Written Proof - Burdens of Proof - page 119

technology and social norms must be assumed to be regulatory practices.” 65
That is, in achieving an optimal mutual orientation toward regulatory
goals, each must accommodate its own particular mode of existence to the
superior cause of regulation. In the case of digital signatures, for example,
the law should have accepted the potential sacrifice of some legitimacy in
the service of the greater good of mass adoption of public-key technologies
and the badly needed security these might have afforded the Information
Society.
Indeed, Alder's historical account of the deficient forensics of handwrit-
ing analysis suggests that over time, the law might have come to accom-
modate the presumed trustworthiness of cryptographic signatures in spite
of its uncertain qualities. But French law's reliance on written proof can
be understood only on account of its overall reliability, as determined by
hundreds of years of litigation, along with the resulting case law and
scholarly debates—in other words, determined by the modes of delibera-
tion and being in the world that uniquely define law as a social practice.
To presume the reliability of cryptographic signatures a priori, without the
benefits of these processes, is an altogether different proposition.
Is it thus not possible that Judge Easterbrook was not being flippant
when he suggested that doing nothing is the precondition to the creative
response of law to technology? That, as Gutwirth, de Hert, and Sutter
further suggest, “It is only if we let technologies develop themselves to
the point where they become actually problematic that lawyers can inter-
vene and add their own appreciation to the picture”? 66 Indeed, it is a
remarkable characteristic of the reform described in this chapter that it
occurred prior to any actual litigation over digital signatures. One conse-
quence of such an a priori process and of Lessig's approach in general is
that it “does not give a chance to the unexpected possibilities that can
emerge from the development of the new technologies that he wants to
regulate. Neither does he give a chance to the unexpected creativity of
the other practices that will come to grips with these technologies.” 67 The
next chapter is thus concerned with tracing the path of digital signatures
as various professional groups—notaries, officers of civil status, land regis-
try judges—sought to integrate them within their daily business routines,
and indeed, came to grips with their constraints and possibilities in creative
and unexpected ways.