Peter Forstmoser, Rechtsinformatik: Einführung aus juristischer Sicht, in: Kurt Bauknecht/Peter Forstmoser/Carl A. Zehnder (eds.), Rechtsinformatik: Bedürfnisse und Möglichkeiten, Referate einer Tagung der Rechts- und staatswissenschaftlichen Fakultät der Universität Zürich vom 5./6. April 1984, pp. 3–12 (Zurich 1984).
Background
The first (large) conference on law and informatics in Switzerland was held on 5 and 6 April 1984. The speakers presented topics related to realised juridical databases and advanced IT projects in Switzerland, as well as in foreign countries. Furthermore, they discussed the practical IT experiences at that time. Afterwards, the need for support of different legal professions – mainly judges, scientists and lawyers in the private and public sectors – in the field of electronic data processing (EDP) were addressed.
At the conference the technical, legal, organisational and financial possibilities for the development of law and informatics in Switzerland were discussed. In addition, the participants discussed what effects the use of information technologies could have on the legal system. The interest in this conference was amazing; around 400 persons from science and practice participated. Peter Forstmoser’s text gives an (early) introduction into law and informatics in the mid-1980s.
Peter Forstmoser is an emeritus professor of civil, business and capital markets law at the University of Zurich, Switzerland. He is well known for his impressive professional and academic activities in various legal sectors. In the early years of his career, Forstmoser authored several publications in information technology law.
Forstmoser has also taken up discussions about law and informatics in Germany, where the respective efforts have been more advanced than in Switzerland. The two main proponents were Herbert Fiedler and Wilhelm Steinmüller. In particular, Herbert Fiedler – the German jurist and mathematician – played an essential role, making him an important personality in the field of law and informatics. Herbert Fiedler’s texts have mostly been written in an interdisciplinary, strictly objective and concise way. Together with Wilhelm Steinmüller (cf. Egloff, 3.3) and Spiros Simitis, Herbert Fiedler has impressively influenced the law and informatics since 1970. One of his key interests was the automation of law; he always underlined the necessity of the formalisation of law. Fiedler (born 1929) was a professor at the University of Bonn for law, informatics and general jurisprudence.
He was founder and director of a research centre for law and informatics and automation in Germany. Herbert Fiedler died on 15 October 2015 at the age of 86. Erich Schweighofer and Friedrich Lachmayer wrote an obituary in the Jusletter IT of 19 November 2015.
Summary
Forstmoser’s text states that, on the one hand, the electronic data processing (EDP) lawyers have to deal with the legal qualification of computers and their use (data protection and data security, cyber security or protection of computer programmes) and, on the other hand, work with IT as a tool for lawyers. The text focuses on the support of EDP for the legal profession, which can be realised in three different ways:
1. EDP «just» as a system that supports lawyers in their daily business
2. EDP as an automated decision-making process in law
3. EDP as a law service (e.g. in the legislation)
In view of the EDP-based information systems for lawyers, Forstmoser’s text focuses on information overload in the legislation and also considers the foreign information systems that are in use. Since 1969 Switzerland was interested in setting up a Federal Commission that is responsible for the development of legal information systems. An official opening can be seen in the Swiss lawyers’ day in 1972, which was dedicated to «data processing in law». In the same year the Swiss Association for Law and Informatics was founded; however, the success of this newly implemented conference was not lasting. The following years brought no further (substantial) analysis to the discussions.
Forstmoser’s text states that automated EDP of legal activities is confronted with several difficulties. Usually, application of the law has a specific and logical structure and consists of three parts:
- the elements of an offence being the prerequisites for a specific legal consequence
- the legal consequence itself
- a link between the elements of an offence and the legal consequence; for example, «will», «is», «should» or also «can».
Forstmoser explains that – at first glance – the technique of law making is suitable for computer use: between elements of an offence and its legal consequences or between legal principles and life situations are links that allow «yes/no» decisions. However, a closer look shows that this (apparently) suitable framework cannot be the only instrument for legal decision making.
According to Forstmoser, the fact that a good part of the legal work is outside the purely mechanical process of subsumption appears to be problematic. In many cases the decision is in the judge’s discretion; he/she should consider the individual case. Therefore, simple «yes/no» decisions are no longer possible. There are also often references to non-legal value systems that have no specific clarification in the law; for example, article 2 of the Swiss Civil Code (acting in good faith). A further limitation is the incompleteness of the legal system; this is shown in article 1 para 2 of the Swiss Civil Code: «In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make a legislator.» In addition, the law is often inaccurate and inconsistent. As a consequence, many legal rules are open for interpretation. This fact complicates the automation of the legal decision making. Notwithstanding these assessments, automation in law is not entirely ruled out, but Forstmoser pleads for having it limited to routine decisions without freedom of discretion. Discretion is an important value mainly in public law.
Furthermore, Forstmoser’s text analyses the proposal of a law-making process that is orientated to automation. Therefore, the law should be developed in a way that its application can be supported by the computer. Terminology in the law-making process has to be clear, unambiguous and consistent; otherwise it is difficult to implement the new technologies. Forstmoser is relatively skeptical about whether automated law making should mean that the legal method has to adapt to the needs of the EDP. Moreover, the technology must be subject to the law and not vice versa. Finally, Forstmoser mentions the possibility that computers can relieve lawyers from their workload, leading to an improvement of the legal work.
Forstmoser’s text is modern and farsighted. Many of the problems mentioned are still unresolved. Automation is a major topic in the age of digitisation and industry 4.0. An important example for the ongoing discussions is the global bestseller by Richard Susskind, «The End of Lawyers», published in 2013. Susskind’s text explores the implications for legal practice of a wide range of phenomena such as information technology, commoditization, outsourcing, external investments and more. Susskind outlines a challenge to all lawyers, and indeed all those in a professional service environment. He urges them to ask themselves what elements of their current workload could be undertaken differently – quicker, cheaper, more efficiently or with higher quality – using alternative methods of working.
In addition, the technology paternalism (as stated in Forstmoser’s text) is still an important topic; for example, in the discussions about new data protection regulations in the European Union as well as in Switzerland.