Written Proof - Burdens of Proof - page 118

presumptions imply that if a party must bear the burden of proof, it is
because it tries to prove a situation contrary to the presumed acceptable
norm. 61 Yet presumptions must be used sparingly: “The authority of pre-
sumptions depends in effect that the conception of the social world they
express must be identical or sufficiently close to that of the recipients of
legal discourse. If these are not convinced of the probability of the solu-
tions imposed to them, the judicial institution runs the risk of being
thrown back to its own ideology, which litigants might then feel authorize
to contest.” 62 In a polyandrous society, for example, the classical presump-
tion of paternity would have little basis.
The presumptions used to induce trust in digital signatures proceed
from a slightly different logic, however, because they are not grounded in
any empirical sociological truth. Indeed, as evidence law reform swept the
planet in the late 1990s, no one had ever used digital signatures to secure
a single e-commerce transaction, let alone gone to court over them. 63 The
presumption of trustworthiness could be based only on the technocratic
processes of evaluation of the conformance of technological devices with
standardized requirements. Yet the path between such processes and a
widespread perception of “trustworthy” transactions is far from obvious.
The layers upon layers of bureaucratic approbation necessary for a signa-
ture mechanism to qualify for the presumption are no less opaque and
require no less of an act of faith from litigants and judges than trust in
cryptography itself. In a very real sense, then, like handwriting analysis,
the efficacy of cryptography as a forensic technology could only be pre-
sumed to work, with little to no empirical evidence to show for it.
In fact, the “tried-and-trued” common sense that might form the basis
of a presumption would tend to point in the opposite direction. Every
media report on new breaches and threats to cryptographic systems—and
they are a regular occurrence—also threatens the credibility of the pre-
sumption. 64 Hence, in using the Civil Code “to pilot the economy,” legisla-
tors were asking the law to put at risk one of its most precious assets: the
legitimacy that founds much of its authority. Is it any wonder then that
French judges ultimately hesitated to tie their conviction to the putative
trustworthiness of highly complex technical systems, whose large scale
deployment remains—for both makers and users—uncharted territory?
All of which brings us back to Lessig, code, and regulation. Gutwirth,
de Hert, and Sutter have pointed out that in Lessig's theory, “law, economy,