The Internet, Legal Regulation and Legal Pluralism

Considerable academic effort is being expended in considering how to regulate various activities on the internet, particularly those as relate to obscene material, breaches of privacy and challenges to intellectual property rights. Post and Johnson (1997) offer the following solution which is typical; 'We believe that the most obvious answer to this question -existing territorial sovereigns -may well be wrong... The new science of complex systems gives us reason to hope that an overall system of governance of the net that reconnects rulemaking for online spaces with those most affected by those rules -but that also allows online groups to make decentralized decisions that have some impact on others, and that therefore elicit disparate responsive strategies -will create a new form of "civic virtue".' The paper will argue that this analysis is in all but name offering a solution based on the theory of "legal pluralism". That legal pluralism is not articulated as the theory is not surpising given that the debate is dominated by those with access to the internet. Access to the internet is limited, much of the worlds population is unable or prevented from using and becoming part of the internet community (Wresch, 1996). The values of western legal systems, which know little of legal pluralism, therefore prevail. Legal pluralism is a concept borrowed from sociologists, and only recently been introduced to legal studies (Van den Berg, 1992, p.451; see further McLennan, 1995). It has never been encouraged in the Western European countries where the predominant view is that different legal systems cannot exist within one-nationstate structure. The administration of justice and government has been structured and developed within a monistic structure, pluralist/dualistic ideas were considered dangerous to this establishment. (Merry, 1988, p.872; Van den Bergh, 1992, p.451). Legal pluralism stands in contradiction to the notion that the law is a single, monolithic, unified sets of rules flowing from the State's hierarchy. Progress towards and acceptance of pluralism has been hampered by the difficulty of finding a sufficiently robust definition of legal pluralism. (Griffiths, 1986). Griffiths defines legal pluralism as the presence in a social field of more than one legal order (ibid, p. 1; further see, Merry, 1988, p. 7; Pospisil, 1971; Van den Bergh, 1992, p. 451). Van den Bergh suggests that pluralism should be viewed not as a situation but as a process that develops in time, a complex patterns of continuous interactions (1992, pp.451-454). A Japanese jurist, Chiba provides a perspective of legal pluralism that is critical of the alleged monistic nature and ethnocentric nature of western jurisprudence. In his view, modern western jurisprudence is based and has been developed on Hellenistic and Christian views of men and women (1986, p.2) and has been continually trying to influence, particularly legal systems of Afro-Asian countries. Chiba challenges the monistic system of European laws. Pushing further than Griffiths he identifies various layers of laws, i.e. official laws, unofficial laws, and legal postulates. He emphasises that jurisprudence of any contemporary society cannot be identified as a unified system. The State cannot control the whole of the law as cultural and social aspects of legal principles are not capable of outside control. 13th Annual BILETA Conference: 'The Changing Jurisdiction' Friday, March 27th & Saturday, March 28th, 1998. Trinity College, Dublin. Page 1 of 9 Jones 02/04/2005 http://www.bileta.ac.uk/98papers/jones.html The paper will take these forms of analysis of pluralism and apply them to the problems of obscenity, privacy and intellectual property rights as they relate to the internet. With such analysis it is hoped that solutions may be offered with a more coherent foundation than those presently being presented.