Code Number: 046-160-E
Division Number: V
Professional Group: Government Information and Official Publications
Joint Meeting with: -
Meeting Number: 160
Simultaneous Interpretation: No

Controlling government: the people and the rule of law

Abstract

Paper

As information professionals look back over the last 2,000 years, it is no wonder that many consider Johann Gutenberg the Man of the Millennium. While the crowns and churches across the European continent tried to control the power of the presses through taxation, censorship and licensure, the American colonies built their case for revolution through a variety of free presses (Benjamin Franklin's Pennsylvania Gazette and Thomas Paine's pamphlet "Common Sense" to name just two). Eventually, modern governments of all kinds came to realize and appreciate the power of an inter-communicative population and used new technologies like radio to influence public opinion and to inspire political action. In this regard, we think of the "fireside chats" of the American President Franklin Roosevelt or of "Radio Free Europe."² As long as communication could be confined to political boundaries, governments could exert huge influence upon what was known by their populations.

Today, as new technologies emerge that do no know the limitations of political (artificial) borders, and where information of all kinds is easily globalized, the people of all nations have the opportunity to make better informed decisions about everything from the goods they buy to the leaders they elect.

Since the beginning of recorded history, humankind has shown a predilection for establishing a rule of law or legal system that will formalize rights vis-a vis governors, and relationships among people within societies. Common to various forms of government-aristocracy, theocracy, democracy-we see the development of certain practices that we consider "modern" like the recording of legal instruments, a formula for collection of taxes, and a formal process for resolution of disputes. All the evidences of government regulation of life historically have required some written proof thereof. Hence early in our shared heritage, government becomes both the producer and keeper of information.

It is easy to find the common rationales, regardless of form of government, that leads to this role of "government printer," perhaps more aptly called scribe in the ancient cultures. Why bother to take on this responsibility?

Government dissemination of information first, lessens the chance of inconsistent interpretation of laws. Second, it tends to keep petty, as well as high, officials more honest. Third, it keeps the overall form of government more reliable thereby lessening the chance of rebellion. Fourth, it reduces the human tendency for "self-help" when there does not seem to be a societal solution for retribution. Fifth, it institutionalizes customs or ways of life. Finally, it allows for more mobility among populations and the easy assimilation of new "groups" into an existing (often conquering) group.

Peter Martin of the Cornell Law School has identified a communications framework upon which to evaluate any legal system.³ His three prongs are: First, the methods of transmission--How does the legal information travel from its source of authority? Second, the methods of access or retrieval--How do those who need to know the law find it? Third, the methods of interpretation and comprehension--How is the law applied to the facts and how is compliance to decisions garnered?

While it is useful to speak of the government as a publisher, except for early religious writings, it was specifically legal information that seemed to be captured in written form early in terms of civilized societies. Athens is often cited as the birthplace of legal publication.⁴ Here, the Draconian Code was published for the people to consult on engraved stones or rotatable wooden tablets. These were then displayed in high traffic areas like temples, water wells and in the market place. It is important to note that the Greeks thought it very important for their laws to be written and to be accessible to the people.⁵ If this was not the case, then how could rules be found and be binding on the citizenry. Also notable about the early Greeks was the fact that there was widespread literacy.⁶

The Greek example should be contrasted to the Romans who did not have such a great concern for communicating the law to those affected, but who viewed the writing of the law as a way of preserving the rule of law for future generations and to control the courts.⁷ Rather than display laws publicly, although fixed on album, they were placed in the city archives.⁸

It is also important to realize that the Romans were not so concerned with the following of precedent in the substance of the law-judges would decide each case on its own merits-but they placed great value on consistent procedure. We can notice to this day that legal systems often called "civilian jurisdictions" do not rely upon the principle of following precedent and that case reporting is often not "official" and certainly not as critical to the judge's role as is a reliance on codes and procedural codes.

Some would argue that there are other reasons for seeking to "write" the law. Among these reasons is the recognition that law is the result of human labor-not divinely inspired or given-and therefore, it can be challenged and even changed. Additionally, written laws leave a message for subsequent generations. In fact, the message can be complex if written, but is sure to be mangled if only orally inherited.

Roman law is considered the greatest cultural legacy of that ancient empire to the modern world.⁹ We know most of what we know of Roman law from a hasty attempt in the mid-500's AD to build a thesaurus of the most important law of the past to be used in the present.¹⁰ This became the Justinian codes. Somehow, this legal legacy was temporarily lost in Europe. It was not until the late tenth century that is appeared again rather inexplicably in Bologna, Italy.

From the humble stone and scribe, society continued to develop and by the fifteenth century the invention of the movable mental type would present yet more reason for consigning laws to written form. What the movable mental type did for law was that it made it possible to reproduce the exact same copy of the law. Authenticity issues and problems surrounding multiple copies of the "same law" with substantial differences could be resolved.

It took nearly four hundred years before customary law was written in Europe, although unofficially at first.¹¹ In Germany and France, although France's coutumes had something of a quasi-official status, any law not covered was borrowed from the Roman law by filling in gaps with reference to Justinian.¹² Finally in 1453 in France, there was an official redaction of the coutumes with the following explanation given:

[W]ishing to abridge trials and law suits among our subjects and relieve them from disbursements expenses and to give certainty to judgments…and to remove all kinds of variations and vexations, order, decree, declare, and enact that the customs, usages and procedures of all regions of our kingdom, be reduced and put into writing agreed upon y the common lawyers…once agreed upon will be written and put in books which will be brought before us to have them seen and considered…"
Ordonnance de Montil les Tours, Art. 125, April 1453

Let us now fast forward to the new nation in the new world. This nation, the United States, in many respects was born out of a rebellion against its mother's legal system, yet it ultimately embraced the basic principles of that legal system. In the early years, however, there was a great deal of patriotism and pride manifested in the conviction that the new nation could take the English law and fashion it into its own "Americanized."¹³ Second, the early American jurists believed that published law reports, which were de rigueur in the newly birthed states, would unify their populations and show that a pure and singular rule of law prevailed.¹⁴

Within a relatively short time, official reports replaced private ones, and these official reports tended to be complete, accurate and standard in format. This lent a great deal of credibility to the process as it seemed almost "scientific." Of great significance was the fact that official reports facilitated the sharing of the law across state boundaries, and made it possible for states to forge into new areas. They could be consistent among and between themselves when this would foster commerce, social exchanges, etc. Yet, they would still preserve the option of being "unique" when local heritage or particularly local situations demanded it.¹⁵ Finally, this tradition of publishing the law, created a sisterhood among the states. While their individual laws were recognized vis-à-vis each other and the federal law, there was a common tradition that bound them.

Each generation of American jurists significantly surpassed the previous one in terms of judicial output. Eventually, systems had to be developed to help cope with the sheer volume of the law or else finding precedent would have become impossible.¹⁶ Yet, this uniquely American preference for official and published law along side of unofficial or commercial publications helped to stabilize a nation that was not born heterogeneous in terms of its people's backgrounds and traditions, and as it grew it became even more diverse in this regard.

As the nation matured and it experienced social problems that challenged its morality, as well as its legal system, the official nature of the written law helped judges to render politically difficulty opinions.¹⁷ By relying upon precedent, the psychological effect was that the LAW was responsible for the outcome, not the judge. Hence, it became something of a hallmark of America's legal system that it was a "nation of laws [and not of men]."

Second, the formalistic nature of American judicial opinion writing gave the judiciary a certain right to be the exclusive interpreters of the law. While this may have had great advantages initially, one might say that this could be a factor that has lead to the feeling of distrust and general disenfranchisement from the law often attributed to the American public today. In fact, it might be contended that the public has a palpable disdain for the legal profession overall.

One important point about American judicial opinions must be made and this relates to the practice of deciding which decisions will be published. For the Federal appellate courts, as an example, only about one-fifth of the cases are actually published. Each court sets its own standards in determining criteria for publication, and also determining who will make the decision to publish a specific case. One common critical criterion for publication seems to be if the case is a "landmark" decision-looking at an issue uniquely or perhaps overturning a long-line of precedents. In terms of the "who decides" question, this is often left to the judge who wrote the majority opinion, but it may also be published upon the motion of a dissenting judge, the chief judge, or by motion by a party to the action.

As the United States evolved from an agrarian economy to an industrialized one, the balance of legal power shifted from the states to the federal government. By the 1930's, the body of administrative law took on enormous importance in the regulation of America's economic development, and the health and welfare of every American citizen. As administrative agencies at the federal level proliferated, a separate mechanism for announcing their regulations was needed. Thus was created the Federal Register (1939), and a few years later the Code of Federal Regulations (1942) that was updated annually and arranged by broad subject categories called "titles." Ultimately, this became the method by which the "Fourth Branch of Government" informed the population of its actions, and was held accountable for its rule-making function.¹⁸

Throughout the second half of the twentieth century, all aspects of "official law" (statues, regulations and judicial opinions) grew at fantastic rates of output and change. Many private or commercial tools were developed to assist the process of law finding.¹⁹

By the late 1960's efforts were underway to identify a computer-assisted method for law finding.²⁰ In most countries outside of the U.S., this process was government sponsored (this includes projects at public universities).²¹ In the U.S., it was undertaken at first as a university project in public health regulation at the University of Pittsburgh, and then as a bar association undertaking.²² The latter ultimately became Lexis. With a few years, West Publishing Company, the largest legal commercial print publisher in the United States, followed at first with a computerized case digest system and then, a full-text system called Westlaw.

Today, the internet presents many new opportunities for the government to disseminate its laws. It is particularly appealing for instantaneous access to "new law," and provides inexpensive ways for commercial ventures to capture information and add value to it, often based upon specialized subjects or selected jurisdictions. Official information previously available in print has been discontinued in many cases. For law, since both currentness and completeness are the guiding principles of research, there is an uncertainty about the preservation of the precedents. It is perhaps this question that is the most challenging to government in terms of its responsibility to "make law available" to its citizens. It remains to be seen how issues of archiving and preservation will be addressed, and how in the absence of these critical undertakings, the American legal system will survive.

In conclusion, the idea of that governments will find ways to insure that their citizenry "can know the law" has a long tradition. Indeed, many governments' only official publications were their laws. We can see that the reasons for publication, and the ways in which the publication process was initially started varied among governments. As we move into a new century, the tendency is to use technology to distribute the law. However this, like many tools of transmission that preceded it, opens up previously unconsidered options, and is not without challenges!

ENDNOTES

1. Robert Homats, Vice-President, Goldman Sachs International, WALL STREET JOURNAL Editorial, February 16, 2000.
2. There are those who contend that the fax machine bulldozed the Berlin Wall.
3. http://www.droit.umontreal.ca/crdp/conferences/DAC/Martin/Martin.htmlrl.
4. Blume, Peter, "The Changing Shape of Legal Sources and Communications" at p.178 in DATA PROTECTION TO KNOWLEDGE MACHINES, Kluwer, 1990.
5. ibid.
6. This is attributed to the simple alphabet of the ancient Greek language.
7. Blume ibid at p.179.
8. Album was a very common material comprised of a white soft stone tablet that was covered with plaster.
9. See generally, Thomas, J.A.C., TEXTBOOK OF ROMAN LAW, North-Holland, 1976.
10. ibid at p. 6.
11. Watson, Alan, SOURCES OF LAW, LEGAL CHANGE AND AMBIGUITY at p.27, University of Pennsylvania Press, 1998.
12. Coutumes were the scholarly commentary on the laws of the day, particularly local customary law that were collected and written into books. The Library of Congress in Washington, DC has one of the finest and largest collections of the French coutumes.
13. Friedman, Lawrence, M, A HISTORY OF AMERICAN LAW, at p.323, Simon and Schuster, 1985.
14. ibid
15. Friedman, ibid at p.325.
16. Near the end of the nineteenth century, the West brothers marketed their digest system, and Frank Shepard introduced a system for tracking the history and treatment of cases (later applied to statues and regulations).
17. This refers to rather controversial decisions rendered on such issues as slavery, women's rights and labor laws.
18. The U.S. Constitution established a balance of power among three branches-executive, legislative and judiciary. The agencies gave rise to what many called a fourth branch. This is not a positive point of view of the agencies' power.
19. This was the heyday of specialized subject publications that appeared in looseleaf format, and provided both primary source law and practice commentary.
20. The University of Pittsburgh and the Ohio Bar Association lead the pack in trying to find a way to research the full-text of existing law.
21. Notable among these are: German, Italy, Denmark and Sweden.
22. While initially non-profit, this project was recognized as having profit potential, and was supported by, and ultimately purchased by, the Mead Paper Company which extended the coverage beyond Ohio law.