The Networked Regulation of Cyberspace
Revue Interdisciplinaire d'Études Juridiques, Vol. 55, No. 31, 2005
36 Pages Posted: 2 May 2006
This article seeks to examine the fertility, for the regulation of cyberspace, of the "pyramid-network hypothesis".
This hypothesis is the conjecture that the process of how law is being created, generally, in all fields of the law, is undergoing a paradigm shift. It is moving away from a process that may best be described as a pyramid (Hans Kelsen's paradigmatic "pyramid of norms") to being a "networked process".
A networked process, in this sense, is characterized primarily by a radical change in the structures of hierarchy among legal norms and among producers of legal norms, and thus in the directions in which the determination of the contents of legal norms flow (which norms determine the contents of which other norms).
In the pyramidal model, all hierarchies take on a top-down form; higher norms determine the contents of lower norms; higher-ranked producers of legal norms prevail over lower such entities. In the network model, such hierarchies are deconstructed, and the legal system is marked by what Douglas Hofstadter calls "strange loops", i.e. the situation where a lower level of some hierarchical system takes unexpectedly precedence over a higher level of the same system. The result is that the relationship between legal norms takes the form of tangled interconnections, cross-fertilizations, and cross-determinations. The hierarchy among legal norms and among their producers becomes unpredictable on the basis of classical legal theory, i.e. on the basis of the pyramid paradigm. The power of determination of the content of legal norms flows in a priori undetermined directions.
This article seeks to assess whether the network paradigm introduces more predictability, whether it provides a model describing more accurately how law is being created in cyberspace, how legal norms in cyberspace interact, and how the hierarchies among creators of legal norms in cyberspace may be understood. In other words, it seeks to provide an answer to the question of the criteria that will allow one actor of cyberspace governance to outweigh other actors, to impose his or her norms, and thus to determine the regulatory status in a given field. These criteria, the author contends, are (1) instrumental effectiveness (the capacity of a norm to compel its respect) and (2) symbolic effectiveness (the capacity of a norm to be voluntarily respected because of its moral adequacy).
Note: Downloadable document is in French.
Keywords: Cyberspace regulation, Internet regulation, legal theory, strange loops, tangled hierarchies
JEL Classification: K2, K20
Suggested Citation: Suggested Citation