Hacker Legal Education

In my Jotwell review of Coding Freedom, I commented that “Coleman’s portrait of how hackers become full-fledged members of Debian is eerily like legal education.”

[T]he hackers who are trained in it go through a prescribed course of study in legal texts, practice applying legal rules to new facts, learn about legal drafting, interpretation, and compliance, and cultivate an ethical and public-spirited professional identity. There is even a written examination at the end.

This is legal learning without law school. Coleman’s hackers are domain-specific experts in the body of law that bears on their work. It should be a warning sign that a group of smart and motivated lay professionals took a hard look at the law, realized that it mattered intensely to them, and responded not by consulting lawyers or going to law school but by building their own parallel legal education system. That choice is an indictment of the services lawyers provide and of the relevance of the learning law schools offer. A group of amateurs teaching each other did what we weren’t.

Their success is an opportunity as well as a challenge. The inner sanctums of the law, it turns out, are more accessible to the laity than sometimes assumed. One response to the legal services crisis would be to give more people the legal knowledge and tools to solve some of their own legal problems. The client who can’t afford a lawyer’s services can still usually afford her own. More legal training for non-lawyers might or might not make a dent in law schools’ budget gaps. But it is almost certainly the right thing to do, even if it reduces the demand for lawyers’ services among the public. There is no good reason why law schools can only impart legal knowledge to by way of lawyers and not directly.

Hacker education, however, also shows why lawyers and the traditional missions of law schools are not going away. Law is a blend of logic and argument, a baseball game that depends on persuading the umpire to change the rules mid-pitch. Hacker legal education, with its roots in programming, is strong on formal precision and textual exegesis. But it is notably light on legal realism: coping with the open texture of the law and sorting persuasive from ineffective arguments. The legal system is not a supercomputer that can be caught in a paradox. The professional formation of lawyers is absent in hacker education, because theirs is a different profession.

Legal academics also play a striking role in hacker legal education. Richard Stallman was of course the driving personality behind free software. But Columbia’s Eben Moglen had an absolutely crucial role in crafting amending the closest thing the free software movement has to a constitution: the GNU GPL. And Coleman documents the role that Larry Lessig‘s consciousness-raising activism played in politicizing hackers about copyright policy. They, and other professors who have helped the free software community engage with the law, like Pamela Samuelson, in turn, drew heavily on the legal scholarly tradition even as they translated it into more practical terms. The freedom to focus on self-chosen projects of long-term importance to society is a right and responsibility of the legal academic. Even if not all of us have used it as effectively as these three, it remains our job to try.

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3 Responses

  1. The constitution was crafted by Stallman the hacker before he met Moglen. Moglen has greatly helped the free software movement, but in a different way.

    Stallman wrote the original GNU GPL in 1989, with legal assistance from Gerry Cohen for the original version and for the relatively small update that became version 2 in 1991. For the more thorough update in 2006 that produced version 3, Stallman got legal assistance from Eben Moglen.

    In terms of “writing the constitution”, the principles were almost entirely Stallman. Moglen’s contributions to version 3 of the GPL were that he reviewed the wording of the licence to integrate improvements based on 16 years of using it, and he translated Stallman’s new additions into legalese.

    That said, anyone who knows the licence knows that I’m not belittling Moglen’s contributions. It’s an immense legal task to write a single licence which has to work in every country around the world, to do things that are outside the intended purposes of copyright law, and to do all this while solving modern problems while using words that will continue to work in the future.

    Moglen also coordinated some large chunks of the consultation process, set up a free software law firm, and is one of the absolute best public speakers on free software.

  2. Thanks for the clarification. That’s a much better explanation than I gave.

  3. Gabriella Coleman says:

    I can’t recommend Chris Kelty’s chapter on the copyleft enough as well. It gives a lovingly detailed history about the controversies that led RMS to fight the law with the law. One of my all time favotite chapters on the history of free software:

    http://twobits.net/discuss/chapter6/20