Paratexts vs. Print

Four decades ago, Professor J.Z. Young observed that "[i]t is important to realize that great changes in ways of ordinary human speaking and acting are bound up with the adoption of new [technologies]." ¹⁶ This observation is especially true in the legal world, where paratexts are rapidly affecting the Gutenberg mindset of the printed word. The legal community's fixation on print has caused it to overlook the jurisprudential significance of new technology and of the production of electronic legal texts. While those on the bench and bar and in legal academia quarrel over the interpretation of printed documents and debate the weight to be given extrinsic oral evidence, ¹⁷ we question their continued preoccupation with the printed page, given the increasing use of paratexts.

Indeed, the importance of the changes that occur with new technologies cannot be understated. The paratextual era will be profoundly different from the print era it now challenges. In the typographic world, legal interpretation centers on the printed text's control of the context ¹⁸ of social relations. The printed page­with its unchanging form, linear structure, and conceptual abstractions amenable to rational processing­reduces and frames the context of "reality" ¹⁹ in a manner that effectuates the rule of law. In the electronic world, however, text and context are preserved and replayed as never before. Paratexts release legal reality from the confines of the printed page by representing more fully the oral dimensions of legal events and by introducing their visual element. As a result, paratexts enframe legal reality by throwing unruly context into text, thereby particularizing our legal experience.

Paratexts thus challenge our most fundamental understandings of law, its application, and its very institutions. For example: What will be the legal significance of paratexts in relation to their printed counterparts? How will paratexts affect the legal interpretive process? How will paratexts change the character of legal institutions? What will paratexts do to the institution of precedent? And, finally, will the rule of law and supremacy of law traditions be altered substantially in the paratextual era? In what follows, we explore these and other questions. To help the reader understand the implications of the paratext phenomenon, Part I provides a historical sketch illustrating the influences on law of the movements from orality to scribal writing, and then to print. Against this background, Part II suggests ways in which paratexts may bring about new roles and rules of law by their effects on legal interpretation, institutions, and theory.