Why Judges Need Jurisprudence in Cyberspace

23 Pages Posted: 17 Oct 2016

See all articles by Chris Reed

Chris Reed

Queen Mary University of London, School of Law; Queen Mary University of London - Centre for Commercial Law Studies

Date Written: October 17, 2016

Abstract

Judges are increasingly asked to decide whether a rule of national law is applicable to a cyberspace actor who is not present in their jurisdiction. They do this through interpreting the meaning of the law, and by applying their rules of public and private international law.

Every attempt to enforce a national law in these circumstances makes a claim that the law has authority over the cyberspace actor. By accepting that claim, the judge asserts that the law’s claim is legitimate. This is a Hartian exercise, adopting the internal view of the national legal system as the test for legitimacy.

But this is the wrong test in cyberspace. There, the legitimacy of a national law claim is determined not by the internal perspective of the legal system but by the external perspective of cyberspace actors. A law will only have authority in cyberspace if it can convince cyberspace actors that its claim is legitimate. And a legal system which repeatedly makes illegitimate claims thereby weakens its status as a system which adheres to the rule of law.

Judges have a part to play in solving this problem. They can interpret laws and apply public and private international law so as to reject applicability claims which are illegitimate. But to do this successfully, they need to understand the jurisprudential foundations of any law’s authority in cyberspace.

Keywords: Cyberspace Jurisprudence Legitimacy Authority

Suggested Citation

Reed, Chris, Why Judges Need Jurisprudence in Cyberspace (October 17, 2016). Queen Mary School of Law Legal Studies Research Paper No. 244/2016, Available at SSRN: https://ssrn.com/abstract=2853489

Chris Reed (Contact Author)

Queen Mary University of London, School of Law ( email )

Queen Mary University of London - Centre for Commercial Law Studies ( email )

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London, WC2A 3JB
United Kingdom

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