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JOBNAME: Polcak PAGE: 4 SESS: 2 OUTPUT: Tue Aug 15 16:20:06 2017
©Radim Polcˇák, Dan Jerker B. Svantesson and Masaryk University 2017
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical
or photocopying, recording, or otherwise without the prior permission of the
publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2017936584
This book is available electronically in the
Law subject collection
DOI 10.4337/9781786439222
ISBN 978 1 78643 921 5 (cased)
ISBN 978 1 78643 922 2 (eBook)
Typeset by Columns Design XML Ltd, Reading
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Contents
Foreword viii
Acknowledgements x
List of abbreviations xi
Table of authorities xiii
1 Introduction 1
1.1 Introduction 1
1.2 A developing area of great importance 2
1.3 User guide (how to read this book) 4
2 Potemkin’s laws 6
2.1 Catherine’s ‘ought’ 6
2.2 Wiener’s ‘is’ 9
2.3 Good rules 13
2.4 Good facts 16
2.5 Commanding sunsets 18
2.6 The spatial paradigm 22
2.7 Commanding data 25
2.8 Conclusion–anegativeontology of information law 27
3 International information sovereignty 32
3.1 Introduction 32
3.2 To regulate or not to regulate, thatwasthe question 34
3.3 The international legal system: public, and private,
international law 40
3.4 Jurisdiction 43
3.5 Drawing upon analogies and metaphors from the offline
world 48
3.6 Territoriality and extraterritoriality 52
3.7 Sovereignty 58
3.8 Sovereignty, sovereign states and their ‘gods’ 65
3.9 The duty of non−intervention 68
3.10 Comity 70
3.11 Due diligence and no harm 70
3.12 Consent – not the central concept it is assumed to be 73
v
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3.13 Where does this leave us? 79
4 Private information sovereignty 81
4.1 The century of privacy 81
4.2 Being left to one’s self 84
4.3 Right to peace 86
4.4 The limits to privacy 89
4.5 Information privacy and information sovereignty 94
4.6 First implication – independent existence of privacy 96
4.7 Second implication – limitation or justified infringement 100
4.8 Third implication – carving one out of another 103
4.9 Fourth implication – consent 104
4.10 No implication – personal data 108
5 The legal culture of the horse 113
5.1Lex informatica vel lex nulla 113
5.2 A new legal tradition 120
5.3 End of the law as we know it 124
5.4 Efficiency spoiled by lawyers 128
5.5 No hierarchy needed 130
5.6 Floyd’s way forward 133
5.7 Methodological dilemma 135
6 A possible method for solving sovereignty clashes 140
6.1 Introduction 140
6.2 Legitimate interest and substantial connection – their
common origin and similarity 143
6.3 Substantial connection 144
6.4 Legitimate interest 145
6.5 Interest balancing 146
6.6 The proposed framework applied to data privacy 153
6.7 Concluding remarks 153
7 Cybersecurity for hedgehogs 155
7.1 Virtualized security 155
7.2 Privatized security 158
7.3 Delocalized security 161
7.4 Home or abroad 165
7.5 No direct link between territory and data 167
7.6 Object or procedure 173
7.7 Diligent sovereigns 177
7.8 Choosing the information sovereign 180
7.9 Due diligence 182
7.10 Foxes and hedgehogs 185
vi Information sovereignty
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8 Law enforcement for hedgehogs 188
8.1 Introduction 188
8.2 The characteristics of the current landscape 189
8.3 Jurisdiction, but what type and over what? 192
8.4 An unhelpful obsession with single−factor tests 195
8.5 The stranglehold of territoriality 197
8.6 Applying the framework to law enforcement access to
data 199
8.7 Achieving change – a task for us all 205
9 Cross−border data transfers for hedgehogs 207
9.1 Introduction 207
9.2 How data privacy law deals with cross−border data flows 211
9.3 European data colonization through global delisting
orders 223
9.4 Concluding remarks 230
10 Conclusions 233
Bibliography 239
Index 257
Contents vii
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Foreword
VěraJourová,EuropeanCommissionerforJustice,
ConsumersandGenderEquality
When the European Community adopted its first data protection directive in
1995, the Internet was in its infancy. The personal data that legislators had in
mind was in paper filing systems or static electronic databases of public
institutions like ministries, hospitals and schools or private companies.
More than 20 years later, the scale and means of data processing have
undergone a technological revolution: the Internet and cloud computing
allow for easier transfer and use of data, including personal data, across
the globe. It is in this context that Europe equipped itself with a new
General Data Protection Regulation, which will enter into application in
May 2018.
The EU’s new data protection rules update existing concepts, harmon−
ize their application across the Member States, and provide for stronger
enforcement including through financial sanctions for non−compliance.
The revised rules aim to strengthen individual rights in a digital age,
while creating a level playing field for companies in Europe’s Digital
Single Market.
One of the novelties of the General Data Protection Regulation is that it
will explicitly apply also to companies based outside the EU if their data
processing activities relate to the offering of goods or services or the
monitoring of behaviour in the EU. Moreover, important safeguards will
continue to apply for transfers of personal data from the EU to other parts of
the world; the aim being that the protection must ‘travel with the data’.
The right to protection of personal data is enshrined as a fundamental
right in the EU. However, it is not unique to Europe. More and more
countries around the world are adopting legislation on the protection of
personal data, in order to both protect their citizens and equip their
economies for digital transformation.
At this juncture, the work of Radim Polcˇák and Dan Svantesson
provides very timely insights into the relationship between data protec−
tion and privacy law with key principles of international law, both public
viii
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and private. Polcˇák and Svantesson explore the origins and nature of data
protection law (and how it relates to the broader notion of privacy),
explore the notion and meaning(s) of jurisdiction, and point to the
inherent challenges in cross−border enforcement of laws, including data
protection laws.
On the topical question of privacy versus security, Polcˇák and Svantes−
son dispel the idea of a simplistic trade−off between the two, given the
increasing interlinkage between the right to privacy and the need for
security (e.g. data security, security for cyberattacks). Moreover they
point out that protecting one person’s privacy (e.g. from cyberstalking)
may require interference in the privacy of another.
Above all, Polcˇák and Svantesson remind us that it is not the personal
data as such that deserves protection, but the individuals to whom it
pertains, and whose human dignity must not be endangered. (Indeed, the
full title of the EU’s data protection law refers to ‘the protection of
natural persons with regard to the processing of personal data’.)
This is more than a question of semantics, as shown by situations
where the mass processing of relatively trivial pieces of personal infor−
mation can result in serious interference with individuals’ lives, whether
it is influencing their credit rating or their democratic choices. Polcˇák and
Svantesson call it the ‘risk associated with extensive presence and
availability of informational footprints’.
Tackling these risks will require individual awareness and responsibil−
ity, but also the courage of politicians to weigh the benefits of tech−
nological changes against the threats and ethical dilemmas they bring.
As Europe proceeds with implementing the General Data Protection
Regulation, EU policymakers are turning their attention to another
complex issue: the (cross−border) access to electronic evidence for
criminal investigation and prosecution. Prosecutors in EU Member States
increasingly rely on evidence stored in cloud servers abroad even to
prosecute entirely ‘domestic’ crimes (committed in the same country by
and against residents of that country) without any cross−border com−
ponent. While judicial cooperation between EU Member States is becom−
ing more efficient and routine, access to electronic evidence raises new
questions about jurisdiction and territoriality in cyberspace.
Again, Radim Polcˇák and Dan Svantesson make a very timely contri−
bution to this debate, by exploring relevant concepts of international law
and how they link to national criminal procedure laws. In doing so, they
provide crucial academic groundwork for one of the key policy chal−
lenges facing Europe’s justice ministers today.
Foreword ix
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Acknowledgements
When about to promote someone to an important position, Napoleon
Bonaparte famously used to ask whether the person in question was
‘lucky’; Napoleon thus regarded luck as a personal attribute and, indeed,
an attribute more important than being ‘good’. We feel very lucky to have
had the chance to collaborate on this book – a book that is a result of a
friendship that started 14 years ago, and common interests in data privacy
law, international law and legal philosophy that date back even further.
In writing this book, we have been lucky to have the support of an
institutional research grant from the Masaryk University, Faculty of Law.
We have been lucky enough to have the opportunity to present our
ideas for this book at various events in Europe, North America and
Australia, and it is lucky indeed that we have had the skilled assistance of
Catherine Karcher to help make sense of the text produced by us (both of
us with English as a second language).
Luckily, Edward Elgar Publishing agreed to publish our book and
luckily the European Union’s Commissioner for Justice, Consumers and
Gender Equality, Věra Jourová, kindly agreed to write the Foreword for
our book.
Finally, we are very lucky to each have families (Jan Polcˇák, Petra
Polcˇáková, Freja Svantesson, Felix Svantesson and Bianca Svantesson)
who have patiently accepted the workload involved in writing this book,
and the many evenings, weekends and early mornings devoted to the
work.
In light of all this luck, we end by reconnecting to the wisdom of
Emperor Bonaparte; we say nothing about whether we are ‘good’
academics, but we know that we are ‘lucky’, and we know we have a lot
for which to be grateful.
Radim Polcˇák (Brno) and Dan Jerker B. Svantesson (Mudgeeraba)
31 December 2016
x
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Abbreviations
AEPD Agencia Española de Protección de Datos
ccTLD country code top−level domain
CDA Communication Decency Act (US)
CERT Computer Emergency Response Team
Ch D Chancery Division
CIA Central Intelligence Agency
CJEU Court of Justice of the European Union
CLR Commonwealth Law Reports
CSIRT Computer Security Incident Response Team
DPA Data Protection Authority
ECtHR European Court of Human Rights
ETS European Treaty Series
FBI Federal Bureau of Investigation
FCC Federal Communications Commission
FCR Federal Court Reports
GATS General Agreement on Trade in Services
HADOPI Haute Autorité pour la Diffusion des œuvres et la
Protection des droits d’auteur sur Internet
HRC Human Rights Council
ICANN Internet Corporation for Assigned Names and Numbers
ICJ International Court of Justice
ICT information and communications technology
ILA International Law Association
IP Intellectual property
ISP Internet Service Provider / Information Society Service
Provider
MLA Mutual Legal Assistance
NATO North Atlantic Trade Organization
xi
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NSA National Security Agency
NSWCA New South Wales Court of Appeals
NSWSC New South Wales Supreme Court
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
PIPEDA Personal Information Protection and Electronic
Documents Act (Canada)
SPEECH Act Securing the Protection of our Enduring and Established
Constitutional Heritage Act (US)
T−CY Le Comité de la Convention sur la cybercriminalité
UDRP Uniform Domain−Name Dispute−Resolution Policy
WTO World Trade Organization
WWW World Wide Web
xii Information sovereignty
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Table of authorities
AUSTRALIA
Commonwealth
Cases
Dow Jones & Co Inc v Gutnick(2002) 210 CLR 575 ...................................... 37, 43
Legislation
Privacy Act 1988 (Cth) ....................................................................................... 218
Privacy Act 1988 (Cth), Art 5B ........................................................................... 219
New South Wales
Cases
LARS SA v Bone China Pty Ltd[2015] NSWSC 730 ........................................... 151
Macquarie Bank Limited and another v Berg[1999] NSWSC 526 ....................... 69
Murakami v Wiryadi[2010] NSWCA 7 .............................................................. 151
CANADA
Cases
Google Inc v Equustek Solutions Inc, et al<https://scc−csc.lexum.com/scc−csc/
scc−l−csc−a/en/item/15737/index.do> ..................................................... 39, 49
Lawson v Accusearch Inc dba Abika.com[2007] 4 FCR 314 ............................ 45–6
Legislation
Personal Information Protection and Electronic Documents Act (PIPEDA) SC
2000, c 5 ....................................................................................................... 46
xiii
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COUNCIL OF EUROPE
Legislation
Council of Europe Convention on Cybercrime (ETS No 185)
Arts 2–11 ........................................................................................................ 194
Art 22 .............................................................................................................. 194
CZECH REPUBLIC
Cases
1994/10/12 – Pl. ÚS 4/94: Anonymous Witness (1994) [Decision of the
Constitutional Court of the Czech Republic] .............................................. 150
2011/03/22 – Pl. ÚS 4/94: Data Retention (2011) [Decision of the Constitutional
Court of the Czech Republic] ....................................................................... 84
Czech Cybersecurity Act ............................................................. 183, 184, 185, 186
EUROPEAN UNION
Cases
Criminal Proceedings against Bodil Lindqvist(Case C−101/01) (6 November
2003) .......................................................................................................... 215
Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD),
Mario Costeja González(Case C−131/12) ECLI:EU:C:2014:317 ......... 17, 44,
149, 223–7, 229, 230
Maximillian Schrems v Data Protection Commissioner(C−362/14)
ECLI:EU:C:2015:650 ......................................................... 203, 212, 213, 214
Pammer v Reederei Karl Schlüter GmbH & KGandHotel Alpenhof GesmbH v
Oliver Heller[2010] (Joined Cases C−585/08 and C−144/09)
ECLI:EU:C:2010:740 [2010] ECR I−12527 ................................................ 39
Weltimmo v Hungarian Data Protection Authority(Case C−230/14)
ECLI:EU:C:2015:639 .................................................................................. 46
Legislation
Charter of Fundamental Rights of the European Union (2000) ........................... 111
Art 8 ............................................................................................................... 230
Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/
46/EC of the European Parliament and of the Council on the adequacy of the
protection provided by the safe harbour privacy principles and related
frequently asked questions issued by the US Department of Commerce
(notified under document number C (2000) 2441) .............................. 212, 215
xiv Information sovereignty
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Directive 95/46/EC on the protection of individuals with regard to the processing of
personal data and on the free movement of such data ................................... 44
Directive (EU) 2016/1148 concerning measures for a high common level of security
of network and information systems across the Union, Art 4(1)(a) ............. 174
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
(Brussels I Regulation) ................................................................................. 38
Regulation (EU) 2016/679 on the protection of natural persons with regard to the
processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC (‘General Data Protection Regulation’) ...... viii,
ix, 39
Art 3 ........................................................................................ 219, 220, 222, 233
FRANCE
Cases
International League Against Racism & Anti-Semitism (LICRA) vYahoo! Inc[2000]
County Court of Paris ................................................................................... 38
Legislation
Code of Civil Procedure ....................................................................................... 38
French Penal Code 1791, Article R645−1 .............................................................. 38
Haute Autorité pour la Diffusion des œuvres et la Protection des droits d’auteur sur
Internet 2008 .......................................................................................... 21, 22
GERMANY
Legislation
Basic Law ............................................................................................................. 90
ISRAEL
Cases
Attorney-General of the Government of Israel v Eichmann(Israel Sup Ct 1962),
Int’l L Rep, vol 36, p 277, 1968 (English translation) ................................. 194
Table of authorities xv
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NORWAY
Cases
Anders Behring Breivik mot State v/Justis- og beredskapsdepartementet
15−107496TVI−OTIR/02 ............................................................................. 89
SINGAPORE
Legislation
Personal Data Protection Act (Act No 26/2012)
Art 2(1) ........................................................................................................... 218
Art 13 ...................................................................................................... 218, 219
TRINIDAD AND TOBAGO
Legislation
Data Protection Act 2011, s 69 ........................................................................... 231
UNITED KINGDOM
Cases
Pollard v Photographic Co(1888) 40 Ch D 345 ................................................... 82
UNITED NATIONS
Cases
‘Corfu Channel’(United Kingdom v Albania) [1949] ICJ Rep 4 ...................... 70–1
‘Legal Status of Eastern Greenland’(Denmark v Norway) PCIJ Series A/B No 53
(5 April 1933) ............................................................................................. 105
‘Oil Platforms’(Iran v US) [2003] ICJ Rep 161 (6 November 2003) .................. 178
Republic of the Philippines v People’s Republic of ChinaPCA Case No
2013−19 ...................................................................................................... 104
‘Right of Passage over Indian Territory’(Portugal v India) [1960] ICJ Rep 6 (12
April 1960) ................................................................................................. 105
SS “Lotus”(France v Turkey) PCIJ Series A No 10 (1927) ................................. 198
xvi Information sovereignty
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Legislation
Charter of the United Nations, adopted by the UN General Assembly of 24 October
1970 ............................................................................................................. 75
Art 2(1) ............................................................................................................. 62
Declaration on Principles of International Law Concerning Friendly Relations and
Co−Operation among States in Accordance with the Charter of the United
Nations, A/RES/25/2625, 1970 .................................................................... 68
UNITED STATES
Cases
Hilton v Guyot159 US 113 (1895) ........................................................................ 70
In the Matter of a Warrant to Search a Certain E?Mail Account Controlled and
Maintained by Microsoft Corporation14 July 2016 (Docket No 14?2985)
<http://pdfserver.amlaw.comj/microsoft_ca2_20160714.pdf> ... 39, 200, 201,
202, 204
Sidis v FR Pub Corporation, 113 F 2d 806 (2d Cir 1940) .................................. 82–4
Legislation
Communication Decency Act (CDA) 1996 .......................................................... 49
Electronic Communications Privacy Act 1986 ................................................... 200
Restatement (Third) of US Foreign Relations Law 1987
s 403 ............................................................................................................... 149
s 403(2) ....................................................................................................... 148–9
s 403(3) ....................................................................................................... 148–9
SPEECH Act (Securing the Protection of our Enduring and Established
Constitutional Heritage Act) 2010 ................................................................ 39
OTHER
Legislation
‘EU−US Privacy Shield Framework’<www.privacyshield.gov/
EU−US−Framework> .......................................................................... 214, 217
FCC Notice of Apparent Liability for Forfeiture of 13 April 2002, File No
EB−10−EH−4055 ................................................................................. 170, 171
‘Harvard Research Draft Convention on Jurisdiction with Respect to Crime’
(‘Harvard Draft’) ........................................................... 47, 141, 143, 146, 193
International Covenant on Civil and Political Rights, Art 19 ................................. 63
Table of authorities xvii
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1. Introduction
1.1 INTRODUCTION
These days, it is virtually impossible to pick up a newspaper or watch a
news program on TV without coming across some mention of privacy
and/or data protection. This is unsurprising given the central role that
data play in the world – defined both spatially and temporally – in which
we live. Much of the discussions are focussed on, or at least contain
elements of, cross−border considerations. In other words, data privacy
with a twist of international law has become a very hot topic indeed.
At the time of concluding the writing of this book, the news was filled
with discussions of whether Putin’s Russia was behind the hacking
activities, and the spread of misinformation, that saw a ‘reality TV’
personality take on the job as President of the United States. On 6
January 2017, the US Office of the Director of National Intelligence
released a declassified report combining conclusions from investigations
of the FBI, the CIA and the NSA. That report concluded that:
Moscow’s influence campaign followed a Russian messaging strategy that
blends covert intelligence operations – such as cyber activity – with overt
efforts by Russian Government agencies, state−funded media, third−party
intermediaries, and paid social media users or ‘trolls.’…Russia’s intelligence
services conducted cyber operations against targets associated with the 2016
US presidential election, including targets associated with both major US
political parties.…We assess with high confidence that Russian military
intelligence (General Staff Main Intelligence Directorate or GRU) used the
Guccifer 2.0 persona and DCLeaks.com to release US victim data obtained in
cyber operations publicly and in exclusives to media outlets and relayed
material to WikiLeaks.
1
Looking forward, the report also made the following prediction: ‘We
assess Moscow will apply lessons learned from its campaign aimed at the
1
Intelligence Community Assessment, ‘Assessing Russian Activities and
Intentions in Recent US Elections’ (ICA 2017−01D, 6 January 2017)
<www.dni.gov/files/documents/ICA_2017_01.pdf> ii–iii.
1
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US presidential election to future influence efforts in the US and
worldwide, including against US allies and their election processes.’
2
All this is a potent reminder of just what is at stake in the international
data privacy and security arena. The cyber−environment, in which data
are the building blocks, is no longer merely a playground for ‘nerds’.
Rather, it is now clearly integrated into the ‘real world’, and distinguish−
ing between the two is no longer meaningful; the real−world implications
of activities in the cyberworld are undisputable.
In this book, we elaborate on the concepts of individual data privacy
and information sovereignty, which we believe are not only similar but
essentially equivalent. In this work, which originally started as an idea
for an article or two, we demonstrate that it is possible not just to name
their common principles but even to identify a common method to tackle
the problems that arise from their inevitable collisions. In addition, we
illustrate that it is possible to mutually transfer or transplant existing
experiences between these two areas of law to resolve some of their
contemporary ‘hard cases’ or fundamental controversies.
The topics of this book are all centred on contemporary ‘hot’ issues of
international data privacy and information security. However, while we
deal with obvious questions of cross−border data flows etc., our aim goes
beyond a mere description of current law and legal practices. We try to
show that further exploration of the true nature of individual and
international ‘information sovereignty’ might provide not only for solu−
tions of existing problems (e.g. of territoriality) but also for ways to
answer new questions yet to arise in the future.
1.2 A DEVELOPING AREA OF GREAT IMPORTANCE
This book elaborates on the assumption that information privacy is, in its
essence, comparable to information sovereignty. This – seemingly rudi−
mentary – observation serves as the basis for an analysis of various
information instruments in domestic and international law. It also pro−
vides for the method to resolve situations where the informational
domains of individuals and/or states collide.
There are numerous legal cases where information sovereignty of a
state collides with information sovereignty (data privacy) of an individual
– for example digital discovery in criminal investigation, data retention
2
Intelligence Community Assessment, ‘Assessing Russian Activities and
Intentions in Recent US Elections’ (ICA 2017−01D, 6 January 2017)
<www.dni.gov/files/documents/ICA_2017_01.pdf> 5.
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etc. In these cases, courts use the method of proportionality to assess
adequate balance between data privacy and values such as national
security or public order. In this book, we argue that such conflicts are, by
their nature, arising from the same fundamental concept and should be
treated as such.
Even more importantly, understanding the parallels between the regu−
latory concepts of information sovereignty and data privacy might
significantly help in resolving ‘hard cases’ of both of these concepts that
do not even include their mutual conflict. Simple analogical transfer of
experience with the use of the concept of sovereignty in public inter−
national law can, in cases where proper methodology is applied, show the
correct ways of resolving difficult legislative or interpretative assign−
ments in privacy, and vice versa.
To demonstrate the analogy between information sovereignty and data
privacy, we choose some of the most significant emerging issues of
contemporary cyberlaw, including cross−border discovery, cybersecurity
and cyber−defence operations, and legal regimes for cross−border data
transfers. We do not aim to describe or analyse these relatively distinct
issues in depth, but rather we focus on their fundamental problems
(which are by their nature, as we believe, very similar) and show ways to
resolve them. For instance, in cybersecurity, we use the aforementioned
analogy and method to define an alternative concept of the informational
component of state sovereignty under public international law – a
concept that is not burdened by the logical and technical contradictions
of recently dominant territorial understanding of sovereignty and
jurisdiction.
The main use for the book is by academic readers ranging from
doctoral students to advanced researchers. We hope that the scope of
possible audience is relatively broad given that the book tackles, on an
abstract level, two concepts that are central to contemporary law of
information and communication technologies (cyberlaw), i.e. privacy and
sovereignty. In that sense, the ambition of the book is to contribute to
further forming of doctrine of both these concepts. As privacy became an
integral part of a number of specific legal phenomena, we believe the
book might also be of use for those who elaborate on issues like
eCommerce, eGovernment, online protection of intellectual property etc.
At least equally important for almost all areas of cyberlaw is also the
question of sovereignty and its consequent implications such as juris−
diction, law applicable and authoritative enforcement, simply because it
is essential for any lawyer to know, prior to approaching some particular
legal issue of the online world, which law applies and to which extent.
Introduction 3
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A unique feature of the book is that both concepts, i.e. information
privacy and information sovereignty, are analysed, discussed and devel−
oped here using the same core method. The discovery of the possibility
of approaching information privacy and information sovereignty through
the same methodological paradigms was actually the main impulse that
made the authors commence work on the book. Both concepts share the
same factual and philosophical basis, but they belong to entirely different
areas of law. That is probably also the main reason these concepts have
not been used before in close connection. The distance between respect−
ive legal disciplines (i.e. privacy law and public international law) also
causes particular terminological and doctrinal mismatches that repre−
sented the biggest challenge in the process of putting the book together.
However, it is possible to overcome these particularities on an abstract
level as well as on the level of specific legal issues – which might also
per se serve as just another proof of the essential similarity of data
privacy and information sovereignty as such.
An equally important impulse for creating the book was our observ−
ation of the fundamental contradictions between the content of actual
legal rules and the findings of cybernetics and information sciences.
While law tends to understand information as a static object, natural
information sciences proved that it should be understood as a process (in
particular, as a process of organizing various entities). Consequently, we
aim at establishing a proper legal understanding of meanings and
functions – namely of the core natural concepts of information and data.
Apart from theoretical significance, we note that lack of acknowledge−
ment of the natural functional features of information negatively affects
the practical efficiency of various legal instruments. In that sense, we
choose some negative examples of protection of personal data or cyber−
security, as well as some positive examples of privacystricto sensu(i.e.
the civil law concept of privacy) or intellectual property, to demonstrate
that reflecting the true nature of information is essential for practical
legitimacy of even very particular and specific legal rules.
1.3 USER GUIDE (HOW TO READ THIS BOOK)
This is a book about ideas. Some of those ideas are fully developed.
Others, however, are presented here rather as a starting point for future
discussions. For this, and other reasons, we want to conclude this
introduction with a disclaimer to the reader:
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Caveat Emptor(Legal Disclaimer)
(1) This is a book and should only be used for the purposes for which
books commonly are used. Even if it floats, this book is not intended
to be used as a flotation device or otherwise for life-saving
activities.
(2) The content of this book is based on the following assumptions:
(a) that information is the opposite of entropy;
(b) that current technology makes the physical location of data
practically irrelevant for many purposes;
(c) that states as well as individuals have natural rights to claim
their informational domains; and
(d) that the aforesaid rights of states and individuals are essen-
tially equivalent.
If you are allergic to any of these ideas, or otherwise find these
assumptions inappropriate or offensive, please do not read further
(it just gets worse).
(3) This book is not intended to solve all regulatory problems of
contemporary international information society. Some parts of this
book might contain traces of pragmatic solutions of most evident
regulatory paradoxes of contemporary Internet law. However, the
authors accept no liability for any subsequent attempts to apply
these solutions in actual legal practice.
(4) This book is not smart (in any sense). It does not contain any
sensors, so you might openly and loudly discuss private matters in
front of it. By reading this book, you make no waiver of your
privacy or intellectual property rights.
(5) This book is a fresh brew. Some ideas might not be fermented
properly. Some parts of this book are blended with highly valuable
VSOP and Gran Reserva content that does not originate in the
minds of the authors. The authors respectfully apologize to those
whose great ideas were accidently blended into this book without
proper acknowledgment in footnotes or elsewhere.
(6) If you experience difficulties agreeing with any of the ideas
presented in this book, please do not be alarmed – it is not your
fault. It is a design feature arising from the fact that even the
authors were sometimes unable to mutually agree on some things.
(7) If this book still contains attempted anecdotes that might not seem
funny to most audiences, it means the publisher was just too kind to
edit them out.
Introduction 5
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2. Potemkin’s laws
2.1 CATHERINE’S ‘OUGHT’
Grigory Potemkin is one of the most iconic public figures in Russian
history. He was a successful military commander, a politician and a
business person, all contemporaneously.
1
No doubt, success in any one of
these fields helped fuel success in the others. His talents, charm and good
luck gave him, together with the necessary sympathy of the Empress
Catherine the Great, a dream position desired by all future oligarchs who
thereafter followed his example.
2
One of his most successful projects was the annexation of Crimea,
which left him with military control over this strategic territory without
the need to fire a single bullet.
3
However, it turned out that, similar to
other Russian territories in the South, the Crimean region was not able to
produce enough wealth to sustain Potemkin’s expensive lifestyle and
megalomaniacal plans while at the same time providing sufficient food
and accommodation for, and meeting the other vital needs of, the locals.
The choice for Potemkin was obvious, but the problem was that
Catherine did not want to see her peasants suffer. The legend says that, as
it was more or less impossible for Potemkin to prevent the peasants from
starving, he simply decided to prevent Catherine from seeing them starve,
or indeed seeing them at all. Regardless of whether the legend is true,
this is exactly how Potemkin is mostly known outside Russia – not really
as a prototype of the successful Russian politician but rather as the
creator of what became known as the ‘Potemkin village’.
4
1
See, for example, D Lieven,Empire – The Russian Empire and its Rivals
(Yale University Press, 2001) 201.
2
See V Rounding, Catherine the Great – Love, Sex and Power(Macmillan,
2008) Ch 12.
3
See D Lieven,Empire – The Russian Empire and its Rivals(Yale
University Press, 2001).
4
In a number of Slavonic languages, Potemkin (even with a small ‘p’) is
used as an adjective for something that exists only in pretence. If one speaks in
Poland or Slovakia about a Potemkin diamond, only a few would think that it is
an actual 51−carat stone.
6
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Pierre Lévy would probably view the Potemkin village as a form in
which virtual reality is temporarily actualized.
5
The virtual reality was, in
Potemkin’s case, created because of Catherine’s demand for well fed and
finely housed peasants. Normally, this could easily be achieved through
language in the form of reports or notices. However, in this instance,
Catherine wanted to review the actualization of her orders in person.
Thus, the only feasible way to do this was to construct a couple of fine
settlements, hire crowds of happy actors and then carefully direct
Catherine’s inspection tours.
The phenomenon of Potemkin’s village can perfectly serve to demon−
strate a vast number of (actual) legal concepts. First, it can beautifully
illustrate how Hume’s distinction between ‘is’ and ‘ought’ works.
6
This
dichotomy, which still substantially shapes Euro−Atlantic legal thinking,
is based on the assumption that our perceivable world consists of two
main elements, facts (‘is’) and rules (‘ought’), and that there is an
unsurpassable gap between these two elements.
One of the implications of this dichotomy serves as the traditional
argumentative basis for European legal positivism. Positivist lawyers
believe that, whereas law undoubtedly belongs to ‘ought’, its content
must be entirely independent from the ‘is’. It implies, inter alia, that
factual considerations must always be distinct from respective legal
implications and that we assume the law to be purely a product of a
creative mind (not of a mere discovery). Consequently, a legal rule might
be only valid or invalid, while a statement of facts can be only true or
false.
7
When Catherine normatively demanded her apparatus to provide for
good living conditions for her peasants, her command definitely belonged
to the ‘ought’. As she was a regent, i.e. she had the ultimate and
5
Lévy explains the concepts of virtuality and actuality together with a
group of associated phenomena in his book Pierre Lévy,Becoming Virtual –
Reality in the Digital Age(Plenum Trade, 2002). In his words, Potemkin’s
village is simply a result of a move from virtual to actual, i.e. it is a kind of
depicted ideal.
6
This dichotomy was first described as the difference between truth and
morals by David Hume in D Hume,A Treatise on Human Nature(1739) Book
III, Pt I, section I; republished by Project Gutenberg at Gutenberg.org as book
No 4705.
7
Probably the most refined of European positivist schools of legal thought
is the Pure Theory of Law (Reine Rechtslehre) – its roots are explained by its
author, Hans Kelsen, in the short treatise H Kelsen,Introduction to the Problems
of Legal Theory(SL Paulson and B Litschewski Paulson trans, Clarendon Press,
1997).
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sovereign legitimacy to order, the validity of that rule could not be
undermined by any practical limits like a bad overall economic situation
or the cupidity of Potemkin and his peers. Thus, the rule was valid and
Potemkin was bound to obey.
One of very few exceptions from Hume’s thesis acceptable under
positivist law is the principle ofimpossibilium nulla obligatio est.
8
It
makes invalid those legal rules that are objectively impossible to imple−
ment, i.e. it gives, in a case of ultimate conflict of a rule and natural
necessity, the priority to ‘is’ over ‘ought’. This principle seems relatively
straightforward and very reasonable because it says that rules should (at
least) make some sense. It also implies that whenever an impossible rule
is made, it should be regarded as a mistake of the lawmaker or the result
of some defect in the law−making procedure.
The conditions under which this exception applies seem prima facie
clear – it is meant for a situation where an obligation is totally impossible
to fulfil. However, as the Potemkin case shows, the line between total and
relative impossibility is often both thin and blurred. Arguably, no one
explained Hume’s dichotomy together with the relativity of what is
‘possibilium’better than Saint−Exupéry, in the following conversation
between the little prince and the king:
9
‘If I ordered a general to fly from one flower to another like a butterfly, or to
write a tragic drama, or to change himself into a sea bird, and if the general
did not carry out the order that he had received, which one of us would be in
the wrong?’ the king demanded. ‘The general or myself?’
‘You’, said the little prince firmly.
‘Exactly. One must require from each one the duty which each one can
perform’, the king went on. ‘Accepted authority rests first of all on reason. If
you ordered your people to go and throw themselves into the sea, they would
rise up in revolution. I have the right to require obedience because my orders
are reasonable.’
8
Literally, ‘The impossible is no legal obligation’: Oxford Reference Online
<www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref−
9780195369380−e−880>. The roots of this principle date back to the times of
Roman law. Reinhard Zimmermann explains this in R Zimmermann,The Law of
Obligations: Roman Foundations of the Civilian Tradition(Oxford University
Press, 1996) 691.
9
The book was recently reissued for all major e−book platforms with colour
illustrations as A de Saint−Exupéry,The Little Prince(Unabridged with Large
Illustrations, 70th Anniversary edn) (CreateSpace Independent Publishing Plat-
form, 2015).
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There is no doubt that it is impossible for a general ‘to change himself
into a sea bird’, just as it was impossible for Potemkin to provide all
peasants with luxury accommodation and fancy food. On the other hand,
the general might be able, if he tried hard enough, to ‘write’ a
(somewhat) ‘tragic drama’. In the same sense, Potemkin would probably
have been able to provide the local people with comparatively good
housing and alimentation, at least if he had limited his own demand for
luxury, excess and greatness.
It is then relatively easy to argue thatimpossibilium nulla obligatio est
should not apply in Potemkin’s case, as it was objectively possible for
him to do much more for the peasants compared to what he actually did.
Compliance with Catherine’s rule was still a matter of Potemkin’s will.
However, the realistic possibility of Catherine’s rule was, in this instance,
heavily limited by Potemkin’s nature: namely, his irresistible temptation
by, and strive towards, luxury and megalomaniacal projects, both of
which were natural defining elements of Potemkin’s personality. Cath−
erine must have known about those personality traits, so she must have
known that ordering Potemkin to improve the living conditions of the
locals was rather something akin to ordering him to ‘fly from one flower
to another like a butterfly’. Consequently, one might even eccentrically
but pragmatically argue that the Potemkin village was actually not a
result of Potemkin’s perverse creativity but rather a perverse form of
revolt (civil disobedience
10
) against Catherine’s unreasonable rules.
2.2 WIENER’S ‘IS’
Norbert Wiener was not just the founder of cybernetics but also most
likely the last pansophic philosopher in the history of humankind. His
approach to complex scientific understanding of natural phenomena was
chiefly motivated by great discoveries made around the end of the
10
This, however, should not serve as a good example of civil disobedience.
The first modern scientific record of this phenomenon was related to passive
resistance against special taxes supporting slavery and a problematic military
campaign, and its legitimacy was always strongly linked to moral principles. The
mere term is originally described by Henry David Thoreau in simple words:
‘Unjust laws exists: shall we be content to obey them, or shall we endeavour to
amend them, and obey them until we have succeeded, or shall we transgress
them at once?’ See HD Thoreau, ‘Civil Disobedience’ in HA Bedau,Civil
Disobedience in Focus(Routledge, 1991) 35.
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nineteenth century and inspired by traditional ancient holistic philosophy.
It is no wonder that he named Leibniz as the godfather of cybernetics.
11
Nowadays, cybernetics is understood rather as a technical discipline or
a natural science. It developed into a number of applied forms, including
computer science, robotics or mechatronics, which flourished throughout
the last decades. Nevertheless, Wiener himself would likely have pre−
ferred not to focus separately on particular cybernetic phenomena within
distinct sub−disciplines but to keep at least some level of complex
philosophical integration. The reason for this assertion is that the
phenomenon originally tackled by his cybernetics is truly complex. In
fact, that phenomenon is nothing less than life itself.
12
Referring to cybernetics as the philosophy of life may sound pedes−
trian, but it really was Wiener’s original ambition to describe what makes
life special compared to other natural phenomena. He obviously neither
was the first to encounter that there is something special about living
organisms nor was his ambition to answer the question why life exists.
As a result of his background and recently made discoveries, he merely
had a unique opportunity to unveil the actual functioning of an empiri−
cally provable and statistically describable element that distinguishes life
from anything else: that is, information.
Wiener’s discoveries not only started the development of what we
know today as theoretic or applied information sciences, including
informatics, computer science, robotics, mechatronics etc., but also gave
us an opportunity to look anew at phenomena we knew well before,
including the law.
13
To put it succinctly, his discovery regarding the role
of information managed to prove that law and other normative systems
are equally as important for the existence and future of humankind as
technologies or energy (a point too often overlooked in many contexts
both inside and outside universities).
The basis of Wiener’s understanding of the uniqueness of life was
partly taken from Schrödinger’s collected lectures from Trinity College in
11
See N Wiener,Cybernetics: or Control and Communication in the Animal
and the Machine(MIT Press, 2nd edn, 1965) 12.
12
Wiener examines life from tiny particular organisms to large complex
systems – see, for example, N Wiener,Cybernetics: or Control and Communi-
cation in the Animal and the Machine(MIT Press, 2nd edn, 1965) 155.
13
Wiener’s approach also forms the new basis of what is originally known as
jurimetrics or legal informatics. The history of this discipline is mapped in
AA Paliwala,History of Legal Informatics(Prensas de Universitarias de
Zaragoza, 2010). Almost the same content was also published as a special issue
of theEuropean Journal of Law and Technology<ejlt.org>.
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Dublin, issued under a revealing titleWhat is Life?
14
There, Schrödinger
describes the specific character of living organisms in relation to
entropy
15
– while entropy (known as the second law of thermodynamics)
affects everything, life is, for some reason, exempted. What works with
the special theory of entropy works then also with the general theory that
considers entropy a universal tendency to disorganize; it means that
everything tends to disorganize in time, except life.
One might argue that, as death is an inevitable end of the existence of
every living body, living organisms also have to surrender to entropy.
That, however, takes the perspective of a single organism but not to life
as such. Reproduction is then not just a way to preserve the respective
species but also a way to ensure that it adapts to changing conditions.
16
Consequently, Wiener grounds his work on three main assumptions: that
information is the opposite of entropy; that life as a natural phenomenon
is equipped with a greater than critical mass of information; and that life
is able to react to the course of time (and to subsequent changes of the
environment) by producing information.
17
This suggests that if we want to be precise as to the meaning of the
term ‘information’, we have to use it only when its application results in
lower entropy. We then should not use the term ‘information’ for
anything other than what actually informs, i.e. what leads to greater
organization of a respective system. Where this is accepted, terms such as
‘information overload’ are sheer nonsense because if (real) information
14
See E Schrödinger,What is Life? The Physical Aspect of the Living Cell
(The University Press, 1944).
15
Entropy ‘is not a hazy concept or idea, but a measurable physical
quantity’, says Schrödinger, and he explains that: ‘an isolated system or a system
in a uniform environment increases its entropy and more or less rapidly
approaches the inert state of maximum entropy. We now recognize this funda−
mental law of physics to be just the natural tendency of things to approach the
chaotic state (the same tendency that the books of a library or the piles of papers
and manuscripts on a writing desk display) unless we obviate it.’ See E
Schrödinger,What is Life? The Physical Aspect of the Living Cell(The
University Press, 1944) 25.
16
To prove this thesis, Charles Darwin uses empirical evidence of differ−
ences between what are supposed to be originally identical species that later
developed in different environments. He also uses examples of extinction of
species that gradually happened as a result of their inability to adapt to changing
conditions – see C Darwin,The Foundations of the Origin of Species – Two
Essays Written in 1842 and 1844(F Darwin ed, The University Press, 1909).
17
See N Wiener,Cybernetics: or Control and Communication in the Animal
and the Machine(MIT Press, 2nd edn, 1965) 11.
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was involved, it could result only in positive organizing effects and never
in anything negative. It also implies that information should not mean
just a certain kind of data but rather an ideal complex procedure that also
involves, apart from proper data, appropriate means of their communi−
cation into the target system.
Our problem in that respect is that we were not gifted with the ability
to find out, or to a priori objectively prove, what information is. If we
want to be sure whether we should call something ‘information’, we have
no other option but to wait until we see the effect of anticipated
information on the target system.
Moreover, it can even be difficult to define ‘entropy’ or ‘organization’
when it comes to social structures. As we have no all−purpose indicator of
the level of organization of the society, we chaotically use thousands of
more or less strange, and often misguided, criteria like economic growth,
crime rate, birth rate, happiness indexes or beer consumption levels.
The qualification of something as ‘information’ also heavily depends
on what we define as the target system. In the then communist Czecho−
slovakia, there used to be a popular proverb that said: ‘Whoever is not
stealing [meaning stealing from what was owned by the state] is stealing
from his or her own family’. Apart from moral approval of what was a
common practice, i.e. to steal from what was owned by everybody and no
one at the same time, the proverb also demonstrated the commonly
accepted practice of focussing solely on the benefit (organization) of a
family instead of the benefit (organization) of the state.
In that respect, it is not just appropriate to ask whether the original
Potemkin village was ‘information’ but also for whom. It truly was not
for the peasants because it did not improve (organize) their situation in
any sense at all. It probably could not be regarded as information even
for Catherine because, although it reportedly made her happy for the
moment, it prevented her from being aware of the actual state of things in
her empire. On the contrary, it definitely lowered the level of entropy
(increased the level of organization) of Potemkin and his oligarchy
because it gave him an opportunity to continue with his economic
exploitation of the region by relieving him of possible negative attention
from Catherine.
It is then even more interesting to ask whether Catherine’s original
demand regarding the peasants’ welfare was actual information. Theoret−
ically, there is nothing wrong with an order of a sovereign that demands
a better life for her servants, but practically, it brought nothing beneficial
for them. It did not enhance the organization of Potemkin and his
company either because he had to invest into the creation of his villages
(otherwise, he could have used those resources for something else – like
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feeding parts of the local public). Probably the only system that improved
its organization as a result of Catherine’s demand was the one that
actualized Potemkin’s virtual reality (i.e. the builders of the fake villages
and the actors playing the roles of happy peasants).
It is true that the problem in this case was not the order itself but its
execution. First of all, the empress should have addressed her order to
someone who was objectively able and competent to fulfil it. It was, in
the words of Saint−Exupéry’s king, unreasonable for Catherine to think
that Potemkin would do anything to actually improve the life of the
locals at Crimea instead of creating what we would probably deem an
artificial compliance structure today. She also should have been better
informed about the actual situation in Crimea, as that would have
provided for a more efficient incentive for Potemkin to actually do
something. However, all these communicational and institutional ele−
ments are forming, together with the rule itself and with time, one
complex situation that deserves a complex assessment. In this case, we
simply have to conclude that what Catherine created was, with all due
respect, not information but harmful noise.
Here, we will not elaborate on the question of whether parallels can be
drawn between, on the one hand, Catherine’s command to Potemkin and,
on the other hand, the approach lawmakers take today, for example in the
data privacy area. We do, however, imagine that such parallels have come
to mind for at least some readers.
2.3 GOOD RULES
The primary ambition of the law as such is undoubtedly to serve as an
information system, i.e. to counter the entropy. The law’s most important
problem (which lawyers have always tried to resolve with mixed success)
is then to define the system whose entropy it should chiefly tackle, as
well as the method of the assessment, and determination of whether it all
actually works.
The intricacy of these two fundamental questions is also the reason
why law can never be mastered by computers. Machines are today
able to handle relatively complex tasks like chess, and there is a very
good prospect that, in the near future, they will master even more
complex functions like ‘Go’.
18
The difference between chess and law is
18
Wiener predicted a perfect chess−machine more than a half−century ago.
Similarly, we can predict the emergence of a perfect go−machine, although this
game is at present, due to the extremely high number of possible combinations,
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demonstrated exactly in the two aforementioned questions – in law, we
try to speak about rules and try to play the game, but we are not sure
how large the field is, what precisely the figures are and, most notably,
what are the victory conditions.
Gustav Radbruch tried to clarify what the ultimate goal of law (the
victory), i.e. the organization in the language of cybernetics, actually is
when he writes about the trinity of defining purposes – certainty, fairness
and utility.
19
This classification serves well to illustrate the main distinc−
tion between the three dominant legal methods, i.e. positivist, naturalist
and pragmatic, but it does not provide for any practically applicable
criteria for an assessment of actual success of particular laws. The reason
is – apart from the extremely broad meaning, namely, of the category of
fairness and missing statement as to whose certainty, fairness or utility is
meant – that the three main purposes are naturally contradicting; so it is
disputable what mixture of their relevance works the best.
For Locke and Kant, the ultimate purpose of law was a somewhat
simpler and more metaphoric category of peace, by which they mean a
situation that gives individuals an opportunity to exercise their rights
(although Locke and Kant differed substantially as to whether peace is an
actual or virtual state of affairs).
20
Such an understanding of law is
typical for continental and North−American legal culture, while Roman
law was, along with the legal systems presently implemented in south
and east Asia, based mainly on the organization of the society, so the
system that law primarily aims to organize is not an individual but a
state.
21
Euro−Atlantic laws try to organize the society through aiming at the
rights of each individual, while Asian legal cultures are typically based
on protecting individual rights through prioritizing the organization of the
still too difficult for computers to handle. See N Wiener,Cybernetics: or Control
and Communication in the Animal and the Machine(MIT Press, 2nd edn, 1965)
164.
19
See, for example, A Schmidt, ‘Radbruch in Cyberspace: About Law−
System Quality and ICT Innovation’ (2009) 3(2)Masaryk University Journal of
Law and Technology195.
20
See J Locke,Second Treatise of Government(CB McPherson ed, Hackett
Publishing Company, 1980) republished on gutenberg.org as text No 7370; and I
Kant,Perpetual Peace – A Philosophical Essay(MC Smith trans, George Allen
& Unwin Ltd, 1795) republished by Online Library of Liberty (oll.libertyfun−
d.org) as title No 357.
21
See, for example, HI Wolff,Roman Law – An Historical Introduction
(University of Oklahoma Press, 1951) 25.
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society.
22
An entirely different approach is then taken by legal cultures
that follow in the footsteps of classic Byzantine absolutism. The laws of
today’s dictatorships aim at peaceful development of the ruler and his
suite, while individuals’ welfare is based on the assumption that when the
dictator is happy, everybody is happy (which, as history has shown, is
seldom true).
Probably the most straightforward indication of what Wiener’s ‘organ−
ization’ or ‘information’ means with regard to law is given by Lawrence
Lessig in the Afterword to hisFreeculture.
23
Lessig states that whenever
law regulates culture,
24
it should simply do good.
25
He says neither what
this ‘good’ means nor to whom it should be done. This limitation makes
his claim utterly useless on a practical level. At the same time, the fact
that Lessig demonstratively leaves the content of ‘doing good’ to the
intuitive understanding of the readers perfectly shows the correct way of
approaching that issue.
The problem is that we (humans) simply do not have the ability to
guess in any single moment in time the information quality of rules. No
one is able to provably discover or logically prove whether some rule is
good or bad – at least unless we have precisely defined its particular
purpose and seen whether the law actually worked in that regard. We
need to have at least two sets of empirical data describing to what extent
the same system is organized in different moments in time. Only then are
we able to state whether the respective rule is or is not information
(depending on whether the system became organized more or less).
In Potemkin’s case, the purpose of Catherine’s rule was good – there
is, as noted above, nothing wrong with improving the quality of life of
the Crimean people. As Catherine’s rule did everything else but fulfil that
22
See, for example, HP Glenn, Legal Traditions of the World – Sustainable
Diversity in Law(Oxford University Press, 5th edn, 2014) 132, 319.
23
See L Lessig,Freeculture(The Penguin Press, 2004).
24
It is not entirely clear what Lessig means here by ‘culture’. We have good
reason to believe that it is something similar to what Karl Llewellyn considers
one of the key focus points of law – see K Llewellyn,Some Lectures on Law and
its Study(Columbia University School of Law, 1930) 109.
25
Lessig approves that law should regulate ‘culture’, but only ‘where that
regulation does good’. He then critically continues: ‘Yet lawyers rarely test their
power, or the power they promote, against this simple pragmatic question: ‘Will
it do good?’ When challenged about the expanding reach of the law, the lawyer
answers, ‘Why not?’ We should ask, ‘Why?’ Show me why your regulation of
culture is needed. Show me how it does good. And until you can show me both,
keep your lawyers away.’ See L Lessig,Freeculture(The Penguin Press, 2004)
306.
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purpose, we can state that the rule most probably did not do any good.
However, we can back such a conclusion by empirical evidence and
logical reasoning only after we have reasonable experience with actual
functioning (actualization) of the respective normative order.
There is no way of empirically, or logically, arguing the goodness of
the rule at the moment it was made or at any single moment of its
existence. That, however, does not mean we (humans) are completely
unable to make intelligent guesses as to the likelihood of success. We just
cannot rely in that respect on logic but rather on the intuition fuelled by
a divinely complicated mixture of experience, intelligence, talent, and the
quality emphasized by Napoleon, good luck.
2.4 GOOD FACTS
One lesson we perhaps may infer from our history (e.g. from commu−
nism and Nazism) is that rules are never information when their
fundamental content is envy. For the rest, it is utterly impossible to a
priori logically assess the information quality of a rule, i.e. to answer in
advance Lessig’s question as to whether it can do any good. On the
contrary, it seems to be very different with statements of facts. In positive
law, rules can just be logically valid or invalid, depending solely on their
formal quality,
26
but statements might be true or false, depending on their
substantive quality. While the validity of rules depends on the com−
petence of their creator and on the process of their adoption,
27
the
veracity of statements objectively depends on their correspondence with
material truth.
28
One might then assume that if a statement is true, it
should, in Lessig’s language, never do bad.
26
The validity is the basic ontological category of law. In law, validity of a
rule simply means its objective existence. See H Kelsen,Pure Theory of Law
(M Knight trans, University of California Press, 1967) 10; the book is also
available in full text at books.google.
27
The only exemption is described by Gustav Radbruch as a case where
formally perfect rules (e.g. those contained in a statute) cannot be regarded as
valid law due to their extremely unjust content (i.e. due to the fact that ‘the
conflict between statute and justice reaches such an intolerable degree that the
statute, as “flawed law”, must yield to justice’). See G Radbruch, ‘Statutory
Lawlessness and Supra−Statutory Law’ (1946) 26(1)The Oxford Journal of Legal
Studies1 (B Litchevski Paulson and S Paulson trans).
28
This is referred to as the correspondence theory, and it is originally
explained in Aristotle,Metaphysics(JH McMahon trans, Dover Publications,
2007) 80.
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Unfortunately, there is not even a need for any great philosophy to
challenge that conclusion. In the 1997 comedyLiar Liar– with the
phenomenal Jim Carrey as defence attorney Fletcher Reede – it is clearly
demonstrated that our social system is, to a large extent, organized as a
result of untrue statements. It is the problematic moral quality (or the
perceptive ability) of the target system (our society) along with the
straightforward ways in which Carrey’s Reede is miraculously forced to
communicate only purely truthful statements throughout one day of his
life, that brings total chaos to almost all of Fletcher’s social relations.
However, it would not help in many of the presented scenes, including in
the moment of sexual interaction where Fletcher himself first realizes that
something is wrong, even if the recipient of Fletcher’s truthful statements
would be morally equal to Fuller’s Rex
29
or if Fletcher would have given
the truth the most refined and most sophisticated form. It is simply clear
that truth would never do good in these situations.
The question as to when truthful statements do good, including what
‘doing good’ with regard to statements actually means, is so important
that Google has recently invested millions of dollars into its detailed
empirical research on that topic. The truth is that it was not purely
Google’s idea to engage in this massive investment; rather the motivation
originally came from the Court of Justice of the European Union (CJEU).
In the well−known case ofGoogle Spain,
30
which is also being
discussed from different perspectives elsewhere in this book, the CJEU
ruled about what is popularly discussed as the ‘right to be forgotten’. It
is, simply speaking, a right of an individual to have his or her personal
data removed from public availability via Google as soon as their public
exposure does not ‘do enough good’, despite the fact that the data are
truthful.
31
29
Fuller uses an imaginary Rex in his bookMorality of Lawas an example
of a ruler who tries hard to be a perfect king but inevitably fails due to fatal
objective imperfections that are beyond his reach: L Fuller,The Morality of Law
(Yale University Press, rev edn, 1969).
30
See CJEU judgment inGoogle Spain SL, Google Inc v Agencia Española
de Protección de Datos (AEPD), Mario Costeja González(Case C−131/12), full
text is available at curia.eu.
31
In the words of the Court (at [93]): ‘[E]ven initially lawful processing of
accurate data may, in the course of time, become incompatible with the directive
where those data are no longer necessary in the light of the purposes for which
they were collected or processed. That is so in particular where they appear to be
inadequate, irrelevant or no longer relevant, or excessive in relation to those
purposes and in the light of the time that has elapsed’.
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The case itself was interesting not merely because it gave an impres−
sion of what the Court considers to be the actual content of the right to
be forgotten, or the right to de−listing as it may more accurately be
referred to, but that it also clarified the reach of that right with regard to
search engines. It turned out that Google is not just obliged to delist links
to personal data that do not do enough good any more, but it must do so
upon its own qualitative assessment of the situation.
In other words, Google was found to be obliged to (accurately) assess
whether data related to a complainant that are made public by some third
party do good enough – if they do not, Google must delist a link to them
in its search engine. The only good news for Google, in that respect, was
that the duty does not apply retroactively (yet), so Google does not have
to permanently consider whether eventual public exposure of data once
removed from its search engines would do any good again (and to return
back the de−listed link if it happens
32
). We will return to this topic below.
2.5 COMMANDING SUNSETS
The above means that we should refer to something as ‘information’ only
when good facts or rules are properly communicated to the target system,
meaning that they imply organization (i.e. decrease of its entropy). Facts
inform (organize) that system on a basis of historical knowledge because
the facts relate to what we know from the past. Rules provide for the
system’s organization primarily as a result of potential knowledge
because rules lay down duties for the future. Unfortunately, in both cases,
we are, as noted, unable to empirically or logically assess the informa−
tional potential of facts or rules in a given moment in time – either we
have to wait to see whether entropy has decreased or we have to rely on
unspecific intuition and experience.
Information, regardless of how difficult its understanding is for
humans, is the utmost desire of any living organism. Life exists due to
information, and information is life’s only means to beat entropy and to
avoid chaos.
Apart from being itself an information system of which the primary
teleology is direct information, the law also aims at indirectly informing
its target system by providing for incentives for information to emerge. In
32
Giovanni Sartor vividly illustrates this issue in G Sartor, ‘The right to be
forgotten: balancing interests in the flux of time’ (2015)International Journal of
Law and Information Technology Online<http://ijlit.oxfordjournals.org/content/
early/2015/11/25/ijlit.eav017>.
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other words, the law tries, or should try, to directly organize the society
through its rules, and it tries to maintain the environment for independent
emergence of information. Both forms of the fundamental aim of the law,
i.e. to inform, are to a great extent studied by a number of relatively
young legal disciplines.
Legal informatics, for example, tries to develop methods and tools for
the most efficient processing of different sorts of legally relevant data
(including laws themselves). Regardless of the level of the sophistication
of its methods, this discipline proves how right Wiener was when he
called for at least some level of general philosophical integration. In that
respect, the problem with legal informatics is that it develops tools and
methods for fluent processing and communication of legal data without
necessarily caring about the quality of the data in reality. Consequently,
even ultimately successful tools of legal informatics, for example an
ideally functioning online legal information system containing all applic−
able laws, might not, in Lessig’s words, ‘do good’ in a case where the
substance of what is ideally communicated is actually rubbish. On the
contrary, something that an expert on legal information systems might
deem the worst promulgation tool in the world could actually help to
prevent chaos in a given jurisdiction simply because it effectively
prevents everyone from reading the bad laws.
The situation is similar in the opposite case of legal disciplines that
aim at promoting spontaneous emergence of information. Some of them
even use the term ‘information’ to indicate their main concern. Compared
to legal informatics, these disciplines actually care about information, but
their problem is that they try to tackle it as their object. Regardless of
whether we speak about intellectual property, protection of personal data,
freedom of information or software law, there are always fundamental
functional defects present that originate in the mistaken assumption that
information is capable of being a fixed object of legal regulation.
33
What prevents information from being tackled as a standard object of
law is namely our aforementioned inability to recognize its presence in a
given moment of time. It is similarly important that, as we have no
capability to instantly measure information, we are also unable to
develop tools that would be able to directly control it.
The law has long−term experience with objectivizing tangible property,
money, rights or even different forms of energy. However, information is
33
Lee Bygrave notes sadly that ‘while information is in many respects the
stuff of law, the law often reflects an underdeveloped, if not poor, understanding
of information’. See L Bygrave, ‘Information Concepts in Law: Generic Dreams
and Definitional Daylight’ (2015) 35(1)Oxford Journal of Legal Studies91.
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a natural phenomenon that is substantially different from any of those.
34
If law was experienced in regulating gravity or magnetism, we would
have a philosophical basis upon which to build. These natural phenom−
ena, however, have been left without any significant attention of the law
so far.
The reason for the law being completely negligent about natural
phenomena can again be found in Saint−Exupéry’sLittle Prince. The
quote that we used above to illustrate Hume’s distinction between ‘is’ and
‘ought’ is from a conversation in which the king described his absolute
power to the little prince. Earlier, he told the little prince that the king is
entitled to command absolutely everything on his planet, including the
sunset. Prior to the king explaining Hume’s distinction for the little
prince, the little prince asked the king to command the sunset. Now, it
was time for the little prince to remind the king of that claim:
‘Then my sunset?’ the little prince reminded him: for he never forgot a
question once he had asked it.
‘You shall have your sunset. I shall command it. But, according to my science
of government, I shall wait until conditions are favourable’.
‘When will that be?’ inquired the little prince.
‘Hum! Hum!’ replied the king; and before saying anything else he consulted a
bulky almanac. ‘Hum! Hum! That will be about – about – that will be this
evening about twenty minutes to eight. And you will see how well I am
obeyed!’
The little prince yawned. He was regretting his lost sunset. And then, too, he
was already beginning to be a little bored.
35
In this case, the king wanted his majesty to appear as covering every−
thing, even natural phenomena like the sunset. He only knew that sunsets
exist and his ‘science of government’ neither included methods to
understand how it works nor tools to effectively control it. It was then not
difficult for the little prince to find out that what the king commanded
would happen anyway. The story ends in slight frustration, caused by
unfulfilled expectations, for the little prince. There is even a reason for us
to think that the glory of the majesty of the king might have suffered in
34
Apart from, as discussed below, the fact that money in some forms is
merely a form of information.
35
See A Saint−Exupéry,The Little Prince(Unabridged with Large Illustra−
tions, 70th Anniversary edn) (CreateSpace Independent Publishing Platform,
2015).
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the eyes of the little prince at that point. We may indeed suspect that, if
the little prince had stayed with the king a bit longer, his boredom would
finally have caused a lack of belief in the king’s powers as such.
One might find some similarities between Saint−Exupéry’s story and
something that happened in his homeland, France, more than half a
century later. The French government introduced, after some procedural
difficulties, a law that aimed to substantially limit online piracy. The
proposed aim of the HADOPI law
36
was to prevent massive losses caused
by file sharing, represented in extensive figures, namely by lobbyists of
the recording industry, in order to help the creative economy and to bring
subsequent tax revenues, jobs and other economic benefits.
In this case, what was to be considered ‘information’ was fairly well
defined – it was simply money, i.e. the recovery of the creative
industries’ profit lost due to file sharing piracy. To achieve that, the
French government chose to implement exceptionally harsh regulatory
measures against file sharers, consisting of a couple of warnings and then
of the loss of the file sharers’ rights to connect to the Internet. Despite
constitutional concerns
37
and international criticism,
38
the law came into
force, and its preventive impact was impressive – the use of file sharing
services in France reportedly dropped by more than a quarter.
39
The problem that the law aimed to resolve, however, was not massive
use of file sharing services but lost revenue for the recording industry. If
the initial figures about lost profit, lost jobs or lost taxes were correct,
36
The full name of the act is Haute Autorité pour la Diffusion des œuvres et
la Protection des droits d’auteur sur Internet. It was introduced in 2008 under
accelerated legislative procedure, then it was taken down by the Conseil
Constitutionnel (Constitutional Council) and reintroduced in modified version in
2009 (this is also why it is sometimes referred to as HADOPI 2). In 2013, the
French government ceased the execution of its most repressive part.
37
See, for example, AT Hopkins, ‘The Right to be Online: Europe’s
Recognition of Due Process and Proportionality Requirements in Cases of
Individual Internet Disconnections’ (2011) 17Columbia Journal of European
Law557.
38
The law was even explicitly mentioned on p. 14 of theReport of the
Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression, Frank La Rue, which was discussed by the General
Assembly of the United Nations as document No A/HRC/17/27 <www2.
ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf>.
39
Some reports claimed a decrease of over 40%, or even over 60%. There is,
however, some confusion as to these statistics because it is not entirely clear how
the recording industry obtained respective numbers. For detailed analysis, see,
for example, R Giblin, ‘Evaluating Graduated Response’ (2014) 37(2)Columbia
Journal of Law & the Arts184.
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there would have to follow an immediate, massive increase in sales, tax
revenues and jobs in the creative industries by approximately the same
rate as the dropdown of illegal file sharing.
However, nothing of the sort ever happened.
40
The only effect of the
law was the actual decrease in the use of file sharing services that
practically meant a decline in the amount of cultural products, namely
music and movies, that the French public exchanged and consumed. In
plain language, the only effect of the law was that the French people
watched a quarter less movies and listened to a quarter less music, all
without any demonstrable positive economic or other consequences.
We have to admit that the comparison to the little prince is not entirely
precise in this case. Saint−Exupéry’s king, unlike the French government,
neither pretended he was capable of understanding why and how sunrises
work nor did he pretend that he had the tools to command it. This is also
probably why the frustration of the little prince was less severe compared
to the frustration of the French public. If Saint−Exupéry wanted to match
the HADOPI example, his king would probably first command the sunset
to happen at 6pm, then force the little prince to watch it (when it was not
happening) and then prevent the little prince from watching it later (when
it actually happened). While the little prince was only tired, the French
public also probably has, after this episode, a reason to additionally ask
why file sharing – of which the removal did not bring anything positive –
actually has to be itself illegal and how such a law might be legitimate,
both questions being extremely dangerous to the authority of the law as
such.
2.6 THE SPATIAL PARADIGM
Situations where the law develops unrealistic rules upon legitimate aims
are obviously not limited only to Catherine’s rule regarding the wellbeing
of Crimean peasants or HADOPI; they are in general frequent in areas
where law did not resist the temptation to regulate information trans−
actions directly.
40
Some commentators, like Monica Horten, even questioned whether the
direct implementation costs of HADOPI were economically justified – see the
blog post by M Horten, ‘HADOPI Turns Three – Bon Anniversaire?’London
School of Economics Media Policy Project Blog(14 October 2013) <http://blogs.
lse.ac.uk/mediapolicyproject/2013/10/14/hadopi−turns−three−bon−anniversaire/>.
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One reason is obviously the terminological confusion. What law often
calls ‘information’ has nothing to do with its real meaning briefly
described above. Instead, law in those cases works with data. That is the
case with intellectual property, data privacy as well as with public sector
information. There is, in fact, no such thing as ‘personal information’,
‘public sector information’ or even ‘information economy’ but rather
personal data, public sector data or data economy.
If the problem was just in terminology, it would probably not cause
any substantial defects. We could simply accept that when legal discourse
mentions ‘information’ it means data, and everything would work.
However, the situation is more serious than that.
Unlike information, data is actually a static category that allows for
empirical examination and logical proof at any given moment in time.
Whenever needed, it is possible to clearly state and prove whether data
exist, in what quantity, or even, more or less, at what quality. This, of
course, does not tell us anything about the information potential of the
data, but it can serve the task of regulatory definitions. When something
is fixed in time and it allows for a precise description, it can form the
hypothesis of a legal rule – similarly to a car, money or propane−butane.
The possibility to be statically described is, however, only one of two
inevitable conditions for objects of legal rules. In fact, sunsets are also
describable, but rulemaking over them does not make much sense. The
other condition is what Saint−Exupéry’s king would probably name the
‘science of government’, i.e. the reasonable ability of the sovereign to
efficiently rule over it. This ability actually existed with regard to data in
the past, but it has vanished in the last decade to a great extent.
The problem of law responding to a paradigmatic shift in understand−
ing of data caused by technological development can be demonstrated in
the typical example of the automatic email footer of one Czech solicitor
(who shall not be named here). It reads as follows:
This message is intended solely for its recipient and contains confidential
information. If you are not the recipient, I warn you that any copying,
disseminating or use of this message is not permitted. If you have been sent
this message by a mistake or accident, I ask you to immediately report it by
phone or electronic communication and to return this message back to my
address.
Besides other kinds of legal nonsense, there is the especially interesting
part regarding returning the message back to the address of the solicitor.
This claim is based on the understanding of an email as something
similar to a paper letter; it is composed by the sender, it is dispatched, it
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travels somewhere and finally it is delivered to the recipient. If so, one
can ask the recipient not to do anything with it but to pack it into another
envelope and return it back to the sender.
That understanding of how emails work obviously does not correspond
particularly well with reality. First of all, there is some data sent through
the network delivered somewhere, but the same data is still kept in the
system of the sender. Moreover, it is not, in the vast majority of cases,
really delivered to the recipient, but it is received by some system that the
recipient is accessing. Consequently, the recipient is never in full physical
possession of the data (neither is the sender) – partly because the data
exist at multiple places at the same time and partly because they are
stored out of their physical reach.
If any mistaken recipient of an email with such a footer would like to
be totally precise and diligent in fulfilling the demand of the solicitor, he
or she would first have to physically locate the data (the email). If the
recipient is successful (which is not very probable), he or she would have
to cut respective parts of the storage medium out, pack them into an
envelope and send them back to the solicitor by post. Even in that case, it
would not strictly speaking be a case of ‘returning’ the data because the
data were for the whole time with the solicitor as well.
That is all theoretically possible, but it is not far from trying to
command the sunset or ordering Potemkin to take better care of his
peasants. It would only make a difference if the respective data were
under total physical control of the recipient, i.e. if they were either
uniquely fixed to some controllable tangible substance or if the recipient
had, in some other way, a unique capability to control their physical
existence – typically by holding the keys in case the data were encrypted
or controlling some service to which the data were firmly attached.
There is obviously nothing new in the law trying to regulate data.
There is also, unlike in the case of information, no philosophical reason
for data to fall outside the scope of legal rules because they can be
legally defined and conceptually fixed in any given moment in time.
Moreover, there is a relatively long history of successful development
and application of laws that actually target the existence or use of
different types of data – from personal data to works of art to classified
data. The only problem that makes traditional legal structures related
to data largely similar to Potemkin villages today is the aforementioned
paradigmatic technological change that made data unrelated to space.
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2.7 COMMANDING DATA
The development and use of information and communication tech−
nologies, i.e. technologies of which the primary teleology is to facilitate
information, was and to a large extent still is considered by a number of
lawyers as a kind of contemporary vogue.
41
In fact, information and
communications technology (ICT) is nothing less than a product of the
most insistent human nature. We are naturally programmed to pursue at
the first place information, and we will do anything that will help us in
that endeavour.
42
It is then no wonder that we often develop some
technology for processing or communicating information far before we
learn what it can actually be good for.
If some technology proves to serve its purpose, information, we
naturally make it an integral part of our lives and develop it further. The
ultimate goal in the development of ICT is then to provide a means for
totally fluent creation and communication of data
43
that would allow for
the smoothest possible information. It means that ultimately efficient IT
would lead to the maximization of the positive effects of data in a given
system, for example in society.
44
41
It even became popular to call the whole disciple of ICT law (or cyberlaw)
the ‘Law of the Horse’, based upon an article by Easterbrook: see FH
Easterbrook, ‘Cyberspace and the Law of the Horse’ (1996)The University of
Chicago Legal Forum207. Lawrence Lessig, among others, responded to it with
a note in theHarvard Law Reviewa couple of years later: see L Lessig, ‘The
Law of the Horse: What Cyberlaw Might Teach’ (1999) 113Harvard Law
Review501.
42
Technologically motivated acknowledgment of the significance of infor−
mation even led to the establishment of a new branch of philosophy, the
philosophy of information: see L Floridi,The Philosophy of Information(Oxford
University Press, 2011) 24.
43
The ultimate goal of cybernetics is to develop technology that is able
actually to produce information, i.e. to truly imitate life, including the production
and administration of rules. Luckily for lawyers, we have not gone too far – the
progress we have made is discussed e.g. in R Susskind,The End of Lawyers?
Rethinking the Nature of Legal Services(Oxford University Press, 2008).
44
This technology−neutral approach assumes that we use technology solely
to process and communicate data and aim for the maximization of the technical
efficiency of these processes. Another understanding of information efficiency of
ICT is based on an assumption that ICT can be developed to enhance infor−
mation not solely by flawless processing or communicating (good) data by
blocking or filtering noise (data that are not ‘doing good’). That debate, however,
falls beyond the scope of this chapter.
Potemkin’s laws 25
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Nowadays, information and communication technologies allow for
almost immediate and cost−free availability of data. Due to the tech−
nological development of the last three decades, it is possible to access
data at any place (or more precisely, at all conceivable places at once)
without any noteworthy time lapse. We managed to free our data from the
most significant natural limitations that actually concern our physical
existence – time and space.
45
However, this great achievement, which has
undisputed significance in our never−ending fight against entropy, has at
the same time burdened the system of law with a need to change its
methods, which traditionally relied on these two physical criteria.
46
Anytime the law successfully regulated data, it never did so directly.
Classified data, for example, are not regulated through rules that would
focus on data as such but rather on forms and procedures of their
processing. In this case, it is then relatively irrelevant to the efficiency of
legal regulation how the respective data are stored or communicated.
On the contrary, the legal concept of the protection of personal data
methodologically focuses directly on the data. The law tries, in this case,
to directly regulate the existence of personal data without primarily
focussing on procedures or effects of their processing. That frontal
approach is then, as we pointed out elsewhere,
47
the main reason why
this whole branch of European law does not work in real life.
Laws of classified data used to work before and work, more or less,
even after the change of the time and space paradigm, namely due to its
primary focus directed at individuals rather than at their data. Data
protection laws never actually worked because they were to the full
extent developed and applied, in many respects in Potemkin ways, only
after data were technically freed from space limitations.
45
This is probably the only point where John Perry Barlow is right with his
arguments against the applicability of law in cyberspace. When speaking about
no rule of law, he says: ‘Our identities may be distributed across many of your
jurisdictions’. And further he adds: ‘We will spread ourselves across the Planet
so that no one can arrest our thoughts’. See JP Barlow,A Declaration of the
Independence of Cyberspace(8 February 1996) Electronic Frontier Foundation
<projects.eff.org/~barlow/Declaration−Final.html>.
46
See, for example, the debate between Jack Goldsmith and David Post that
became iconic for further developments in private international law: J Goldsmith,
‘Against Cyberanarchy’ (1999) 65The University of Chicago Law Review1199;
and DG Post, ‘Against “Against Cyberanarchy”’ (2002) 17(1)Berkeley Tech-
nology Law Journal1.
47
See R Polcˇák, ‘Getting European data protection off the ground’ (2014)
4(4)International Data Privacy Law282.
26 Information sovereignty
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Compared to the protection of personal data, copyright law is signifi−
cantly older. It used to work to the full extent until space became less
relevant to data. The law provided for almost total control over data that
represented creative works as long as it was possible for copyright
holders to have full physical control of their copies. In this case, the
success of copyright law was again not caused by direct regulation of
data but rather through well enforceable regulation of dispositions with
physical objects in which the data were fixed – be it books, paintings or
phonograms.
It then became problematic to keep this physical control over data with
the introduction of technologies that allowed for multiplication and
communication like copy machines or audio cassette recorders. It became
even more problematic to keep up economic models that were based on
physical scarcity of artistic works. As a result, there emerged new
economic and legal models that were efficient again by not primarily
focussing on data or on their newly unimportant physical carriers but
rather on their economic effects.
48
To put it differently, the efforts in
regulating the economic exploitation of creative production are in these
cases not focussed on data or their carriers (copies) but rather on revenue
that is generated by different forms of their use and on services that make
such data available to their users.
On the contrary, it turns out that traditional understanding of copyright
that is based on the proprietary fetish for physical copies is economically
and technically inefficient and can serve only in cases where it is possible
to keep physical control over the data carriers. This applies, apart from
the deemed omnipotent digital rights management, only to marginal
examples like original paintings, vinyl discs, bibliophilic artefacts or
other objects to which creative content is firmly and uniquely fixed.
2.8 CONCLUSION – A NEGATIVE ONTOLOGY OF
INFORMATION LAW
Nothing is more important for humankind than information. Once we
lose our ability to inform ourselves, entropy conquers everything and we
simply die out. Consequently, if one is to name a universal aim of law,
the answer from the standpoint of cybernetics is simple: information in
its real, actual sense.
48
Lanier give a handful of examples is his book J Lanier,Who Owns the
Future(Simon & Schuster, 2013).
Potemkin’s laws 27
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First, the law itself must have the ambition to serve as an information
system, i.e. as a system that organizes the society through perspective
normative data (rules). In that sense, one of the core aims of the law must
be to establish an environment where natural human creativity (the ability
to create information) is in all respects induced, supported and developed.
Coping with this primary aim of the law means to test the substance of
law against Lessig’s simple questions as to whether it is actually able to
do any good (to inform). Rules that cause chaos or rules that go against
the laws of nature can hardly meet such a requirement.
Equally important is to ask whether subsequent legal procedures that
provide for authoritative actualization of legal rules are capable of
making laws happen. Rules that are not backed by the potential for
authoritative actualization are not rules but noise.
In a work that became the core of naturalist ontology of law, Lon
Fuller
49
names eight requirements whose fulfilment makes the law moral,
which for Fuller means truly existent as law. They are related to the
quality of substantive legal rules as well as to subsequent forms and
procedures (e.g. of promulgation or authoritative application). It is then
not difficult to conclude that the rules that we named above as Potem−
kin’s laws hardly meet such standards – partly because they regulate
incapable objects
50
and partly because they are not enforceable.
51
We noted above that it is not possible to positively and precisely define
what we ideally expect from good (moral, informative) law, mostly
because it is impossible for us to define exactly what ‘doing good’
means. However, the knowledge of cybernetics combined with the
experience of the ability of ICT to liberate information from time and
space enables us to successfully approach the same task in a negative
manner. Although we cannot say what law does good, we know quite
precisely (yet not exhaustively) what law does not do good and that
Potemkin’s laws are exactly laws of that kind. In that regard, we can
identify as noise, among others, these:
(1) laws that objectivize information because information can be
regarded only as an aim (not an object) of law;
49
See L Fuller,The Morality of Law(Yale University Press, rev edn, 1969).
50
Compare L Fuller,The Morality of Law(Yale University Press, rev edn,
1969) 70.
51
Compare L Fuller,The Morality of Law(Yale University Press, rev edn,
1969) 81.
28 Information sovereignty
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(2) laws that primarily aim to limit the availability or use of data,
except for cases when data are firmly and uniquely fixed to their
carriers; and
(3) laws that obviously have no potential of being factually effective
due to the technical impotence of respective state authorities.
The Potemkinian character of the first two sorts of laws are described
above using provable empirical evidence brought to light by the natural
sciences. The third, however, is highly problematic because there is no
empirically logical reasoning of such a classification.
There is historical consensus among otherwise highly different streams
of legal philosophy over the fact that unenforceable law should not be
regarded as law at all. Positivists always need a sanction in order for a
rule to be (truly) valid (i.e. existent),
52
naturalists claim non−existence of
rules that are not enforceable
53
and even institutionalists claim that a rule
without proper institutional backing is not to be considered a rule.
54
On the other hand, we have a number of empirical examples of rules
that are not enforceable but still represent valid contributions to respect−
ive legal systems.
55
Typical examples include idealist rules that are
substantively valid but cannot be enforced due to jurisdictional limita−
tions. There are, for example, crimes that, under national law, are
prosecutable anywhere (typically the crime of genocide), whereas most
sovereign states have absolutely no means to technically enforce them,
i.e. to capture the offenders, gather the evidence and bring all that to a
court.
Such rules, despite their unenforceability, are hardly to be considered
Potemkin’s laws. Their actualization is not really possible, but they still
act as information; they just do not inform society through direct
application of their imperative content but rather through the fact that
they declare a strong willingness of the state to defend certain values.
This can hardly be called explicit normative organization but rather
something like implicit organization through inspiration. The same effect
52
See, for example, H Kelsen,Pure Theory of Law(M Knight trans,
University of California Press, 1967) 50.
53
See, for example, L Fuller,The Morality of Law(Yale University Press,
rev edn, 1969) 81.
54
See N MacCormick and O Weinberger,An Institutional Theory of Law –
New Approaches to Legal Positivism(D Riedel Publishing Company, 1986) 13.
55
See further D Svantesson, ‘A Jurisprudential Justification for Extra−
territoriality in (Private) International Law’ (2015) 13(2)Santa Clara Journal of
International Law517.
Potemkin’s laws 29
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might also have other parts of formal structure of law that are not exactly
rules; instead we call them ‘principles, policies or other sorts of stand−
ards’.
56
In that regard, there is a reason to ask what makes Potemkin’s laws
distinct from other laws that also have no explicit effect but are still able
to organize the respective system. There are actually a number of
possible places where one might look for an answer – for example a pub.
When a group of friends gather to discuss a football match over a beer,
there is hardly anything explicitly ‘organizing’ happening throughout
their whole interaction. One reason is that everyone is probably getting
drunk, which makes their statements decline in intellectual richness. The
other, and even more important, reason is that in regular cases hardly
anybody involved knows anything about the game that would be, in
Wittgenstein’s words, worth saying.
57
Despite all that, we attend such sessions with pleasure, and we do so
for very good reason. There is a great organizing effect arising from
getting drunk with friends over obvious nonsense. It is just not in any
knowledge or even wisdom regarding some substantive topic but rather in
friendship. It means we go to chat with our friends about pure nonsense,
not to know more about the conversational topic but rather, and incom−
parably more valuably, to know that they love us and to let them know
alike.
Even more interestingly, it is obvious that if we tried to achieve the
same effect by explicit means, it would probably not lead to any success.
It would merely be pure inanity if a group of friends sat over a beer and
only spoke all night about how much they loved each other.
This example still does not provide us with the method of assessment
of Potemkinian rule in cases where a rule cannot be enforced. The
method, however, can be inducted from this empirical findinga con-
trario. Whereas it informs when we speak nonsense with someone we
love, we can imply that speaking nonsense with someone we do not love
has no point. In fact, the English language even has a rather exact word
56
See R Dworkin,Taking Rights Seriously(Bloomsbury, 1997) 38.
57
Wittgenstein made one of the most appealing statements of pre−war
positivism in hisTractatusby saying (this was the name and also the only
content of the seventh chapter): ‘Whereof one cannot speak, thereof one must be
silent’. See L Wittgenstein,Tractatus Logico-Philosophicus(B Russel ed, CK
Ogden trans, Project Gutenberg, 2010) 90. The book is freely available at
Gutenberg.org as book No 5740.
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for data that are not just substantively irrelevant but the communication
of which also has no underlining organizing effect – that word is
‘bullshit’.
In that respect, we might conclude that the third category of Potem−
kin’s laws are simply those that are not only unenforceable but also have
obviously no other implicit organizing effect due to there being no
substantive relation between the sovereign and the governed.
Potemkin’s laws 31
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Another Random Scribd Document
with Unrelated Content

many of the town-views in the MS. are, which are supposed to
represent Jerusalem,[418] Constantinople, and other cities mentioned
in the text. This Venice view shows us that at that time the city was
lighted by lanterns hung at the end of poles extended over the doors
of the houses. It gives us a representation of a butcher’s shop and
other interesting features.

A Mediæval Street and Town Hall.

The illustration on the preceding page is also a very interesting
street-view of the fifteenth century, from a plate in Le Croix and

Seré’s “Moyen Age,” vol. Corporations et Metiers, Plate 8. Take first
the right-hand side of the engraving, remove the forest of
picturesque towers and turrets with their spirelets and vanes which
appear over the roofs of the houses (in which the artist has probably
indulged his imagination as to the effect of the other buildings of the
town beyond), and we have left a sober representation of part of a
mediæval street—a row of lofty timber houses with their gables
turned to the street. We see indications of the usual way of
arranging the timber frame-work in patterns; there are also
indications of pargeting (e.g. raised plaster ornamentation) and of
painting in some of the panels. On the ground-floor we have a row
of shops protected by a projecting pent-house; the shop-fronts are
open unglazed arches, with a bench across the lower part of the
arch for a counter, while the goods are exposed above. In the first
shop the tradesman is seen behind his counter ready to cry “what
d’ye lack” to every likely purchaser; at the second shop is a
customer in conversation with the shopkeeper; at the third the
shopkeeper and his apprentice seem to be busy displaying their
goods. Some of the old houses in Shrewsbury, as those in Butcher
Row, are not unlike these, and especially their shops are exactly of
this character. When we turn to the rest of the engraving we find
apparently some fine building in which, perhaps, again the artist has
drawn a little upon vague recollections of civic magnificence, and his
perspective is not quite satisfactory. Perhaps it is some market-house
or guildhall, or some such building, which is represented; with shops
on the ground-floor, and halls and chambers above. The entrance-
door is ornamented with sculpture, the panels of the building are
filled with figures, which are either painted or executed in plaster, in
relief. The upper part of the building is still unfinished, and we see
the scaffolds, and the cranes conveying mortar and timber, and the
masons yet at work. In the shop on the right of the building, we
note the usual open shop-front with its counter, and the tradesman
with a pair of scales; in the interior of the shop is an assistant who
seems to be, with vigorous action, pounding something in a mortar,
and so we conjecture the shop to be that of an apothecary. The
costume of the man crossing the street, in long gown girded at the

waist, may be compared with the merchants given in our last
chapter, and with those in an engraving of a market-place at p. 499.
The figure at a bench in the left-hand corner of the engraving may
perhaps be one of the workmen engaged upon the building; not far
off another will be seen hauling up a bucket of mortar, by means of
a pulley, to the upper part of the building; the first mason seems to
wear trousers, probably overalls to protect his ordinary dress from
the dirt of his occupation. Of later date are the pair of views given
opposite from the margin of one of the pictures in “The Alchemy
Book” (Plut. 3,469) a MS. in the British Museum of early sixteenth-
century date. The nearest house in the left-hand picture shows that
the shops were still of the mediæval character; several of the houses
have signs on projecting poles. There are other examples of shops in
the nearest house of the right-hand picture, a public fountain
opposite, and a town-gate at the end of the street. We see in the
two pictures, a waggon, horsemen, and carts, a considerable
number of people standing at the shops, at the doors of their
houses, and passing along the street, which has no foot pavement.

Mediæval Streets.

The accompanying cut from Barclay’s “Shippe of Fools,” gives a view
in the interior of a mediæval town. The lower story of the houses is
of stone, the upper stories of timber, projecting. The lower stories
have only small, apparently unglazed windows, while the living
rooms with their oriels and glazed lattices are in the first floor. The
next cut, from a MS. in the French National Library, gives the interior
of the courtyard of a great house. We notice the portion of one of
the towers on the left, the draw-well, the external stair to the
principal rooms on the first floor, the covered unglazed gallery which
formed the mode of communication from the different apartments of
the first floor, and the dormer windows.

A Town, from Barclay’s Shippe of Fools.

A whole chapter might be written on the inns of mediæval England.
We must content ourselves with giving references to pictures of the
exterior of two country ale-houses—one in the Royal MS. 10 E. IV.,
at f. 114 v., which has a broom projecting over the door by way of
sign; and another in the “Roman d’Alexandre” in the Bodleian—and
with reproducing here two pictures of the interiors of hostelries from
Mr. Wright’s “Domestic Manners and Customs of the Middle Ages.”
They represent the sleeping accommodation of these ancient inns.
In the first, from the “Quatre Fils d’Aymon,” a MS. romance of the
latter part of the fourteenth century, in the French National Library,
the beds are arranged at the side of the apartment in separate
berths, like those of a ship’s cabin, or like the box beds of the
Highlands of Scotland. It is necessary, perhaps, to explain that the

artist has imagined one side of the room removed, so as to
introduce into his illustration both the mounted traveller outside and
the interior of the inn.

Courtyard of a House. (French National Library.)

In the next woodcut, from Royal MS. 18 D. II., the side of the
hostelry next to the spectator is supposed to be removed, so as to
bring under view both the party of travellers approaching through
the corn-fields, and the same travellers tucked into their truckle beds
and fast asleep. The sign of the inn will be noticed projecting over
the door, with a brush hung from it. Many houses displayed signs in
the Middle Ages; the brush was the general sign of a house of public

entertainment. On the bench in the common dormitory will be seen
the staves and scrips of the travellers, who are pilgrims.

An Inn. (French National Library.)

A fragment of a romance of “Floyre and Blanchefleur,” published by
the Early English Text Society, illustrates the mediæval inn. We have
a little modernised the very ancient original. Floris is travelling with a
retinue of servants, in the hope of finding his Blanchefleur:—
“To a riche city they bothe ycome,
Whaire they have their inn ynome[419]
At a palais soothe riche;
The lord of their inn has non his liche,[420]

Him fell gold enough to honde,
Bothe in water and in lande,
He hadde yled his life ful wide.”
i.e. he had travelled much, had great experience of life, and had
gained gold both by sea and land. Besides houses entirely devoted
to the entertainment of travellers, it was usual for citizens to take
travellers into their houses, and give them entertainment for profit;
it would seem that Floris and his servants had “taken up their inn” at
the house of a burgess; he is called subsequently, “a burgess that
was wel kind and curteis:”—
“This Child he sette next his side,
Glad and blithe they weren alle
So many as were in the halle;
But Floris not ne drank naught,
Of Blanchefleur was all his thought.”

An Inn.

The lady of the inn perceiving his melancholy, speaks to her husband
about him:—
“Sire takest thou no care
How this child mourning sit
Mete ne drink he nabit,
He net[421] mete ne he ne drinketh
Nis[422] he no marchaunt as me thinketh.”
From which we gather that their usual guests were merchants. The
host afterwards tells Floris that Blanchefleur had been at his house a
little time before, and that—

“Thus therein this other day
Sat Blanchefleur that faire may,
In halle, ne in bower, ne at board
Of her ne herde we never a word
But of Floris was her mone
He hadde in herte joie none.”
Floris was so rejoiced at the news, that he caused to be brought a
cup of silver and a robe of minever, which he offered to his host for
his news. In the morning—
“He took his leave and wende his way,
And for his nighte’s gesting
He gaf his host an hundred schillinge.”
One feature of a town which requires special mention is the town-
hall. As soon as a town was incorporated, it needed a large hall in
which to transact business and hold feasts. The wealth and
magnificence of the corporation were shown partly in the size and
magnificence of its hall. Trade-guilds similarly had their guildhalls;
when there was one great guild in a town, its hall was often the
town-hall; when there were several, the guilds vied with one another
in the splendour of their halls, feasts, pageants, &c. The town-halls
on the Continent exceed ours in size and architectural beauty. That
at St. Antoine, in France, is an elegant little structure of the
thirteenth century. The Belgian town-halls at Bruges, &c., are well
known from engravings. We are not aware of the existence of any
town-halls in England of a date earlier than the fifteenth century.
That at Leicester is of the middle of the fifteenth century. The town-
hall at Lincoln, over the south gate, is of the latter half of the
century; that at Southampton, over the north gate, about the same
date: it was not unusual for the town-hall to be over one of the
gates. Of the early part of the sixteenth century we have many
examples. They are all of the same type—a large oblong hall, of
stone or timber, supported on pillars, the open colonnade beneath
being the market-place. That at Salisbury is of stone; at Wenlock
(which has been lately restored), of timber. There are others at

Hereford, Ross, Leominster, Ashburton, Guildford, &c. The late
Gothic Bourse at Antwerp is an early example of the cloistered, or
covered courts, which, at the end of the fifteenth century, began to
be built for the convenience of the merchants assembling at a
certain hour to transact business. The covered bridge of the Rialto
was used as the Exchange at Venice.
None of our towns have the same relative importance which
belonged to them in the Middle Ages. In the latter part of the period
of which we write it was very usual for the county families to have
town-houses in the county town, or some other good neighbouring
town, and there they came to live in the winter months. When the
fashion began we hardly know. Some of the fine old timber houses
remaining in Shrewsbury are said to have been built by Shropshire
families for their town-houses. The gentry did not in those times go
to London for “the season.” The great nobility only used to go to
court, which was held three times a year; then parliament sat, the
king’s courts of law were open, and the business of the nation was
transacted. They had houses at the capital for their convenience on
these occasions, which were called inns, as Lincoln’s Inn, &c. But it
is only from a very recent period, since increased facilities of
locomotion made it practicable, that it has been the fashion for all
people in a certain class of society to spend “the season” in London.
As a consequence the country gentry no longer have houses in the
provincial towns; even the better classes of those whose occupation
lies in them live in their suburbs, and the towns are rapidly changing
their character, physically, socially, and morally, for the worse.
London is becoming rapidly the one great town in England. The
great manufacturers have agencies in London; if people are going to
furnish a house or to buy a wedding outfit they come up to London;
the very artisans and rustics in search of a day’s holiday are whirled
up to London in an excursion train. While London in consequence is
extending so widely as to threaten to convert all England into a mere
suburb of the metropolis of the British empire.

INDEX.
Abbesses, costume of, 57
Abbey, infirmary of, 61
Abbey-church, internal arrangement of, 75
Abbot, duties of, 55;
his habit, 57
Abbot-bishop, 5
Abbot’s lodgings, 55, 84
Alien Priories, 34
Ampulla, the Canterbury, 171-73
Anchorages, 132
Anchoresses, bequests to, 129;
Judith the foundress and patroness of the order of, 120;
sketch of, 146
Anchorholds, 130, 134, 138
Anchorites, bequests to, 125-27;
rule for, 121;
their mode of life, 121
Angel minstrels, 286-88

Anglo-Saxons, St. Augustine the Apostle of the, 6
Arbalesters, the Genoese famous as, 441
Archers, 438;
corps of enrolled as body guards by Edward III. and French kings,
412;
importance of in battle, 440;
mounted corps of, ib.;
Norman, equipment of at time of Conquest, 438;
skill of English, 440
Archery, practice of by commonality of England protected and
encouraged by legislation, 445, 446
Armorial bearings, date of invention of, 331
Armour, details of a suit of thirteenth century, 333;
differences in suits of mediæval, 398, 399;
little worn in the reigns of Elizabeth and James I., 458;
many modifications of in fifteenth century, 452;
of King Henry VIII.’s reign, 453;
of the fourteenth century, 338 et seq.;
of the fifteenth century, 394 et seq.;
various kinds of early, 329, 330, 335, 336
Arquebusier, 458
Artillery, ancient, 446;
date of first appearance in field disputed, 447;
first evidence as to the existence of, 440, 447
Augustinians, order of the, 18
Austin friars, order of, 44, 94

Banker, the mediæval, 407
Bard, anecdotes concerning the, 271-73;
the father of the minstrels of mediæval Europe, 270
Basilican Institution, introduction of into Africa by St. Augustine, 4;
into France by St. Martin of Tours, ib.;
into Ireland by St. Patrick, ib.;
into Syria by Hilarion, ib.
Battering-ram, 385, 450, 451
Bede houses, 24
Benedictine monks, habit of, 1-7;
orders, 17
Benefices, abuses in connection with, 200
Bonhommes, the, 21
Brigittines (female Order of Our Saviour), 21
Britain, exports of when a Roman province, 463
British Church, early history of the, 4
coinage, date of fast, 463
commerce, the beginnings of, 461
Camaldoli, order of, 17
Canons, Secular, cathedral establishments of, 196;
their costume, 197, 198

Canterbury pilgrimage, chief sign of the, its origin and meaning, 170
et seq.
Carmelite friars, order of, 43
Carthusian order, founded by St. Bruno, 15;
Charterhouse (Chartreux) principal house of in England, 15
Carthusians, Cistercians, Clugniacs, and the orders of Camaldoli and
Vallambrosa and Grandmont, history of the successive rise of the, 10
Castle, mode of assaulting a, 381;
various methods of attacking a, 392
Castles, counter-mines used by defenders of mediæval, 387;
Greek fire and stinkpots employed in repelling assailants of, 392;
mines used for effecting breaches in walls of, 385;
places of hospitality as well as of trials of arms, 358
Cells, monastic, 89
Chantry chapels, bequests to, 140
priests, 136, 204, 206
Chapels, private, curious internal arrangement of, 211;
establishments of, 208-10
Chaplains, domestic, 208, 210, 212
Christendom, cœnobitical orders of, 93
Church of England, date of present organization of, 195
Cinque Ports, 480;
ships of the, frequently at war with those of other ports of the

kingdom, 483
Cistercian order, founded by Robert de Thierry, 16;
introduced into England a.d. 1128, ib.;
St. Bernard of Clairvaux the great saint of the, 17
Clairvaux, external aspect and internal life of, 12;
founded by St. Bernard, 11
Clergy, comparison between mediæval seculars and modern, 224,
225;
extracts from injunctions of John, Archbishop of Canterbury, on
robes of the, 242, 243, 250, 251;
form of degradation for heresy, 214, 215;
friars a popular order of, 223;
parochial, cause of change in condition of the, 193;
rivalry between friars and secular, 223;
secular, 214;
stories illustrating deference of for squire in olden days, 225, 226;
wills of the, 248, 249
Clerical costume of archbishop, 234-236;
of bishop, 235;
of cardinal, 234;
of minor orders, 214, 215;
of pope, 232, 233
Clericus, meaning of the word, 215
Clugniac, order of, 14
Coffin-stones, mediæval, curious symbols on, 193
Combat, a mediæval, 375, 376
Commerce, checked by the Conquest, 468;

discovery of sea-passage to India opens up to a career of
adventure, 485;
earliest extant document bearing on Saxon, 464;
of England greatly increased during reign of Edward the Confessor,
467;
receives much attention from Government during fourteenth
century, 470;
recovers and surpasses its ancient prosperity in reign of Henry II.,
469;
the pioneers of, 485
Compostella pilgrimage, legend in connection with badge of the,
169;
offerings made by pilgrims on return from, 190
Convent, the, officials of:
abbot, 55;
almoner, 62;
artificers and servants, 65;
cellarer, 60;
chantor, ib.;
chaplains, 65;
cloister monks, 64;
hospitaller, 61;
infirmarer, 62;
kitchener, 63;
master of the novices, 62;
novices, 65;
porter, 62;
precentor, 58;
prior, 58;
Professed Brethren, 65;
sacrist, 61;
seneschal, 63;
subprior, 60;
succentor, ib.

Council of Hertford, 195;
differences affecting parochial clergy reconciled at, ib.
Council of Lyons, suppression of minor mendicant orders by, 44;
red hat of cardinal first given by Innocent VI. at, 234
Counting-board, the, 501
Cross-bow, not used in war till close of twelfth century, 440;
various forms of, ib.
Croyland, monastery of, 87
Crusades, objects for which they were organised, 159
Crutched friars, order of, 44
Deaconesses, order of, 152
De Pœnetentia friars, order of, 44
Dominican friar, Chaucer’s, 46
friars, order of, 40
Dunstan, Archbishop, reduces all Saxon monasteries to rule of St.
Benedict, 7
Education, monasteries famous places of, 66
Edwardian period, armour and arms of the, 347
Egyptian Desert, hermits of the, 148

Eremeti Augustini, order of, 94, 96;
their habit, 96
Eremetical life, curious illustration of, 2
Fairs, sole power of granting right to hold exercised by king, 503;
great, 506
Feudal system, introduction of into England by William the
Conqueror, 326;
points of difference between Continental and English, 327
Fontevraud, nuns of, 21
Franciscan friars, order of, 40;
the several branches of, 43
nuns, habit of the, 43
Free towns, mediæval, 530;
Hull an example of one of the, ib.;
manner of laying out, 531-38
Friars, orders of:
Austin, 44;
Carmelites, 43;
Crutched, 44;
de Pœnetentia, 44;
Dominicans, 40;
Franciscans, 40
Chaucer’s type of a certain class of, 39;
convents of, ib.;
pictures of ancient customs and manners of, 45;
the principle which inspired them, 36

Gilbertines, founded by Gilbert of Sempringham, 21
Godrie of Finchale, 116
Grandmontines, order of, 17
Greek Church, costume of monks and nuns in the, 4;
rule of St. Basil followed by all monasteries of, ib.
fire, 449;
used in the Crusades, ib.
Grimlac, rule of, 120, 121
Guesten-halls, 86, 87
Guild priests, 205;
bequests to, 206;
duties of, ib.
Guilds of minstrels, 298;
laws regulating them, 299, 300
Hampton Court, shipping of time of Henry VIII. illustrated at, 484
Harper, the mediæval, 271 et seq.
Henry VIII.’s army, 455;
account of its taking the field, 456;
description of the king’s camp, 458
Heresy, form of degradation for, 214, 215
Hermit, a modern, 119;
form of vow made by mediæval, 98;
popular idea of a, 95;

service for habiting and blessing a, 99;
superstition with regard to a, 100;
typical pictures of a, 117-19
Hermitages, localities of, 101;
descriptions of, 111-17
Hermit-saints, traditional histories of the early, 95 n.;
their costume, 98
Hermits, curious history relating to, 104
Holy Land, early pilgrims to the, 158;
pilgrim entitled to wear palm on accomplishment of pilgrimage to,
167;
special sign worn by pilgrims to, ib.
“Holy Reliques,” an account of, 185-87
Horses, equipment of in fifteenth century, 404;
trappings of at tournaments, 433
Hospitals of the Middle Ages, 23, 24;
foreign examples of, 25
Hospitium, contrast between the Cloister and the, 87;
resorted to by travellers, 529
Houses, description of, given by mediæval traders to various
churches and monasteries, 519
Impropriation, evil of, 199
Iona, monastic institution at, 6

Inventories, clerical, 261, 262;
of church furniture, 285
“Isles of Tin,” 461
Jewellery, portable, Saxon goldsmiths famous for, 464
Jousting, 348, 349, 365, 411, 415
Judicial combats, anecdotes illustrative of, 419;
various authorities on the subject of, ib.
Kelvedon Parsonage, 261, 263, 265
Knight, manner of bringing up a, 406;
Chaucer’s portrait of a, 409, 410
Knight-errant, armour and costume of a royal, 349, 350;
graphic account of incidents in single combat of a, 373-75;
squire of a, 352
Knight-errantry, romances of, 354 et seq.
Knighthood, won by deeds of arms in the field and in the lists, 409
Knight Hospitaller, a, 31
Knights of Malta, 33
of St. John of Jerusalem, order of, 29-32
of the Temple, order of, 26, 29, 159
Knights, noblemen and eldest sons of landed gentry made, 408;
ceremony of making essentially a religious one, 409;
equipment of reached its strangest form in reigns of Richard III.

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