Abstract
The chapter analyses the ways in which technology and law disperse, channel and reassemble agency in ICT enabled legal proceedings. It works from five of the case studies of e-justice discussed in the book, assessing how different approaches magnify or reduce complexity and affect systems development and use. The law can legitimate ensembles of technological and performative procedures, but it cannot construct them by regulation through a legal blueprint. Attempts at excessive legal regulation quickly raise complexity to unmanageable levels. Technology is assessed as a distinct regulative regime that opens new channels of communication, potentially duplicating existing legal and traditional channels. The regulation of technology could take advantage of this state of affairs. Machines and software codes identify and admit participants and direct human activity. Some of the difficulties in reproducing legal processes in technologically enabled environments are explained by the demands of the performative, where meanings exceed the demands of simple information flow. The chapter explores the requirements of meaning making, by which participants recognise the context and the legal consequences of ICT enabled procedures. The interfaces of law and technology rely on the interpretive context in which messages are understood as well as the legal forms in which they are transmitted. Each of these elements is essential to assure the circulation of agency in ICT enabled legal proceedings, while ensuring the legality of the entire ensemble.
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Notes
- 1.
This chapter is a revised and expanded version of Mohr, R. and Contini, F. 2011. “Reassembling the Legal: ‘The wonders of modern science’ in court-related proceedings”. Griffith Law Review 20: 994–1019. The authors are grateful to the editors of the Griffith Law Review for permission to use a considerable part of that article. While the work is the result of a joint effort of the two authors, the evaluation exercise of the Italian research systems requires the attribution of specific sections to individual authors. In response to this evaluation requirement individual sections may be attributed as follows. Contini: Law, technology and courts; Regulation of technology and technology as regulative regime; Regulative approaches to e-Justice, Lowering complexity in ICT enabled legal processes, Identity and agency; Technology regulation in EPO and ESCP; Mohr: Introduction, Identity and the performance of legal agency; Legalise, Reassemble, Signify; Making technology legal; Contexts of the performative; Performing the legal; Pathways and the reassembling of agency.
- 2.
Latour considers this and other relations between people and technology in his Reassembling the Social: an introduction to actor-network-theory (Latour 2005).
- 3.
Each of these regulations is linked to other regulations and standards developed in various technological sectors, such as the A4 page (International Standard ISO 216) or the https protocol (combining http and ssl technical standards).
- 4.
As seen in more detail below, legal pronouncements underpin ‘The “the force of law” that supports human societies, [through] linguistic enunciations that stably obligate living beings’ (Agamben 2011, 70).
- 5.
The expression ‘oath’ here covers both the religious form of swearing by God, and the secular form, distinguished by the term ‘affirmation’ in some English-speaking jurisdictions. The legal effect is equivalent.
- 6.
Recognising the parties for who they are is not simply a formal legal requirement, but goes to the heart of political and moral life. Honneth (1995) and Ricoeur (2004) have placed the relationship of recognition at the very foundation of the polity and of social life, respectively. Here we focus on its role in legal proceedings as a driver of legal agency.
- 7.
Giovan Francesco Lanzara helpfully pointed out, in commenting on earlier versions of this work, that ‘assemblage’ in this context is more closely related to the French ‘agencement’, a richer and more precise term that refers to the social circulation of agency, in space and time, through persons and objects, than the French ‘assemblage’. We have now been able to address the question of agency in greater depth, thanks to Lanzara’s previous comments and his elaboration in Chap. 1 of the present book.
- 8.
Law no. 59 of 1997 established the legal value of digital documents and digital signature based on PKI standard (L. n. 59/1997), and the Presidential Decree no. 123 of 2001 endorsed Trial Online based on that law (D.P.R. n. 123/2001).
- 9.
In MCOL technological development was carried out by the private company that was managing the pre-existing systems at the Bulk Centre, and therefore without a specific tender.
- 10.
D.P.R. n. 123/2001.
- 11.
Decree of the Ministry of Justice n. 264 of 2000, Ministerial decree of 27 March 2000 (D.M. n. 264/2000), followed by other regulations.
- 12.
MCOL switched to the Government Gateway in 2010, 8 years after the launch of the system.
- 13.
If the defendant ignores the claim a judgment by default will be issued by the Court of Northampton.
- 14.
This has recently been substituted by the use of certified email.
- 15.
Ministero della Giustizia, ‘Processo Civile Telematico’, http://www.processotelematico.giustizia.it. Accessed 8 August 2011.
- 16.
Since 1997 the implementation of TOL has required ‘a never-ending string of regulations’ that Fabri describes as a ‘legal soap opera’ (Fabri 2009, 130).
- 17.
We identified a problem of this sort in Australian speed infringement notices, where paying a fine is as easy as paying a bill, but with legal consequences (including possible loss of a driving licence) that are not apparent from the familiar, bill-paying environment (Mohr and Contini 2011, 1008).
- 18.
See also footnote 6.
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Contini, F., Mohr, R. (2014). How the Law Can Make It Simple: Easing the Circulation of Agency in e-Justice. In: Contini, F., Lanzara, G. (eds) The Circulation of Agency in E-Justice. Law, Governance and Technology Series, vol 13. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7525-1_3
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