The natural rules of cyberspace ­ the causes or
the norms?
Almost a hundred years ago, there was a fertile exchange
of ideas between legal scholars in Vienna and Brno. One
of the topics that were discussed the most, was the place
of teleology in the law and namely in Hume's system of existential
elements1). Hume's thesis that represented the
basic methodological system for the Pure Legal Theory is
based on the division of `is' and `oughť. The legal postulate
of pureness formulated by Kelsen2) was consequently
based on the test dividing empirical (`is') and normative
(`oughť) facts and accepting only the latter as relevant to
the law.
As to teleology, it was questionable whether teleology
(or the `intenť) belongs to the `is' or to the `oughť and
consequently to the law. In other words, the question over
which Kelsen debated with Englis, was whether we might
speak in the law about purposive statements and purposive
interpretation. Kelsen argued that the intent is just a reversed
causality and thus, it belongs to the non-legal area of
`is.' Opposing to that, Englis defended the opinion that the
`intent` is purely of normative nature and so we have to
operate with it as with a legal category.3)
The result of the above debate between Kelsen and Englis
was in fact a draw and they both retained their positions.
In any case, the point of the question about the purpose
and purposive interpretation was in the presence/absence
of the `wilľ or `willingness' ­ in the `intenť. If the `intenť
would be just as a reversed causality, we would be logically
able to argue that there is no `wilľ needed in its construction,
and that the intent is just an empirical category. On
the other hand, if we see the `intenť as the product of `willingness,'
we can deduct its normative (legal) nature.
It might now seem questionable, what the debate over
the place of `intenť in the law has to do with the cyberspace
and its code. The reason we focus on this issue is to show
that in case there is a `wilľ or `willingness' present as the
core of some rules, we can speak about norms and treat
them as such.
In the case of natural laws, it is always disputable
whether we can call them norms or causal rules. If we
accept the theory that the natural laws were created upon
the will of the lawmaker, we can obviously treat them as
norms. On the other hand, if we do not believe in any natural
lawmaker, we see the natural laws just as causal tautological
rules4).
Similarly to the ordinary world, there are the `natural
laws' of cyberspace. In this case, we do not have to debate
over the question whether there is a lawmaker or not.
Obviously, we can guess its existence and existence of its
will from the fact that the `natural laws of cyberspace' can
Polcak.qxd 1
Code and complexity: Can
the code stand Lessig's
challenges?
Radim Polcak
Radim Polcak, JuDr., Brno, Czech Republic
E-mail: radim@polcak.com
be determined not just by causal actions, but also from the
mere statements of the lawmaker.5) That is why we can
literarily speak about the natural norms of cyberspace.
It must be pointed out that the natural norms of cyberspace
function a bit differently from other types of norms
(i.e. legal, social or ethical). Yet we can speak about the will
of the lawmaker as the reason for their creation, it is almost
impossible to speak about the will of their recipients with
regards to obeying them. In the case of legal or social
norms, we are almost free to decide about our behaviours.6)
In the case of the natural laws of cyberspace, there
is no possibility of choice as the norms do not function
upon sanctions but upon causality.7) In fact, there is only
one group of individuals technically able to choose between
following some of the natural laws of cyberspace and
not obeying them ­ the hackers.8) In order to name that
specific regulatory feature of the natural norms of cyberspace
(causality instead of sanctioned duty), we can use the
term `definition norms,' where the adjective `definition'
indicates the fact that the respective norms do not just
influence the environment but define it.
Despite the differences between the natural norms of
cyberspace and other types of norms, there are many similar
features, out of which we can extract the following:
­ The definition norms can be faulty and neglected
­ The definition norms can be created accidentally
­ The definition norms can be breached
­ The definition norms are created upon one-sided
human will or consensus
­ The definition norms are of different origins and form
different layers.
Coding the values
In the second volume on the Code, Lawrence Lessig
keeps his challenging position towards the code and its
architects, saying:
"We can build, or architect, or code cyberspace to protect
values that we believe are fundamental. Or we can build, or
architect, or code cyberspace to allow those values to disappear.
There is no middle ground. There is no choice that
does not include some kind of building. Code is never
found; it is only ever made, and only ever made by us."
The above statement looks more challenging to the
code architect than to the code itself and its users (recipients).
In the following remarks, we will try to argue that it
would not be wise to understand this challenge as such.
The fundamental values of mankind, such as equality,
fairness or freedom, have their names but no precise definitions.
Whenever we say that something is `fair', it explains
our subjective attitude but it is impossible to give the precise
reasoning and explanation of the meaning of such a statement.
It is then even more difficult to `encode' the fairness
into the words of law.
There are a lot of academic and even mathematical9)
proofs that, whenever we try to handle some complex facts
(like the core values) by the Kantian pure reason10), the
result is never a complete success. Whenever we try to formulate
postulates of fairness, freedom or even equality,
Polcak.qxd 2
they finally do not make sense or, in the better case, they
come out just as empty formulas.11)
Our inability to handle by our pure (analytical) reason
the core values and principles of mankind does not imply,
of course, that the values do not exist12). It just shows that
they do not exist upon the pure reason or the reasonable
will of the rulemaker or the interpreter. They rather ideally
exist by themselves as complex13) facts that were allowed
to be partly revealed by the lawmaker or the interpreter.14)
Unlike social or ethical norms, the law can not rely just
on metaphors. That is why we never spot in any legal text
words like `love' (the metaphor with the broadest meaning
ever) and it is also the reason why words like `fairness' appear
in the black-letter legal documents as sporadically as possible
(compared to words with much more precise meanings).
Nevertheless, from time to time, even the law has to
use the broad metaphors anyway.15)
Technically, the cyberspace and its definition norms are
the product of the pure reason. Whatever shapes the cyberspace,
i.e. whatever was coded, works on a causal and logical
basis. On the level of the code, we can predict and
model the consequences of any action. There is consequently
no place for metaphors in the code,16) and thus, no
metaphysics can be coded.
(Rather optimistic) Concluding Remarks
If we sum up the above-indicated basic features of relations
between the definition norms of cyberspace and the
basic values, we can formulate the following conclusions:
1) It is impossible to proactively protect or even erect
the basic values on the level of the code. It is, of course, possible
to try to eliminate the particular activities that are consensually
identified as threatening the respective values.
However, we have to assume that any definition of direct
protective measures on the level of the code is incomplete
and faulty ­ then, it is mostly just a matter of luck, whether
the faults that appear in the process of coding will cause
protective or destructive effects on the values.17)
2) There is no danger that the basic values will disappear
per se (naturally). They exist independently of the acts of
the lawmaker or the code architect. Whenever there is done
nothing and the information flow is left without constraints,
these values tend to be discovered and ad hoc
applied by the stakeholders.18) Even in the situations when
some coded constraints are put to their development, they
show remarkable ability to counter them. Consequently,
there is no need to fear that the values will disappear if they
are not positively coded.
3) The only endangerment of the basic values is coming
from the acts of the lawmaker, the code architect or the
social powers (economic, technical, religious, aesthetic,
sexual, etc). While the above-named are not forming any
hierarchy19), the only possible way of protecting the basic
values in cyberspace is to work on particular measures securing
the balance of their interests. When the tensions are
minimized and no constraints are put to the exchange of
information, the values spontaneously rise and develop.
Polcak.qxd 3
It is normal to ask at the end of a postmodernist story,
whether the story ended happily. In this case, we can say
that the statements made above are pretty optimistic with
regard to the natural features of the core values. Unlike
Lawrence Lessig, we see the core values as relatively strong
and naturally existing complex facts that do not desire any
specific attention to appear and persist in cyberspace. On
the other hand, we are quite pessimistic towards the abilities
of the code architects to identify the values and to proactively
protect (encode) them.
1) Hume divided the existencial elements on `is' and `oughť and
formulated reasons for which there is no relation between the
two categories. See Hume, D. (2003) A Treatise of Human Nature,
Project Gutenberg, available on-line at http://www.guten-
berg.org/dirs/etext03/trthn10.txt.
2) See Kelsen, H. (2002) Pure Theory of Law, The Lawbook Exchange,
New Jersey, p. 1.
3) See Englis, K. (2003) Kritika normativní theorie, in Brnenska skola
pravni teorie, Praha, Karolinum, p. 203.
4) I.e. those, whose existence we guess by causal actions (like we
guess the gravity by the stone falling to the ground). The causal
action is then both determining the rule and reasoned by it. That
is why we can name such rules tautological.
5) There have also been issued the user's manuals for the natural
world ­ however, reading and understanding the Holy Bible or
the Holy Qur'an is far more difficult, challenging and contemplative
than reading the user's manual to Google Docs.
6) If we decide not to comply with the normative requirement,
there is automatically implied our consent with the consequent
sanction ­ see See Kelsen, H. (2002) Pure Theory of Law, The
Lawbook Exchange, New Jersey, p. 108.
7) At this point, the parallel with the natural laws of the ordinary
world is almost perfect.
8) There is obviously a parallel to hackers in the natural world in the
case of wizards or witches ­ it is to be noted that any attempted
incompliance with the Laws of the God were and in some cultures
still are severely punished.
9) On of the most famous theories of that kind is the theorem of
imperfection formulated by Moravian mathematician Kurt Gödel.
The influence of his theory of imperfection was enormous not
only on the field of mathematics or logics, but in almost all scientific
areas ­ see Weaver, W. (1960) The Imperfections of Science,
in Proceedings of the American Philosophical Society, Vol.
104(5), p. 419.
10) See Kant, I. (2003) The Critique of Pure Reason, translated by
Meiklejohn, J. M. D., Project Gutenberg, available on-line at
http://www.gutenberg.org/dirs/etext03/cprrn10.txt.
11) Coming back to Kelsen, his sophisticated logical analysis of postulates
of fairness proved either their senselessness or vagueness ­
see Kelsen, H. (1927-1928) Die Idee des Naturrechtes, Zeitschrift
für öffentliches Recht, 7, p. 221.
12) Our inability to describe the reasons for which the bumblebee
flies also does not mean that the bumblebee would fly by its own
mistake.
13) Here, the term `complex' is used as the effect of complexity. It
appears whenever there is an assembly of multiple simple elements
and causes that the system has features whose quality goes
far beyond the sum of qualities of its elements. For fairly understandable
(even to lawyers) explanation of the effect, see for
example Lewin, R. (1999) Complexity ­ Life at the Edge of Chaos,
The University of Chicago Press, Chicago, p. 44.
14) The ability of humans to reveal the meaning of fairness ad hoc is
constantly argued by Ronald Dworkin. Even after a lot of criticism,
Dworkin still stands on his `one right answer' theory ­ see
for example his replicas on critics in his latest work Dworkin, R.
Justice in Robes, New York, Belknap Press.
Polcak.qxd 4
15) Besides very sporadically used words like `fairness' or `truth,' we
relatively often work with metaphoric categories like `good manners,'
`social endangerment,' `equality' and others.
16) All the communication traffic is mediated by the computers and
we still have not invented any method how to transform the
metaphors into binary instructions.
17) There is an old Czech proverb saying that the road to hell is
covered by good intentions.
18) Even in the strict authoritative regimes, the values of freedom and
plurality appear as soon as the society gets an opportunity to
communicate. There is no need then to form sophisticated discussion
groups about democracy or freedom of speech. If people
are left to frequently (and even distantly) communicate about
weather or soap operas, the values like freedom, equality and
others will be implied on the grounds of the effect of complexity.
19) Formerly, there was assumed a strict hierarchy of social institutions
with the state (or the nation) standing on its top. Nowadays,
we rather speak about multicentric environment with multiple
unsorted powers. See for example Greenleaf, G. (1998) An Endnote
on Regulating Cyberspace: Architecture vs. Law? University
of New South Wales Law Review, 21(2), p. 603.
Polcak.qxd 5