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APA Newsletters

Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and Law

Recent Law Review Articles of Interest
Abstracts

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"What Larry Doesn't Get: Code, Law, and Liberty in Cyberspace,"

David G. Post
52 Stanford Law Review 1439-1459 (2000)

Lawrence Lessig's book Code and Other Laws of Cyperspace presents an ingenious and insightful, but ultimately unconvincing, argument for the regulation of cyberspace, and argument that paradoxically is based on the fundamental value of freedom. According to Lessig, cyberspace differs from physical space in that the features that make it what it is consist of strings of symbols (the "code" of Lessig's title) which both enable human behavior and constrain it. As the internet economy develops and control of it falls into the hands of fewer and larger companies, we should expect it to develop into a uniquely perfect instrument for the control of human conduct. Central to the nature of cyberspace, then, is something that can either expand individual freedom or severely limit it. However it does develop, it clearly affects fundamental values of the sort that should be chosen rationally, on the basis of public discussion and public control, and not left up the blind workings of an invisible hand. Post accepts Lessig's analysis of the uniqueness of cyberspace but argues that his conclusion also require two further premises, ones that are not obviously true but are treated by Lessig as if they were. One is that economic competition always results in oligopolistic concentrations of power. The other is that the only procedure that can carry out the needed rational reflection is collective decision making of the sort that is sustained by political organizations. The market aggregates the private decisions of individual consumers and producers and, in so doing, can embody the relevant sorts of rational reflection.

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