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§.1.- Foreword

«If folksonomies work for pictures (Flickr), books (Goodreads), questions and answers (Quora), basically everything else (Delicious), why shouldn’t they work for law?» (Serena Manzoli)

In a post on this blog, Serena Manzoli distinguishes three uses of taxonomies in law: (1) for research of legal documents, (2) in teaching to law students, and (3) for its practical application.

In regard to her first point, she notes that (observation #1) to increase the availability of legal resources is compelling change of the whole information architecture, and – correctly, in my opinion – she exposes some objections to the heuristic efficiency of folksonomies: (objection #1) they are too “flat” to constitute something useful for legal research and (objection #2) it is likely that non-expert users could “pollute” the set of tags. Notwithstanding these issues, she states (prediction #1) that folksonomies could be helpful with non-legal users.

On the second point, she notes (observation #2) that folksonomies could be beneficial to study the law, because they could allow one to penetrate easier into its conceptual frameworks; she also formulates the hypothesis (prediction #2) that this teaching method could shape a more flexible mindset in students.

In discussing the third point, she notes (observation #3) that different taxonomies entail different ways of apply the law, and (prediction #3) she formulates the hypothesis that, in a distant perspective in which folksonomies would replace taxonomies, the result would be a whole new way to apply the law.

I appreciated Manzoli's post and accepted with pleasure the invitation of Christine Kirchberger – to whom I am grateful – to share my views with the readers of this prestigious blog. Hereinafter I intend to focus on the theoretical profiles that aroused my curiosity. My position is partly different from that of Serena Manzoli.

 

§.2.- Introduction

In order to detect the issues stemming from folksonomies, I think it is relevant to give some preliminary clarifications.

In collective tagging systems, by tagging we can describe the content of an object – an image, a song or a document – label it using any lexical expression preceded by the “hashtag” (the symbol “#”) and share it with our friends and followers or also recommend it to an audience of strangers.

Folksonomies (blend of the words “taxonomy” and “folk”) are sets of categories resulting from the use of tags in the description of on line resources by the users, allowing a "many to many" connection between tags, users and resources.

Basic pattern of a folksonomy

Basic pattern of a folksonomy

 

Thomas Vander Wal coined the word a decade ago – ten years is really a long time in ICTs – and these technologies, as reported by Serena Manzoli, have now been adopted in most of the social networks and e-commerce systems.

The main feature of folksonomies is that tags aggregate spontaneously in a semantic core; therefore, they are often associated with taxonomies or ontologies, although in these latter cases hierarchies and categories are established before the collection of data, as “a priori”.

Simplifying, I can say that tags may describe three aspects of the resources, using particulars  (i.e. a picture of a flowerpot lit by the sun):

(1) The content of the resources (i.e. #flowers),

(2) The interaction with other specific resources and the environment in general (i.e. #sun or #summer),

(3) The effect that these resources have on users having access to them (i.e. #beautiful).

Since it seems to me that none of these aspects should be disregarded in an overall assessment of folksonomies, I will consider all of them.

Having regard to law, they end to match with these three major issues:

(1) Law as a “content”. Users select legal documents among others available and choose those that seem most relevant. As a real interest is – normally – the driving criterion of the search, and as this typically is given by the need to solve a legal problem, I designate this profile with the expression «Quid juris?».

(2) Law as a “concept”. This problem emerges because the single legal document can not be conceived separately from the context in which it appears, namely the relations it has with the legal system to which it belongs. Consequently becomes inevitable to ask what the law is, as a common feature of all legal documents. Recalling Immanuel Kant in the "Metaphysics of Morals",  here I use the expression «Quid jus?».

(3) Law as a “sentiment”. What emerges in folksonomies is a subjective attitude that regards the meaning to be attributed to the research of resources and that affects the way in which it is performed. To this I intend to refer using the expression «Cur jus?».

 

§.3.- Folksonomies, Law, and «Quid juris?»: legal information management and collective tagging systems

In this respect, I agree definitely with Serena Manzoli. Folksonomies seem to open very interesting perspectives in the field of legal information management; we admit, however, that these technologies still have some limitations. For instance: just because the resources are tagged freely, it is difficult to use them to build taxonomies or ontologies; inexperienced users classify resources less efficiently than the other, diluting all the efforts of more skilled users and “polluting" well-established catalogs; vice versa, even experienced users can make mistakes in the allocation of tags, worsening the quality of information being shared.

Though in some cases these issues can be solved in several ways –  i.e., the use of tags can be guided with the tag's recommendation, hence the distinction between broad and narrow folksonomies – and even if it can reasonably be expected that these tools will work even better in the future, for now we can say that folksonomies are useful just to integrate pre-existing classifications.

I may add, as an example, that an Italian law requires the creation of "user-created taxonomies (folksonomies)," "Guidelines for websites of public administrations" of 29 July 2011, page 20.  These guidelines have been issued pursuant to art. 4 of Directive 26th November 2009 n. 8, of the "Minister for Public Administration and Innovation", according to the Legislative Decree of 7 March 2005, n. 82, "Digital Administration Code" (O.J. n. 112 of 16th May 2005, S.O. n. 93). It may be interesting to point out that in Italian law the innovation in administrative bodies is promoted by a specific institution, the Agency for Digital Italy ("Agenzia per l'Italia Digitale"), which coordinates the actions in this field and sets standards for usability and accessibility. Folksonomies indeed fall into this latter category.

Following this path, a municipality (Turin) has recently set up a system of "social bookmarking" for the benefit of citizens called TaggaTO.

 

§.4.- Folksonomies, Law, and «Quid jus?»: the difference between the “map” and the “territory”

In this regard, my theoretical approach is different from that of Serena Manzoli. Here is the reason our findings are opposite.

Human beings are "tagging animals", since labelling things is a natural habit. We can note it in common life: each of us, indeed, organizes his environment at home (we have jars with “salt” or “pepper” written on the caps) and at work (we use folders with “invoices” or “bank account” printed on the cover). The significance of tags is obvious if we consider using it with other people: it allows us to establish and share a common information framework. For the same reasons of convenience, tags have been included in most of the software applications we use (documents, e-mail, calendars) and, as said above, in many online services. To sum up, labels help us to build a representation of reality: they are tools for our knowledge.

In regard to reality and knowledge, it may be recalled that in the twentieth century there were two philosophical perspectives: the “continental tradition”, focused on the first (reality) and pretty much common in Europe, and the “analytic philosophy”, centered on the second (knowledge and widespread among USA, UK and Scandinavia. More recently, this distinction has lost much of its heuristic value and we have seen rising a different approach, the “philosophy of information”, which proposes, developing some theoretical aspects of cybernetics, a synthesis of reality and knowledge in an unifying vision that originates from a naturalistic notion of “information”.

I will try to simplify, saying that if reality is a kind of “territory”, and if taxonomies (and in general ontologies) can be considered as a sort of representation of knowledge, then they can be considered as “maps”.

In light of these premises, I should explain what to me “sharing resources” and “shared knowledge” mean in folksonomies. Folksonomies are a kind of “map”, indeed, but different than ontologies. In a metaphor: ontologies could be seen as “maps” created by a single geographer overlapping the reliefs of many “territories”, and sold indiscriminately to travelers; folksonomies could be seen as “maps” that inhabitants of different territories help each other to draw by telephone or by texting a message. Both solutions have advantages and disadvantages: the former may be detailed but more difficult to consult, while the latter may be always updated but affected by inaccuracies. In this sense, folksonomies could be said “antifragile” – according to the brilliant metaphor of Nassim Nicholas Taleb – because their value improves with increased use, while ontologies could be seen as "fragile", because of the linearity of the process of production and distribution.

Therefore, as the “map” is not the “territory”, reality does not change depending on the representation. Nevertheless, this does not mean that the “maps” are not helpful to travel to unknown “territories”, or to reach faster the destination even in “territories” that are well known (just like when driving in the car with the aid of GPS).

On the application of folksonomies to the field of law, I shall say that, after all, legal science has always been a kind of “natural folksonomy”. Indeed, it has always been a widespread knowledge, ready to be practiced, open to discussion, and above all perfectly “antifragile”: new legal issues to be solved determine a further use of the systems, thus causing an increase in knowledge and therefore a greater accuracy in the description of the legal domain. In this regard, Serena Manzoli in her post also mentioned the Corpus Juris Civilis, which for centuries has been crucial in the Western legal culture. Scholars went to Italy from all over Europe to study it, at the beginning by noting few elucidations in the margins of the text (glossatores), then commenting on what they had learned (commentatores), and using their legal competences to decide cases that were submitted to them as judges or to argue in trials as lawyers.

Modern tradition has refused all of this, imposing a rationalistic and rigorous view of law. This approach – “fragile”, continuing with the paradigm of Nassim Nicholas Taleb – has spread in different directions, which simplifying I can lower to three:

(1) Legal imperativism: law as embodied in the words of the sovereign.

Leviathan (Thomas Hobbes)

Leviathan (Thomas Hobbes)

(2) Legal realism: law as embodied in the words of the judge.

 

Gavel

Gavel

(3) Legal formalism: law as embodied in administrative procedures.

 

The Castle (Franz Kafka)

The Castle (Franz Kafka)

For too long we have been led to pretending to see only the “map” and to ignore the “territory”. In my opinion, the application of folksonomies to law can be very useful to overcome these prejudices emerging from the traditional legal positivism, and to revisit a concept of law that is a step closer to its origin and its nature. I wrote “a step closer”; I'd like to clarify, to emphasize that the “map”, even if obtained through a participatory process, remains a representation of the “territory”, and to suggest that the vision known as the "philosophy of information" seems an attempt to overlay or replace the two terms – hence its “naturalism” – rather than to draw a “map” as similar as possible to the “territory”.

 

§.5- Folksonomies, Law and «Cur jus?»: the user in folksonomies: from “anybody” to “somebody"

This profile does not fall within the topics covered in Manzoli’s post, but I would like to take this opportunity to discuss it because it is the most intriguing to me.

Each of us arranges his resources according to the meaning that he intends to give his world. Think of how each of us arrays the resources containing information that he needs in his work: the books on the desk of a scholar, the files on the bench of a lawyer or a judge, the documents in the archive of a company. We place things around us depending on the problem we have to address: we use the surrounding space to help us find the solution.

With folksonomies, in general, we simply do the same in a context in which the concept of “space” is just a matter of abstraction.

What does it mean? We organize things, then we create “information”. Gregory Bateson in a very famous book, Steps to an Ecology of Mind – in which he wrote on “maps” and “territories”, too – stated that “information” is “the difference that makes the difference”. This definition, brilliant in its simplicity, raises the tremendous problem of the meaning of our existence and the freedom of will. This issue can be explained through an example given by a very interesting app called “Somebody”, recently released by the contemporary artist Miranda July.

The app works as follows: a message addressed to a given person is written and transmitted to another, who delivers it verbally. In other words, the actual recipient receives the message from an individual who is unknown to him. The point that fascinates me is this: someone suddenly comes out to tell that you “make a difference,” that you are not “anybody” because you are “somebody” for “somebody.” Moreover, at the same time this same person, since he is addressing you, becomes “somebody,” because the sender of the message chose him  among others, since he  “meant something” to him.

For me, the meaning of this amazing app can be summed up in this simple equation:

 

“Being somebody” = “Mean something” = “Make a difference”
 

This formula means that each of us believes he is worth something (“being somebody”), that his life has a meaning (“mean something”), that his choices or actions can change something – even if slightly – in this world (“make a difference”).

Returning to Bateson, if it is important to each of us to “make a difference”, if we all want to be “somebody”, then how could we settle down for recognize ourselves as just an “organizing agent”? Self-consciousness is related to semantics and to the freedom of choice: who is not free at all, does not create any “difference” in the world. Poetically, Miranda July makes people talk to each other, giving a meaning to humanity and a purpose to freedom: this is what “making a difference” means for humans.

In applying folksonomies to law, we should consider all this. It is true that folksonomies record the way in which each user arrays available legal documents, but it should be emphasized the purpose for which this activity is carried out. Therefore, it should be clear that an efficient cataloguing of resources depends on several conditions: certainly that the user shall know the law and remember its ontologies, but also that he shall be focused on what he is doing. This means that the user needs to be well-motivated, in order to recognize the value of what he is doing, so that to give meaning to his activity.

 

§.6- Conclusion

I believe that folksonomies can teach us a lot. In them we can find not only an extraordinary technical tool, but also – and most importantly – a reason to overcome the traditional legal positivism – which is “ontological” and therefore “fragile” – and thus rediscover the cooperation not only among experts, but also with non-experts, in the name of an “antifragile” shared legacy of knowledge that is called "law".

All this will work - or at least, it will work better - if we remember that we are human beings.

 

Federico Costantini

Federico Costantini. Lawyer and Researcher in Philosophy of Law (Legal informatics) in the Department of Legal sciences at the University of Udine (Italy). He holds a L.M.M. in Law and a Ph.D. in Philosophy of Law from the University of Padua (Italy).
His research moves among philosophy, computer science and law, focusing primarily on the struggle between technology and human nature.
He teaches Legal Informatics at the Faculty of Law of the University of Udine. His lectures on cyberlaw (especially in privacy, copyright and social networks) are aimed at bringing out the critical profiles of the "Information Society".

 

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed.

Take a look at your bundle of tags on Delicious. Would you ever believe you're going to change the law with a handful of them?

You're going to change the way you research the law. The way you apply it. The way you teach it and, in doing so, shape the minds of future lawyers.

Do you think I'm going too far? Maybe.

But don't overlook the way taxonomies have changed the law and shaped lawyers’ minds so far. Taxonomies? Yeah, taxonomies.

We, the lawyers, have used extensively taxonomies through the years; Civil lawyers in particular have shown to be particularly prone to them. We’ve used taxonomies for three reasons: to help legal research, to help memorization and teaching, and to apply the law.

 

Taxonomies help legal research.

2959826262_9b724b5a72First, taxonomies help us retrieve what we’ve stored (rules and case law).

Are you looking for a rule about a sales contract? Dive deep into the "Obligations" category and the corresponding book (Recht der Schuldverhältnisse, Obbligazioni, Des contrats ou des obligations conventionnelles en général, you name it ).

If you are a Common Lawyer, and ignore the perverse pleasure of browsing through Civil Code taxonomy, you'll probably know Westlaw's classification and its key numbering system. It has much more concrete categories and therefore much longer lists than the Civilians' classification.
Legal taxonomies are there to help users find the content they're looking for.

However, taxonomies sometimes don't reflect the way the users reason; when this happens, you just won't find what you're looking for.

The problem with legal taxonomies.

If you are a German lawyer, you'll probably be searching the “Obligations” book for rules concerning marriage; indeed in the German lawyer’s frame of mind, marriage is a peculiar form of contract. But if you are Italian, like I am, then you will most probably start looking in the "Persons" book; marriage rules are simply there, and we have been taught that marriage is not a contract but an agreement with no economic content (we have been trained to overlook the patrimonial shade in deference to the sentimental one).

So if I, the Italian, look for rules about marriage in the German civil code, I won't find anything in the “Persons” book.
In other words, taxonomies work when they're used by someone who reasons like the creator or–-and this happens with lawyers inside a certain legal system–-when users are trained to use the same taxonomy, and lawyers are trained at length.

But let's take my friend Tim; he doesn't have a legal education. He's navigating Westlaw's key number system looking for some relevant case law on car crashes. By chance he knows he should look below “torts,” but where? Is this injury and damage from act (k439)? Is this injury to a person in general (k425)? Is this injury to property or right of property in general (k429)? Wait, should he look below “crimes” (he is unclear on the distinction between torts and crimes)? And so on. Do these questions sound silly to you, the lawyers? Consider this: the titles we mentioned give no hint of the content, unless you already know what's in there.

Because Law, complex as it is, needs a map. Lawyers have been trained to use the map. But what about non-lawyers?

In other words, the problems with legal taxonomies occur when the creators and the users don't share the same frame of mind. And this is most likely to happen when the creators of the taxonomy are lawyers and the users are not lawyers.
Daniel Dabney wrote something similar some time ago. Let's imagine that I buy a dog, take the little pooch home and find out that it's mangy. Let's imagine I'm that kind of aggressively unsatisfied customer and want to sue the seller, but know nothing about law. I go to the library and what will I look for? Rules on dogs sale? A book on Dog's law? I'm lucky, there's one, actually: “Dog law”, a book that gathers all laws regarding dogs and dogs owners.
But of course, that's just luck, and  if I had to browse through legal category in the Westlaw's index, I would never have found anything regarding “dogs”. I will never find the word “dog”, which is nonetheless the first word a non-legal trained person would think of. A savvy lawyer would look for rules regarding sales and warranties: general categories I may not know of (or think of) if I'm not a lawyer. If I'm not a lawyer I may not know that "the sale of arguably defective dogs are to be governed by the same rules that apply to other arguably defective items, like leaky fountain pens”. Dogs are like pens for a lawyer, but they are just dogs for a dogs-owner: so a dogs owner will look for rules about dogs, not rules about sales and warranties (or at least he would look for sale of dogs). And dog law, a  user aimed, object oriented category would probably fits his needs.

Observation #1: To make legal content available to everyone we must change the information architecture through which legal information are presented.

Will folksonomies make a better job?
Let's come to folksonomies now. Here, the mismatch between creators (lawyers) and users' way of reasoning is less likely to occur. The very same users decide which category to create and what to put into it. Moreover, more tags can overlap; that is, the same object can be tagged more than once. This allows the user to consider the same object from different perspectives. Take Delicious. If you search for "Intellectual property" on the Delicious search engine, you find a page about Copyright definition on Wikipedia. It was tagged mainly with "copyright." But many users also tagged it with "wikipedia," "law" and "intellectual-property" and even "art". Maybe it was the non-lawyers out there who found it more useful to tag it with the "law" tag (a lawyer’s tag would have been more specific); maybe it was the lawyers who massively tagged it with "art" (there are a few "art" tags in their libraries). Or was it the other way around? The thing is, it's up to users to decide where to classify it.

People also tag laws on Delicious using different labels that may or may not be related to law, because Delicious is a general-use website. But instead, let’s take a crowdsourced legal content website like Docracy. Here, people upload and tag their contracts, so it’s only legal content, and they tag them using only legal categories.

On Docracy, I found out that a whole category of documents that was dedicated to Terms of Service. Terms of Service is not a traditional legal category—-like torts, property, and contracts—-but it was a particularly useful category for Docracy users.

Docracy: WordPress Terms of Service are tagged with "TOS" but also with "Website".

Docracy: WordPress Terms of Service are tagged with "TOS" but also with "Website".

If I browse some more, I see that the WordPress TOS are also tagged with "website." Right, it makes sense; that is, if I'm a web designer looking for the legal stuff I need to know before deploying my website. If I start looking just from "website," I'll find TOS, but also "contract of works for web design" or "standard agreements for design services" from AIGA.

You got it? What legal folksonomies bring us is:

  1. User-centered categories
  2. Flexible categorization systems. Many items can be tagged more than once and so be put into different categories. Legal stuff can be retrieved through different routes but also considered under different lights.

Will this enhance findability? I think it will, especially if the users are non-lawyers. And services that target the low-end of the legal market usually target non-lawyers.

Alright, I know what you're thinking. You're thinking, oh no, again another naive folksonomy supporter! And then you say: "Folksonomie structures are too flat to constitute something useful for legal research!" and "Law is too a specific sector with highly technical vocabulary and structure. Non-legal trained users would just tag wrongly".

Let me quickly address these issues.

Objection 1: Folksonomies are too flat to constitute something  useful for legal research

Let's start from a premise: we have no studies on legal folksonomies yet. Docracy is not a full folksonomy yet ( users can tag but tags are pre-determined by administrators). But we do have examples of folksonomies tout court, so my argument moves analogically from them. Folksonomies do work. Take  the Library of Congress Flickr project. Like an old grandmother, the Library gathered thousands of pictures that no-one ever had the time to review and categorize.  So pictures were uploaded on Flickr and left for the users to tag and comment. They did it en masse, mostly by using descriptive or topical tags (non-subjective) that were useful for retrieval. If folksonomies work for pictures (Flickr), books (Goodreads), questions and answers (Quora), basically everything else (Delicious), why shouldn't they work for law? Given that premise, let's move to first objection: folksonomies are flat. Wrong. As folksonomies evolve, we find out that they can have two, three and even more levels of categories. Take a look at the Quora hierarchy.

That's not flat. Look, there are at least four levels in the screenshot: Classical Musicians & Composers > Pianists > Jazz Pianists > Ray Charles > What'd I Say. Right, Jazz pianists are not classical musicians: but mistakes do occur and the good point in folksonomies is that users can freely correct them.

Second point: findability doesn't depend only on hierarchies. You can browse the folksonomy's categories but you can also use free text search to dig into it.  In this case, users' tags are metadata and so findability is enhanced because the search engine retrieves what users have tagged--not what admins have tagged.

 

Objection 2: Non-legal people will use the wrong tags

Uhm, yes, you're right. They will tag a criminal law document with “tort” and a tort case involving a car accident with “car crash”. And so? Who cares? What if the majority of users find it useful? We forget too often that law is a social phenomenon, not a tool for technicians. And language is a social phenomenon too. If users consistently tag a legal document with the "wrong" tag X instead of the "right" tag Y, it means that they usually name that legal document with X. So most of them, when looking for that document, will look for X. And they'll retrieve it, and be happy with that.

Of course, legal-savvy people would like to search by typical legal words (like, maybe, “chattel”?) or by using the legal categories they know so well.  Do we want to compromise? The fact is, in a system where there is only user-generated content, it goes without saying that a traditional top-down taxonomy would not work. But if we have to imagine a system where content is not user-generated, like a legal or case law database, that could happen. There could be, for instance, a mixed taxonomy-folksonomy system where taxonomy is built with traditional legal terms and scheme, whereas folksonomy is built by the users who are free to tag. Search in the end, can be done by browsing the taxonomy, by browsing the folksonomy or by means of a search engine which fishes on content relying both on metadata chosen by system administrators and on metadata chosen by the users who tagged the content.

This may seem like an imaginary system--but it's happening already. Amazon uses traditional categories and leave the users free to tag. The BBC website followed a similar pattern, moving from full taxonomy system to a hybrid taxonomy-folksonomy one. Resilience, resilience, as Andrea Resmini and Luca Rosati put it in their seminal book on information architecture. Folksonomies and taxonomies can coexist. But this is not what this article is about, so sorry for the digression and let's move to the first prediction.

Prediction #1: Folksonomies will provide the right information architecture for non-legal users.

Taxonomies and folksonomies help legal teaching.

7797310218_8d42f4743bSecondly, taxonomies help us memorize rules and case law. Put all the things in a box and group them on the basis of a common feature, and you'll easily remember where they are. For this reason, taxonomies have played a major role in legal teaching. I’ll tell you a little story. Civil lawyers know very well the story of Gaius, the ancient Roman jurist who created a successful taxonomy for his law handbook, the Institutiones. His taxonomy was threefold: all law can be divided into persons, things, and actions. Five centuries later (five centuries!) Emperor Justinian transferred the very same taxonomy into his own Institutiones, a handbook aimed at youth "craving for legal knowledge" (cupida legum iuventes). Why? Because it worked! How powerful, both the slogan and the taxonomy! Indeed more than 1000 years later, we found it again, with a few changes, in German, French, Italian, and Spanish Civil Codes and that, in a whole bunch of nutshells, explains private law following the taxonomy of the Codes.

And now, consider what the taxonomies have done to lawyers’ minds.

Taxonomies have shaped their way of considering facts. Think. Put something into a category and you will lose all the other points of view on the same thing. The category shapes and limits our way to look at that particular thing.

Have you ever noticed how civil lawyers and common lawyers have a totally different way of looking at facts? Common lawyers see and take into account the details. Civil lawyers overlook them because the taxonomy they use has told them to do so.

In Rylands vs Fletcher (a UK tort case) some water escapes from a reservoir and floods a mine nearby. The owner of the reservoir could not possibly foresee the event and prevent it. However, the House of Lords states that the owner of the mine has the right to recover damages, even if there is no negligence. ("The person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.")

In Read vs Lyons, however, an employee gets injured during an explosion occurring in the ammunition factory where she is employed. The rule set in Rylands couldn't be applied, as, according to the House of Lords, the case was very different; there is no escape.

On the contrary, for a Civil lawyer the decision would have been the same in both cases. For instance, under Italian Civil Code (but French and German Codes are not substantially different on this point), one would apply the general rule that grants reward for damages caused by "dangerous activities" and requires no proof of negligence on the plaintiff (art.2050 of the Civil Code), no matter what causes the danger (a big reservoir of water, an ammunition factory, whatever else).

Observation#2: taxonomies are useful for legal teaching and they shape lawyers minds.

Folksonomies for legal teaching?

Okay, and what about folksonomies? What if the way people tag legal concepts makes its way into legal teaching?

Take the Docracy's TOS category—have you ever thought about a course on TOS?

Another website, another example: Rocket Lawyer. Its categorization is not based on folksonomy, however; it's purposely built around a user’s needs, which have been tested over the years, so in a way the taxonomy of the website comes from its users. One category is "identity theft", which should be quite popular if it is prompted on the first page. What about teaching a course on identity theft? That would merge some material traditionally taught in privacy law, criminal law, and torts courses. Some course areas would overlap, which is good for memorization. Think again to the example of “Dog Law” by Dabney. What about a course about Dog Law, collecting material that refers to dogs across traditional legal categories?

Also, the same topic would be considered from different points of view.

What if students were trained to the specifications of the above-mentioned flexibility of categories? They wouldn’t get trapped into a single way of seeing things. If folksonomies account for different levels of abstractions, they would be trained to consider details. Not only that,  they would develop a very flexible frame of mind.

Prediction #2: legal folksonomies in legal teaching would keep lawyers’ minds flexible.

 

Taxonomies and folksonomies SHAPE the law.

Third, taxonomies make the law apply differently. Think about it. They are the very highways that allow the law to travel down to us. And here it comes, the real revolutionary potential of legal folksonomies, if we were to make them work.

Let's start from taxonomies, with a couple of examples.

Civil lawyers are taught that Public and Private Law are two distinctive areas of law, to which different rules apply. In common law, the distinction is not that clear-cut. In Rigby vs Chief Constable of Northamptonshire  (a tort case from UK case law) the police—in an attempt to catch a criminal—damage a private shop by accidentally firing a canister of gas and setting the shop ablaze. The Queen's Bench Division establishes that the police are liable under the tort of negligence only because the plaintiff manages to prove the police’s fault; they apply a private law category to a public body.
How would the same case have been decided under, say, French law? As the division between public and private law is stricter, the category of liability without fault, which is traditionally used when damages are caused by public bodies, would apply. The State would have to indemnify the damage, no matter if there was negligence.

Remember Rylands vs Fletcher and Lyons vs Read? The presence of escape/no escape was determinant, because the English taxonomy is very concrete. Civil lawyers work with taxonomies that have fewer, larger, and more abstract categories. If you cause damages by performing a risky activity, even if conducted without fault, you have to repay them. Period. Abstract taxonomy sweeps out any concrete detail. I think that Robert Berring had something like this in mind--although he referred to legal research--when he said  that “classification  defines the world of thinkable thoughts”. Or, as Dabney puts it, “thoughts that aren't represented in the system had become unthinkable”.
So taxonomies make the law apply differently. In the former case, by setting a boundary between the public-private spheres; in the latter by creating a different framework for the application of more abstract or more detailed rules.

 

You don't get it? All right, it's tough, but do you have two minutes more? Let's take this example by Dabney. Key number system's taxonomy distinguishes between Navigable and Non-navigable waters (in the screenshot: waters and water courses). There's a reason for that: lands under navigable waters presumptively belongs to the state, because “private ownership of the land under navigable waters would (…) compromise the use of those waters for navigation ad commerce”. So there are two categories because different laws apply to each. But now look at this screenshot.avulsion

Find anything strange? Yes:  avulsion rules are “doubled”: they are contained in both categories. But they are the very same: rules concerning avulsion don't change if the water is navigable or not (check avulsion definition if you, like me, don't remember what it is ). Dabney: “In this context,(...) there is no difference in the legal rules that are applied that depend on whether or not the water is navigable. Navigability has an effect on a wide range of issues concerning waters, but not on the accretion/avulsion issue. Here, the organization of the system needlessly separates cases from each other on the basis of an irrelevant criterion”. And you think, ok, but as long as we are aware of this error and know the rules concerning avulsion are the same, it's not biggie. Right, but in the future?

“If searchers, over time, find cases involving navigable waters in one place and non-navigable waters in another, there might develop two distinct bodies of law.” Got it? Dabney foresees it. The way we categorize the law would shape the way we apply it.

Observation #3 Different taxonomies entail different ways to apply the law.

So, what if we substitute taxonomies with folksonomies?

And what if they had the power to shape the way judges, legal scholars, lawmakers and legal operators think?

Legal folksonomies are just starting out, and what I envisage is still yet to come. Which makes this article kind of a visionary one, I admit.

However, what Docracy is teaching us is that users—I didn't say lawyers, but users—are generating decent legal content. Would you have bet your two cents on this, say, five years ago?
What if users started generating new legal categories (legal folksonomies?)

Berring wrote something really visionary more than ten years ago in his beautiful "Legal Research and the World of Thinkable Thoughts". He couldn't have folksonomies in mind, and still, wouldn't you think he referred to them when writing: "There is simply too much stuff to sort through. No one can write a comprehensive treatise any more, and no one can read all of the new cases. Machines are sorting for us. We need a new set of thinkable thoughts.  We need a new Blackstone. We need someone, or more likely a group of someones, who can reconceptualize the structure of legal information."?

Prediction #3 Legal folksonomies will make the law apply differently.

Let's wait and see. Let the users tag. Where this tagging is going to take us is unpredictable, yes, but if you look at where taxonomies have taken us for all these years, you may find a clue.

I have a gut feeling that folksonomies are going to change the way we search, teach, and apply the law.

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Serena Manzoli is a legal architect and the founder at Wildcat, legal search for curious humans. She has been a Euro bureaucrat, a cadet, an in-house counsel, a bored lawyer. She holds an LLM from University of Bologna. She blogs at Lawyers are boring.  Twitter: SquareLaw