Anyone practising law in 2015 will almost certainly have been using digital technology to access and deliver advice on the law for a number of years. The computer desktop or mobile devices are now the entry points to researching, communicating and understanding our legal environment. Our legal system is increasingly being shaped and changed by the ways in which technology delivers up the law.
Judge David Harvey got his first computer in 1979. That was the starting point for a lifetime fascination with information technology and the way in which it affects the law and the wider justice system. He has lectured on technology and the law and contributed in many seminars and conferences.
In 2004 he decided to start research towards a PhD on the impact of information technology on the law.
“I looked at the field, and thought ‘this is moving too fast’; the data forest really hasn’t grown and settled down.”
Back in 1979 American historian Elizabeth Eisenstein had published a seminal work called The Printing Press as an Agent of Change. This had put forward the idea that the printing press had been the instigator of an “unacknowledged revolution” which had a major impact on the way the intellectual and literate elites accessed and managed the dissemination of information and ideas.
After reading Eisenstein’s work Judge Harvey had found the subject for his thesis.
“In the entire book – which is something like 900 pages – there were only two references to legal printing. I thought ‘Wow: We’ve got a literate elite – the lawyers – how did the printing press impact upon them?’”
Combining research with the busy life of a District Court Judge means the thesis was completed in 2011. It has now been expanded into a book which was published last month by Hart Publishing (see details at end of this article).
So, how did the printing press impact upon lawyers? Was its influence as revolutionary as in other fields?
“It was and it wasn’t. In terms of the amount of legal information that became available and its distribution, it was, certainly. New books were coming out, Edward Coke uses the printing press to disseminate his ideas, Plowden uses it for the law reports. There’s this whole range of how-to-do-it texts for attorneys and solicitors and justices of the peace.”
The first printed book on English law was Sir Thomas de Littleton’s Treatise on Tenures, published in 1481 or 1482. Legislation started to appear in print from 1483 and Judge Harvey believes the “spin doctoring” which monarchs such as Henry VIII were able to impart by developing lengthy preambles to their statutes meant lawyers started to look at the preambles of statutes as an aid to interpretation.
“What we now recognise as the ‘mischief’ the statute was to remedy as an aspect of interpretation began to develop,” Judge Harvey says. Around 1560 Sir Thomas Egerton wrote a treatise entitled A Discourse on the Exposition and Understanding of Statutes (not published until 1942) – the first text on statutory interpretation. Judge Harvey says the link between the development of print and statutory interpretation needs much more investigation.
The amount of legal information was certainly burgeoning, Judge Harvey says, but lawyers only changed their practices very, very gradually.
“It was evolutionary rather than revolutionary. There was this sort of gradual evolution because the lawyers were very wedded to their earlier information practices – like the recording of information in notebooks or commonplace books and the sharing among their various coteries within the Inns of Court, and so they were still wedded very much to the manuscript culture in many ways.”
Moving forward a few centuries (Judge Harvey’s book focuses on the period from 1475 until 1642), he sees some important lessons from the past for modern lawyers.
“We are in the midst of a paradigm shift that is probably as big if not bigger than the paradigm shift ushered in by print. Lawyers are fearfully bad adopters of technology, but unlike the introduction of print I don’t think we can rely on co-existence of technologies.
“Lawyers are going to have to come to grips with the new tech and understand it. We need to get past the content layer with which we have been obsessed for centuries and understand that digital information has different qualities from that which went before.”
At least when print came along, lawyers had a common medium upon which information was stored – paper, Judge Harvey says.
“Print mechanised the production of paper-based information. Digital information stored on electronic media bears no resemblance to paper. The ‘get out of jail free’ card of functional equivalence does not provide an answer – it merely sidesteps the issue.”
The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475–1642 by David J Harvey, Hart Publishing, February 2015, 978-1-849466-68-4, 336 pages, hardcopy, £70 (p&h excluded).