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Text-Driven Jurisdiction in Cyberspace

Boekbijdrage - Hoofdstuk

In this paper I further developa philosophy of technology for law and the rule of law, more specifically for the role of territorial jurisdiction in the protection againstcrime and against arbitrary use of the ius puniendi. In the face of the code-and data-driven nature of cyberspace I will discuss modern positive law as based on a text-driven jurisdictionand the main argument of the paper is that we cannot take for granted that the kind of legal protection that is offered by a text-driven criminal jurisdiction will hold in the context of cyberspatial challenges. In the first section,I investigate how modern positive law-as-we-know-it was triggered by the technologies of cartography and the printing press, arguing that both modern democracyand the rule of law are affordances of these technologies, as they enabled the rise of an exclusive, monopolistic territorial jurisdiction. In the second section,I explore the scope of written legal speech acts, integrating speech act theory and philosophy of technology, explaining how the substantive and procedural principles of criminal law legality depend on the performative effect of written legal speech acts, highlighting theirconnection withthe rise of territorial jurisdiction and the creation of an artificial, moderndemos. In the third section, I discuss the new challenges of competingterritorialjurisdictionsthat claim legal powers outside their territory, coupled by the challenges posed by new types of ‘brute jurisdictions’that are based on the force of technological infrastructures thatmay overrule the performative effect of written legal speech acts. In the conclusions I call for keen attention to whichaffordances of cartography and the printing press we need to preserve in cyberspaceto upholdcriminal law principles such as the presumption of innocence, the right to a fair trial and the legality principle, taking note that preservation will require reinventionand imagination rather thantaking for granted the mode of existence oftext-driven jurisdiction.
Boek: Transformations in Criminal Jurisdiction
Aantal pagina's: 24
Jaar van publicatie:2023
Trefwoorden:computational law, Criminal Law, Law and Philosophy, Law