Herbert Burkert, Information Law: From Discipline to Method, in: Dag Wiese Schartum/Lee A. Bygrave/Ann Gunn Berge Bekken (eds.), Jon Bing, A Tribute, pp. 388–400 (Oslo 2014).
Burkert – From Discipline to Method
Background
Herbert Burkert’s text was originally intended for publication in a commemorative volume that was to be handed over to Jon Bing in 2014. Sadly, on 14 January 2014, Jon Bing died. However, the death of Jon Bing increased the importance of the volume, namely as a tribute and testimony. Jon Bing was a Norwegian law professor at the Norwegian Research for Computers and Law (NRCCL). He was a pioneering giant in the law on information and communications technology. Over a period of almost fifty years Jon Bing attempted to outline how society interacts with technology. Jon Bing contributed many renowned scientific publications to the above-mentioned legal field.
Herbert Burkert has become known as a scholar tackling theoretical and philosophical questions in the field of information law. His contribution discusses the development of information law from discipline to method. Burkert’s text falls into the fifth part of the tribute for Jon Bing called «Rettsinformatik» (translated: «Law and Informatics»). Elements of the text are based on the farewell lecture given by the author at the St. Gallen University Law School in October 2012. In his farewell lecture, Burkert provided a comprehensive analysis of the «St. Gallen Approach to Information Law» (cf. Gasser, 2.1).
Together with Jean Nicolas Druey and Urs Gasser, Herbert Burkert is a co-founder of the Research Center for Information Law at the University of St. Gallen. He continues to serve as the president of the board of this research centre. Burkert was chairman of the Legal Advisory Board to the European Commission’s DG «Information Society»; in the late 1990s and early 2000 he convened a group of independent legal experts to look at the interplay between law and information society and explore regulatory issues at the transition point between old and new media.
Summary
Herbert Burkert’s text starts with a discussion of some «disciplinary approaches». Burkert identifies three different but interconnected approaches: (i) information law as information technology law, (ii) information law as an exercise in self-reflection on the function and performance of law in the age of computing, and (iii) information law as a body looking at the way in which law deals with information, as such regardless of the technology applied. According to Burkert, information technology is losing its special appeal. In view of its self-reflective approach, information law has given way to technical engineering that is application oriented. However, the third approach seems to be achieving renewed attention.
In a further section, Burkert analyses the information law method in detail. He concludes that an information law method means not only developing well structured and ordered legal instruments for information interventions, but also evaluation. Thereby, Burkert describes what he calls an «information-functional» evaluation and what he defines as a «normative-functional» evaluation. His thoughts are underlined by a number of case studies.
According to Burkert, the information-functional approach examines the impact of legal tools on information flow in order to evaluate the functionality of these tools. Thereby, the functionality is seen from an information flow perspective. This approach can be compared with the assessments in the field of law and economics. In this context, the information technology has to be considered. For example, Burkert questions what the implicit and explicit assumptions of the role of information technology for these distribution processes are. In addition, the text states that the outcome of such an information-functional approach has a comparative and not an absolute value. It is about the problem of which provided legal provision fits the best to encourage adequate social information flow.
The next section describes the normative-functional evaluation approach that focuses on the framework. Burkert states: «Whatever the information-functional analysis produces, it has to fit into the framework set by the normative functional evaluation» (p. 394). For this purpose the normative framework – mainly constitutional law but also other information law sources – must be examined.
At the end Burkert states that the methodological approach is flexible and can be adjusted to answer whatever question needs to be answered. According to Burkert, both the descriptive and the functional part of the informational method borrow freely from disciplines and research efforts outside the law.
In a nutshell, Herbert Burkert states that discussions on information law have mainly been discipline-oriented. He suggests that – in contrast – discussions on methods might be more beneficial for information law in the future.
Further developments
On 11 and 12 September 2015, the yearly Symposium of the Swiss Lawyers Association took place in St. Gallen. Various speakers presented their topics in the area of «law in the digital age», which was chosen as the conference topic. The following presentations which were given have also been published in Zeitschrift für Schweizerisches Recht (ZSR 2015 II, Volume 134, Schweizerischer Juristentag 2015, Rechtsfragen im digitalen Zeitalter):
- Mira Burri: «The International Economic Law Framework for Digital Trade» (pp. 7–32)
- Stefan Bechtold: «Urheber- und Markenrecht im digitalen Zeitalter» (translated: «Copyright and Trademark Law in the Digital Age») (pp. 73–121)
- Jacques de Werra: «Patents and Trade Secrets in the Internet Age» (pp. 123–190)
- Bertil Cottier: «Le droit «suisse» du cyberspace ou le retour en force de l’insecurité juridique et de l’illégitimité» (translated: «The «Swiss» Cyber Law or the Resurgence of Legal Insecurity and Illegitimacy») (pp. 191–257)
- Andreas Glaser: «Der elektronisch handelnde Staat: E-Legislation, E-Government, E-Justice» (translated: «The Electronically Acting State: E-Legislation, E-Government, E-Justice») (pp. 259–333)
- Urs Gasser: «Perspectives on the Future of Digital Privacy» (pp. 335–448)
In addition to the mentioned conference contributions, the law faculty of the University of St. Gallen published a commemorative book in 2015 containing 778 pages divided into: (i) foundations, (ii) business law, (iii) contract law, (iv) public law and (v) criminal law. A few articles address issues of information and communications law:
(i) The contribution of Herbert Burkert (cf. Burkert, 2.2/4.3), Peter Hettich and Florent Thouvenin, «Eine kritische Geschichte des Informationsrechts» (translated: «A Critical History of Information Law») describes a specific concretization of the «St. Gallen Research Approach of the Information Law» (cf. Gasser, 2.1); the authors substantiate the approach in the fields of data protection, copyright law and archives law. Peter Hettich is a professor for law of regulated markets at the University of St. Gallen. Florent Thouvenin is an extraordinarius professor of information and communications law at the University of Zurich.
(ii) The contribution «The Brave New World of (Swiss) Law», published by Urs Gasser (cf. Gasser, 2.1) and Jens Drolshammer, discusses the contours of a digital framework and calls for a strategy to shape law’s digital revolution. The text is divided into three main parts: (i) Digital Communication and Structural Shifts in the Legal System; (ii) Contours of a Framework and Evaluating the Impact of Digital Communication on the Legal System and (iii) Outlook: Call for a Strategic Approach for Shaping the Legal System’s Digital Future. Jens Drolshammer is an emeritus law professor at the University of St. Gallen on Anglo-American law and the planning and structuring of legal transactions, as well as a co-editor of the Anthology of Swiss Legal Culture.