Open Government and Open Science – facilitated by “Open Law”

by Julian Staben

The initiatives Open Government and Open Science demand the opening of political and scientific processes. While Open Science proclaims the opening of steps of scientific work to the scientific community and interested laymen, the closely related idea of Open Government labels the respective sister phenomenon for the area of governance.

But what is the importance of law for these transparency or opening phenomena?

Both initiatives are relying on access to law as a means or the object of their respective processes. Open Government claims that citizens in a democracy should have unobstructed access to norms and measures they are bound to and affected by in order to be able to open a dialogue about this with their representative and maybe be able to change it.₁ Open Science itself welcomes the unrestricted access to the object of research – in this case legal studies. Accordingly, in order to open science and governance the law would have to be open.

In continental European legal systems written statute law prevails in most areas of law.₂ Both phenomena are therefore dependent on access to relevant statutes. Of course, actors in these areas can always acquire edited statute books with the most important acts of law in the respective bookshops and many German laws are for instance available via www.gesetze-im-internet.de. But both options are either expensive or fall short of the manifold possibilities of the combination of law and technology.

Now, what are the possibilities to make the law more accessible to these movements?

An initiative that is dedicated to increasing the accessibility of law, is the project BundesGit run by Stefan Wehrmeyer. It is the aim of the project to digitally prepare all German federal acts of law in order to expand the (technological) possibilities of processing them. If one assumes that Lawrence Lessig’s claim “Code is Law” is correct, then sometimes “Law is Code” might be correct, too. Therefore, Stefan Wehrmeyer uses the collaborative vision control system GitHub, which is normally used by programmers to upload their code and make it accessible to the public. Changes can be tracked using the version control. This already creates the conditions for the first possible use of the platform that is of legal academic interest: Changes in the law and single provisions taking place over years and decades can be made transparent to the user with simple tools. An interactive visualisation of the changes to the German Political Parties Act can already be found.

But the project also offers interesting opportunities for the legislative process, if the possibilities were embraced by the German Bundestag. All the different drafts and changes made in the course of legislation could be tracked and made transparent. References rendered superfluous by amending laws – the “error 404” of statutory law – could be prevented from early on. If a draft for a law has been suggested in an area of particular interest to a person, this person could be notified about possible changes in the law enabling them to participate in the discussion about the law. Passed and effect taking laws could be directly updated in the user’s device. The bothersome updating of loose-leaf statute books would be a thing of the past.

Furthermore, this offers much more profound possibilities to a lawyer’s everyday life embodying the idea of Open Science: Legal provisions could be linked to court decisions, papers and statute annotations published online.

These at the present time rather theoretical opportunities aside, the statutes are at the moment layouted in a quite readable way compared to other online sources. Even the Banana Quality Norm Regulation looks inviting to read in a way.

However, German law students will not take their tablets or notebooks with a BundesGit-Application to exams instead of their “Schönfelder” or “Sartorious” statute books in the foreseeable future. But in the long run the possibilities of the platform – maybe one day with the support of the Bundestag itself – will be used by academics, practitioners and interested laymen alike putting the ideas of Open Science and Open Government into practice.

₁ About transparency and democracy Schauer, 2011 U. ILL. L. REV., 1348.

₂ At this point this blog entry cannot focus on the practically not much less relevant access to court decisions

This post is part of a weekly series of articles by doctoral canditates of the Alexander von Humboldt Institute for Internet and Society. It does not necessarily represent the view of the Institute itself. For more information about the topics of these articles and asssociated research projects, please contact presse@hiig.de.