Legal theory and IP on the web   no comments

Posted at 2:10 pm in Law

I’m currently reading ‘Information Technology Law: The law and society’ by Andrew Murray. Interestingly, the author proposes that this area of Law differs from others in one important way.

β€œThe question at the heart of most legal textbooks is: ‘how does the rule of law affect individuals within the environment over which this law is effective?’”. However IT Law is, by necessity, the other way around. Namely, it asks ‘How does the web affect the law?’, rather than how the law effects the web. This is because technology changes so quickly that the rule of law cannot keep up. Instead, old laws must be interpreted to deal with new situations.

This presents a small challenge for me as a novice trying to understand the basics of Law through it’s application to the web. If Murray is right, and IT law is an inherently atypical topic within Law, it won’t generalise to other topics and so I’m bound to get a warped idea of what Law is. However, by reading up on some of the basic concepts, terminology and key statutes etc., I should be able to develop an understanding of how my topic can be approached from a legal standpoint – even if that approach is slightly different to that taken by legal scholars working in other areas.

With that in mind I’ve also been trying to familiarise myself with the basics of Jurisprudence, the theory or philosophy of Law. I’ve chosen to look at this first for two reasons. The first is partly down to intellectual cowardice: given my philosophical background, it should be less of a challenge than other aspects of Law. Second, and more importantly, I think Jurisprudence will be an important aspect of understanding my topic. The Wikipedia entry for Jurisprudence divides it into two areas:

1.) Problems internal to law and legal systems as such.

2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Because my topic is about the way an aspect of law (intellectual property) relates to a social phenomenon (information goods on the web), the second area is particularly relevant to me.

Within this area, there are several approaches to understanding what drives the law. The oldest tradition is ‘Natural Law theory’, the dominant position for much of the history of jurisprudence. According to its proponents, man-made laws are attempts to reflect or approximate natural moral laws. These are moral truths which exist independently of human judgement or reasoning. They could be understood by theists as derived from a deity, or by atheists as simply a feature of reality. The important point is that our man-made laws should reflect these pre-institutional moral realities. Indeed, if they do not, they aren’t real laws at all. A common maxim of natural law theory is ‘lex injusta non est lex’; an unjust law is not a (real) law.

An example of natural law theory in action today can be seen in the idea of universal human rights. According to their proponents, human rights exist independently whether or not there are man-made laws protecting them; indeed, they are most important where such laws are absent. There is also an understanding amongst human rights advocates that man-made laws should approximate these independently existing moral rights.

Legal Positivism is now the dominant position amongst legal theorists. Unlike Natural Law theory, it does not assume that man-made laws must approximate independent moral laws. Rather, it splits the question in two. Whether or not a law is valid depends on how it was formulated, whether it went through the socially sanctioned systems and processes put in place to create laws. This is not the same as the question of whether or not, morally speaking, it is a just law. A law might be valid, having gone through the appropriate formulation, but we might judge it to be unjust according to some non-legal moral standard. For instance, homophobic or racist laws may be valid in the context of a particularly time and place, but this doesn’t mean they aren’t wrong, morally speaking. Conversely a law might be invalid because, for instance, it contradicts a state’s constitution, but this doesn’t mean it is not a good law, morally speaking.

This distinction between the institutional validity and moral worth of a law may prove important in debates about content on the web. Online ‘piracy’ may be morally wrong, or it may simply be illegal. Likewise, certain uses of information goods on the web may not be illegal, but nevertheless morally wrong. Parties on different sides of the piracy debate frequently allude to both moral and legal considerations – usually adopting whichever is strongest in a particular context. And since most legal theorists adopt some kind of positivist approach, and few adopt the natural law approach, assessments of intellectual property on the web do not usually take the form of moral arguments.

Written by rb5g11 on November 1st, 2011

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