The Prophets of the Present
Having found out about Oliveira Ascensão's e-book (this blog post), I didn't resist reading the article on cyberspace (2001). In its conclusion, Oliveira Ascensão presents us the following reflection:
Sometimes, when I hear the justifications of economists, I wonder whether they are not the prophets of the past. They explain everything, but predict nothing. The Far East crisis? It had to happen, given the indebtedness of companies and other factors... But nobody predicted it. You make a prophecy of the past.
But aren’t we jurists, after all, living under the temptation of being the prophets of the present?
Do we not tend too much today to explain and comment on what is happening, and thus to sacralize, presenting it as an irreversible fact, a development in progress? Do we not take factors such as globalization as dogmas, presenting a historical sense as fatal, and thus making us lose sight of the alternative that is intrinsic in everything that happens?
The future is always open. It is not the jurist’s job to be the herald of what happens, but rather to be a builder of a balance of factors that truly serves the society in which he or she is inserted.
By merely explaining what happens, the jurist is a “prophet of the present”. He betrays the true prophetic function or the construction of the future, which it is his duty to perform.
This is something that have been bothering me for some time. Like a small stomach ache which appears every time some specific topics come up, with the only visible symptom being some subtle signs of irritability I sometimes fail to suppress (I'm usually good at hiding this, so you can imagine how it gets on my nerves).
Ascensão's point is about copyright, I'm making it more general. In Law & Tech, there are certain topics in which sticking to an absolute academic "neutrality" is not ok - and is beyond what I can endure, I realized this over the past two years. I know that few people will have a list as big as mine of which topics they'd include in here, and I don't intend to start discussing the 50 shades of highly dubious technologies. However, in a time of great technological development, it is the jurists' duty to be critical. Neither technology nor the law are unquestionable or set in stone, in particular when they are recent and first-attempts to offer solutions to new problems. Regulation cannot be left to the economic forces who drive innovation nor to the engineers who develop it; lawmakers, in turn, often have the worst profile for the job, besides being easy prey for other external influences. With what I've witnessed over the last years, in some areas it's just safer to assume that new legal solutions are - by default - less than inadequate.
Academia also has its problems, of course. But it's the place to be critical of these solutions. If all you ever do, as a jurist, is to describe the amazing technological advances and the new problems they raise, and then describe the solutions the law provides and just discuss minor legal interpretation or integration issues, you're not a Jurist. You're a Prophet of the Present. You're knowledge being wasted.
There are a lot of problematic technologies out there. They aren't / won't be victimless, they make real damage to real people. If you do not question the solutions, if you do not have an hint of a voice or vision on the issues, you endorse them. If you thought you were being academic neutral, well... you were the exact opposite.
This applies outside the academia as well, mutatis mutandis.
ASCENSÃO, José de Oliveira. O direito de autor no Ciberespaço. In: ESTUDOS sobre direito da Internet e da sociedade da informação. Coimbra: Almedina, 2001. p. 139-171. Translated as "Author's Rights in Cyberspace", by Érico Prado Klein.
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