Rolf H. Weber, Strukturations- und Steuerungstheorie als «Ordnungshilfen» im Informationsrecht, Rechtstheorie, Volume 40, pp. 516–532 (Berlin 2009).
Weber – Strukturations und Steuerungstheorie
Background
The text was published in the 40th volume of «Rechtstheorie» (translated: «Legal Theory») in 2009. Rolf H. Weber describes the subject «Strukturations- und Steuerungstheorie als «Ordnungshilfen» im Informationsrecht» (translated: «Structuration Theory and Governance Theory as Guidance in Information Law»). Mainly during the last 15 years, Weber has devoted a good part of his research capacity to topics of information law and Internet law (cf. Weber, 1.3/3.1/4.2/4.4). The text is based on a speech that Weber gave in Greifswald at the Symposium on «Informationsrecht – Geschichte und Zukunft einer neuen Disziplin» (translated: «Information Law: History and Future of a New Discipline»). The symposium was organised by law professor Thomas Hoeren, University of Münster (Germany).
Rolf H. Weber’s text can be seen as a further development of the theoretical foundations in information law (cf. Druey, 2.1; Weber, 1.3; Gasser, 2.1). He introduces his text with the statement that information law is not a system as such, but that information can turn into a subject of law. Often information assumes auxiliary functions in related legal fields. Therefore, information law must be described as a cross-sectional discipline (cf. Weber, 1.3). With regard to this characteristic of information law, Weber attempts to define elements of structuration and elements of governance in a context of informational law. These theoretical concepts are based on the systems theory.
Rolf H. Weber (born 1951) is a professor of civil, commercial and European law at the University of Zurich, Switzerland, and a visiting professor at the University of Hong Kong. His main fields of research are Internet and information technology law, competition law, international business law, international financial law, and international trade law. Rolf H. Weber is co-founder of the Center for Information Technology, Society and Law (ITSL) at the University of Zurich. He also works as an attorney-at-law in Zurich.
Summary
At the beginning of the text Rolf H. Weber outlines the elements of the structuration of systemic processes. A systems theory is based on the system’s capabilities to organise itself in a self-referential manner with regard to the interplay between positive and negative feedbacks; such a system is usually very complex. The weakness of the system can be seen in the high degree of abstraction. According to Weber, the fact that the analysis of informatics on a legal theory basis goes hand in hand with the first information law approaches by Fiedler (cf. Forstmoser, 1.2) and Steinmüller (cf. Egloff, 3.3), is more than just a historical coincidence. However, the systems theory does not take into consideration the aspect of «actor-centred»; therefore, the fact that individuals represent subjects of control is often neglected.
An alternative model is the so-called structuration theory; this concept attempts to reduce the complexity of the systems theory. In a nutshell, the theory of structuration means that resources and rules that are included in the production and reproduction of social action are, at the same time, part of the system’s production. In the analysis of a legal field, the term «rule» is important. Constitutive rules lead to adapted behaviours. In contrast, regulative rules serve the behaviours that exist; these rules focus on processes that are logically independent from the wording of the regulation.
According to Weber, in the context of the structuration theory, the rules as part of structures do not exist as such; they exist since the actors are embedded in the structures and comply with the applicable rules. Therefore, the legislations can be defined as codified rules of interpretation rather than just as rules. However, the theory of structuration contains weaknesses; it remains unclear to what extent the actors need to know the rules that are relevant for their action.
In a further section Weber explains the extension of the «actor-centred approach» through theories of governance. These theories can be described as a significant social science approach. In particular, the actor-centred approach of governance must be distinguished from the systems-theoretical approach of governance. Regarding the possibilities to control the acting persons, the systems theory (based on governance) merits a pessimistic assessment. Hence, the actor-centred governance theory has convincingly reached increasing importance.
In addition, it can be distinguished between the subject and the object of governance. This leads to the situation that the existence of an intentionally acting actor is necessary. Therefore, governance in intermediary systems is to be understood as a collective organised and institutionalised process of structural links between political and part-systemic actors. Every interaction is both an individual and a social action. As a result, a cross-reference must be made to Anthony Giddens, a British sociologist who is known for his theory of structuration and his holistic view of modern societies. Giddens’ model of actors is based on three actions: (i) the individual form of reflexive controlling; (ii) the rationalisation of action; and (iii) the aware and unaware motivation of action.
Furthermore, Weber describes the development perspectives for information law. With regard to material links, there are various possibilities to classify information law. Sometimes the link is made to the claims of the individuals that dispose of information and also demand them. This structuration approach is called «claim system». A further link can be based on the information flow; hence, a relationship between information/non-informed and informed/non-informed is a possible option (cf. Weber, 1.3; Druey, 2.1). In addition, a link can be set to the different phases in which information occurs. Weber also examines the various dimensions of information law. Thereby, the text underlines the functional dimension, the distributive dimension and the international dimension.
In the last section Weber’s text analyses the concretisation of the above-mentioned theories in information law that must determine how it can influence the processes in the information society. From a methodological point of view, the different structuration and control approaches in law should be in coherence and the informational law dimensions have to be taken into account.
The term information law urges the structuration regulation to be defined as the starting position. Since law usually contains a function of governance, intensive and not only generic rules must be developed to structure daily life. With regard to the various forms of production and distribution of information, it seems adequate to not use statutorily discursive rules. Furthermore, Weber states that the enforcement of informational rules is difficult. If the breach of relevant legal provisions is without consequences, a chaotic disorder will appear in information exchanges. Therefore, the enforcement of informational law must be ensured.
Weber’s text concludes that in the information context area, procedural rules must gain enhanced importance. Informational circumstances should enable appropriate actor-centred processes that (procedurally) govern the participants of the information society. Since information law affects the developments of the information society, it should be understood as an institutionalised process of structured links between political and systemic actors designing a procedural legal framework.