Communications Revolutions and Legal Culture: An Elusive Relationship

Abstract

This article critically evaluates recent scholarship that claims that electronic media (such as the internet, personal computers, and CD-ROMs) will fundamentally reorient legal culture. Authors writing in this vein contend that how law is retained and disseminated powerfully shapes legal thought and practice. They predict that the coming age of electronic media will rework law as profoundly as the printing press once did. Section I of the essay traces these scholars' predictions of how electronic media will reshape legal culture and shows how they emerge from a particular theoretical tradition. These writers assume that communications media have relatively direct, linear, powerful, and unmediated cognitive and social effects. Communications systems have foreseeable impacts because their effects are immanent within the technologies and emerge as media are interiorized by the profession over time. This position echoes the universalist side in a debate simultaneously underway in the history of the book, communications studies, and the anthropology of literacy. In all three of these subdisciplines, as observed in Section II, the universalists have been losing ground to contextualists. These critics stress the importance of political, economic, and cultural frameworks in shaping the effects of communications media. Their skepticism that foreseeable effects are immanent within technologies can be as profitable for studies of electronic communication of law as it has been for scholarship on print and literacy. The contextualist critique helps identify four specific shortcomings in predictive work on electronic communications and law. First, universalists provide no way to disentangle communications from other causes of legal cultural change so as to assess the relative magnitudes of influence. Second, their interest in the interiorization of communications systems inclines them to unidirectional accounts of historical evolution. Third, they overlook the power of social context to contain (as well as direct or accelerate) effects supposedly immanent within technologies. Fourth, they assume that communications exert a pressure upon society that operates in a determinate direction. Section III turns from critique to reconstruction. In particular, it argues that these analytic difficulties derive from insufficient attention to the complexities of conjunctive causation. The impact of a legal communications system depends on its interaction with variable sets of background conditions within narrowly defined local contexts. We need techniques for assessing under what conditions, and in what contexts, legal communications are significant (as opposed to trivial) causes of postulated effects. Unraveling conjunctive causation is a challenge not particular to the study of legal communications, but endemic in qualitative social science research. Section III advocates the use of comparative inductive techniques developed by qualitative social scientists. The main purpose of section III (as of sections I and II as well) is not to adjust the particular conclusions of universalist-minded authors. Rather, it tries to identify, critique, and improve their methodological commitments, their starting points for analysis. The first generation of pioneering scholarship raised important questions about the impact of electronic legal communications upon legal culture. This review essay hopes to suggest ways of enriching the answers to those questions. Keywords: legal culture, comparative, legal history, print culture, history of the book, cyberlaw