Saturday, September 27, 2003

LawPundit (TM) - The Law is a Seamless Web - Or is It?


HISTORY IS A SEAMLESS WEB

For the 250th anniversary celebration of the founding
of the Supreme Court of the State of New York,
Professor Arthur L. Goodhart (Oxford, Cambridge) wrote:

"English and American law are so closely intertwined that it is almost impossible to draw a line between them; they are based on the same fundamental principles of justice, and they subscribe to the same high ideals of fairness and of good faith. Their history, as every student of the law knows, is -- to borrow Maitland's phrase -- a seamless web that cannot be torn apart."

THE LAW IS A SEAMLESS WEB

The phrase "The Law is a Seamless Web" is well known and has been attributed to various judges, but where does it really come from? The late Professor John Kaplan had a basic rule of evidence demanding that researchers in such questions "go the the ORIGINAL sources first", since "facts" often get lost in translation over time. So what is the oldest known legal source speaking of a "seamless web"?

The oldest known source is Frederic W. Maitland, who originally did not write that the "LAW is a seamless web" - today's popularized phrase - but rather he wrote that "HISTORY is a seamless web", of course, applied to law.

Mary Whisner in a posting entitled "Quotation Source? Law is a Seamless Web", cites to Professor Ethan Katsh in a Villanova Law Review article (38 Vill. L. Rev. 403, 1993 ). Katsh goes back to the apparently original source and finds that Maitland was the first to use the phrase "seamless web" as follows ... and has apparently been misquoted ever since:

"Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.QUARTERLY REV. 13 (1898); see also 1 Frederick Pollock & Frederic W. Maitland, THE HISTORY OF ENGLISH LAW 1 (2d ed. 1899).

THE MOST ANCIENT WRITTEN LAWS

Indeed, law and history share an ancient inextricable heritage, with the most ancient written sources containing not only laws but case law as well, e.g. the tablets of Ebla, the Code of Hammurabi, the Commandments of the Bible.

THE SEAMLESS WORLD WIDE WEB

Now the "World Wide Web" is adding a new chapter to "The Seamless Web" of law and history. In fact, it is estimated that 70 percent of global IT spending 2003-2005 will be driven by LEGAL regulatory compliance requirements, according to the PriceWaterhouseCoopers Technology Forecast: 2003-2005 which is summarized at iTNews Australia.

LAW and CYBERSPACE

Law and Cyberspace are thus symbiotically interlocked in a marriage of opposites. Law - by nature staunchly conservative - meets Cyberspace, a virtual space - by nature, open and libertarian. What will be the result? Professor Katsh, cited above, who was recently appointed chairman of a United Nations expert group studying online dispute resolution, also has an excellent online course on "Law and Cyberspace" where he cites to two essential sources which we find to be required reading for any understanding of the current developments in modern law, legal studies, the internet and cyberspace. These are:

1. Code and Other Laws of Cyberspace by Lawrence Lessig
about which Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, and Director of the Information Society Project at Yale Law School, writes on the cover: "This is, quite simply, the best book that has been written on the law of cyberspace."
and
2. the cogent review of the book by David G. Post in 52 Stanford Law Review 1439-1459 (2000)
found online at What Larry Doesn't Get: Code, Law, and Liberty in Cyberspace.

BLAWGS and CYBERSPACE

Interestingly, as if portending the coming world of weblogs, Post mentions Eugene Volokh in his descriptional note regarding the development of his above essay, and the Volokh Conspiracy is today one of the leading blogs on the web.

Indeed, the prominent position of law weblogs at the forefront of the blog revolution was to be expected, because it is the lawyers - as guardians and regulatory controllers of the traditional world of temporal "real space" - who are, not unsurprisingly, the first to see the possible controls which can be exercised upon the new world of "virtual space". Indeed, the core hypothesis of Lessig's book is that cyberspace demands a new understanding of legal regulation. As he writes (p. 8): "It compels us to look beyond the traditional lawyer's scope--beyond laws, regulations, and norms. It requires an account of a newly salient regulator." That regulator is code, and that code is - also - law.

Puzzled? You might be if you have not read Lessig's book. We will examine these and similar issues in detail in future postings on LawPundit (TM), one of the new generation of "blawgs".

What is a "blawg" (b-law-g)?

BLAWG.ORG, a legal weblog with the motto "Your Source for Law & Legal Related Weblogs", defines a blawg as follows:
"Blawg, n, a weblog with emphasis on the law or legal related issues and concerns, often maintained by an individual who studies, practices or otherwise works in the legal field."

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