Category Archives: Jurisprudence

Codification of the Law

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Codification — the process of pulling together a body of law into one convenient place — is one of the classic hard problems of access to the law. It never seems hard when one sets out; back in Merrie Olde 12th century England, Parliament’s practice was to take new laws, copy out a handful of copies by hand, circulate those copies to various local officials, and call it a day. The problem that Statutes of the Realm was trying to deal with was that seven centuries later, this sequential process had produced such a vast body of accumulated laws that merely compiling the index took four years.

In the 1930s in the U.S., the alphabet soup of newly created New Deal agencies produced a similar mess. One infamous 1935 case, Panama Refining Co. v. Ryan (colloquially known as the “Hot Oil case,” because it dealt with illegal interstate shipments of petroleum), reached the Supreme Court before anyone realized that one of the laws the government was trying to enforce against the oil companies wasn’t in force at the relevant time. It had been repealed (by mistake, it turned out) over a year before, without anyone noticing. People had been threatened with criminal punishment for violating a “law” that wasn’t. The outcry—at least among law professors—led to the establishment of the Federal Register, a chronological log of all the regulatory actions taken by federal agencies, and the Code of Federal Regulations, which captures a current snapshot of the regulations currently in force.

There are various codification strategies out there, with advantages and drawbacks that would take us too far afield to discuss in much detail. One strategy is for someone with a lot of time to pore through the last N years of statutes, pull out the ones that are still relevant, and compile them into a single, authoritative text. The legislature then repasses the authoritative version, and repeals everything else. Another is for someone simply to compile the reams and reams of statutes into a logical arrangement that then becomes evidence of what the law says; if you really want to get it right, you need to go back and check the original act as it was passed. Governments in the U.S. use a mixture of both of these processes. Once you have a compilation of this sort, it becomes much easier for the legislature to make changes in place. They can say “we’re repealing this section and replacing it with this new text,” which keeps things from getting as messy as quickly. (Think of the list of statutes as a blog, and the codified version as a wiki.)

(This article is licensed. It is canonically available and has been written by James Grimmelmann with inputs from others.)

The Origin of Copyright

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By Karl Fogel

Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors.

The first copyright law was a censorship law. It had nothing to do with protecting the rights of authors, or encouraging them to produce new works. Authors’ rights were in no danger in sixteenth-century England, and the recent arrival of the printing press (the world’s first copying machine) was if anything energizing to writers. So energizing, in fact, that the English government grew concerned about too many works being produced, not too few. The new technology was making seditious reading material widely available for the first time, and the government urgently needed to control the flood of printed matter, censorship being as legitimate an administrative function then as building roads.

The method the government chose was to establish a guild of private-sector censors, the London Company of Stationers, whose profits would depend on how well they performed their function. The Stationers were granted a royal monopoly over all printing in England, old works as well as new, in return for keeping a strict eye on what was printed. Their charter gave them not only exclusive right to print, but also the right to search out and confiscate unauthorized presses and books, and even to burn illegally printed books. No book could be printed until it was entered in the company’s Register, and no work could be added to the Register until it had passed the crown’s censor, or had been self-censored by the Stationers. The Company of Stationers became, in effect, the government’s private, for-profit information police force. [1]

The system was quite openly designed to serve booksellers and the government, not authors. New books were entered in the Company’s Register under a Company member’s name, not the author’s name. By convention, the member who registered the entry held the “copyright”, the exclusive right to publish that book, over other members of the Company, and the Company’s Court of Assistants resolved infringement disputes. [2]

This was not simply the latest manifestation of some pre-existing form of copyright. It’s not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. The Stationers’ right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. Before this moment, copyright — that is, a privately held, generic right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libelous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership. There had also been, in some cases, special privileges (then called “patents”) allowing exclusive printing of certain types of books. But until the Company of Stationers, there had not been a blanket injunction against printing in general, nor a conception of copyright as a legal property that could be owned by a private party.

For about a century and a third, this partnership worked well for the government and for the Stationers. The Stationers profited from their monopoly, and through the Stationers, the government exercised control over the spread of information. Around the end of the seventeenth century, however, owing to larger political changes, the government relaxed its censorship policies, and allowed the Stationers’ monopoly to expire. This meant that printing would return to its former anarchical state, and was of course a direct economic threat to the members of the Company of Stationers, accustomed as they were to having exclusive license to manufacture books. Dissolution of the monopoly might have been good news for long-suppressed authors and independent printers, but it spelled disaster for the Stationers, and they quickly crafted a strategy to retain their position in the newly liberal political climate.

The Stationers based their strategy on a crucial realization, one that has stayed with publishing conglomerates ever since: authors do not have the means to distribute their own works. Writing a book requires only pen, paper, and time. But distributing a book requires printing presses, transportation networks, and an up-front investment in materials and typesetting. Thus, the Stationers reasoned, people who write would always need a publisher’s cooperation to make their work generally available. Their strategy used this fact to maximum advantage. They went before Parliament and offered the then-novel argument that authors had a natural and inherent right of ownership in what they wrote, and that furthermore, such ownership could be transferred to other parties by contract, like any other form of property.

Their argument succeeded in persuading Parliament. The Stationers had managed to avoid the odium of censorship, as the new copyrights would originate with the author, but they knew that authors would have little choice but to sign those rights back over to a publisher for distribution. There was some judicial and political wrangling over the details, but in the end both halves of the Stationers’ argument survived essentially intact, and became part of English statutory law. The first recognizably modern copyright, the Statute of Anne, was passed in 1709 and took effect in 1710.

The Statute of Anne is often held up by champions of copyright as the moment when authors were finally given the protection they had long deserved. Even today, it continues to be referenced both in legal arguments and in press releases from the publishing industry. But to interpret it as an authors’ victory flies in the face of both common sense and historical fact. [3] Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so. The only people threatened by the dissolution of the Stationers’ monopoly were the Stationers themselves, and the Statute of Anne was the direct result of their lobbying and campaigning. In the memorable words of the contemporary Lord Camden, the Stationers “…came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security.” [4] To make their argument more palatable, they had proposed that copyright would originate with the author, as a form of property that could be sold to anyone — anticipating, correctly, that it would most often be sold to a printer.

This proposal was a shrewd tactical move, because one of Parliament’s concerns was to prevent the re-establishment of a centralized monopoly in the book trade, with its attendant potential for a renewal of censorship by the crown. Benjamin Kaplan, professor of law emeritus at Harvard University and a respected copyright scholar, describes the Stationers position succinctly:

“….The stationers made the case that they could not produce the fragile commodities called books, and thus encourage learned men to write them, without protection against piracy… There is an apparent tracing of rights to an ultimate source in the fact of authorship, but before attaching large importance to this we have to note that if printing as a trade was not to be put back into the hands of a few as subject of monopoly — if the statute was indeed to be a kind of “universal patent” — a [legal] draftsman would naturally be led to express himself in terms of rights in books and hence to initial rights in authors. A draftsman would anyway be aware that rights would usually pass immediately to publishers by assignment, that is, by purchase of the manuscripts as in the past. … I think it nearer the truth to say that publishers saw the tactical advantage of putting forward authors’ interests together with their own, and this tactic produced some effect on the tone of the statute.”[5]

The Statute of Anne, taken in historical context, is the smoking gun of copyright law. In it we can see the entire apparatus of modern copyright, but in still-undisguised form. There is the notion of copyright as property, yet the property is really intended for publishers, not authors. There is the notion of benefiting society, by encouraging people to write books, but no evidence was offered to show that they would not write books without copyright. Rather, the Stationers’ argument was that publishers could not afford to print books without protection from competition, and furthermore that printers could not be depended to reproduce works faithfully if given unfettered freedom to print. The corollary, they implied, was that without the prospect of reliable distribution, authors would produce fewer new works.

Their argument was not unreasonable, given the technology of the time. Making a perfect copy of a printed work required access to the original press and compositor, anyway; if reliable reproduction were to be encouraged, then a single-holder copyright system had a certain logic to it. And the publishers would now be effectively forced to pay authors in return for exclusive printing rights (although in fact the Stationers had sometimes paid authors even before, simply to guarantee the completion and delivery of a work). The authors who succeeded in selling this new right to printers had no particular motivation to complain — and naturally, we don’t hear very much about the authors not so favored. The consolidation of author’s copyright probably contributed to the decline of patronage as a source of income for writers, [6] and even allowed some authors, though always a small minority, to support themselves solely from the royalties their publishers shared with them. The fact that a given copyright could only held by one party at a time also helped prevent the proliferation of divergent variations, a problem that had vexed authors perhaps even more than plagiarism.

But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.

This is the secret that today’s copyright lobby never dares say aloud, for once it is admitted, the true purpose of subsequent copyright legislation becomes embarrassingly clear. The Statute of Anne was just the beginning. Having granted the premise that copyrights should exist at all, the English government found themselves under pressure to extend copyright terms further and further. In the long legal saga that ensued, what’s important is not the particular sequence of laws and verdicts, but the identity of the plaintiffs: they were just the sort of stable, settled business interest capable of sustaining litigation and lobbying over a period of decades — that is, they were publishers, not authors. They had proposed the author’s copyright out of economic interest, and only after the crutch of a censorship-based monopoly had been taken away from them. When it became clear that the tactic worked, they lobbied to strengthen copyright.

And this is still the pattern today.

References:
[1] These events can be read in any history of copyright. A good online resource regarding their legal implications is “Copyright And `The Exclusive Right’ Of Authors” http://www.lawsch.uga.edu/jipl/old/vol1/patterson.html Journal of Intellectual Property, Vol. 1, No.1, Fall 1993, by Professor Lyman Ray Patterson, Pope Brock Professor of Law at the University of Georgia and a noted copyright scholar. His description of this earliest copyright is concise and revealing:
The event in the history of Anglo-American copyright that led to the shaping events of the seventeenth and eighteenth centuries was the Charter of the Stationers’ Company granted in 1556 by Philip and Mary …. The Charter gave the stationers the power to make “ordinances, provisions, and statutes” for the governance of “the art or mistery of [s]tationery,” as well as the power to search out illegal presses and books and things with the power of “seizing, taking, or burning the foresaid books or things, or any of them printed or to be printed contrary to the form of any statute, act, or proclamation ….”
The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition). The book-burning power thus shows the real motivation for the Charter, to secure the allegiance of the stationers as policemen of the press for the sovereign in an uncertain world.
[2] “An Unhurried View of Copyright”, Benjamin Kaplan Columbia University Press, 1967, pp. 4-5.
[3] Patterson, in [1], goes so far as to say “The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history.”
[4] Kaplan, p. 6.
[5] Kaplan, pp. 7-9.
[6] “Five Hundred Years of Printing” pp. 218-230, S. H. Steinberg, Penguin Books, 1955, revised 1961

[This is an excerpt of the original article which can be found at QuestionCopyright.org]

Austin’s Imperative Theory of Law

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Law is the command of the Sovereign.

One of the main exponents of this theory which is completely different from the natural law theory was John Austin who belongs to the analytical school of law and is widely considered to be the founder of positive law. His concept of law is very closely tied to his understanding of sovereignty: if a determinate human superior not the habit of obedience to a like superior receives habitual obedience from the bulk of a given society then that determinate superior is sovereign in that society, and the society including the superior is a society political and independent.

Thus, the three elements of law are:
1. A command
2. A sovereign
3. A sanction

According to Austin, law is not the same as morality. It deals with what is and not with what should be. It is imperative. It is the command of the king. The coercive force behind law is its essence.
Jurisprudence is not the same as ethics. It is an independent discipline.

The theory has often been criticised for not including moral considerations but this was apparently not what Hobbes had intended ‘“ the way he saw it, such an analysis was preliminary to critical assessment which was, through utility, to help reveal heretofore unrevealed divine laws.

Criticism against Austin’s Theory of Law

1. There are many rules which are accepted as law such as those which are considered customary laws and international laws. Common Law and Constitutional Law do not have their roots in the commands of a sovereign either. However, not being the command of a sovereign, Austin’s theory denies that these rules are laws.
International Law, Common Law and Constitutional Law all have their roots in customs and conventions. However, positivists do not consider them to be law until they have been accepted by a political superior.

2.a. To define law as a command is also to ignore a large portion of the law which does not either oblige people to do or refrain from doing something but simply empowers them.

e.g. The law of wills does not force anyone to make a will; it only enables people to make wills if they want to.

2.b. The term ‘command’ also has other problems: it assumes the existence of someone to give commands but this is rarely the case in the modern State with its complex legislative process. In addition to this, much law is in reality delegated legislation comprising rules made by ministers and others. Further, the decisions of Courts are also considered to be a source of law.

Austin accepted that a sovereign could delegate his law making powers but this does little other than confuse the issue.

2.c. However, the problem which remains is that Austin’s theory which implies unlimited sovereign power and identifies law as the command of the sovereign completely ignores the fact that sovereignty itself is legal ‘“ the existence of sovereignty necessarily entails the existence of legal rules to do such things as define the composition of sovereignty.

3. The next problem with Austin’s theory is identifying who exactly is sovereign. This question led Austin to particular difficulties. If one was to assume that sovereignty in England lies in the Crown, the House of Lords and the House of Commons, one would have to deal with the fact that succession to the Crown and membership of the House of Lords are both governed by complex rules, and the House of Commons, being elected, must obey the electorate. Therefore, they are not sovereign in the sense that they are not in the habit of obedience ‘“ even the Crown and the House of Lords, though not obedient to any other body, must follow rules. The three of them, as a composite, may be regarded as sovereign but the problem with that is that they never issue any orders, decrees or laws as a composite body.

4. Finally, is the issue of sanctions. While Austin regarded sanctions are an element of law, not all laws are backed by sanctions. One glaring example of this is in the field of international law.

Legislation v. Precedents

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Legislation

Precedent

Abrogative power

Constitutive efficacy

Reversible

Irreversible if it is rigidly followed.

Divides the function of making law in the hands of different bodies.

Unites the functions of making law and deciding disputes in the hands of the judiciary.

It is created before it is applied to any act (except in the case of statutes with retrospective effect).

It is created only by applying and enforcing it. However, the decision in R v. Manley, 1933 which revived the infraction of public mischief is, in a way, an exception to nulla poena sine lege.

It anticipates situations which could arise.

It deals with situations only after they arise.

It is clear and accessible.

The facts of cases merge so completely with law that it isn’t easy to access the law.

Interpreting statutes primarily requires interpreting the meaning of the letter of the law.

Interpreting case law primarily involves interpreting legal principles and ideas – the spirit of the law.

Repealing is prospective and the statute still applies to matters which arise before it has been repealed.

Overruling is retrospective except in the case of matters which are res judicata, settled accounts and things which happen during the time when the law is held not to be valid.

Obligations

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The word obligation originates from ‘obligate’ in Latin which means something which binds men to an engagement or performance.

There are several types of obligations:
1. Moral
2. Legal
3. Political
4. Positive
5. Negative

Moral Obligations

Moral obligations are subjective, ambiguous, uncodified, not legally binding, customary, traditional and culture-specific.

Legal Obligations

Legal obligations are precise, defined by the law/the Constitution, objective, mandatory, binding, codified and backed by sanction.

Legal obligation is the relationship between a citizen and the state. Both of them have duties towards each other.

Although liberals like Laski, Locke and T H Greene have said that people must disobey unjust laws (such as those which are immoral, unjust or illegal) such disobedience must be peaceful, legal and constitutional.
e.g. TADA was repealed and POTA was enacted in its place – law is merely the means to an end with the end being to protect people.

Political Obligations

Political obligations are closely connected with fundamental rights.

  • Obeying the law
  • Resisting the law
  • Total loyalty to the State
  • Payment of tax and duties

Today’s State is a Welfare State which requires taxes and duties to be paid in order to be able to perform its multifarious functions. Tax evasion is an offence but it is not an offence to invest in Government bonds /PPF and obtain a tax exemption.

  • Casting one’s vote
  • Holding public office
  • Co-operating with the Government to uphold law and order

Positive and Negative Obligations

Positive obligations necessitate the performance of some action while negative obligations require a person to refrain from performing some action.

For example, obligations to the State may be either positive or negative. A positive obligation is to render public service when called upon to do so while not committing sedition is a negative obligation.

Ownership

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The Definition of Ownership

Ownership is the relationship which exists between a person and an object which he owns. It comprises a complex of rights in rem.

The Incidents of Ownership

The Incident

Its Characteristics

1.

The owner’s right to possession

Although he may not actually have possession

however, he retains a reversionary interest if he has voluntarily temporarily divested himself of possession

2.

The owner’s right (liberty) to its use and enjoyment

Although he is not under a duty to either use or enjoy it

however, others have a no-right to prevent him from using / enjoying it

3.

The owner’s right (power) to consume, destroy or alienate the thing

however, others usually do not have any such power: nemo dat quod non habet

4.

The owner’s interest is of indeterminate duration

however, the interest of a non-owner is of limited duration e.g. a lessee’s interest ends with the expiry of the term of the lease

5.

Ownership has a residuary character

and is limited to the rights which remain after lesser rights have been given away

however, the extinction of lesser rights such as lessees’ rights revive in the owner all his original rights

Roscoe Pound

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Roscoe Pound is considered to be the founder of American sociological jurisprudence. His works include:

1. The Spirit of Common Law
2. Interpretation of Legal History
3. The Formative Era of American Law
4. An Introduction to the Philosophy of Law
5. Law and Morals
6. Social Control through Law
7. Law and Morals
8. The Task of Law

According to Roscoe Pound, the main features of the sociological school of jurisprudence are:

  1. It emphasises the functional aspect of law and not its abstract contents.
  2. It treats law as a social institution which is closely related to various other disciplines that have a direct impact on society.
  3. It believes that human experience is the basis of law and that law is designed to meet dynamic social needs. (This is contrary to the emphases placed on ‘command’ by analytical positivism and on the past by the historical school of jurisprudence.)
  4. It either adopts a pragmatic approach by treating law as an applied science which uses functional methods to investigate, analyse and solve social problems or else, it adopts a realistic approach and defines law primarily in terms of judicial precedents.

His theory is called the Theory of Social Engineering.

Law
Pound defined law as ‘the rules principles, conceptions and standards of conduct and decision and also the precepts and doctrine of professional rules of art’. The aim of law is:
1. to satisfy as many wants as possible while causing as little friction or confrontation as can be caused.
2. to reconcile the aims, wants and demands of the individual with those of society
3. to bring harmony into the relationship between the individual and society.

He called this satisfaction of social aims, wants and demands with the least possible sacrifice ‘social engineering’. He went on to say that the members of the judiciary, legislators, administrators and jurists must make a planned and coordinated effort to maintain a balance between the completing interests in society which he classified into three main categories: private, public and social.

Private Interests include physical integrity, freedom of volition, freedom of conscience safeguarded by the law of crime, tort, contract and constitutional law, domestic relationships, etc. Public interests include the preservation of the State and social interests include the preservation of social institutions such as religion, the prevention of prostitution and the conservation of Social Resources such as forests.

The classification is not watertight; Julius Stone has, in fact, said that public interests are social interests.

Pound evaluated these interests with reference to certain basic assumptions which he said exist in every society. He called these assumptions the ‘jural postulates’ of the legal system in question and specifically mentioned five of them which exist as guidelines for civilised life in every civilised society by saying that men in such societies must be able to assume that:

“1. others will commit no intentional aggressions upon them.

2. they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labor, and what they have acquired under the existing social and economic order.

3. those with whom they deal in the general intercourse of society will act in good faith and hence:

(i) Will make good reasonable expectations which their promises or other conduct will reasonably create;

(ii) Will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto;

(iii) Will restore specifically or by equivalent what comes to them by mistake or unanticipated or (via a) not fully intended situation whereby they receive at another’s expense what they could not reasonably have expected to receive under the circumstances.

4. those who are engaged in some course of conduct will act with due care not to cause an unreasonable risk of injury upon others.

5. those who maintain things likely to get out of hand or to escape and do damage will restrain them or keep them within their proper bounds.”

However, Pound also acknowledged that the jural postulates are dynamic; they are merely of relative value and are not absolute.

Criticism of Roscoe Pound’s Theory

1. Social Engineering: By using the term ‘social engineering’, Roscoe Pound compared society to a machine ignoring its dynamic and non-mechanistic nature.

2. Jural Postulates: They fail to establish any framework of reference or yardstick with which to evaluate various interests since they themselves are not static.

3. The Interests: They overlap and cannot be easily fit into neat little pigeon holes.

4. The Balance: Roscoe’s emphasis on securing the maximum satisfaction of needs, wants and demands has the inherent danger of this satisfaction being at the expense of individual rights and freedoms.

References: Salmond on Jurisprudence, Bodenheimer, Roscoe Pound, Social Control Through the Law, (the Powell Lectures) etc.