Dr. Matthias C. Kettemann, LL.M. (Harvard), is postdoctoral fellow at the Cluster of Excellence“Normative Orders” at the University of Frankfurt (Germany) and lecturer at the Institute of International Law and International Relations of the University of Graz (Austria). Recently, he co-authored a book on Freedom of Expression and the Internet (2014). In this post, which is part of a larger research project he pursues, he presents some initial thoughts on how international law is relevant in establishing the normative order of the internet.
Lawyers like order. This is less a personal trait of lawyers than something that law students are trained in. They are made to like order and to think systematically. This is not a bad thing, as systematic thinking is usually to be applauded. However, when new areas of human sociality emerge, and ‘constitution-able’ social orders require regulation, path dependency will strike and the order of the new regime may look very much like the order of old regimes. But if the new regime exhibits novel characteristics – different stakeholder groups, transnational privatized standards-setting processes, and peculiar legitimacy narratives – then lawyers may have a problem. New thinking is required – never more so than with regard to the internet and its governance.
This systemic deficit in legal thinking has to be addressed and overcome in establishing the normative order of the internet. Such an order is necessary because, as Malcolm N. Shaw put it so well, “[i]n the long march of mankind from the cave to the computer a central role has always been played by the idea of law – that order is necessary and chaos inimical to a just and stable existence.” Of course, there is a broad variety of normative gradations between chaos and order.
Two recent developments regarding the normative order of the internet…