Radbruch in Cyberspace: About Law-System Quality And ICT Innovation

Aernout Schmidt

Abstract

ICT-services are only interesting to ICT and law research insofar they support law systems, or are law systems themselves. One of the tasks of ICT and law research is providing knowledge on what the quality of law systems is and how addition or removal of a rule will influence a law system’s quality. In this paper the quality of a law system is related to its rules, to the willingness to participate in it and to the values it delivers to its participants. Willingness to participate is compound of several variables that can be observed and counted, leading to the suggestion that there may be a general ‘Radbruch’-function that relates willingness to participate in a law system to its quality.

It is impossible to find a general public-choice function for rationally deciding on one singular set of values, that represent the optimal collective value for a law system, as these values are only observable as opinions, relative to whom holds them in context. It nevertheless seems obvious that individual willingness to participate to a specific law system at a specific time is motivated by a set of individual values, and that the quality of a law system thus indirectly depends on them.

Analysis of an estimated dataset with variables for willingness to participate in, and for values returned by three ICT services with law-system character leads to at least one etiologic hypothesis:

     High welfare combined with low fairness in an ICT-mediated law system
    support inside revolt and outside opposition and thus low quality. An ICT-
    supported law system has low quality due to inside revolt and outside op-
    position because high welfare combined with low fairness are there.

This hypothesis does not help in the face of an actual law system turning towards bad quality. Appropriate knowledge might, though. The hypothesis may thus help to focus some of our research. We may observe the variables of willingness to participate and relate them to grouped opinions on value held, of law systems turning bad, or good, in history. And try and hope to harvest some relevant knowledge that way. For instance concerning the mechanisms fuelling enduring conflict (as in the KaZaA situation) and how to recognize and prevent them through our law-system designs. If we would succeed, we would have additional scientific legal arguments available to bring to the fore in political, legislative debate.

The paper is a report on exploratory work in progress. It explores one out of many possible approaches for research on law-system quality, facing ICT innovation.

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