The contemporary predicament of too much business law

Historical perspective is useful for understanding how our Australian legal system arrived at the position of having so much business law in electronic media, more than any business lawyer will ever read in a lifetime even in his or her own area of speciality.

Writing this post relaxed me because I realised it is inevitable in this period of escalating change that we will continue for years to hear the modern battle cry: “There should be a law about this!”. A great deal is changing and rightly or wrongly people feel more laws will help them and their society cope better with the change.

The oral, stone and paper traditions and eras of law

I turn now to a potted history on how we got into this current predicament and why there is a need for change.

  • ORAL LAW ERA Text or writing is not essential for law making. People with oral or customary traditions still have law, eg as applied during rites of passage in many cultures. Lycurgus, the chief lawgiver of the Spartans even forbade that the fundamental laws of his people ever be written. If you must write the law in order to remember it, he said, then the spirit of the law has already been forgotten. In oral traditions it is important to memorise thought, hence the repetition of rituals and the use of poetic writing making it easier to recite and remember ideas.
    Hammurabi, legal code writer 1780 BC
  • STONE LAW ERA Where legal codes were recorded in stone the law changed little over long periods of history, eg Hammurabi’s Code (dated to 1780 BC), the Ten Commandments (various dates of origin), and the Roman Twelve Tables (preparation began in about 450 BC). The ideas of “progress” and “ongoing change” were not prominent in those times.
  • PAPER LAW ERA Following are key figures, dates and events in the paper era of English law:
    • William the Conqueror and the Norman conquest in 1066 introduced the Domesday Book (which was intended to codify existing law and create a record of landholdings to facilitate taxation).
    • Henry II (1154-1189) is credited as inaugurating the English common law system.
    • Henry de Bracton (died 1268) is an English judge and legal author credited with the idea of using written case reports to guide future decisions.
    • With printing (introduced by Caxton to England in 1476) and the spread of literacy not only did the medium on which law was recorded change, but the speed of change in the law escalated. In time printing spread law far and wide and encouraged or helped people to read and write.
    • The first book of case report in England was published in 1537. Official legal publishers subsequently emerged thus in time playing a part in enshrining what is now known in law as the doctrine of precedents and the practice of case citation. The precedent doctrine holds that judges in a court must follow authority, they must be influenced or bound by preceding court decisions on similar facts or in analogous cases in their jurisdiction.

The electronic law era

All the above bullet points are discussed by American author and legal academic, M. Ethan Katsh, in a book titled The Electronic Media and the Transformation of Law (Oxford University Press, New York, 1989).

Last month I started to re-read the Katsh book in preparation for my presentation on clause library creation at a Sinch legal software seminar in Sydney on the automation of legal documents and templates. A post on some US speakers at that event is here at the Pactum law technology blog.

Katsh examines the history of law and the English law’s precedent system. He tracks how each change in the media used [eg oral, stone, paper and electronic) to record law and court decisions, effected changes in the message of law, eg its content. This is the central idea in the book.

I first used a computer to do legal work in 1983. Since then I have observed that the law is changing as a field of practice as lawyers became better at using IT and as IT has become more functional, pervasive and simpler. For business law firms leather-bound volumes proudly placed in display cabinets have long been outplaced as a capital cost by IT software and hardware and electronic information services.

The pay-off is that lawyers are now manipulating data on screens of various sizes and shapes in ways not desired or predicted by Lycurgus, Hammurabi, Moses, William the Conqueror, Henry II, Henry de Bracton and other law makers. Whole new issues are arising, and fast.

The electronic medium has contributed to business law today being in flux and it will be used to battle the flux.

In the future it will be more true than ever to say lawyers don’t know the law but I do hope they will continue to know where to find it and how to interpret and apply it in a manner which is “just, quick and cheap”. This hope is expressed in section 56 of the Civil Procedure Act 2005 (NSW), which has equivalents in all jurisdictions in Australia:

(1)  The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)  A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4)  A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3).

(5)  The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.


Further reading – business law theory and frameworks series

Noric Dilanchian