1.4.1. Rules

The most common typology of rules divides them into moral rules and legal rules. To the legal positivist, legal rules have no necessary or inevitable relationship with moral rules. A legal rule is simply a binding and enforceable obligation, regarded as law, that has been posited through a political process by a body politic, to whom obedience to the legal rule is owed.[1] This position is too stark for the natural lawyer, who argues that there are also certain rights and duties that exist as legal rules whether or not they are recognised by the state (for example, fundamental human rights); and similarly that there may be purported legal rules that contravene natural law on substantive or procedural grounds, and thus do not qualify as law at all.

The relevance of this is that there is some debate as to whether rules of international law actually constitute legal rules, or whether they are simply principles of positive morality. This question is raised largely because international society lacks the means to enforce the rules that it makes.[2] One way of accommodating this fact, without granting the status of law to the natural lawyer’s supra-legal moral rules, is to accept a division between “hard law” and “soft law,” whereby hard law is binding, and soft law is not strictly binding but is generally complied with in practice.[3] But without needing to impugn the status of unenforceable international legal rules as law, the question remains that if they are not enforced, are they of any use in exercising governance over the Internet? What good is an international law proscribing traffic in child pornography, if the law hangs in space as it were, unsupported by either police or judiciary?[4]

Domestic regulation is not a sufficient mechanism of governance for the Internet either, because as alluded to above, the Internet’s cosmopolitanism works against it. When the Australian Broadcasting Services Amendment Act 1999 was passed, with the effect that it became illegal to host X-rated pornography in Australia, and became necessary to provide an age verification system when hosting material that would have been rated R or MA if it were a film, the outcome was that some Web sites were simply relocated off-shore.[5]

Similarly, following passage of the Federal Government’s Interactive Gambling Act 2001 which prohibited online gambling services being offered to Australians, Australian online casino operators have continued to offer the same services to foreigners, and foreigners to Australians.[6] Such legislation effectively has no more than rhetorical value, and even if replicated in a handful of like-minded countries, hardly makes for a global Internet governance regime.

Another problem associated with the use of legal rules, if another is needed, is that the imposition of hierarchical control sits poorly with the Internet’s decentralised and egalitarian culture, generating such resistance as has widely emerged online over issues such as the US Digital Millennium Copyright Act.[7] For this reason and those expressed previously, legal rules alone will rarely be the most appropriate mechanism for exercising governance over Internet public policy issues.

Notes

[1]

Arend, Anthony C, Legal Rules and International Society (1999), 22. The author adds three other types—rules of etiquette, rules of the game (essentially informal, tacit agreements), and descriptive rules—but for present purposes these will be treated as norms, and discussed below.

[2]

D’Amato, Anthony, The Neo-Positivist Concept of International Law (1965); Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003) , 75

[3]

Arend, Anthony C, Legal Rules and International Society (1999), 24. See Section 3.3.2.

[4]

In answer, it might still have normative effect, but this is the subject of the next mechanism of governance to be discussed below.

[5]

For both an example of such a site, and an explanation of why it was moved, see http://www.efa.org.au/Publish/PR991221.html.

[6]

See http://www.lasseters.com.au/help/lassfaq.jsp and http://www.australia-casino.com respectively.

[7]

See for example the resources of the EFF at http://w2.eff.org/IP/DMCA.