Law as a normative system has always been concerned with the aim of governing reality. How law can govern reality, however, has also been constantly a matter of endless theoretical disputes. The problem requires legal scholars to explain at least three fundamental terms: law, reality and the relation between them. It demands consequently to elaborate (i) a conception of law, (ii) an ontology of reality and (iii) a theory of normativity. The evolution of Information and Communication Technology (ICT) is likely to redesign all these terms. It does so more radically than it is usually thought. Many scholars do recognize the difficulty.
The proliferation of books and articles on the regulation of the Internet or of Cyberspace clearly shows this much. However, they often fail to acknowledge that such a problem requires a new theoretical approach. For instance, expressions such as “the law of the Internet” or “the regulation of Cyberspace” can be deceptive, since they implicitly suggest that either Internet or Cyberspace are only subject to the regulation of law and they do not have by themselves any regulative attitude. This is not true, since both the Internet and Cyberspace may have, for instance, inherent topological dimensions (Pagallo, 2007), which can exhibit normative values. However, such a critique does seek to reaffirm a current platitude, namely that technology is self-regulating. This would mean to understand technology once more as a normative system (“the code is the law”, as stated in Lessig, 2006).
The problem is to realize that the evolution of ICT is going to redesign the ontology of reality and that this change “can go backwards, forwards and sideways” (Alvin Toffler), according to what is suggested by the topic of the Ethicomp meeting. Therefore, a different statute of reality (a different ontology) can impose conditions or restrictions upon the legal claims and can force us to reconsider our understanding of the law. What is, thus, the ontological statute of reality that law is meant to govern? The Philosophy of Information brought forth by Luciano Floridi (2009a) has best grasped the ongoing process of transformation of the ontology of our reality and has formulated it in plain theoretical terms. This process can be summarised by reference to two neologisms that Floridi has coined: infosphere and re-ontologisation.
“Infosphere is a neologism I coined years ago on the basis of ‘biosphere’, a term referring to that limited region on our planet that supports life. It denotes the whole informational environment constituted by all informational entities (thus including informational agents as well), their properties, interactions, processes and mutual relations. It is an environment comparable to, but different from cyberspace (which is only one of its sub-regions, as it were), since it also includes off-line and analogue spaces of information. […] Re-ontologizing is another neologism that I have recently introduced in order to refer to a very radical form of re-engineering, one that not only designs, constructs or structures a system (e.g. a company, a machine or some artefact) anew, but that fundamentally transforms its intrinsic nature. […] Using the two previous concepts, my basic claim can now be formulated thus: digital ICTs are re-ontologizing the very nature of (and hence what we mean by) the infosphere, and here lies the source of some of the most profound transformations and challenging problems that our information societies will experience in the close future, as far as technology is concerned”, (Floridi, 2007).
In the first part of the paper, I analyse the general understanding of the relation between law and reality in the information society, with reference to the regulation and the governance of the Internet and of Cyberspace. The way in which the problem is approached and dealt with is often quite old-fashioned and impinges on both legal and epistemological categories that are no longer capable to account fully for the changes brought forth by the evolution of ICT. This requires, first, to recall and clarify the stratification of reality (physical, logical, of contents: Benkler, 2006) of the Internet and of Cyberspace that still supports, at least to some extent, the application of traditional legal categories (regulations, norms of hard and soft law, codes of conduct, customary rules, etc.).
At this level, the legal debate is mainly concerned with the opposition between centralised (hierarchy) versus decentralised (network) models of law as well as (in a more mature phase) with the dialectics between decentralised (with intermediaries) and distributed (without intermediaries) networks (Durante, 2008). Such analysis is still consistent with some phenomena that are redesigning the multiagent systems of the Internet and of Cyberspace, like those of “computer clouding” (The Economist, 25 October 2008) or “autonomic computing” (J.O. Kephart & D.M. Chess, 2003). However, it is not sufficient to account for the “reontologisation of reality” (Floridi, 2007) that characterises the “infosphere” (Floridi, 2003).
For this reason, the second part of the paper is devoted to the analysis of the Philosophy of Information laid down by Luciano Floridi. In particular, it is important to focus upon the novelty of his informational approach for three main reasons. In fact, this approach offers us some consistent indications and theoretical tools to deal with three essential notions of law from an informational standpoint: 1) the notion of legal agents (legal subjects) as informational systems; 2) the notion of norm (legal provisions and expectations) as information; 3) the notion of reality (legal objects) as a new informational environment.
1) In the post-industrial society of information, the legal subjects are to be intended also as interacting agents and reagents that share information, messages. The informational approach does not only show how interacting agents and patients communicate and share data by means of positive or negative messages. Thanks to its ontocentric perspective, the informational theory offers a distinct, unified perspective for the varying status and regime that involve the nature of agents, of their relations and the content of shared data. On the basis of an ontological equality principle, all the agents, relations and data are conceived as informational entities that are to be treated as part of the informational environment, or infosphere, to which they belong qua informational systems.
2) In the post-industrial society of information, the capability of the positive norms to predict future behaviours and establish expectations is to be rethought starting from a deeper and systematic analysis of the informational content of a norm (Durante, 2007): the idea of treating the legal norm as an information is not new in the field of philosophy of law. What is novel is the need to treat information as a specific, technical concept, which is part of a semantic reinterpretation of the reality. This requires us exploring and making reference to a specific theory of information, which does not only take into account the syntactic aspects of information but also its semantic dimension (Floridi, 2009b).
3) In the post-industrial society of information, the evolution of ICT is no longer viewed, according to the informational approach, as a matter of applied ethics or empirical or normative approaches, but as something that constitutes a new environment (infosphere) that brings about a reontologisation of reality, made of informational objects that possess their own ontology. This requires us to study how the law can deal with the informational objects and what are the main features that characterise a reontologised reality, since this directly affects the relation between law and reality, bearing in mind that the informational treatment of reality does not constitute necessarily per se the entire picture, i.e. the whole representation of reality: this would require us to confront systematically the informational approach with a more radical digital approach to the understanding of reality.
Consequently, in the third part and last part of the paper, we should try to figure out the guidelines of an informational approach to law, that is to say, a vision of law that would be theoretically capable of dealing with the reontologisation of reality. The ontology on which law has always been based is made of material objects, whose positive existence is the ultimate epistemological guarantee of the content of legal propositions and expectations. Even though – just to make a very simple example – the content of a legal contract is not directly a specific real thing but an exchange of promises, nevertheless the way to measure whether the promises have been fulfilled is to refer to the positive existence of the real things that are the final content of the exchanged promises. How does law change in its relation to reality, when the ontology of reality is no longer based on the positive existence of material objects? The distinction between material and immaterial objects that law is acquainted with is not sufficient to deal with the problem, since such a distinction is drawn within the same ontological framework of reality that law has always been based on, namely, the positive existence of physical objects.
What does it mean to stabilise expectations, when the content of an expectation is no longer a material but an informational object? Furthermore, what does it mean to dispose of an informational object, to destroy it or even to deprive someone of it? This kind of questions could be easily multiplied. We are aware of the fact that it is too early to attempt to answer them. However, it is reasonable to try to delineate a theoretical framework for them. This also requires to focus more closely on the fundamental concept of information (Floridi, 2009b), which plays a decisive role in the construction of a networked normative system.
The examination of Floridi’s Philosophy of Information already points out a significant line of research, since it suggests that:
1) The ontology of reality on which law is based is no longer made of material but of informational objects. This first suggestion has to be taken into consideration in its full meaning, since law is not confronted by informational objects as if they were something that lie in a place different from where law lies: both law and informational objects are part of the same reontologised reality – the infosphere – that constitutes a common environment. Law – as a normative system – still has the role of reducing the complexity of the environment: however, the question is now how to deal with the growing complexity of the informational environment.
2) The aim of law, in reducing the complexity of the environment by stabilizing expectations, is to rethink in relation to the specific meaning of information as well as to the structure of the information cycle. The Philosophy of Information helps clarifying what information is, what the entire life-cycle of information is and, notably, what its informativeness consists of. This point is crucial and allows us to draw an analogy between law and information: both legal expectations and shared information pose the problem of the conditions of management of data and of the reliance on their content. Since multiple, distributed sources of information have been added to the traditional storage devices, the issues of managing data and of filters of attendance have become essential, with the problems of agency that such managing systems or creation of filters bring along. This problem is directly connected with that of the terms of accountability (responsibility and imputation) for the actions and the decisions we take on the basis of the information we rely upon.
3) The relation between possibility and contradiction can bridge the legal and the informational system. The content of both a norm and of some information has to be something that is possible. The content of a formal possibility is, to speak in Kantian terms, what is not contradictory. Hence, as law grows out of contradictions that it tries to overcome by delimiting a realm of possibilities, a theory of information has to solve “the semantic paradox affecting the classic quantitative theory of semantic information, according to which contradiction contains the highest quantity of information” (Floridi, 2004). In this perspective, we should understand whether we may apply to law what Floridi (2004) says about information: “Information is an actual possibility that is consistent with at least one but not all other possibilities. A contradiction is not information-rich because it is not a possibility, and a tautology is not information-rich because it does not exclude any possibility”.
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