Th Legal System and Knowledge Management

By Montana, John C. | Information Management, July 2000 | Go to article overview

Th Legal System and Knowledge Management

Montana, John C., Information Management

Knowledge management (KM) has been defined as a discipline focused on systematic and innovative methods, practices, and tools for managing the generation, acquisition, exchange, protection, distribution, and utilization of knowledge, intellectual capital, and intangible assets, according to Bryan Davis of The Kaieteur Institute for Knowledge Management. As such, KM represents both a conceptual leap in organizing information resources and a way of extracting additional value from them. This article examines one such set of information resources and the potential for applying KM to it.

In the age of knowledge management, law stands out as an anachronism. On one hand, law is entirely man-made. There are no hidden physical principles or great unknowns, and no lost body of knowledge. In theory, law -- its principles, outcomes, and the entire body of its text -- is completely knowable, down to every jot and tittle. A person researching some question of law ought to be able to quickly and easily derive an answer with certainty.

In reality, nothing is further from the truth. You can research a question of theoretical astrophysics far more easily, and derive an answer far more certain, than is possible with a moderately complex question involving the United States tax code. The reasons for this are steeped in history.

Anglo-American law is very old. In its beginnings, there was no organization at all. Local customs and mores and the local court that implemented them (collectively, the common law), plus the odd decree promulgated when the sovereign saw fit, were the entire body of law. There wasn't much of it altogether, and it was simply universally recognized and acknowledged. Organization, finding aids, and management were not needed. Even when things got a bit more complex, with statutes and other formal enactments, as well as court cases cited as precedent and recorded, there still wasn't much organization. Whatever existed got announced in court, and perhaps a written opinion was issued to the parties. Researchers interested in discovering what law might exist were left to find things as best they could. Whatever the state of the knowledge -- and clearly there was some, for that old case law is still with us and is frequently still good law -- there was certainly no management of it to speak of.

Law is a conservative calling steeped in its own traditions. In particular, the concept of precedent, or deferring to prior practice, is revered now as then. Once in place and blessed with the mantle of prior practice, making law, then making virtually no attempt to publish it to the world, became the way to do things. Only the direst of circumstances forced any change.

The practice continues into the present: courts issue decisions which are placed into case reporters in decision order, leaving the layman utterly baffled as to how to find anything. Our current sovereigns, in the form of various legislatures and parliaments, do the same. A year's statutory enactments are bound into a volume of session laws or unconsolidated statutes in bill number order, which only persons absolutely desperate to find the original language of an act -- and with lots of time on their hands -- dare venture into. Only later does the codified version placed into the codified laws of the jurisdiction appear.

The First Knowledge Management

Even 200 years ago, this state of affairs caused problems. Law is based on the predictability and order of social affairs and on the articulation and uniform usage of legal and judicial principles. The point of law is to direct society toward these things. This is the value of precedent: case decisions and prior practice presumably reflect these values and guide later courts and parties.

Unfortunately, while the ability to cite precedent was well and good, finding out what precedent existed was very difficult. This became particularly acute in the United States, where vast geographic expanses made communication with distant courts next to impossible in a pre-electronic, pre-telegraphic, pre-railroad society. …

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