Jean Nicolas Druey, Information als Gegenstand des Rechts, pp. 29–43 (Zurich/Baden-Baden 1995).
Druey – Information als Gegenstand des Rechts
Background
The text is an extract from Jean Nicolas Druey’s influential book «Information als Gegenstand des Rechts» (translated: «Information as a Subject of Law»). The chapter – that is embedded in the opening part of the book under the header «Phänomen» (translated: «Phenomenon») – describes the relationship between information and law in a relatively short but concise manner. The book «Information as a Subject of Law» is divided into 14 chapters and was published in 1995. The text is based on a theoretical approach and intends to explore the relatively new phenomenon of information. At the end of this seminal book, Jean Nicolas Druey concludes with elaborated theses.
Jean Nicolas Druey has been a pioneer in the development of the information law discipline in Switzerland. Therefore, information law is a field that was strongly influenced by his contributions. His book, which is called a masterpiece, offers fundamental theories of information law. Furthermore, the book serves as the foundational oeuvre of the St. Gallen Research Approach of the Information Law (cf. Gasser, 2.1). In the following years, the information law approach has been further developed and it has been expanded in important aspects. Finally, in 2015, Druey published the impressive book «Der Kodex des Gesprächs» (translated: «The Code of Conversation»).
Jean Nicolas Druey (born 1937) is an emeritus professor of civil and business law at the University of St. Gallen. He was a co-founder, with Herbert Burkert and Urs Gasser, and is still a member of the board of the Research Center for Information Law at the University of St. Gallen. He was honoured with a commemorative volume for his 65th anniversary; the volume was edited by Rainer J. Schweizer (cf. Schweizer/Burkert, 3.4), Herbert Burkert (cf. Burkert, 2.2/4.3) and Urs Gasser (cf. Gasser, 2.1). Prior to his academic career, Druey was a member of the legal department of the pharmaceutical firm Hoffmann-La Roche and he also worked – first as a member and then as a managing senior director of the law department – for the auditing firm of Allgemeine Treuhand in Zurich (ATAG), which later became the Swiss branch of Ernst & Young.
Summary
The extract «Das Verhältnis von Information und Recht» (translated: «The Relation between Information and Law») of the book starts with the statement that law itself is information. Jean Nicolas Druey is of the opinion that information in its entirety cannot be regulated by and through law. He clarifies that law consists of legal provisions; therefore, law is a specific type of information aimed at ensuring socially adequate behaviour. In addition, Druey emphasises that information is a phenomenon within law; he points to the fact that even if law is information, it has the power to regulate information.
In the next section Druey describes the different strategies concerning information. The text discusses the various alternatives that law has when approaching information. He mentions five basic strategies: (i) global strategies, encompassing distribution, allocation and protection; (ii) partial strategies, encompassing process-oriented interventions, organisation, and exclusivity agreements regarding specific information; (iii) informational participation in communities; (iv) protection of informational violence; (v) settlements through and by information contracts.
In view of the global strategies it is questionable whether information can be treated as property. Druey states that a major difference between information and objects is the (limited) ability to allocate. Concerning partial strategies, the mentioned process-oriented interventions can be found, for example, in the context of procedural law through information obligations. In addition, the information flow may be structured in organisations. Referring to informational participation in communities, Druey states that sharing information is an important aspect.
The second chapter of the book concludes by reflecting on the ways in which information serves the law. Regarding this aspect, Druey points out that the primary function of law must be seen in settling conflicts through non-physical means. In addition, information can be understood as the foundational condition for the functioning of the entire legal system. Since information has a key function within law, Druey focuses on the fact that there are several limitations on how information can be exploited for a specific purpose of law. Furthermore, Druey describes the asymmetry between informing and not-informing. He concludes that the term information has a dual meaning.
Finally, Jean Nicolas Druey states that law cannot regulate information in its totality due to phenomenological reasons. He analyses the relationship between information and law in a ground-breaking manner and lays the scientific foundation for further research in the mentioned legal field.