Chris Reed (Queen Mary University of London, School of Law) has posted Why Judges Need Jurisprudence in Cyberspace on SSRN. Here is the 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.