In ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, Roscoe Pound states that laws are the crystallisation of communal ideals.
The requirement that magistrates apply these ideals is to prevent their personal prejudices and individual incompetency from affecting the cases they adjudicate. Nonetheless, these ideals cannot exist until the public opinion is fixed and settled.
They cannot change until the shift in public opinion is complete. As such, the laws in any legal system carries varied layers of public opinion over the years. Once fixed, they cannot easily be changed until the process of public opinion completes its shift to a different view.
In this sense, therefore, our system of laws is a government of the living by the dead.
However, with cyberspace, we have to make choices and laws relevant to our times as Prof Lawrence Lessig argues.
We do not have the pleasure (or displeasure) of being guided by ideals that were formed in another time so that we may find the government of the dead coming to our aid.
Focusing on the American constitution, he shows that even in the wise ideals that the founders bestowed on it, there are things they did not anticipate because they did not foresee the Internet.
The American constitution is not made for all worlds but it is one tailored for the world the founders lived in.
This is true of all constitutions – drafting does not come with the ability to create laws that will apply in all possible worlds but the one in which the drafter lives in.
They say ‘he who has the gold makes the rules.’
In the age of the Internet, the gold has facilitated the making of rules since keeping the gold is only possible if the government is happy.
Commerce has largely contributed to the making of a more regulable Internet because the companies involved have a real world presence, which means that the laws of real space apply to them.
The book is recommended reading for all who care to understand the nuances of regulating the medium in which we spend all of our waking lives.
It presents a balanced discussion of issues specifically relevant to our public debate on the recent Computer Misuse and Cybercrimes Act.
The book may help us to understand the causes of our popular dissatisfaction with the new legislation.
"When commerce writes code, then code can be controlled, because commercial entities can be controlled".
Internet service providers (ISPs) and their friends cannot violate local laws as that directly affects their profit and cost of doing business.
Thus, governments created laws addressing ISPs and as result, control the users.
To an extent, commerce has enabled the recreation of the Internet in the image of real space.
Apart from becoming more regulable, cyberspace has created new effects and possibilities towards privacy, free speech, and intellectual property.
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