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borgestotallibrary.jpgIn an extraordinary story, Jorge Luis Borges writes of a "Total Library", organized into 'hexagons' that supposedly contained all books:

When it was proclaimed that the Library contained all books, the first impression was one of extravagant happiness. All men felt themselves to be the masters of an intact and secret treasure. . . . At that time a great deal was said about the Vindications: books of apology and prophecy which . . . [contained] prodigious arcana for [the] future. Thousands of the greedy abandoned their sweet native hexagons and rushed up the stairways, urged on by the vain intention of finding their Vindication. These pilgrims disputed in the narrow corridors . . . strangled each other on the divine stairways . . . . Others went mad. . . . The Vindications exist . . . but the searchers did not remember that the possibility of a man's finding his Vindication, or some treacherous variation thereof, can be computed as zero.  As was natural, this inordinate hope was followed by an excessive depression. The certitude that some shelf in some hexagon held precious books and that these precious books were inaccessible, seemed almost intolerable.

About three years ago I spent almost an entire sleepless month coding OpenJudis - my rather cool, "first-of-its-kind" free online database of Indian Supreme Court cases. The database hosts the full texts of about 25,000 cases decided since 1950. In this post I embark on a somewhat personal reflection on the process of creating OpenJudis - what I learnt about access to law (in India), and about "legal informatics," along with some meditations on future pathways.

Having, by now, attended my share of FLOSS events, I know it is the invariable tendency of anyone who's written two lines of free code to consider themselves qualified to pronounce on lofty themes - the nature of freedom and liberty, the commodity, scarcity, etc. With OpenJudis, likewise, I feel like I've acquired the necessary license to inflict my theory of the world on hapless readers - such as those at VoxPopuLII!

I begin this post by describing the circumstances under which I began coding OpenJudis. This is followed by some of my reflections on how "legal informatics" relates to and could relate to law.

Online Access to Law in India
India is privileged to have quite a robust ICT architecture. Internet access is relatively India Cyber Cafeinexpensive, and the ubiquity of "cyber cafes" has resulted in extensive Internet penetration, even in the absence of individual subscriptions.

Government bodies at all levels are statutorily obliged to publish, on the Internet, vital information regarding their structure and functioning. The National Informatics Centre (NIC), a public sector corporation, is responsible for hosting, maintaining and updating the websites of government bodies across the country. These include, inter alia, the websites of the Union (federal) Government, the various state governments, union and state ministries, constitutional bodies such as the Election Commission and the Planning Commission, and regulatory bodies such as the Securities Exchange Board of India (SEBI). These websites typically host a wealth of useful information including, illustratively, the full texts of applicable legislations, subordinate legislations, administrative rulings, reports, census data, application forms etc.

The NIC has also been commissioned by the judiciary to develop websites for courts at various levels and publish decisions online. As a result, beginning in around the year 2000, the Supreme Court and various high courts have been publishing their decisions on their websites. The full texts of all Supreme Court decisions rendered since 1950 have been made available, which is an invaluable free resource for the public. Most High Court websites however, have not yet made archival material available online, so at present, access remains limited to decisions from the year 2000 onwards. More recently the NIC has begun setting up websites for subordinate courts, although this process is still at a very embryonic stage.

Apart from free government websites, a handful of commercial enterprises have been providing online access to legal materials. Among them, two deserve special mention. SCCOnline - a product of one of the leading law report publishers in India - provides access to the full texts of decisions of the Indian Supreme Court. The CD version of SCCOnline sells for about INR 70,000 (about US$1,500), which is around the same price the company charges for a full set of print volumes of its reporter. For an additional charge, the company offers updates to the database. The other major commercial venture in the field is Manupatra, which offers access to the full text of decisions of various courts and tribunals as well as the texts of legislation. Access is provided for a basic charge of about US$100, plus a charge of about US$1 per document downloaded. While seemingly modest by international standards, these charges are unaffordable by large sections of the legal profession and the lay public.

OpenJudis
In December 2006, I began coding OpenJudis. My reasons were purely selfish. While the full texts of the decisions of the Supreme Court were already available online for free, the search engine on the government website was unreliable and inadequate for (my) advanced research needs. The formatting of the text of cases themselves was untidy, and it was cumbersome to extract passages from them. Frequently, the website appeared overloaded with users, and alternate free sources were unavailable. I couldn't afford any of the commercial databases. My own private dissatisfaction with the quality of service, coupled with (in retrospect) my completely naive optimism, led me to attempt OpenJudis. A third crucial factor on the input side was time, and a "room of my own," which I could afford only because of a generous fellowship I had from the Open Society Institute.

I began rashly, by serially downloading the full texts of the 25,000 decisions on the India’s Supreme CourtSupreme Court website. Once that was done (it took about a week), I really had no notion of how to proceed. I remember being quite exhilarated by the sheer fact of being in possession of twenty five thousand Supreme Court decisions. I don't think I can articulate the feeling very well. (I have some hope, however, that readers of this blog and my fellow LII-ers will intuitively understand this feeling.) Here I was, an average Joe poking around on the Internet, and just-like-that I now had an archive of 25,000 key documents of our republic,  cumulatively representing the articulations of some of the finest (and  some not-so-fine) legal minds of the previous half-century,  sitting on my laptop. And I could do anything with them.

The word "archive," incidentally, as Derrida informs us, derives from the Greek arkheion, the residence of the superior magistrates, the archons - those who commanded. The archons both "held and signified political power," and were considered to possess the right to both "make and represent the law." "Entrusted to such archons, these documents in effect speak the law: they recall the law and call on or impose the law". Surely, or I am much mistaken, a very significant transformation has occurred when ordinary citizens become capable of housing Return of the Archonsarchives - when citizens can assume the role of archons at will.

Giddy with power, I had an immediate impulse to find a way to transmit this feeling, to make it portable, to dissipate it - an impulse that will forever mystify economists wedded to "rational" incentive-based models of human behavior. I wasn't a computer engineer, I didn't have the foggiest idea how I'd go about it, but I was somehow going to host my own online free database of Indian Supreme Court cases. The audacity of this optimism bears out one of Yochai Benkler's insights about the changes wrought by the new "networked information economy" we inhabit. According to Benkler,

The belief that it is possible to make something valuable happen in the world, and the practice of actually acting on that belief, represent a qualitative improvement in the condition of individual freedom [because of NIE]. They mark the emergence of new practices of self-directed agency as a lived experience, going beyond mere formal permissibility and theoretical possibility.

Without my intending it, the archive itself suggested my next task. I had to clean up the text and extract metadata. This process occupied me for the longest time during the development of OpenJudis. I was very new to programming and had only just discovered the joys of Regular Expressions. More than my inexperience with programming techniques, however, it was the utter heterogeneity of reporting styles that took me a while to accustom myself to. Both opinion-writing and reporting styles had changed dramatically in the course of the fifty years my database covered, and this made it difficult to find patterns when extracting, say, the names of judges involved. Eventually, I had cleaned up the texts of the decisions and extracted an impressive (I thought) set of metadata, including the names of parties, the names of the judges, and the date the case was decided. To compensate for the absence of headnotes, I extracted names of statutes cited in the cases as a rough indicator of what their case might relate to. I did all this programming in PHP with the data housed in a MySQL database.

And then I encountered my first major roadblock that threatened to jeopardize the wholePunching Computer operation: I ran my first full-text Boolean search on the MySQL database and the results took a staggering 20 minutes to display. I was devastated! More elaborate searches took longer. Clearly, this was not a model I could host online. Or do anything useful with. Nobody in their right mind would want to wait 20 minutes for the results of their search. I had to look for a quicker database, or, as I eventually discovered, a super fast, lightweight indexing search engine. After a number of failed attempts with numerous free search engine software programs, none of which offered either the desired speed or the search capability I wanted, I was getting quite desperate. Fortunately, I discovered Swish-e, a lightweight, Perl-based Boolean search engine which was extremely fast and, most importantly, free - exactly what I needed. The final stage of creating the interface, uploading the database, and activating the search engine happened very quickly, and sometime in the early hours of December 22nd, 2006, OpenJudis went live. I sent announcement emails out to several e-groups and waited for the millions to show up at my doorstep.

They never did. After a week, I had maybe a hundred users. In a month, a few hundred. I received some very complimentary emails, which was nice, but it didn't compensate for the failure of "millions" to show up. Over the next year, I added some improvements:
1) First, I built an automatic update feature that would periodically check the Supreme Court website for new cases and update the database on its own.
2) In October 2007, I coded a standalone MS Windows application of the database that could be installed on any system running Windows XP. This made sense in a country where PC penetration is higher than Internet penetration. The Windows application became quite popular and I received numerous requests for CDs from different corners of the country.
3) Around the same time, I also coded a similar application for decisions of the Central Information Commission - the apex statutory tribunal for adjudicating disputes under the Right to Information Act.
4) In February 2008, both applications were included in the DVD of Digit Magazine - a popular IT magazine in India.

Unfortunately, in August 2008, the Supreme Court website changed its design so that decisions could no longer be downloaded serially in the manner I had been accustomed to. One can only speculate about what prompted this change - since no improvements were made to the actual presentation of the cases. The only thing that changed was that one could no longer download cases serially as I'd been doing. The new format was far more difficult for me to "hack" and I abandoned the attempt. My work left me with no time to attempt to circumvent the new format.

Fortunately at the same time, an exciting new project called IndianKanoon was started by Sushant Sinha, an Indian computer science graduate at Michigan. In addition to decisions of the Supreme Court, his site covers several high courts and links up to the text of legislation of various kinds. Although I have not abandoned plans to develop OpenJudis, the presence of IndianKanoon has allowed me to step back entirely from this domain - secure in the knowledge that it is being taken forward by abler hands than mine.

Predictions, Observations, Conclusions
I'd like to end this already-too-long post with some reflections, randomly ordered, about legal information online.
1) I think one crucial area commonly neglected by most LIIs is client-side software that enables users to store local copies of entire databases. The urgency of this need is highlighted in the following hypothetical about digital libraries by Siva Vaidhyanathan (from The Anarchist in the Library):

So imagine this: An electronic journal is streamed into a library. A library Anarchist in Librarynever has it on its shelf, never owns a paper copy, can’t archive it for posterity. Its patrons can access the material and maybe print it, maybe not. But if the subscription runs out, if the library loses funding and has to cancel that subscription, or if the company itself goes out of business, all the material is gone. The library has no trace of what it bought: no record, no archive. It’s lost entirely.

It may be true that the Internet will be around for some time, but it might be worthwhile for LIIs to stop emulating the commercial database models of restricting control while enabling access. Only then can we begin to take seriously the task of empowering users into archons.

2) My second observation pertains to interface and usability. I have for long been planning to incorporate a set of features including tagging, highlighting, annotating, and bookmarking that I myself would most like to use. Additionally, I have been musing about using Web 2.0 to enable user-participation in maintenance and value-add operations - allowing users to proofread the text of judgments and to compose headnotes. At its most ambitious, in these "visions" of mine, OpenJudis looks like a combination of LII + social networking + Wikipedia.

A common objection to this model is that it would upset the authority of legal texts. In his brilliant essay A Brief History of the Internet from the 15th to the 18th century, the philosopher Lawrence Liang reminds us that the authority of knowledge that we today ascribe to printed text was contested for the longest period in modern history.

Far from ensuring fixity or authority, this early history of Printing was marked by uncertainty, and the constant refrain for a long time was that you could not rely on the book; a French scholar Adrien Baillet warned in 1685 that "the multitude of books which grows every day" would cast Europe into "a state as barbarous as that of the centuries that followed the fall of the Roman Empire."

Europe's non-descent into barbarism offers us a degree of comfort in dealing with Adrien Baillet-type arguments made in the context of legal information. The stability that we ascribe to law reports today is a relatively recent historical innovation that began in the mid-19th century. "Modern" law has longer roots than that.

3) While OpenJudis may look like quite a mammoth endeavor for one person, I was at all times intensely aware that this was by no means a solitary undertaking, and that I was "standing on the shoulders of giants." They included the nameless thousands at the NIC who continue to design websites, scan and upload cases on the court websites - a Sisyphian task - and  the thousands whose labor collectively produced the free software I used : Fedora Core 4, PHP, MySQL, Swish-E. And lastly, the nameless millions who toil to make the physical infrastructure of the Internet itself possible. Like the ground beneath our feet, we take it for granted, even as the tragic recent events in Haiti in recent weeks remind us to be more attentive. (For a truly Herculean endeavor, however, see Sushant Sinha's IndianKanoon website, about which many ballads may be composed in the decades to come.)

It might be worthwhile for the custodians of LIIs to enable users to become derivative producers themselves, to engage in "practices of self-directed agency" as Benkler suggests. Without sounding immodest, I think the real story of OpenJudis is how the Internet makes it plausible and thinkable for average Joes like me (and better-than-average people like Sushant Sinha) to think of waging unilateral wars against publishing empires.

4) So, what is the impact that all this ubiquitous, instant, free electronic access to legal information is likely to have on the world of law? In a series of lectures titled "Archive Fever," the philosopher Derrida posed a similar question in a somewhat different context: What would the discipline of psychoanalysis have looked like, he asked, if Sigmund Freud and his contemporaries had had access to computers, televisions, and email? In brief, his answer was that the discipline of psychoanalysis itself would not have been the same - it would have been transformed "from the bottom up" and its very events would have been altered. This is because, in Derrida's view:

The archive . . . in general is not only the place for stocking and for conserving an archivable content of the past. . . .  No, the technical structure of the archiving archive also determines the structure of the archivable content even in its coming into existence and in its relationship to the future. The archivization produces as much as it records the event.

The implication, following Derrida, is that in the past, law would not have been what itDerrida currently is if electronic archives had been possible. And the obverse is true as well:  in the future, because of the Internet, "rule of law" will no longer observe the logic of the stable trajectories suggested by its classical "analog" commentators. New trajectories will have to be charted.

5) In the same book, Derrida describes a condition he calls "Archive fever":

It is to burn with a passion. It is never to rest, interminably, from searching for the archive right where it slips away. It is to run after the archive even if there's too much of it. It is to have a compulsive, repetitive and nostalgic desire for the archive, an irrepressible desire to return to the origin, a homesickness, a nostalgia for the return to the most archaic place of absolute commencement.

I don't know about other readers of VoxPopulII (if indeed you've managed to continue reading this far!), but for the longest time during and after OpenJudis, I suffered distinctively from this malady. I downloaded indiscriminately whole sets of data that still sit unused on my computer, not having made it into OpenJudis. For those in a similar predicament, I offer Borges's quote with which I began this text, as a reminder of the foolishness of the notion of "Total Libraries."

Prashant IyengarPrashant Iyengar is a lawyer affiliated with the Alternative Law Forum, Bangalore, India. He is currently pursuing his graduate studies at Columbia University in New York. He runs OpenJudis, a free database of Indian Supreme Court cases.

VoxPopuLII is edited by Judith Pratt. Editor in Chief is Rob Richards.

Within the field of legal informatics, discussions often focus on the technical and methodological questions of access to legal information. The topics can range from classification of legal documents to conceptual retrieval methods and Automatic Detection of Argumentation in Legal Cases. Researchers and businesses try to increase both precision and recall in order to improve search results for lawyers, while public administrations open up the process of legislating for the benefit of democracy and openness. Where are, however, the benefits for laypersons not familiar with retrieving legal information? Does clustering of legal documents, for example, yield a legal text any more understandable for a citizen?

To answer these questions, I would like to go back to the beginning, the purpose of law. Unfortunately for us lawyers, law is not created for us, but to serve as the oil that keeps society running smoothly. One can imagine two scenarios to apply the oil: If the motor has not been taken care of sufficiently, some extra greasy oil might be necessary to get it running again (i.e. if all amicable solutions are exhausted, some sort of dispute resolution is required), this would be the retroactive approach. The other possible application is to add enough oil during driving, so the engine will continue running smoothly without any additional boost, in other words trying to avoid disputes, this would be the proactive line of thinking.

How can proactive law work for the citizens? The basic assumption would be that in order to avoid disputes, one has to be aware of possible legal risks and how to prevent them. In line with the position of the European Union, we can further assume that the assessment and evaluation of risks requires relevant information about the legal facts at hand. It is only possible for a citizen to reach a decision regarding, for example, social benefits or certain rights as an employee, if she or he is aware of the various legal rights and obligations as well as possible legal outcomes.

Having stipulated that legal information is the core requirement for being able to exercise one’s rights as a citizen, the next questions would include which type of information is actually necessary, who should be responsible to communicating it and how it should be provided. These questions I would like to discuss below.  That is, we will talk about why, what, who and how.

Why?

ignorance

Before we move on to the main theme at hand on access to legal information, I would like to highlight a few more things about the why. As already mentioned, and as many legal philosophers have noted, law is the clockwork that makes society click. The principle Ignorantia juris neminem excusat (Ignorance of the law is no excuse) is commonly accepted as one of the foundations of modern civilization. But how would we define ignorance in today’s world? What if a citizen has troubles finding the necessary information despite endless efforts? What if she or he, after finding the relevant information, is not able to understand it? Does this mean she or he is still ignorant?

Public access to legal information is also a question of democracy, because citizens’ insight into politics, governmental work and the lawmaking process is a necessary prerequisite for public trust in the legislative body.

"In shifting from infrastructure to integration and then to transformation, a more holistic framework of connected governance is required. Such a framework recognizes the networking presence of e-government as both an internal driver of transformation within the public sector and an external driver of societal learning and collective adaptation for the jurisdiction as a whole." (UN e-Government Survey 2008)

In this spirit, governments should consider the management of knowledge an increasing importance. "The essence of knowledge management (KM) is to provide strategies to get the right knowledge to the right people at the right time and in the right format." (UN e-Government Survey 2008) What, then, is the right knowledge?

What?

The term legal information is as obvious as the word law. It is both apparent and imprecise, and yet we use it rather often. Several scholars have tried to define legal information and legal knowledge, inter alia, Peter Wahlgren in 1992, Erich Schweighofer in 1999, and Robert Richards in 2009.

books

If we consider the term from a layperson’s perspective, one could define it as the data, the facts and figures, that are necessary to solve an issue--one that cannot be handled amicably--between two persons (either legal or physical). In order for a layperson to be able to utilize legal information she or he has to be able to access, read, understand and apply the information.

The accessing element is one of the tasks that legal information institutes fulfill so elegantly. The term "reading" is here to be understood as information that can be grasped either with one’s eyes or ears. The complexity begins when it comes to understanding and applying the information. A layperson might have difficulties understanding and applying the Act on income tax even though the law is accessible and readable.

Is this information then still legal information if we assume that the word “information” means that somebody can receive certain signs and data and use this data meaningful in order to increase her or his knowledge? "Knowledge and information […] influence in a reciprocal way. Information modifies knowledge and knowledge guides potential use of information." (Schweighofer)

If a layperson does not understand the information provided by official sources, she or he might refer to other information sources, for example by utilizing a Google search. In this case, the question arises how reliable the retrieved information is, however comprehensible. A high ranking in Google search does not automatically relate to high quality of the information even though this might be a common misconception, especially for laypersons not trained in source criticism. Here the importance of providing citizens with some basic and comprehensible information becomes apparent.

This comprehensible information might include more than plain text-based legislation and court decisions. Of interest for the layperson (both in business-consumer as well as government-citizen situations) can furthermore be, inter alia,

  • additional requirements according to terms and conditions or specific procedural rules in public administrations
  • possible legal outcomes and necessary facts that lead to them
  • estimated time of delivery of the product or the decision
  • creditability of the business, including the amount of pending cases before the courts or complaints before the consumer protection authorities.

For a citizen it might also be very significant to know how she or he could behave differently in order to reach a desired result. Typically, citizens are only provided with the information as to how the legal situation is, but not what they could do to improve it, unless they contact a lawyer.

Commonly all these types of data already exist, if maybe not in one location. The most – technically – accessible information are traditional legal sources, such as legislation and case-law. Again, here the question mainly focuses on how to provide and utilize the existing information in a fashion understandable to the user.

"Like any other content transmitted through a communication system, primary legal sources can be rendered more or less understandable, locatable, and hence effective by structuring and presenting them differently for different audiences. And secondary sources must of course be constructed for a particular market, audience, or level of understanding. "(Tom Bruce)

Who should then be responsible for structuring, presenting and rendering it understandable, especially in the light of source criticism and trust?

Who?

Ignorantia juris neminem excusat presupposes that the legal information provided is correct and of high quality. Who can guarantee such a quality? The state, private entities, research facilities, non-governmental organizations or citizens? My answer would be that all could contribute their part of the game.

One should, however, keep in mind, that user-friendliness is not the same as trustworthiness, which leads to the question of how to ensure that citizens are supplied with the right answers? In a world where even governments do not always take responsibility for the correctness of the provided information, such as in the case of online publications for law gazettes, the question remains who, or what entity, should be held liable for the accuracy of its services. But even if a public authority would sustain accountability, to what extent could that influence an already reached legal decision?

The answer of who should provide a certain legal information service could also depend on who the target group of the information is.

"The legal information market is really no longer conceivable as bipolar – it can no longer be seen as a question of lawyers on the one hand versus a largely legally ignorant everyone else on the other. […] Internet-based legal information systems are used by many cases and conditions of people for many different reasons. […] Probably the most interesting group [are] non-lawyer professionals. These are people whose interest in law is vital, ongoing, and professional rather than either being casual and hobby-like or sporadic and trauma-driven. […] Such new and diverse audiences require new and diverse legal information architectures. They will want specialized collections of law of particular relevance to them. They will want those collections organized and presented in ways that reflect their profession or their situation, in ways that collections organized according to the legal abstractions and legal terms in use by lawyers do not. They are concerned with situations and fact-patterns rather than theories, doctrines, and concepts. They are, in short, a very intelligent and exciting type of lay users, and a potentially enormous audience. '(Tom Bruce)

Non-lawyer professionals probably constitute a large market for businesses that can tailor their services to a specific group and therefore render them profitable, as the services are considered of value for these professionals.

Traditional laypersons, however, typically do not represent a large market power simply because they will not always be willing to pay for services of this kind. This leaves them to the hands of other stakeholders such as public administrations, research institutes, non-governmental organizations and private initiatives. As already mentioned, conventionally the raw data is supplied by public administrations.  The question, then, is how to deliver it to the end-user.

How?

The Austrian civil code knows two concepts regarding fulfilling one’s part of the contract, Holschuld and Bringschuld. Holschuld means a debt to be collected from the debtor at his residence. Bringschuld constitutes an obligation to be performed at creditor’s habitual residence. In today’s terminology, one could compare Holschuld with pull technology and Bringschuld with push technology. In other words, should the citizens pick up the relevant legal information or should the government actively deliver it at people’s doorsteps, so to speak?

delivery

In the offline paper world, the only way to reach a citizen was to send a letter to her or his house. Obviously, information technology offers many more possibilities when it comes to communicating with citizens, either via a computer or even a mobile phone, taking privacy concerns into consideration.

Several e-government and initiatives (video feed from European Parliament sessions and EU’s channel at Youtube) increase the public participation and insight into politics. While these programs are an important contribution to democracy, they typically do not facilitate daily encounters with legal issues of employment, family, consumer, taxes or housing, or provide citizens with the necessary information to do so.

In this respect, technologies enabling interactivity and re-use of public information are of greater importance, the latter also being a strategic concern of the European Union.  In particular, semantic technology offers solutions for transforming raw data into comprehensible information for citizens. Here, practical examples that utilize at least part of this technology can also be found within e-government projects as well as in private initiatives.

The next step would be law being built into the code already. Intelligent agents negotiate the most advantageous terms and conditions for their owner, cars prevent being switched on if the driver exceeds the permitted alcohol level (Ignition interlock device) and music songs do not play unless your device is authorized (iTunes).

So, from a technological point of view, anything from presenting legal information on a website to implementing law directly into the end device is possible. In practice, though, most governments are content with providing textual legal information, at best in a structured format so it can be re-used easier. The technical implementation of more advanced functions is often left to other market players and businesses.

There are two initiatives in this respect that are worth mentioning, one being a true private project in Sweden and the other one being provided by the Austrian government.

Lagen.nu (law now) has been around for some time now as a private initiative offering free access to Swedish legislation and case law. Recently the site was extended by adding commentaries to specific statutes, which should enable laypersons to understand certain legislation. The site includes explanations for certain terminology and particular comments are also categorized and include links to other laws and cases.

The other example, HELP, a service provided by the Austrian Government Agency, structures and presents legal information depending on the factual situation, e.g. it contains categories such as employment, housing, education, finances, family and social services. The relevant legal requirements are then explained in plain text and the responsible authority is listed and linked to.  In some cases the necessary procedure can even be initiated through the web site.

Both projects are fine examples of the possible transformation of legal information from pull to push technology. They are not quite there yet, though.

The answer

The question we are faced with now is not so much how or which technique would be the best, but rather in which situation a citizen might need certain legal information. Somebody trying to purchase a book via a web site might need information at that moment, and either as a warning text or a check list or its intelligent agent, the purchaser might go to another web site that has better ratings and more favorable legal terms and conditions and no pending law suits. In some other cases, the citizen might need certain information in a specific situation right at the spot.  For example, while filling out a form she or he might want to know what would be most favorable choice, rather than simply the type of personal data required for the form. Depending on the situation, different approaches might be more valuable than others.

The larger issue at hand is where the information is retrieved and who is the provider of the information. In other words, trust is an important factor, particularly trust of the information provider. As previously stated, legal information is not usually provided by public bodies but instead is rerouted through various other entities, such as businesses, organizations and individual efforts. This increases the importance of source criticism even more.

In many cases citizens will use general portals such as Google or Wikipedia to search for information, rather than going directly to the source, most often because citizens are not aware of the services offered. This underlines the importance for legal information providers to co-operate with other communication channels in order to increase their visibility.

The necessary legal information is out there, it just remains to be seen if and how it reaches the citizens. Or to put it in other words: The prophet still has to come to the mountain, but in time, with the increasing use of technology, maybe the mountain will come a bit closer.

ChristineKirchberger

Christine Kirchberger has been a junior lecturer at the Swedish Law and Informatics Research Institute, Stockholm University) since 2001. Besides teaching law and IT she is currently writing her PhD thesis on Legal information as a tool where she focuses on legal information retrieval, the concept of legal information within the framework of the doctrine of legal sources and also takes a look at the information-seeking behavior of lawyers.

VoxPopuLII is edited by Judith Pratt.

Recently, LexUM, SAFLII and friends commenced a global study on Free Access to Law. It poses the pertinent question: is free access to law here to stay? The goal of the project is to produce a best-practices handbook, collect open-access case studies, and publish an online library on the subject.  The ultimate aim of all these activities is to enable future free access to law projects to choose best practices and adapt to local contexts that may have more in common than it initially appears.

This April we kicked off the project in the beautiful African bush with three days of introspection, sharing (for the teenage LIIs) and learning (for the toddler LIIs).

The project seeks to study and link two central concepts – the concept of success of a free access to law project and the concept of sustainability. Ivan Mokanov, who wrote the original project proposal, puts forward a simple thesis that relates the two:

By making law freely available, a legal information institute (LII) produces outcomes that benefit its target audience, thereby creating incentives among the target audience or other stakeholders to sustain the LII’s ongoing operations and development.

Linking free delivery of legal information to core benefits such as  support for the rule of law, open and accountable government and the importance of reducing insecurity in economic life can be difficult. Defining the subtler aspects of success thus involves exploration and new methodologies.

In a broad definition, sustainability is seen as the ability to deliver services that provide sufficient value to their target audience, so that either that audience or other stakeholders acting on its behalf choose to fund the ongoing operation and evolution of that service.

The project looks at a sustainability chain:

The Sustainability Chain Cycle

The words and brilliant logic of fictional psychopath Hannibal Lecter to Clarice Starling in The Silence of the Lambs  might serve as a guide to the sustainability chain:

First principles, Clarice. Simplicity. Read Marcus Aurelius. Of each particular thing ask: what is it in itself? What is its nature? What does he do, this man you seek?

The Need
Start with a need or a problem which a LII has to address. An often seen example in my part of the world is a country completely lacking any structures for providing legal information, even commercial print publishers. Sometimes, too, legal information is available, and sometimes freely so, via official printers, government bodies or other creators of the information, but that availability does not necessarily equate to usability.

Different stages of development highlight different needs, and the sustainability chain gives equal weight to addressing each. A free access to law project is just as successful if it manages to provide up=to-date information to judges who until recently applied the law from their 1970s law school textbooks as it is if it provides a state-of-the-art point in time legislation service to practicing lawyers. There seems to be an agreement that, as it grows through its stages of development -- as Tom Bruce kindly defined them: establishment, incubation and “going concern” -- a sustainable LII closes a chapter of success and continues on to respond to a new need within its target audience.

The Environment
The context in which an LII operates is equally important in determining the success and subsequently the sustainability of a free access to law operation. An LII will thrive in an environment that provides rich data sources, and is amenable to and capable of reform and change, with a policy and legal framework favourable to the free dissemination of legal information. To bring this to the nitty-gritty level – a free access to law project needs support all the way from the political top down to the secretary and clerk of the court.

An important environmental indicator is the availability of an infrastructure to support circulation of information. LIIs operating in developing countries often face the roadblock of lack of technology or lack of knowledge of the use of technology at the source. While computers have made their way into most judges' chambers and courtrooms, most are not connected to the Internet, or if they are, the connections are so slow as to bar convenient use. A judge once relayed that in the rural areas, courts, well-computerized using donor money, are unable to make use of the technology due to lack of electricity. It is not unheard of a clerk or court secretary to delete judgments from a computer once they have been printed, thus leaving one single hard copy of a judgment for the court files.

Developing countries’ LIIs, as aptly pointed by my colleague Kerry Anderson in a post below, often involves getting information from this:

The Gutenberg Press into this Data

This inevitably begs a couple or more open questions for a "toddler" LII:

Who should foot the bill for the expensive digitization of legal material?

It has been the norm since the Middle Ages that the rulers of the land make the laws known to the subjects and citizens (I tend to include lawyers and government officials in the plebs) . But -- assuming that it even recognizes this obligation, as the government of South Africa does -- how does a cash-strapped government of a developing country fulfill its obligation to do so?  Donors donating directly to government to set up law reporting or print legislation? Donors via support for a LII? The interested public via support for a LII?

Would a successful strategy for a LII be to, first and foremost, address the policy and technology issues of provision of digital information?

Digitizaion of print materials and/or manual capturing of metadata, for example, cannot be deemed a successful strategy in the long run - it is simply uneconomical to continue to do so past a certain stage. Engaging stakeholders in education of use of technology or development of IT solutions to support workflows for delivering of judgments or passing legislation may be a way of dealing with issues of digitizing and automating delivering of law to the public. Standards of preparation of legal material, such as the ones developed by the Canadian Citation Committee or the endeavours of the Africa i-Parliaments project, adopted by all originators of legal information in a particular jurisdiction, will ease its dissemination and re-use. Campaigning for the passing policy or legislation, such as the PSI Directive, may be another strategy for a LII to enhance the efficacy of its operations.

How does an NGO engage with government over the digitization strategy?

The Ability

The need is recognized, we have a favourable environment for operations. Now, how does a lawyer, frustrated by the lack of user-friendly legal resources, with little to no know-how, convert the circumstances to a successful and sustainable free access to law project?

An LII needs to have the ability to respond to the need for legal information on at least two levels: organizational and technological.   At the  organizational level, a free access to law project needs to have organizational structure and support that is responds correctly to the context in which the project operates.

What are the benefits of the different organizational structures? Are they dependent on the development stage of an LII?

Among the members of the project’s workshop group, there seemed to be an agreement on the need for any new access to law project to possess adequate technology (in general),  and to possess or have access to legal information technology and expertise. The right technological and information-standards choices for particular environments are crucial to the correct response to the audience’s need.  While this carries a positive connotation, an emerging free access to law project needs to learn also to respond to user feedback in a measured way, and sometimes to even say NO.

Availability of Financial Resources

This couple-of-hundred-thousand-dollar question is one that every LII – from babies to teenagers – asks every financial cycle. Free access to law is quite expensive. While the product can be free, as in free beer, the process of creating the value and benefit to the audience can be quite expensive.

The ability of any LII to financially plan a few years ahead is crucial to the success of the project. It is important to have an audience that has identified value in a free access to law project – be it lawyers (CanLII and to an extent AustLII), or in addition to the preceeding, advertisers and aligned services (LII), or government (Kenya Law Reports), or international donors (SAFLII) , or individuals and lawyers (OpenJudis). Holding on to an audience and maintaining its willingness to pay relies on maintaining and improving existing product value. It is also crucial that money is spent in the right places.

The Handbook to be produced at the end of this study will identify how successful LIIs allocate budgets, according to value produced and how and who supports creation of specific benefits.

The next 6-8 months
In the next six to eight months the research team consisting of Dorsaf El Mekki (LexUM), Bobson Coulibaly (JuriBurkina, West Africa), Prashant Iyengar (Centre for Internet and Society, India), myself at SAFLII and a number of researchers from Namibia, Uganda, Zimbabwe and Kenya, will endeavour to collect data via interviews, questionnaires, case studies and web statistics on a number of indicators to reinforce the assumptions and prove the hypotheses of the study into free access to law – a study very much needed.

Mariya Badeva-Bright is the Head of Legal Informatics and Policy at the
Southern African Legal Information Institute (SAFLII). She is a
sessional lecturer at the School of Law, University of the
Witwatersrand
, South Africa where she teaches the LLM course in Cyberlaw
and the undergraduate course in Legal Information Literacy.
Ms. Badeva-Bright received her Magister Iuris degree from Plovdiv
University
, Bulgaria and an LL.M degree in Law and Information
Technology from Stockholm University, Sweden.

VoxPopuLII is edited by Judith Pratt.

The making of law is a quintessentially public activity. The suggestion that any private person or group owns the law-making process is a cynical one—if it were true, there would something deeply wrong with the state.

At first blush, then, “public legal information” seems to be redundant. If it’s legal information, then of course it’s public. Even since Hammurabi inscribed his code of laws on a large stone and placed it in a public place for all to read, it’s been understood that public dissemination is part of the law-making process. Thus, when we discover that the dissemination of legal information is largely in the hands of private, profit-making publishing companies, it’s only natural to think of this as a worrisome condition. Somehow, it seems, private interests have appropriated a public function, and something ought to be done to return legal information to its proper public status.

My purpose in this blog entry (which must absolutely not be confused with the purpose, policy, or opinion of my employer, or anyone else for that matter) is neither to support nor oppose the notion that legal information should become more public or less private. It is, instead, to reflect on why the dissemination of legal information, at least in the United States, became a subject of private commerce, and to say a few words about the relationship between public legal information services like the LII and commercial law publishers.

One way of explaining the prevalence of private legal information is as a default of the public authorities. The government that makes the law had the responsibility to disseminate it, but it didn’t, and so private publishers stepped in to fill the need. There is an element to truth to this, but I don’t think it tells the whole story. It is true that various law-making bodies have, from time to time, seemed to decide that their responsibility to promulgate the law extended no further than ensuring that the law was somehow available to the public—that it was open for inspection in a clerk’s office, perhaps, or even just that it was spoken in a public place. As long as the law was not kept secret, it was public enough.

But before we criticize the government too harshly for failing to take the steps needed to make the law actually known to the public rather than simply theoretically available, consider what those next steps are. Let’s look first at the situation before the coming of electronic publishing.

For about the first two hundred years of the republic, the only practical way to disseminate the law was in print. And the process of printing the law has two elements that are inextricably intertwined: the mechanical tasks of setting type, printing pages, binding leaves into a book, and so forth; and the editorial task of deciding what the printed book would contain, and how it would be organized.

The making the law is a quintessentially public function, and the mechanical parts of book production can be done as readily by the government as by anyone else. But the task of editing the law is inherently difficult for governments to perform. It’s hard enough for a representative body of elected officials to decide what the text of the law is. Deciding what law should be published in what volume, how it should be arranged within the volume, and what indexing and abstracting should be applied to it are tasks of a complexity and delicacy that make them very difficult for collective decision-makers.

Consider, for example, the fairly common situation in which a state makes official publication of its session laws, but leaves the publication of the codification of those laws to private publishers. The printing of session laws requires a relatively low level of editorial judgment—the laws are printed one after another in the order they were passed or signed by the governor. If an index is provided, it doesn’t need to be a very good index, because, as a practical matter, almost no one is going to use it. The task of printing session laws is often contracted to private publishers, but it can also be done quite satisfactorily by the government itself if the government has the necessary expertise in the mechanical aspects of book production.

Now, a state with published session laws has done considerably better than one that simply makes laws available for inspection in the office of the legislative clerk, but it still falls far short of making those laws known to the public. No one learns the state of the law by reading the session laws if a code is available. And producing a code requires a much higher degree of editorial judgment in the selection, arrangement, and indexing of its contents.

The federal government and some states have taken charge of the basic aspects of the codification process for statutes. And sometimes, as with the United States Code, there is an officially-produced version of the codified laws. But even this is never the resource of choice for those who wish to learn the state of the law. Even if there is an official code available, legal researchers much prefer to use an annotated code—a code which has the basic structure of the official code, but which enhances it a much broader array of editorial aids, chiefly in the form of annotations and detailed indexes. And very few legislatures publish official annotated codes.

Private publishers came to dominate the task of making the law known because they excel at the editorial functions needed to make a large body of law intelligible to those who wish to learn the law. It is not impossible for public bodies to edit the law, but they’re not very good at it. Even where public law publishing has not been made largely irrelevant by the products of the private publishers, its editorial quality is suspect. My favorite example of this is the official index to the Federal Register—it is not a subject index, it’s an agency index. This illustrates one the problems of public law publishing: from a bureaucratic point of view, what’s important is not what the law is about, but who made it.

Private law publishers were better than the government at the essential editorial tasks necessary to make the law known. And making the law known is a task that admits of degrees. A person with access to the Statutes at Large and the Federal Register had, in some sense, the wherewithal to know the federal tax laws of the United States. A person with access to the United States Code and the Code of Federal Regulations would have found the task much easier. A person with access to United States Code Annotated (or United States Code Service) and the Code of Federal Regulations Annotated would do better still. But no serious tax practitioner would venture into the area without access to one of the premier loose-leaf sets like the United States Tax Reporter or the CCH Standard Federal Tax Reporter.

In the world of paper law publishing, no matter what level of service the government chose to provide, there would always be (at least for areas of the law of wide interest or high value) commercial offerings that were better than the official ones. This might not be the case if the law were simple, straightforward, and easy to understand. But in the real world, the law is almost always so complicated and voluminous that it’s all but incomprehensible without a good measure of editorial guidance.

Thus, the state of the legal information world before the coming of computers was one where there was a limited amount of official publication, but in which nearly all of the most useful and valuable information tools were produced by private companies. Notwithstanding the private status of the publishers, the law publishing industry was seen by many people as a quasi-public activity. All of the major players made it a point to cultivate a public-service image for the enterprise, and a reputation for both punctilious accuracy and strict neutrality.

OK, so much for the world of paper books occupied by our ancestors. How much of this is still relevant in the age of the internet? Most of it, I think.

With the coming of the internet and advanced text-processing tools, the mechanical tasks associated with the production of paper books have largely been supplanted. No one needs to know how to set type, print pages, or bind books in order to create a useful public legal information resource on the internet. But the mechanical aspects of book production were never the real problem. In order for a public legal information resource on the internet to be able to take the place of private law publishers, there also needs to be a good technological substitute for the editorial component of law publishing.

For a while, this seemed possible to many people. Lexis became a major legal information resource without any significant investment in editorial work. The Saltonian orthodoxy that held sway in the information retrieval community from the 1960s though the 1980s taught that the days of manual intellectual indexing were numbered—that the future belonged to clever free text algorithms. But beginning with the Blair and Maron paper in 1985, it has become increasingly clear that, though exceedingly useful, free text retrieval techniques are not a complete substitute for intellectual indexing. The death knell for the Saltonian outlook sounded a few years ago when Lexis decided that it needed to add a measure of intellectual indexing to its main case law databases. Lexis, which founded its business on the idea that free text provided adequate access to the law, and which spent years pooh-poohing the intellectual indexing offered by Westlaw, threw in the towel. Perhaps there will, one day, be technology that obviates the need for human editorial effort, but that horizon is now too distant for company that aspires to provide high-end legal information today.

The hope of liberating legal information from the private sector was, I think, greatly influenced by the early success of Lexis. With the coming of the internet and some related technologies, it became apparent that the functional equivalent of the early Lexis system could be assembled at relatively low cost by anyone who cared to do so. And as long as Lexis seemed to prosper without making any investment in editorial resources, it seemed reasonable that a public legal information resource could follow in its wake. Now, however, that most people have lost the technological optimism of the Saltonians, it is less easy to see how a public resource can reasonably compete with the offerings of the major private publishers.

Now a sophisticated tax practitioner would not attempt to do serious research without having access to the full array of tax information available through an electronic resource like Checkpoint, or Westlaw, or Lexis.  And many would insist on having access to more than one of these services, and to a number of others besides. Electronic publication has not made the products of the private publishers dispensable, it’s just changed the list of indispensable resources, and inspired the creation of some new ones.

I don’t mean to suggest that the availability of the new crop of public (and low-cost commercial) legal information resources has had no effect on legal research—far from it. But that effect has not, for the most part, been to make legal research simpler and less expensive: sometimes it’s simpler and cheaper, but just as often it’s more complex and more expensive. The unambiguous effect is that legal research is, or at least can be, better.

There are any number of respects in which legal research has gotten better in recent years—let me just mention one obvious example. There was a time when few people cared that the paper citation indexes everyone relied on were months out of date—there was only one way to check citations, so that one way was good enough. One of the first major effects of electronic publishing on actual research practice was to make it possible, and thus needful, to verify citations to within days, or sometimes hours or even minutes, rather than months.

The effect of the public legal information movement has not been to supplant commercial services, but to drive them to innovate. If basic legal information is freely available, the only way to make money in the segment is to offer more. If the goal of the LII is to put Westlaw and Lexis out of business, LII is bound to fail. But LII can, and does, make legal information better and more available. The new low-end providers like Loislaw are pushed to provide more because they need to be better than LII. Lexis has been pushed to offer more, because it has to be better than Loislaw. And Westlaw has been pushed to offer more because it has to be better than Lexis.

LII is important to legal information not because it’s the best service, but because it alters the ecology of the legal information market. It makes everyone else better. And when it gets better, everyone else will get better still.

dabney.jpgDan Dabney is Senior Director for Classification at Thomson Reuters
Global Resources in Zug, Switzerland.  Dan has a law degree and a Ph.D.
in library and information studies, and worked as a lawyer, a law
librarian, and a library school professor before entering the private
sector.  He was one of the principal designers of KeyCite.

VoxPopuLII is edited by Judith Pratt

On the 30th and 31st of October 2008, the 9th International Conference on "Law via the Internet"met in Florence, Italy. The Conference was organized by the Institute of Legal Information Theory and Techniques of the Italian National Research Council (ITTIG-CNR), acting as a member of the Legal Information Institutes network (LIIs). About 300 participants, from 39 countries and five continents, attended the conference.   The conference had previously been held in Montreal, Sydney, Paris, and Vanuatu.

The conference was a special event for ITTIG, which is one of the institutions where legal informatics started in Europe, and which has supported free access to law without interruption since its origin. It was a challenge and privilege for ITTIG to host experts from all over the world as they discussed crucial emerging problems related to new technologies and law.

Despite having dedicated special sessions to wine tasting in the nearby hills (!), the Conference mainly focused on digital legal information, analyzing it in the light of the idea of freedom of access to legal information, and discussing the technological progress that is shaping such access. Within this interaction of technological progress and law, free access to information is only the first step -- but it is a fundamental one.
Increased use of digital information in the field of law has played an important role in developing methodologies for both data creation and access. Participants at the conference agreed that complete, reliable legal data is essential for access to law, and that free access to law is a fundamental right, enabling citizens to exercise their rights in a conscious and effective way. In this context, the use of new technologies becomes an essential tool of democracy for the citizens of an e-society.

The contributions of legal experts from all over the world reflected this crucial need for free access to law. Conference participants analysed both barriers to free access, and the techniques that might overcome those barriers. Session topics included:

In general, discussions at the conference covered four main points. The first is that official free access to law is not enough. Full free access requires a range of different providers and competitive republishing by third parties, which in turn requires an anti-monopoly policy on the part of the creator of legal information. Each provider will offer different types of services, tailored to various public needs. This means that institutions providing legal data sources have a public duty to offer a copy of their output -- their judgments and legislation in the most authoritative form -- to anyone who wishes to publish it, whether that publication is for free or for fee.

Second, countries must find a balance between the potential for commercial exploitation of information and the needs of the public. This is particularly relevant to open access to publicly funded research.

The third point concerns effective access to, and re-usability of, legal information. Effective access requires that most governments promote the use of technologies that improve access to law, abandoning past approaches such as technical restrictions on the reuse of legal information. It is important that governments not only allow, but also help others to reproduce and re-use their legal materials, continually removing any impediments to re-publication.

Finally, international cooperation is essential to providing free access to law. One week before the Florence event, the LII community participated in a meeting of experts organised by the Hague Conference on Private International Law's Permanent Bureau;  a meeting entitled “Global Co-operation on the Provision of On-line Legal Information.” Among other things, participants discussed how free, on-line resources can contribute to resolving trans-border disputes. At this meeting, a general consensus was reached on the need for countries to preserve their legal materials in order to make them available. The consensus was that governments should:

  • give access to historical legal material
  • provide translations in other languages
  • develop multi-lingual access functionalities
  • use open standards and metadata for primary materials

All these points were confirmed at the Florence Conference.

The key issue that emerged from the Conference is that the marketplace has changed and we need to find new models to distribute legal information, as well as create equal market opportunities for legal providers. In this context, legal information is considered to be an absolute public good on which everyone should be free to build.

Many speakers at the Conference also tackled multilingualism in the law domain, highlighting the need for semantic tools, such as lexicons and ontologies, that will enhance uniformity of legal language without losing national traditions. The challenge to legal information systems worldwide lies in providing transparent access to the multilingual information contained in distributed archives and, in particular, allowing users express requests in their preferred language and to obtain meaningful results in that language. Cross-language information retrieval (CLIR) systems can greatly contribute to open access to law, facilitating discovery and interpretation of legal information across different languages and legal orders, thus enabling people to share legal knowledge in a world that is becoming more interconnected every day.

From the technical point of view, the Conference underlined the paramount importance of adopting open standards. Improving the quality of access to legal information requires interoperability among legal information systems across national boundaries. A common, open standard used to identify sources of law on the international level is an essential prerequisite for interoperability .

In order to reach this goal, countries need to adopt a unique identifier for legal information materials. Interest groups within several countries have already expressed their intention to adopt a shared solution based on URI (Universal Resource Identifier) techniques. Especially among European Union Member States, the need for a unique identifier, based on open standards and providing advanced modalities of document hyper-linking, has been expressed in several conferences by representatives of the Office for Official Publications of the European Communities (OPOCE).

Similar concerns about promoting interoperability among national and European information systems have been aired by international groups. The Permanent Bureau of the Hague Conference on Private International Law is considering a resolution that would encourage member states to "adopt neutral methods of citation of their legal materials, including methods that are medium-neutral, provider-neutral and internationally consistent." ITTIG is particularly involved in this issue, which is currently running in parellel with the pan-European Metalex/CEN initiative to define standards for sources of European law.

The wide discussions raised during the Conference are collected in a volume of Proceedings published in April 2009 by European Press Academic Publishing - EPAP.

-- E. Francesconi ,G. Peruginelli

Ginevra Peruginelli

Ginevra has a degree in law from the University of Florence, a MA/MSc Diploma in Information Science awarded by the University of Northumbria, Newcastle, UK and a Ph.D. in Telematics and Information Society from the University of Florence. Currently she is a researcher at the Institute of Legal Theory and Techniques of the Italian National Research Council (ITTIG-CNR). In 2003, she was admitted to Bar of the Court of Florence as a lawyer. She carries out her research activities in various sectors, such as standards to represent data and metadata in the legal environment; law and legal language documentation; and open access for law.

Enrico Francesconi

Enrico is a researcher at ITTIG-CNR. His main activities include knowledge representation and ontology learning, legal standards, artificial intelligence techniques for legal document classification and knowledge extraction. He is a member of the Italian and European working groups establishing XML and URI standards for legislation. He has been involved in various projects within the framework programs of DG Information Society & Media of the European Commission and for the Office for Official Publications of the European Communities.

VoxPopuLII is edited by Judith Pratt

vanuatu.jpgLast year, I had the incredible opportunity of spending five weeks in Port Vila, Vanuatu, working on a research project to evaluate the impact of free access to law in the Pacific Islands. While  spending part of my days at the Law Faculty of the University of the Pacific (the other part I spent at the beach), I came to realize that most academics present were  working in the Pacific Languages Unit, another teaching program based at the Emalus Campus of the University. Linguists, anthropologists and ethnologists  have undertaken the large task of deciphering, writing down and analyzing some of the approximately 110 different languages that are still spoken by the 215,000 Ni-Vanuatu. With an average of 1,700 speakers for each language in 1996, Vanuatu has the world record for language density.

Apart from the beaches, the reason for the recent scientific interest in the numerous languages of this otherwise unknown archipelago is that many of them are at risk of disappearing. Some, such as Ifo, have already become extinct. Others, like Araki, will die in the years to come along with village elders. Young people instead choose to speak Bislama, a English-based Creole that is more widely disseminated. Many inhabitants also speak either English or French, a legacy of the British-French Condominium under which these islands were ruled for several decades.

This depressing reality is the most obvious sign that the once vibrant Ni-Vanuatu cultures are dying—not from a slowly evolving cancer, but from a dazzling flesh-eating disease. We cannot even take the comforting position that this phenomenon is limited to a few distant islands, because it is symptomatic in a large number of countries. This is not even limited to the developing world. Native American Indians are in the same situation. I personally live only a few kilometers from lands granted to the Mohawk Nation and can tell you that aside from a sign near the town hall, you would never guess that Mohawks have their own language.

Although language is the most visible component of cultural identity, the arts are another universally recognized reflection of a culture.  (Hollywood movie producers show their “concern” for this by trying to convince us that file sharing is a major threat to culture!) But for French Canadians like me, law can be also be added to that list. When the British Crown granted the Act of Quebec in 1774, it not only allowed French Canadians to keep their language and religion, but also their legal system (at least in private matters). Without this document, the French culture would have certainly declined and maybe disappeared from North America over the next two centuries. It is a paradox that the Act of Quebec sprang from the troubled years preceding the birth of our giant neighbor, which is now the biggest threat to our culture. Still, our ancestors managed to keep their own law accounts for the preservation of such legal concepts as unjust enrichment or the obligation to assist a person in danger. The evolution of these laws through a few centuries of intellectual isolation has uniquely shaped our legal system and continuously reflects the values of the people of Quebec. In the end, although the French Canadian accent is more often associated with our cultural identity, our dual legal system (common law / civil law) undoubtedly contributes to it.

If you admit that legal systems are subcomponents of cultures, there is no question that their diversity should be protected, or at least promoted. Unfortunately, the trend has been going in the opposite direction for a long time. Many legal systems have disappeared with the rise of moderns states. Many more vanished during the colonial era, as it spread common law and civil law all around the globe. But more recently, it is the lack of accessibility in a period characterized by the free flow of information that is causing most of the damages to legal diversity. While the laws and customs of many countries in the developing world are still difficult to find at all, especially in electronic forms, the legal documents that are the most easily accessible on the Internet receive unprecedented attention. For example, all across French-speaking Western Africa, French jurisprudence is more often cited than local law. This can be explained by the simple fact that local decisions are generally impossible to access. In Burkina Faso, the only remaining copies of historical decisions from the Cour de Cassation are piled under a staircase (at least they were in 2004 when I last visited the building). In contrast, every decision rendered since 1989 from the equivalent French court is freely accessible online on Legifrance, and all those published in the court bulletins are also available up to 1960. Another illustration of this problem is the ever-increasing number of citations of the decisions of the European courts at the international level. Without any doubt, the new leadership taken by these institutions, particularly in the field of humanitarian law, is a major factor in this phenomenon. But the fact that many of these decisions are freely distributed online in 23 different languages cannot be ignored either.

These two illustrations quickly help to expose a fact that is becoming harder and harder to deny: the accessibility of legal information influences what the law is and how it evolves. It does so internally by generating competition for authority among the various recognized legal sources. It does so externally by facilitating the incorporation of foreign legal concepts or doctrines that are more effectively disseminated. The examples given above also underline the crucial role played by the Internet and free access to law in this equation. When it comes to finding legal material to cite, jurists prefer to search libraries, rather than underneath staircases. They prefer to browse online instead of walking among alleys of books. They prefer freely accessible websites to highly expensive databases. The goal here is not to openly attack the prevalent legal theories, beliefs in the hierarchy of norms, or the importance of conducting all-inclusive legal research. But these findings imply that jurists do not hesitate to bend the pillars of legal positivism when confronted with necessity.

That brings me back to Vanuatu and the Pacific Islands. In this region, most countries acquired their independence after the end of the Second World War, and inherited the common law as the basis for their own legal system. Local rules of conflict resolution were not totally annihilated by colonization, but were instead relegated to unofficial proceedings or trivial matters. With independence, we could hope that the local, customary rules that remain significant in the modern world would somehow resurface in a system of judge-made law. But this is wishful thinking that ignores the accessibility issue. First, customary law being unwritten by definition, its accessibility was hindered right from the start. Second, for years judges, lawyers and other legal practitioners from the Pacific almost exclusively had access to case reports printed in the United Kingdom. A few local initiatives at case reporting did occur over the last few decades, but the coverage was irregular and far too small to sustain a modern state’s appetite for precedents. Third, it should be added that many foreign judges who have never been confronted with the local customs and traditions remained in position up to very recently. For these reasons, jurists from the Pacific continued to apply the latest British judgments as if it was the law in force in their own countries.

Fortunately, the Internet has brought changes in this regard. In 1997, the law library of the University of the South Pacific started to publish online cases collected from many of the jurisdictions of the region. The database grew steadily and around 2001 the Pacific Legal Information Institute (PacLII) was created in order to expand the experiment. Today, PacLII publishes more than 30,000 cases from 15 different Pacific island countries, in addition to legislative and treaty material. For most of these countries, PacLII is the sole point of access to national legal information.

In the course of my stay there I compiled the usage statistics of the PacLII website. My initial goal was to determine if local cases are downloaded by locals or instead by international users looking for foreign legal information. It turned out that five Pacific island countries are intensive users of the decisions disseminated on PacLII: Fiji (71); Vanuatu (62); Samoa (47); Kiribati (33); and Salomon Islands (21). (The number between parenthesis is the number of actual decision files downloaded for 1,000 inhabitants in 2007.) Not surprisingly, those five countries are the ones for which PacLII has the more comprehensive databases. The only exception is Papua New Guinea, where an alternative national publisher also provide online access to cases.

More relevant for legal diversity are the numbers that came out of my analysis of citations included inside the local judgments rendered over the period 1997-2007. In parallel with the development of PacLII, citations of national decisions increased by 42% in the five countries already mentioned. Citations of regional decisions (citations from other Pacific Islands countries) increased by 462%, although they still occur only occasionally. In comparison, those percentages stagnate in the other nine countries not using PacLII with equivalent enthusiasm. (Papua New Guinea is excluded here because the national access provider is having its own influence.)

Those numbers indicate that the online dissemination of Pacific Islands cases had a noticeable impact on the legal system of five countries. While it is still too early to write about the creation of a Pacific jurisprudence, there is no doubt that local decisions are slowly but surely replacing foreign cases as the primary source of precedents in those countries. It appears that free access to law has finally reversed the long established trend of ever increasing foreign legal influence in the region.

Even if this new phenomenon is particularly acute in Vanuatu itself, the dying legal cultures of this archipelago will certainly not be saved by this achievement alone. Many specificities of the customary dispute resolution mechanisms originating in the area must have already disappeared definitively, some for the better, some for the worse. Nevertheless, Ni-Vanuatu now possess a means to promote their own vision of what the law is and how it should be implemented. If uses of this new tool do not succeed in salvaging pieces from their traditional legal cultures, at least it should help them building a new one.

Pierre-Paul LemyrePierre-Paul Lemyre is in charge of the research and development activities of LexUM, the research group that runs the Canadian Legal Information Institute ( CanLII). Previously, he was in charge of the business development of LexUM, particularly on the international stage where he built relationships with numerous funding agencies and local partners.

VoxPopuLII is edited by Judith Pratt.

[Ed. - Kerry Anderson has graciously served as our guinea-pig for this first episode of VoxPopuLII, and we thank her for her patience as we've debugged our process.  Full information about VoxPop can be found here, and in the series announcement here]

At its most basic level, a legal information institute obtains primary legal information from the public bodies responsible for producing that information, and makes it available online for free, full and anonymous access.

But what is a legal information institute when the courts from which judgments must be acquired are not themselves always sure where the final copy of the judgment is – either in electronic or in hard copy format?

What is a legal information institute when the courts from which judgments are sourced do not take the responsibility for ensuring that private information, including the names of minors and victims in sexual abuse cases, are removed from the judgments?Lesotho scanning team

What is a legal information institute when the legislation of a country is available only through the purchase of costly subscriptions from a commercial publisher contracted by the Parliament of that country?

What is a legal information institute when the last Law Reports available in a country date from more than 20 years previously? Or not at all?

What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?

All of the above describe situations SAFLII (the Southern African Legal Information Institute) has encountered in its dealings with jurisdictions across Southern and Eastern Africa. We have found ourselves assuming a responsibility for public access to legal information in a way that often places us in a quagmire of jurisprudence and legislative complexity that is at odds with the more traditional interpretation of a legal information institute. In one jurisdiction a minor is someone under 21, in another, under 18. What constitutes private information differs from one jurisdiction to another. Tax legislation requiring privacy is applied to companies in different ways according to the jurisdiction. Courts in Southern and Eastern Africa are notoriously under-funded: they lack computers, resources, and skills for tracking all of this information. Were SAFLII to rely on these courts to amend materials found to be problematic, our cupboard would be bare indeed.

Preparing judgments for scanning in a hotel room in UgandaEven more concerning is the role we have found ourselves assuming of the primary – and only – publisher of legal materials for some countries. Zimbabwe has not been able to publish its Law Reports since 2003 owing to the devastating collapse of infrastructure resulting from the political situation. Swaziland last published Law Reports in the 1980s. Many other countries have out-of-date Law Reports with no resources to continue the Law Reporting function. Others have written more eloquently than I on the necessity of having contextual law, particularly in common law jurisdictions. The point is singular and self-evident: how can the laws of a country be known if the laws of the country are not available?

In finding inventive and creative strategies for dealing with these situations, we have traveled quite far down the rabbit hole. We have conducted scanning projects in some courts to digitize a bulk of material that would otherwise not be available (unless you happen to be visiting Bloemfontein, Maseru or Kampala). We regularly undertake audits of the material on our website and anonymize material in accordance with our published policy – this policy having been developed with the assistance of judges and legal practitioners from the region. We have integrated our workflows with those of some of the courts in our jurisdictions. We have supported, and continue to support, the development of legal reporting structures – sometimes with the public bodies responsible – in countries where these are not available. We are looking at employing students to visit courts on a weekly basis to assist with locating and digitizing judgments handed down that week. We are engaging with lawyers in private practice to source legislation from some jurisdictions.

Of significance is the fact that we have never encountered resistance to the concept of Free Access to Law. The issues I have described relate to shortages of resources, skills and technical infrastructure – but not aspiration. Which is why it is critical that the strategies we employ do not undermine the self-sufficiency of nascent law reporting structures. It is perhaps in the subtleties of how assistance and support is offered that we can find ways to engage that are not overbearing. It takes just one person of vision and determination – a change agent – within a court, a university, a private practice, an NGO or a law reporting committee to unblock the system sufficiently that a legal information institute – whatever your definition – can develop. We therefore see our most important task as being to identify these change agents and to transfer our accumulated knowledge as well as that which we ourselves have been given by other legal information institutes. The transfer of knowledge has taken the form of training, internship and exchange programmes which we aim to grow further.

We have evolved our strategies according to the context in which we operate. Not all of them fit within the conventional LII approach. Some have been found to be questionable. But sometimes, further down the rabbit hole is the only place to go.

kerry_pic.jpgKerry Anderson is the Deputy Director and Head of IT for the Southern African Legal Information Institute (SAFLII). She has worked variously in web development, research and strategy for an advertising agency, IT startups and financial services corporates. She has been known to be a badge-wearing supporter of the Free Software Foundation and is an old-school Perl hacker. She has since applied her skills to the furthering of the aims of Free Access to Law – delighted to have found the perfect synthesis of Law and Code.

She has a BSc in Computer Science, a BComm (Conversion) and an MBA. Her MBA dissertation was on the impact of Open Innovation on software research development clusters in South Africa.

VoxPopuLII is edited by Judith Pratt.