"the-tower-of-babel-c-1563_bruegel_the_elder" Before anyone claims that the easy solution is more specialisation for business lawyers, I’d like to race in and note that more and more specialisation in my experience can contribute to business law specialists not understanding each other and their common matter. It is a legal Tower of Babel situation (see right the 1563 painting by Bruegel the Elder). An example of miscommunication between professionals was the topic of the post last month titled “I’d like to thank my lawyer“. That was a popular post for the lawyers among the readership of the Lightbulb law blog.

No, there is a problem. Today the Australian legal system and its lead participants are addicted to words with too few openly stating the necessity for tools or incentives to simplify or shorten legal instruments.

That’s the bad news. The good news is that necessity is once again the mother of invention and so change and the pace of it may soon escalate.

Ironically the very tools which have made the current predicament worse, software and computers, are likely to be the tools which with Web 2.0 etc might resolve at least some of the aggravation. Believe me, many business lawyers and non-lawyers alike get very aggravated indeed when they hear the modern populist war cry – “There ought to be a law about this!”. Please, please, think again they respond, surely there’s another way to fix the problem.

And with the laws being made today it seems heretical to many lawyers that anyone could serious recommend using graphics, tables and spreadsheets in Acts of parliament (ie statutes) and court decisions, let alone software, so as to simplify information and save time.

Yet in their court decision writing judges in recent decades have increasingly adapted. They now use  modern writing styles and sub-headings in their judgments, though you still need a quiet space and not an open plan office to read and follow the dense forests of legal reasoning.

As for legislation hypertext and explanatory documents are now commonly used to help in understanding Acts and regulations. Test this by checking the legislation or court decisions at Austlii. However, lawyers and non-lawyers alike have to be careful with modern legislation, so much of it can only be understood if you have the necessary background legal knowledge and experience. Test this idea by reading the Work Choices legislation.

Occasionally a tool or mechanism for simplification turns up. Perhaps one is the new software programs such as Austhink. An article on its Rationale program came across my desk in the few weeks it took to gather thoughts for this post. Rationale uses colour-coded and hierarchical boxes to produce visual displays called argument maps. Perhaps it is another sign of a change helping to cope with the wall of legal words. The changes are taking law, lawyers and other users of law all beyond even the text-fixation about which I began this post.

Software maketh the law

Extraordinary changes are now evident in IT’s application to business law. They go beyond e-learning, online databases, wired courtrooms, electronic filing of compliance and litigation documents, online deal rooms, document automation, using blogware to negotiate contracts, and other developments since computers became standard on lawyer desktops, a development of only about 10 years ago, ie in the mid-1990s.

The law is now recorded often in software. Your proof of identity at airports, your rights of access to electronic banking, your right to use non-pirate software, your right to drive a car provided you keep within speed limits are all instances where software has become a medium for the application of the legal message (eg the legal right or the legal obligation on you).

You are denied access in all instances because the software refuses you entry. Yes there is probably some contract, legal document or legislation in which the right or obligation is noted in text; but the point is that there is a machine-read interpretation or application of that text. Hal is listening in, take care.

Such developments underline the questions of what is law and what ways of dispensing it are acceptable.

“The change I have sought to better understand with this post has enormous implications for how law is written, programmed, tested,  taught, interpreted, applied and assessed.

The change I have sought to better understand with this post has enormous implications for how law is written, programmed, tested, taught, interpreted, applied and assessed.

More and more if lawyers (a group that includes many parliamentarians and all Australian judges) don’t understand how software works they will in time become redundant. Here I’m reminded that a few years ago I chaired an IP seminar where one of the speakers (one of Australia’s most senior and  prominent IT and IP lawyers) said that every High Court of Australia decision relating to copyright in information technology has been wrongly decided. His view was that the judges were out of their depth.

“I’ll have my avatar talk to your avatar”

Change comes slowly in law. In this and many other senses, law is a sedimentary field of knowledge. If lawyers are to better manage their addiction to words, they will need help. University law courses need to change, lawyers need to be trained differently, and lawyers will need the next level of seminars specifically on the role of software in making and applying law. If the change is significant then the silo architecture currently dominating the education, training, regulation and practice of lawyers will require surgery.

As a view into one experiment in legal education Harvard Law School launched CyberOne in 2006. The primary instructor is Professor Charles Nesson. CyberOne describes itself as a law and technology academy featuring use of blogs, wikis, Internet videos, Scratch, Moodle and Second Life.

Further reading – business law theory and frameworks series

Noric Dilanchian