Received: August 30, 2019, Date of publication: September 25, 2019, DOI: http://doi.org/10.26826/law-in-context.v36i1.91 Editorial: Law in Context for the Digital Age By Pompeu Casanovas, La Trobe University, Melbourne, Australia, Orcid: http://orcid.org/0000-0002-0980-2371 Jianfu Chen, La Trobe University, Melbourne, Australia, Orcid: http://orcid.org/0000-0002-4711-6524 David Wishart, La Trobe University, Melbourne, Australia, Orcid: http://orcid.org/0000-0003-2281-4745 ABSTRACT We introduce both the new inception of Law in Context - A Socio-legal Journal and the continuing issue of LiC 36 (1). The editorial provides a brief historical account of the Journal since its inception in the early 1980s, in the context of the evolution of the Law & Society movement. It also describes the changes produced in the digital age by the emergence of the Web of Data, Big Data, and the Internet of Things. The convergence between Law & Society and Artificial Intelligence & Law is also discussed. Finally, we introduce briefly the articles included in this issue. Keywords – Law in Context, Law and Society, Socio-legal research, Artificial Intelligence, Digital Society Acknowledgments. This edition and the launch of LiC is partially funded by a La Trobe University Research Infrastructure Plan grant. Disclosure statement – No potential conflict of interest was reported by the author. License – This work is under Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0) https://creativecommons.org/licenses/by-nc-sa/4.0/ Suggested citation: P. Casanovas, J. Chen and D. Wishart (2019). “Editorial: Law in Context for a Digital Age.” Law in Context, 36 (1): 3-11. DOI: http://doi. org/10.26826/law-in-context.v36i1.91. Summary 1. Law in Context (LiC) in context 2. Context and Law in the Digital Age 3. About this Edition: Law in Context for the Digital Age 4. Law in Context in Open Access 1. LAW IN CONTEXT (LIC) IN CONTEXT Volume 36 (1) of Law in Context constitutes a renewed Mendelsohn (as General Editor), Martin Chanock (as Book Law in Context - A Socio-legal Journal. From 2019 onwards Editor) and Ian Patterson (as Business Manager). Although it will be published in Open Access at no cost to either the Law in Context (LiC) was launched after the retirement in authors or the readers. It thus represents a new stage in 1982 of E.K. Braybrooke, the charismatic founder of the the Journal’s long and fruitful history. Department, it retained his realistic stamp. It is worth The Journal was launched in 1983 at the then Depart- noting that many members of the so-called “First Legal ment of Legal Studies of La Trobe University by Oliver Scholarly Community” in Australia, after World War II, 3 Law in context, Vol 36, Issue 1; 2019 ISSN: 1839-4183 were closer to American legal realists than to English We can track this approach in practically all contribu- jurisprudence (Bartie 2010).1 tions and, especially, in the collective actions that were Since then, LiC has been continuously published due generated around the Journal and contributed to shape to the efforts and work of many people—Christopher its differential style and added values—e.g. the creation Arup, Paula Baron, Roger Douglas, Pat O´Malley, Margaret of legal clinics; the building of feminist discourses; the Thornton, to mention just a few. Law & Society world critical approach to the rule of law; the effort to (re)write leading scholars from USA, Europe and Asia (India)—such legal and institutional history; the defence of democracy as Richard L. Abel, Upendra Baxi, Stanley Cohen (†), Marc and citizenship; the description and criticism of corporate Galanter, Doreen McBarnet, Simon Roberts (†), and Harry practices and economic organisations; the emergence of N. Scheiber—served on the Editorial Board and have sup- Alternative Dispute Resolution (ADR); the close attention ported the journal since its inception. to increasing numbers of immigration flows; the study of Looking at it from a distance, the coherence of LiC’s Asia and individual countries therein; and the support for trajectory is clear. Its first editorial, written by Oliver the cultural, political and judicial fights seeking for the Mendelsohn, reads: recognition of Aboriginal rights, against the race-based policies that sustained segregation in the immediate Law in Context is published as a forum for the inter-disci- colonial past. plinary study of law. For much of the nineteenth and twentieth centuries there was a tendency to reduce the study of law to In 1988, the Australian Publisher Federation Press a narrow technical and doctrinal focus. This coincided with commenced publishing Law in Context. Then, in 1995, the a period when it was only lawyers who were interested in former Legal Studies Department at La Trobe University studying law. Now, there is a widespread realisation that law became La Trobe School of Law and Legal Studies (and is too important to be left to the lawyers. And the companion still later, School of Law). Nevertheless, LiC maintained view is that legal matters can be more richly understood by its original character and orientation. In 2013, the Journal placing them in their social context and subjecting them to celebrated its thirtieth anniversary—twenty-five years at study from a range of academic disciplines. This first issue of Federation Press—with a Special Issue on socio-legality, Law in Context exemplifies the inter-disciplinary approach its history, and achievements as an academic discipline to law. (LiC, Editorial 1983) (Petersen 2013).2 Thirty-six year later, all issues of LiC so far continue LiC fostered both innovation and experimentation to show this inter-disciplinary, pluralistic, and espe- at a theoretical level. This specific commitment was cially contextual approach along a variety of disciplines, not exempt from internal dissents. Embracing an open methodologies and trends. These are in the main Social perspective of the law and regulations as socio-political Sciences, Humanities and Law. Yet it shows something patterns is more challenging than the more classical, tex- else, more intangible and definitively essential: the will tual, normative approach. Thus, LiC’s context of discovery to transcend academic boundaries, i.e. a continuing and reflects the same tensions between the formal (technical) firm commitment to not only understand and explain but and the substantive (social) approach to law that had also participate and eventually remould the deep changes characterised legal scholarship in the nineteenth and that were occurring after the Cold War and were affect- twentieth centuries —either in the Civil or the Common ing dramatically the whole society and lives of people in Law tradition. Perhaps more importantly, it also mirrored Australia and beyond. the inner disparities and confrontations of invention and 1 This was the case of E. Kingston Braybrooke (1915-1989), who had studied at Columbia Law School in 1949. Columbia was one of the main centres of legal realism, under Karl Llewellyn’s leadership. Braybrooke, like Julius Stone (1907-1985) at Harvard, was also influenced by Roscoe Pound’s sociological jurisprudence. See Ker- ruish (1989), Douglas (1989), Kirby (2012), Neil (2013). 2 This LiC Special Issue, entitled Socio-legality: An Odyssey of Ideas and Context, was edited by Kerry Petersen and introduced by Roger Douglas. It contains essays by some of the leading scholars of the Journal: Christopher Arup, Paula Baron, Susanne Davies, Ian Duncanson, Ian Freckleton, David Neal, and Christopher Tomlins. As acknowledged by Douglas (2013, p. x), “heterogeneity (and, possibly, achievements) came at the cost of conflict.” Law in context, Vol 36, Issue 1, 2019 4 ISSN: 1839-4183 discovery that occur when epistemic, moral and political rights and social challenges, responsive law. Responsive assumptions are at stake. law contrasts with two other notions—repressive and This is not a singular feature. Thinking about govern- autonomous law—which do not require a similar amount ment, law and the state in the second half of the 20th cen- of competence, i.e. knowledge of the social context, the tury led to discussions and eventually differences among design of better institutions, and the involvement of scholars in all Law & Society disciplines. For instance, citizens in power.3 after the emergence of legal pluralism in the 1970s and The second wave of legal realism—the “new legal 1980s, and the hatching of globalisation in the 1990s, at realism”— that has blossomed in the first decade of the the dawn of the new Millennium, Sally Falk Moore sum- present century has also embraced this organisational marised the changes in legal anthropology as follows: and institutional turn. It can be primarily defined as “an What legal domains have anthropologists examined in effort to understand the sources of judicial decisions on the fifty years we are considering [1949-1999]? How much the basis of testable hypotheses and large data sets” (Miles have their topics changed? How much do the changes in topic and Sunstein 2008, p. 831). But, in fact, it goes beyond reflect the shifting political background of the period? The the judiciary and advanced statistical analysis. It entails big picture is simple enough. What was once a sub-field of an extended notion of context, in which principles, ethics anthropology largely concerned with law in non-Western and universal values acquire a new place in the dynamics society has evolved to encompass a much larger legal geog- of evolving institutions.4 “We do want to judge contexts, raphy. Not only does legal anthropology now study industrial which we do by appealing to transcendent values” (Sel- countries, but it has expanded from the local to national and znick 2003, p. 186).5 And, as stated by the scholars who transnational legal matters. Its scope includes international started the discussion, it entails the need to face new treaties, the legal underpinnings of transnational commerce, comprehensive relationships among the stakeholders the field of human rights, diasporas and migrants, refugees themselves: and prisoners, and other situations not easily captured in Our goal is to create translations of social science that the earlier community-grounded conception of anthropology, will be useful even to legal academics and lawyers who do though the rich tradition of local studies continues along a not wish to perform empirical research themselves, while separate and parallel track. (Falk Moore 2001, p. 95) also encouraging translations of legal issues that will help Thus, anthropologists “are not just talking about what social scientists gain a more sophisticated understanding of is going on. They also are talking about what could go on how law is understood “from the inside” by those with legal [...] They are treating their own critical commentary as training. (Erlanger et al. 2005, p. 336) a form of social action [emphasis added]” (Falk Moore The pages of Law in Context also reflect this recent 2001, p. 111). regulatory turn, related to new forms of corporate gov- This “form of social action” entails a moral and eventu- ernance, public Health, the relations between law and ally a political judgement, and it conforms a methodol- science, and the relations between quantitative and ogy and a notion of law encompassing what Nonet and qualitative methods.6 Selznick (1978) had termed, in accordance with human 3 According to Nonet and Selznick (1978, p. 78), competence is “the most difficult problem of responsive law: In an environment of pressure the continuing authority of legal purpose and the integrity of the legal order depend on the design of more competent legal institutions.” 4 As put by Nourse and Schaffer (2009, p. 134) “New legal realists refuse to believe that all law and politics should be determined by a single, consequentialist goal, but they also refuse to indulge the fantasy of ethical relativity.” 5 See on the Deweyan Selznick´s naturalism, Lieberman (2012). 6 Hence, to give only one example, Christopher Arup’s works elaborated on the multiple possible approaches to better understand innovation, intellectual property, labour, financial and industrial policy, and the implementation and defence of consumer rights in the blurring of private/public global space (Arup 2000). Arup correctly observed that to understand the role of lawyers, law firms and corporations in the process of globalisation, Law and Society scholars had to collect data by means of ethnographic and qualitative methods (e.g. interviews), addressing and sorting out the problem of access to the information. See, for example, Garth and Dézalay (1996, 2002). 5 Law in context, Vol 36, Issue 1, 2019 ISSN: 1839-4183 2. CONTEXT AND LAW IN THE DIGITAL AGE ecosystems (Poblet, Casanovas and Rodríguez-Doncel A new path beckons. It adds a complexity to what LiC 2019). However, this intermediate inter-communication already does yet also provides the opportunity of new level between machines and humans is also the yet-to-be- fields and discourses. This path is one that the renewed fully-regulated domain in which data collection, storage, LiC will also now illuminate. aggregation, and eventually analysis occur. The problem is To tread the path for a little distance, we are in a new who carries out the analyses, how and for what purposes stage of the same evolution that has led capitalism to its are they performed, and what impacts they may have on next phase: the digital age. Perhaps we are not able at this individuals and society. time to entirely cope with it, as we cannot anticipate all The role of Cambridge Analytica in the British ref- the consequences that will follow from a technological erendum to leave the European Union and in the last revolution based on information-processing knowledge, presidential elections in the US has opened a Pandora’s big data analytics, artificial intelligence, and the so-called box. Democracy is certainly at stake (Cadwallader 2018, Internet of Things. These changes are deep, and they have 2019). But this is just one example among many others come to stay. Even the scientific method is subject to its in which mass surveillance programs, financial excesses, impact, due to “the presence of nonlinearity, non-locality uncontrolled data exchange between state agencies, ma- and hyper-dimensions which one encounters frequently nipulation of feelings, prosecution of whistle-blowers, and in multi-scale modelling of complex systems” (Succi and the convergence between bio-tech and info-tech may led Coveney 2019). to “digital dictatorships”, even under democratic political From a foundational point of view, the representa- forms (O´Neil 2016, Harari 2018, Eveleth 2019). tion of knowledge is at the heart of the social shape of a These issues have only been partially addressed so digital society that we do not yet know.7 Our theoretical far. In Europe, for example, the promulgation and entry assumptions should acknowledge the fact that we behave into force (25/05/2019) of the General Data Protection necessarily not only with limited information but with Regulation (DGPR, 2016) enhances a broad range of pri- limited knowledge and tools to handle this information. vacy rights to protect citizens’ identities, personal lives In an increasingly complex society, law consists of a set and individual autonomy. Likewise, several Reports of of regulatory components that do not constitute separate the UN Special Rapporteur for Privacy urge the Member silos, and there is a plurality of ways to conceive their States to implement similar safeguards to avoid more data interrelationship.8 breaches and the evasion and denial of responsibilities From a practical point of view, everything remains by corporations and governments.9 open to the building of institutions that could be able to However, is this enough? Do we have the right instru- link machine and human interfaces. In a hybrid, semi- ments in place to pursue such a noble dream? We are automated world, the classical societal micro-macro afraid that in a hyperreal world in which reality can be link goes through the meso-level, in which platforms, inflated artificially with fake news but true feelings, law apps, blockchains, and digital data are technological and legal measures can be inflated as well. This would components of emergent participatory, civic, democratic, entail a loss of meaning. It may well be that the law in 7 “One normally thinks that everything that is true is true for a reason. I’ve found mathematical truths that are true for no reason at all. These mathematical truths are beyond the power of mathematical reasoning because they are accidental and random.” (Chaitin 1994) As Chaitin’s theorems have shown, information-theoretic computational theory deals (again) with incompleteness. Hence, it is at the limits of mathematics and reason. If some things are true for no reason at all, accidentally, at random, we may expect new black swans in all dimensions of societal levels (Taleb 2007). 8 Since 2010, the LNAI Workshop Series AI Approaches to the Complexity of Legal Systems shows this plurality of languages and methods for legal and social design. See Pagallo et al. (2018). 9 See, Reports A/73/45712 and A/HRC/40/6, UN Special Rapporteur on Privacy (2018, 2019). There is a direct warning in the second Report: “6. [...] while most Mem- ber States unequivocally commit themselves to protecting the right to privacy, many are acting in ways that increasingly put it at risk, by employing new technologies that are incompatible with the right to privacy, such as, in certain modalities, Big Data and health data, infringing upon the dignity of its citizens based on gender or gender identity and expression, as well as by arbitrarily surveying their own citizens.” Law in context, Vol 36, Issue 1, 2019 6 ISSN: 1839-4183 hyperreal regimes no longer requires legitimacy—the about their own bodies (Swan 2013, Mittelstadt and Floridi acquiescence of citizens—but obeying in advance.10 2016). But, still, all these topics—including those related Shadbolt and Hampson (2018) have pointed out that the to Physics and Mathematics—are unthinkable without regulation of digital societies is an urgent need and, yet, a referring to computer science, robotics and AI running formidable task.11 It cannot be limited just to privacy and within this interplay between humans and machines that security issues —these could be deemed starting points. we have termed above the meso-level. As underlined by Mathews (2017) what is required now to We believe that this mutual approach is felt as a necessity match civilization requirements is a holistic view bridging by both Law & Society and AI & Law communities. Artificial systemic and semantic interoperability. All dimensions Intelligence and Law has been working for thirty years covered by statutes, regulations, policies, best practices now in the modelling of legal norms and legal systems. As and protocols should be faced through this lens. It is an L. Thorne McCarty, one of the founding members, recalls ethical stance. in a recent account, it is a common mistake to believe Law & Society has produced cutting-edge research so that they were reducing law to rules to be modelled. On far in a variety of significant subjects —gender, access the contrary, the flexibility and many ways of creating to justice, crimes, colonialism, litigation, legal cultures, law—including judicial tests and the “open texture” of human rights, the rule of law, dispute resolution, among its language—were considered as true challenges since many others. It might be time to incorporate Computer the beginning. First wave AI systems were “very good Science and Artificial Intelligence languages to an epis- at complex reasoning, but not very good at perception temic approach for fleshing out such a rich legacy. Thus, and learning” (McCarty 2019, p. 57). The second and the bulk of socio-legal knowledge could be taken further, third waves are. Focusing on machine learning, Natural beyond the conditions in which it was produced, and Language Processing (NLP) and Knowledge Representa- information technologies could also be incorporated as tion Technology (semantics) systems are able to better well into its array of methodologies to shed light on this define the problems, to figure out different scenarios in matter. It would represent a third wave of legal realism. non-identical environments, and to anticipate solutions. It is certainly not the only way of handling global-scale We can find many parallels with the evolution of Law and changes. Environmentalists may refer and lean on top of Society and its increasing attention to the transformation the “deep ecology” movement launched by Norwegian of contexts. We recommend interested scholars to read philosopher Arne Naess—back in the 1970’s. Global climate this account in conjunction with Kevin Ashley’s contribu- change has led earth scientists to propose a new division tion about machine learning (in this issue). of the geological time as a paradigm to understand the impact of human behaviour on nature—the Anthropocene, 3. ABOUT THIS EDITION: LAW IN CONTEXT FOR which holds also as a political paradigm to ground policies THE DIGITAL AGE and regulations (Lewis and Maslin 2015). The human body There are many examples of the common ground of can be approached as well as a new analytical space deal- Law & Society and AI & Law. Knowledge acquisition tech- ing with bio-ethics, self-reflection and health care—e.g. niques, the construction of socio-technological systems the “quantified self” of individuals tracking information and socio-cognitive systems, the building of cognitive 10 This is the first lesson from the 20th century drawn by Timothy Snyder to preserve democracy. “Do not obey in advance. Most of the power of the authoritarianism is freely given.” (Snyder 2017, p. 16) 11 “Broadly though, a vast range of applications have been engineered on smart devices that seem capable of unlimited marvellous things: translate from one language to another, place a gamer in a virtually real landscape, find the best route through this afternoon’s traffic, chat about the weather with granny. There is little or no social pol- icy framework yet around how these applications may be affecting our lives or our brains. There is not enough general understanding of the issues to begin to construct such a framework. Like Prospero’s sorcery in The Tempest, these magical transformations have just crept us on the waters, and we have accepted them, without as yet sufficient policy response. We urgently need such a framework.” (Shadbolt and Hampson 2018, p. 51) Moreover, coming to the point: “To put it ever more bluntly, the problem is not that machines might wrest control of our lives from the elites. The problem is that most of us might never be able to wrest control of the machines from the people who occupy the command posts [Emphasis added].” (Shadbolt and Hampson 2018, p. 63) 7 Law in context, Vol 36, Issue 1, 2019 ISSN: 1839-4183 and computational ontologies, the setting of legal and the Australian banking environment has evolved and the regulatory systems and eco-systems, the structuring and inception and development of Fintech and Regtech. The managing of legal data and metadata, all these processes need for new regulatory models from an ethical stance, require a closer attention to the work that Law and Society able to be both more effective and trustworthy, lies at the scholars have been carrying out so far.12 core of this approach. Related to the LiC relaunch, we thought that pointing Both articles point at the deep social and economic at the concept of legal knowledge as a research object changes that have been occurring in the early 21st century. would be a good point of departure to start thinking alike. The three contributions that open the volume shed We asked several scholars from both fields to freely light to the legacy, methods and trends of Law and So- summarise their own work, their motivations, and personal ciety studies, and how scholars were (and are) able to journeys. We suggested some questions to be answered— raise critical questions with a political and moral value, How did you approach law and legal knowledge? Why? and with a global scope. Hence, they are also personal, What did you learn? What do you think was left in the end? disclosing some of the motivations that trigger research Some wrote about their research journey; some re- projects, and beyond that, research lives. sponded with a thorough description of their recent works; On legacy. Lawrence Friedman reflects about two im- others wrote specific essays of related topics according portant topics in the present Law and Society movement: to their expertise. The result is for the reader to evaluate. the sources of law, on the one hand, and the impact of We found it interesting, informative, and insightful. We law, on the other. He suggests the use of legal historical organised it in such a way that some articles are placed in studies as a kind of control group, as studies of modern a strategic pivotal position, in the middle of the volume, legal systems show a high degree of convergence. He linking both sides of the equation —socio-legal studies delves into his own experience to describe the growth and computer science—through empirical and cultural and extension of socio-legal studies across different legal social sciences and the law. We will describe the contents cultures in the world, and the benefits that follow from of the volume from the inside out, and from the centre to this interconnection. the two ends of the rope. On conscience. Martin Chanock draws a political and Susanne Davies reflects on the symbolic figure of At- intellectual cartography of his journey through South Af- ticus Finch, the main character of Harper Lee’s 1960 novel rican history and the construction of a democratic state. To Kill a Mockingbird. This was one of the legal icons of He recalls his education and political struggles in South the 20th century for legal and political education, against Africa, and how he started asking the right questions and intolerance, racism and injustice. What happened next getting the right answers about the functions of law, the so that this figure and its meaning darkened in the 21st implementation of the rule of law, and the institutional century? What about his message now? These questions creation of customary law in colonial and neo-colonial are properly sociological and do not have a simple answer. regimes. This paper contains a sound reflection about Leaning on their recent books, Capital Failure and truth, politics and the development of legal instruments― Australian Superannuation, Sue Jaffer and Nicholas Morris a critical view on “the innocence of legalism” and the address the issue of the underlying causes of the Global incapacity of the state. Financial Crisis (GFC) and the various related scandals On resilience. Richard Abel’s work exemplifies citizens’ that have emerged in UK and Australia. Why did UK fi- response to the US turn towards democratic authoritarian- nancial regulation fail so blatantly to prevent the crisis ism. He explores which strategies had been most effective and its devastating effects? And why is bad behaviour to protect the rule of law against the “war on terror” that so endemic in the sector? The article also examines how followed September 11, threatening American liberties 12 There are many computer scientists working in this interesection—Pablo Noriega, Tom van Engers, Jeremy Pitt, Frank and Virginia Dignum, among many others. For a general overview on normative-multiagent systems, see Andriguetto et al. (2013); for the state of the art in law and the semantic web, Casanovas et al. (2016). Law in context, Vol 36, Issue 1, 2019 8 ISSN: 1839-4183 under Bush and Obama administrations. He summarises 4. LAW IN CONTEXT IN OPEN ACCESS the findings of his two recent books—Law’s Wars and From Issue 36 (1) onwards Law in Context (LiC) will be Law’s Trials—concluding that the rule of law “whose published in an Open Access format. It complies with the raison d’être is to immunize law from political distortion, sixteen Principles of Transparency and Best Practice itself depends on politics.” in Scholarly Publishing published by the Committee Finally, this volume collects several papers that refer on Publication Ethics, the Directory of Open Access to the uses, developments and methods of technology in Journals, the Open Access Scholarly Publishers Associa- the legal domain. These papers bring us back to reality tion, and the World Association of Medical Editors.13 It that impacts on our personal and professional lives. also follows the ten core practices of the Committee on Zhiqiong June Wang’s contribution focuses on legal Publication Ethics, and the policies of the Australasian education and technology. She brings into consideration Open Access Strategy Group chart.14 three main issues: the adoption and adaptation of tech- According to its tradition, Law in Context is keen to nologies to teaching and learning, the study and research publish original and pathbreaking contributions in the of their impacts on society to formulate legal responses, fields of legal studies, legal scholarship and jurisprudence. and the preparation of future lawyers. She concludes by We will of course be happy to host Technology/AI & Law stressing the human side and its critical role in the evo- approaches to these fields, so that we can see where this lution of legal education: law demands a “human touch”, new path may lead us. and that calls for human values and empathy. From a computer science perspective, John Zeleznikow 5. REFERENCES offers an accurate and deep insight of what such a “human 1. Andrighetto, G., Governatori, G., Noriega, P. and van der touch” means. His work has been centred on empowering Torre, L.W. 2013. Normative multi-agent systems (Vol.4). citizens through the development of Online Dispute Reso- Schloss Dagstuhl-Leibniz-Zentrum für Informatik. http:// lution (ODR) systems providing tools for self-represented drops.dagstuhl.de/opus/volltexte/dfu-complete/dfu-vol4- litigants. His contribution to the present volume recalls complete.pdf Accessed 30/8/2019. how he became increasingly aware of the importance of 2. Arup, C. 2000. 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