Heritage Status for Legal Systems: Preserving History While Embracing Legal Innovation
In 2019, The Strand bookstore in New York and the building it inhabits were granted heritage status by the city’s Landmarks Preservation Commission, and they threatened to sue the city in response (the story was widely reported, here is a story from the Guardian). The owner’s concern was that the administrative requirements associated with the designation would be onerous and that the bookstore might not be viable with them. They said this is especially relevant given the competition from online retailers like Amazon.
The Strand is still in business, but the reason this matters here is recognizing that legal organizations, whether they are courts, legislatures, firms, publishers, libraries, or something else, all have to deal with the responsibility of dealing with extended timelines. Essentially, they all have to act like they have heritage status.
Many of those organizations do recognize the requirements they face to ensure that they place what they do in context, which frequently requires long time scales. I hope they also recognize their commitment to posterity, and that they don’t make decisions based on short term needs that will not serve communities over the longer timescales that governance requires. In law libraries for example, it is not uncommon to have requests for information that dates from the 1940s, 1860s, or even the 1730s. Much of this information is available online, but frequently it lacks core details such as regulations being posted electronically without the appended visual material, such as maps, which still require a trip to the library’s basement to access.
Practitioners of different scientific disciplines work to position themselves against each other and don’t always understand the issues that affect research outside their own experience. Some subjects, such as chemistry and physics, attempt to isolate particular processes, with the goal of understanding the underlying attributes of nature. This isn’t always possible for other subjects, such as geology or ecology. The passage of time brings so much randomness that it is impossible to control all the variables that may affect results in the ways that researchers might like. If they did so, they wouldn’t be studying geology or ecology any more. Marcia Bjorerud’s book Timefulness: How Thinking Like a Geologist Can Help Save the World discusses this at length. If you prefer audio-visual content, you can watch Dr. Bjorerud speak about this topic for The Long Now Foundation here:
There have been many times in the past when the needs of the present and posterity were not met and which continue to present problems. To give a specific example that’s local for me, it used to be a common practice for restrictive covenants to be placed on land titles to restrict ownership to certain ethnicities in some neighbourhoods in British Columbia. They are no longer legally enforceable, but it is understandable that people don’t want them to be on the deeds at all, and removing them is an ongoing issue (this was reported in National Post and North Shore News).
This is just one example of a distasteful historical event that is reflected in the law, which can’t be taken in isolation from its historical context, because the law is continuous and has been built over time. As we continue to integrate technology more intimately into our work in novel ways, we are creating new ways for issues to emerge. I hope that these issues will be considered by both the developers and users of legal technology. Communities that don’t value their heritage lose a great deal, but balancing these needs with those of the present is also difficult and the need for new processes can’t be ignored.
(I also wrote about time and the law in my Slaw column from January 2023.)
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