Paolo Moro
L’informatica forense. Verità e metodo
Milan (Italy): Edizioni San Paolo 2006
In his essay on Law and Information Technologies. Truth and Method (San Paolo: Milan 2006), Paolo Moro, a barrister who lectures at Padua University, shows how the connection between law and I.T. implies a general study on methodology of legal reasoning. Transformations, fatally caused to the technique of argumentation in trials and lawsuits when lawyers and judges use I.T., are founded on logical procedures that legal knowledge owns since its origins: analytics, dialectics, topics and rhetoric. Just for or this reason, he illustrates some of the problems implied by I.T. as applied to legal logic, such as the analytic foundation of contemporary Law and I.T., its dialectic nature, the topic qualification of information retrieval and the rhetoric matter of the electronic writing of legal documents.
Moro’s research develops paying attention to the concrete experience of legal practice, from which some paradigmatic models of legal methodologies have been gathered: judiciary informatics, telematic trial and lawsuit, e-journals and the electronic writing of legal documents. But the aim of his analysis is not purely descriptive for he desires to look for cultural fundaments of the phenomenology of Law and I.T. “everytime and everywhere” (as the most famous classical sources point out), bringing to light even in today’s legal practice the ancient and inconsumable bond between truth and the method which is used to search for it.
Moro’s purposes are shared by the scholars grouping in the Research Centre on Legal Methodology (CERMEG) chaired by Francesco Cavalla; they can be summarized in the idea that Law and I.T. could be regarded as strictly connected to judicial rhetoric which, as Aristotle reminds us, “is useful because truth and justice are by nature stronger than their opposites”.
In its primary meaning, the expression ‘Law and I.T.’ defines activities done by practical lawyers when they use computers in order to studying, discussing and resolving hard cases drawn from their own experience. Thus the expression ‘Law and I.T.’ is particularly appropriate to indicate the method which qualifies and characterizes logical and practical criteria applied not only by scholars, but mainly by lawyers and judges using computers to resolve legal disputes. We must clearly distinguish between Law and I.T. as explained above (in a way which justifies its fundamental relationship with legal logic and philosophy) and the so called ‘Law and I.T.’ which merely describe and interpret positive legal norms provided for cases related to the use of computers.
In the first meaning of the expression, jurisprudence depends on Law and I.T. – such as when we examine modalities of information retrieval in legal databases, today available not only on electronically formatted supports but also in the Internet.In the second meaning, Law and I.T. is involved to statute law – such as when we examine matters related to civil law (e.g. spamming, previewed and forbidden by Italian d. lgs. 30 June 2003, n. 196) or criminal law (e.g. the abusive access to informatic systems, previewed and punished by Italian criminal code, art. 615 ter comma 1).
The methodological approach to Law and I.T., when not confused or forgotten, propagates in disparate fields concerning operations that are relevant for law (such as acts of parliament, contracts, administrative acts), playing a considerable role in the logical procedures of legal practice, where the critical experience of trial and lawsuit develops pragmatically.
In conclusion, after critically rethinking the methodological structure of what lawyers usually do in trials and lawsuits (using I.T.), it seems far more appropriate – for indicating the cluster of logical criteria which characterize and orientate their activity – to use the expression ‘Law and I.T.’.
(by Letizia Mingardo)