The Brave New World of (Swiss) Law: Contours of a Framework and Call for a Strategy to Shape Law's Digital Revolution

Abstract

The emergence of computer networks in tandem with digitization — the rise of digital communication — has had a fundamental impact on the world we live in. Over the past few years, we have witnessed how digital communication has shaped how we communicate with each other, build and maintain friendships, work together, and engage in our communities and society. But digital technology not only affects our lives as individuals; it also has system level impact. The deep transformations in the economic system — consider the tectonic shifts in the entertainment or publishing industries, and more recently the advent of the so-called industrial Internet — are well-documented and demonstrate the disruptive potential of digital communication. However, many other systems are also deeply affected by digital technology: whether culture and arts, health care, transportation, or energy, virtually all sectors of society are currently undergoing changes fueled by digital communication.

In some areas, the impact and the implications of digital communication are well studied and understood; in other systems, the effects have only become visible more recently and the transformation processes are still unfolding. In this essay, we look at one such system where the impact of digital communication — despite a long research history dating back to the 1950s — is still unfolding and is perhaps underestimated, particularly among policy- and decision-makers: the impact of digital communication on the legal system as an information processing system.

We argue that a growing body of evidence suggests that law is profoundly affected by the digital revolution, at various levels and with manifold implications not only for the legal profession, but society at large. Given these deep transformation processes, we call for a pro-active, systematic, and strategic approach when dealing with these transformation processes in order to address associated challenges and manage risks, but perhaps most importantly, also to make use of the tremendous opportunities digital communication offers for the law and, more broadly, social justice.

This essay is divided into three parts. In the first part, based on general patterns of change in the information ecosystem, we identify four areas with examples of structural transformations enabled by digital communication: the creation of law, the dissemination of law, access to law, and the use of law. For each category, we highlight recent manifestations and developments—mostly (but not exclusive) from the US — with the goal of illustrating the types of shifts we anticipate.

In the second part of the essay, we argue that there is a need to map and evaluate the different moving elements identified in the first part more systematically. Towards this end, we develop an analytical framework on which the various moving elements discussed in the first section of the essay can be mapped, analyzed, and evaluated. Such a framework is an intermediate step when working towards a strategy dealing with the law’s digital revolution.

Consequently, the third part builds upon this analytical framework and sketches the contours of a strategy for Swiss Law, which consists of a methodological and a substantive component. Methodologically, we call for a new strategic literacy enabling the analysis and management of the relationship between law, digital communication, and society in the digital age. The second component — again in form of a sketch — identifies a series of opportunities and possible next steps in the Swiss context.