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Assembling law and technology in the public sector:
the case of e-justice reforms
Francesco Contini
IRSIG-CNR
Via Zamboni, 26
Bologna, Italy
francesco.contini@irsig.cnr.it
Antonio Cordella
ISIG- Department of Management
Houghton Street
London, UK
a.cordella@lse.ac.uk
ABSTRACT
This paper discusses how laws and technology interact when e-
government reforms are designed and deployed in highly
regulated public sector organisations. The contribution focuses on
how laws and regulations are re-designed into ICTs and the effect
this design process has on the performance of public sector
organisations. The paper builds on the concepts of functional
simplification and closure to depict the particular process by
which ICTs moulds laws and regulations. The case of the justice
sector is discussed as exemplificative example to discuss how law
and ICTs negotiate the regulation of organisational activities into
techno-legal assemblages. Building on the finding of the case the
paper provides a new dimension to be accounted for when the
enactment of ICTs occurs in public sector organisations. The
paper suggests that the technical, the legal, as well as the
institutional properties that shape e-government projects need to
be considered to better understand the impacts of e-government
reforms on public sector organizations, the services they deliver,
and the value that is generated for the citizens receiving public
services.
Categories and Subject Descriptors
K.4 COMPUTERS AND SOCIETY, K.4.1 Public Policy Issues,
Regulation, K.4.3 Organizational Impacts
http://www.acm.org/class/1998/
General Terms
Management, Standardization, Legal Aspects.
Keywords
e-government, e-justice, law and technology, regulative regimes
1. INTRODUCTION
!
The diffusion of ICTs in the public sector has changed the way in
which public sector organizations produce and deliver services
and also the way in which democratic institutions work [1-3].
Very little interest and attention has been given in literature to the
changes that have occurred in association with the digitization of
the judicial systems -despite their relevance for the operation of
almost every other activity of the State. The way in which the law
is administrated and enforced does deeply affect every economic
and social endeavour and most of all governs the activities and the
life of every individual and business entity affected by the
jurisdiction of a legal system. Therefore we suggest that it is
needed to better understand the effects that transformations in the
organization and functioning of the judicial systems associated
with the digitalisation of legal procedures and processes impact
economic and social relations as well as the overall democratic
arrangements underpinning the activities of the State [4].
Bourdieu[5] clearly states that the complexity of the process
which shapes the interpretation and hence the “values” enforced
by the “law” results by the negotiation which occurs within the
judicial field among the different institutional actors to whom the
interpretation and enforcement of the law is delegated. This work
is extremely valuable to understand how the hierarchical
organization of legal systems and judicial institutions structure
these complex negotiations. Bourdieu’s framework explains why
the values enforced by the same legal system can change over
time, even if there are no formal changes in the law. The
framework, however, does not account for the important role that
ICTs plays in shaping the interpretation of the law and hence the
vales it enforces.
All over the world, governments are investing in ICTs to
streamline and modernize judicial systems in the light of the
administrative and organizational rationalization associated with
digitization1. At the same time, with few exceptions [6-9],
researchers have paid very little attention to the study of the
changes brought about by the digitization of this sector, as well as
on the impact digitalization has on pre-existing institutional
settings and on the broad range of values underpinning the judicial
function and enforced by the judicial power. ICTs in fact impact
the way in which the law is interpreted and enforced in various
ways: standardizing processes and procedures, guiding the
collection of data and information, enhancing the access to justice,
contributing to the identification of relevant case-law and
jurisprudence, and guiding judicial officers working practices and
writings in many ways [10]. Furthermore, ICTs’ development and
deployment require the involvement of a pervasive layer of
private companies enabling and mediating judicial procedure [11,
12] and the adoption of technological standards developed in
other institutional and functional domains [13]. By so doing, ICTs
become a new actor engaged in the negotiations which shape the
interpretation and hence enforcement of the law[5]. With
pervasive ICTs deployments, the “force” and effectiveness of the
1 This can be easily appreciated considering national and European e-Justice plans. Multiannual
European e-Justice action plan 2014-2018 (2014/C 182/02), or the resources made available by
the National Center for State Courts, http://www.ncsc.org/Topics/Technology/Technology-in-
the-Courts/Resource-Guide.aspx
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DOI: http://dx.doi.org/10.1145/2757401.2757418
law is in fact shaped around a body of internal protocol,
procedures, interpretations, and technological standards, that
mould the explicit functioning of judicial procedures and hence
the effects of the law on economic and social activities affected by
judicial decision making. This implies that judicial procedures are
not exclusively the result of negotiations about the application of
the law as established by the principle of legality and investigated
by Bourdieu.
The paper explores this argument, offering a nuanced
understanding of the complexity and implications of the dynamics
that occur between two functional domains: law and technology.
By doing this, the paper aims at providing a new approach to
better outline the consequences of e-justice and, more in general,
e-government deployment, with a focus on the role of information
and communication technologies as autonomous actor, and on its
effects on institutional and organisation settings of the judiciary.
The major evidence of this conceptualization of the role of ICT in
judicial system is the growing relevance of the regulation needed
to deploy technology in this domain. Building on recent empirical
studies, the paper explores the various entanglements between law
and technology in e-justice systems. To do this, the paper first
contextualises the argument within the broader framework of e-
government, and discusses technology and law as autonomous
regulative regimes (section 2). Section 3 discusses how these
regulative regimes are negotiated when ICT is deployed in
judicial systems. The cases introduced in this section provide a
first catalogue of the multiple entanglements occurring when ICT
is introduced in highly regulated organisations. Section 4 will
discuss how ICTs “negotiate” the interpretation of the law and
more broadly, the institutional consequence of the digitalisation of
judicial procedures. Conclusions will follow to discuss the
broader contribution of the paper to the e-government literature.
2. E-GOVERNMENT: FROM SERVICE
RATIONALISATION TO INSTITUTIONAL
RECONFIGURATION
E-government literature has been mostly concerned with the
discussion of ICT as curriers of modernization and rationalisation
in public sector organisations. Accordingly, a large extant of
literature has discussed e-government as an evolutionary process
that unfolds alongside the evolutionary nature of ICTs failing to
account for the institution, organisational[14], and indeed judicial
transformations[9] associated with the deployed of ICTs in the
public sector. E-government adoptions carry political, social, and
contextual transformation that calls for a richer explanation of the
overall impacts public sector ICT-enabled reforms have on the
processes undertaken to deliver public services and on the values
generated by these services [15].
Most public sector ICT adoptions fail to address the complexity of
organisational, institutional, and judicial impacts that ICTs have
once implemented to reform, modernise or rationalises the public
sector apparatus. Approaches that only assess the impact of ICT
on organizational performance do, therefore, underestimate the
impact of public sector ICT-enabled reforms on the overall
context of public sector service delivery [16] and, as addressed in
this paper, this becomes extremely evident when ITCs are
deployed to transform the judicial sector.
E-government projects impact upon social and political
dimensions and not only on organizational efficiency. In other
words, the impact of ICT adoptions on the public sector may be
more complex and difficult to be assessed than those on private
sector (business) organizations [17-21]. By failing to recognize
these differences, e-government literature and practices have
largely studied ICT implementation in the public sector referring
to measures of efficiency and costs rationalization valuable to
account for the organisational and economic impacts of ICTs in
the private sector which fall short to account for the complexity of
the impacts that ICTs have on the transformation of public sector
organisations as well exemplified by the case of the judiciary [22-
24].
By addressing these differences, we suggest that e-government
projects should be studied as context-dependent phenomena that
are shaped by technical, institutional, and legal factors that frame
public sector organizations and the services they deliver.
Accordingly, ICT-enabled public sector reforms should be
considered complex, context-dependent, techno-institutional
assemblages [25], wherein technology acts as a regulative regime
“that participates in the constitution of social and organizational
relations along predictable and recurrent paths” (Kallinikos,
2006:32) just as much as the institutional and legal context within
which it is deployed [24, 26]. We highlight that e-government
projects introduce new technologies that mediate socio and
organizational relations that are imbricated and therefore also
mediated by context-dependent factors such as cultural and
institutional arrangements as well as the law [14, 27].
Or research builds on the literature stem that has looked at the
social, political and institutional dimensions of e-government
projects [21, 24, 28-30], such as the e-government enactment
framework [24].
The e-government enactment framework is one of the first
examples of e-government research where the technical
characteristics of ICT are not considered as the sole enablers of
organizational change but rather as contextual factors that shape
e-government policies. However, even if this framework is useful
for understanding the process within which ICT shapes and is
shaped by the context in which it is deployed, the framework does
not provide any analytical tool to analyse and depict the
characteristics that make ICT such a relevant factor in leading the
path of deployment of e-government policies.
To fill this gap, we propose to focus on the regulative
characteristics of ICT, which emerge as the result of the processes
through which ICT frames law and procedures and hence the
action of public sector organisations. [31-33]. We therefore
suggest a new framework to study how the characteristics of ICT
shape organisational action and performances.
When e-government literature has looked at the technical
characteristics of technology, it has mostly looked at ICT as a
potential enabler for a linear transformation of public sector
organizational practices and coordination structures [34, 35].
There is therefore a dominant instrumental perspective with
regards to the role of ICTs which are mainly conceived as tools to
enhance the productivity processes in the organization by offering
humans with better and more efficient means to execute existing
organisational practices [36]. ICTs however encompass properties
which frame the causal connection of the organizational practices,
events, and processes they mediate [32, 36]. ICTs do not simply
help to better execute existing organizational activities but rather
offer a new way to enframe [37] and couple in a technically pre-
defined logical sequences of actions the organizational procedures
and practices they mediate [32]. As a result, ICTs construct a new
set of technologically mediated interdependences that regulate the
way in which organizational procedures and processes are
executed. ICTs therefore structure social and organizational
orders, providing stable and standardized means of social
interaction [33, 36] shaped into the technical functionalities of the
systems. Work sequences and flows are described in the
technological functions and standardized and stabilized in the
scripts and codes that constitute the kernels of the systems. The
designs of these systems enclose relational causalities that are
described in the scripts of the technology and exclude other
possible causalities by not including relational interdependencies
into the same scripts.
When organizational activities or practices are incorporated into
ICTs they are not rationalized in holistic terms – as is assumed by
the instrumental view of technology – but described in a way that
is machine representable and coupled to accommodate the logic
underpinning the technological components used in that specific
context. Different underpinning logics, such as different
ontological framings, vary as they structure the world in different
logical sequences, so that the holistic concept of technical
rationalization is useless once it is recognized that alternative
technical artifacts reduce complexity into their different logical
and functional structures. The complexity of the world is
accommodated within the functional logic of technology and,
therefore, described to reflect the logical sequences that constitute
the operational language of ICT. The complexity of the world
needs to be reduced in order to define the classes and relationships
that are used to design ICT. ICTs clearly demarcate the
operational boundaries within which the information system will
operate, by segmenting the sequences of operations executed by
the system and the domains within which these sequences will
operate. Information technology not only creates these causal and
instrumental relations but also stabilizes these relations into
standardized processes that make the relations very hard to
change. Functional closure is the effect of the standardization of
these relations into stable scripts: the creation of the kernel of the
system [36]. As a result, ICTs become regulative regimes [31] that
structure human agencies by inscribing paths of actions, norms
and rules so that the organizations adopting these technologies
will be regulated in their actions by the scripts of ICT. These
effects are clearly magnified in the context of e-justice where the
regulative nature of technology must negotiate with the regulative
nature of the law.
When studying and theorizing about the adoption of ICTs in
public sector organizations –an in the judiciary in particular- these
regulative properties of ICT should be placed at the centre of the
analysis in order to better understand the implications and
possible outcomes of ICT adoptions in the public sector.
To better account for our argument, in the next section we present
some of the ICT systems used by justice organisations and discuss
the way in which they interact with new and pre-existing legal
frameworks.
3. TECHNOLOGIES IN JUDICIAL
PROCEEDINGS
Judicial procedures have always been supported by technological
artifacts such as court books where the law was first written and
the case file and case folders used to administrate and coordinate
judicial procedures[38]. The courtroom provides a place for the
parties and the judge to come together and communicate, for
witnesses to be sworn and to give evidence, and for judges to
pronounce binding decisions. All these activities are mediated and
shaped by the specific design of the courtroom. The bench with its
raised position facilitates the judge's surveillance and control of
the court, as well as frames (with a motto, flag or other symbol of
authority) the legal pronouncement [39, 40]. This basic set of
technologies associated with the well-established roles and
hierarchical structure of judiciaries[5] have shaped the process by
which the law is enforced and the way in which legal procedures
are framed over many centuries [41]. Even if the 'paperless' future
promised by some authors [42, 43] is yet to become true, ICTs
have proliferated in the judicial field. A growing number of tasks
traditionally undertaken by humans and that concerned
production, management, and processing of paper documents are
now digitized and automatically executed by computers. Given
the features of ICTs the way in which these procedures can be
interpreted and framed is constrained by the technical features
which govern the functionalities of these technologies. These
features are defined by technical standards, hardware and software
components, as well as by private companies involved in the
development of courts’ technology and by technical regulative
bodies which establish e-government action plans. These changes
might subvert the hierarchical relationships that have traditionally
governed the judicial and hence deeply influence the power and
authority relations that shape the negotiations and hence the
possible outcome of the interpretation of the law. ICTs ultimately
define a new habitus within which the law is interpreted and
hence the values it carries forward.
The negotiation between the legal norms and the regulative nature
of technology is evident by the higher degree of functional
simplification and closure of judicial procedures. These
procedures are increasingly defined by software and hence by the
software providers rather than by courts as instead established in
conventional legal practices. To better discuss the impacts and
implications of these negotiations it is valuable to discuss some of
the different types of technologies currently used in courts
systems as concrete examples of how technology as autonomous
regulative regime negotiates with the pre-existing and dominant
regulative regime based on formal rules and laws.
ICT has been exploited to support, automate, or facilitate many if
not all domains of justice systems operations. Legal information
systems (LISs) provide up-to-dated case law and legal information
to citizens and legal professionals[44]. LISs contribute to the
selection of relevant laws, jurisprudence and/or case-law. Case
Management Systems (CMSs) constitute the backbone of judicial
operation. They collect key case related information, automate the
tracking of court cases, prompt administrative or judicial action
and allows the exploitation of the data collected for statistical,
judicial, and managerial purposes [45]. Their deployment force
courts to increase the level of standardization of data and
procedures. CMSs structure procedural law, and court practices
into software codes, and in various guises reduce the traditional
influence of courts and judicial operators over the interpretation of
procedural law. E-filing encompasses a broad range of
technological applications required by case parties and courts to
exchange procedural documents during the proceedings.
Integrated justice chains are large scale systems developed to
make interoperable (or integrated) the ICTs architectures used by
the different judicial and law enforcement agencies: courts, police,
prosecutors’ offices and prisons departments might change the
administrative responsibility on the management of the
investigation and prosecutions when they actions are coordinated
via integrated ICTs architectures[46, 47]. Video conference
technologies provide a different media to hold court hearing:
witnesses can appear in video, and inmates can attend at the
hearing from a remote position. They clearly change the
traditional layout of court hearings and the associated working
practices [48, 49] and ultimately the legal regime and conventions
which govern hearings.
All these applications interact with legal frameworks in different
and sometime unpredictable way. Legal information systems are
collections of legislation and case law made digitally available to
the public. The change of media from paper to electronic
collections, with enhanced data access, can create questions
related to the right to privacy of the persons mentioned in the
judgments, right to be balanced with the principle of publicity of
court decisions. Making digitally available laws and case laws
might affect the way in which they are interpreted making it easier
for the civil society and media to voice their interpretation of the
law on the specific case or criticize a specific judgement based on
pre-existing court decisions. Moreover, legal information systems
are not necessarily neutral in identifying relevant case law and
jurisprudence2. They can promote peculiar legal interpretations, or
establish barriers to access to relevant information, becoming an
active actor in the concrete application of the law. Once the search
engine and the jurisprudential database are “black boxed” it can
become extremely difficult to ascertain if the search system is
really neutral, or the jurisprudence database complete. The
Montreal declaration of free access to law, supporting universal
access to legal sources and stating that maximizing access to legal
information – including legislation and case law – promotes
justice and the rule of law3, on the one hand emphasize the
relevance of the phenomenon, on the other does not address these
possible shortfalls.
CMSs are developed to automate existing judicial procedures. The
rules established by the code of procedure are deployed in the
system to rationalize the procedural flow. This reduces the
different interpretations of procedural laws to the one black-boxed
into the software code and system architecture. The implications
of such change are manifold. A more coherent application of
procedural law can be beneficial, but there can be also critical
issues, such as the reduced degree of freedom of clerks and
judicial officer in adapting procedural codes to contingent needs
[50].
The use of video technologies and particularly videoconferencing
changes the well establish setting of court hearings. Court
hearings are not alike standard business videoconference. Legal
and functional requirements easily met in oral hearings are
difficult to be replicated in video-conference mediated hearings.
The parties must be able to monitor if the witness is answering to
the questions free from external pressures or suggestions; private
communication between the lawyer and the defendant shall be
guaranteed; all the parties involved in the hearing shall have the
same access and complete understanding of the on-going events.
The conditions can be by a mix of technologies and institutional
arrangements [51]. However they must be authorized by a legal
provision. Legislators can also detail the features or the functional
requirements to be fulfilled by technologies to guarantee that the
2 Also in civil law countries jurisprudence represents an important
source to be considered when applying the law to concrete
cases.
3 http://www.fatlm.org/declaration/
ICT mediated hearing comply with the requirements mentioned
above, and the fair trial principle.
As noticed by the study of Henning and Ng [52], law is needed to
authorise hearings based on videoconference but the “law” cannot
guarantee a smooth functioning of the technology. Indeed it can
be difficult, if not impossible, to regulate ex ante innovative ICT-
based working practices, as the one which has emerged with the
use of these videoconferencing systems [12]. Furthermore,
technological systems are not always stable and reliable. They
frequently “shift and drift” making difficult to maintain the
alignment between ICT enabled working practices and legal
constraints [53]. Ex ante regulation, therefore, cannot be
exhaustive and the actual outcome is mediated by the way in
which ICT deploys the regulation.
The negotiations between law and ICT discussed so far are
modest in comparison to those faced by the integration of the
justice chain or e-filing. In these cases, the solutions to the
problems of the authenticity, integrity, non-repudiation of the
electronic documents, along with the issue of identification
become much harder to find. Indeed, such systems are not closed
within the boundaries of a single organisation, but are designed to
provide interoperability and data and document interchange
among different subjects.
The identification of the parties is the first formal step needed to
set up any judicial proceeding and must be ascertained in a
formally appropriate manner such as by authorised signature on
the proper procedural documents, statements under oath, ID cards,
etc. Everything is strictly regulated by law and further detailed by
court rules. When e-filing or technologically integrate justice
chain are deployed it is difficult and challenging to digitize these
procedure without negotiating the pre-existing requirements
imposed by the law.
Digital signatures are often identified as the best solution to
guarantee the identity of the parties, check their eligibility to file a
case, and therefore are a pre-requisite of e-filing. Given the legal
value associate with the digital signature its standards and
technological requirements are often imposed by law[54]. The
implementation of these standards has frequently been more
difficult than expected, and required not just challenging software
development, but a never-ending list of legislative intervention
needed to guarantee the legal compliance of the digital signature.
In Italy, just as an example, it took about 8 years to develop the e-
filing system along with the needed legislative requirements. This
clearly reflects the on-going negotiation necessary to
accommodate the legal and technological requirements. In the
specific case the long negotiation between technological and legal
requirements has led to a successful outcome: the use of the
digital signature is now becoming compulsory in a growing
number of legal proceedings in Italy and successfully used [55].
The integration of judicial systems to facilitate the coordination of
activities among the police, the prosecutor office, prisons and
courts can even redefine the legal arrangements which govern the
investigation and prosecution responsibilities. In England and
Wales, the introduction of a gateway to facilitate the exchange of
information across the criminal justice chain has led to a profound
transformation of the role of the Police and the Crown Prosecutor
office in the investigation of criminal activities. The gateway,
providing updated investigative information to prosecutors, has
led to a “constitutional” transformation giving the leading role in
the investigations to the prosecutor office and not to the police as
instead established by statutory law[47].
All these examples highlight that in the case of justice sector, ICT
is designed to execute tasks and procedures that are largely – but
neither exclusively nor univocally – derived by legal texts: code
of procedures and other formal rules. Once legal regulated tasks
are black boxed into the system, they might change the way in
which judicial procedures are executed, and might also change the
same interpretation of the law. As noticed by Czarniawska and
Joerges [56: 372], with technological deployment “specific tasks
and the associated institutional responsibilities are transferred to
machine technologies, and therefore dethatched from the
traditional channels of responsibilities and awareness. As
organised actions are externalized in machines, and these
machineries grows more complicated on ever larger scales,
norms and practices of organizing progressively devolve into
society’s material base: inscribed in machines, are literally black-
boxed”.
The implementation of new technological components often
requires the deployment of new statutes or regulations established
to accommodate the use and the functioning of the system, as in
the case of the video-technologies or e-filing. This regulation of
technology is composed of technical norms, established within
technical domains to specify the technical features of the systems,
but also by rules designed to inform the adoption of the
technology that clearly demarcate the boundaries of what ICT
shall or can do. ICT and the law enter therefore into a kind of
rivalry for regulating actions, as it will be better discussed in the
next sections. At the same time, tasks and operations prescribed
by pre-existing legal texts can be difficult to inscribe into ICTs.
Procedures designed to work in a conventional domain based on
paper and face to face relations cannot fit with the constraints of
ICTs. As noticed, the migration of a simple gesture as the
signature from paper to digital proved to be particularly complex.
To sum up, a third dynamic can be observed: the reconfiguration
of the pre-existing legal and procedural framework to better host
the changes brought about by the technological development.
These dynamics represent different patterns of negotiation
between ICT and pre-existing institutional components (formal
regulations in particular). Therefore ICTs acting as autonomous
regulative regime[57], on the one hand lead to different or
peculiar interpretation of the pre-existing legal framework, and
trigger various process of statutory and regulative changes on the
other hand. These dynamics are discussed in the next section.
4. ENACTMENT OF TECHNO-LEGAL
ASSEMBLAGES
The deployment of ICTs in the judicial sector unfolds in techno-
institutional assemblages [25], in which the technical and
institutional regulative properties of law and technology are
intertwined. These composite configurations (assemblages) shape
organizations’ actions and outcomes. In these assemblages, ICTs
translate into the scripts of different technologies, organizational
procedures and processes which, in the case of judicial sector
organisations, are originally defined by the law and by formal
procedural and administrative regulations. Procedures and
organisational action established by rules, regulations and
statutory law are functionally simplified and closed in the scripts
of technologies that, as described by the enactment studies [24,
27], are enacted in the daily organizational processes and moulded
into complex techno-institutional configurations. In these
configurations, the scripts of technologies institutional rules,
regulations, and the law are intertwined with organizational
actions which form a composite assemblage that it is difficult to
disentangle. This process is well described by Bovens and
Zouridis [33] when they argue that functional simplification and
closure are very instrumental in explaining the role information
technologies can have in the context of bureaucratic
rationalization. In the case of justice sector codes and protocols
are defined by law and internalized in the organizational
procedures by means of standardized mechanisms of coordination,
control and interaction. Information technologies allow to better
rationalize and stabilize these mechanisms because of the effects
of functional simplification and closure. Hence, information
technologies offer, not only new and better means of production,
but also regulative properties, or a specific normativity[13] that
structure organizations’ processes and procedures. When enacted
in the organizational practices, they produce new institutional
configurations moulded into the regulative frame produced by the
ICT [27]. These new institutional configurations are indeed the
results of negotiations between the pre-existing institutional
setting ICTs and the law.
Legal information systems provide a first example of how such
configurations unfolds. Even the simple change of media (from
books to websites) for the publication of case-law, affects the
privacy rights and hence the effectiveness of the pre-existing
privacy regulation. This has called regulators to redesign the
privacy law clarifying when document shall be anonymized and
instead when it is allowed to make personal data public. On its
turn, the new privacy regulations have required changes in the
technological platform providing case-law, the anonymization of
sentences and even the need to put offline courts’ websites
providing non anonymzied case-law[58].
The development and deployment of CMS unveil even more
complex dynamics and negotiations. Indeed, courts or
prosecutors’ offices working in paper-based environment tend to
develop a variety of procedures and working practices to comply
with the existing legal framework. Even the same definition of
“what a case is” can change from court to court[45: 128]. When a
CMS is developed, such procedural variety has to be reduced to
just one functional simplified model, designed in the CMS which
indeed give a univocal and hence peculiar interpretation of the
law. Once this functionally simplified interpretation is closed into
the software code, it becomes difficult if not impossible for the
user to interpret its functionalities, and enact work practices which
contrast with the digitized system. Therefore, the software codes
of the CMS enforce a peculiar interpretation of the legal code of
procedure which can change the way in which a given judicial
system works and performs [59] shaping not only the law but also
the way in which the organization can enact it .
The case of e-filing and videoconference mentioned in the
previous sections point to a more lengthy and complex
negotiation, since the magnitude of changes brought in by
technological innovation is much higher than in previous
examples. In both cases, the development and deployment of the
technology is not simply automating or digitizing pre-existing
procedures. As noticed, video-technologies must fulfil specific
functional and institutional requirements proper of court
hearings[51]. Ex ante legislation authorising the use of video-
technology is not sufficient, since just the daily use of the system
–its enactment in organisational practices- can demonstrate if the
requirements are met by the implemented technological solution
and if other requirements need to be implemented. Therefore ex-
post regulation becomes a proper solution to provide an
appropriate legal framework for the use of the system [52], reduce
the risk that technological innovation negatively affects the
fundamental right to fair trial, and defines the organisational
practice needed to reduce the barrier to access to justice[60].
With e-filing, the dynamic is even more complex. In this case,
new objects such as digitally signed petitions, summons or
sentences have to be created. These objects unveil a dual nature:
on the one hand they are technological artifacts based on
established technological standards and protocol. On the other
they are legal objects in the sense that their features and their use
must be fully acknowledged by the law (or by proper regulations)
to be performative, i.e. to have the expected legal effects in
judicial proceedings [61]. The way in which e-filing systems
change the organisational and institutional practices shall also be
accounted for to depict the multi-multidimensional negotiations
that occur around the digitalisation of legal procedures.
A typical dynamic observed in e-filing, envisage a number of
cycles in which legal changes are followed by technological
developments and piloting of the system; this first cycle is
followed by other legal changes, technological developments and
organisational ad institutional variations which result in a
continuous process of legal, organisational and technological
adaptations. In Italy[55], Portugal[62] and France[59, 63] the first
legal changes were triggered by the need to enable the use of a
given technology (such as digital signature) for specific purposes
(file a case electronically). Also, legal changes were required to
specify the technical features of the system and the roles of the
actors involved (lawyers, clerks, judges, bar associations etc.). In
a second stage, system development and piloting were pointing to
the need of additional legal changes to find a better tuning
between legal, organisational and technological constraints and
opportunities. A third dynamic emerged since the continuous
technological progress was making available more advanced
(simpler or easier to access) technological solutions, making out-
dated the systems in use. This can require a new cycle of legal,
technological and organisational adaptations.
It is clear, now, that given the peculiar institutional framework of
justice systems and of the public sector more in general, the use of
new ICTs has to be authorised by and embedded into specific
legal provisions, and that the enactment resulting from this
dynamic is an assemblage of technological and institutional
components that channel and guide judicial and administrative
behaviour.
5. LAW, TEHCNOLOGY AND E-
GOVERNMENT
The paper offers a set of example in the context of e-justice to
discuss the interplay that shapes the trajectory of e-government
reforms, and the negotiation that occurs between ICTs, the law,
and organizational practices when ICT enable reforms are
deployed.
The paper highlights that ICT shapes institutional properties and
the interpretation of the law when e-government systems are
designed. This translation is needed to accommodate existing
practices into the rationality underpinning the logical and
functional structure of ICT – functional simplification- and the
boundaries within which these structures are operationalized –
functional closure.
We have provided examples for the most regulated domain of the
public sector: the judicial. The action of public sector
organisations in general are however regulated by legal and
regulatory codes[45, 64] and therefore all affected by the
negotiation between ICT and the law when e-government
deployment is concerned.
The negotiation between the regulative regime of the law and the
one of technology is therefore a common ground to be accounted
for when e-government projects are concerned. This paper offers a
set of theoretical drivers to explore, analyse, and explain why the
ICT design and deployment is always associated with these
phenomena. The paper also helps explaining why the
interpretation of the law inscribed in the technological regulative
regimes is more “rigid” than the law itself. The concepts of
functional simplification and closure provide the explanation of
why this is the case.
We have discussed various cases in which, once a given
interpretation of the law is inscribed into ICT it becomes more
rigid and forceful. The coupling between the normativity of law
and of technology creates a compelling guide for human action.
This has various institutional implications, ranging from more
uniform administrative and judicial procedures to problems of
accountability and responsibility. It can be difficult to ascertain
how the new techno-legal system works, how data are treated and
who enacts these techno-legal configurations.
When the ICT, by the process of functional simplification and
closure leads to such a transformation in the interpretation of the
law which makes the law incompatible with the broader legal
context and apparatus, so that no negotiation is possible, the ICT
will have to be transformed to allow for the needed compatibility.
If this accommodation does not happen the ICT will be rejected
by the regulative regime of the law, becoming an out-lawyer
disowned by the overarching legal apparatus. The examples of the
rolling out of the new CMS in Italy, and of the e-filing for
administrative courts in France illustrate this point.
The rolling out of a new CMS designed by the Italian Ministry of
Justice in 2007 to make interoperable courts and prosecutors’
information systems illustrates the latter extreme case[65, 66].
The CMS was developed considering the legal framework
established by the 20 years old code of criminal procedure, and by
the newly established “code of digital administration” (Legislative
decree n.82/2005). In 2008, the Ministry decided to axe the
project. Chief prosecutors pressured for stopping the project as
they found the technological architecture unlawful. The
centralised database designed to rationalize the data flaw and
system architecture conflicted with the code of criminal
procedures. This code states that paper registers (those digitizes
by the new CMSs) “are kept at the premises of the prosecution
office in such a way as to ensure confidentiality” (Regulation for
the implementation of D.M. 30 Sept. 1989, art. 5.2). The new
centralised database, physically placed outside the premises of the
prosecution offices - and so out of the span of control and
responsibility of chief prosecutors - conflicted with the procedural
law, and prosecutors were not willing to keep the responsibility
for relying on a system they were not able to supervise.
The system is now working just in three judicial offices, other
systems has been developed and piloted, but in the large majority
of the courts and prosecutors’ offices an outdate CMS developed
in the nineties is used. For reasons that are not clear, the Ministry
of Justice does not consider to change the regulation needed to
allow for the implementation of the new CMS. At the same time,
technological developments makes decentralised data bases
outdated and too expensive to build and maintain. The negotiation
between law, technology and prosecutors has not led to an
acceptable compromise needed to exploit the potentials offered by
ICT.
Similar is the case of the French e-filing system for administrative
courts [59]. In this case, the high level of legal, administrative and
procedural complexity to be inscribed into the new e-filing system
has required a long negotiation between the legal and the
technological regimes. To comply with the new e-filing system
procedures a legislative modification has been made. The new law
changed the procedural rules regulating copies and signature of
procedural documents. The small-scale piloting (one section of
the Supreme court of appeal) pointed out the need of software
adaptations to guarantee a better compliancy with legal and
functional constraints. This negotiation as produced a successful
outcome but just for that specific piloting section. Indeed, when
the system has been deployed in a first instant administrative
court, the users’ take off has been very poor.
The poor use of the system can be explained as result of the way
in which the system was enacted within the organisations
involved in the project. In this specific context the enactment of
the system as have been shaped by functional and political factors.
Lawyers argued that the e-justice application was designed by the
court for the court and was not providing any effective support to
their work in the chain. The national bar association, openly
criticize the fact of not having being involved in project
development. In e-justice development, negotiations take place
between law and technology, but also - and more traditionally -
between the various institutional and organisational players
involved in the administration of justice and in the development of
the systems.
Such problematic examples highlight the question of the limited
compatibility between the two regulative regimes. On the one
hand it is clear that not every technological implement is
compatible with the existing legal framework, on the other not
every legal code can be effectively inscribed in technological
implements. The negotiations between law and technology not
always lead to acceptable mediations and sustainable techno-legal
assemblages.
All these cases show the techno, legal, organisational, and
institutional complexities associated with the deployment of ICTs
in the judiciary, and more generally in public sector organisation
which are normally legally regulated.
Our contribution complements the established research which
highlights that institutional and organisational context are
important factors to be accounted for when the deployment of
ICTs in the public sector is concerned[67]. We offer a further
dimension to enrich this stem of research: the role of formal
regulations and the negotiation which occurs between the
regulative regimes of technology and law.
Our contribution offers this new analytical angle to enrich our
understanding of the process by which ICTs are enacted in the
public sector context. ICTs are enacted in a given context so that
the regulative properties of technology and of the law are cast
upon the contextual institutional properties and organizational
practices that shape the enactment of the regulative properties of
the technology and the law. The normative properties of
technology and law are therefore intertwined with institutional
and organizational factors, which indeed shape every deployment
of law, regulations and ICTs in public sector organizations into
techno-legal-institutional assemblages. These assemblages are
therefore configurations that shape the outcomes of reform
policies enacted through technological deployment that translate
law and regulations into standardised practices governed and
mediated by ICTs. Therefore, technologies shape institutions as
they translate rules, regulations, norms and the law into
functionally simplified logical structures – the code of technology.
Technologies are, however, enacted into organizational practices
and actions so that the institutional properties inscribed into the
technologies are themselves shaped into this enactment process.
This explains the intertwined nature of the techno, legal and
institutional components of the assemblages. ICTs play a major
role in the definition of the trajectories taken by these assemblages
as they translate into their codes a specific and rigid path of action
and interdependent sequences that are not objective but rather
carriers of the interpretation of the law and regulation that have
been design into the technical artifacts. Accordingly, to better
understand the trajectory of e-government reforms, it is here
suggested that we must consider the technical, the legal, as well as
the institutional properties that shape these assemblages and trace
their trajectories as a means to better understand the impacts of
these reforms on public sector organizations, the services they
deliver and the value that is generated for the citizens receiving
their services.
!
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