘
Just as computer-generated cyberspace has created a parallel universe of virtual
locations, so has it created a parallel realm of virtual selves-that is, a space in which
“You are not your body”, in Douglas Coupland’s phrase.’ Internet users cannot enter
cyberspace with their physical bodies, but they can transmit body images, and the im-
age that a user presents in cyberspace need in no way correspond to his or her actual
physical body. A male user, for example, may present himself as female to his Internet
companions; a child user may present herself or himself as an adult. Other aspects of
personal identity, such as character, disability, or ethnicity may similarly be altered in
Net communications. Users usually have little possibility to verify the actual identity
of the persons with whom they communicate on the Internet-or even where they re-
side, since country codes (such as “.ca” for Canada or “.uk” for the United Kingdom)
do not reveal a discrete physical location within the country concerned. Cyberspace is
therefore a world of virtual selves with no fixed addresses.
Many proponents of Net society have taken this characteristic of cyberspace to be
one of its most liberating features, arguing that the virtual identities of cyberspace al-
low people to escape the limits imposed by the particular physical and cultural condi-
tions of their embodied realities and to present themselves as whomever and whatever
they wish. In cyberspace everyone participates as equals, while at the same time an in-
finity of experiments with self-fashioning is possible. It has also been claimed that the
Internet helps users to overcome the isolation of contemporary life, where many peo-
ple do not interact with their neighbours in their own geographical communities. With
the Internet, so the argument goes, it has become astoundingly easy to find a commu-
nity of like-minded individuals no matter what one’s personal interests may be.’
The peculiar characteristics of life on the Internet are likely to become increas-
ingly normative as computer use becomes more integrated with everyday life, or part
5 B. Vacker, “Global Village or World Bazaar?” in A.B. Albarran & D.H. Goff, eds., Understanding
the Web: Social, Political and Economic Dimensions of the Internet (Ames, Iowa: Iowa State Univer-
sity Press, 2000) 211 at 236. See further D. Harvey, The Condition of Postmodernity: An Enquiry into
the Origins of Cultural Change (Cambridge, Mass.: Blackwell, 1990).
6 D. Coupland, Life After God (New York: Pocket Books, 1994) dustacket.
‘See S. Rafaeli, M. McLaughlin & R Sudweeks, “Introduction” in F Sudweeks, M. McLaughlin &
S. Rafaeli, eds., Network and Netplay: Vrtual Groups on the Internet (Menlo Park, Cal. & Cam-
bridge, Mass.: AAAI Press & MIT Press, 1998) xv; S. Turkle, Life on the Screen: Identity in the Age
of the Internet (New York: Simon & Schuster, 1995); M. Willson, “Community in the Abstract: A
Political and Ethical Dilemma?” in D. Holmes, ed., Virtual Politics: Identity and Community in Cy-
berspace (London: Sage, 1997) 145.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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of a “seamless web”. For instance, the last few decades witnessed the transition from
mainframe to personal computers, and from computing as the preserve of technical
experts to its figuring centrally in many peoples’ everyday work and leisure activities.
Continuing this trend, one of the major developments of the next decades will be the
triumph of “ubiquitous computing”. This term is used to mean that computing will
take place not only within the personal computer as we know it today but in many
objects of everyday life. A major Canadian communications company, for example,
has already developed an interactive telephone device that comes with a small display
screen and permits the residents of a model “wired” community to access a sort of
“electronic mall” where they “can pay bills, do their banking, view advertisements,
compare prices, order prescriptions, make purchases, and even read news headlines
without ever leaving the house or turning on their personal computer.” ‘8
The next wave of home appliances to acquire computer functions will include
objects that one would never expect to serve as instruments of informational and
commercial exchange, such as the recently unveiled microwave oven that can support
e-mail and electronic banking In this way the whole home is being transformed into
a computing device, thereby completing the revolution that began with bringing the
personal computer into the home. It is projected, for example, that thin holographic
monitors placed on the wall or in windows will shortly allow the inhabitants of a
dwelling to enter cyberspace from many different locations in the house, simply by
means of a voice command or even a glance, as registered and interpreted by a sens-
ing device.'” Ubiquitous computing, then, seeks to make every physical surface into a
potential electronic interface or Intemet access node.
Like the drive for ubiquity, the history of computing has witnessed a drive for
ever more intensive and engaging forms of interactivity. One of the earliest (and still
among the most popular) embodiments of the interactive dimension of electronic
communication is the network of online news and discussion groups known as Use-
net. Here users are able to post, read, and respond to messages pertaining to a specific
topic area, and a record (or “thread”) of all past discussions on the topic is maintained
that can be consulted by new or ongoing participants.
The Multi-User Domain (“MUD”) and the MUD, Object-Oriented (“MOO”) rep-
resent another early example of the new computer-mediated sociality. These consist of
large-scale, collaboratively constructed, online environments, where
participants enter textual descriptions of imaginary places that others can visit,
and of … characters that populate those places, awaiting scripted interaction
D. Barney, Prometheus Wired: The Hope for Democracy in the Age of Network Technology (Van-
couver: UBC Press, 2000) at 169-70.
9 W.W. Gibbs, “As We May Live” Scientific American 283:5 (November 2000) 36.
10 Ibid.
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D. HOWES – E-LEGISLATION: LAW-MAKING IN THE DIGITAL AGE
45
with future visitors. The underlying software ties all the descriptions and scripts
together to create a single, continually evolving environment and provides an
opportunity for [the user] to meet and interact with other participants within
that environment.”
MUDs and MOOs constitute virtual environments that are evidently quite literary, or
text-based. Like a novel,
they textually construct complex places where the lives of many characters si-
multaneously unfold and interact, but they are collaboratively authored rather
than the work of one person, and they are indefinitely in progress and con-
stantly being extended-not closed and complete like a novel. Instead of turn-
ing pages, [the user] explores them by typing commands or pointing-and-
clicking to move around and evoke responses.
The heavy dependence on text and typed commands of such early virtual envi-
ronments has been augmented or supplanted by graphic interfaces, by sound and syn-
chronization, and most recently by 3-D shared-space technology as the field of inter-
active digital entertainment has attracted increasing capital investment and develop-
ment.’3 The many diverse projects on which engineers and programmers in this field
are now working include developing “intelligent” virtual beings and creating interac-
tive cyber-movies in which viewers can participate as actors and direct the plot.”
The dimension of interactivity, so crucial to the Intemet experience, will be fur-
ther enhanced by the integration of new sensory domains into cyberspace. Through a
development known as convergence, digitization is facilitating the transformation of
previously distinct media, such as music, movies, and video games, into a single me-
dium that delivers high resolution audio and video content that is also interactive.”
This transformation, which began in the mid-1990s, has enabled Intemet users to con-
struct and access virtual environments that are vastly more engaging than written texts
because they encompass sound and graphics as well as moving-image applications.
Nor will the merging of media that is unfolding stop at audio and video content,
for “digitization establishes the means for translating and reintegrating [all] the
senses.”‘ In other words, while cyberspace may be a multimedia environment today, it
promises to become a multi-sensory surround tomorrow. Technology has already been
developed that will allow the sensations of smell and touch to be transmitted elec-
” WJ. Mitchell, “Replacing Place” in R Lunenfeld, ed., The Digital Dialectic: New Essays on New
Media (Cambridge, Mass.: MIT Press, 1999) 112 at 114.
12 Ibid.
, Ibid. at 115-27.
‘4 G. Davenport, “Your Own Virtual Storyworld” Scientific American 283:5 (November 2000) 79.
‘R P Forman & R.W. Saint John, “Creating Convergence” Scientific American 283:5 (November
2000)50.
6 C. Vasseleu, “Virtual Bodies/Virtual Worlds” in Holmes, supra note 7,46 at 50.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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tronically. An odour synthesizer, for example, has recently been put on the market that
can be attached to computers to transmit odours. The synthesizer consists of a small
black box with tiny vials of scent inside. When a message is received the machine
blends a selection of basic essences and then blows the required scent out through an
air vent. Such olfactory signals could accompany movies, advertisements, and elec-
tronic books, or could be sent by e-mail.”
A number of haptic devices being developed or currently in use make it possible
to transform electronic messages into tactile sensations. A typical haptic device is a
computer-controlled glove that, when worn, gives users the sensation of holding and
feeling computer-generated objects. Researchers look ahead to the creation of a “hap-
tic suit” that would enable users to feel computer-generated sensations all over their
bodies.” Communication on the Intemet will hence no longer be limited to disem-
bodied, linear typed messages and responses but will consist of dynamic, multisen-
sory interactions between “re-embodied” virtual beings.
All of these characteristics of cyber-life in the present and future depict a world
that is universally accessible, immensely engaging, endlessly transformable, unfail-
ingly responsive, and, while removed from most physical realities, completely con-
nected within itself.
II. Legislation in a Digital Age
When we consider issues of legislation, the question that arises as a result of these
computing trends is not only how is it possible to make laws for cyberspace, but how
will the digitization of the word and the omnipresence of digital media transform the
very notion and forms of law-making?
Significantly, in addition to the multiplication of physical devices and surfaces
that can serve as Intemet access points, there has been an extraordinary proliferation
in the range and nature of sites Internet users can visit. Not only commercial institu-
tions, but governmental and non-governmental organizations as well as countless in-
dividuals have created online identities in the form of Web pages that disseminate in-
formation and/or offer access to services. New norms of accessibility have emerged in
the process and appear to be reshaping not only what it means to be a consumer (as in
“7 C. Platt, “You’ve Got Smell!” Wired 7:11 (November 1999) 257, online: Wired
8 D. Pescovitz, “Getting Real in Cyberspace” Scientific American Presents 10:3 (Fall 1999) 48 at
51. The development of such a suit gives new meaning to McLuhan’s aphorism “the medium is the
massage”; M. McLuhan & Q. Fiore, co-ordinated by J. Agel, The Medium Is the Massage (New
York: Random House, 1967).
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D. HOWES – E-LEGISLATION. LAW-MAKING IN THE DIGITAL AGE
47
the “electronic mall” or e-commerce phenomenon), but also what it means to be a
citizen in liberal democratic society.
For example, there is a growing demand for governments to ensure universal Inter-
net access for their citizens, on the assumption that meaningful participation in public
life is dependent on access to the informational resources of the Internet, and that ena-
bling such access would of itself suffice to overcome the inequities in the distribution of
information and income that currently stand in the way of full civic participation. 9
One image of how the new norms of accessibility supported by network technol-
ogy are fueling new forms of civic participation is that of the homeless man at a com-
puter terminal in a public library writing an e-mail to his local member of Parliament.
Another image is the model of “keypad democracy” that Lawrence Grossman cham-
pions. According to Grossman, the obstacles of scale that have tended to thwart strong
democratic participation in the past are being overcome by recent developments in
network technology: “Using a combination telephone-video screen computer, citizens
will be capable of participating in audio- and videophone calls, teleconferences, tele-
debates, tele-discussions, tele-forums, and electronic town meetings.’2 Time and dis-
tance will thus cease to figure as factors limiting political participation.
Of course, time and distance are not the only factors obstructing participation.
Some legal theorists blame the interference of the public/private dichotomy, which is
so fundamental to the whole architecture of liberal democratic society. They hold that
there is a deep problem with the way liberalism defines the public sphere in a manner
that excludes any particular “private” conceptions of the good, and hence cultural dif-
ference. This exclusion is consistent with liberalism’s abstract definition of the self as
a rights-bearing entity, rather than a member of a particular community. It is regres-
sive, however, insofar as it results in an impoverished public discourse that can never
give good reasons for why legislation should apply to cultural minorities in the same
way as it applies to the majority, when the minorities themselves can never accede to
the legislation because of the deep value differences that set them apart from the
mainstream. This crisis of legitimacy can only be resolved by redrawing the pub-
lic/private distinction so as to include aspects of the private in the public realm,
thereby letting difference out rather than keeping it contained. This strategy, it is said,
can only enhance citizen participation in the deliberative process, though it may also
result in legislation that is flexible instead of universal, because of the need to resort to
9 See generally Barney, supra note 8.
20 L.K. Grossman, The Electronic Republic: Reshaping Democracy in the Infornation Age (New
York: Vldng, 1995) at 148.
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[Vol. 47
compromise and accommodation in order to arrive at a norm that everyone concerned
can accede to practically and rationally.2′
The theory of deliberative democracy, with its definition of legislation as all-
inclusive conversation, can be seen as motivated by the chief technological imperative
of the network society, which is: “always connect”. The critique of the conventional
public/private distinction in this theory can also be read as technologically inspired in
that the Internet has effectively undermined the demarcation of public from private in-
sofar as users can connect from anywhere and electronic information flows have no
respect for borders. Thus, while the theory of deliberative democracy has many
precedents in European philosophy, it is the manner in which it maps onto the mate-
rial infrastructure of Internet communication that accounts for its increasing salience
today.
With the success of user-friendly software and Web sites, convenience has be-
come another of the defining characteristics and thus one of the norms of Internet
communication. People are drawn to the Internet not only because it is interactive or
informative or engaging, but because it is easy. Pointing and clicking is much simpler
and faster than going to the library and looking something up in a book. Writing an e-
mail is much simpler than writing a letter. The very formality of a letter appears ar-
chaic within the informal, fast-paced give-and-take of cyberspace. Users familiar with
informal, user-friendly cyber-formats may therefore come to reject the rigid, arcane
format of conventional legal texts as inaccessible and irrelevant.
Furthermore, as non-linear, non-textual models for the organization of informa-
tion become popular through Internet use, existing forms of inscribing and communi-
cating legislation may come to seem as unwieldy and outdated as Moses’ stone tab-
lets. A case in point would be the fragmentary state of public access to primary legal
materials in electronic form in Canada. This fragmentation is caused by the uneasy
co-existence of print-based and digitized models of law. For example, Theresa Scassa
clearly adopts a digitized conception of legislation when she argues that the federal
and provincial governments should collaborate to make authoritative, up-to-date ver-
sions of statutes and regulations available online in a unified (or at least harmonized)
searchable database which the public could access for free. What in fact exists, how-
ever, is an uneven patchwork of sites. Moreover, the sites that do exist are mostly
“1 This account of the political theory of deliberative democracy is based on my reading of L.B.
Tremblay, “La justification de la 16gislation comme jugement pratique” (2001) 47 McGill L.J. 59 and
D. Kropp, “Legislating away Democracy: The Loss of Legitimacy and a Call for Renewal” (Paper
presented at Law Commission of Canada, First Roundtable on Legislation, McGill University, Mont-
real, 28 January 2000) [unpublished]. See further the discussion of a “civil society model” in G.
Segell, “A People’s Electronic Democracy and an Establishment System of Government: The United
Kingdom” in B. Ebo, ed., Cyberimperialism? Global Relations in the New Electronic Frontier (West-
port, Conn.: Praeger, 2001) 111 at 112-13.
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D. HOWES – E-LEGISLATION: LAW-MAKING IN THE DIGITAL AGE
49
searchable only by the title of the statute (i.e. alphabetically) and in all cases contain
disclaimers directing users to rely upon “official” print versions. Not only is this hy-
brid (semi-digitized) “system” unwieldy, it is unworkable.
The idea that print versions are authoritative and their digital counterparts are not
is one of the fictions that governments will have to abandon if they are to face up to
the implications of digitization for the dissemination of legislation. The fluidity of
digital text plays havoc with the standard notion of the letter of the law as stable or
fixed. Digital text
can always be reconfigured, reformatted, rewritten. Digital text hence is infi-
nitely adaptable to different needs and uses, and since it consists of codes that
other codes can search, rearrange, and otherwise manipulate, digital text is al-
ways open, unbordered, unfinished, and unfinishable, capable of infinite exten-
sion.’
Once a text has been digitized it can be metamorphosed endlessly. This is the dif-
ference between the law in books and the law in electrons. In the digital era, author
and reader, legislator and legislatee, are equal participants in the text or statute’s con-
struction, since the reader (with the text on his or her computer screen) is able to “add
to a text or subtract from it, rearrange it, revise it, suffuse it with commentary,” intro-
duce graphics, or transform it into music if he or she wants. ‘ Plainly, the digitization
of legislation spells the demise of the doctrine of legal positivism at the same time as
it exposes how dependent that doctrine was for its force on a print-based communica-
tions order (and in particular on the idea of the top-down authority of the printed text).
In view of the shared authority of the digital text, what is needed now is a doctrine of
legal interactivism.
In order to conceptualize the new forms that legislation may take in a digital age,
it may be necessary to stop thinking of statutes as bounded texts and to start thinking
of them as “delivery systems” or exercises in “interactive fictionalized modeling”.’
On this model, a statute would be composed of a series of alternative scenarios that
‘ T. Scassa, ‘The Best Things in Law Are Free? Towards Quality Free Public Access to Primary
Legal Materials in Canada” (2000) 23 Dal. L.. 301. See also D. Alikat, “Cyberspace of the People,
by the People, for the People: Predominant Use of the Web in the Public Sector” in Albarran & Goff,
supra note 5, 23.
G.P. Landow, “Hypertext as Collage-Writing” in Lunenfeld, supra note 11, 150 at 166.
24 R.A. Lanham, The Electronic Word: Democracy, Technology, and the Arts (Chicago: University
of Chicago Press, 1993) at 6. Lanham is here describing how digital textbooks function, but his de-
scription is equally applicable to legislation in view of the pedagogical function of legislation brought
out, for example, by Nicholas Kasirer in “Honour Bound” (2001) 47 McGill LJ. 237.
2 Lanham, ibid. at 6, 126-29.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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user-citizens could choose between and enact for themselves on a completely indi-
vidualized basis.” This is law as acting out rather than as enactment.
The concern that such interactive forms of legislation might introduce too much
indeterminacy into the law might well keep official legislative acts confined to the
relatively stable form of printed texts for a long time to come. However, printed texts
themselves only have the authority a society chooses to ascribe to them. In a culture
that has already progressed so far down the path of digitization, this may be rather lit-
tle. In such a culture the focus will likely be on dynamic, collaborative conflict reso-
lution rather than on text-bound legislative enactments which, in a world of instant in-
formation and continuous change, would come to seem outdated as soon as they are
published. Ethan Katsh writes that in a digital world “the focus on the past will be less
emphasized. Process and dispute solving and reestablishing relationships may, for ex-
ample, prove to be valued much more than determining what was intended at the time
some contract was formed” 2– or at the time some legislation was enacted.
II. The Cyber-Village
In some ways the world of cyberspace appears to be-and is-removed from any
previously known form of social interaction. Yet in many ways it reproduces key traits
of oral, preliterate societies.’ One of the primary characteristics of oral societies is
that communication between members is always direct and immediate due to depend-
ence on speech. The Internet (like the telephone before it but to a far greater extent)
enables people who are geographically distant to engage in a similar kind of immedi-
ate communication. Communication in oral societies is also highly interactive, being
grounded in dialogue and ritual, which contrasts with print cultures where written
messages are unidirectional. As Constance Classen notes: “One cannot engage a book
‘6This suggestion invites comparison with Rod Macdonald’s discussion of legislation that takes the
form of “examination hypotheticals” in ‘The Fridge-Door Statute” (2001) 47 McGill LJ. 11 at 30-31.
It may also be compared with the “sense and respond” business model, a token example of which is
the Levi Strauss clothing company’s “Personal Paie’ program, which enables customers to design and
manufacture their own customized jeans using multimedia technology. See S.P Bradley & R.L.
Nolan, “Capturing Value in the Network Era” in S.P Bradley & R.L. Nolan, eds., Sense and Respond:
Capturing Value in the Network Era (Boston: Harvard Business School Press, 1998) 3 at 22. See fur-
ther the discussion of “court kiosks” and other access mechanisms in R. Susskind, The Future of Law:
Facing the Challenges ofInformation Technology (Oxford: Clarendon Press, 1996) at 212-15.
27 M.E. Katsh, Law in a Digital World (New York: Oxford University Press, 1995) at 123.
‘ For a general review of the literature on oral societies (or “performance cultures”), see BJ. Hib-
bitts, “‘Coming to Our Senses’: Communication and Legal Expression in Performance Cultures”
(1992) 41 Emory L.J. 873.
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D. HOWES – E-LEGISLATION. LAW-MAKING IN THE DIGITAL AGE
51
in dialogue. A book never changes its mind, it always affirms what it affirms whether
one agrees with it or refutes it.”
The textual basis of knowledge in literate Western society hence is radically dif-
ferent from that of oral societies where the absence of written documents allows for a
more fluid and interactive mode of transmitting information. As Classen documents,
one of the most striking aspects of the cultural encounter between Europe and the
Americas in the sixteenth and seventeenth centuries was the clash between the Euro-
pean textual understanding of knowledge and authority and the Amerindian oral un-
derstanding of the same. From the latter’s perspective, the European reliance on books
appeared rigid, autocratic, and life-denying. The indigenous cosmos was conceptual-
ized as dynamic and personal, ordered and animated by a continuous flow of oral in-
terchange. The European cosmos, by contrast, appeared to be silent, still, and imper-
sonal, ordered by a realm of written documents.
The advent of electronic communications has ushered in a new age of orality, for
while electronic messages at present still primarily take written form, the interactive,
dialogical character of Internet communication mimics the qualities of oral communi-
cation. Media theoretician Walter J. Ong has proposed the term “secondary orality” to
describe the kinds of social conjunctures created by network technology.” Ong’s
mentor, Marshall McLuhan, evoked this same “re-tribalization” of society by means
of the famous phrase “global village”.” In the twenty-first century the global village
has become the cyber-village.
Internet culture is thus in many ways an oral culture with a number of the distinct
traits characterizing oral cultures: it is synthetic, personal, dynamic, reciprocal. The
cultural clash of the future over modes of communication and the social models with
which they are associated, therefore, is likely to take the form of a war between ad-
herents to the old print-based models of social and legal order and participants in the
new electronic model of social interaction and organization.
It might be argued that the social models of traditional oral societies could only
work on a small, “tribal” scale and thus can have little relevance to the large-scale so-
‘ C. Classen, “Literacy as Anti-Culture: The Andean Experience of the Written Word” in C. Clas-
sen, W1brlds of Sense: Exploring the Senses in History and across Cultures (London: Routledge, 1993)
106 at 110.
“Secondary orality” is “secondary” because instead of being untouched by writing, the new oral-
ity is “based permanently on the use of writing and print, which are essential for the manufacture and
operation of [electronic communications] equipment and for its use as well:’ See WJ. Ong, Orality
and Literacy: The Technologizing of the Word (London: Methuen, 1982) at 136.
“, M. McLuhan & Q. Fiore, co-ordinated by J. Agel, War and Peace in the Global Village: An In-
ventory of Some of the Current Spastic Situations That Could Be Eliminated by More Feedforward
(New York: McGraw-Hill, 1968).
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cieties of the “cyber-village”. Yet not all oral societies were small-scale. The Inca
Empire in South America, for example, consisted of some ten million people who
were organized and governed without the aid of writing. In such cases each small
community is integrated into the larger society through an extensive and dynamic
network of oral communications. In the example of the Inca Empire, the empire (and
also the cosmos) was conceptualized as a living body that required the participation
and co-operation of all members in order to survive. 2
Organic models, such as that of the body, may ironically also work well to or-
ganize and animate the ostensibly inorganic realm of cyberspace. Conceptualizing the
Internet as a vast body or nervous system and computer terminals as its organs is, in
fact, quite widespread in contemporary culture, as evidenced by the discourse about
computer viruses. In oral societies individuals depend on the social network for their
survival. In a networked society, users depend on their connection to the Net to pursue
their cyber-lives. You cannot disconnect your computer and strike out on your own in
cyberspace.
Employing corporeal models to order a system has the advantage of relating what
might otherwise seem to be purely an abstract creation of bureaucracy or technology
to the more personal and appealing notion of a living organism with natural structures
and functions-an organism in which each individual plays a vital role and serves as a
model for the whole. Among the Incas, for instance, employing body models meant
that each person could relate to the structures and functions of society and the cosmos
from the basis of his or her own personal corporeal experience.
Current developments in interactive computer technology point to possibilities for
developing a range of organically-based models for ordering and interacting in cyber-
space. One example is a program-currently in prototype-called Happenstance.
This is described as an “ecological interface [that] translates common computer ac-
tivities, such as conducting Internet searches, into movement through the landscape.””
Happenstance uses the image of a garden as a model for accessing and conveying in-
formation:
32 C. Classen, Inca Cosmology and the Human Body (Salt Lake City: University of Utah Press,
1993). The case of the Inca, a “traditional” society whose complexity rivalled that of most coeval
European states, underlines the difficulty of classifying societies according to an evolutionary typol-
ogy based solely on the presence of writing. The term “pre-literate” or “oral society” as used in this
essay should not be understood to suggest a linear scheme of development, for it is not the case that
contemporary oral societies like the Witsuwit’en or historical oral societies like the Inca can be as-
similated to anterior stages in the development of Western civilization. Rather, they should be viewed
as alternative regimes for the management of information and society, each with its own historical
trajectory.
” Davenport, supra note 14 at 81.
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D HOWES – E-LEGISLATION. LAW-MAKING IN THE DIGITAL AGE
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If you decide, for instance, that you’re hungry for Chinese food, you could type
a query that gets attached to an icon of a tree seed. You could then plant the
seed in the cybergarden of Happenstance to begin a search for nearby restau-
rants. Today’s Internet browsers would list the query results as hyperlinked
blocks of text, but inside Happenstance the results appear as leaves sprouting
on a tree.Y
One obvious difference between the tribal village and the cyber-village is that the
members of oral societies lead an ostensibly more embodied existence, being in con-
stant bodily engagement with their environment and each other. Cyberspace, in com-
parison, is notoriously disembodied. As noted above, however, cyberspace is rapidly
becoming “re-embodied” as a wide range of sensory phenomema, from touches to
smells, is adapted for electronic transmission. If cyberspace is a world of secondary
orality, it is also becoming a world of “secondary embodiment’.
It will be appreciated how the sensory development of cyberspace will have the
effect of restoring the corporeal dimension of the communication process (a dimen-
sion that writing and print have tended to exclude or suppress), and of evoking pas-
sions that were previously suppressed behind a facade of disembodied objectivity. The
most dramatic transformation, however, has to do with the new potential for multime-
dia, non-verbal, non-linear communication.” In a cyber-world a text on a computer
screen may suddenly burst into song, change colour, transform into a 3-D sculptural
image, or start to dance, just as messages in oral societies may take many different sen-
sory forms. Can the black letter of the law remain untouched by these transformations?
IV. Governing the Electronic Tribe or Feasting on the Law
Although the resemblance between primary and secondary oral cultures is far
from total, it is still strong enough to indicate that, when considering the future of
legislation in a digital age, it may be more fruitful to look at law-making in pre-modem
oral societies than to dwell on its manifestations in the text-bound culture of modernity.
IbiL
35See Lanham, supra note 24 at 11. The digitization of the word has freed it from the reification to
which it was subjected under the regime of print, with the result that
[t]he historical evolution of two-dimensional, static letterforms arranged and fixed in a
horizontal string is shifting course. Type is no longer restricted to the characteristics
found in the medium of print such as typeface, point size, weight … Letterforms with
behavioral, anthropomorphic and otherwise kinetic characteristics; text that liquifies
and flows; three-dimensional structures held together by lines, planes and volumes of
text, through which a reader may travel-these are only a few examples of the impact
digital technology is having on the once simple, humble letterform.
J. Bellantoni & M. Woolman, Type in Motion: Innovations in Digital Graphics (New York: Rizzoli,
1999) at 9.
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In an oral society the law is personal: it is always conveyed by one person to an-
other, and hence never has the depersonalized objective character of a written text. In
oral societies law is also customarily shared. While the elders and leaders may have a
greater store of legal experience, all members of the community will be familiar with
the rules and regulations of their society. Law is “studied” not by reading books or
attending university courses, but by a process of oral (and mimetic) instruction that
forms an intimate part of daily life and ritual observance. As H.P. Glenn writes, “ide-
ally the important information is learned by all, with the help of many, and all become
able to assist in the ongoing process.””
Oral societies do not have the means to preserve vast quantities of legal or other
information. What knowledge is to be retained by future generations must be rela-
tively simple and memorable. Another key trait of oral law is that it is always current,
for its only expression exists in the present. While oral traditions may certainly appear
inflexible at times, the absence of written documents of past rule-making increases the
potential for adapting customs to respond to contemporary needs. Oral laws are re-
fashioned and presented anew every time they are stated or employed.
Both to ensure their transmission and to make them vital to daily experience, laws
are communicated through many different means in oral societies. Thus in oral socie-
ties laws are not exclusively oral. In his contribution to this issue, Rod Macdonald
suggests that in our own society the fridge door, with its plethora of diverse symbols
and messages, might serve as a model for law-making.” In oral societies the messages
on the fridge door (or whatever form the storehouse takes) provide not only a model
for the formulation of legal codes, they are themselves an expression of legal codes,
together with the food inside the fridge (storehouse). Laws may be painted in designs
that cover house fronts, distilled into perfumes, or cooked into a meal. A flower or an
animal, the course of a river, or the patterns of the stars may serve as crucial symbols
for the social codes that regulate communal behaviour. Laws may be enacted through
songs and dances or through ritual battles. Among the Desana Indians of the Colom-
bian rain forest, for example, the shaman states that his role is to help people observe
the laws through all of their senses: “to make one see, and act accordingly”, “to make
one hear, and act accordingly”, “to make one smell, and act accordingly” and so on.”3
When the law is a dance or a ritual meal it becomes something one can touch and
taste and incorporate into one’s own body as well as see and hear.9 By dancing out or
” H.P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford Univer-
sity Press, 2000) at 59.
31 See Macdonald, supra note 26 at 29-36.
” Discussed in C. Classen, “Worlds of Sense” in Classen, supra note 29, 121 at 133.
39 See Hibbitts, supra note 28. See further M.F Gu&lon, “Dene Ways and the Ethnographer’s Cul-
ture” in D.E. Young & J.-G. Goulet, eds., Being Changed: The Anthropology of Extraordinary Expe-
20011 D. HOWES – E-LEGISLATION. LAW-MAKING IN THE DIGITAL AGE
55
feasting on the law one both learns it and performs it, in conjunction with other mem-
bers of one’s community. This point may be illustrated by considering the example of
how law is acted out among the Witsuwit’en, a First Nations people of the interior of
British Columbia. Among the Witsuwit’en title to land and authority over it are held
by particular named, hereditary chiefs on behalf of all the members of a house (or
lineage). There is an intrinsic connection between the name of a chief, the songs (or
oral histories) and crests associated with that name, and specific territories.
In the event of a succession, in the case of a boundary dispute, or to resolve any
other issues, a house will hold a feast. At the feast, in order to validate his title to
name and territory alike, the chief will either recite the history of his name and house,
or act out his crest. (For example, a chief with “wolf’ as his crest would enter the feast
hall wearing a wolf mask or a blanket with a wolf design.) Next, the chief will chant
the names of all the landmarks demarcating the traditional territory of his house, ver-
bally walking the assembled company around the periphery of his house’s territory. This
link with the land is the main basis of his authority. Guests, consisting mainly of the
chiefs of other houses, pay close attention to all the territorial and status claims made in
the recitations or songs, and challenge any claims that they think do not ring true. In this
way, the oral history of each house and its title to specific territories is “authenticated”
(by being subject to contradiction, as appropriate) each time it is performed.
The vetting of competing histories and the floating of proposals to resolve dis-
puted issues continues until a consensus is reached. The consensus is sealed by the
chief’s distribution of furs and meat secured on the house’s territory to the assembled
guests. By receiving these gifts, the guests acknowledge the chief’s jurisdiction and
accede to his history. They are agreeing literally to eat and wear his words. Finally, the
whole gathering is sprinkled with eagle down, symbolizing closure and peace.”0
Conclusion
It is instructive to consider how these characteristics of law-making in oral socie-
ties compare to the eight principles “of legal excellence toward which a system of
rules may strive” put forward by Lon Fuller.” Fuller’s eight principles, briefly stated,
are: generality, promulgation, non-retroactivity, clarity, absence of contradiction, fea-
sibility, constancy over time, and congruence. While these principles are not neces-
sarily opposed to the character of law in oral societies, they are not entirely applicable.
rience (Peterborough, Ont.: Broadview Press, 1994) 39; J. Ryan, Doing Things the Right Way: Dene
Traditional Justice in Lac La Martre, N.W.T (Calgary: University of Calgary Press & Arctic Institute
of North America, 1995).
, A. Mills, Eagle Down Is Our Law: Witsuwit’en Law, Feasts, and Land Claims (Vancouver. UBC
Press, 1994) especially at 43-55.
“L.L. Fuller, The Morality ofLaw, rev. ed. (New Haven: Yale University Press, 1969) at 41,46-91.
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Fuller’s model presumes a top-down, text-based model of law. It is based on a sup-
posed alienation of law-subject from law-giver that is not unlike the separation of
reader from writer in literate societies. The rule requiring the promulgation of laws,
for example, is largely meaningless in a society such as the Witsuwit’en where the
whole community participates in law-making events. Similarly, the principles pro-
moting the clarity and congruence of laws lose importance when laws are not arcane
textual creations to be interpreted and applied by legal specialists but expressions of
daily life.
The principles concerning non-contradiction and constancy over time seem like-
wise to reside in a textual understanding of law. They point to a vision of law as ide-
ally unchanging and therefore fundamentally different in nature from society itself,
which is full of contradictions and inconstancies. In oral societies laws do not exist
separately from the people who give voice to them or act them out. Variant under-
standings and presentations of laws need not seem contradictory or inconstant when
there is no written text against which to compare them. Similarly, laws are unlikely to
be retroactive where there is no reified, text-based understanding of the past. Consis-
tency is important to oral societies, but not consistency within the law itself. What
matters is that laws be consistent with general social norms and with the particular
situation to which they are being applied.
Fuller’s principles may be considered idealized expressions of a classic, textual
(print-based) model of legislation. The shift in emphasis and interpretation that occurs
when these principles are examined in the context of oral traditions of law-making
suggests some of the ways in which conventional Western notions of legislation may
change as we enter an age of electronic orality. The ideal of generality may be re-
placed by one of contextuality, promulgation may take second place to participation,
striving for non-contradiction and constancy over time may be less important than
making room for alternative norms and innovative solutions to social problems. Sig-
nificantly, these new versions of Fuller’s principles derived from the basics of oral law
are not dissimilar to those formulated by Macdonald using the postmodern model of
the montage of signifiers on the fridge door. This reinforces the notion that the social
and legal life of postmodernity may resemble that of pre-modemity as much as it does
that of modernity.
There are many crucial ways in which the cyber-village differs from the tribal
village and presents its own unique social and legal concerns. The cyber-village is, of
course, not really a village, just as the global village is not really a village. It can be
likened rather to a network of villages with certain common interests and characteris-
tics. This network cuts across national boundaries, as the cyberspace occupied by
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D. HOWES – E-LEGISLATION: LAW-MAKING IN THE DIGITAL AGE
57
Internet communities need not correspond to physical space. 2 Here again, however, it
seems likely that the global character of the cyber-village would encourage the devel-
opment of national and international legal systems with the flexibility to deal with
cross-border conflicts. The authority of such legal systems may depend less on the
threat of physical enforcement than on their ability to engage and persuade, to seduce
through the senses, and to make sense within the new social order of the cyber-
village.
Unlike oral societies, electronic societies have the means to store vast quantities
of detailed information. However, the continual input of new information on the Net
will make much of what is stored seem irrelevant and archaic. When the number of
publications appears infinite and when texts can be electronically transmuted by read-
ers, the traditional notion of the authority of the printed text will lose much of its in-
fluence. There will be an expectation in the postmodern cyber-village that legal
knowledge will be accessible, and that it will be both communal and personal, or in-
teractive. As in oral societies, the emphasis will be on conflict resolution that adapts
standard laws to existing circumstances and norms.
As information is increasingly presented in non-linear, multisensory forms in cy-
berspace-such as employing a model of a tree or garden-there will also be a drive
to make legal codes appear more dynamic and organic in nature. The rivers and flow-
ers that may serve as natural embodiments of social codes in oral societies may have
pseudo-organic counterparts in the virtual reality of cyberspace. Such radically new
(from the perspective of late-modem print culture) ways of conceptualizing and pre-
senting the law may well exist only on an unofficial, popular level. Yet, as noted
above, if cyber-models and traits become sufficiently popular and influential they
might de facto come to supersede more conventional forms of legislation. Indeed, the
legislative assemblies of tomorrow may themselves well consist of more sophisticated
versions of cyberspaces like Diamond Park, an “extensive, elaborately detailed, fully
three-dimensional, mile-square virtual place” which users navigate by means of a sta-
tionary bicycle wired to a computer, and where they meet and converse with other
(similarly ensconced) users who appear as three-dimensional animated avatars. 3 Or
they might resemble a virtual version of the Witsuwit’en eagle down ceremony de-
scribed above, making use of symbols and songs, and culminating in a digital feast.
2 Though it is not within the scope of this paper to examine the questions of sovereignty and juris-
diction that arise when actions no longer occur within specific geographic locations, a number of
authors have considered these complex issues. For a review, see E. Longworth, “The Possibilities of a
Legal Framework for Cyberspace-Including a New Zealand Perspective” in T. Fuentes-Camacho,
ed., The International Dimensions of Cyberspace Law (Aldershot, U.K.: Ashgate, 2000) 9.
43Mitchell, supra note 11 at 121-23, quotation at 121.
