Jean Nicolas Druey, Das Verhältnis von Information und Recht, excerpt: 1. Teil, 2. Kapitel in Information als Gegenstand des Rechts, Zürich/ Baden-Baden 1995, 437-444
G_2.17_DRUEY_Verhältnis Information Recht
[The relationship between information and law]
a) Background
The text written by Jean Nicolas Druey is a chapter taken from his seminal book Information as a Subject of Law (Information als Gegenstand des Rechts, 1995). The excerpt needs to be read in a broader biographical and philosophical context. Druey is a “man of the books” who is bilingual and gifted with many talents, including a concert diploma in music. He witnessed with scepticism the technological transition from an analogue and offline information environment to the global digital network society, which has been accompanied by an explosion of the societal perception value of “information” as its building block. This positive charging of the information phenomenon has also been reflected in an increasing number of legal and regulatory provisions—ranging from a new generation of data protection laws to farreaching disclosure and transparency regimes—aimed at capturing, channelling, allocating and relying upon information in almost all areas of life. Against the backdrop of these tectonic shifts, Druey’s book starts with a critical discussion of the relationship between law and information, with the central observation that information—despite the legal system’s enormous “appetite”—is a horse difficult to catch. The reasons are manifold and both phenomenological and normative in nature. First, law is itself information, a fact that puts limits to any attempt at creating a comprehensive information order (an idea that was considered by German scholars). Second, information (in its multiple dimensions, with Druey borrowing from Speech Act theory) ultimately needs to be interpreted in a human context, where fundamental rights and values demand that the legal system constrains itself with regard to the enclosure of information. Another aspect is worth mentioning: Perhaps surprisingly, and certainly against the mainstream opinion at the time of publication, Druey argues that information is not a value in itself, but rather value neutral from a legal perspective, as information might also have negative effects in case of low quality, depending on context and circumstances. This normative point is particularly important as it suggests that law should not have any a priori position vis-à-vis information—which also means that there cannot be a general default position in favour of information flow, regardless of the perception value generally attributed to information.
At the core of Druey’s book is a careful analysis of various legal institutions that play a key role in regulating information, regardless of their provenance and place within the legal system. It is this cross-sectional discussion that sets the stage for a theory of information law spanning across all areas of law, bridging private and public law—a feature of the St. Gallen School of Information law, but unusual given the contemporary practice of continental European scholarship to focus on clearly delineated sub-disciplines. The analysis of information-regulating institutions and a diverse set of associated materials (including case law from various jurisdictions) confirms the initial observation that the nature of information (especially its subjectivity and contextuality) makes it very difficult for law (aimed at objectivity and generalization) to deal with information. Consequently, Druey’s attention shifts to the question from what sources appropriate norms aimed at governing information can be generated, and through what mechanisms (with an emphasis on procedures) they can be “imported” into the legal system, with the goal to facilitate between the contextual information phenomenon on the one hand and the law on the other. Druey’s next book is expected to provide a deep dive into communication-born norm genesis and the circumstances in which such norms crystallize into legal norms.
His ground breaking oeuvre offers a fundamental theory of information law, and serves as the foundational piece of the so-called “St. Gallen School of Information Law”, which is describe in more detail here. This school of thought travelled widely beyond the borders of Switzerland and is now acknowledged and accepted as state of the art. After his retirement, the information law approach has been further developed and in important respects it has been expanded, by a network of collaborators and doctoral students associated with the Research Center for Information Law, which was founded by Druey in 2001 and collaboration with a small number of St. Gallen faculty members and a doctoral student. The following three texts provide a reading sample authored by the three most active contributors to the St. Gallen school of information law: Jean Nicolas Druey, Herbert Burkert, and Urs Gasser. The inclusion of John Palfrey, a former director of law at Harvard Law School and a former rector of the Berkman Center for Internet and Society should bear witness to the fact that the school has reached a state of transnational acceptance.
Jean Nicolas Druey is a professor emeritus of the University of St. Gallen and former legal counsel to the ATAG – now Ernst of Young, large international accounting firm based in Zurich. He started his career as an in-house lawyer with the pharmaceutical company Hofmann-La-Roche, but spent most of his professional life in academia. At the University of St. Gallen, he taught private and commercial law for over two decades, and from time to time offered doctoral seminars in information law. Druey gained an international reputation in the scholarly community for his important contributions to Swiss and European corporate group law (Konzernrecht) and generations of students and practitioners have appreciated Druey’s work based on a leading treatise on Swiss obligation law as well as a textbook on the law of succession he authored. Later in his career, and after more than twenty years of research dating back to his time as an LL.M. student at Harvard Law School, Druey set a milestone in another, less well-known field of law by publishing his seminal book “Information as a Subject of Law” (Information als Gegenstand des Rechts).
b) Summary
The text at hand is the second chapter of Jean Nicolas Druey’s seminal book “Information as a Subject of Law” (Information als Gegenstand des Rechts). The chapter is embedded in the opening part of the book under the header “Phenomenon” and explores in fundamental ways the relationship between information and law. Typically for Druey’s scholarship, the text is written in a very concise manner – each sentence, in fact, each word was carefully chosen. As such, the relatively short chapter (pp. 29-43) resembles an accordion: The insight offered in the text almost magically expands and unfolds as the level of sophistication of the reader increases.
The main phenomenological insight is frontloaded (p. 29): The relationship between information and law is bi-directional, as law is itself a particular type of information. Consequently, law is both higher- and lower-ranking vis-à-vis the information phenomenon. The conclusion that Druey draws from this observation is both straightforward and fundamental: Information in its totality (think of it as the entire information universe) cannot be regulated by and through law. To put it differently: As law is itself information, it cannot capture all of it; law’s access to information needs to be limited for a phenomenological reason (later in the book, Druey discusses in detail the normative reasons why law should not aim to capture and regulate information – and needs justification for doing so in specific circumstances).
Building upon the fundamental insight as to law’s quality of being information, Druey further specifies the relationship. First, he clarifies that law consists of norms, and therefore law is a special type of information aimed at ensuring socially adequate behavior. In other words, law is not any kind of information, but information that is authoritative. In a second step, Druey focuses on the flipside of the relationship between information and law that is at the core of the book: information as a phenomenon within law. The key point here is that even if law is information, and even if it has only limited access to information (having the blind-spot of being information itself), it has the power to regulate information. In fact, information in the human context, and therefore also law, has the inherent intent to regulate information, according to Druey (note that it is here where the impact of Speech Act theory on Druey’s thinking – see above, context – becomes visible for the first time in the book; however, without an explicit reference yet.) The next section takes a closer look at this “information within law” dimension by discussing the various alternatives that law has when approaching information. Druey calls these alternatives “strategies” and outlines four basic approaches (and some variations of them):
• Global strategies, including distribution, allocation, and protection of information.
• Partial strategies, including process-oriented interventions (e.g. in the context of procedural law through information obligations); the structuring of information flows in organizations; and the granting of exclusivity rights regarding certain types of information (e.g. protection of trade secrets).
• Informational participation in the context of communities – such as information sharing during marriage – and the question as to what extent the being part of a community triggers legal obligations of information sharing.
• Protection against informational “violence”, where law protects against certain informational acts that would do harm (examples include defamation or deception).
Chapter two ends with reflections on the ways in which information serves the law. The basic point is that information serves law by providing the key mechanism for law’s primary function: to settle conflicts through non-physical means – or at least by putting the “message” first, before potentially following up with physical means in case of non-compliance with law. Further, Druey characterizes information as the basic condition for the functioning of the legal system: Wherever law aims to regulate, information about the law (norm information) needs to be disseminated in order to have a governing effect. While information serves a key function within law, Druey also points out that there are several limitations on how information can be instrumentalized for law’s purpose. Among the problems is that the effect of any information on its recipient cannot be determined from the outset, as human information processing is a highly contextual and subjective process.
In this chapter, Druey introduces the phenomenological leitmotif as far as information and law is concerned, upon which he – like a composer and concert pianist (see background) – further elaborates throughout the book in a series of highly sophisticated variations that add value and much nuance to the general theme. Perhaps most importantly, however, the chapter makes a strong and novel point that – even regardless of (culture-specific) normative barriers such as, for instance, freedom of thought or speech – law cannot regulate information in its totality due to phenomenological reasons.