Printed Law's Abstractions

Second, precedent and the supreme rule of printed law presuppose the creation of certain criteria that can be used over time to ensure predictable results. One created and identified, these criteria engender the "rule of the case." To succeed, such criteria cannot be too fact­dependent, because precedent and the rule of law command that such criteria be applied universally, in ways that transcend individual experience. This selection process is aimed at producing uniform rules, which, when uniformly applied, should produce predictably uniform results. Thus, in the realm of print law, there are principles, precepts, and canons that do not necessarily depend on a variety of particularized contexts.

Precedent and the supreme rule of law must also harness the body of decisional law in the same way that they initially harnessed the facts and reasons of a single case. That is, once the number of individual decisions multiplies, the cases themselves must be categorized, organized, made systematic, and framed, as the great treatise writers understood. ¹⁴³ Once made systematic, the body of precedent can then be packaged for future use. Thus, in creating and applying precedent, the rule of "red hats" emerges from abstracting and organizing a series of past texts.

We can observe, then, two levels of abstraction operating in printed law. First, facts and reasons are abridged to suit the typographic text. Second, rules lacking any axiomatic connection to those facts are derived from the text to govern future cases. In light of these features, what does printed law's "supremacy" mean? Generally, it means that the law will dominate all that is personal and subjective, particular and disorganized, fluid and open­ended. It means that the printed text typically will overpower and subdue context. The typographic word enhances all of the values associated with the supremacy of law­uniformity, predictability, universality, and analytical applicability of printed commands. ¹⁴⁴ With its systematic categories and abstract concepts, typographic law emphasizes detached and logical analysis. Not surprisingly, the patron saint of English jurisprudence, Sir William Blackstone, is the prototypical "Typographic Man"­dispassionate, devoted to reason, and intolerant of incongruities. ¹⁴⁵

The model of contemporary law remains largely print­based. Accordingly, text typically is the starting and ending point. We may accept or reject the text, interpret and even misinterpret it, but we must first and last deal with it. In the emerging era of paratexts, we can expect some dimensions of legal activity to remain print­based. For example, internal revenue statutes, federal election campaign regulations, state insurance laws, and municipal zoning ordinances are unlikely to be enframed by paratexts. But as the camera enters the courtroom and legislative committee rooms, as paratext "transcripts" replace typed ones, or as the "four corners" of a will or contract unfurl beyond the printed page, law will enter a different interpretive age. In its print arenas, the life of the law is linked inextricably to the fact situations to which it is applied. As paratexts capture these fact situations, they will be altered dramatically. In short, paratexts will substantially reconfigure the dynamic between law and facts.