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Sociology of Law in a Digital Society - a Tweet from Global Bukowina Sociology of Law in a Digital Society - A Tweet from Global Bukowina Larsson, Stefan Published in: Societas/Communitas 2013 Link to publication Citation for published version (APA): Larsson, S. (2013). Sociology of Law in a Digital Society - A Tweet from Global Bukowina. Societas/Communitas, 15(1), 281-295. Total number of authors: 1 General rights Unless other specific re-use rights are stated the following general rights apply: Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal Read more about Creative commons licenses: https://creativecommons.org/licenses/ Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. LUND UNIVERSITY PO Box 117 221 00 Lund +46 46-222 00 00 Sociology of Law in a Digital Society. A Tweet from Global Bukowina Articles RCSL Podgóreckis Prize 2012 STEFAN LARSSON Sociology of Law in a Digital Society. A Tweet from Global Bukowina Is it possible to determine the Facebook Gemeinschaft or the living law of the global file-sharing community? What are the social facts of twitter or the intui- tive law of Chinese microbloggers? This paper argues that digitisation of society, the reliance on digital networks, protocol, algorithms and completely new sets of organisational structures for social communities, have vast implications for core interests within socio-legal research. This, I argue, should therefore be seen as potential for a possible revival of socio-legal classical theorists, following from the fact that several of them struggled to grasp the role of law and norms in a society that in many cases were also in a technology-related metamorphosis. This relates to norm pluralism, or possibly an anomic state in which norms fail to describe reality as it is perceived. For example, copyright law does not de- scribe the reality of distribution and reproduction of cultural content as concep- tualised by the younger generation, which leads to its decreased legitimacy in society. However, here I suggest two complementary traits. First, the study of how we conceptualise law in relation to reality, I argue, could benefit from using findings in cognitive theory relating to conceptual metaphor theory. Language and legal language are expanding and are renegotiated in relation to the massive need to conceptualise digital phenomena. Secondly, I argue that the inherent preconditions in the technologies themselves are of particular socio-legal rele- vance. This means that the regulating aspects of (programming) code deserve extra attention when studying the socio-legal aspects of a digital society.1 Keywords: Digital society, Norm pluralism, Sociology of Law, Conceptual le- gal change, Metaphors and Law. Introduction a Programmatic Claim Many of the texts and theories that we regard as classical in sociology of law were drafted to understand a time of major societal changes in terms of population movements, urbanisation, industrialisation and what may be described as the formation of the modern nation state. For example, Eugen Ehrlich published Grundlegung der Soziologie des Rechts in 1913, offering, 1 Acknowledgements: Although I am the sole author of this article, the ideas can by no means be fully attributed to me. The explicit references may speak for themselves, but Id like to additionally thank my colleagues at the Department for Sociology of Law at Lund University, and the Cybernorms research group for the discussions weve had, perhaps particularly Måns Svensson, Håkan Hydén and Marcin de Kaminski. The article is loosely based on my presentation at the RCSL conference in Warsaw in October 2012. SOCIETAS/COMMUNITAS 1(15) 2013 281 25.p65 281 13-09-12, 14:25 Stefan Larsson for example, the concept of living law, developing the social norms and the inner order of associations opposing the more dogmatic approaches to law; Emile Durkheim published De La Division Du Travail Social in 1893, Les Règles de la Méthode Sociologique in 1895 and Le Suicide in 1897, and in- troduced concepts such as repressive and restitutive law, related to an organ- ic versus mechanical solidarity and anomie, a type of normative mismatch between individual circumstances and larger social expectations; Ferdinand Tönnies first work, Gemeinschaft und Gesellschaft, was originally published in 1887 as a response to the shift from agriculture to industry and the rise of free trade, the modern state, and science (Deflem 2008, p. 33), and Karl Renner published Die Rechtsinstitute des Privatrechts und ihre soziale Funk- tion in 1904 in which he addressed the changes in substratum while the norms remained unchanged, in that although society had gone through such a vast transformation in Western Europe during the nineteenth century, the laws of property and contract still retained the same wording. Quite under- standingly, though, as Deflem points out, [t]he development of sociology of law cannot be told simply as it evolved since the sociological classics, for there is, in the case of this sociological specialty, no such history directly emanating from the disciplines earliest foundations. The task here, howev- er, is not to tell the story of the development of sociology of law, but to argue that the key ideas in many of the theories may be reused and benefi- cially reinterpreted in a quickly transforming digital society. I aim, however sweepingly, to point out a few details on how this can be done, how it can be complemented and, finally, what detailed essence in the digital artefacts needs addressing in particular. Roger Cotterrell, who has paid extensive attention to the work of Durkheim (for example see Cotterrell, 1999; 2009; 2010), sees the battles of sociology of law as a discipline to be more or less over (Cotterrell 2011). He discusses to what extent the discipline has been rou- tinised and argues: perhaps it would be good if sociology of law, in the countries where it is well-established institutionally and accepted as part of the world of law- government, could somehow reinforce more of what was once seen as its subversive, oppositional potential; its suspect nature; its uneasy non-con- formity and inability to fit neat categories of juristic or social scientific knowl- edge (Cotterrell 2011, pp. 19-20). Cotterrell reassures us that in those conditions we might expect to be truly surprised by its innovations and radical thinking of the nature of law in society (2011, pp. 19-20). So, if we accept Cotterrells description, and direct socio- legal attention towards digital development and the Internet, in what way may this reinforce sociology of laws subversive, oppositional potential? 282 25.p65 282 13-09-12, 14:25 Sociology of Law in a Digital Society. A Tweet from Global Bukowina What is so Digital about Society Anyway? Although the Internet is young, its development has come a long way, and its impact on society is in many ways massive. It is not only the tech-savvy geeks nor only the youngest generation who are in contact with it; digital technology runs like a backbone in contemporary society, and we are likely far from under- standing all of its socio-legal consequences (Larsson 2012a). And this is only the beginning: the effects of digitisation and the Internet on regulation and law in relation to behaviour are an empirical field, and I argue here that it is underde- veloped from a sociology of law perspective. This relates to both legal and social norms; online communities have emerged and will continuously do so, shaped under different preconditions than earlier, non-spatially, non-geographically oriented communities, and new players will strive to become infrastructure in our lives for processes relating to the social, medial, or informational in the sense that Google, Facebook, Twitter and others are now important contempo- rary players. To some extent, the digital architecture has a role in governing the codes of conduct in the online sphere. It is meaningful to speak of (program- ming) code as law in its ambiguous meaning (Lessig 2006). This creates new in a sense regulatory responsibilities for those who construct the infrastructure that we, to a large extent, have come to rely upon. The way Google arranges and organises search results is increasingly controlling how we conceptualise reality. The way in which Facebook draws the line for picture publication in its internal policies defines, in practice, the online publishing of private pictures to a degree that no national policy-making can ever reach. As a result, the author- ity of the nation state as the ruling government is arguably diminishing; the democratic foundations are reshaping, not without a certain amount of agony to the players relying on the traditional structures of the nation state govern- ment. This is likely increasing the plurality and diversity in norms, perhaps some- times an anomic state of normative mismatches, where law fails to provide meaningful directive for the issues that, for example, individuals face in a digi- tally networked society. Let me first present some statistics in order to display some sort of impact that the Internet and digital applications have on society, and how interconnected and dependent on it society in many parts of the world increasingly is. For example: 2,267,233,742 have access to the Internet (as of 31 December 2012);2 Over one billion smartphones had been sold by October 2011;3 2 According to Internet World Stats, http://www.internetworldstats.com/stats.htm [last visited De- cember 1, 2012] 3 According to research firm Strategy Analytics.
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