Old is Sometimes Better: the Case for Using Existing Law to Face the Challenges of the Digital Age

Several legal scholars argue that all revolutions in history have come to terms with lawyers: the French revolution did not get rid of them, nor did the industrial revolution, nor did even Mao Zedong; by contrast, the ongoing digital revolution would be the first one doing away with lawyers, and more generally with law. Established rights, such as property rights, would indeed be challenged by the new kind of relationship with goods that is gradually being established: we no longer own many of our goods, we are simply the licensees of a limited series of rights. In other words, to use the ‘bundle of sticks’ view of ownership, less and less sticks are left to the ‘owner’, and more and more remain in the hands of corporate powers and multinational conglomerates, who retain control over the goods they sell. As a consequence, according to this almost conventional reconstruction, new rules are warranted in order to cope with the fundamental novelties of the digital revolution. This paper tries to cast some doubt on this approach, by questioning the need for new legal paradigms in order to effectively tackle the challenges of the digital age. Drawing on an evolutionary notion of law (i.e., law in its proper and noblest meaning is something that arises spontaneously from the free repetition of certain behaviors by many people over time), the paper submits that the rules governing the digital age should be derived from the customary principles stratified over the centuries, that could be profitably employed also in the digital environment. The article then applies this premise to some of the most topical issues in the current regulatory environment: from cryptocurrencies to artificial intelligence, from electronic commerce to big data, this work contends that the law should not run after the latest technological advancement, but rather take a step back and effectively apply consolidated principles from the past even to today’s fanciest technological gadgets. Admittedly, what could be beneficial in order to effectively deal with the digital age is therefore not a new wave of hard law, but at most a new set of soft law, simply helping to put what is new into context, to define it, and to make sense of it in perspective. It is a lost battle for lawyers the one chasing the latest new technological developments: either law arrives late, thus risking to appear blunt, or, on the contrary, its fervour in trying to keep pace with innovation, never letting it happen without previously regulating it, ends up stifling innovation. In terms of policy, the article concludes that a strong self-restraint by legislators and regulators worldwide is in order: old-time customary law can arguably be much more effective in regulating the digital phenomena, than any hard-law attempt at reigning in an area that is irreconcilable with the uncertainties brought about by the tantrums of written law.