Introduction: Law as a Process of Communication

There is an old story of an ax that had been in the same family for many generations. Each generation inherited the ax, used it, and, as a cherished family heirloom, passed it along to the next generation. Recently, an old drawing of the ax was discovered, showing it as it had been originally. To the surprise of the current owners, the original was much smaller, perhaps one-half the size of what it is now, and with a smaller blade as well. Other records indicated that in the last two hundred years, the ax handle had been replaced ten times and the blade five times.

In many ways, the law is our ax. It has been a useful, important and powerful tool. It is an heirloom, an item that we cherish and take pride in. It is also extremely different from what it once was, although we have difficulty understanding how different it actually is. What we call law is not the same concept that our ancestors had in mind when they used the term.

The main theme of this book is that broad change is occurring to the law, to what it is and how it works, and that these changes are linked to the appearance of new methods of storing, processing and communicating information. We are the first society in history to have the ability to communicate electronically. Because of various qualities of electronic communication that will be described below, the control of information, the organization of information and the movement of information are no longer the same as they once were. This will have a considerable impact on an institution, such as the law, whose foundation is the processing of information but whose goals, values, capabilities and modes of operation are tied to the older methods of communicating.

Some of the areas of ferment in the law that are discussed in this book have been observed by others. Richard Abel, for example, has asked

Do the following phenomena have anything in common: the attack on professionals, the state, and bureaucracy, calls to deregulate the economy, the advocacy of decentralization, demands for the decriminalization and delegalization of private behavior (drug use, divorce), deinstitutionalization (in education, care of the mentally ill, restraint and punishment of the delinquent and criminal), the preference for informality in hearing complaints and processing disputes? What is it that is really changing: ideology, substantive norms, processes, or institutions? Is the ambit of state control contracting or expanding? What impact will these changes have on fundamental social, economic, and political structures? Or is it all a lot of talk, with minimal significance for anyone except those who manage the legal system..(1)

Another scholar has suggested that "the law is becoming more fragmented, more subjective, geared more to expediency and less to morality; concerned more with immediate consequences and less with consistency or continuity.".(2)

The main contribution of this volume is to suggest why and how these and other seemingly unrelated or isolated facets of law are being affected by modern developments in the transmission, storage and processing of information. Marshall McLuhan wrote that when "a new technology comes into a social milieu it cannot cease to permeate that milieu until every institution is saturated.".(3) This book is an attempt to identify some of the ways in which law, an institution that has relied greatly on print, writing and the spoken word, is highly vulnerable to the influence of new means of communicating information that possess very different qualities.

In 1886, when twenty three year old Guglielmo Marconi tried to carry his small black box past British customs agents, the cautious and uncomprehending officials examined it and then smashed it to pieces. The customs personnel feared violence and revolution. They finally allowed Marconi to enter England, not comprehending that the box was indeed revolutionary, although not of the kind that they had imagined. When his rebuilt black box evolved into the radio several years later, society began a journey toward a way of life that is vastly different from what it was at the end of the last century.

Radio, television and computers, the principal forms of electronic communication, have had an enormous impact on our basic institutions. Many of the changes brought about by the new media are already known. Modern multinational corporations could not exist were it not for the ability of the computer to facilitate management of worldwide corporate empires. The television has largely replaced the political party as the vehicle for organizing and persuading voters. In summarizing the findings of scholarly research on the impact of television on American life, Dean George Gerbner has asserted that "it has reshaped politics, changed the nature of sports and business, transformed family life and the socialization of children, and affected public security and the enforcement of laws.".(4)

Of all of the important institutions just mentioned, law appears to have been affected the least. The traditional nuclear family is hard to find, some business empires are now larger than many nation states, and politicians employ a style of campaigning that would mystify the founding fathers. The development of the electronic media may not be the only explanation for these developments, but it is a significant contributing factor and has been the subject of much scholarly research. The number of studies of the impact of the electronic media on the nature of law and its role in society, however, is negligible.

On the surface, the law appears to be relatively immune from the effects of the new media compared with these other institutions. A judge of 1887 who was transported through time to one of our contemporary courtrooms would undoubtedly be mystified by many cases brought before him. But he would be far more understanding of what was transpiring than a businessman, athlete or politician who underwent a similar experience. A judge of a century ago who found himself in the Supreme Court of the United States today would need some orientation but the process being used would not be totally alien. Imagine, however, how bewildered a business executive of a past age would feel upon entering the floor of the New York Stock Exchange during a day of heavy trading..(5)

Law's appearance today will not be law's appearance tomorrow. The law's resistance to the persuasive charms of the new media is nearing an end. Anyone who reads professional legal journals, particularly the advertisements in such magazines, knows that the high technology invasion of the legal process is in full swing. What is not recognized is that law cannot remain unaffected by large scale changes in the communication of information. The law is an institution built upon the creation, storage, processing and communication of information. It has even been defined as "ethical control applied to communication.".(6)

It can resist change and has done so more effectively than the other institutions just mentioned. It perhaps has understood instinctively that not resisting would lead to deep and permanent change. Yet, the era of resistance appears to be over and it is appropriate to examine what parts of our system of law are most susceptible to change and what these changes will mean to us. The law is about to catch up to the rest of society and, in so doing, become as different as the electronic businessman, the electronic politician and the electronic athlete are from their predecessors.

Law is an organism whose lifeblood is information and media of communication are the veins and arteries that move the information through the system. Harvard law professor Harold Berman has written that a legal system requires that there be a "belief in the power of certain words, put certain ways, to bring about certain effects denominated as legal. This kind of magic is necessary if law is to work.".(7)

Manipulation of information underlies the way legal institutions work, how legal doctrines are applied and how social and moral values are translated into legal values. Law is a response to information received from the public. Law is also information that is communicated to the public. Law is the result of judgment and decision making involving the evaluation and organization of information. As Professor Marc Galanter has observed, law

usually works not by exercise of force but by information transfer, by communication of what's expected, what forbidden, what allowable, what are the consequences of acting in certain ways. That is, law entails information about what the rules are, how they are applied, with what costs, consequences, etc. For example, when we speak of deterrence, we are talking about the effect of information about what the law is and how it is administered. Similarly, when we describe `bargaining in the shadow of the law,' we refer to regulation accomplished by the flow of information rather than directly by authoritative decision. Again, `legal socialization' is accomplished by the transmission of information. In a vast number of instances the application of law is, so to speak, self administered -- people regulate their conduct (and judge the conduct of others) on the basis of their knowledge about legal standards, possibilities and constraints..(8)

The information processing aspect of law is rarely noticed by legal scholars, journalists who write about law or lawyers themselves. Yet, this facet of the legal system is as important to law as the central nervous system is to human beings. Without such a system, both the human being and the legal process would be paralyzed and non-functioning. What a general once claimed about the military is true of law as well: "If you ain't got communications, you ain't got nothing.".(9)

Or, as legal philosopher, H.L.A. Hart stated in a more scholarly style, "[i]f it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion rose, nothing that we would now recognize as law could exist.".(10)

The new media, however, the means by which much of this communication occurs, are radically different from the old and as information begins to be handled by different means, those facets of law which are reliant on the older media will change or disappear. Since so much of law is dependent on the uses of the traditional media, the end result for law will be very substantial change.

It is considerably easier to understand the transformation of the ax than it will be to comprehend how the law will change or how the new media will exert their influence. For the ax, we not only have hindsight, but a process of change that is discrete and an object that is easily identifiable. The law, on the contrary, is something that different people perceive in different ways. It resists definition even among legal scholars. While at a particular moment we may grab hold of it and try to use it to our advantage, looked at from afar it is a process that is in motion, and whose form and qualities are somewhat blurred.

To understand the significance of the new media to law, it is necessary to discard some of the images and definitions that both law and media evoke. Typically, when law is referred to, the focus of attention is either on legal rules or on legal institutions. Law is considered to be a set of rules located in some book or library, a place, such as a courthouse, or a group of people, such as lawyers or police officers. These are, however, merely the visible parts of the system. They are the end products of a complicated process that the public does not see and therefore tends to ignore. To look solely at rules or institutions is like looking only at the words coming out of an individual's mouth and not understanding that there is something important going on inside the head that makes the external manifestation possible. In evaluating an individual's behavior, we make great efforts to understand not only what he or she does but the goals, perceptions, values and choices that underlie human behavior. We need to adopt the same approach to our examination of law.

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1. Abel, Richard L., The Politics of Informal Justice (New York: Academic Press, 1982), p. 1. Return to text

2. Berman, Harold, Law and Revolution (Cambridge: Harvard University Press, 1983), p. 39. Return to text

3. McLuhan, Marshall, Understanding Media (New York: McGraw-Hill, 1964), p. 161. Return to text

4. Gerbner, George, "Trial by Television: Are We At The Point Of No Return?" 63 Judicature 416, 418 (1980). Return to text

5. The power of stock exchanges to control trading is itself threatened by new technologies. See Hamilton, Adrian, The Financial Revolution (New York: The Free Press, 1986), pp. 42-49. Return to text

6. Wiener, Norbert, The Human Use of Human Beings (Boston: Houghton Mifflin Co., 1950), p. 143. Return to text

7. Berman, Harold, "The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe," 45 U. Chi. L. Rev. 553, 563 (1978). Return to text

8. Galanter, Marc, "The Legal Malaise: Or, Justice Ob- served," 19 Law and Society Review 537, 545 (1985). Return to text

9. Bolling, George, AT&T: Aftermath of Antitrust (Washington: National Defense University, 1983), p. 3. Return to text

10. Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961), p. 121. Return to text