Throughout the recorded history of law, lawmakers used state of the art technology to draft laws. This helped them to increase their effectiveness and to reduce the costs of production and dissemination of legal norms.
We should do so again.
Hammurabi’s code (from 1700 BC) was aimed at creating transparency of the law. It consisted of clear and understandable rules that were chiseled in rock. This rock was placed in the market or at the palace of the king so it could be consulted.
“If any one loses an article, and find it in the possession of another: if the person in whose possession the thing is found say “A merchant sold it to me, I paid for it before witnesses,” and if the owner of the thing say, “I will bring witnesses who know my property,” then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony – both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant.”
The example seems to assume that the merchant obtained the item unlawfully and consciously, but what if the merchant would also have witnesses a lawful purchase? So a problem was that the very concrete rules in the code quickly showed unforeseen gaps, and risked becoming outdated pretty fast. These gaps were making the (re-)production costs of laws rather high.
Later, the drafters of the Codex Justinianus worked with parchments and ink and developed a solution to the high production costs. Instead of working with concrete rules, they drafted a more abstract code. Law became a system of more general rules that offered principles for concrete cases, but no criteria for concrete outcomes. The code was more durable, and reduced production costs due to longevity, but decreased the application of the law as a guideline for an outcome for a particular case. Experts increasingly were needed and a legal profession developed.
This approach was also followed by the drafters of the Code Napoléon. But now the invention of the printing press had made it possible to dramatically reduce costs.
Each of these codifications used and utilised the state of the art information technology available: rocks and a chisel, parchment and ink, the art of printing books.
Nowadays information technologies offer great opportunities to reduce the costs for dissemination. For many countries the legal codes, and sometimes case law as well, are accessible online. Regarding what is produced, however, not much has changed. We still draft codes and design systems of rules that are aimed to last, and this means norms are often open ended. But we may be heading for a new era of codification, having much better technologies available, and knowing much better which information is most useful.
The current tables for determining child support, formulas for calculating severance pay, grids for guiding claims in case of personal injury, etc. are very detailed, taking many contingencies into account. These sharing rules re-introduced the concreteness of Hammurabi. But they also took from Justinian and Napoleon, namely the general principles and guidelines behind the rules, as well as the flexibility. This flexibility was reintroduced in a new form. Where traditional codes offer flexibility through the use of words such as ‘reasonable’ or ‘appropriate’, which allow for interpretation, flexibility is now created by seeing the rules not as legally binding, but rather as guidelines that are used by judges, lawyers and other dispute resolution professionals.
As yet, there is no central platform to bring together all these rules, and codification 2.0 may be a much more decentralized venture, perhaps borrowing elements from Wikipedia. But it is not difficult to imagine what a website like this could look like.
Some building blocks for Codification 2.0:
- http://www.supportguidelines.com gives an overview of child support guidelines in US states, England, Canada and New Zealand, and the many sites that offer this information.
- The basic criteria for determining severance pay in 183 countries have been collected in a database of World Bank researchers. See Holzman R. et al., Reforming Severance Pay (eBook). An International Perspective, World bank Publications (2011)
- Many other important criteria and sharing rules that help to settle frequent distributive disputes are shown on http://www.hiil.org/bestpractices.
An underlying vision is to create a place where people easily can access the clear rules that matter most for them. Not a comprehensive system for all disputes, but the 3 or 4 criteria that are most relevant for the 10 most frequent problems. No rules emerging from a court procedure and hidden in a judgment, but simple criteria just three clicks away. Not drafted by a small legislative commission working on it for years but with input from professionals and experts that work with these criteria on a daily basis. So they can stay up to date.
The major codification projects in the past have occurred only at very specific moment in history: as an ambition of one powerful leader or during the birth of nation states in the 19th and 20th century. They are very costly projects, and usually needed many, many years to complete. Once they were done, they proved immensely valuable, and are used to this day as repositories of useful rules.
The major thing that is currently lacking is a sustainable way to fund the development of a Codification 2.0. Part of the problem is that we are dealing with an information good, i.e. a good that is very easy to reproduce and distribute (they are easy to steal) that is also a public good. This is a major challenge for social entrepreneurs.
(The original version of this text was drafted as part of a HiiL Trend Report)