Written Proof - Burdens of Proof - page 94

with the technical possibilities of paper, ink, and signature, and litigation
proceeds on the basis of considerable tacit knowledge about their relation-
ship. Indeed, law is “predominantly a textual enterprise” and paper, ink,
and signatures are the material technologies from which the legal process
itself is crafted and ultimately signals its authority. 8 Furthermore, as docu-
mented in the previous chapter, the cryptographic signature model brings
its own expectations to the litigation process and its own understanding
of itself as a forensic object.
This chapter provides an on-the-ground account of evidence law reform
from the vantage point of the French system. I trace the process starting
with the 1980 reform, a reform that sought to account for the expanding
reliance of the business world on photocopies, faxes, and microfilms, and
for the challenges these new documentary technologies presented to the
courts. The 1980 reform is significant because it introduced evidentiary
presumptions as a potential solution to the problem of ascertaining the
trustworthiness of the mechanisms that produce and mediate access to these
documents. I then survey the discussions that took place among French
legal scholars through the 1980s and 1990s over the necessity of a more
extensive reform that could fully account for born-digital documents.
These discussions were informed by similar ones occurring at the same
time within several international bodies, including the United Nations
Commission on International Trade Law, the European Union, and the
American Bar Association.
I conclude by tracking the proposed text of the 2000 reform through
committees and legislative bodies, and subsequent modifications to the
rules of civil procedure with respect to the admissibility of electronically
signed documents. Throughout, I pay attention to the conciliation of the
inner logic of cryptographic signatures with that of the French evidence
system—in particular, the role of evidentiary presumptions in providing
the glue for the realization in law of the principle of non-repudiation.
Contracts
Much of the conceptual structure and material practices of the French
evidential system can be traced back to Roman law. 9 As early as the early
first century AD, private parties began writing down the terms of small
contractual obligations—loans, sales, leases—on wax-covered wooden