The Digital Decision – a rationale

Modern judicial theory requires that an adjudicator give reasons for why it is that a particular decision has been reached.¹ Judicial analysis requires the isolation of a principle of law and its applicability to a certain set of found facts. Any person (including an appeal court) reading a judgment should be able to clearly ascertain WHY it was that a Judge came to a particular decision or WHY a judge made a finding of fact.

The form of expression of reasons has been in a written representation of which used to be articulated from the Bench, collected in reports for future reference and for any precedential value that may attach to the decision. The printed law reports are still seen as a primary authority although case law is also accessible through various databases which may be accessed through the Internet. The volume of cases, and therefore the identification of a wider variety of fact scenarios, has increased dramatically.

Yet the basic reasoning process remains. Irrespective of the means of access to court decisions, the value in such decisions is in the process by which the Court found certain facts and applied an identified legal principle to them.

We take printed case law for granted. It was not always so. Edmund Plowden was motivated more by reputation than altruism when he printed his Commentaries in 1571. Edward Coke was initially hesitant about printing his Reports in 1600 but his enthusiasm increased over the years. By the time of the decision in Entick v Carrington,² printed law was a given. The new technology had become accepted and case law in print was the norm.³ Thus the expression of cases in text, while utilizing the properties of print such as standardization, dissemination and volume, was limited by the other properties that were inherent in the print based technology – essentially a two dimensional text based system utilizing a particular medium – paper. It is for this reason that the judicial reasoning process has been a text based representation of what might otherwise have been articulated from the Bench. The reasoning process is constricted by the ability to use language to articulate the outcome.

In the same way that print enabled the widespread dissemination of large numbers of volumes of standard text law reports – all of which had been impossible in the manuscript paradigm – the digital paradigm allows for similar text based information with greater ease and in larger quantities and also has inherent within it additional properties that are available for the expression that underlies the judicial decision.

One of these properties is the ability to incorporate material in addition to text in a digital “document” such as illustrations or “multi-media” such as audio or video. This means that a digital “document” is not constrained by a fixed hard copy medium and the two dimensional restrictions of print and in fact enhances the ability to use additional tools to communicate or articulate the reasons for a decision.