Abstract: In this work I discuss a peculiar trend in contemporary european and italian legislation aiming at reducing fundamental legal concepts within the boundaries of technical categories of IT. Some crucial examples are presented, and a general overview of the consequences is given. In first place, this phenomenon changes the way in which the legal norm is derived asking for a modification of the composition in the set of communities whose interpretative work is necessary for making the legal rule work in the society. Since the main framework is made by technical presuppositions and definitions, the community of IT scholars is now legitimate as one new kind of legal community too, and new forms of dialogue with the traditional legal communities (judges, legal scholars, professional legal associations) are to be found. Secondly, it may lead to the extreme the reduction of what is lecit from the juridical point of view to what is technically made possible by IT (“Code is Law”1), thus increasing exponentially the level of artificiality in legal behaviour. As a matter of fact, in order for the technical framework to be efficient it needs to have a complete dominance of the pragmatic conditions of the behaviour which is supposed to comply, realizing a level of control never attained before by the legal rule alone. I suggest to call this last phenomenon – which is open to discussion – “Hyper-positivity”.
"Iperpositività": la riduzione del giuridicamente lecito al tecnicamente possibile nella società dell'informazione
Claudio Sarra
2018
Abstract
Abstract: In this work I discuss a peculiar trend in contemporary european and italian legislation aiming at reducing fundamental legal concepts within the boundaries of technical categories of IT. Some crucial examples are presented, and a general overview of the consequences is given. In first place, this phenomenon changes the way in which the legal norm is derived asking for a modification of the composition in the set of communities whose interpretative work is necessary for making the legal rule work in the society. Since the main framework is made by technical presuppositions and definitions, the community of IT scholars is now legitimate as one new kind of legal community too, and new forms of dialogue with the traditional legal communities (judges, legal scholars, professional legal associations) are to be found. Secondly, it may lead to the extreme the reduction of what is lecit from the juridical point of view to what is technically made possible by IT (“Code is Law”1), thus increasing exponentially the level of artificiality in legal behaviour. As a matter of fact, in order for the technical framework to be efficient it needs to have a complete dominance of the pragmatic conditions of the behaviour which is supposed to comply, realizing a level of control never attained before by the legal rule alone. I suggest to call this last phenomenon – which is open to discussion – “Hyper-positivity”.
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