As a philosophical mascot, Jeremy Bentham makes trouble the way a real mascot does: he strays onto nearby lawns and does things you’d rather not watch. After all, this is the guy who designed a perfect surveillance regime long before Facebook, Google, or Flickr, and who had himself stuffed, mounted, and put in a display case [[note to self: use in future post on legal education]].
Proportioned to the extent of [[the field of evidence]] will be the number of persons, to whom, in the character of readers, independently of any such misfortune as that of feeling themselves stretched on the rack in the character of litigants, it may happen to find in the work, matter on some account or other not altogether devoid of interest: and in proportion as this supposition comes to be realized, a justification will be afforded to the words, by which, in the title-page, non-lawyers are spoken of as persons to whose use, as well as that of lawyers, it may be found applicable.
Uh huh huh. What an insanely laborious way to say â€œthe idea of evidence is found in lots of places and lots of people will be interested in it, whether or not they’re involved in a lawsuitâ€. The passage is taken from Bentham’s Introductory View of the Rationale of Evidence, for the Use of Non-Lawyers as Well as Lawyers (we have our own take on it here at the LII).
Bentham’s cause â€“ the idea of universal intellectual access to law — was nothing new. Coke played around with it more than a century earlier, and he was by no means the first. In fact it’s the penumbra of Coke’s well-known passage about ignorance of the law being no excuse, which can be read in context as a pitch for law in the vernacular. But it was Bentham who took the idea of public understanding to the limit:
He was no lover of the common law, which Blackstone put on a pedestal. On the contrary, he described the common law as a place of â€œdark Chaosâ€. He advocated substitution of the codification of law and its enactment in statutes passed by an elected Parliament which would take the place of the step by step accretion of common law principle, performed by analogous reasoning by judges of infinite variety. For him, codes and statutory principles would â€œmark out the line of the subjectâ€™s conduct by visible directions instead of turning [the subject] loose into the wilds of perpetual conjectureâ€. He had great powers of invective, often directed against â€˜Judge and Coâ€™ (ie the Bench and the Bar), whom he saw as a â€˜sinister interestâ€™ profiting from the operation at great cost to the public of an unnecessarily complex and chaotic legal system in which it was often impossible for a litigant to discover in advance his legal rights.
Those words are a paraphrase of HLA Hart, taken from an address given by Australian High Court Justice Michael Kirby at the Law via the Internet ’99 conference (the author gave the second-banana keynote speech). Kirby’s talk still rings true now, painfully close to a decade later:
Providing undigested legal material is not enough. It is essential that we provide citizens with the tools of thinking through problems, finding the applicable legal rules and deriving from legislation and case law any principle that must be obeyed….Throwing onto the plate of people, with fundamental misapprehensions about their legal institutions, a huge mass of undigested legal data will not truly make the law free and more accessible. It is the duty of schools and universities to help the next generation, including the overwhelming majority who are not lawyers, to appreciate the way in which law is written, may be found and is applied – at least in those matters which are of greatest concern to the ordinary person. Otherwise, Bentham and his followers will have been outfoxed once again by Judge & Co.
In the years since Kirby’s speech, we’ve seen enormous progress in making law available. Courts, legislatures, and agencies have all provided online warehouses full of their work product (and indeed the e-Government Act of 2002 requires Federal courts to do so). More recently, interest from open-access advocates among the technorati has resulted in admirable projects like public.resource.org, AltLaw, and an important and exciting venture in cross-subsidy for open access, Justia . They join an effort that started here at Cornell in 1992, one that has sparked more than 18 LIIs around the world. They now work with each other and with legal-information creators to provide open access to law. In parallel with these data-publishing efforts, there are technically innovative projects that take new approaches to search, that attempt to discover the structures within legal information, and that focus on the integration of legal information resources in ways required by new economic and political unions. But I would define making law accessible as something far more complicated than simply making it available and, frankly, it is a lot more expensive. It requires the availability that those projects imply, and the interoperability that some in other fields have thought about â€“ and as Justice Kirby said, it also requires substantial amounts of explanation, commentary, and public education. These are things that a public legal information provider associated with a graduate law school in a great research university can do, perhaps uniquely well.
And, for the next few months at least, those issues of access, interoperability, and accessibility will be the focus of this blog â€“ appropriately launched on Bentham’s 260th birthday. I’d like to explore some ideas about the Internet audience for law, and about how we can pull individual repositories together in ways that will better serve that audience. I’d like to say a little about what it takes to provide real explanations around raw legal information, and how we might think about making both information and explanation more discoverable. Some of it will be chatty, some theoretical, and some ridiculously technical in ways that suffer from the mutually reinforcing geek-pathologies of information scientists, legal bibliographers, reporters of decisions, and other people who worry about this stuff far too much. I won’t promise a regular schedule â€“ my job here at the LII is a little too complicated for that â€“ but I’m hoping for a fairly substantial post every other week.
In the meantime, happy 260th, Jerry. We’re still trying, and this time I think a couple of Judges & some of the Co. are along for the ride.
PS: I’ve got a door prize for whoever concocts the best name for this damned blog. Suggestions will overwhelm the comments, so don’t post them here â€“ send them to me directly at tom.bruce(you-know-what)cornell.edu. Winner to be announced March 14.