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remaining cases of the area of research selected. Such empirical analysis, as Kort underlines, is totally indifferent to "what the Court said by way of reasoning"480.
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The scientific method requires that the experiment lend itself to replication, so as to permit testing of the findings made during the first experiment. Other cases cannot be predicted with any assurance, since we can never be sure that a factor, concerning whose weight we have no information, will not be important enough to alter the decision. The case for prediction rests on the elimination of chance.
The areas in which predictions are accurate are those in which the law is settled to a point that all that quantitative methods can add is not predictive power, but an increased power of analysis. However, the areas of law which are more interesting and worth of analysis are those which are more complex and dynamic. Even without considering the methodological obstacles presented by such research, the insights provided by quantitative analysis risk of being of no use for jurists. As he put it
If the new behavioral study of law promises merely to "identify the factors" in a case, but to do so more precisely than was done in the past, it will be doing what scholars in the past regarded as only the first step in their work.488
Another perspective is that offered by Julius Stone, who, in an essay titled “Man and Machine in the Search for Justice or Why Appellate Judges Should Stay Human”, moves a comprehensive critique of the behaviouristic approach to law489. Stone not only criticizes the methodological feasibility of the observatory perspective claimed by behaviourists, but he also questions its relevance for a legal perspective that centres the analysis of decisions on a normative and engaged dimension490.
Along these lines, the analysis of Stone addresses the relations between law and computers by introducing two particularly interesting observations. On one hand, whether or not meaningful in a legal perspective, Stone maintains, predictions of judgments do something to law. In this sense, Stone points to what he calls the
“‘feedback’ or ‘Heisenberg effect’ of scientific prediction on future decisions”491 and draws attention to the risk that such feedback “transmutes past actual behavior into spurious present justice”492. On the other hand, reflecting on Loevinger’s assertion that, to be computable, "nothing can be presumed, assumed, implied, or based on intuition", Stone draws the conclusion that “machines cannot will to do justice as men can do and judges are required to try to do”493.
488 Walter Berns, Law and Behavioral Science, cit., p. 199; cfr., also, Frederick B. Wiener, cit., p.
1028
489 Julius Stone, Law and the Social Science in the Second Half Century, University of Minnesota Press, Minneapolis, 1966, p. 54
490 Stone traces back the substantial “risk of error and naivete” of such methodology to the fact that it was developed within political sciences and simply extended to law
491 Ivi, p. 55
492 Ivi, p. 84
493 Ivi, p. 82
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2.3.1. The continental perspective and Juscybernetic
A parallel discussion of the relations between law and computers takes place in the European scenario. Given a set of some more or less nuanced differences between American and European perspectives – e.g., the fact that the European debate was less influenced by Behaviourism; that most European countries were distinguished by a civil law system; that Western and Eastern Europe maintained an active dialogue with researchers from Soviet Union - the discussion between the two shores of the Atlantic is distinguished by interest as well as criticism.
A cross-section of such discussion is provided by the research of Mario Losano, who develops a critique of both the method and the object of Jurimetrics through a comparative analysis of the conceptual and infrastructural differences underpinning the European and the American approach.
Losano notices that, while the European researchers had enthusiastically explored both the field of documentary systems and that of computer applications based on logic - of which he provides a detailed survey – the Jurimetrics approach had not met the same interest494.
The reasons for the lack of success are identified in both the method and the object of Jurimetrics. First of all, Losano points to the chaotic character of such research.
What Baade had presented the research in Jurimetrics as connected by their being all “products of the ‘computer revolution’495, Losano underlines that that was not just one, but the only common feature that distinguished the field founded by Loevinger496. The main target of criticism, however, is Loevinger’s conception of science, and its applicability to Law.
Losano highlights the limits of Loevinger’s empiricism. By addressing only what is quantifiable, Jurimetrics confines itself to a reductionist mathematisation that is incapable of grasping and expressing fully what the law is. As he asks, “What is the point of talking of a measuring of the law? […] Is it permissible to call generically
‘law’ that which is measured and quantified?” 497. What Jurimetrics seems capable of providing is not much more than judicial statistics, and not an explanation of the law tout court. In this perspective, it is particularly interestingly, especially in light of the current developments of ALI, that Losano dedicated a paragraph to the
“disinterest of European jurists for the prediction of judgments”498.
The most unsurmountable obstacle that the empiricist framework assumed by Jurimetrics encounters is that an explanation of law in behavioural terms is in stark contrast with the established tradition of European legal science and its focus on the normative dimension of law.
494 Mario Losano, Giuscibernetica. Macchine e modelli cibernetici nel diritto, Einaudi, Torino 1969, p. 96
495 Hans W. Baade, Forewords, cit.
496 Mario Losano, Giuscibernetica, cit., p. 102
497 Ivi, p. 104
498 Ivi, p. 97
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Losano’s criticism of the approach endorsed by Loevinger, however, does not imply a denial of the potentialities of computational tools. In this light, the lack of success of Jurimetrics can be understood in light of the existence of an alternative conceptual framework under which developing the relations between computers and law. Such framework, which proved much more suited to accommodate the assumptions of European legal science, was provided by Norbert Wiener’s cybernetic theory499. Among the first contributions, Lucien Mehl adopted cybernetic theory to provide an account of administration as the science of government500. Contemporarily, on the other side of the iron curtain501, the relations between cybernetics and law were investigated at the Czechoslovak Academy of Sciences of Praha by a group of researchers leaded by Viktor Knapp502.
In this background, Losano attempts to “put to system” the different lines of research by elaborating a conceptual basis for the field of Jus-cybernetics503. Losano identifies the main vantage offered by cybernetic theory in its explanatory power, i.e., the suitability of its vocabulary for grasping and expressing law as a system, and for giving a formal account of the dynamics of its internal and external relations; on the other hand, contrary to Jurimetrics, Juscybernetics afforded to explain law as a system of norms, not as a system of regular behaviours.
Losano identifies different areas of research that he couples into two macro-categories: on one hand, two levels of theoretical inquiry aiming at explaining law through juscybernetics models – i) law as a subsystem and ii) law as a system of norms; on the other hand, two levels of empirical investigation aiming at developing legal informatics application - iii) analysis of the system of norms, iv) practical application of the preceding approaches. As the Author illustrates:
I. Law as a whole is approached as a subset of the social system. The object of research is the interactions between the two systems according to a cybernetic model.
499 Norbert Wiener, The Human Use of Human Being. Cybernetics and Society, cit., p. 117 e 134
500 Lucien Mehl, La Cybernetique et l’administration, in La Revue administrative, 1957, 10, 58, pp.
410-419
501 Djanger A. Kerimov, Cybernetics and Soviet Jurisprudence, in Law and Contemporary Problems, 1963, 28, p. 71
502 Viktor Knapp, O možnosti použití kybernetických metod v právu, Nakladatelstvi Ceskloslovenske Akademie Ved, Praha, 1963. For the italian translation, Viktor Knapp, L’applicabilità della cibernetica al diritto, Einaudi, Torino, 1978; some research are available in French: Viktor Knapp, De l'application de la cybernétique au domaine du droit, in Revue de droit contemporain, 1963, 9, 13-34;
Id, Théorie du droit et cybernétique, in Etudes juridiques offertes à Léon Julliot de la Morandière, Paris, Dalloz, 1964, pp. 233-242; and in English: Victor Knapp, Vladimir Vrecion, Research on the applicability of methods of cybernetics in Law conducted in Czechoslovakia, in Law and Computer Technology, 1970, 3, p. 154-162
503 The term is identified by Losano himself as the English word for Giuscibernetica, see Mario Losano, Giuscibernetica, cit. p. 106. It is interesting to notice that the success encountered by cybernetics was such that the vocabulary of the European jurists was permeated by metaphors and appeals to Wiener’s theories. As Losano pointed out, the post-war period was in fact distinguished by a widespread abuse of cybernetic notions, to the point that cybernetics was assuming a role as the jurist’s security blanket, see, Mario Losano, Giuscibernetica, cit., pp. 147-152
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II. Law is studied as a normative, dynamic and self-regulating system; in other words, the law is understood as a whole of which not the external relation (as at n. I), but the internal relations, i.e., the relations between its singular parts are investigated.
III. Cybernetic models, in general, should be thought with a view to their implementation through cybernetic machines. Such transition to the machine (the computer), however, presupposes a formalization of legal language: the application of formal logic to law, the analysis of legal language and the general theory of law are investigated at this third level of Juscybernetic inquiry. Here, the norm is not studied as a part of a whole (the law), of which the relationships with other parts of the same whole are addressed (as at n. II); here the norm becomes itself a subset of which the singular parts and their reciprocal relationships are studied.
IV. Thus, those aspects of the law and of norms that may serve to make some legal phenomena accessible to computers have been addressed: however, the transition to concrete application poses many problems not dealt with at the preceding levels.
These problems presuppose not only legal, but also technical notions: thus, the sector of the treating of legal norms as information (i.e. the sector of information retrieval) is the multidisciplinary sector that marks the border between juscybernetics and computer technology.504
Such hierarchical, top-down, structure reflects the perspective of inquiry whose focus is on legal systems. Losano’s ambition is to bridge the gap between theoretical and empirical approaches, or rather, to enable a practical application of the theories elaborated within the tradition of continental legal science. In this perspective, cybernetic theory provides the conceptual toolbox to put to test the elaborations of legal science through legal informatics. While the concrete applications may to a great extent overlap, the assumptions motivating Juscybernetics are opposite to those of Jurimetrics. Here the object and methods of jurisprudence not only are not rejected, as in Loevinger’s perspective: thanks to computers, they are augmented.
Jurimetrics and Juscybernetics have been two major attempts to make sense of and direct a magmatic technological development. The flaw that Losano attributed to Jurimetrics – that the computer was the only common thread to its research program – was in fact a common feature of a pioneering phase distinguished by a theorical attempt to chase a whirling experimentation505 and a lively debate discussing the methods and objects of different lines of research506.
504 Mario Losano, Giuscibernetica, cit., p. 108; my translation
505 Such development is reflected in the first academic materials, which address a range of issues belonging to different disciplines such as IT Law and Legal Informatics. See, Roy N. Freed Materials and Cases on Computers and Law,1 collected for a course 1968–69; Robert P. Bigelow (ed.), Computers and the Law: An Introductory Handbook, Commerce Clearing House, Chicago, 1966. An overview of the diffusion of computers applications belonging to documentary paradigm is offered by the survey conducted by Bigelaw in 1973. The author identifies the use of computer by the legislative power, by the judicial system, practicing lawyers. Robert P. Bigelow, The Use of Computers in the Law, in Hastings Law Journal, 1973, 24, p. 707
506 Giancarlo Taddei Elmi distinguishes fourteen different systematic-theoretical approaches, see Giancarlo Taddei Elmi, Origine, sviluppo attualità e prospettive dell’informatica giuridica, in Antonio A. Martino (ed.), Pre-proceedings of the III International Conference on Logica, Informatica, Diritto. Legal Expert Systems. Appendix, CNR-IDG, Firenze, 1989, p. 46
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It is my opinion that, beside the success or failure of the concrete applications, as well as the fortunes of the label Juscybernetics and Jurimetrics, the expectations that such approaches expressed and the conceptual elaboration they have developed are particularly interesting for understanding not only the roots of the debate on machines and law, but also the assumptions underlying the current attempts to address law by Computational Social and Legal Science507.
In the short term, however, such approaches were in part clouded, in part absorbed, by the success of another paradigm, that of Artificial Intelligence.