Print Archetypes for Anglo-American Jurisprudence

We can learn much about law in the early days of typography by considering one of the most famous enactments of the period, the 1677 English Statute of Frauds. ¹³⁷ As stated in its preamble, ¹³⁸ the printed statute targeted those frauds lurking behind oral testimony given under oath in court. ¹³⁹ It did so by replacing the regime of living memory with the rule of lifeless print. Under the statute, not even the testimony of twenty god­ fearing bishops ¹⁴⁰ could save an oral contract, an oral will of personalty, or an oral transfer of land. By equating perjury with orality, and truthfulness with writing, the statute reflected the legal mindset associated with the typographic age: If the "reality" is not fixed on the page, the law will not recognize it. This is a world controlled by form; yet in such a theoretically inflexible world, it is not surprising that in time the Statute of Frauds would be riddled with exceptions. ¹⁴¹

To this day, archetypal notions of Anglo­American jurisprudence­the force of precedent, the rule of a reasoned decision, and the supremacy of law­are linked to print. For example, the very notions of "binding precedent" and "supremacy of law" are premised on the extraction of a "rule" from a past account of legal reality (i.e., a past account of legally recognized facts and reasons) in order to control a future account of legal reality. Critical to the enterprise of binding precedent is the fact that such accounts are provided in printed texts.

The format of the printed text enframes the process of creating and identifying the legal reality in at least two important ways. First, the enterprise of creating and identifying legal reality succeeds or fails proportionately to the amount of "context" compressed into the printed text. The print requires selecting out only information that is recordable and suitable to its medium. The more context that is included, the more unwieldy the process of deriving and applying an operational rule becomes, and the more precedent falters. Precedent works most effectively when it manages a small and closed universe of particular facts and reasons. For example, those trained in the printed law understand that in creating precedent, the rule of "red hats" will easily govern other "red hat" circumstances, but the rule of "red hats, white shirts, black pants, and brown shoes" will likely be confined to the facts of a single case. Those trained in the printed law also understand that in applying precedent, a case stands or falls depending on the extent to which all of its context can be characterized as a "red hat." ¹⁴² In the oral tradition, voices said and eyes saw more than "red hats"; they heard and viewed the entire human experience. Yet in the printed world, with its power to abstract legal reality from the entirety of experience, we hunt only for "red hats."