Towards Information Law

Autore:Vittorio Frosini
Carica:Professor of Theory of Legal Interpretation at the University La Sapienza of Rome

1. Recollection of an Inaugural Lecture. 2. Past and Present in the Relationship between Informatics and Law. 3. Informatics and the Modern Law of Information. 4. Informatics: Civil Law, Criminal Law and the Administration of Justice. 5. Society and Information Law.


    Pubblichiamo il testo della relazione tenuta il 16 marzo 1995 dal prof. Vittorio Frosini nella Ceremony Hall della Universita di Oslo per la celebrazione del XXV anniversario della fondazione dello Institutt for rettsinformatik diretto dal prof. Jon Bing. In tale occasione, il Norwegian Research Center for Computer and Law (nrccl) ha radunato i sette pionieri dell'informatica giuridica nel mondo: oltre al prof. V. Frosini hanno partecipato i professori Colin Tapper (Oxford), Layman Allen (Michigan), Peter Selpel (Stockholm), Spiros Simitis (Frankfurt am Main), Lucien Mehl (Paris), Ejan Mackaay (Montreal): alcuni del quail membri corrispondenti del Comitato Scientifico della nostra Rivista. Ad ognuno del sette invitati e stata intitolata un'aula dell'Istituto d'informatica giuridica, che ha sede nell'edificio della Facolta di Giurisprudenza: al prof. V. Frosini Presidente del Comitato Scientifico della nostra Rivista, e stata intitolata la stanza delle riunioni (Moterom, n. 436) dell'Istituto. Si e reso in tal modo omaggio al contributo dato dagli studiosi Italiani alla disciplina, presente ed operante con grande prestigio nella comunita accademica norvegese come In quela di altti Paesi di civilta tecnologica avanzata; a differenza che In Italia, dove essa resta a fare da Cenerentola confusa nel gruppo di appartenenza delle discipline filosofico-giuridiche, e cio malgrado il riconoscimento Internazionale del contributi offerti dalla dottrina e la presenza di un'articolata legislazione di diritto dell'informatica (C.C).

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@1. Recollection of an Inaugural Lecture

Dante Alighieri, in his voyage exploring the hereafter, having descended Into the fourth ´bolgiaª of hell, declared that ´of a new pain I must make versesª: new or, In other words, unusual and strange, He had, In fact, come

Into view of the place where diviners, soothsayers and prophets are punished; or all those who wished to foresee the future; and who, through the punitive law of retaliation, are now forced to look behind as they walk backwards, because they have their heads turned facing over their shoulders:

´for the face was turned towards the loins and they had to come backwards, since seeing forward was denied themª1.

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And this is, in fact, the destiny of those who believe they can predict the future: after a period of time has passed, they are forced to look back, so they can compare their predictions with what has actually happened and, therefore, foresight needs to be inverted and put into retrospective, it is now my turn to submit to this law.

On December 18, 1965, I gave my inaugural lecture, as the new Professor of the chair of Philosophy of law at the University of Catania, on the relationships betweea Humanism and Technology in Jurisprudence2. It was, as usual in those days before the students' protest movement in 1968, a magnificent and festive ceremony, attended not only by students and colleagues, but also by political authorities and judges. I was told later that some of the judges have been cautious and doubtful in their comments, although they had all politely applauded.

In fact, the prediction made in my speech that the computer would become an aid in the administration of justice, whereby what I called ´artificial lawª would be created, caused some alarm. This, I must say, was justified in society as it was then, in which resorting to new, automated methods and tools still seemed to be related to science fiction. In that year, the first computer 1 had been able to see in operation had been installed at the Faculty of Mathematics of the University of Catania: it was an IBM computer, manufactured in 1960. But less than two years later, in 1967, a group of judges from the Massimario (the Law Reporting Office) of the Italian Supreme Court began creating an electronic documentation centre, whose initial results were presented in Rome on March 21, 19693.

@2. Past and Present in the Relationship between Informatics and Law

I will not retrace here the mental itinerary that, initially in the USA and later in Europe, led lawyers, from the date of publication of Lee Loevinger's article "Jurimetrics. The Next Step Forward" in 1949 up to 1965 when I gave my inaugural lecture, to become interested in the possible applicationsPage 9 of the computer to their specific field of competence. I prefer, instead, to measure the mental distance that separates us from those days and expectations, by noting that in the space of thirty years the problems of computer law, not only with respect to the techniques for computer management, but also regarding the informatics ´propertyª they produce, have been added to the problems of legal informatics, or to the use of the computer's operational methodology and tools for legal research. From ´computer in the lawª to the ´law of the computerª.

These new problems are, therefore, strictly legal problems, related to the different aspects of that concept of property in the various branches of the law: civil, commercial, criminal, administrative, procedural and even constitutional and international law. These thin limbs are joined to a single body, in a new scientific legal discipline which is acknowledged to have a uniform centre corresponding to its original nucleus: or, in other words, to use an old but still vivid metaphor, a soul has been breathed in the body represented by the automated information. It is a new kind of information, adopted in our era of technological civilisation, after early times: when information passed on by word of mouth or by gestures, by symbolic designs and by the written word and then by printing and by means of electric transmission, up until today's electronic ´reificationª: that is, the information has been made a ´resª, a thing, an object, which can be stored, manipulated, sold or stolen.

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