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Towards Evolving the Philosophy and Theory of Cyber Law: A Foundational Treatise
ABSTRACT
Jurisprudence is the science and philosophy or theory of the law. Cyber law is a very new concept and has had, compared with other, older, branches of the law, little structured study. However, we have entered the cyber age and the law - on all fronts - is struggling to keep pace with technological advances in cyberspace. This research explores a possible theory and philosophy of cyber law, and, indeed, whether it is feasible to develop and interpret a body of law that addresses current and emerging challenges in cyber space.
While there is an expanding discussion of the nature of cyber law and its challenges, a significant body of scholarly contributions to the discussion is lacking. Focus, in the main, is on the practical aspects of cybercrime rather than the theory, philosophy and science of cyber law generally. We seek to define, as a contribution to the discussion, the jurisprudential aspects of thinking about cyber law. Specifically, we seek to develop a broad measuring stick that can be applied to cybercrime as well as to legal constructs outside of cybercrime (tort, contract, international, etc.). This paper sets the foundational starting point for the research in progress by establishing a context for cyber jurisprudence.
Keywords: cyber, crime, tort, jurisprudence, law, cyber law, cybercrime, cyber science
1. INTRODUCTION
No disscussion of cyber law can begin effectively without defining a baseline of terms. Cyber law itself is not well-defined and, in fact, it is conceivable that, from a practical perspective, there is no such thing.
For example, Murray in his paper "The Law of the Horse" is quite clear that we should reason from the general to the specific and that we learn more about the specific by understanding the general case. (Murray, 2013) Murray recalls a talk in which the question arose as to whether there needs to be a law of horses.
He notes that there are laws relating to horse racing, veterinary care of horses, laws relating to being kicked by a horse, and quite a few others. "Should there be," he asks "a general law of the horse to cover all of these situations under a single heading?" His...