Hildebrandt’s chapter ‘Text-Driven Jurisdiction in Cyberspace’ will be published in Transformations in Criminal Jurisdiction: Extraterritoriality and Enforcement, edited by Micheál Ó Floinn, Lindsay Farmer, Julia Hörnle, and David Ormerod QC with Hart Publishing.

This paper informed Hildebrandt’s opening keynote at the W.G. Hart Workshop on ‘New Perspectives on Jurisdiction and the Criminal Law’ organised by the Institute of Advanced Legal Studies 26 April 2021.

Abstract

In this paper I further develop a philosophy of technology for law and the rule of law, more specifically for the role of territorial jurisdiction in the protection against crime and against arbitrary use of the ius puniendi. In the face of the code- and data-driven nature of cyberspace I will discuss modern positive law as based on a text-driven jurisdiction and the main argument of the paper is that we cannot take for granted that the kind of legal protection that is offered by a text-driven criminal jurisdiction will hold in the context of cyberspatial challenges. In the first section, I investigate how modern positive law-as-we-know-it was triggered by the technologies of cartography and the printing press, arguing that both modern democracy and the rule of law are affordances of these technologies, as they enabled the rise of an exclusive, monopolistic territorial jurisdiction. In the second section, I explore the scope of written legal speech acts, integrating speech act theory and philosophy of technology, explaining how the substantive and procedural principles of criminal law legality depend on the performative effect of written legal speech acts, highlighting their connection with the rise of territorial jurisdiction and the creation of an artificial, modern demos. In the third section, I discuss the new challenges of competing territorial jurisdictions that claim legal powers outside their territory, coupled by the challenges posed by new types of ‘brute jurisdictions’ that are based on the force of technological infrastructures that may overrule the performative effect of written legal speech acts. In the conclusions I call for keen attention to which affordances of cartography and the printing press we need to preserve in cyberspace to uphold criminal law principles such as the presumption of innocence, the right to a fair trial and the legality principle, taking note that preservation will require reinvention and imagination rather than taking for granted the mode of existence of text-driven jurisdiction.

A pre-print can be found here.