Cryptography Reference
In-Depth Information
Under the 1980 reform, admissibility could only be granted as excep-
tions to written proof—either by arguing that electronic documents were
admissible as prima facie evidence, as copies for which originals no long
existed, or as falling under private proof conventions. Such exceptions
effectively assigned electronic documents a lower status in the proof hier-
archy. Admitting electronic documents as full-fledged means of proof
seemed to require a more thorough reworking of the system than provided
by the reform, one that would address head-on the deeper questions raised
by nonpaper writing.
In 1988, Jacques Larrieu, a law professor at the University of Toulouse,
published an extensive and influential analysis of the issue with a surpris-
ing conclusion. Larrieu argued the probative value of a particular evidence
had historically never been based on its intrinsic technical qualities. Rather,
the probative value of a written document is inferred from the qualities of
its author (e.g., a representative of the state), the forms and procedures
required for its production, and the severity of the punishment threatening
those who abuse it. Following Levy-Bruhl's sociological analysis, Larrieu
argued that the preeminence of writing in French evidence law could not
be explained by its material qualities but rather by the extensive symbolic
capital it enjoys in French culture and the far-reaching protection it is
afforded by the legal system.
22
Granting electronic records the same evi-
dential value as paper-based writing would plausibly heighten their sym-
bolic worth, but legislative intervention by itself would not suffice “to
grant to these modern techniques the 'social endorsement' which alone
can establish confidence in a means of proof.”
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It is with these considerations in mind that in November 1996, the
Ministry of Justice entrusted a small group of prominent jurists with the
task of outlining a possible reform of evidence law fully integrating elec-
tronic documents within its scope. One year later, the group submitted a
proposal for a bill “relative to the adaptation of evidence law to new tech-
nologies,” which began circulating in October 1998 as an
avant-projet
de loi
.
Defining Writing
The group noted with Larrieu that arguments for or against reform did not
primarily focus on the technical issues of affording legal recognition to
electronic documents. Rather, they sparred over the need to foster trust in
