Liberty, Freedom and the Lessons of History

There is a point of view that suggests that the current rhetoric on “freedom and rights” derives from American conceptions of individualism and individual freedoms. This point of view has been articulated by Nicky Hager who expressed a justifiable concern that many of his associates were being swept up and high-jacked by unsavoury elements whose principles and values were antipathic to theirs.

In his discussion however, he made the following observation about the concept of freedom. In suggesting that there is a Trumpian influence through the rhetoric of many of the protesters he observed that US ideas about freedom meant

“freedom of the individual to do what they like and stuff everyone else. In New Zealand, the dominant values are much more about community and caring for each other. Freedom sounds good, but it’s a slogan for deeply conservative and unattractive ideas that deny or avoid the responsibility we have for others.”

Hayden Thorne makes a similar suggestion within the context of the rhetoric about the rights of the individual to refuse vaccines and keep a jobs.  He argues that this is an import from the United States and goes on to suggest that first it corrupts the importance of American constitutional freedoms and shows a serious misunderstanding of our culture and constitutional structure.

To suggest that the concepts of individual rights and freedoms are an import from the United States is incorrect.

Freedom  – or liberty as I prefer to call it – is not a peculiarly American ideal and historically its concepts extend further back in history than the American Revolution.

Perhaps one of the most articulate and eloquent expressions of the nature of liberty (or freedom) came not from America but from the pen of the English philosopher John Stuart Mill in his classic “On Liberty”.

Mill considered that the tyranny of government needed to be controlled by the liberty of citizens.

 There were two ways in which this came about. Citizens had inherent rights and citizens thereby established constitutional checks on the government which, with the consent of the community, represented its interests. These checks imposed conditions on the governing power, thus preventing its absolute exercise.

In some respects this hearkened back to Enlightenment thinking about the nature of Government expressed by Thomas Jefferson (along with John Adams and Ben Franklin) in the Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

We can see in that statement the emphasis is on individual rights. The duty of Government is to secure or ensure these rights and then powers of the Government to do so derive from the consent of the governed.

However, although these ideas received their best known expression in the Declaration of Independence they were founded upon the writings and thinking of the English philosopher John Locke and in particular his Second Treatise on Government. Locke identified life, liberty and property as the three fundamental rights and that a Government existed, among other things, to promote public good, and to protect the life, liberty, and property of its people.

Thus we can see a thread running through the argument of liberty as an aspect of individual identity which should be protected by and yet from the Government. If a Government fails to ensure the protection of life liberty and the pursuit of happiness, the consent of the governed may be withdrawn and the Government loses its mandate to govern. But Mill was very clear on the extent of government power as it affected the individual

“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … Over himself, over his body and mind, the individual is sovereign.”

This did not arise from a concept of natural rights because Mill based his standard on utilitarian principles and arising from that there were three basic liberties. Mill ranked these in the following order:

1. The freedom of thought and emotion. This includes the freedom to act on such thought, such as the freedom of speech
2. The freedom to pursue tastes (provided they do no harm to others), even if they are deemed “immoral”
3. The freedom to unite so long as the involved members are of age, the involved members are not forced, and no harm is done to others

Mill conceded that in certain situations and circumstances  these freedoms can be overridden but in modern and civilized society there was no basis or justification for their removal.

As has been noted, Mill ranked freedom of thought as the most important basic liberty. Opinions ought never to be suppressed. Indeed he recognized that there may be false beliefs, beliefs that are partly true and those what are wholly true. All of these provide some benefit to the common good. He wrote:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

One of the major criticisms of the current “rights” or “freedoms” rhetoric is that it is selfish and self-centred. There are several ripostes to this.

The first is that rights in and of themselves are inherently individualistic. Individuality is by definition the thriving of the human person through higher pleasures as Mill put it. Individuality promotes creativity and diversity and, as a corollary to that, conformity carries with it dangers.

Secondly, the word “selfish” in modern parlance is a term of criticism rather than a term of celebration. The first objective of an individual is to ensure his own survival. Only then can he enjoy the liberties that accompany that survival. “Selfish” is used to describe this but “self-interest” and “self-determination” probably are better encapsulations of these aspects of individual liberty. As opposed to this is altruism.

Altruism is all very well if it is freely assumed as a conscious choice. The problem is that enforced altruism – that it is a moral obligation to live for the sake of others – is a moral obligation that at times is incorporated into law. But there are frequently times when enforced altruism challenges self-interest or requires an individual to accept a lesser enjoyment of life than that they may otherwise achieve by virtue of their own efforts.

In considering, therefore, the nature of liberty, Hager’s comment “freedom of the individual to do what they like and stuff everyone else” – is not only a rather ineloquent albeit incorrect articulation of an aspect of self-interest and self-determination but it is wrong. Hager balances this against what he describes as what he describes as New Zealand values of being more about community and caring for each other. In this way he argues that rights-based rhetoric is inimical to the caring community but it is not. A community is comprised of individuals rather than of a hive-mind.

Each individual enjoys liberty as described by Mill. Within that liberty there is the liberty of choice – the choice to remain aloof from or become involved as John Donne put it “in mankind”. It is my choice to care for my neighbour and to assist my neighbour but not to the detriment of my own existence. Liberty is not for the purpose of selfish indifference which may be the real root of Mr Hager’s complaint.

But liberty ensures that that a person should be left as free to pursue his own interests as long as this does not harm the interests of others. Mill’s system of liberty was intended to bring greater benefit to an individual than physical or emotional coercion. This means that a person may, without fear of sanction, do harm to himself. The only time that a Government should impose a sanction on a person would be for neglecting to fulfill a duty to others (or causing harm to others), not the vice that brought about the neglect.

The difficulty that has arisen lies in the polarization of points of view. For some extraordinary reason those who advocate for liberty are being equated with organisations that have little interest in the true nature of liberty or freedom characterized by Mill or by Enlightenment thought. There is little doubt that some of those organisations are fellow travellers with those who currently advocate for freedom or for liberty but this does not mean that they have high-jacked the theories of liberty nor the practice and reality of liberty.

Rather it seems that certain elements seem to apply a stereotype to those who advocate for freedom that may not be justified and that, like most stereotypes, ignores individual difference and diversity.

This leads me to a few observations on Mr. Thorne’s position. His starting point is that we should learn from history, but he has overlooked the history of the philosophical underpinnings of liberty . That is demonstrated by his assertion that “individual rights dialogue was corrupted by the American right – in particular, the religious right – to protect what it saw as important, at the expense of other groups in society. Debates about abortion and gun control became infected with an emphasis on individual rights.”

I would suggest that the individual rights dialogue referred to by Mr Thorne pre-existed the 1970’s and the rise of the religious right, as I have already demonstrated[1]. That the dialogue started to be used as a justification for elements of various societal debates is neither unusual nor concerning.

Indeed the debate about abortion in the US is between the individual self-determination that a woman has to terminate a pregnancy on the one hand (grounded as Mr Thorne will be aware from his study of Roe v Wade and the cases that preceded it like Griswold v Connecticut not only in individual rights but underpinned by privacy considerations)  and the rights of the unborn child (as an individual) on the other. These tensions are well known and common when the law and differing moral standards collide.

The debate about gun control is grounded upon the various nuanced interpretations of the Second Amendment to the US Constitution and again involves a conflict between rights – one grounded in a constitutional instrument and the other on aspects of individual safety – again a tension between competing interests with which the law is familiar.

I do agree with Mr Thorne that to try and import US Constitutional theory into New Zealand law misunderstands our constitutional arrangements. Unlike the US Constitution and its Amendments, we do not have a “higher law” that can be employed to test the legitimacy of Acts of Parliament. The New Zealand Bill of Rights Act 1990 (BORA)  is more an aspirational piece of legislation than a constitutional one. It argues that in interpreting the law Judges should apply a “Bill of Rights friendly” approach – I know this is a gross oversimplification of the nuances of section 6 BORA and for that I apologise. On the other hand there is a specific provision – section 4 – that prevents a Court from holding that an enactment is invalid because it is inconsistent with the Bill of Rights Act. Thus it is not possible for a New Zealand Court to declare a piece of legislation unconstitutional as the US Supreme Court has been able to do since the early Nineteenth Century.

But that does not mean that the various individual rights of life, liberty and the pursuit of happiness and property have vanished, simply because constitutional arrangements are different. Although BORA may not occupy the supreme position of the US Constitution, it does articulate a number of rights such as freedom of expression (to impart and receive information) in section 14, freedom of movement in section 18, freedom of association in section 17, freedom of peaceable assembly in section 16, freedom of thought, conscience and religion in section 13, the right to refuse to undergo any medical treatment in section 11. These and the other rights contained in BORA (I have cited a brief selection)  are a bottom line. If the Government wishes to enact legislation that is inconsistent with BORA the Attorney-General must advise Parliament – section 7. That advice has rarely prevented inconsistent legislation being enacted but at least the Legislature is put on notice.

Furthermore any existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part – section 28. Thus the rights in BORA are not exclusive.

Another important point about the BORA rights is that they are primarily individual rights and provide a measure against which the acts of the legislature, executive and judiciary may be tested along with the actions of any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. Thus BORA acts (or should act) as a restraint on Government power which may involve interference with the rights of individuals.

It will be well-known that over the last two years the powers invoked by the Government have infringed upon and have abrogated many of the rights of New Zealand citizens that are contained in the BORA. In fact the exercise of these powers have resulted in a reversal of the principle that everything that is allowed unless it is prohibited to one (during lockdowns) of everything is prohibited unless it is allowed.

It is therefore not unexpected that individuals may feel concerned or upset that their individual rights have been and continue to be infringed, and that they may wish to express themselves and their dissatisfaction. But in doing so they are calling not upon Trumpism or the reinterpretation of rights rhetoric by the American religious right but on a long history of protest against the wielding of arbitrary Government power against individuals that goes back beyond Mill and Locke and indeed as far back as the Glorious Revolution of 1688 and the Petition of Right of 1628.

---

[1] I imagine that Mr Thorne is familiar with Rick Perlstein’s tetrology “Before the Storm”, “Nixonland”, “The Invisible Bridge” and “Reaganland”. If he is not I recommend them.

Advertisement

Impeding Technology – Legal Culture and Technological Resistance

Introduction

This paper is about a collision between the culture and symbolism that accompanies the administration of law and technologies that enable change and a different way of doing things yet are the focus of resistance. I argue that this resistance at its heart is cultural and has little to do with legal doctrine.

The particular technologies that I shall discuss are communications technologies that enable and facilitate remote hearings where the participants need not attend a courthouse for a hearing of their dispute. The resistance is, as I have suggested, cultural and is based upon a number of factors including the way in which the imagination and the image of the Court as a symbol is represented and the role that imagery plays in the perception of the delivery of justice.

This cultural aspect also has relevance on the way in which the Rule of Law is perceived within the context of the “Court as a Place”. I argue that whatever imperatives may have underpinned the “Court as a Place” model of the delivery of justice, they are no longer as relevant or meaningful as they once might have been and that new communications technologies allow us to reimagine and revisit the way in which justice is delivered.

Justice, the law and the Rule of Law have been characterized as a “looming omnipresence in the sky” in the sense that although associated with rules governing the behaviour of individuals and groups within society it has certain intangible aspects that render it a somewhat slippery customer. Yet it fulfils a role within government structures and provides a system for the resolution of disputes between individuals and groups or between the State and the individual.

Although, as I shall argue, there is an air of mysticism and symbolic ritual that surrounds the law and legal process, in its most essential and most basic manifestation the legal process is an exercise in information exchange. I argue that the means by which information is exchanged has had an impact upon the way in which the legal process has developed.

We are now in the Digital Paradigm with all the various different means of communication that are now available. These include the tools for remote working which allow us to reimagine the way in which the Court operates and yet maintain those information flows that are essential to the legal and judicial process.

I argue that resistance to such reimagining is primarily cultural that includes a reluctance to move from what could be called a cultural comfort zone. I further argue that there is a certain inevitability that remote hearings increase in frequency and become normalized as part of the process. Underpinning this argument is the fact that new communications technologies shape our communications behaviours which in turn influence or modify our values and our acceptance of different ways of doing things. The argument is summed up in Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us”.

Given that a court hearing is an information exchange, I shall argue that the assumptions that underpin the “Court as a Place” model or hearing may give way to what Professor Richard Susskind calls the “Court as a Service”.

I shall argue that those who prefer the “Court as a Place” model must be honest in recognizing that their adherence to that model is based upon deep-seated cultural preferences and assumptions about what the technology can do rather than upon any legal imperative.

The Rule of Law as a Benchmark for Technological Innovation

There is a school of thought that suggests that rather than rushing to embrace new technologies in the justice process, some caution should be employed in evaluating those technologies and whether they fulfil the objectives of the rule of law. 

The Chief Justice of New Zealand Dame Helen Winkelmann sets out a number of criteria that should be considered and against which new technological developments should be measured before their acceptance and deployment into the justice system[1]. However, the onset of the Covid 19 crisis accelerated the deployment of remote working facilities out of necessity, simply to keep the Court system, or aspects of it, running.

When read alongside an earlier paper that she delivered to the Criminal Bar Association Conference in August of 2019[2], the Chief Justice develops a theme that, whilst not necessarily suggesting that there should be little use of technology in the courts, suggests a certain conservatism,  a desire to maintain existing systems and an underlining sub-text that present systems, as far as they can be, fulfil the objectives of the rule of law. 

One of the abiding principles present in both papers is the recognition by the Chief Justice of the importance of physical presence by all the participants in the court system in the one place at the one time.  This focuses, therefore, attention upon the concept of the “court as a place” that fulfils a number of functions, some of them substantive, some of them procedural and some of them symbolic. 

This runs up against the views of Professor Richard Susskind, who considers that the courts of the future should be seen as “courts as a service” and that place should not matter.  In this regard, the Chief Justice, in her January 2020 paper, addresses directly and obliquely some of the issues that are raised by Professor Susskind in his advocacy for an on-line court or remote working system.

There can be no dispute with the proposition that the Rule of Law must be the standard against which technological innovation should be measured. The question that must be posed is whether the innovation proposed enhances or detracts from the performance by the courts of this task.

In a State living under the Rule of Law, the laws administered by the court must have a certain substantive content, affording adequate protection of fundamental human rights.  These human rights are necessary pre-conditions for equal access to the protection of law before the courts but it is argued that there is another element, which is that if society’s laws do not afford protection for these rights then those who sit outside the law’s protection have no reason to accept those laws or the decision of the courts.  Social cohesion, it is argued, is a necessary pre-condition to the rule of law and it is suggested that physical presence enhances that social cohesion.

The Courts as a Manifestation of the Rule of Law

Rather than providing a service, as suggested by Professor Susskind, the Chief Justice considers that the work the Courts do is more than that and is in fact a public good requiring a public performance by way of hearings in a local courthouse, involving participation and human interaction, which affords human dignity to those involved in civil and criminal proceedings.

This emphasis upon the “performance” aspect of the law is one of a number of criteria that support the way in which the Courts administer the Rule of Law. Among these aspects are

•   The existence of an independent judiciary.
•   The public administration of law.
•   The importance of the local courthouse to the rule of law
•   The work of lawyers is critical to supporting the rule of law
•   That the court hearing is a public demonstration of the rule of law in action
•   Public hearings exemplify fairness and legality

If technological innovation does not enhance one or more of these elements of the Rule of Law, then it can have no place within the system. The list of items all have certain common elements to them. The law must be administered in public – the transparency issue that I shall discuss shortly. That transparency, it is argued, requires a courthouse, with its attendant symbolism which I shall shortly consider. Lawyers are a part of that performance rite which demonstrates the law in action – again harking back to transparency – and fair and public hearings demonstrating this important aspect of the Rule of Law process.

Thus, to summarise the point thus far, within the Rule of Law model proposed there is an emphasis upon the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what is describes as the performative aspect or what I have characterised as the performance rite.

But does transparency involve the physical presence of all the participants in the same place at the same time? I suggest that it does not, and that the element of transparency can be achieved utilising technology.

Transparency

The Court has evolved as location where citizens go – or are taken – to air their disputes or have them resolved in a manner that is largely open and available. Thus, one of the criticisms of Remote Court Hearings (RCH) and the Online Court (OC) is the lack of transparency and thus represents an affront to open justice represented by public hearings.

Open justice and transparency suggest visibility of Court processes, procedures and operations, of information about the Courts such as data about cases and volumes as well as scheduling and the cost to the taxpayer.

The public should have access to advance notice of hearings, to a record of proceedings and information about the business before the Courts along with the substance of a determination or decision and an explanation or reasons for a decision.

Traditionally, hearings have been in a public forum in all but exceptional circumstances and the media should be present to report proceedings as surrogates of the public. This is what Professor Susskind refers to as “real-time transparency.”[3]

The remote hearing is criticized because it challenges “real time transparency”. In a completely on-line court there is no physical courtroom into which the public or media may venture. The question is whether or not this suggested “threat” is a real one.

The reality is that real-time transparency is more limited today than is acknowledged. We trumpet the openness and availability of courts but policies that involve closing down court houses and centralizing the administration of justice remove that aspect of transparency from local communities.

The difficulties in actually travelling to a Courthouse to benefit from that so-called transparency has its own problems including the availability of public transport or, if a private car is used, parking in a busy urban location. Only in cases of high profile criminal trials do members of the public present exceed the capacity of the courtroom to seat them. In most criminal cases those present are directly affected – complainants and their inevitable support networks or families of the accused.

This suggested loss of transparency suggests, in the minds of critics, that hearings will take place in secret giving rise to suggestions of “Star Chamber justice”.

This is patently unsustainable. With the multitude of communications platforms available Court hearings can be broadcast online. The case of State of Washington v Trump before the 9th Circuit Court of Appeals was broadcast over Internet platforms to an audience of over 131,000 people. In addition none of the Judges were in the same place but teleconferenced in to the hearing.^[4]

The issue of open justice and transparency can be addressed by providing for a stream of proceedings before the Court if there is a full hearing or, if the decision is “on the papers” the online publication of the reasons for a decision.

The Covid 19 crisis immediately challenged the concept of transparency of Court proceedings by virtue of distancing and gathering requirements as well as restrictions on travel. Although the Courts in New Zealand were considered an essential service, adaptations had to be made. In many cases defendants in criminal courts appeared by way of Audio-Visual links (AVL). Counsel were “present” by way of virtual meeting room or conferencing software that allowed for audio and video. In some case even the Judge appeared remotely as distinct from sitting in a Courtroom.

Importantly the media were able to join the Court remotely and participate in being able to observe and report the hearings as they might have done in real-time. Indeed, the ability of the news media to “attend” a number of courts without leaving news desks actually enhanced the ability of the media to report Court proceedings and act as surrogates of the public.

It may be seen from these examples that concerns about transparency that are associated with “real-time” courts have little substance in the face of technological solutions that are available for remote working.

A Fair Trial?

But there are some deeper criticisms of the RCH or OC model. Can a RCH or the OC deliver a fair trial. This raises the question of whether or not the work of the Courts must be conducted on a face to face basis to achieve a just outcome.

The question becomes one of whether the public hearing is equated with a physical one. Professor Susskind suggests that our concept of “public” has evolved as communications technology has improved[5]. Online access to meetings, lectures and events is considered “public”.

This has moved even further during the Covid 19 crisis when, for example, the Auckland Theatre Company “staged” an online and very public version of Chekhov’s “The Seagull” to international acclaim.[6] The New Zealand Symphony Orchestra performed online concerts during the Covid 19 lockdown and has and as at the date of writing continues to present very public performances online[7]. Thus, the Internet provides an element of public participation in terms of performance and the gathering of information.

The public perception of the administration of justice – of fair process and fair trial- through the Court system has four basic elements – all of them procedural. They are that all cases should be treated alike; that parties should be given the opportunity to state their case before a Judge who has no personal interest in the dispute; judges should be impartial and work within a judicial system that is independent and that cases should be judged and not the parties.

The issue is whether these elements require, as a pre-condition, first, a physical presence on the part of participants and secondly, that presence in a structure or building that is largely symbolic and associated with a number of seemingly arcane rituals that are the province of a select priesthood – the lawyers.[8]

What is more important, it is suggested, is that the decisions of the Courts are fair, the processes are fair and in accordance with the rules of natural justice, that the participants are satisfied that they are so and that access to the courts is available across the community at an affordable cost.

Perceptions of Participation

The remote working model, it is argued, challenges the importance of litigants being treated with dignity and respect and the importance of human interaction between litigant lawyer and Judge.

The argument is that the on-line or remote working model challenges parties’ perception of participation and the critical importance of the presentation of one’s case in court. These perceptions have a common theme which is that of the level of engagement that may take place during a Court hearing and the impact of a remote appearance as opposed to an “in person” one.

Associated with the level of engagement are what could be termed participatory elements operate at a more visceral level and could be summed up in the terms “the day in court” and “the face to face hearing” which has its origins in the concept of confrontation between accuser and accused. I shall first discuss the level of engagement and then proceed to consider the elements of the “day in court” and “the face to face hearing”. I suggest that none of these issues are compromised by a remote hearing.

Level of Engagement

This aspect could be described as the “level of engagement” and that an appearance remotely may mean that the participant is not as fully “present” as she or he may be in person.

Once again, the Covid 19 experience is instructive. Counsel have certainly shown as great a level of engagement working remotely as if they were present in Court. The amusing observation by one defence lawyer that she wore a working blouse and blazer on top and track pants out of shot seemed to have little impact upon her level of engagement in a 90 minute opposed bail application.

It has been my observation as a Judge dealing with accused persons via an AVL link that they are as engaged as if they were present in person – perhaps even more so for they are able to remain focussed on what is occurring on the screen rather than having informal and signalled communications with friends or family members in Court. 

Lambie and Hyland discuss the importance of these early interactions with the Court.

“the pre-trial period should be viewed in New Zealand as it is in other jurisdictions; as a window of opportunity to provide the appropriate wrap around service provision that is required by the individual and their whanau”.[9]

However important that part of the process might be, and I agree that it is, I do not see that a remote appearance compromises the matters raised by Lambie and Hyland. As I have observed, the level of engagement is just as high with a remote appearance as it is with an in person one.

In some respects the level of engagement can be higher in that the positioning and size of the screens upon which people appear can play a part. Professor Susskind referred to the value of a large high definition screen[10]. My only observation about that in the context of the New Zealand Courts in general and the District Court in particular is the positioning of screens which should, as much as possible, reflect the positioning of the participants as if they were present in person. This is a matter which will have to be addressed in Courtroom design or configuration if remote hearings are to continue and become a part of the Courtroom toolbox.

Another matter raised is that of trustworthiness but what really could be described as empathy where there is a perception that the decision-maker actually cares about the case. This arises as a result of the dynamic of the hearing but could be as applicable to the online as to the in-person experience. 

Finally, there is the issue of neutrality, which can take place within the context of an oral hearing in which the parties have an opportunity to be heard and where the Judge is seen to be paying equal attention to the arguments of each side. This is an important aspect of the “level of engagement” issue.

Participants must also remember that, as in a physical courtroom, they are always “on” and care must be taken to behave in an engaging, interesting, respectful manner.

These latter matters fold into another issue about participation and that is the sense that litigants are entitled to their “day in court”. This phrase carries within it a number of elements. One of them, fundamental to the Rule of Law argument, is that everyone should have access to the court process for the resolution of a dispute. But does that mean physical presence or rather the availability of the services that the Court offers?

The “Day in Court”

Will remote hearings or remote “presence” will deprive litigants of their “day in Court” or access to the dispute resolution services that the Court provides.  The first point to be made is that remote hearings or remote participation should be seen as one means of allowing for “presence” at a hearing. It is not suggested that all hearings should be conducted remotely.

A remote hearing would offer much of the essence of the physical presence offered by day in court, particularly as remote video technology improves. It would also offer a remote day in court to those facing difficulties in personal attendance. The growth and development of remote communication and familiarity with getting information from a screen may make determination of substantive legal rights in circumstances other than face to face less of a departure from the cultural norm than may be perceived at present.

The real question is whether or not we are prepared to deny citizens access to the services of the Court because of their inability to be physically present. Quaestio caedit.

The “Face to Face” Hearing

The “Face to face” hearing is based on the assumption that remote hearings will deprive litigants of “face to face” justice. This could well be a misunderstanding of the nature of the so-called confrontation right[11] and is an argument based more upon tradition and a reliance upon earlier paradigms than any rational justification.

The concept of the “human face” of justice is considered significant. This has been advanced by Dr. Ian Lambie and Olivia Hyland in two articles^[12] and has been articulated by Andrew Langdon QC in his inaugural speech as Chairman of the Bar of England and Wale who said:

“The humanity of physical presence is, I suggest, an important component in the delivery of justice…Being in the physical presence of a witness or a jury or a defendant or a Judge or your lawyers …..isn’t that fundamental to our innate sense of how justice should be delivered?…Justice has a human face, and its not a face on a screen…Many smaller cases benefit from getting everyone together in one place. The dynamic between the parties becomes evident; whether one side is unfairly dominating the other, whether one party is as well-heeled as the other.”^[13]

The underlying themes of these comments are that justice must be done in person, the participants must be able to look one another in the eye, claimants and victims need to meet face to face, the humanity of justice can only be done in a largely symbolic centrally located building, justice is personal and the playing field is levelled by physical presence.

Recent developments arising out of the Covid 19 crisis have demonstrated some of the fallacies about the necessity for physical presence. I have noted the evidence of Professor Richard Susskind to House of Lords Constitutional Committee, where he commented on the fact that remote hearings could be used to determine credibility issues and noted the advantages of the full-screen view of a witness.[14]

Susskind also raises the issue of the fact that one may get a sense of a person’s credibility and their demeanour by looking at them on a high definition screen where the video is close to the face. It should be noted in this context that there have been some critics of the importance of demeanour in the fact finding process. A considerable amount of importance is placed by some on demeanour. Does the insight that a Judge may gain from seeing a witness face to face be as frequent or as accurate a perception in the remote hearing.^[15]

The issue of demeanour as a guide to truth telling and the reliance upon non-verbal cues as an aid to assessing credibility has been the subject of a considerable body of literature from the field of the behavioural science, and the overwhelming conclusion is that demeanour is not a useful guide to veracity.[16] 

There is no philosophical nor empirical justification for a need for face-to-face interaction – especially in the Internet age. The rules of natural justice are not threatened by the remote hearing model and there is certainly no constitutional principle that requires that justice can only be achieved where there is a form of face to face resolution. The issue of the “face to face” critique is met by the deployment of video systems to create a “virtual” or “online” court and the improvements in technology as noted by Professor Susskind may well enhance the evidence giving process.

There can be no doubt that the critics of RCH or OC believe that a move away from physical hearings is a retrograde – indeed fatal – step for the administration of justice. For most of our lives we have one conception of the resolution of disputes through the Court process. We have become attached to the environment that has provided us with careers and for a great many with prosperity. It is hard to conceive that there may be radically different ways of achieving the same outcome. We are culturally attuned to our way of attempting to achieve justice and in many respects we tend to support that cultural acclimatization with almost mythical and symbolic elements.

The cultural aspect of presence-based arguments have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication. 

The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago.  Only when new technologies came into play, such as the development of the printing press and its impact upon law and legal culture, were there small and incremental changes in legal culture. 

One of these changes involved reliance upon printed materials as a record of what the law was.  As Lord Camden said in Entick v Carrington^[17] “if it is not in our books it is not the law” and, in saying that, he was summing up the importance of the printed record as law as opposed to the concept of immemorial custom that had been a feature of earlier iterations of the development of the English legal system.

Up until the 1930s and the development of digital systems, all of our communications took place within the context of what could be described of analogue systems such as print, radio, wireless, television and the like.  Only when the internet went public in the early 1990s did the real digital revolution take place. 

Within this context, the number of different methods and systems of communication arose – all of them deploying digital technologies.  This may not mean a lot but, in fact, it is important when we consider that the presentation of a court case, with all of the cultural aspects referred to, involves an information exchange. The advantages of new technologies are that the abilities to engage in that information exchange are enhanced and improved.

It is to the cultural and sub-conscious preferences for the in-person model that I shall now turn.

  Cultural Issues

In the next section I shall develop the argument that many of the reasons for opposition to remote hearings and online courts are based on cultural habits and expectations rather than having anything to do with the integrity of the law.

Legal culture, in its most general sense, is one describing relatively stable patterns of oriented social behavior and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the way judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are, not just what we do.[18]

In this section I shall consider the way in which legal culture is represented in image and otherwise to demonstrate some of the ways in which the Rule of Law is represented that has little to do with its real purpose but rather creates a psychological mythology of how those in power wish the law to be perceived by those whom it governs.

Court, Culture and Information

The trial is the law’s high theatre. The Courtroom is a stage and the participants are the players. Some, such as witnesses, have bit parts. Some are major players – on stage throughout the whole performance. It is little wonder that trials – especially criminal trials – feature so frequently in literature and in entertainment. The trial scene in Shakespeare’s ”Merchant of Venice” is gripping drama as well as being a showpiece for a number of jurisprudential theories. The trial is a set piece in Harper Lee’s “To Kill a Mockingbird” and the film “Witness for the Prosecution” is the trial itself. The trial dynamic brings all the players into the one place, with the classic dramatic formulae of human interactions, conflict and denoument. Television is replete with lawyer shows in which trials feature – “Rumpole of the Bailey” and “Silk” provide two examples.

Of course the trial is more than that. It is a critical part of a State provided dispute resolution process that has evolved over the centuries and is characterised by elegantly moderated reasoned arguments supported by specialised information which lawyers call evidence.

In the same way that the practice of law involves the acquisition, processing, sharing and communication of information, likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges’ Clerks.

Thus, a court is not only a place of adjudication, but also an information hub. Information is assembled, sorted and brought to the courtroom for presentation. Once presented, various theories of interpretation are put before the fact-finder, who then analyses the data according to prescribed rules, and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as required either by law reports, academic comment or on-line legal information systems. The court is thus the centre of a complex system of information exchange and management.^[19]

Courts and Communication

Historically the conduct of a Court hearing has involved an oral exchange. This practice developed simply because there was no other way to convey information. Those who had a grievance would bring it before the chieftain or ruler and would seek redress. What we understand as the Rule of Law in its most embryonic form was to prevent the destruction of the members of a community or even the community itself by retribution or blood feuds.

Judges became the proxy for the ruler or, in the case of England, the King. Whereas the King would hear disputes in his court, so Judges adopted “the court” as the central place for hearing and resolving disputes. In England the Royal Courts occupied sections of Westminster Hall. The King’s Judges did not sit permanently in the Courts that were located in the towns and cities. They attended regularly at Assizes.^[20]

Written pleadings were not a feature of the early Courts. The entire process was an oral one, although written pleadings did become an important part of the court process. A misdrawn pleading could result is a dismissed case for want of form.[21]

That this model continued through into the nineteenth and twentieth centuries is quite understandable. The technology simply was not available to conduct a hearing in any other way. The advent of the printing press presented a means by which legal information could be accurately recorded, standardized and duplicated^[22] but this had little impact upon the way in which Court cases proceeded, although, as has been observed, printed law gradually achieved a level of acceptance whereby it became sufficiently authoritative to be relied upon by Judges as a source of law.

Although significant procedural changes came about with the merging of the Courts of Common Law and Equity perhaps the first technological innovation arose as a result of the use of the typewriter, and carefully crafted copperplate manuscript pleadings gave way to typewritten ones. Other technological innovations became a part of the Court system. The telephone as a means of communication between Court and participants became routine. To the dismay of many judges innovations such as the photocopier allowed for the presentation of large amounts of information and so the means of information transmission began to improve and increase. Despite the occasional incident of resistance to the use of a new technology it is doubtful that its introduction was opposed on the basis that it would result in fundamental or do substantial damage to the Rule of Law.

Rather, I would suggest, the acceptance of technologies such as evidence of tape recordings and closed circuit TV, evidence of tape recorded or video recorded evidential statements, the use of sound recording for the purposes of creating the Court record have all been accepted with little resistance. Perhaps this is because some of the apparent fundamental aspects of the court hearing have remained intact – the oral hearing, the gathering together of all the parties and witnesses in the one place in a Court – a word that echoes the Royal origins of the process – remain.

Yet the basic method of conducting a case – bringing information before the Court so that the fact finder may process that information and in turn reverse the flow of information back to the parties – remains.

Symbols, Imagery and the Culture of Law

But around the very basic process of information exchange a certain mystique, ritualism and symbolism has developed. This has to do with the mythologizing of the legal process – elevating it in importance as an aspect of the Rule of Law. But these mystical elements must give way to new and different ways of achieving the outcomes that the legal process seeks. As the legal process has done in the past, the adoption and use of new technologies may achieve this and at the same time maintain and enhance its relevance in the hearts and minds of the citizenry.

The Symbols of Justice

Societies have sought to define the nebulous virtue of justice through visual allegories and metaphors, along with libraries of books, articles, tales and parables written and told to imbue the abstraction of justice with meaning.

The management of image in the service of power is well known in modern politics although imagery and symbolism has played a part in depicting and representing power structures, along with other abstract ideas, throughout history^[23]. Much of this symbolism is represented in art, objects or architecture. The law is no stranger the use of symbols and other representations to enhance or solidify its importance in society.

In Ancient Greece Themis – a Titaness – is described as “[the Lady] of good counsel”, and is the personification of divine order, fairness, law, natural law, and custom. Her symbols are the Scales of Justice, tools used to remain balanced and pragmatic. Themis means “divine law” rather than human ordinance, literally “that which is put in place”, from the Greek verb títhēmi (τίθημι), meaning “to put”. Her Roman equivalent was Iustitia.

Themis is perhaps the most recognizable symbol of justice and her statue may be found in many Court locations, perhaps the most recognizable to those of the Anglo-American tradition as the figure on the dome of the Old Bailey. She is referred to as Lady Justice and is often portrayed not only with scales but also with a blindfold, a further symbol within a symbol, representing the impartiality and objectivity of justice.  Her scales represent weighing competing arguments or propositions and the sword is the sword of power and punishment.  In some representations a snake appears under her foot, representing the overcoming of evil as well as, latterly, a book representing a source of law[24].

In earlier imagery she was not seen as standing alone but was flanked by Temperance, Prudence, Fortitude and other classical virtues. With her sisters relegated to antiquity, however, justice has come to be treated as a self-sufficient ideal, a secularized cardinal virtue for the moderns.

She is the totem onto which Western societies have projected their concerns about power and legitimacy. Her omnipresence is a visual reminder of John Rawls’s famous dictum that ‘justice is the first virtue of social institutions’.

This image is perhaps the most recognizable of justice and its association with Court.

The Courthouse

The courthouse as a central location for the administration of justice is frequently portrayed as an imposing structure, often harking back to classical elements. Examples may be found in the United States Supreme Court Building or the imposing, almost overpowering façade of the Royal Courts of Justice in London or the Palais de Justice in Paris.[25]

The architecture of courthouses frequently incorporates pillars or similar architectural motifs. The pillars represent strength and sustainability, representing a reliable justice system.

Frequently the neoclassical architectural style that characterizes the United States Supreme Court along with many other Courthouses in the United States reflects the desire of the State to connect with a mythical past or ideal of justice embodied by Graeco-Roman temples or other famous buildings of antiquity. Indeed, court construction at a national, regional or transnational level is deeply self-conscious, engaged with history by seeking to embrace and link to traditions and often culture.[26]

On the other hand because the imagery of justice has been deployed to sanction power, the handful of images that suggest that justice might sometimes require defying the law are powerful and haunting. The South African Constitutional Court has been built on the site of an apartheid-era prison, and preserves the marks of decades of abuse perpetrated within its confines.

The murals that adorn the Mexican Supreme Court provide equally visceral reminders of egregious and arbitrary uses of state power. Rafael Cauduro’s arresting images break with the usual piety of courthouse art in  which justice is represented as the guiding light of a benevolent state, and instead depict acts of torture, rape and mass murder carried out by agents of the State.”[27]

These representations of justice within the context of a Courthouse – location in the case of South Africa – murals in the case of Mexico – stand out as reminders of the importance of justice in opposition to the arbitrary use of repressive State power and the important function performed by the Rule of Law to protect the rights and dignity of citizens.

However, more recently we witness the grand architecture of courts being eschewed in favor of multipurpose ‘law enforcement centers’ that fulfill a range of bureaucratic functions. The contrast between the visual grandeur of traditional courts and the invisibility of new forms of adjudication underlines the fact that the latter are much less accessible to the public even though they ‘decide the rights and obligations of hundreds of thousands of individuals’.  

Even in the case of administrative hearings that as a practical matter, everyone has the “right” to attend’, the proceedings are physically difficult to locate. Perhaps, given the developments in modern Courthouse design, our representation of justice as of the imposing, powerful, symmetrical and even handed is itself being mythologized.

Ritual

Courtroom ritual fulfils a number of functions. What to many may seem to be a somewhat unusual sequence of bows when a Judge enters the courtroom is a mark of mutual respect for the participants in the process. The somewhat arcane language – “May it please your Honour” – is indicative of respectfulness and for some provides a path in to the development of an argument.

If anything it is in the rituals of the Court that we see the greatest practicality of the process. In essence the Court provides a forum for competing arguments. Despite the drama and raised voices that one sees in American courtroom TV shows, the argument that is carried out in Court is very restrained and conducted, for the main, rationally and within a very constrained framework. Raised voices are not tolerated. Personal opinions are eschewed in favour of the advancement of a proposition. “I think” is replaced with “I submit”.

Yet in many respects this means of presentation of an argument in itself represents a move towards a comfort zone. True, the development of advocacy has taken place over a number of years and has reached a point where there seems little room for innovation. But at the same time it represents an aspect of comfort with process that itself obstructs any suggestion that there may be a better or more effective way of presenting a proposition[28]. For this reason, despite the obvious advantages of modern advocacy allowing a number of technology enhanced forms of presentation, I consider Courtroom ritual to be an aspect of cultural impediments to change.

The Imagery of Justice

The symbols, imagery and architectural styles are part and parcel of the representations that to an extent mythologize justice to the point where those symbols become cultural imperatives for the way in which the system is required and expected to operate. Within many Courthouses are great halls, entry porticos, in some cases doors engraved with symbols, conspicuous images of national identity such as coats of arms or other forms of constitutional iconography representing or portraying legitimacy of what takes place within the temple-like structure.

The Courtroom or courtrooms themselves and their location in the building often structurally or by way of positioning represent the hierarchical nature of the law and indeed the legal establishment. Many Courthouses have a large main Courtroom, often used for ceremonial purposes, surrounded by a number of smaller Courtrooms. Within these ceremonial courtrooms, often replete with large paintings depicting Jurists or Heads of Bench, the rituals and cultural underpinning of the law are enhanced. On ceremonial occasions in New Zealand Queens Counsel are seated in order or appointment and are called upon in that order for no other purpose than to recognize their presence – a process that is mystifying to members of the public who are not members of the legal “priesthood.”

The Courtroom itself contains its own hierarchies with a raised bench, counsel’s table – prosecution or Crown at the front, defence behind for no other reason, like many legal cultural practices,  than that is the way that it has always been –  and the public behind a bar beyond which only certain persons may pass.

In appellate Courtrooms the design is usually very symmetrical with equally symmetrical seating for the Judges, the President or the Chief Justice in the centre. Once again the quaint and polite rituals take place. Before the Judges are seated and before they bow to those in the Court they bow to each other.

Apart from the central seat, the seating of the Judges represents the egalitarian nature of the Judges who occupy the same bench, although that said in most of the top appellate courts the judges sit from the centre based on their seniority. Seniority is another quaint aspect of the imagery of legal culture.

The layout of the Courtroom is reminiscent of a place of worship – the Bench is in the place of the altar and often behind it is a form of iconography be it a flag or other national symbol like a coat of arms. The area before the Bar where counsel and other officers of the Court may take their place is akin to the sanctuary – an area reserved for the priesthood – and the public gallery seating is similar to the pews in a church.

The impact of the imagery of justice and especially the Courthouse is not restricted to those attending.  The images of Court buildings appears countless times in newspapers, television and online in any number of places owing to an intense focus on Court hearings from national media coverage. This use of the imagery of justice enhances the perceived power of the Court, adding to the cultural significance of the legal process.

At the same time the top appellate Courthouses perpetuate the imagery and representations of justice by being not only symbolic of government authority but, as they become empty of the business of judging and evolve into museums for school children and destinations for tourists, they are becoming themselves symbols for courts.[29]

The Majesty of the Law

So far I have demonstrated how the symbolism of the law has become part of the cultural heritage of those involved in its practice and administration. To interfere with the symbols and images of the law would at best be culturally uncomfortable and at worst be seen as rending the fabric of the Rule of Law. And in many respects these elements underpin the issue of “the majesty of the law” as an aspect of the Rule of Law and which is used as a reason for applying the brakes to technological change.

Andrew Langdon as Chairman of the Bar in 2016 in his inaugural address made reference to the “majesty of the Court.

“Most of us – lawyers or not – instinctively understand the solemnity or as it is sometime put, the “majesty” of the law. The historic prominence of a court building in the municipal setting demonstrates that our ancestors understood it also. Whereas no one wants court users to be overborne or intimidated, neither will it be helpful if respect for those who administer the law is diminished by the very fact that those who come before the Court are only in the virtual presence, rather than the actual presence of judicial authority.”^[30]

Those who see the law and its administration as “majestic” and remote hearings as being an erosion of the “majesty of the law” need to give careful consideration to the purpose of the legal process. At the moment the court system is hard to understand, hard to access, marginalising for many and reserved for the few who can afford it. Coupled with that, it retains elements of kinetic presence and orality that have been part and parcel of the system since the Middle Ages.

One must add to this the fact that many of our Court buildings are anything but majestic, apart from the occasional imposing temples such as the United States Supreme Court building in Washington DC or the Supreme Court building in Wellington, New Zealand. By and large our Court buildings are shabby and run down. As Professor Susskind says “To celebrate our court buildings again runs the risk of lapsing into romantic transcendentalism.”^[31]

Indeed, I would suggest that it is not “majesty” itself that is the fundamental value. It is not an intrinsic good, important for its own sake. Rather than a “majestic” system we want a system that is authoritative, respected and supportive of the principles of justice to which I have already referred.

Furthermore the system should be relevant and not detached from the mainstream lives of citizens. It should not be intimidating and should reflect modern standards and understandings. The court system should not exist as a majestic rarely used physical system, little understood and at the periphery of the lives of citizens. It should be effective, meaningful, authoritative, relevant, respected and understood as part of the mainstream of a society under the Rule of Law.

The use of cameras in Court have assisted in public education and have increased public awareness of the way in which the Court process operates and have not derogated from the solemnity of the Court as an institution nor its processes. The UK Supreme Court live streams its hearings and a similar proposal is in train for the New Zealand Supreme Court. Some Federal Appeal Courts in the US also live stream. The US Supreme Court needs to rethink its attitude to cameras in court.

Remote hearings will increase the necessary legitimacy to and confidence in the legal process by providing an effective additional means to access the justice system. The alternative is for litigants to migrate to other forms of private sector dispute resolution, simple because the State is failing in its duty to its citizens

Fundamental to the Rule of Law is an effective State provided mechanism for the resolution of disputes. An effective, popular, authoritative and respected Court system that embraces new communications technology to further its purpose should underpin and help maintain the Rule of Law.

The Comfort Zone

It is perhaps within the realm of cultural comfort that the innate conservatism of many lawyers lies. The mantra goes “this is the way that we have done things in the past and it has worked and there is no need to change.” This mantra, of course, ignores the fact that law and particularly the legal culture associated with it does change albeit slowly and at times imperceptibly. In essence this mantra calls upon the traditions of law as a validation for continuing past practices. But tradition itself cannot act as a justification unless there is some rational basis for its continuation. And the problem with tradition is that is is constantly facing the winds of change and the dynamic of the human condition.

I have already commented on the role of the printing press – the first information technology – and its dynamic impact on legal culture. The shift from an understanding of the underlying communicative qualities[32] of the printing press, although recognized by some legislators such as Thomas Cromwell and by those who wished to advance a particular view of the law such as Sir Edward Coke, to a positive cultural shift in the recognition of the fact that the fixity of print and its incorporation in a book enabled the certainty that the law demanded along with its authoritativeness took some 284 years from the publication of Littleton’s Tenures in 1481 to the dictum of Lord Camden in Entick v Carrington.

There were other dynamics in the law. The development of the adversarial criminal trial with counsel playing a part provides an example. The evolution of the criminal trial from a lawyer free to a lawyer dominated model and the slow recognition that there was a taxonomy of types of evidence developed over a period of a century from the 1690’s when counsel were permitted in Treason trials to the 1730’s when judges allowed counsel to cross-examine witnesses to the greater involvement of counsel in arguing points of law by the 1780’s.[33] It may be surprising to some that the criminal trial process is a relative novelty when one considers the reach and scope of legal history.

There are other examples of dynamic change in the law and in legal processes. In my years of practice I have seen the Criminal Justice Act 1954, the Criminal Justice Act 1985 and the Sentencing Act 2002 along with the Criminal Procedure Act 2011 all of which introduced significant changes in criminal procedure. These were not opposed or decried because they challenged “the way we have always done things”.

There have been other examples of the dynamic in legal culture. One example may be seen in the abandonment in New Zealand of the need to wear wigs and gowns in the Senior Courts. Wigs and gowns are now retained only for ceremonial occasions, vested as they are with calls upon professional traditions. Yet the move for change was met with considerable protest, and is still decried by some traditionalists. Now only a black gown is worn in the Senior Courts and in the District Court for criminal jury trials.

The dynamic has reached the Judiciary. Imperceptibly and certainly without wide debate, although I imagine there were some terse exchanges in Senior Court common rooms, the formal ceremonial red robes of Her Majesty’s Judges has given way to a black gown with a motif panel upon it and the full bottomed wig, harking back to Restoration days, has been consigned to the cupboard.

Yet I suggest that what I call cultural comfort or continuing to do things in a particular way because that is the way that they have been done underpins much of the resistance to procedural change in the way in which cases are presented in Court. I further suggest that the elements of the Rule of Law that allow for transparency and public performance do not require the symbolic elements of the quasi-religious temples of justice nor can their continued use to the exclusion of other alternative means of delivering justice be justified on what is a self-perpetuating representation and imagery of what the Rule of Law is imagined to be.

How Culture Changes With Technology

In this section I shall argue that new technologies may act as drivers or agents of change in behaviour, values and culture. I shall propose that the pace of change has accelerated and indeed in terms of communications technologies, the digital revolution has ushered in a new communications paradigm – the Digital Paradigm.

Paradigmatic Change

I have suggested elsewhere that digital communications systems have resulted in a paradigm shift in the way in which we communicate and in our responses to and expectations of information. This arises from the significant properties that digital communications systems bring to bear and how they enable the differing views that we have of the communication of information.[34]

Changes in Behaviour

Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us” pithily sums up the way in which our inventions and tools affect behaviour. Once the tool becomes a part of what we do it changes how we do it and in the long term may have an impact upon other aspects of our lives and ultimately our expectations and values.

In the past there has been a gradual progression of new communications media. The printing press was the first information technology and until the mechanisation of print was introduced, there were no major changes in the way in which the technology operated. The types of content that print produced expanded but the real “reach” of print became possible with industrial printing and much larger print runs than were possible with the hand operated press. The technology and its particular underlying properties, however, remained the same.

The next step on the communications media progression was the introduction of telegraph – the long distance transmission of text or symbols without the physical exchange of an object bearing the message. Semaphore, beacons and reflected light signals (heliograph) are forms of telegraphy but it was the use of electricity that enabled the development of telegraphy in the early nineteenth century as the next development in communications technologies. Telegraphy was followed by the telephone – another one to one technology that enabled communication by voice – wireless telegraphy in the 1880’s and from this communications innovation came radio and television in relatively rapid succession.

The time lapses between the introduction of these various technologies reduced considerably and the pace of change accelerated. But each technology was a discrete development. In addition, transmission of information required significant investment in infrastructure so that the deployment of capital intensive communications technologies such as radio or television was only possible by means of centralised organisations. In addition, there was no real convergence of technologies although television could be considered a form of radio with pictures. But it certainly became more than that.

Each of these communications technologies brought to the table a new set of characteristics or properties that modified those of earlier technologies or introduced new ones. The effect of this was that the expectations and behaviours surrounding information communication changed. Furthermore, the development of these various technologies meant that the range of means by which information could be acquired increased as well. But in terms of information flows, communication was virtually one way – from the originator of the information to the audience. Unless one was a member of a live radio or TV audience, participation in information flows and in the creations of information in response to that received was nil.

This has all changed with the development of the Internet and the various communications protocols that are “bolted” on to it. Effectively what has happened has been the convergence of communications technologies so that users may send and receive information from the one place, virtually at the same time in a seamless fashion.

I suggest that the new communications technologies that have become available on the mass market for mass consumption have resulted in changes in behaviour.

As behaviours change their validity becomes accepted as a norm and as an acceptable aspect of life. For many private conversations in a private setting via mobile phone are perfectly acceptable. There is an expectation that there will be an element of privacy accorded to such communications.

Indeed the mobile phone has drastically altered behaviour by virtue of the fact that it makes subscribers available 24/7. No longer are business communications restricted to the office setting and although this is seen as an added pressure of business it is accepted as a part of life in the Digital Paradigm.

The smart phone provides a smorgasbord of communications options in addition to voice communication. It enables text messaging, video messaging, access to the Internet and communication – both voice and video – by a number of apps that have been made available by third party developers.

Changes in Assumptions about Information

Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

In some respects the paradigm shift can be seen in an inter-generational context. Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm.^[35] He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.^[36] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, Flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

Expectations of information

Along with intergenerational changes in assumptions about information, our expectations of information change as well and many of those expectations are based upon assumptions which are largely developed and perpetuated by digital natives.

One only has to consider the use of the phrase “for further information go to www…….” to understand that the information that has been presented is often not the full story, that there is another source for that information, that there is a greater volume of detail of information about the topic at that source and finally that everyone is going to be able to access that source. The source, of course, is Internet-based and so the expectation is that detailed information can be found on the Internet. The assumption that drives that expectation is that everyone has access to the Internet and despite the fact that Internet uptake in New Zealand is high we know that is not the case.

Another aspect of information expectation is that of immediacy. Exponential dissemination couple with searchability and retrievability make information almost instantly available. The ability that large segments of the population have to be able to fact-check on the spot means that we are reluctant to wait for the 6 O’clock news or the next edition of the newspaper. Indeed, with online versions of newspapers readily available the presence of the newspaper on the breakfast table has become redundant and is replaced by the iPad with access not to one newspaper but to thousands.

Our expectations of information are shaped, as McLuhan observed, by the very underlying qualities of the technology that we fail to understand or recognize because we are fascinated by and are continually seeking out content.

Information Expectations and the Courts in Covid 19

The Covid 19 crisis in New Zealand and indeed in many other countries forced Courts to examine how they communicated at a time of extreme social distancing and lockdown which restricted travel and availability of counsel and participants in Court proceedings. Audio Visual Link (AVL) appearances by prisoners in custodial remand had become routine following the introduction of the Courts (Remote Participation) Act 2010[37].

The technology that was available for AVL did not allow for multi-party participation and the Ministry of Justice had to move swiftly to find some tool that could allow for virtual appearances. It was necessary to scale back the types of cases that could be heard during the most extreme phase of lockdown but the use of conferencing software enabled multi-party participation in those cases that were heard.

As the restrictions have eased the level of personal participation in Court proceedings has increased. It is still possible, and for many lawyers preferable, to appear remotely where that is appropriate.

A consideration of the information expectations that arose as a result of the use of remote technology for Court appearances demonstrate how information expectations morph into behavioural patterns.

1. That it could be done in the first place
2. That, apart from some initial technical difficulties, it provided workable solution
3. That it enabled a court appearance without the necessity for travel to and from Court
4. That it enabled a number of court appearances in sequence and by appointment that might have taken a considerable amount of travel time to accomplish were they to have been in person
5. That in between virtual or remote appearances there were opportunities to attend to other work thus maximizing productive time
6. Importantly that a remote appearance did not do violence to the Court process or to other aspects of the Rule of Law

The wider use of remote technology developed within an existing legal and statutory framework that gave it legitimacy but was accelerated and indeed proven effective by a crisis.

Although this cannot be said to be a perfect means for introducing technological change it was necessary for the continuing function of the Courts. The duration of the lockdown and Alert Levels in New Zealand have not allowed for the use of remote technologies to become firmly embedded in the process and it is a matter of regret for some that the Heads of Bench prefer a move back to “in person” appearances when the requirements of Alert Level allow it.

This challenges the expectations that many lawyers have developed around the use and effectiveness of remote court technologies and will be seen as many as a retrograde step that ignores the way in which the effective communication of information in the Court process may develop, notwithstanding statutory provisions to the contrary.

Final Thoughts on Cultural Change

In the conclusion to my book Collisions in the Digital Paradigm I made the following observations.

“Digital information systems have revolutionised our approaches to information in all its aspects. This revolution has ushered in a paradigmatic change in the way in which we communicate and deal with information. This has had an impact upon law and upon lawyers.

Legislators, wedded to a process that is by its very nature deliberate and deliberative, struggle to make rules that are applicable for the foreseeable future. The problem with that this process is that it collides with continuing disruptive change and a society the dynamic of which is in a continuing state of flux as the next new “new thing” comes along. And change is incredibly fast. Facebook was founded in 2004. [Sixteen] years later it has become almost the “establishment” of social media platforms.

Judges develop rules on a case by case basis while, on occasion, developing broad principles applicable to certain type of activity. There are a number of limitations to the judicial process in developing rules for a rapidly developing paradigm. One is that cases are decided upon the evidence that is available – within the parameters of the pleadings, issues and argument. And on occasion that evidence may be limited, incomplete or misunderstood. Another limitation lies in the judicial process and the care that must be employed in ensuring that the examples and illustrations used in judicial reasoning are applicable and appropriate. A third lies in the fact that cases decided about one technology may not be applicable to another. And then there is the problem of too much information which may obstruct the development of principle based precedent.

For lawyers, for whom information rather than time is stock-in-trade, the new paradigm has been challenging. But on the positive side lawyers have available more information, more means of communicating more quickly, more opportunities to enhance workflow methods, to automate the standard and repetitive tasks so that they may focus upon the areas of work that require the delicate, specialist, case specific approaches to client problems, to obtain information from a myriad of alternative sources and to communicate that information along the various flow paths to clients, to colleagues and to courts as the case may be. And one of the stunning successes that has been achieved by lawyers and rule makers in the law and technology field has been the development of e-discovery rules. Technology has not only driven change. It has, in some jurisdictions, been the catalyst for innovative approaches to fundamental discovery principles.

Technology is not the master. It is a servant. But as the printing press was described as an agent of change in the early-modern period, so the development of information technologies based on digital systems are agents of change. I suggest that the agency is perhaps more powerful than that of the printing press, simply because the qualities that underlie digital systems and that acts as enablers of behaviour are more powerful than those of print.

The pervasive way in which digital technologies have inserted themselves into our lives means that their influence, although obvious in some contexts, will be more nuanced in others. The influence of technology on behavioural norms and the values that accompany new behaviours and that underpin law is a continuing story and will be for some time. The long-term impact of the Digital Paradigm may be much wider than we may think at present.

When I looked at the changes that took place when lawyers encountered the first information technology – the printing press – I noted that change was gradual, incremental and slowly progressive, marked by co-existence with earlier information systems. Certainly co-existence of technologies is still a reality. As I looked out over my Law and IT class, among the host of laptops were students still employing scribal note-taking techniques that were used before the advent of print.

But unlike the early-modern period the pace of change in the new millennium has been infinitely faster and many lawyers have adopted and deployed new technologies with enthusiasm. These practitioners are probably the exception for lawyers and judges are not renowned for technological enthusiasm and technology driven innovation.

But if law and rule making in the digital paradigm is going to develop properly – at both the legislative and judicial level – there must be a proper understanding not only of what the technology can do but how it does it and the way in which the properties of digital technologies impact upon our pre-conceived understanding of information and its use. The message is in the medium and it is the medium – the technology – that must be understood. And care must be taken not to obstruct the potential and the opportunities that the technology may make available for society.

As with an understanding of technology so a recognition of the benefits that technology may bring to the table not only of substantive law but of the Rule of Law itself. Perhaps one of the most encouraging developments in the law and technology field is that of the moves towards on-line systems to enable citizens to seek remedies to which they may not otherwise have available as a result of cost, location or a lack of understanding. The development of on-line dispute resolution using technology – be it by means of private arbitration or mediation or by the provision of on-line courts by the State – may well revolutionise our understanding of access to justice and become the high point of technology use in the law.”

Recognising Cultural Artifacts.

The development of remote working within Court was, as I have observed, born out of necessity although it was foreshadowed as long ago as 2010. As I have demonstrated in this paper, many of the important and significant aspects of the Court within the legal structure do not depend upon imagery and symbols, upon building and icons, upon physical presence and performance. These are cultural artifacts that are unnecessary to the proper performance of the Court as a manifestation of an ordered society under the Rule of Law

In saying this I do not understate the vital importance of the function of the Court in society rather than as a symbol. The Court must continue to be seen as a place of resort for citizens – the alternative to the rule of the mob or the rule of the vigilante. In many respects the Rule of Law survives, although as we have seen in recent riots around the world the veneer of civilized behaviour is thin, because the alternative is too awful to contemplate. Yet it must be a matter of concern that there are occasions when mass behaviour renders the Rule of Law, adherence to the law and its enforcement powerless – an outcome which although rejected by politicians is, by their inaction, condoned.

The Rule of Law, in addition to those matters identified by the Chief Justice, requires acceptance. Acceptance is demonstrated by a recognition that it is the Court that will achieve adherence to the law by ensuring just processes and outcomes. Acceptance is critical, as is the case with all systems of authority, lest it become a tyranny. And in doing so the Court must employ systems that are apposite, understandable and relevant. For the new generation of Digital Natives, the rejection by the Justice System of means of communication and information sharing that are part and parcel of their paradigm will render that system quaint, old fashioned, out of date and irrelevant to their needs and expectations of how an information sharing system should work.

In saying this I do not for one moment propose nor indeed suggest that the justice system is perfect. It is, after all, a human construct, despite all the mythology, iconography, tradition and symbolism. I am not one of those transcendentalists who set their sights on an idealized concept of a just court service.

Rather I consider Voltaire’s observation that “the best is the enemy of the good” – what Professor Susskind refers to as Voltaire’s Riposte – as applicable to the way that we develop Court processes. Susskind uses Voltaire’s Riposte in the context of online courts.[38] I shall apply it to remote court hearings. Although a remote appearances may have some drawbacks, they will amount to an improvement on a system that struggles to properly schedule and dispose of cases in a manner that is suitable to participants. Remote working means that there may be participation without the attendant logistics of attending a centrally located building

Remote working will also provide a satisfactory means by which there will be better access to the services that the Court provides and that presently require the disincentive of personal appearance with all its attendant difficulties.

The Courts can be improved and it is conceded that remote working is not going to make our Court system the best. But it will enhance the Court system by making it better than it is at the moment, thus maintaining what is good but recognizing that the best is unattainable. Consistent with Voltaire’s Riposte remote working opens a new way of working which must be better than the old.

Conclusion

In this paper I have advocated the use of technology in the Courts to provide an alternative way of allowing appearances at Court. I have not gone so far as to advocate an Online Court. That is for the future.

Remote working is authorized by statute and the technology for it is available. It conforms with some of the fundamental procedural requirements that underpin our perceptions of the Rule of Law.

I have been critical of the support for maintaining present Court practices to the exclusion of alternatives. I make no apology for that stance. I fail to see how appeals to tradition and a reliance upon a form of cultural mythology about the “majesty of the law” can exclude the use of systems that demonstrably enhance the way that the law can work and be effective, can be meaningful and can be relevant.

I do not suggest for one moment that remote working should be used for criminal jury trials. There is limited provision for its use in Judge Alone criminal trials. There will be other processes where it will not be useful or apposite. But those occasional circumstances should not dictate that remote working has absolutely no place in the Court system.

Rather I advocate that it is one of the smorgasbord of technological communications tools that is available for a system that depends upon the effective communication of information.

---

[1] Dame Helen Winkelmann “A Framework for the future; Technology and the Rule of Law”, delivered to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020 

[2] Dame Helen Winkelmann ““Bringing the Defendant Back into the Room” Criminal Bar Association Keynote Address 3 August 2019 https://www.courtsofnz.govt.nz/assets/speechpapers/Keynote-speech-Annual-CBA.pdf (last accessed 11 June 2020)

[3] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 194.

[4] The audio is still available from the website of the 9^th Circuit http://cdn.ca9.uscourts.gov/datastore/media/2017/02/07/17-35105.mp3 (last accessed 15 March 2017)

[5] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 203

[6] https://www.youtube.com/watch?v=sbqHG1m4alE&list=PLNaT-ciUkjcf5ii_CSGP8BleRpTOiVkkv (last accessed 5 June 2020)

[7] https://live.nzso.co.nz/

[8] Given that historically clerics comprised a large part of what could be considered the medieval legal profession, some might think that apart from secularization, not a lot has changed.

[9] Lambie and Hyland “The Opportunity of a Lifetime” [2019] NZLJ at 223.

[10] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020 reported in Legal Futures 4 June 2020 https://www.legalfutures.co.uk/latest-news/remote-hearings-can-deal-with-credibility-issues (last accessed 5 June 2020

Giving evidence before the House of Lords Constitutional Committee, Professor Richard Susskind observed that people should not presume that remote hearings cannot be used for cases where the credibility of witnesses is at stake. He stated that lawyers from around the world reported that a full-screen view of a witness brought them closer to the “whites of their eyes” than being in the courtroom. The difference between looking at someone “the size of a postage stamp” and “filling the entire screen” was “manifest”.

“What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom.

“I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”

“As a generality across the world, video systems seemed to have worked quite well with large, complex commercial cases. The judge will have the discretion to decide which hearing mechanism is appropriate.”

“But I do find it fascinating from the feedback that people are expressing surprise that from the video hearing you can get a real sense of the person’s credibility and their demeanour, by looking at them on quite a high definition screen where the video is quite close to their face.”

[11] For a discussion of the nature of the confrontation right and the issues of presence see David Harvey Collisios in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) p, 213 – 214. I argue that our view of the “confrontation right” is based on faulty premises about its historical background. This erroneous foundation has permeated our thinking about the importance of the confrontation right to the point where, in New Zealand the presence of an accused and witnesses is statutorily enshrined both in the New Zealand Bill of Rights Act 1990 (s. 25(e) )and in the Evidence Act 2006.(s. 83(1)).

[12] Ian Lambie and Olivia Hyland “The Opportunity of a Lifetime” [2019] NZLJ 220 and Ian Lambie and Olivia Hyland “I am more than a piece of paper” [2019] NZLJ 297.

[13] Andrew Langdon Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020)

[14] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020

[15] A proposition put by Andrew Langdon QC in his Inaugural Address

[16] See in particular Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith   ”Juror Assessment of Veracity, Deception, and Credibility,” (2002) 4 Communication LR 45 http://commlawreview.org/Archives/v4i1/Juror%20Assessment%20of%20Veracity.pdf (last accessed 18  August 2014) See also David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2019) Chapter 8 p. 211 et seq

[17] [1765] EWHC KB J98

[18] David Nelken ‘Using the Concept of Legal Culture’, (2004) Australian Journal of Legal Philosophy 29: I-26

[19] F Lederer “The Courtroom as a Stop on the Information Superhighway” (1997) 4 Aust Jnl L Reform 71.

[20] The smaller and more routine legal disputes were conducted in the manorial courts or before Justices of the Peace. Michael Dalton’s The Countrey Justice (Adam Islip for the Stationers, London,1614) was a handbook for the standard procedures that Dalton saw as critical to the proper running of such Courts.

[21] The Court of Star Chamber was a Court that did much of its business from written material rather than emphasizing the oral processes that were a feature of the Royal Courts, but Star Chamber met its demise in 1642 and the Royal Courts assumed the dominant position still with their focus primarily on oral argument.

[22] For a discussion of the impact of the printing press on law and legal culture see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014)

[23] For a very detailed study of the management of image by the Tudors and Stuarts see Kevin Sharpe Selling the Tudor Monarchy (Yale University Press, New Haven 2009) Image Wars: Promoting Kings and Commonwealths in England 1603 – 1660 (Yale University Press, New Haven 2010) and Rebranding Rule: The Restoration and Revolution Monarchy 1660 – 1714 (Yale University Press, New Haven 2013).

[24] More frequently seen in representations after the introduction of the printing press.

[25] For a detailed discussion of the iconography and representations of justice in architecture see Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) Their principal thesis is that ‘the forms in which governments represent themselves provide windows into their aspirations. For further reading see David DesBaillets “Representing Canadian Justice: legal iconography and symbolism in the Supreme Court of Canada” (2018) 14 International Jnl of Law in Context 132 – 156 available online at https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/representing-canadian-justice-legal-iconography-and-symbolism-at-the-supreme-court-of-canada/75886182BB2B238C0E79B8C61861A819/core-reader (last accessed 6 June 2020)

[26] The design of the New Zealand Supreme Court Building is imposing and architecturally unique, especially in its design of the Courtroom but consciously adopts motifs and styles reflecting the multi-cultural community of New Zealand. Nevertheless the motif of the pillars as the supporters of the structure of justice, together with a more localized type of entablature rather than a traditional or classical one are present in the New Zealand Supreme Court building.

[27] Turkuler Israel “Review: Representing Justice: Invention, controversy and rights in city-states and democratic courtrooms” (2013) 12 Contemporary Political Theory p. e.10 – e.13

[28] The use of powerpoint or presentation software is an example of innovation in advocacy, although one that was initially contentious – see R v Haanstra HC Wellington T1155/00, 16 November 2000; R v D CA80/04 8 December 2004; R v Harriman HC Auckland CRI-2005-004-14921, 15 December 2006; R v Tukuafu [2003] 1 NZLR 659 (CA).

The use of electronic bundles is another innovation although the protocols require an approach that is imitative of the hardcopy Eastlight folders. See Senior Courts Civil Electronic Document Protocol 2019 https://www.courtsofnz.govt.nz/assets/going-to-court/practice-directions/practice-notes/all-benches/scced_0.pdf (last accessed 14 June 2020).

[29] Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) p. 339.

[30] Andrew Langdon QC Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020

[31] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 208.

[32] For a full discussion see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014) and for the qualities of the printing press Elizabeth Eisenstein The Printing Press as an Agent of Change (1 Vol) (Cambridge university Press, Cambridge 1980) esp at chapter 2 page 43 et seq

[33] See John Langbein The Origins of Adversary Criminal Trial (Oxford University Press, Oxford 2003)

[34] The argument is developed in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at Chapter 2. I identify a taxonomy of 13 qualities which dramatically, paradigmatically, differ digital technologies from those that have gone before. The taxonomy for these qualities suggests three major classifications based upon the nature of the qualities. These classifications I have described as “Environmental”, “Technical” and “User Associated.”

The environmental qualities relate to change and the drivers for change. They are continuing disruptive change and permissionless innovation. The technical qualities are underlying aspects of the way in which Digital Communications Technologies, and especially the Internet, work. They are delineaisation of information, information persistence or endurance, dynamic information, volume and capacity, exponential dissemination, the non-coherence of digital information and format obsolescence. The final set of the three categories of qualities – user associated qualities – involve the way in which digital technologies provide opportunities for users to locate, acquire and process information The first three qualities, which I have grouped together because they represent a continuum, perhaps are indicative of the nature of a cross-over between what could be considered technical qualities – something inherent in the technology – and qualities that are primarily user focussed. The final quality relates to the way in which the Digital Paradigm enables information creation in a multi-authorial sense. They are the availability, searchability and retrievability of information, participation and interactivity

[35] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf ; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf   (last accessed 23 February 2012). 

For a brief introduction to the development of Prensky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012).

[36] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover Paratexts (1992) 44 Stanford Law Review 509.

[37] Section 8 of the Courts (Remote Participation) Act 2010 mandates the use of AVL in criminal procedural matters where that technology is available and the participant is in custody unless a Judge or Registrar determines otherwise. However, protocols issued by the various Heads of Bench have mandated a return to the “in person” model and indeed run counter to the position mandated by statute.

[38] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford 2019) p. 182 et seq.

Covid 19 and the Future: Utopia or Dystopia

Once again an article by Simon Wilson has piqued my interest. In my post “The Culture of Idealised Individualism” I ventured to suggest that he is a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly, I said, much of his thinking is left of centre. And as I emphasized in that post this is still a democracy and he is entitled to his opinion and to express it. He has a soap-box in the form of the NZ Herald. I have this blog with a rather less extensive reach. Yet Mr. Wilson recently put forward certain arguments and propositions that should be answered or challenged.

Mr Wilson’s piece in the NZ Herald for 5 May 2020 is entitled “Covid 19 Coronavirus: Simon Wilson: Is this the death of neoliberalism?” It is an interesting piece but is primarily a paean against a rather ill-defined view of neo-liberalism with a hope for some utopian collectivist future – a better society – under a benevolent Government that will look after our every need.

Allow me to unpick a few things. First, in the preceding paragraph I used the word “utopian”. The meaning usually ascribed to that word is an imaginary place or commonwealth, enjoying a perfect social, legal, and political system and depicted in a book in 1516 by Sir Thomas More.

Wilson’s words

“What we are doing now has the makings of a great achievement of civilisation. Those societies that get their pandemic response right have the chance to become more resilient, less burdened by their current failings, better able to face the next crisis and the next”

sound like a search for Utopia.

But was More’s Utopia a perfect society? Did he intend it to be a blueprint for an ideal commonwealth? Quite the contrary. More was a lawyer, and one of the skills that he learned at the Inns of Court – the training ground for members of the legal profession – was case putting. Case putting was a form of argument that was employed when one wanted to demonstrate the futility or impossibility of a certain proposition. It is a form of demonstrative oratory – one of the tools of rhetoric.

More demonstrated that his Utopia was not possible by the use of irony and ambivalence. “Utopia” from the Greek means “no place” – rather like Samuel Butler’s “Erewhon” which, of course, is “nowhere” spelled backwards

Behind what is ostensibly a serious text is satire. Ruskin considered it one of the most really mischievous books ever written and Erasmus, a contemporary and correspondent of More, suggested that one should read it if one wanted to laugh. A perfect society? I don’t think so.

But – and this is my second point – the word Utopia provides us with another – an opposite – and that is the word “dystopia” or, as John Stuart Mill put it, “too bad to be practicable.”

The word is frequently used in speculative fiction describing not a world we should not like to live in but rather one that we should avoid.

Mr. Wilson refers to the concept of dystopia in his article, quoting a libertarian MP at Westminster who suggested that a bill being introduced implemented a dystopian society. He went on to argue that in fact the measures being implemented are anything but that and that steps that are being taken are to build a better society. He suggests that New York is an example of dystopia.

Mr. Wilson is incorrect. The society in which we would rather not live has been forced upon us. The spread of a virulent disease, the illness and sudden deaths of many victims, the stress on public health systems, the disruption of movement, the interference with trade, the closure of borders all are aspects of a dystopian world.

And the unprecedented intrusion of the State into the lives of citizens, the prohibitions on freedom of movement and assembly, the indirect demeaning of any criticism or questioning all are examples of a society in which we would rather not live.

We are in a dystopia. Who really wants to live in this locked-down or partially locked-down world? We have been gradually sliding into dystopia since Covid 19 spread from its source to infect the world.

The dystopia is going to continue. The free society that we have enjoyed has come to an end. It is unlikely to return in an instantly recognizable form.

It has been frequently observed throughout this crisis that the Government has interfered with civil liberties and the ordinary lives of New Zealanders to an extent not seen since World War II – in fact I would probably suggest that the 1951 Waterfront Crisis with the invocation of the Public Safety Conservation Act (now fortunately repealed) was probably a more recent serious interference with civil liberties.

Dystopia not only encompasses unpalatable social situations. A reading of many of the science and speculative fiction works on the topic present a number of scenarios. One, favoured by Orwell (“1984”), Robert Heinlein (“Revolt in 2100”), Margaret Attwood (“The Handmaids Tale”), Ray Bradbury(“Fahrenheit 451”), and Aldous Huxley (“Brave New World”) suggest a political dystopia.

Film has also presented some graphic portrayals of dystopian societies. Based on the novels of Phillip K Dick “Bladerunner” and “Minority Report” are two examples.

“Soylent Green” based on Harry Harrison’s “Make Room, Make Room” propounded a society that literally fed on itself as the oceans died. There were disturbing aspects of voluntary euthanasia with rather ghastly consequences that made for a shocking climax.

“Logans Run” which propounded that everyone over 30 was a burden and therefore should be eliminated was very eerie, made more so by the initial panic over the risk of Covid-19 to those of us over 70 – as if we couldn’t assess the risk ourselves.

Ours is not as bad as these imagined dystopias but compared with the life that we enjoyed, the freedoms that we had and the relatively light hand of the State on our affairs, what we are in now is certainly dystopic.

I do not share Mr Wilson’s optimism that this is going to herald a new and better society. I see a continuing dystopia of increasing State interference in the lives of citizens, more State control over and limitations upon the freedoms that we have taken for granted for so long.

The main point of Mr. Wilson’s article is to trumpet the end of neo-liberalism although, as I have said, he doesn’t clearly define what he means. Roughly defined it means a modified form of liberalism tending to favour free market capitalism. Presumably he is calling for a return to greater State control of the economy and in the lives of citizens, citing the rush of corporates to the Government for assistance.

Certainly in this crisis the Government has a role. But let us not forget the purpose of the Government. It is to serve the people, not to control them. The people of Government are not called “public servants” for nothing.

The Government exists to protect the rights of the people, and to provide for their protection from foreign and domestic threats, to provide for the protection of their persons and property by a defined and clear Rule of Law framework and to allow individuals to choose for themselves how they will live their lives within the law both socially and economically. The role of the Government is therefore very limited and certainly not extensive.

At the moment the involvement of the Government in the lives of its citizens is highly invasive – reminiscent of a dystopia – and  the current situation will extend into Alert Level 2. And how long will that last? How long will we be subjected to decrees and proclamations from bureaucrats in Wellington? Do we really need to be patted on the head and told how good we have been by those who are meant to serve us? Do we really need to be told that because of the idiocy of the few all of us may suffer restrictions. That sounds like patronising school teacher-speak to me.

So how long will it be?  Until we get a vaccine? Or some other equally distant event? By the time we finally emerge into Alert Level 0 – if we ever do – the population will be so habituated to the 1:00 pm update that free will and freedom of choice will have vanished.

It will be the Government who will be telling us how to live our lives – as I said in an earlier post

“what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.”

I am sure that this is not the result that Mr Wilson wants. Nor do I believe, in his heart of hearts that he wants to see an end of freedom of enterprise, individual initiative, individual thinking and innovation and all the other aspects of a free and open society – especially the freedoms that he enjoys as a journalist to question authority and to speak truth to power.

It may be that the Government can provide, during this crisis, some direction. But it should have an exit strategy – mainly for itself. And we should know now what that exit strategy is. The resources that the Government has deployed should be viewed as temporary only – not as some initial investment with a view to maintaining control long after the crisis is over.

Mr Wilson’s rosy view of the future – of the opportunity that Covid 19 has presented – sounds hopeful on the surface – Utopian almost. But as we now know Utopia is an illusion.

The collectivist solution proposed by Mr Wilson, with its reduced focus upon the individual and an overly regulated and directed society – both politically and economically – is, to those who value liberty, initiative, innovation and individualism, a recipe for a continued dystopia.

The Right to Silence

In 1994 I completed a thesis for a Master of Jurisprudence degree. The title of the thesis was “The Silence of the Lambs: Innocence, silence, self-incrimination and proof burden in the Adversarial/Accusatorial Criminal Trial.” The thesis covered 300 pages including bibliography – a total of 134,821 words. It was a very detailed study.

Every so often the right to silence and aspects of self-incrimination arise in the course of discussions about our legal process. Recently there have been calls to consider getting rid of the right to silence either in the context of police investigations or as an overall concept. The Commissioner for Children, Andrew Becroft, wrote in the Herald about his proposals for modifications to the right to silence. His proposal is in line with powers that the Serious Fraud Office possesses.

This post addresses a wider issue.

What follows is a selection of parts of the thesis. It is important to understand what it is that we are talking about, and how the concepts of the privilege against incrimination and the right to silence fit within the accusatorial/adversarial criminal trial process. My final conclusion is that in fact the wrong question is being posed. Those who favour the abolition or abrogation of the right to silence really need to ask “what sort of criminal investigation and trial process do we want.”

From an historical point of view, the right to silence and the privilege against self-incrimination seem to have developed from the same essential concept but in fact reflect two distinct and separate principles. The phrase nemo tenetur seipsum prodere[1]was used more and frequently throughout the seventeenth century. The clear concept was that an individual could not be required to be a witness against himself in the sense that he should not be asked questions which could provide evidence of or form the basis for a criminal charge[2]. However, at common law it had been a principle for centuries that an accused person was unable to give evidence in court on oath[3] and, indeed, this situation continued until 1898. That principle is summed up in the maxim nemo debit esse testis in propria causa [4].

It is my contention that in fact the two concepts are separate and distinct and cannot be used synonymously[5].

A difficulty seems to have arisen in treating silence in the face of questioning by officialdom (but not under oath or other form of compulsion) as an invocation of the privilege against self-incrimination. Without extending the adversarial process to the point of investigation[6] such an application of the privilege is unsustainable.

Some writers have expressed difficulty with the application of the right during official questioning or at trial, and have totally ignored the situation pertaining to a witness other than the accused or the impact of the obtaining of incriminating evidence which may be derived in civil or other investigative or inquisitorial proceedings.

The nemo tenetur maxim protects a person who may have committed or be suspected of a crime or offence in two respects. First, that person need not give any information to investigative authorities which may incriminate[7] him – that is which may give the authorities sufficient evidence from his own mouth alone to accuse him or to bring a charge. Self-incrimination was seen as objectionable because it essentially was a form of self-accusation, rather than accusation from another source.

Secondly the significance of the concept of “privilege” is  highlighted not by its existence but by its abrogation. A line of cases in England illustrates where in certain situations provided by statute, evidence derived in one forum which may be incriminatory and obtained by a form of compulsion, may potentially be used in criminal proceedings[8].

The right that reposes in an accused person at trial arises, from the nemo debit maxim. The right to silence at trial – that is to sit back and put the prosecution to the proof of its case – is grounded both upon the nemo debit  maxim and also upon the burden of proof being upon the accusing authorities to prove the charge which has been laid.

Historically there may have been collateral issues involving the likelihood of self-incrimination arising from cross-examination, but it is my clear view that they were collateral only, having regard to the much older concept of disqualification for interest, and the old concept that an accused could not be sworn to give evidence at his trial. The position now is that an accused who elects to give evidence accepts that risk, for he may be cross-examined. Yet he still retains the right to remain silent in the face of his accusers.

In my view, the distinction between the rights that I have described above and what is called the privilege against self-incrimination is highlighted by the example of the witness, (who can be compelled to give evidence as opposed to the accused who cannot), giving evidence in the course of a trial and may be asked a question the answer to which may be self-incriminatory in that it provides an acknowledgement of participation in another unrelated offence. In such a situation that witness is entitled to be warned that he need not answer on the grounds that he may incriminate himself. Thus, in adopting such a course of action, the witness is availing himself of a privilege that arises in the course of his giving evidence in respect of which he is compellable.[9]

It is clear that the definitional waters have become muddied[10] and the terms have become interchangeable.

One problem seems to be in the interchangeable use of the word “right” on the one hand and “privilege” on the other. Although what is generally known as the “right to silence”  has one of its foundations in the principle that a person should not provide the foundation for an accusation against him or herself, the specific right to silence at trial  is based on a more fundamental principle associated with the burden of proof coupled with the historical premise of nemo debit.

The right to silence in the face of investigative questioning is partially grounded on the concept of non-self accusation but it is also based on the historical loathing of the English common law for torture and with judicial disapproval of compulsion, coercion and lack of voluntariness in the obtaining of an incriminating statement.

The true “privilege against self-incrimination” attaches to a person who is compelled to give evidence and may suffer a penalty imposed by a legal authority[11]for failure to answer. That privilege may attach to a person who may not have been charged with an offence or who may be subject to a charge.

In granting to an accused a right to give evidence at trial, an issue arose regarding cross-examination, which would directly impinge upon the privilege against self-incrimination. The right to give evidence carried with it a concomitant obligation to subject oneself to cross-examination without being able to raise the privilege against self-incrimination.

I suggest that the categories may be reduced in the following way:

1. The Right to Silence being:

(a) The right to maintain silence at trial which is a specific right attaching to an accused. It is derived from the nemo debit principle, the concept of disqualification for interest, and the prosecutorial burden of proof. It contains implications for the privilege against self-incrimination and for the burden of proof if it is abrogated.

(b) The right to maintain silence in the face of investigative inquiry. This is a general right available to all and is based on  privacy, the burden of proof of an offence resting upon the accuser and the sanctity of the individual from coercion, compulsion or unfairness on the part of investigative authorities. If there is to be an inculpatory statement made it must be as the result of the free exercise of choice. There is no historical basis for claiming the nemo tenetur principle having regard to the use of the enquiry conducted by the Justices of the Peace following the passage of the Marian Statutes, and the fact that the privilege against self-incrimination was not invoked.

2. The privilege against self-incrimination which is a general privilege available to any witness who is compelled[12]to give evidence on oath and who, if he or she does not refuse to answer, may give evidence which may incriminate that witness and lead to a penalty, and where failure to answer may attract a penalty which may be imposed by law or by an authority having the power to impose a penalty[13].

To summarise my contention on the matter, there is a right reposing in all citizens to remain silent in the face of investigative interrogation and to refrain from giving verbal information which may result in self-incrimination.

There is a right reposing in all citizens standing trial before a jury or a judge alone to remain silent throughout the trial and refrain from giving evidence in answer to the evidence brought by the prosecution.

There is a privilege reposing in witnesses (other than an accused) who are called at a trial or some other hearing or inquiry to give evidence to refuse to answer questions which may involve self-incrimination[14].

Our criminal system is that of an accusatorial/adversarial model. Critics of the privilege have professed an allegiance to this model of criminal proceeding, together with its presumptions and allocation of proof burdens and standards. It is therefore a matter of concern to read the critics condemn the privilege and the right to silence as the shelter of the guilty. In the rigorous legal sense that cannot be the case. A person is not guilty until he or she has been found guilty or has pleaded guilty. If a person has remained silent and is guilty, by a strict application of the presumption of innocence, that person must have been found guilty. That finding must have taken place absent any evidence from the accused.

The question falls to be answered – how then has the system suffered as a result of the right to silence? If, however, a slightly less rigorous approach is being adopted by the critics, and their argument is that people are guilty who have not been convicted at trial, and that this has been as a result of the exercise of the right to silence, the question falls to be answered – what value do the critics then place upon the presumption of innocence?

The point that this makes is that one cannot view an issue such as the right to silence in a vacuum from other parts of the criminal legal process. Although those who classify the right to silence and the privilege against self-incrimination within the category of evidence do so because it has certain evidential ramifications, such a classification fails to view the right to silence and the privilege against self-incrimination as a part of the matrix of the entire criminal process. It is inextricably bound up with fundamental precepts of the criminal process – the presumption of innocence and the burden of proof – along with other matters of an evidential nature as well.

Although the right to silence is a convenient target, and may, in the minds of the critics, be easily separated from the criminal process without doing violence to the integrity of the process as a whole, it is my conclusion that such a course of action is not possible. Although the criminal process has developed to its present point in disparate ways, and in response to different stimuli, it is, nevertheless a settled matrix of fundamental principles. To disturb any one of those will render the shape of the matrix to quite a different one from that which we recognise today.

If the critics of the right to silence were to carry the matter to its logical conclusion, the question that they should ask is “what fundamental model of the criminal process do we want” and address the issue of the burden and standard of proof and the inquisitorial system as opposed to the adversarial\accusatorial model.

The privilege is built into the adversarial\accusatorial model. If the right to silence were lost and the accused were required to answer or risk adverse inferences the trial process would shift to an inquisitorial system with its complex of shifting proof burdens.

There may indeed be an argument for an inquisitorial system but if a simple solution of attributing evidential weight to silence or allowing adverse inference to be drawn from silence were adopted, we would be left with unfavourable aspects of the inquisitorial system without any of the protections for an accused that such a system may offer. As I have suggested, the matrix would be destroyed. The whole focus of the trial would shift to the accused and an assessment of his or her case rather than the focus remaining upon the prosecution case. Quite clearly, the burden of proof would be affected. The accused’s account, or his failure to give one becomes the focus and centre of the trial, rather than the strength or weakness of the prosecution case.

---

[1] No one is bound to become his own accuser.

[2] Especially in circumstances where there was little or no other evidence and in circumstances where prosecuting authorities were anxious that evidence of a confessional nature be provided and available.

[3] Although in criminal trials an accused was expected to speak and engage in dialogue and verbal contest with prosecution witnesses in what Professor Langbein describes as the “accused speaks” trial.

[4] No man should be a witness in his own cause.

[5] Although the privilege against self-incrimination is referred to by Lord Mustill in Smith v Director of Serious Fraud Office [1992] 3 All ER  456, 463 as aspects of a disparate group of immunities gathered together under the heading of “ the right to silence”.

[6] As was the case in Miranda v Arizona 384 US 436 (1966)                             

[7] “Incriminate” is defined in the Shorter Oxford English Dictionary as “To charge with a crime; to involve in an accusation or charge”.

[8] Without any form of protection for the witness in the way in which the evidence may be used directly or the way in which the evidence given may lead an investigative body to uncover evidence indirectly.

[9] The distinction of witness privilege as opposed to the right to silence that reposes in an accused person at trial is clarified and supported by Mr. Justice deCordova Rowe in How Valid is the Right to Silence at Criminal Law (1990) Commonwealth Law Conference Papers 267. However, Mr. Justice Vincent describes the title to his paper as  The Right to Silence Revisited Again (1990) Commonwealth Law Conference Papers 263 when in fact it deals primarily with investigative interrogation which involves issues of self incrimination based on the concept of prodere.

The true nature of the privilege is further exemplified in the English cases to which I have referred, especially R v Kansal [1992] 3 All ER 844 and Bishopsgate Management Ltd v Maxwell [1992] 2 All ER 856.

[10] I shall not inject a further element of confusion into what is largely a conceptual discussion by referring the Fifth Amendment to the Constitution of the United States which has elevated the privilege against self-incrimination to a constitutional right.

[11] Such as a penalty for contempt, which could include loss of liberty.

[12] By subpoena or otherwise.

[13] The privilege is available to an accused who faces charge A, but can claim the privilege when cross-examined about an unrelated allegation B at his trial on charge A.

[14] All subject, of course, to statutory abrogation.

Authoritative Digitised Legislation

Introduction

The use of legislative material and, more importantly whether a court will accept it without question, is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.

Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.

Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:

(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—

(a)   To be a correct copy of that Act of Parliament, enactment, or legislation; and

(b)   To have been so printed or published.

The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.

Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:

(1) Subsection (2) applies to a document that purports—

(a)   to have been printed in the Gazette; or

(b)   to have been printed or published by authority of the New Zealand Government; or

(c)   to have been printed or published by the Government Printer; or

(d)   to have been printed or published by order of or under the authority of the House of Representatives.

(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.

The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:

1.    It is not for the court to ask whether or not the copy proffered is authoritative.

2.    It is for counsel to satisfy himself or herself that what is being proffered is authoritative.

That is all about to change.

Digitised Legislation

The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of the Legislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.

From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website (www.legislation.govt.nz) and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..

Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:

•  every act and legislative instrument (LI) enacted or made since 2008;
• every reprint (subsequent version) of those acts and LIs;
• the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
• the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).

Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.

Pre-Print

In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.

Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.

Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.

For example in the 14^th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.

Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.

Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.

Introduction of Print and the Royal Printer.

I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.

Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.

On 5 December 1485, Peter Actors was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with

“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc. thereon and without rendering any accompt thereof.”

 Henry VII utilized print for propaganda purposes and was the first English monarch to do so  And he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.  It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.

The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated by the technology of print.

The importance of printing and its status continued to be recognised by the Crown and the office of King’s Printer, which was not an honorary one, became a tool of Government.  The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”

The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.

The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicised, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.

One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.

The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.

An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.

The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.”  There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.

The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material –  although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.

 Print vs Manuscript

Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.

In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’  In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.

This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.

Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.

The Digital Paradigm

Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.

This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:

 “When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”

The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.

As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium

“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens.  But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment.  One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future.  Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers.  Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”

But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.

The Crimes Amendment Act 2003 and the Government Communications Security Act 2003 – An Interrelated History

In 1999 the Government introduced the Crimes Amendment Bill (No 6). The Bill contained, among a large number of other changes to the law, provisions relating to computer crimes. The changes proposed seemed reasonable and were designed to address some issues that had been identified by the Law Commission in its 1999 report “Computer Misuse”.

Then a new Government introduced Supplementary Order Paper No 85 which radically changed the landscape not only of computer crime by adding a provision criminalising unauthorised access to computer systems (without associated dishonest acts or intentional damage) but also addressing changes to the provisions of the Crimes Act relating to crimes involving privacy and the circumstances under which law enforcement and intelligence agencies might be exempted from the proposed unauthorised access to computer systems provisions.

In the process the potential for state surveillance, enabled by digital technology, was expanded and it also became necessary and desirable for an organisation that had been involved in intelligence gathering, the GCSB, to have statutory recognition and oversight. While the Legislature followed up on enacting the GCSB Bill – a process that took some two years – the Crimes Amendment Act languished until its enactment in mid-2003.

It has long been my view that had it not been for the addition of the unauthorised access offence in SOP 85, it may not have been necessary for the GCSB to have moved into the picture and indeed it may not have been necessary – at least at that time – for it to have had its own legislation. But in a startling example of the law of unintended consequences that seemed to have been the case.

I decided, since I had a little time on my hands, to have a closer look at the history of the two pieces of legislation and their interrelationship. I based my research on the various Bills, Supplementary Order  Papers, Debates from Hansard and materials and reports I had in my own possession which I gathered at the time. The lack of on-line material from the Government prior to 2003 meant that some of my researches had to follow alternative sources. I should also add that my researches did not include any policy documents so the introduction of the GCSB Bill relies on the statements of Michael Cullen MP in Hansard when the Bill was first read.

I think that it can be inferred from the material that I have put together that the changes proposed by SOP 85 resulted indirectly in the passage of the GCSB Act 2003. Although SOP 85 set out prescriptions whereby the GCSB may be exempted from criminal liability for accessing computer systems (and these were stated as exemptions rather than authorisations) it obviously became necessary for the GCSB to have statutory recognition. The importance of this was pointed out by the Privacy Commissioner Mr Bruce Slane in his submission on the Crimes Amendment Bill (No 6) in December of 2000.

The other related issue was the way in which some of the scope of the powers of the GCSB and other authorities were extended by changes to definitions that allowed digital systems to be included in search and surveillance activities. Further enabling of such activities came into effect with the passage of the Telecommunications Interception Capability Act 2004.

I want to make it clear that in putting together this information and writing it up I am acting, as Christopher Isherwood put it, as  “a camera with its shutter open, quite passive, recording, not thinking.” although I do offer some conclusions on the evidence and raise some questions on the wider issues of the nature of liberty in the Digital Paradigm and whether, with the constant disruptive change that characterises that Paradigm, our understanding of liberty may change from Jefferson’s Enlightment agrarian ideal to something else.

A further point must be made. I have incorporated a number of quotations from Members of Parliament in Hansard. Keith Locke MP features regularly. The use of his speeches or of any other Member should not be taken as an endorsement of the political views of that member or of his or her party. As I said, “I am a camera”.

View this document on Scribd

Collisions in the Digital Paradigm: Information Rights and Copy Rights

A Sketch of Thoughts for the ADA Copyright Forum 2013

Judge David J. Harvey

A Judge of the District Court, New Zealand

 This discussion has been a developing project. It still has some way to go. It started as some notes for a keynote speech at the Australian Digital Alliance Forum on 1 March 2013 and formed the basis for a powerpoint presentation together with some discussion points for a panel following the keynote.

 I had completed the notes for the keynote speech but was aware that the rights-based approach to gauging the applicability or strength of copyright protection required further development. I was fortunate enough to be invited to Kiwi Foo – a gathering of people to discuss issues of common interest organised by Nat Torkington and Russell Brown at Warkworth, north of Auckland, in the second weekend of February 2013. I took the opportunity to put the ideas before an audience and see what sort of reception they attracted and what further developments could take place. The session lasted for an hour although I am sure it could have lasted longer, but I was able to clarify some of my own thinking as well as benefitting from the collective wisdom of the group. I am very grateful to all those who attended the session and especially grateful to Lance Wiggs who recorded the various inputs and suggestions on a white board which I photographed with my iPad for further reference.

 I like to see how a proposal works and the Kiwi Foo session fed into that aspect of the development of this discussion and very much informed the latter part of this note where I move to consider how a rights-based approach to copyright would work.

 If this approach to copyright is to go further, much more work will need to be done to rigorously crystallise the basis for change (paradigmatic change in communications as a result of technology leads to changes in behaviours and values and their validity, which underpin the basis for rule making) and examine the way in which a rights based model may work. I see this as a collaborative undertaking and I welcome commentary and new ideas. It may well be that a rights based model may not be the way to go. An entirely different model or an entirely novel solution may emerge. But this is a debate worth having. Between 1695 and 1710 there was a debate about the way in which the trade and technology of printing should be governed. That debate culminated in the Statue of Anne and took place within the context of paradigmatic change in information communication by means of the first information technology. It seems appropriate that we address the issues of copyright anew in this time of paradigmatic change following the development of digital communications systems.

A copy of the Conference presentation (without media) may be found here Collisions in the Digital Paradigm Short

My keynote speech may be found on YouTube Here

 Introduction

 Copyright has collided with the digital paradigm and is in difficulty. There are reasons for this and one of the principal ones is that copyright was developed under a different paradigm. But the current copyright wars that are taking place at the moment are not new.  In fact they are part of continuing story that goes right back to the advent of copyright.

In this discussion I shall outline some of the background to copyright. I argue that paradigmatic change challenges our assumptions about and expectations of information. I contend that the digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional copyright thinking. There can be no doubt that there must be some protection for intellectual property rights. I will conclude by suggesting a possible approach.

Copyright has always been contentious. It creates tensions on the part of content owners who don’t think they have enough protection, and consumers who think that content owners have too much protection. It is a tension as old as copyright itself. And although historically there have been examples of intellectual property protection before the Renaissance[1], the copyright debate began as a result of relatively recent event in human intellectual history. Copyright is the child of the print paradigm. The printing press was the first information technology and it enabled revolutionary change in the way in which people approached and used information.

The printing press mechanised the production of text.  The paradigm that preceded it – what I refer to as the scribal culture – involved the creation of written information by hand.  The volume of written information was limited by the number of copies that were available.  There are a number of consequences for this.  One involved approaches to and expectations of information.  In many cases, because of a limited number of copies, information was located at a central point.  Scholars would necessarily have to travel to that information point be it in a library or a collection where they could access the information and return to their own home to process it.  Necessarily they would take a copy of the information that they sought with them.  They would transcribe the information themselves.  This is the way in which information circulated in the pre-print world.  Copying was a reality.  It was the only way that information could be circulated and there was no concept of what we understand as “the copy right”.

Yet even the origin of our copyright has been contentious. Received wisdom suggests that it had its origins in the licensing regime that was part of the activities of the Stationers Company in England. I dispute this proposition.

The Stationers Company, Licensing and Industry Protection

When one carefully examines the activities of the Stationers Company, even before its incorporation in 1557, it is clear that its focus was directed towards the objective of industry protection for the benefit of its members and the control of the new means of reproducing information.[2]

The Stationers were a craft guild and had been in existence from the latter part of the 14th century.  Originally their guild incorporated everyone who was involved in the creation and manufacture of books.  Stationers were just one arm of the book production operation.  Primarily their role was in the sale and distribution of books that had been copied by scribes, illustrated by limners and bound by binders.  Indeed the formation of the guild suggests that the book trade was well developed in sufficiently competitive to make an early form of governance desirable. Guilds played a significant part of the economic and political life of a city, ensured that proper training for apprentices was undertaken and had a hierarchy of expertise within the guild itself.[3]

By their very nature the Stationers were interested in protecting their craft for the benefit of members of the guild and excluding from the practice of the craft those who weren’t.  Once the printing technology arrived and after the Stationers were incorporated in 1557 the importance of this protection was enhanced.  After all, anyone who had the capital to obtain a printing press could set up in the business of a printer, unsupervised by the Stationers who would challenge their monopoly on the production of books and adversely impact the financial and economic welfare of members of the Stationers Company.  The Stationers authorised certain printers to have the exclusive rights of printing certain books and these were registered in the Stationers Company register.

Now all this may be seen as a form copyright but in fact it was a means of ensuring that only members of the Stationers Company printed books and any books that were printed that had not been registered with the Stationers company at least prima facie could be viewed as books that were printed by a non-member whose activity should be suppressed. After incorporation the Stationers Company was vested with considerable powers to ferret out printers who were not members of the company.

Alongside Stationers Company licensing was the grant of privileges by the Crown to certain printers to have the exclusive rights to print certain works.  This was done by means of a Royal Patent.  These patents could be very valuable.  The patent, for example, that allowed a printer to print a prayer book was extremely valuable because nobody else could.  A prayer book was essential in a society where church attendance was compulsory. The patent that was granted to Richard Totell to print common law books essentially meant that Totell had a monopoly over legal publishing over the latter half of the 16th century.

Because patents were an exercise of royal prerogative power any disputes over the scope of patents would be litigated in the prerogative Court of Star Chamber.  Now it must be remembered that this litigation had nothing to do with author’s rights but everything to do with the protection of the publisher and the developing industry. The Star Chamber Decrees of 1587 and 1634 which, according to many commentators were more directed towards censorship than anything else are, in fact industry control mechanisms that arose out of litigation about patents, their infringement and scope.[4]  In fact if one considers carefully the background to the litigation, the enquiries that were carried out in the late 1570s and early 1580s and the concerns of the Stationers about “disorders” in the printing trade it becomes abundantly clear that the Stationers were interested in keeping their monopoly over the use of the new information technology, excluding non-members from its use, and ensuring that members of the company receive the economic benefits from it.

The disruptions of the Civil War from 1642 through to the Restoration meant essentially that there was an hiatus in the development of printing controls.  Following the Restoration a very rigorous system of print licensing, directed as much towards content as it was towards industry monopoly and control, followed the enactment of the Licensing Act 1662. The Act was enforced by the Stationers – continuing their control over the industry – and was renewed biannually through until 1694 when the licensing rules came to an end.

For a period of 15 years there was a debate about the control of publication of printed works. The focus of the debate began to shift from the publishers to the authors. The writers Jonathan Swift and Daniel Defoe were among the advocates for the author’s right to receive remuneration from the sale of his work.  In 1710, after considerable lobbying and debate, the first copyright statute was enacted – the Statute of Anne – and this was directed towards the new information technology of printing.

Since then copyright has been inextricably tied up with information technologies. It is really based on the use of technology rather than any underlying “property” principles, although it has been dressed up as such.

Scribal Culture Co-existence

Nothing is said in the Statute of Anne about manuscript works and I think that we’ve got to remember that the scribal culture co-existed with the developing print culture for a considerable period of time.[5]  It wasn’t until the advent of the typewriter that the individually created handwritten document effectively came to an end.  But we must remember that content was still available in manuscript form. A fundamental aspect of the scribal culture was that copying was a reality and effectively the only means by which manuscript works were circulated.

There were a number of reasons for the continuing interest in manuscripts.  Within the area of legal writing most lawyers who subsequently had their works printed – like Edmund Plowden[6] and Sir Edward Coke[7] – circulated their works among coteries of friends or fellow professionals within the Inns of Court. Manuscript publishing was for limited audiences.[8]  Printing addressed mass production.  So the Statute of Anne in fact reflects a recognition of the values of two cultures and the qualities of the printing press that differentiated it from the manuscript culture.

 Copyright Wars

Following The Statute of Anne there was a continuing debate about copyright. Publishers looked to other theories to protect the exclusivity on the right to produce content, arguing in Miller v Taylor[9] that there was a common law right to copyright which the Court upheld but which was later overturned in Donaldson v Beckett.[10]

When one looks at the litigation that took place in the early days of copyright –  Miller v Taylor, Donaldson v Beckett, Tonson v Collins[11] – we must ask ourselves whether or not any of the litigants were authors and the answer is no.  The battle then and almost exclusively since has been contended, at least on one side, by the publishing and distribution conglomerates.

There is a reason for that.  Commercial copying and distribution, starting with the printing press, was and is a capital intensive business.  Printing, radio broadcasting, television broadcasting, sound recording, movies are all capital intensive and require large corporate structures, capital investment and financing to publish and distribute the works that the various technologies allow.

Because copyright has called itself technology neutral – a theory which I would dispute vigorously – the principles that were developed in the early years of copyright that underpin the Statute of Anne have remained – principles that had their grounding in print technology.

Essentially conglomerates or monolithical organisations could feel relatively comfortable about their control and dissemination of their content.  The first real challenge to capital intensive complacency came in the form of the photocopier – a cheap, available and accessible means to copy printed works. Although the photocopier was a product of analog technologies, and was just another type of printing press, it was the first alarm bell for print based copyright. It was one of the first examples of the empowerment of individuals to access information other than through established commercial outlets.[12] With the onset of the digital revolution more and more means have become available for individuals to create their own content or to copy that of others.

The conglomerates and the copyright corporates recognise that the power balance has shifted as a result of the new technologies to the point where everyone is able to copy.

Yet the legal battles that have been waged recently reflect what happened in the early days of copyright – the litigation is at the urging of the corporate and conglomerates and authors don’t really seem to feature at all.  Examples may be found in the cases of A & M Records v Napster[13]; Recording Industry Association of America v Diamond Multi Media[14]; Universal City Studios v Reimerdes and Corley[15]; MGM Studios v Grokster[16]; Sony Computer Entertainment v Edmunds[17]; Sony v Ball[18]; Sony Music Entertainment Australia Ltd v University of Tasmania[19]; Sony v Stevens.[20]

In some cases the responses of the conglomerates has been to try and shut down the technology altogether – resist technological change by banning the technology, thus further emphasising the association of copyright with technology. This is an example of vested interest complacency and the failure to understand the view of Mcluhan about rear view mirror thinking –  by the time you recognise the problem caused by a new technology it is generally too late. Examples may be found in the Betamax case  – Sony Corporation of America v Universal City Studios[21] and in the English case about twin reel cassette tape recorders – CBS Songs v Amstrad.[22]

 Every copyright statute has in it provisions about infringement. However, those infringement remedies really can only be sought if it is economically feasible to do so. In today’s digital environment the costs of litigation are too high to pursue individual infringers so copyright conglomerates have managed to obtain an additional infringement remedy – graduated response regimes to deal with file sharing. Let’s be clear about a few things. The first is that copyright owners would have preferred a “guilt by accusation” system with a reverse onus on the alleged infringer. It is just another way of saying that everyone who has a computer or who downloads or has a file locker in the Cloud is a pirate. That was made clear in the original s. 92A debacle in New Zealand The second thing is that a graduated response regime is economically beneficial for copyright owners. In New Zealand complaints of infringement must be accompanied by a $25.00 fee – a little less than instructing a silk and instituting High Court infringement proceedings. Let us be under no illusion about this. The only ones who benefit from the graduated response regime are copyright owners and the cost savings are significant.

 The Answer to the Machine……

One of the problems that copyright theory faces is that we are now in a new information paradigm – a paradigm that is as different from the print and analogue as printing was from the scribal culture.  New copying technologies and digital systems challenge existing copyright thinking because digital technologies work on a premise that is so fundamental that it strikes right at the heart of copyright and that is that copying is necessary for digital technologies to work they can’t function without copying.

It was this reality that prompted Charles Clark to comment “the answer to the machine is in the machine.”[23]

Essentially what Clark was saying was the fundamental problems created by digital technologies have a  solution within the technology itself.  Content owners could take control the copying that was necessary to make digital technologies work.  Thus developed what Kirby J referred to as para-copyright[24]  – the development of technological protection measures (TPMs) and the legal protection of technological protection measures, which meant that attempts at circumvention or the provision of means of circumvention of TPMs were considered on a par with copyright infringement itself.

One of the unintended consequences of TPMs may be seen in the cases of Sony v Edmunds[25] and Sony v Ball[26] in England. These decisions opened the door to copyright by contract. Content owners could impose technological protection measures which could be circumvented if the approved equipment was used. In addition owners could impose standard terms and conditions of sale and could write their own copyright contract that went far and away beyond the careful balance that had been achieved in legislation.  The copyright owners’ dream in Miller v Taylor[27] was finally becoming a reality.

Para-copyright protections actually challenge the developing concepts of fair use and any other concepts that may develop in the digital environment.  TPMs can lock up content far beyond the copyright term.  They are indiscriminate in their prevention of copying and although they may claim to have a focus on copy protection many TPMs are in fact used for access protection as well which is something of an anomaly in the global world – an anomaly perpetuated by the regionalisation of content via Netflix, Hulu, Amazon Music and iTunes.

Clark’s adage about the answer lying in the machine runs up against a problem. Machines don’t operate on their own.  Machines are meant to be servants of people and challenging Clark is McLuhan’s concept of technology induced behavioural change based on another adage –  first we shape our tools and thereafter our tools shape us.[28] And the digital tools that have developed and are developing have already begun that shaping process. I shall develop that argument shortly.

 Welcome to the Machine[29]……Digital Natives, Information Expectations and Frustrations

I make no secret of the fact that I am an adopter of digital technology – a digital immigrant.  I am speaking to you as one who was brought up in the print paradigm.  In my childhood the main means of communication of information apart from the spoken word was by print – books and newspapers or by radio.  I remember the introduction of television.  I have grown up with that medium.  And I have seen the wonderful developments that computer based and digital information technologies can provide.  And I am an enthusiastic adopter of those technologies. My children and grandchildren are digital natives. They will grow up in a world where digital technology always has been around. The idea of a single function telephone that can only be used for vocal communication would seem to be an outrage to them. They are aware of the capabilities and potentials of the new technology and have certain expectations of information that run up against copyright law.  They know that certain seemingly harmless things are feasible even if the law does not permit them.

Digital natives – and I shall have more to say about them shortly – view copyright theory and the values of copyright that developed in the pre-digital world as atrophied and outdated. The position has been made worse by the “commodification” or “walmartisation” of intellectual property coupled with a failure by copyright owners and distributors to recognise that globalisation has been accelerated by the internet in a world where content is digital.

Digital natives find it difficult to understand why it is that they may be willing to pay for a product that copyright owners won’t let them purchase or access.  I can’t subscribe to Hulu because I live in the wrong part of the world.  I can’t download content because I live in the wrong part of the world.  Yet the internet and the globalisation of content and e-commerce have essentially made at least the commercial world a world without boundaries.[30]

A fundamental concept of contract law – that says that it is not in fact the person who has the goods on their shelves but the person who wants to buy the goods that is making the offer, and that the seller has the right to refuse or to accept the offer – provides the basis for copyright owners to regionalise their product.  But the digital native doesn’t see it that way.  They are prepared to pay.  The copyright owner is not prepared to accept the money.  So let’s then look at another solution. We know another way to get the content. Let’s file share.

Some New Zealand television channels screen episodes of popular US shows  a matter of days after they were screen in the United States.  That, to my view, is encouraging because it eliminates the necessity to download to find out what was going on in the show and one could possibly avoid the “spoiler community” for a couple of days.[31] More importantly it is at last a recognition by the content owners that there is growing consumer outrage towards a regionalisation of product that might have been understandable in the days when the movie was carried in a can across the Pacific on a steam ship but which today is instantly available.

In essence when we are looking at access to information and the distribution of information we are looking at aspects of expression – that essential that engages the “copy right”. We need to look at a new approach that recognises technological realities and what it does to behaviour, the values that underly behaviour and consequential expectations of information.

 We Shape Our Tools……

 Marc Prensky, an educationalist who wrote in the early 2000s identified “digital natives” as those who have spent their entire lives surrounded by and using computers, video games, digital music players, video cams, cell phones and all the other tools and toys of the digital age.  Digital natives, said Prensky, are native speakers of the digital language of computers video games and the internet.  But I’m not one of those.  As a digital immigrant I speak with a different accent from that of the digital native.  I have adapted to the new environment but I retain to a certain degree my accent that is my foot in the past.  I know how things were.  That “accent” can be seen in such things as preferring a book with pages to a Kindle or an iPad, turning to the internet for information second rather than first, or even reading the manual for a programme rather than assuming that the programme itself will teach me how to use it.  The digital language is a new language for me and a language learned later in life goes to a different part of the brain.

And that’s one of the interesting things that new technologies do for us.  They change us.  Sometimes we can recognise the changes that they make but there are other changes that are more difficult to recognise. They operate at a subconscious level.[32]

It may be surprising to know that learning to read is not something that comes naturally to people.  It isn’t like speech – our primary means of communication.  When you learn how to read what happens in the brain is that your neural pathways change.  And once they have changed they have changed forever.  Learning to write involves similar changes and what happens with both of those activities is that a remarkable amount of processing of information takes place and it all happens at a subconscious level.

You see writing is a code.  It’s a code for information that is initially conceived as an oral expression and is then rendered into phonetic alphabetically form and when it is read it is reprocessed so that it has meaning.  But in the way in which we read and we write we realise Marshall McLuchan’s comment that “We shape our tools and thereafter our tools shape us.”[33] And the use of new technologies is clearly just that – both behaviourally and physiologically.

 The Medium Is…….. Elizabeth Eisenstein and a Qualities Based Analysis of Print Media

Part of the problem is trying to identify what it is about our tools that allow these changes to happen or that enable them.  In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified 6 fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s 97 arguments around Germany in the space of 2 weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

 a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

 For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. For example, dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[34] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its

presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[35]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Proclamation of laws in print was therefore within the reach of a reasonable proportion of the population.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[36]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[37]

From all this it would be fair to ask –  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

Another thing that Marshall McLuhan said – and he had a tendency to be a little bit opaque in some of the things that he said, and this is one of them – was that “the medium is the message”.  Now a lot of people have taken that to mean that McLuhan didn’t really care too much about content and he certainly did.  But whenever you are looking at the delivery of information by a means other than orally you got to examine the way in which it was delivered.

Using Eisenstein’s approach  I have managed to identify nine qualities (and there are probably more) which dramatically distinguish digital technologies from those that have gone before and they are

•  Persistence,
• Continuing change or what you could refer to as the disruptive element,
• Dynamic information
• Dissociative enablement,
• Permissionless innovation,
• Availability,
• Participation
• Searchability
• Retrievability.

Within these nine qualities of digital technologies will ultimately lie most of the answers to the questions “where are we going?”

One sure thing follows from two of the qualities. The disruptive element which recognises a state of continual change, and permissionless innovation which means that new stuff is going to happen on the back bone of the internet. It all means we can’t be sure what’s around the corner.  But at least the qualities of new technologies, if considered, will at least give us some idea of possible direction.

 We look at the present through a rear-view mirror……

Now one of the problems that we have particularly in my field of the law is that you run up against a real tension with disruptive communication technologies that are continually changing as a result of permissionless innovation. The law is fundamentally a very conservative beast.  Lawyers really don’t like change.  The law must be certain, known and predictable. When you look at how lawyers work you can see this in a moment.

I’ll introduce this example with another of McLuhan’s adages “We look at the present through a rear-view mirror. We march backwards into the future.”[38]  Take the doctrine of precedent – using earlier decided cases to determine the outcome of a present problem.  Now if that is not an example of driving forward using a rear vision mirror I don’t know what is.  We look to the past to solve the problems of the future.  The difficulty is that many of the decisions of the past or the way in which problems were resolved in the past were based upon a society, a context and circumstances that existed then.  And when you have paradigmatic change – when the world is turned upside down – when you have that, the old rules cannot apply.

The other challenge to precedent that comes from the digital paradigm is this. Precedent depends upon the selection of a certain limited number of cases which are reported and which form the basis for the development of principle – a critical mass. In the print paradigm there was little problem with this. Law reporters and publishers carefully selected the cases that were going to appear in the reports. Unreported decisions were not seen as authoritative.

The qualities of the digital paradigm enable the collection and storage of vast amounts of legal information. Availability in vast data banks, searchability, retrievability and availability mean that vast digital libraries become the first research stop for the digital native lawyer. Because of the volume of legal information that is available, the critical mass allowed by print has been upset. Precedent will become an exercise in fact comparison rather than principle analysis.

Much of the foundation of the development of attitudes to information and its communication was developed within a particular information paradigm and that is the print paradigm.  We are now moving into the digital paradigm and the qualities that Eisenstein identified that applied in the print paradigm have been overtaken by the new qualities that I have suggested.

And so in the law what we do is that we anchor ourselves to the past while the world is changing around us.

Bringing it all back home…..[39]

Let me summarise the argument so far.

a) There are qualities that underlie the medium of communication of information

b) Those qualities dictate and influence behaviour and the development of social and cultural practices

c) The printing press – the first information technology – was an agent for a paradigm shift in relationships, behaviours and activities surrounding information. Many of our assumptions about information in general are grounded in the print paradigm e.g. stereotypes, “black letter law”, upper and lower case etc.

d) The printing press and the print paradigm was the basis for the development of concepts of copyright and was the specific target for the Statute of Anne.

e) The qualities of digital information systems are paradigmatically different from those of the print paradigm

f) These qualities are fundamentally altering our behaviours and values about and our uses, expectations and relationships with, information

 And the question that follows from this is whether or not a system of rules that were based upon and derived from the values that flowed from the print paradigm have any relevance in the digital paradigm. The law loses credibility if it does not accord with the underlying values of a community – the consent of the governed. To maintain a system of rules that run counter to community values is oppression.

This does not mean that creators should not have some kind of protection for their creation. It means that we are going to have to find some other form of justification for the protection of intellectual property and the extent of that protection.

There are a number of international conventions – and I don’t include IP specific conventions such as Berne, WIPO, TRIPS and the like – that provide for the general protection of intellectual property rights. The Universal Declaration of Human Rights demands protection of the right of

“[e]veryone … to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”[40]

The 2005 General Comment[41] on the equivalent article in the International Covenant on Economic, Social and Cultural Rights[42] emphasises the link between this right and the proposition that authors should enjoy an adequate standard of living, and that they are entitled to just remuneration. Among other things, the document requires us to take seriously the idea that liberty interests can be furthered by participation in functional markets for creative work.

But we must remember that copyright is fundamentally grounded upon expression and we cannot overlook the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which explicitly protects the media of expression and information and was intended to include after a rising technologies.[43] Article 19 has come into sharp focus following the report by special rapporteur Frank La Rue who was considering whether or not access to the internet constituted a human right qualifying for protection under Article 19.

Copyright theory needs to recognise and accept that freedom of expression involves not only the imparting of a particular point of view but also the reception of information. And as I have suggested, the Internet facilitates those right and enhances and has had an impact upon the modelling of our information expectations and our consequent information associated behaviours.

A recent case has recognised the freedom of expression in the context of copyright. In Ashby Donald and others v. France[44] the European Court of Human Rights clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim. The case unambiguously declares Article 10 of the Convention applicable in copyright cases interfering with the right of freedom of expression and information of others, adding an external human rights perspective to the justification of copyright enforcement. However, due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.

I am suggesting that the ICCPR or that a rights based approach should be a starting point to measure the strength and extent of any copyright protection afforded to one who engages in content expression. This approach to copyright is in line with the consequences and development of the new information paradigm. Ashby Donald v France gives weight to such an approach. The judgment in this case has confirmed that copyright enforcement, restrictions on the use of copyright protected works and sanctions based on copyright law ultimately can be regarded as interferences with the right of freedom of expression and information. This requires inevitably a balancing test between the rights involved. In terms of predictability of the outcome of such a balancing test, a clear set of criteria needs to be developed.

A rights based approach to copyright has been considered by Graeme Austin and Laurence Helfer[45] and Austin had this to say about the rights based approach:

 “Human rights certainly provide compelling reasons for being concerned about the public domain, reasons that go beyond getting more stuff more cheaply. Human rights law draws attention to a broader set of values: educational rights, environmental rights, the right to food, an adequate standard of health, indigenous peoples’ rights – with which any decent intellectual property system, any decent society, must contend. And human rights lawyers have crafted a powerful lens through which to analyse these issues – these are not just ad hoc distributive justice claims du jour. At the same time, however, human rights laws recognise the importance and the rights imperatives associated with functioning markets. Hence the recognition in many human rights instruments of the right of property.”[46]

Perhaps there should be consideration of a new copyright model that recognises content user rights against a backdrop of the right to receive and impart information and a truly balanced approach to information and expression that recognises that ideas expressed are building blocks for new ideas. Underpinning this must be a recognition on the part of content owners that the properties of new technologies dictate our responses, our behaviours, our values and our ways of thinking. These should not be seen as a threat but an opportunity. It cannot be a one-way street with traffic heading only in the direction dictated by content owners.

The reality is that the law will always be behind technology.  It will always be dealing with an historical problem.  The file sharing legislation in New Zealand is already out of date because one of the critical parts of the legislation is a definition of file sharing that ignores technology such as virtual private networks or magnet links.  Dr. Rebecca Giblin has already pointed out the legal inadequacies of some of the file sharing approaches that have been adopted in the United States.[47]

The law – like TPMs – is a very blunt instrument for a very nuanced area. My suggestion is the redevelopment and rethinking of broad principles that are in accord with the new paradigm rather than being anchored in an earlier one.

We Can Work it Out [48]

There are two ways in which Article 19 can be considered in developing a new model for copyright protection. The first is to measure the strength of any copyright rule against the right to receive and impart information and consider whether the rule is a proportionate limitation of the information right. The second approach, which is very similar to the first, is to use Article 19 as a basis to determine whether a copyright rule/protection is disproportionate to the amount of interference with the Article 19 right, and such a consideration would take place throughout the development of a rule.

In the second scenario, which is the one that I prefer, the engagement of Article 19 could occur at each of the following levels:

 a) policy formation

b) legislation

c) application/interpretation

d) litigation – for enforcement\infringment

 and therefore acts as an umbrella over all aspects of the lifecycle of a copyright rule from basis to enforcement.

Justification may be achieved by weighing competing interests. Any rule that interferes with the Article 19 right must be proportionate and limited only so far as is reasonable and necessary to fulfil the copyright owners’ interests. In addition a rights based approach avoids the absolutes that attach to property theory and the metaphors of “theft”, “piracy” and “trespass” that arise within that context.

Rather than operate as a default rule with a number of exceptions the copy right would fall within the wider scope of a justifiable but proportionate limitation on the freedom of expression. With this approach, fair use, for example, would not be an exception to the copy right. It would constitute an element of the subsisting/continuing Article 19 right.

The proposal may summarised in the following way:

 1. Copyright should not be seen as a property tight – either actual or inchoate

 2. A copyright owner’s rights should not be absolute.

 3. Copyright should be seen as an exception to the wider rights of freedom to receive and impart information guaranteed by Art. 19 ICCPR – and, given copyright does not engage until expression (according to current copyright theory),  it must be subject to the supremacy of Article 19.

 4. Interference with Article 19 rights requires justification by the “copyright owner”.[49]

 5. Once interference with the Art 19 right is justified, any restrictions to the general right and any advantages that accrue for the benefit of the “copyright owner” may be permitted to the extent that they are:

a) necessary to meet the copyright owners interests and justification and

b) proportionate in terms of the extent of the interference

 6. Concepts such as fair use, protection term, remedies (and their extent) fall within the tests of necessity and proportionality rather than exceptions to a copyright owner’s right.

 7. The following brief examples which are presently implicated in current copyright models may demonstrate the approach:

a) Access controls that have no copying implications would not be justifiable.

b) Copying that is necessary for a technology to operate could not be considered justifiable.

c) Format shifting (of any medium) could not be justified in that a royalty had been paid at point of sale.

 We want the World……

It may well be that it will take an equivalent or parallel 15 years as with the case between 1695 and 1710 for us to develop a new copyright solution.  My suggestion to you is that we must recognise that the values of the digital native regarding information have been moulded by the technologies that are available and that will continue to develop – technologies that make information instantly available; that make circumvention of restrictions easy; that allow for the wide spread distribution of information in digital format that challenges the necessity for regionalisation of content; that is an “information now” environment – we want the world and we want it – now![50]  Perhaps a rights based approach may be a starting point.

---

[1] For a very early reference to a concern about intellectual property in dishes invented by caterers or cooks in the Greek colony of Sybaris see the Greek historian Phylarchaus quoted by AthenaeusThe Deinosophists (C. Burton Gulick trans.) Heinemann 1927  p. 348-9; see also Martial “Rumour asserts, Fidentinus, that you recite my works to the crowd, just as if they were your own. If you wish they should be called mine, I will send you the poems gratis; if you wish them to be called yours, buy my disclaimer of them.” (Martial, Epigrams, trans. Walter C. A. Ker (London and New York, 1920-25), I, 46-47. See also the protection granted to Brunelleschi by the Florentine Republic on 19 June 1421, along with the patent statutes of the Venetian Republic in 1474. Interestingly most of the protections for authors’ works in Europe came after the introduction of the printing press – Sabellico’s protection for his book Decades rerum Ventarum was granted in 1486 and Petrus Franciscus de Ravenna’a grant for Foenix was made in 1491. A French system of privileges started in 1498.

[2] For a detailed examination of the activities of the Stationers and their role in the regulation of printing activities in England 1475 – 1642 see Chapter 3 D.J. Harvey The Law Emprynted and Englysshed (PhD thesis, unpublished) available at http://www.scribd.com/doc/103191773/The-Law-Emprynted-and-Englysshed-The-Printing-Press-as-an-Agent-of-Change-in-Law-and-Legal-Culture-1475-1642 (last accessed 29 January 2013)

[3] By the 1440s the Stationers were known as the “Mistery of Stationers” although they were known as Stationers before that. In 1407 they were delegated with the task of providing copies of religious books that had been approved by the authorities following the suppression of the Lollards – a group of religious non-conformists led initially by John Wyclif.

[4] The Decrees were in fact the decisions of the Court of Star Chamber designed to address the various issues that had arisen in a number of cases involving complaints of printing patent infringement and aimed to set in place rules and structures so that patent holders would continue to receive exclusivity.

[5] See Harold Love Scribal Publication in Seventeenth Century England (Clarendon Press, Oxford, 1993).

[6] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn

apprentice de le comen ley (Richard Tottell, London, 1571) STC 20040.

[7] Edward Coke, Les reports de Edward Coke L’attorney generall le Roigne de diuers resolutions & iudgements donnes auec graunddeliberation, per les tresreuerendes iudges, & sages de la ley,de cases & matters en ley queux ne fueront vnques resolue, ouaiuges par deuant, & les raisons, & causes des dits resolutions

& iudgements, durant les tresheureux regiment de tresillustre &renomes Roigne Elizabeth, le founteine de tout iustice, & la viede la ley (Adam Islip, London, 1600) STC 5493. 11 subsequent volumes were printed under Coke’s supervision. The twelfth volume was published posthumously. See also the publication of The first part of the Institutes of the lawes of England. Or, A commentarie vpon Littleton, not the name of a lawyer onely, but of the law it selfe. (Adam Islip for the Stationers, London, 1628) STC 15784 which became a standard text on land law.

[8] In addition manuscript circulation allowed the dissemination of unpopular or contentious political or religous content within a limited audience away from the critical gaze of print licensors. The recognition of the power of the manuscript and its circulation among coteries can be seen in the activities of the Crown to secure the libraries of Thomas Norton, Sir Robert Cotton and Sir Edward Coke after their deaths.

[9] (1769) 4 Burr. 2303, 98 ER 201.

[10] (1774) 2 Brown’s Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 ; 17 Cobbett’s Parl. Hist. 953 (1813).

[11] 1 Wm. Blackstone 301, 96 ER. 169 [1761]. Reargued: 1 Wm. Blackstone 322, 96 ER 180 [1762].

[12] Although they could manually transcribe a book should they want to, although that would amount to copyright infringement.

[13]  239 F.3d 1004 (2001).

[14] 180 F.3d 1072 (9th Cir. 1999).

[15] 273 F. 3d 429 – Court of Appeals, 2nd Circuit 2001.

[16]  545 U.S. 913 (2005).

[17] [2002] 55 IPR 429 (Ch).

[18] [2004] EWHC 1738 (Ch).

[19] (2003) 129 FCR 472.

[20]  (2005) HCA 58.

[21] 464 U.S. 417, 455, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).

[22] [1987] 3 All ER 151.

[23] Charles Clark ‘The Answer to the Machine is in the Machine’, in: P. Bernt Hugenholtz (ed.), The Future of copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995), (Kluwer Law International, The Hague, 1996).

[24] Sony v Stevens above n. 19.

[25] Above n. 16.

[26] Above n. 17.

[27] Above n. 8.

[28] Marshall McLuhan Understanding Media: The Extensions of Man (Sphere Books, London, 1967).

[29] “Welcome to the Machine” Pink Floyd Wish You Were Here (1975 Pink Floyd Music Publishers Ltd., London, England) Track 2

[30] “But the Banshee brouhaha is yet another signal that modern viewers want more pick-and-choose flexibility. And also how hard it is to stamp something out on the intrawebs. For as I type, the first episode of Banshee is still available full and free to Kiwis through Cinemax’ website here “ (http://www.cinemax.com/banshee/video/?bctid=2083432700001)

Chris Keall “Sky TV gives HBO a nudge after hot new series Banshee put free online for Kiwis”  Keallhauled National Business Review Online 16 January 2013 http://www.nbr.co.nz/opinion/sky-tv-cops-role-youtube-episode-banshee-being-blocked-new-zealanders-CK (last accessed 16 January 2013)

[31] For a discussion of “spoilers” and television see Henry Jenkins Convergence Culture: Where Old and New Media Collide (New York University Press, New York 2008 especially Chapter 1 “Spoiling Survivor – The Anatomy of a Knowledge Community” at p. 25 et seq.

[32] For a pessimistic view of the “rewiring” effect see Nicholas Carr “Is Google Making Us Stupid” The Atlantic July/August 2008  available on-line at http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ (last accessed 17 January 2013) and for a detailed approach see Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember (Atlantic Books, London, 2010).

[33] Above n. 27.

[34] The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.

[35] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.

[36] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[37] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.

[38] Marshall McLuhan and Quentin Fiore  The Medium is the Massage: An Inventory of Effects (Penguin, Harmondsworth 1967).

[39] The title of Bob Dylan’s fifth album released 27 March 1965 and released by Columbia.

[40] Universal Declaration of Human Rights GA Res 217A, A/810 (1948) art 27.

[41] Committee on Economic, Social and Cultural Rights General Comment No 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author E/C12/2005 (2005) art 15(1)(c).

[42] International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 19

December 1966, entered into force 3 January 1976).

[43] Article 19 reads as follows:

1.             Everyone shall have the right to hold opinions without interference;

2.             Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.             The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)           for the respect of the rights or reputations of others;

(b)           for the protection of national security or if public order or of public health or morals.

[44] ECHR Appl. nr. 36769/08.

[45] Laurence R Helfer and Graeme W Austin Human Rights and Intellectual Property: Mapping the Global

Interface (Cambridge University Press, New York, 2011).

[46] Graeme W Austin “Property on the Line: Life on the Frontier Between Copyright and The Public Domain” [2012] 43 VULR 1 at 14.

[47] Rebecca Giblin Code Wars: 10 Years of P2P Software Litigation (Edward Elgar Publishing,  2011); Rebecca Giblin , “On the (New) New Zealand Graduated Response Law (and Why It’s Unlikely to Achieve Its Aims)” (2012) 62(4) Telecommunications Journal of Australia 54.1-54.14. Available at SSRN: http://ssrn.com/abstract=2198116 (last accessed 17 January 2013).

[48] “We Can Work it Out” John Lennon and Paul Mcartney 1965, released as the B-Side to the single “Day Tripper”

Upon reflection, the lyrics may seem apposite to the current problem:

“Try to see it my way

Do I have to keep on talking till I can’t go on?

While you see it your way

Run the risk of knowing that our love may soon be gone”

[49] I use the terms “copyright” and “copyright owner” in this context only because I have not devised a label that aptly fits within the new model and that is not clumsy.

[50] “When the Music’s Over” Jim Morrison, Ray Manzarek, Robby Krieger and John Densmore (The Doors)  “Strange Days” The Doors Elektra Records 1967 Track 10.

Lawyers, Judges and the “New” Media

Lawyers, Judges and the “New” Media

Introduction

It occurred to me as I was writing the post about Judges and the Social Media that we have actually been down this track before – where lawyers and Judges have seized upon the new media and used it to publish and propogate their views about the law. The first information technology was the printing press, and lawyers and Judges began to use or influence the use of the new technology in the sixteenth and early seventeenth centuries. In this post I want to discuss the use of the printing press by sixteenth and early seventeenth century Judges and lawyers and consider the reasons why they chose to go into print. I have written a much more comprehensive study of the printing press as an agent of change in law and legal culture in the period 1475 – 1642 but the examples I have selected are John Rastell and Anthony Fitzherbert, Edmund Plowden and Sir Edward Coke.

John Rastell and Anthony Fitzherbert

John Rastell (c1475 – 1536) studied law at Middle Temple where he was an untter barrister by 1502. He moved from London to Coventry but returned with his family in 1508 where he ran a successful legal practice for over 20 years.

From about 1509 he also seems to have begun to print and publish: initially where he was dwelling ‘at the Fleet Bridge at the Abbot of Winchcombe’s Place’, then by 1515 near St Paul’s (where his premises comprised a room for the press, a shop, and living quarters), and eventually from Michaelmas 1519 at Paul’s Gate, Cheapside. Rastell’s shop sign was a mermaid; one of his two printing devices included a merman and mermaid.

He printed a compilation of the statutes of Edward V and Richard III and concentrated on producing law books, and over the years came increasingly to edit or write the books his press produced. Over his career his publication list came to comprise over fifty titles (a few he re-edited, some reprinted), including, in 800 folio leaves, the ambitious La graunde abridgement de la ley (1514–16) by Anthony Fitzherbert.

Rastell’s Prologus to the work states:

And though that I myself of small learning and discretion have enterprised with the help of divers other gentlemen, and taken labors and also intend more labors to take, as well for the ordering of the calendars of said great book of abridgements as in the numbering of the quotations and refennents of the cases therein, yet the only praise of the making of the said great abridgement ought to be given to Anthony Fitzherbert, serjeant at law, which by his great and long study of many years continuing hath compiled and gathered the same

Anthony Fitzherbert, one of the best known legal writers of the early sixteenth century was a senior lawyer having attained the rank of Serjeant at Law in 1510, a Kings Serjeant in 1516 and in 1522 became a Judge of the Bench of Common Pleas. He too saw the advantages and benefits of the new technology and was one of the earliest lawyers to have his own work put in print in his lifetime.[1]

La graunde abridgement, was an enormous enterprise for its day, a massive digest of 13,845 cases from the year-books arranged under alphabetical headings.  A smaller but more original work was Fitzherbert’s La novel natura brevium which was published towards the end of his life in 1534. It was inspired by the so-called ‘old Natura brevium’ (the name given to two or more different medieval treatises, or lecture courses, on writs) but Fitzherbert’s was a new treatment and much more detailed, with references both to recent cases and to the abridgement. It remained the principal reference work on writs until the abolition of the forms of action in the nineteenth century. The original French text (with the forms of writs in Latin) was reprinted eleven times, the last edition appearing in 1635.

A third book, which appeared in the year of Fitzherbert’s death, was The New Boke of Justices of the Peas (1538), which appeared in both law French and English editions bearing the same date but differing slightly in content and arrangement. The adjective ‘new’ again paid due respect to an earlier work, this time the anonymous late medieval Boke of Justices of Peas which was printed about 1506, but Fitzherbert’s treatment was characteristically more thorough and detailed. These two ‘books of justices’ are hailed as the first printed treatises on English criminal law, and Fitzherbert’s remained in use until it was overtaken by Michael Dalton and Sir Edward Coke in the seventeenth century. There were eight reprints between 1540 and 1566, and an enlarged edition by Richard Crompton in law French (1583) which was itself reprinted five times.

Rastell printed the first volume of the Graunde Abridgement, his small press being utilized for humanistic texts of his brother-in-law Thomas More’s circle.

Elements of humanist thought underpinned important objectives for printing the law. One was the educational objective of making the law more easily accessible by printing it in English. The print properties of standardisation and dissemination were both recognised and perceived as assisting in the fulfilment of humanist educational goals. The other element was the deeper societal issue of the concept of the “common weal” or the common good. This theme is one that pervades the discussion about access to law and was one of the main societal imperatives of the time. The “common weal” was a concept that operated on a number of different levels having primarily political but also social implications. In all its various manifestations the “common weal” was perhaps the most significant underpinning for access to law, developing from humanist precepts until it took on a life of its own

The law was the basis for a functioning society for the good of all rather than for the wealth, power or honours associated with the Church, feudal ties or established power elites although even the humanists did not see this as a universal concept, in that generally the law favoured the propertied classes rather than the entire community. The importance of the law and the legal process as a part of the ordered State, promoting the values of  harmony and unity was recognised and thus the study of the law was part and parcel of the humanist curriculum. The publication of law was a part of the wider educational process and another aspect of the informed order advocated by the humanists. Printed law books were less dangerous than the printed Bibles and religious tracts that were present on the Continent and were being imported into England. Ross points out that there was little threat arising from dissident translations of the statutes or “non-conformist” Year Books or treatises. Yet printed law books made dissent more formidable. They made legal resources available to those who wished to mount legal challenges to the establishment.

Print became a facilitator in the educational process. The humanists wished to extend their audiences and their influence. The English followers of Italian and Northern European humanists had a respect for the power of the press to spread standardised classical texts which were the basis for the study of philosophy and rhetoric. Henry VIII, whose Court included a number of prominent humanists, used print propaganda to generate support for the “Kings Great Matter” and the break with Rome, although the humanist message remained the same. Rastell was advocating printed legal information in English in the 1520’s before the onset of the Tudor Revolution.

The language in which the law was expressed was also addressed. Humanist support for a law press and a preference for English or Latin over the arcane law French as a means of expression of the law were additional elements of what we would describe as “access to law.”[2] In this way the audience who could read and clearly understand the law as well would be extended – if legal works were printed in English – in addition to a general desire to widen the audience for books in general. As the interest in a law press grew so did the call, in print, for a broader diffusion of legal knowledge among lay people. Rastell claimed that law  “kept secretly in the knowledge of a few persons and from the knowledge of the great multitude may rather be called a trap and a net to bring the people to vexation and trouble rather than a good order to bring them to peace and quietnesse.”[3]

Rastell’s position was expressed by others. The force or quality of statute law may have depended upon whether or not it was printed and therefore public, or not printed and therefore private. Justice James Dyer stated that if the latter “a man shall not be compelled to take consuance of this so easily as if it was in print.”[4]

This reflects Thomist legal thought which held that to obtain full status law had to be promulgated. In England promulgation was carried out by the sheriffs or by direct communication with the judges. Some legislation provided for its own promulgation.[5] However, did failure to promulgate invalidate law? Doe is of the view that such a proposition is doubtful although it was clearly preferable.[6] However, the press, although embraced for its various qualities, was also viewed with some suspicion particularly by religious elites who were contending with the dissemination of printed disputative literature which challenged long-held tenets of the faith. In answer the humanist law book publishers advanced three main reasons for the printing of the law.

The first two reasons involve what today would be referred to as “access to law” issues. First, being able to read and understand the law had a benefit in making the subject aware of the requirements for peaceful, responsible and virtuous living. The subject received a benefit and, in addition, such an understanding was in the interests of the “common weal.”

Secondly was the suggestion that greater availability of legal information would serve to loosen the stranglehold upon the law held by the legal profession. Law books would not replace lawyers but would allow the citizen to inform himself of the law as it affected his daily life, but when there was doubt or litigation the good subject should

“Resort to some man, that is learned in the laws of this realm, to have his counsel in such points, which he thinks doubtful concerning those said statutes, by the knowledge whereof, and by the diligent observing of the same, he may the better do his duty to his prince and sovereign, and also live in tranquillity and peace with his neighbour, according to the pleasure and commandment of almighty God”[7]

Law books were also of benefit to the legal profession in that they served an educative function. Thus, both lawyer and citizen would benefit by increased availability of printed legal information, and for the citizen the press uncovered that which had previously been unknown.

The third reason was that law preserved order and was the antithesis of chaos. This was a message that resonated in an England for whom the memory of the Wars of the Roses was still fresh. Chaos could be kept at bay by law. Promulgation and dissemination which were part and parcel of the operation of law could be reinforced by law publishing thus strengthening and enhancing order.

There can be no doubt that the early involvement of humanists in law book publishing had a profound effect not only upon the way in which law books were presented but also upon the way in which law books were viewed by the community. It was probably fortuitous that the Rastells were early pioneers of law publishing and although their output was not great their influence extended over a fifty year period.[8] They not only set the benchmark for the publication of useful law books but provided an example for others, as well as having a continuing influence even from exile. John Rastell’s son, William, a lawyer like his father and later a Judge, continued the family involvement in law printing although after the reign of Mary he did so from a distance. As a Catholic he left England after the accession of Elizabeth but his law publications continued to be printed by Richard Tottel.

Rastell’s association with the humanists of More’s circle, together with his expressed views about the availability of legal information and its expression in English gives us a clear indication of his motives for using the new technology of print. Not only was he a lawyer and an editor of law texts but he was actually a printer which demonstrates a real commitment to the new information technology.

The benefits and the advantages that the new technology presented in the dissemination of legal information for the orderly society and for the common weal are continued today in current access to law and legal information projects such as Austlii and the growth of serious legal information blawgs containing commentaries and explanations of the law. The beat goes on.[9]

Edmund Plowden

Edmund Plowden (c. 1518 – 1585) began his legal studies in 1538 at Middle Temple (one of the Inns of Court) tradition having it that he was so studious that he did not leave the inn once during the space of three years. He began recording cases he heard in court from at least 1550. In 1571 Plowden published Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley  a volume of law reports that decisively broke out of the older year-book tradition, and was the first to be published by the author in his own lifetime and under his own name. The keys to Plowden’s approach were two resolutions he claims to have made at the beginning of his law studies. The first was:

[to] be present at, and to give diligent attention to, the debates and questions of law, and particularly to the arguments of those who were men of the greatest note and reputation for learning.[10]

The second was,

to commit to writing what I heard, and the judgment thereupon, which seemed to me to be much better than to rely on treacherous memory.[11]

But why did he put the Commentaries into print? Although law printing had been active in London for ninety years – the first law text was printed in 1481 – there was nevertheless a culture of information sharing of handwritten notebooks or casebooks among coteries of lawyers in the Inns of Court.

Lawyers saw the noting and gathering of cases as a matter for their own benefit and information. Theirs was a specialised profession with its own practices, rituals, hierarchy and indeed language.[12] There was little commercial gain to be had from printing large numbers of varying case reports of some antiquity and which may not find a market, especially if lawyers preferred to compile their own notes and share them with their colleagues. Thus it could be argued that at this time lawyers looked to themselves for their legal information and those in the commercial world, sensing that there was not a market, discontinued large scale printing of the manuscript Year Books.  This was a challenge to the new technology and indicates that putting legal material in print, and particularly contemporary legal material, was not a universal objective. Not only did the printers make a choice about the materials that they would print, but the lawyers themselves made a choice about whether their materials would be widely disseminated or restricted to the coterie.[13] The dissemination of written legal information was not the exclusive province of print.

Not only legal information was distributed in this way. Among the coteries that shared material were the Tudor poets who preferred not to see their work in print. The lawyer John Selden made the comment “ ’tis ridiculous for a Lord to print verses, ’tis well enough to make ’em to please himself, but to make them public is foolish.”[14] Why was it that Edmund Plowden decided to move from the usual way of information sharing and move into the (relatively) new medium of print. He provides his own explanation.

“I thought it my duty to decline making public my own vindication of the arguments of men more learned than myself, and to keep the work for my own private advantage and therefore avoid the censure of affecting a more acute and discerning judgement than I really had. But by and by an accident happened, which inclined me and (As I may say) forcibly compelled me  to make this work public. For having lent my said book to a very few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing day and night, and in a short time they had transcribed a great number of cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the books; which copies at last came to the hands of some of the printers, who intended (as I was informed) top make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were, which, if the copy so taken had been printed, would have greatly defaced the work and been a discredit to me. And besides this, they had omitted to transcribe the pleadings according to the records, and had only transcribed the cases and arguments upon them, so that the benefit, which the reader would have reaped from the records of the pleadings in this book (which is also a Book of Entries of all others most gifted and tried) would have been totally lost. Wherefore, in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print. During which consideration letters were sent to me by all the iustice of both benches and by the Barons of the Exchequer, requesting and encouraging me to make it public and at last, upon these and other motives, and hoping that it might be of some benefit to the students of law, I resolved (as you see I have done) to put it in print.”

Plowden’s attitude towards the concept of authorship is unusual.  There can be no doubt that had the work been printed without his supervision or authority, his name would have been associated with it.  Plowden was very careful to ensure that the quality and integrity of his work would be maintained and, for that purpose, it would be necessary for him to supervise its publication.  Plowden was one of the rare examples where the name of the author was at least as important for the sale of the work as the quality of the content and, certainly, any printed publication with the name of Plowden associated with it would find a ready market within the legal profession.

Earlier reports were little more than summaries of special points in the argument and more often than not completely omitted the decision and the reasons for it. The Year Books especially were seen as pleading guides rather than providing an accurate report on the substantive issue before the Court. The decision in the matter was not important to the reporters. The changes in pleading practice, including the shift to written pleadings resulted in a corresponding shift in the way in which cases were presented and argued in Court. The issue became the effect of the pleadings rather than the nature of the issues and form that they should take. Whereas the cases reported in the Year Books comprised the dialogue between counsel and the Bench that had as its objective the formulation of the issue before the Court, the written pleadings defined the issue. What became of interest to the reporter was the argument on that issue and the outcome on that issue that was settled by the Court. Thus written pleadings became a necessary part of the report. The dialogue on the pleadings became insignificant and the decision of the Court assumed more significance.

Plowden’s reports were limited to those cases where a point of law needed to be decided. Unlike the Year Books each case was identifiable by name. At the beginning there was a full heading including the name of the parties, the date of the argument, the Court concerned and the term in which the proceedings were commenced. The body of the report contained the official record of the pleadings, a full note of the arguments of counsel and the Judges and the substance of the final judgments. In this way all the necessary information regarding the decision was contained in one place. This method was a significant and influential innovation and set a new benchmark for printed reports presented in a similar style.

So successful were Plowden’s reports that they were the subject of a number of re-printings and were themselves the subject of an abridgment by Thomas Ashe in 1597 and 1607 which was later translated into English by Fabian Hicks and published in 1650.[15] Plowden’s style influenced those who followed including Coke who praised the Commentaries as “exquisite and elaborate.”[16]

The praise accorded to Plowden by Coke is not merely an example of post publication validation of a text. It demonstrates the complex interactions that surrounded the acceptance of printed works. The new medium presented a challenge to Plowden in terms of the potential that it presented for loss of control of the content and a possible damage to his reputation. It does not seem from the available evidence that Plowden had any other reason to print apart from the urging of friends and to preserve the work from an opportunistic printer. Once the work was printed under his supervision, Plowden’s objective was complete. Yet his name associated with the printed work was almost as important as the fact of printing.[17] And the way in which others recommended his text demonstrates that printing of itself did nothing special other than make the work more readily available. It is the interaction with and by others involved in some way with the work that enhanced its presence in print. Although it could be argued that a similar sort of interaction could take place with manuscript,[18] the properties of the new technology meant that interactions with others relied upon as well as enhanced those properties. Print fixed Plowden’s work – his copy was standardised and, importantly, it was available. The interactions  of others ensured that advantage was taken of those qualities.

And so it is today. But the big difference is that Web 2.0 allows for a greater level of interation, comment and engagement. Feedback, which in Plowden’s day would have been by letter of by personal contact, is wider and more extensive and not limited to a select coterie. But once again, the theme behind the particular song remains the same.

Sir Edward Coke

Sir Edward Coke (1552 – 1634) was one of the most influential and controversial judicial figures of the early seventeenth century. He started his legal studies in 1571 and at some point during his student days he began keeping a commonplace book; in 1579, possibly in connection with his taking up a readership at Lyon’s Inn, Coke began keeping detailed records of cases. He was called to the bar in 1578 and went on to become one of the most prominent lawyers in England. He became Attorney-General, prosecuted Sir Walter Ralegh  and was also involved with the interrogation of those involved in the Powder Treason and was one of those who prosecuted Guy Fawkes, describing in lurid detail the traitor’s death of hanging, drawing and quartering.

Coke was appointed Chief  Justice of the Court of Common Pleas on 30 June 1606, being created serjeant-at-law for the occasion, and Chief Justice of the King’s Bench on 25 October 1613. His tenure in these courts proved turbulent, being marked by friction with James  I

But by this time Coke had been publishing his Reports, first in manuscript and later in print. His first well-known work was a manuscript report of Shelley’s case, circulated soon after the decision in 1581. This was in keeping with the circulation of manuscript notes kept by lawyers and which I have already discussed.

In 1600, afraid that unauthorized versions of his case reports might be printed—and probably following the example of Edmund Plowden, with whom he had worked and whom he revered—Coke issued the First Part of his Reports. By 1615 he had put out eleven volumes, making available more than 467 cases, carried the imprimatur and the authority of the Lord Chief Justice. These case reports provided a critical mass of material for the rapidly developing modern common law. Reversing medieval jurisprudence, which had often relied on general learning and reason, Coke preferred to amass precedents. Coke’s view was ‘The reporting of particular cases or examples is the most perspicuous course of teaching the right rule and reason of the law’.[19]

Was Coke, like Plowden, a reluctant user of the new technology. His attitude to seeing his work in print was initially one of reluctance but from 1600 when the first volume of the Reports was printed through until the end of his life this attitude changed to the point where he became an enthusiastic adherent of printing the law. The changing political climate and Sir Edward’s progress from Attorney General, which was the position that he occupied when the first volume of the Reports were printed, through his position as a Judge, his fall and his subsequent career in politics provides an explanation for this shift in attitude. As noted there was circulation of manuscript copies of Coke’s case notes amongst select members of the legal fraternity and, like Plowden, Coke arranged for the printing of the first volume,[20] fearful that unauthorised versions may find their way into print. He was mindful of his reputation and of the value that would be attached to Reports coming out under his name.

“I have sithence the xxii yeere of her Maiesties Raigne, which is not xx yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell & acquainted with the estate of the Question) as have bin adjudged upon greate & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine own private use, as to deny the request of any of my friend to have either view mor copy of any of them; So til of late I never could be perswaded (as many can witness) to make them so publique, as by intreaty to commit them to print.”[21]

Coke revisited the purpose of publication from time to time throughout the Prefaces. In the Preface to the Seventh Volume.

“I set downe in writing, out of my short observations which I had taken of the effect of every argument (as my manner is, and ever hath beene) a summarie memeoriall of the principall authorites and reasons of the reasolutions of that case, for mineowne privat sollace and instruction. I never thought to have published the same, for that it was not like to give any direction in like cases that might happen (the chiefest end of publishing Reports) ….Now when I ended it for my privat, I was by commandment to beginne againe ( a matter of no small labour and difficultie) for the publicke. For certainly, that succinct method and collection that will serve for the privat memorial or repertory, especially of him that knew and heard al, will nothing become a publique Report for the present & al posteritie, or be suffcient to instruct those readers, who of themselves know nothing, but must be instructed by the report onley in the right rule & reason of the case in question……

I thought good as well for thine instruction and use (good reader) as for the repose and quiet of many, in resolving of questions and doubts (wherein there hath beene great diversitie of opinions) concerning their estates and possessions to publish some others that are common in accident, weightie in consequent, and yet never resolved or adjudged before.”[22]

At an earlier stage in the preface to his First Reports, Coke expressed his criticism of the quality of some of the reports that had been published, demonstrating a concern about reliability:

For I have often observed, that for want of a true and certain Report the case that hath bin adjudghed standing upon the recke of manie running Reports (especially of such as understood not the State of the Question) hath bin so diversely drawne out, as many times the true parts of the case have bin disordered and disjointed, and most commonly the right reason & rule of the Judges utterly mistaken.[23]

and it is perhaps noteworthy that in the preface there is no expression of the humility that certainly appears in Plowden’s preface. One may be justified in asserting that Sir Edward considered that his Reports avoid these pitfalls and were a true and correct report of the case, albeit with his own interpolations.[24] Control by authors over unauthorised printing was a problem in the early seventeenth century. Accuracy and credit were clearly matters which concerned Coke and perhaps it is ironic that despite his concerns, The Complete Copyholder which was never authorised for printing was nevertheless published.[25]

The ability to ensure control over the presentation of his material in print was not the only matter that motivated Coke. Throughout all the prefaces to his Reports and other writings there was a recognition of the importance of making information available both for the education of students and for the “common good”. This did not mean that Coke readily endorsed all legal printing. He was critical of some material on offer and in particular some Abridgements.[26] He noted that these had profited the authors themselves:

“but as they are used have brought no small prejudice to others; for the advised and orderly reading over of the Bookes at large in such maner as elsewhere I have pointed out, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgements as tables and to trust only to the Books at large. …. and certain it is that the tumulatuarie reading of Abridgements, doth cause a confused judgment and a broken and troubled kind of deliverie or utterance.  But to reduce the said penal Lawes into some Methode or order is an honourable, profitable and commendable work for the whole Commonwealth.”[27]

Coke’s value upon education and learning appeared in the second volume of the Reports:

There is no jewell in the world comparable to learning, No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes (I speake of humaine) so necessarie for all estates, and for all causes, concerning goodes, landes, or lyfe, as the common Lawes of England.[28]

It is not surprising that he saw his Reports and published works as fulfilling an educative function and frequently addressed students of the law in his writings, emphasising the value of accurate source material and frequently giving advice on how to use it and apply it in the course of study.

“In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation.”[29]

In his discussion of the style of his case reporting Coke gave further advice to students.

“I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton faith is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Bookes of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne….”[30]

Coke continued his educational advice in the Third Volume[31] setting out a reading list starting with the early common law texts[32] and moving on to more recent publications[33] and concluded that the “most useful and those of the greatest authoritie and excellencie” are the Register, Littleton, Fitzherbert and Stanford and reference is made on other occasions to some or all of these texts, especially in the tenth volume of the Reports.[34]

Coke tendered more advice about the path of learning that a student might undertake. In the Preface to the Third Volume[35] he discussed in some detail what he referred to the degrees of the Law and traced the path that might be followed by a student through the Inns of Chancery to the Inns of Court, and the progress that a typical student might undertake. Given that his primary audience was either those studying or already qualified in the law, and given that the Reports themselves were written in the “language of the law” it seems curious that he considered it necessary to embark upon this discussion. A possible conclusion is that by the time he reached the third volume, Coke was writing for a wider audience and possibly for posterity, thus taking the opportunity to expound upon the common lawyer’s course of education and immersion in what was a difficult field to master.

The wider audience was contemplated in the Preface to the Fifth Volume when Coke stated, after denouncing ignorance and holding that truth and an end of ignorance was an end of confusion, and that the laws of England were the birthright of its subjects

“My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his owne may be instructed: such as have bene taught amisse (every man beleeving as he hath bene taught) may see & satisfie himselfe with the truth, & such as know and hold the truth (by having so ready and easie a way to the fountaine themselves) may be comforted and confirmed.[36]

As part of his educative function, Coke used the prefaces to his Reports to discuss and develop certain matters of law, and especially wrote about the history of the common law and of common law principles. The Sixth Volume of the Reports followed up on his assertions of the excellence of the common law that he made in the Second Volume. In the Sixth Volume he refers again to the educational function that he sees performed by the Reports

“The reporting of particular cases or examples is the most perspicuous course of teaching, the right rule and reason of the Law: for so did Almightie God himselfe, when hee delivered by Moases his Judiciall Lawes……

And the Glossographers, to illustrate the rule of the Civile Law, doe often reduce the rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader that hee would not reade (and as it were swallow) too much at once; for greedie appetites are not of the best digestion: the whole is to be attained to by parts, and Nature (which is the best guide) maketh no leape….

A cursarie and tumultuarie reading doth ever make a confused memorie, a troubled utterance and an incertaine judgement.”[37]

It was not only in the Reports that Coke gave advice to students. In the First Institute (Coke on Littleton) he states:

“My advice to the Student is, that before he reade any part of our Commentaries vpon any Section, that first he reade againe and againe our author himselfe in that section, and doe his best endeavours first of himselfe, and then by conference with others (which is the life of study) to understand it, and then to reade our Commentary thereupon and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading.  But of this argument we have for the better direction of our student and his studies spoken in our epistle to our First Booke of Reports.”[38]

The educational importance of his work was continued in the  Book of Entries in which it was stated on the title page  that it was “collected and published for the common good and benefit of all the studious and learned professors of the Laws of England”[39] and is therefore obviously designed for a student or professional audience. Precedents of pleadings are gathered together for education and presupposes reading for study, as well as use for practical application.

Sir Edward was well aware of the power of print and he was not backward in promoting his own works. His reference back to his own “first Booke of Reports” provides an example. But apart from the difficulty of an author citing another of his own works as an authority, the significant sub-text to Coke’s comment is that there is no hesitation to refer to printed works. This theme occurs regularly in Coke’s work. So accepted has print become by the time of the printing of Coke on Littleton that in the preface Sir Edward set out the printing history of Littleton’s Tenures as well as a number of other leading texts in print.

Indeed the use of printed work was becoming such a norm that Sir Edward gave advice on how to use printed texts. He recognised some of the problems accompanying printed texts, primarily surrounding issues of credit, but at the same time was not hesitant in recommending certain texts, all of which were in print at the time.

“In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of Justice Fitzherbert and Sir Robert Brooke, it will both illustrate the case and delight the Reader; And yet neither that of Statham nor that of the Booke of Assises is to be rejected: And for pleading the great booke of Entries is of singular use and utility. To the former Reports you may add the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned, and the summarie and fruitful observations of that famous and most reverend Judge and sage of the Law Sir Iames Dyer, Knight, late chiefe Justice of the Court of Common pleas, and mine own simple labors: Then have you 15 Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the common Lawes; For I speake not of the Statutes and Actes of parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part of branch of any Art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that hee understands not: I pray the beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error.[40]

By the time that the Fourth Volume of the Reports was printed (1604) Coke had shed his reluctance to see his work in print. The themes of education and the benefit of the commonwealth – themes that had been constant justifications for putting work into print and implicitly recognising the properties of print – were made clear and the importance of knowledge of the law – such knowledge being acquired by publication of the law was emphasised:

“To make one plaine and perspicuous law divided into articles, so as every subject may know what acts be in force, what repealed, either by particular or generall words in part or the whole and what branches & parts abridged, what enlarged, what expounded; so as each man may clearley know what and how much is of them in force, and how to obey them, it were a necessary work and worthy of singuler commendation; which His Maiesty out of his great wisdome and care to the common wealth hath commanded to be done.”[41]

Coke considered for the good of the commonwealth he owed a duty not to keep his reports private but was encouraged to publish and communicate them to all.  Thus, the importance of dissemination by way of publication using the print medium was for the good of the common wealth and was considered a high calling. The public good as a reason for publication was further discussed in the Sixth Volume of the Reports.

“I have (good Reader) brought this sixt worke to a conclusion, and published it for thy private instruction, for the publique good and quiet of many, and for preventing of daunger the daughter of Errour.”[42]

And the importance of the common law as providing an end to disputes which was for the common good was stated in the Eighth Volume:

“the antient & excellent institution of the Comon Law might be recontinued for the good of the commo’wealth (for it is convenient for the commonwealth that there be an end to controversies).”[43]

By the Eighth Volume Coke had refined what he considered his duty to publish Reports

“So ought every man according to his power, place & capacity  to bring somewhat , not onely to the profit and adorning of our deere Countrey (our great Eagles nest) but therein also, as much as such  mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Maiesties happy and blessed government to al posterity. And for that I have bin called to this place of Judicature by his Maiesties exceeding grace & favor, I hold it my duty, having  observed many things concerning  my profession, to publish amongst other certaine Cases that have bin adjudged and resolved since his Maiesties raigne in his highest Courts of ordinary Iustice in this calme and flourishing springtime of his Maiesties Justice, amounting with those of my former edition in al to 84”.[44]

and the importance of publication was by the Tenth Volume becoming associated with some of the higher elements of truth and Justice, for in discussing the nature of the cases appearing in the work he had made them available to with the purpose that “shee which is the foundation of Justice should not lie hiddeen and unknowne.[45]

The concluding words of the Eleventh Volume, the last to be published in his lifetime, aptly summarised Coke’s purposes in printing his Reports.

“The end of this edition is, that God may be gloried, His Maiestie honoured, the common good encreased, the Learned confirmed, and the Student instructed.”[46]

The end of Coke’s judicial career came when James ordered that Coke was not to ride on the summer assize circuit. Instead he was to censor his own law reports, ‘wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law’.[47]  Coke superficially complied and addressed one law suit.  That was all he was prepared to do. On 2 October 1616, after perusing his Reports, Coke reported that he had found only five trifling errors. This was defiance, and James responded in kind. He demanded that his obstinate chief justice explain five of his most dangerous conceits. When Coke refused this final opportunity to recant  the king acted. On 16 November 1616 Coke was removed from the bench. It was said, John Chamberlain wrote, that ‘four p’s’ had overthrown the chief justice: ‘that is, pride, prohibitions, praemunire, and prerogative’[48]

But that was not the end of Edward Coke. He commenced a career as a Member of Parliament. In 1628 he argued  ‘I know that prerogative is part of the law but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign’.[49]

When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke saw a rare opportunity; the king’s demand gave him the chance to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. It was Coke who suggested the petition.

But the King had a long memory and in April 1632 the king’s men raided his home at Stoke and Coke wept as his papers were removed. In 1633 Charles sealed Coke’s rooms at the Inner Temple. Finally, in the last days of August 1634, while Coke lay dying, the king’s men ransacked both Coke’s study at Stoke and his files at the Inner Temple. Roger Coke, the judge’s grandson, wrote that they seized more than fifty manuscripts and other papers. Clearly his writings and the use of his papers after his death was seen as a potential threat. Both the requirements in 1616 that he censor his writings and the raids on his papers and his chambers indicate that Coke the Judge and lawyer had stepped over the mark among other things in using print to spread his views about the law and the fear of further dissemination of opinions that may have been contrary to Royal police by means of the new communications technology.

Certainly Coke’s unwillingness to change his Reports demonstrated the risks he encountered in using the new technology. It is doubtful that he would have attracted the same attention had he circulated manuscripts among his colleagues and stayed away from print.

---

[1] The other most notable one  of the first part of the sixteenth century was Christopher St German, the author of Doctor and Student.

[2] Law-French was the language of lawyers and Latin the language of an educated elite. Thus printing in Latin would extend the audience but in a very limited way.

[3] John Rastell, “Prologus Johannis Rastell”, in Exposiciones terminorum legum anglorum. Et natura breuium (Johannes Rastell, London, 1525) STC 20702

[4] Wood v Dallison cited in I. S. Williams “He credited more the printed booke” (2010) 28 LHR 38 at p. 67 – 68 fn 39.

[5] N.. Doe Fundamental Authority in Late Medieval English Law (Cambridge University Press, Cambridge 1990) p.38.

[6] Ibid. p. 39 Doe refers to the author of Mirror of Justices, a text of questionable provenance which emphasised the importance of the textualisation and publication of “the laws and usages of the realm”. For a discussion of textualisation and the law see Peter Tiersma Parchment Paper Pixels: Law and the Technologies of Communication (University of Chicago Press, Chicago, 2010) p. 28, 31 – 32.

[7] John Rastell, above n. 3.

[8] Other law printing pioneers were Wynkyn de Worde, William de Machlinia, William Lettou, Richard Pynson and Robert Redman. See above p. 102-103  for discussion of their role.

[9] Sonny Bono 1967.

[10] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley (Richard Tottell, London, 1571) Preface

STC 20040

[11] Ibid.

[12]Summed up in the term “notre erudition” – see J.H. Baker Laws Two Bodies – Some Evidential Problems in English Legal History (Oxford University Press, Oxford 2001) esp. Ch 3.

[13]  Possibly an aspect of “notre erudition” especially as far as case notes or reports were concerned. The oeuvre of printed treatises suggests that they were intended for a wider audience (or more extensive dissemination). It is perhaps relevant to note that the cross referencing to other legal works was to those that were in print rather than manuscript sources. The cross referencing to printed material pointed the reader in that direction. Any relevant manuscript material would have come to the attention of the reader from another source or would be derived from the coterie or “notre erudition” if indeed the reader was privy to it.

[14] Samuel Harvey Reynolds, (ed) The Table Talk of John Selden (Oxford University Press, Oxford, 1892), p.

135. See also Nicola Shulman Graven with Diamonds: The Many Lives of Thomas Wyatt (Short Books, London, 2011); J.W. Saunders “The Stigma of Print –  A Note on the Social Bases of Tudor Poetry” (1951) Essays in Criticism 139. For further discussion see The Law Emprynted and Englysshed pge 153 et seq.

[15] Abridgment des touts les cases reportez alarge per Monsieur Plowden (Jane Yetswiert, London, 1597) STC 20037; The 1607 printing was by Adam Islip for the Stationers – STC 20038. Fabian Hicks An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden ((Printed by R. White, and T. Roycroft, for Matthew Walbanke, and Henry Twyford, London, 1650) Wing (2nd ed.) / P2609.

[16] 2 Cokes Reports p.viii (preface).

[17] The association of a report with a named reporter had been developing in importance in manuscript law reports. See Baker Introduction to English Legal History (3^rd ed) (Butterworths, London, 1990)  p. 180.

[18]And did although the behaviours were more related to disseminating something that was in short supply rather than recommending something that was readily available.

[19] 4 Coke Reports Preface

[20] 1 Cokes Reports.

[21] Ibid.  “The Preface to the Reader.”  Folio C2 et seq A similar comment is made in the Preface to the Third Volume – “Your extraordinarie allowance of my last Reports, being freshly accompanied with new desires, have overcome me to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law.” “To the Reader”  Folio C2 pages unnumbered.

[22] 7 Cokes Reports The Preface  Folio aiii pages unnumbered.

[23] 1 Cokes Reports “The Preface to the Reader” Folio C2 pages unnumbered.

[24] It is not clear on the face of the Reports where Coke’s interpolations occur.

[25] Cokes worst fears about “true and certain” reports had come to pass. In the Preface to the Seventh Volume he is highly critical of a pamphlet reporting a speech given at the Norwich Assizes in August 1606. He is critical particularly of the lack of context and the errors of law that it contained. His comment that he would not have let any of his works pass under the name ascribed to the pamphlet, and if he had thought it worthy would have published it himself. The subtext to the complaint is that there was a passing off, much to Coke’s anger and embarrassment.

[26] Coke places great store on reading as a method of study. Although he has also referred to discussion and contemplation as essential study skills, the focus more and more shifts to the use of books. Coke was educated in the Elizabethan Inns of Court where the oral-memorial system or moots, exercises and readings was still continuing undiminished. By the seventeenth century it may be fair to conclude that Coke saw that there was a shift in legal education towards a more individually centered form of study which could be best achieved by considering and reading the “right books”.

[27] 4 Cokes Reports Folio B3 pages unnumbered.

[28] 2 Cokes Reports  “To the Learned Reader”  ¶3 pages  unnumbered.

[29] 1 Cokes Reports “Preface to the Reader” page unnumbered.

[30] Ibid.

[31] 3 Cokes Reports.

[32]  Glanvil, Bracton, Britton, Fleta, Ingham and Nova Narrationes

[33] The Old Tenures, the Old Natura Brevium, Littleton, Doctor and Student, Perkins, Fitzherbert’s Natura Brevium and Stanford’s Plees de la Coron.

[34] 10 Cokes Reports.

[35]  3 Cokes Reports.

[36]  5 Cokes Reports “To the Reader” Folio Aiiii pages unnumbered.

[37]  6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[38] Coke on Littleton “The Preface” Folio C3 pages unnumbered.

[39] Edward Coke A Booke of Entries (Printed for the Societie of Stationers, London, 1614) The “common good” in this context was limited to the audience – the book was for the benefit of all of them. Beyond this social implication this cannot be said to extend to the “common weale” either in the wider social or political senses. The title page may well contain some printer’s hyperbole. Note that the term “ law student” had a special meaning in the early modern period which was wider than that contemplated by the undergraduate student of today..

[40] 3 Cokes Reports “To the Reader” Folio C2 page unnumbered. The Book of Entries to which he refers may well have been his own although it was not printed until 1614. It is in the Preface to the Third Volume of the Reports that Coke repeats the theory advanced by Plowden that authorship of the Year Books rested with four “reporters” appointed by the Crown.

[41] 4 Cokes Reports “To the Reader” Folio B3 pages unnumbered. In this passage Coke is referring to statutory law which had increased in volume since the reign of Henry VIII. It emphasises the general theme of the preface which is about making the law available.

[42] 6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[43] 8 Cokes Reports “To the Reader” Folio Aii page unnumbered.

[44] Ibid.

[45] 10 Cokes Reports “To the Reader”  pages unnumbered.

[46] 11 Cokes Reports “To the Reader”  pages unnumbered. The Twelfth Volume and Thirteenth volumes were printed posthumously in 1656.

[47] The letters of John Chamberlain, ed. N. E. McClure, 2 vols. (1939) 2.14

[48] Ibid. 2.34

[49] C. Russell, Parliaments and English politics, 1621–1629 (1979) p. 352

Bosworth Field and the new Information Technology

The Battle of Bosworth Field was fought on 22 August 1485 and brought to an end the Plantagenet dynasty which had reigned over England from the days of Henry II. The debate about whether Richard III was as bad as Shakespeare painted him will continue. We have got to remember that Shakespeare was a child of his time. His queen was the grand-daughter of the victor of Bosworth – Henry VII – and it didn’t do to upset the ruler. The Tudors were very concerned with image – the subject of the late Kevin Sharpe’s excellent book Selling the Tudor Monarchy: Authority and Image in Sixteenth Century England[1]. The sources available to Shakespeare may have included Raphael Holinshed’s Chronicles of England, Scotland and Ireland,[2] Thomas More’s History of Richard III [3]  and  Polydore Vergil’s Historia Anglica[4]. Shakespeare’s Richard III was written in 1591 when all of these sources and possibly some others would have been available.

What is important is that all these works were in print and although Vergil’s book was printed in Basle, it is not inconceivable that copies found their way to England. The book was in Latin and would therefore have avoided the restrictions on importation of books printed overseas in English – a protectionist move for the benefit of English printers and latterly to prevent the importation of works which were anti-Elizabeth and designed to appeal to recusant Catholics.

Both Richard III and his successor Henry VII were aware of and fostered the development of the of a new information technology – the printing press.

The printing press had been introduced to England by William Caxton who learned the trade in Bruges. He set up the first press in Westminster during the reign of Edward IV.

Caxton Showing the First Specimen of His Printing to King Edward IV at the Almonry, Westminster (1851 Daniel Maclise (1811–1870)

The early history of print in England up until 1513 is characterised by two factors. The first is that within eight years of the introduction of the press there was legislation in place to enable the industry to develop. The second was an absence of native born English printers, with the exception of Caxton.[5]  This was not unusual in the early history of the spread of the new technology. As the printing press spread through Germany, German craftsmen took it to other countries and in doing so passed on the skills of the craft to the natives of the new country, who in turn took the new craft with them to other countries.[6] John Lettou, of Lithuanian origin, established himself in the City in 1480 and in 1482 was joined in partnership by William de Machlinia, a native of Mechlin in Flanders.[7]  Together, in 1481, they printed a well-known law book  Tenores Novelli.[8] This was the first law book printed in England.

English authorities were often concerned at the impact that aliens had upon trade and commerce in England and often steps were taken to limit the foreign dominance of aspects of trade important to England. Foreigners were divided into two categories – aliens and denizens – and in any new regulatory activities dealing with foreign trade, it was against the aliens that the steps were initially taken. Denizens, who were foreigners who had been admitted to residence and who had certain rights,[9] could find themselves restricted in their activities.

So it was that in 1483 Parliament petitioned Richard III to address grievances against Italians[10] who, it was claimed were price fixing, buying up imported goods and re-selling them, sending their profits and bringing in other foreigners to work with them. As a result, the King’s subjects were unemployed and had turned to idleness with a consequent increase in the numbers of thieves and beggars. It was claimed that the inhabitants of “Citees Burghes and Townes in late daies have fallen and dailly falle unto grete poverty and dekay.”[11]

However, this statute, designed to severely regulate the conditions under which aliens could trade in England, contained a proviso which reads as follows:

“Provided alwey that this Acte or any part thereof, or any other Acte made or to be made in this present Parliament, in no wise extende or be prejudiciall any lette hurte or impediment to any Artificer or merchant straungier of what Nacion or Contrey he be or shalbe of, for bryngyng into this Realme, or sellyng by retaill or otherwise, of any man’s bokes written or imprinted, or for inhabitynge within the said Realme for the same intent or to any writer lympner bynder or imprinter of suche bokes as he hath or shall have to sell by wey of merchaundise, or for their abode in the same Reame for the exercising of the said occupacions; this Acte or any parte therof notwithstanding”[12]

This is a most significant proviso. It has been suggested that its inclusion was at the behest of John Russell, a bibliophile and member of the King’s Council, possibly influenced by the marketing activities of Peter Actors who was an importer of books and who had been a supplier of books to the principal fairs with his partner Joannes de Aquisgrano.[13]

The importance of the proviso may be summarized as follows. First, it indicated quite clearly that a value was placed upon books and that there was recognition of the importance of the newly introduced craft of printing which was relatively poorly developed in England. Secondly, it ensured that the continued and future presence of foreign craftsmen who were skilled in the new technology would be encouraged to come to England and continue to develop the trade. Thirdly, although this was a most important encouragement for printing, the proviso also extends to writers, limners and binders – those involved in the scribal production of books. Thus the encouragement was for book production generally, and it is probable that the Stationers’ Company, which represented native craftsmen and shopkeepers, must have approved of this specific exclusion.[14]

The 1484 Statute demonstrates what was to become a trend – the use of statute to regulate the printing trade directed primarily towards industry regulation rather than content regulation.[15]

A recognition of the developing importance of print in government came in 1485 when, on 5 December, Peter Actors, an early beneficiary of the proviso, was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with

“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc thereon and without rendering any accompt thereof.”[16]

Henry VII utilized print for propaganda purposes and was the first English monarch to do so,[17] but he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.[18] It was one of the first publications to recognize the wide dissemination that the new technology allowed, and the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications.[19] It also made very clear that ignorance of the law could not be claimed when material was available in print.[20] The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated the technology of print.

“and to thentent they have no cause to excuse theim of their offences by pretense of ignorance of the saide ordenances, his highnesse hath ovir and above the open proclamacion of the saide statutes communded and ordeyned by wey of emprynte diverse and many several bokes conteignyng the same statutes nto be made and delivered to the capitaignes of his ost charginge them as they wyl avoyde his grete displeasure to cause the same twyes or ones at the lest in every weke hooly to be redde in the presence of their retinue.”[21]

 Up until the 1520’s there was a relatively  unregulated market for printers and for printed books. The craft grew by leaps and bounds. The five printers in London had grown to thirty-three printers and booksellers by 1523 and the English market was becoming less dependent upon imported material.[22] John Rastell, a lawyer-printer began printing in 1513 and was joined thereafter by a growing number of English printers.

The importance of printing and its status continued to be recognized by the Crown and the office of King’s Printer which was not an honorary one, became a tool of Government. The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”[23]

The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.

The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicized, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognized. Large numbers of identical publications could be readily spread throughout the Kingdom. On the other hand it was recognized that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.

For approximately thirty years the printing trade developed in England with little restriction, but it was with the advent of Luther’s teachings on the Continent, coupled with economic concerns that were developing about the condition of the English labour market that restrictions on the trade and business of printing and the control of the content of works being printed attracted the attention of the State and the intervention of the law.

Bosworth Field may have resulted in a changed dynasty but both monarchs contesting the Crown recognised the importance of the new information technology. It was to grow and become a potent force, especially in the hands of Henry VIII and Thomas Cromwell – but that is another story and for another day

---

[1] Yale University Press, 2009.

[2] At London printed by Henry Denham in Aldersgate street at the signe of the Starre, 1587. The first volume was printed in 1577 and took the history until the Conquest. The printing of the first and second volumes took the history  through to 1586

[3] Printed posthumously in 1557 in The Workes of Sir Thomas More Knyght sometyme Lorde Chancellour of England wrytten by hime in the Englysh tonge  (At the costes and charges of Iohn Cawod, Iohn Waly, and Richarde Tottell, Anno. 1557) and edited inter alia by his nephew William Rastell – see pages 35 et seq of the 1557 edition although there is some suggestion that More’s patron John Morton Archbishop of Canterbury was the source for much of More’s information

[4] Although that work was printed in Basle in three editions – 1534, 1546 and 1555 and not in England

[5]  Bennett H.S. English Books and Readers 1475-1557 : Being a study in the history of the book trade from Caxton to the Incorporation of the Stationers Company (Cambridge University Press, Cambridge, 1952) – [referred to hereafter as 1 Bennett]  p. 30.

[6] John Feather, A History of British Publishing (Croom Helm, London, 1988)  p. 14. Richard  Pynson and William Faques were Normans and John Notary was probably French.

[7] Colin Clair A History of Printing in Britain (Cassell, London, 1965) p. 32.

[8] Littleton’s Tenures. J.H Beale A Bibliography of Early English Law Books (Harvard University Press, Cambridge Mass, 1926)  p. 182  The 1481 printing does not appear in the Short Title Catalogue  but records Machlinia’s printing of the Tenures in 1483 STC 15720.

[9] 1 Bennett p. 30.

[10] 1 Ric 3 c.9.

[11] Ibid.

[12] Ibid.

[13] Clair above n. 7 p. 104; C. Paul Christianson “The Rise of London’s Book-Trade”  in L. Hellinga and J.B.Trapp (eds) The Cambridge History of the Book in Britain – Volume III – 1400 – 1557 , (Cambridge University Press, Cambridge, 1999)  p. 137. Actors was appointed Stationer to the King in 1485. See below.

[14] Cyprian Blagden The Stationers’ Company – A History 1403 – 1956 (Allen & Unwin, London,  1960), p. 24.

[15] Certainly there were later statutes which prohibited the use of writing or printing as a means of expressing or as a constituent of heresy or treason, e.g. the Treasons Act 1534. The objective of such legislation was directed more toward content.

[16] Clair, above n. 7, p. 105; Christianson  above n.13  p. 137. Actors was appointed Stationer to the King in 1485. E. Gordon Duff A Century of the English Book Trade ( The Bibliographical Society, London, 1948) p.xii-xiii. Kevin Sharpe in Selling the Tudor Monarchy above n. 1 p.65-6 notes a suggestion that Henry VII was slow to grasp the full potential of printing observing that Faques was not appointed the first Royal Printer until 1506. While the approach based on the title is correct, there can be no doubt that Faques fulfilled the same role under different nomenclature. Perhaps Henry was more alive to print potential than may be immediately apparent. Faques was followed in that position by Richard Pynson in 1508, Thomas Berthelet (1530), Richard Grafton (1547), John Cawood (1553) and Cawood with Richard Jugge (1558). 1 Bennett p.38.

[17] Ibid. Sharpe

[18] Printed by Richard Pynson STC 9332.

[19] Pamela Neville Sington “Press, Politics and Religion” in L. Hellinga and J.B. Trapp (eds) Cambridge History of the Book in Britain – Volume III – 1400 – 1557 (Cambridge University Press, Cambridge 1999) Volume 3p. 578.

[20] The issue of ignorance of the law as a concept in the early modern period is rather complex and beyond the scope of this piece.

[21] STC 9332.

[22] Clair, above  n. 7, p. 105.

[23] Neville Sington above n. 19  p. 605-6.

18 June 1815 – Waterloo – Losers, Victors and Law

On Sunday June 18, 1815 – 197 years ago – the reign of the Emperor Napoleon I came to an end in one of the most significant battles in history.

Bonaparte, a remarkable military genius and political survivor (some would say opportunist) was crowned (or rather crowned himself) Emperor of France on Sunday December 30, 1804 to the strains of Nicolas Roze’s “Vivat”

The event was immortalised by the most notable artist of the Revolutionary and Napoleonic period, Jaques-Louis David in his monumental “Coronation of Napoleon” – as much a propaganda piece as a record (but many of David’s paintings fulfilled that role). When I saw this enormous painting it was exhibited at Versailles.

The Coronation of Napoleon

Tim Blanning in a review of Alan Forrest’s biography of Napoleon (History Today June 2012 p. 57 – 58) observes that Napoleon’s

“(W}ars killed over a million Frenchmen and double that number of other Europeans and ended in his total defeat, not once but twice. He condemned his adopted country to at least a century of social and economic backwardness, while his fomer enemies across the Channel and across the Rhine powered ahead on all fronts. In particular, his destruction of the Holy Roman Empire – arguably the most damaging own goal in European history – paved the way for German Unification and the invasions of 1870, 1914 and 1940. He himself was an unprincipled opportunist, plundering both France and the rest of Europe to enrich his family and himself. Betraying the revolution that brought him to power, he established a military dictatorship, indulging himself in a luxurious lifestyle that was a grotesque parody of the old regime.”

Forrest concludes that “Throughout his career, Napoleon demonstrated an insatiable desire to project his chosen image, to reserve his place in history.” The monumental coronation painting by David is an example.

Bonaparte’s ability to publicise a victory was as important as the victory itself. He made sure that it was his version of events that reached the public first. The skirmish at the Bridge at Lodi on 10 May 1796 became an epochal triumph and throughout his career and even afterwards on St Helena he managed to create a myth of extraordinary power and durability.

But the strength of his armies and the power of the columns advancing to the strains of the Pas de Charge were not a myth as he stormed from victory to victory – from Arcola and Rivoli to the Pyramids, Marengo to Ulm, Austerlitz and Jena.

The martial music of the time and some of the “mythologising” portrayals of Napoleon can be seen and heard in the following clips.

Pas de Charge\La victoire est a nous

Pour l’Empereur

The myth continued with the repatriation of his remains to the Hotel des Invalides by Louis Phillipe in 1840 and continued as his nephew Louis Napoleon traded on his uncle’s reputation and was crowned Napoleon III.

Tombeau Napoleon – Napoleon’s Tomb – L’Hotel des Invalides – Paris

L’Hotel des Invalides

But the reality of Napoleon’s reign ended at Waterloo. There was no way that even he could spin the devtasting defeat, although, as is so often the case with military campaigns, if things had happened differently after Quartre Bras and Ligny, there may have been a final victory for Napoleon to mythologise. Crushing the defeat might have been but his antogonist, Arthur Wellesley, Duke of Wellington described the victory as a “near run thing”. In fact when questioned years later as to what he considered his finest accomplishment on the battlefield, Wellington answered Assaye – a battle fought in India in the Second Anglo-Maratha War on 23 September 1803.

The Iron Duke

Aspley House – The Duke of Wellington’s London Residence – Hyde Park Corner

But there were other victors of Waterloo. The Rothschilds were among them. One story goes that the financier, Nathan Rothschild ran one of the best intelligence networks in Europe. He understood the importance and power of information. In The Rothschilds: A Family Portrait. Frederic Morton recounts the story thus:

To the Rothschilds, [England’s] chief financial agents, Waterloo brought a many million pound scoop. 
“[After the battle}… a Rothschild agent … jumped into a boat at Ostend … Nathan Rothschild … let his eye fly over the lead paragraphs. A moment later he was on his way to London (beating Wellington’s envoy by many hours) to tell the government that Napoleon had been crushed: but his news was not believed, because the government had just heard of the English defeat at Quatre Bras. Then he proceeded to the Stock Exchange.
Another man in his position would have sunk his work into consols, already weak because of Quatre Bras. But this was Nathan Rothschild. He leaned against “his” pillar. He did not invest. He sold. He dumped consols.
…Consols dropped still more. “Rothschild knows,” the whisper rippled through the ‘Change. “Waterloo is lost.”
Nathan kept on selling … consols plummeted—until, a split second before it was too late, Nathan suddenly bought a giant parcel for a song. Moments afterwards the great news broke, to send consols soaring.
We cannot guess the number of hopes and savings wiped out by this engineered panic.”

The only problem with that story is that it is not completely true. The  legend originated in an anti-Semitic French pamphlet in 1846, was embellished by John Reeves in 1887 in The Rothschilds: the Financial Rulers of Nations and then repeated in other later popular accounts, such as that of Morton. Many of the alleged facts stated are incorrect. For example, it has been shown that the size of the market in government bonds at the time would not have enabled a scenario producing a profit of anything near one million pounds.

Historian Niall Ferguson agrees that the Rothschilds’ couriers did get to London first and alerted the family to Napoleon’s defeat, but argues that since the family had been banking on a protracted military campaign, the losses arising from the disruption to their business more than offset any short-term gains in bonds after Waterloo. Rothschild capital did soar, but over a much longer period: Nathan’s breakthrough had been prior to Waterloo, when he negotiated a deal to supply cash to Wellington’s army. The family made huge profits over a number of years from this governmental financing by adopting a high-risk strategy involving exchange-rate transactions, bond-price speculations, and commissions.

But although Wellington managed to stop the threat that Napoleon posed to the peace of Europe, perhaps one of the Emperor’s most enduring legacy remain.

The Napoleonic Code—or Code Napoléon (originally, the Code civil des français)—is the French civil code, established under Napoleon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified.

It was drafted rapidly by a commission of four eminent jurists and entered into force on March 21, 1804. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world.  It was the first modern legal code to be adopted with a pan-European scope and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars.

An interesting legacy that remains, notwithstanding Napoleon’s defeat.

P.S.

There is an excellent exhibition currently at the National Gallery of Victoria titled Napoleon – Revolution to Empire. The exhibition covers the pre-Revolutionary period in art and culture, traversing through the Revolution, the Terror and Napoleon’s rise through the Italian and Egyptian campaigns through to the Directory and to the Coronation and the Empire beyond. If one had any doubt about Napoleons ability for self-promotion and propaganda a few minutes in the Empire section will dispel them entirely. Present are items that he gave his generals and favourites and other examples of the development of the cult of the Emperor.

And there, in a display on its own, is a copy of the 1810 edition of the Code Napoleon. But sadly, cameras could not be used in the exhibition.

Napoleon – Revolution to Empire – National Gallery of Victoria

Napoleon – Revolution to Empire Exhibition