Elec­tro­nic Data Pro­ces­sing (EDP) in Traf­fic Mat­ters (Lec­tu­re)

Elec­tro­nic Data Pro­ces­sing (EDP) in Traf­fic Mat­ters

Three ques­ti­ons at the begin­ning

Let me start with three pro­vo­ca­ti­ve ques­ti­ons:

- Is the­re any rep­re­sen­ta­ti­ve group of lawy­ers in Ger­ma­ny, which is real­ly enthu­si­astic
about com­pu­ters in traf­fic mat­ters or court cases in gene­ral?

- How fre­quent­ly do we come across the opi­ni­on that EDP should be imple­men­ted
as a mat­ter of princip­le rather than merely for prac­ti­cal pur­po­ses?

- Is it not the case that EDP has been met with a rather reluc­tant accep­tan­ce?

Ever­yo­ne will cer­tain­ly have their own ans­wers to such ques­ti­on. The­se ans­wers form the crux of the mat­ter when inves­ti­ga­ting the topic of EDP in Traf­fic Mat­ters, and it is necessa­ry to exami­ne them care­ful­ly.

Poten­ti­al and Neces­si­ta­ted App­li­ca­ti­ons

As is the case with any reflec­tion on tech­ni­cal mat­ters, it is worthwhile from the out­set to con­si­der metho­di­cal­ly its poten­ti­al app­li­ca­ti­ons, as well as the instan­ces that neces­si­ta­te its app­li­ca­ti­on.

Wit­hin the broad ran­ge of poten­ti­al app­li­ca­ti­ons avail­ab­le the­re is one aspect of gre­at impor­t­an­ce: We should only sei­ze upon an oppor­tu­ni­ty if the­re is good rea­son for our doing so. If such rea­sons exist, the situa­ti­on may even deve­lop into a neces­si­ty. In other words (using „neces­si­ty“ in its lite­ral sen­se): if the need dic­ta­tes.

Do we face a neces­si­ty when it comes to traf­fic mat­ters? Many of tho­se who are invol­ved in the­se mat­ters are awa­re of the urgen­cy of the situa­ti­on, a situa­ti­on for which they them­sel­ves are bla­meless. Howe­ver, the mul­ti­tu­de of cases floo­ding the jus­ti­ce sys­tem and the back­log which ensu­es has reached alar­ming dimen­si­ons. Using the term „neces­si­ty“ in this con­text may thus be no exa­g­ge­ra­ti­on. Hold-ups and tail­backs on the judi­ci­al high­way, if we are to stick to traf­fic-rela­ted ter­mi­no­lo­gy, are hazards that we must con­front, espe­ci­al­ly if we want to secu­re the inte­gri­ty of our judi­ci­al sys­tem.

Method of Approach

How can we approach our ques­ti­on metho­di­cal­ly and pur­po­se­ful­ly? My approach is inspi­red by the French phi­lo­so­pher Roland Bar­t­hes, mem­ber of the Coll�ge de Fran­ce. In his lifel­ong phi­lo­so­phi­cal rea­so­ning he paid par­ti­cu­lar atten­ti­on to traf­fic mat­ters. He was firm­ly con­vin­ced that the world is a sys­tem of signs which can be read like a book. In this sen­se, traf­fic is an espe­ci­al­ly mea­ning­ful book.

Main Cha­rac­te­ris­tics of the Phe­no­me­non of „Traf­fic“

Let us first take into con­si­de­ra­ti­on the struc­tu­re of traf­fic and the­re­fo­re imple­ment a phe­no­me­no­lo­gi­cal approach. What do we under­stand by the terms traf­fic and traf­fic mat­ters?

Traf­fic mat­ters are mat­ters con­cer­ning traf­fic. This is obvious­ly the expres­si­on put sim­ply. From this approach (an approach which I con­si­der to be rea­son­ab­le), traf­fic mat­ters are sub­ject to defi­ni­ti­on as a kind of epi­phe­no­me­non and thus, pres­um­a­b­ly, they sha­re cer­tain cen­tral cha­rac­te­ris­tics with traf­fic. Let us, the­re­fo­re, turn our atten­ti­on first to the phe­no­me­non of traf­fic. What cha­rac­te­ris­tics imme­dia­te­ly strike us when we exami­ne traf­fic from a distan­ce?

Traffic’s enor­mi­ty

To begin with, the­re is traffic’s enor­mi­ty. Traf­fic is a mas­si­ve phe­no­me­non. Even pri­va­te vehi­cle traf­fic, a term fre­quent­ly mis­con­strued, is a mass phe­no­me­non, and this is whe­re the pro­blem lies.


Second­ly, the­re is uni­for­mi­ty. When regar­ded from the per­spec­tive just men­tio­ned, indi­vi­du­al car brands lose their impor­t­an­ce. All vehi­cles, be they luxu­ry or com­pact cars, blend in an abs­tract sen­se into one stream of traf­fic moving past our ana­ly­tic eye.


And third­ly, the­re is speed, which is gene­ral­ly taken to be cru­ci­al to traf­fic, but alt­hough it often can­not be fac­tual­ly com­pre­hen­ded, it exists as a „will and a visi­on“. The term „standstill“ seems para­do­xi­cal, as the wish to main­tain an appro­pria­te speed level in order to cover distan­ces is cru­ci­al to traf­fic.

Cen­tral Cha­rac­te­ris­tics of Traf­fic Mat­ters

Traf­fic mat­ters sha­re the cha­rac­te­ris­tics of enor­mi­ty, uni­for­mi­ty and speed, which them­sel­ves are respon­si­ble for having pas­sed on the­se fea­tures to them in the first place and thus put their seal on them.


Our first encoun­ter is with mass phe­no­me­na. As we all know, the cases rela­ting to traf­fic have reached stag­ge­ring pro­por­ti­ons. It is often dif­fi­cult for our legal sys­tem to cope with the flood of cases, and in many pla­ces, the limits of coping with this mul­ti­tu­de have reached, if not excee­ded.


Second­ly, we can see that uni­for­mi­ty, too, exerts its influ­ence in this con­text. Traf­fic rela­ted mat­ters demons­tra­te uni­for­mi­ty to a much grea­ter extent than other domains. Typi­cal inci­dents keep recur­ring. Cen­tral to the­se is the road traf­fic acci­dent, and this gives traf­fic mat­ters their indi­vi­du­al cha­rac­ter.


Third­ly, we encoun­ter speed in traf­fic mat­ters in the same man­ner as has been descri­bed for traf­fic and this needs to be taken into con­si­de­ra­ti­on.

The Pro­mi­ses of EDP:
Achie­ving more, more Uni­for­mi­ty and impro­ving Speed

Advo­ca­tes of com­pu­te­ri­sa­ti­on are par­ti­cu­lar­ly plea­sed when we name the three com­pa­ra­ble cen­tral cha­rac­te­ris­tics sha­red by traf­fic and traf­fic mat­ters: enor­mi­ty, uni­for­mi­ty and speed; and they say: This instan­ce is sui­ted the app­li­ca­ti­on of EDP. The use of EDP is ide­al­ly sui­ted to the manage­ment of mass occur­ren­ces. It ensu­res uni­form and quick hand­ling of mat­ters. Elec­tro­nic data pro­ces­sing helps us to tack­le pro­blems in a more effec­tive and homo­ge­ne­ous way.
This is the pro­mi­se of elec­tro­nic data pro­ces­sing (EDP) which we encoun­ter ever­y­whe­re, and this is why any orga­ni­za­ti­on con­cer­ned with legal mat­ters is alrea­dy equip­ped with com­pu­ters.

Inter­me­dia­te Con­si­de­ra­ti­ons

At this point we must tread more cau­tious­ly as one of the risks has alrea­dy been rea­li­zed. If we look more clo­se­ly at what has hap­pen­ed: a fac­tu­al situa­ti­on ari­ses, a pro­mi­se is given and enor­mous invest­ment ensu­es. But is the app­li­ca­ti­on of EDP in this field jus­ti­fied? What makes us trust the pro­mi­ses made by EDP? When we ask this ques­ti­on the world chan­ges. That is why we should focus on this basic princip­le more fre­quent­ly than we usual­ly do. The essence of this princip­le is easy to find: Needs do not ari­se auto­ma­ti­cal­ly. Only when an app­li­ca­ti­on is held against nor­ma­ti­ve pre­re­qui­si­tes which them­sel­ves demand jus­ti­fi­ca­ti­on; only then does a need mani­fest its­elf. This is as true for EDP as it is for any other tech­no­lo­gy or imple­ment. The pre­ma­tu­re con­clu­si­on that any imple­ment beco­mes necessa­ry just becau­se it merely exists is a dan­ge­rous­ly nor­ma­ti­ve one, name­ly the fal­se con­clu­si­on that the mere exis­tence of some­thing implies the neces­si­ty of its exis­tence, as phi­lo­so­phers would put it. Or, as an offi­ci­al of the Ger­man Minis­try, when it was still based in Bonn, for­mu­la­ted it during his car­ni­val speech: Pota­toes must be eaten sim­ply becau­se they are the­re.
Let me rec­tify this state­ment by say­ing: Only if we are hungry and pota­toes are an appro­pria­te means of satis­fy­ing hun­ger will we have to eat them. If this is not the case, they won’t be eaten, least of all will they be eaten only on account of their being the­re.

This means that we need a nor­ma­ti­ve jus­ti­fi­ca­ti­on if we want EDP to help us out of the emer­gen­cy in which traf­fic mat­ters cur­r­ent­ly find them­sel­ves. We could find such a jus­ti­fi­ca­ti­on in the goals of „achie­ving more, more uni­for­mi­ty and impro­ving speed“. This would, howe­ver, not be the most fun­da­men­tal jus­ti­fi­ca­ti­on pos­si­ble. We can also and this may sound sur­pri­sing to some appeal to jus­ti­ce in order to show that the three aspec­ts men­tio­ned above (enor­mi­ty, uni­for­mi­ty and speed) are invol­ved with jus­ti­ce, hence can be fun­da­ment­al­ly jus­ti­fied.

Pos­tu­la­tes of Jus­ti­ce


As a star­ting point, let us dis­cuss enor­mi­ty. Jus­ti­ce is the­re for ever­yo­ne. If the quan­ti­ty of all tho­se who expect jus­ti­ce is lar­ge then jus­ti­ce can be regar­ded as a bulk com­mo­di­ty, even if this may sound stran­ge. Con­se­quent­ly, infor­ma­ti­on on sta­tu­tes and case law is also at the dis­po­sal of ever­yo­ne. For this rea­son the Asso­cia­ti­on for Com­pu­ting in the Judi­cia­ry Con­gress‘ mot­to some years ago was „Free Law for Free Citi­zens“, and last year it was „Free Juris­pru­dence for Free Citi­zens“. Jus­ti­ce is the­re­fo­re acces­si­ble for ever­yo­ne, and if it were to beco­me a limi­ted resour­ce, we would find our­sel­ves con­fron­ted with a pro­blem of injus­ti­ce.

By the way, the maxim „suum cui­que tri­bue­re“ is evo­ca­ti­ve of exac­t­ly the fol­lo­wing idea: If ever­y­bo­dy is given what she/he is ent­it­led to, then ever­y­bo­dy has a right to jus­ti­ce.
And if ever­y­bo­dy is ent­it­led to this kind of jus­ti­ce and the judi­cia­ry sys­tem acts accord­ing to the pos­tu­la­te which con­fers the right to jus­ti­ce to ever­yo­ne, we can say (and this may sound stran­ge but is appro­pria­te): The dis­cour­se about jus­ti­ce is a mat­ter of mass com­mu­ni­ca­ti­on. A tra­di­tio­nal meta­phor ari­ses in this con­text. The Old Tes­ta­ment speaks of jus­ti­ce as a stream that shall flow through the coun­try. We could adjust the term to our pre­sent situa­ti­on and say: like a flow of traf­fic.
All that means from a nor­ma­ti­ve per­spec­tive is that if we can­not gua­ran­tee the lar­ge-sca­le admi­nis­tra­ti­on of jus­ti­ce wit­hout EDP and the­re are various rea­sons that jus­ti­fy its ser­ving role (I lay stress on the term ser­ving in this con­text) its app­li­ca­ti­on is stron­gly advo­ca­ted on the basis of jus­ti­ce. Thus the ques­ti­on „Shall we app­ly EDP?“ loses its merely prac­ti­cal mea­ning of whe­re and when are we sup­po­sed to install what kind of machi­nes? Qui­te on the con­tra­ry: We now encoun­ter a fun­da­men­tal idea for which oppon­ents of EDP have yet to find an ade­qua­te alter­na­ti­ve. We thus obser­ve a momen­tous shift in the empha­sis of argu­men­ta­ti­on bet­ween oppon­ents and pro­pon­ents of EDP. The pre­re­qui­si­te for this shift is always that sup­por­ters of EDP are con­cer­ned enough to make the attempt of fin­ding a fun­da­men­tal jus­ti­fi­ca­ti­on.


The next point in our dis­cus­sion on traf­fic and traf­fic mat­ters is uni­for­mi­ty. Here we find a clo­se con­nec­tion bet­ween jus­ti­ce and uni­for­mi­ty. As we know, jus­ti­ce in the tra­di­tio­nal sen­se com­pri­ses two aspec­ts, one is mate­ri­al jus­ti­ce, and the other is for­mal jus­ti­ce.
Mate­ri­al jus­ti­ce accord­ing to „suum cui­que tri­bue­re“ is inten­ded to pro­vi­de ever­yo­ne with the amount of jus­ti­ce that they belie­ve they are ent­it­led to. For­mal jus­ti­ce aims for the equal tre­at­ment of equal cases, a princip­le inherent in the con­sti­tu­tio­nal law in Ger­ma­ny. This claim had alrea­dy been reco­gnis­ed in anci­ent times. Cice­ro descri­bed it as fol­lows: Valeat aequi­tas quae in pari­bus causis paria iura desi­de­rat (the princip­le of aequi­tas should app­ly in order that equal legal con­se­quen­ces for equal fac­ts are ensu­red). From this under­stan­ding, uni­for­mi­ty is a princip­le of jus­ti­ce. Con­se­quent­ly (and here we encoun­ter a recur­rence of thought), if EDP as a mat­ter of princip­le turns out to be a sub­stan­ti­al con­tri­bu­ti­on to the equal tre­at­ment of cases, it will again pro­ve to be a neces­si­ty in terms of jus­ti­ce. Much speaks for such an approach. Equal tre­at­ment of equal cases requi­res, for instan­ce, a com­pre­hen­si­ve over­view of all the cases alrea­dy adju­di­ca­ted. In view of the lar­ge quan­ti­ty of cases to be adju­di­ca­ted, it should be clear that only effec­tive infor­ma­ti­on tech­no­lo­gy would be able to tack­le this task, and thus even the crea­ti­on of data­ba­ses is per­ti­nent to jus­ti­ce.
By the way, at an infor­mal mee­ting yes­ter­day it was recoun­ted to me that a simi­lar idea had been one of the rea­sons behind the initia­ti­on of the association’s sym­po­si­um on traf­fic. The initia­tors who were from Ham­burg were well awa­re of the dif­fi­cul­ty that courts, when deci­ding traf­fic cases, adopt incon­sis­tent approa­ches accord­ing to their geo­gra­phi­cal loca­ti­on. They inten­ded to rec­tify this situa­ti­on by impro­ving the flow of infor­ma­ti­on and thus ensu­ring a uni­form app­li­ca­ti­on of jus­ti­ce.


Jus­ti­ce and Speed many will ask what the con­nec­tion bet­ween the­se terms could be. It is a clo­ser one than we would at first think. The Bri­tish legal sys­tem illus­tra­tes this in a say­ing: Jus­ti­ce delay­ed is jus­ti­ce denied. Jus­ti­ce which is admi­nis­te­red or gran­ted too late can be con­si­de­red a deni­al of jus­ti­ce. The European Court of Jus­ti­ce for Human Rights has poin­ted to this fact on several occa­si­ons. This awa­reness is also con­spi­cuous­ly expres­sed in the Latin phra­se „bis dat qui cito dat“ (he who gives quick­ly, gives dou­bly). The pas­sa­ge of time deva­lues some­thing which has not been gran­ted on time. And as we don’t have an infi­ni­te amount of time at our dis­po­sal, jus­ti­ce which is gran­ted too late may turn, in the worst case, into injus­ti­ce. If we con­ti­nue to use traf­fic-rela­ted ter­mi­no­lo­gy we might say: Jus­ti­ce is a just-in-time-con­cept (this is a dar­ing expres­si­on, but it is cor­rect in the lite­ral sen­se of the word). As a con­se­quence we can again say: If EDP is to make a worthwhile con­tri­bu­ti­on to an acce­le­ra­ted judi­ca­tu­re, its app­li­ca­ti­on is com­pul­so­ry for rea­sons of jus­ti­ce.
It is a fact that EDP has the poten­ti­al to make a con­tri­bu­ti­on of this kind. Howe­ver, this is not always the case. Like the points dis­cus­sed pre­vious­ly, EDP’s capa­bi­li­ty to reach the­se goals is only cor­rect in princip­le. EDP as such is not gua­ran­te­ed to reach the­se goals. This rai­ses a fun­da­men­tal ques­ti­on: At issue is not the use of EDP as such, but the effi­ci­ent imple­men­ta­ti­on of EDP, of an EDP who­se con­cre­te use demons­tra­tes that it does in fact ful­fill the role it must (and is not merely per­mit­ted to as many peop­le would say) play for the above men­tio­ned nor­ma­ti­ve rea­sons.

The Bor­der­line bet­ween Effi­ci­ent and Inef­fi­ci­ent EDP

As men­tio­ned above, EDP is likely to keep its pro­mi­se with regard to enor­mi­ty, uni­for­mi­ty and speed only if it is embed­ded in effi­ci­ent data pro­ces­sing sys­tems. If this is not the case then pro­ces­sing back­logs may occur. The bulk of inco­m­ing cases can­not be ade­qua­te­ly coped with wit­hin the time requi­red. The term „world wide wait“ which is some­ti­mes used ins­tead of „World Wide Web“ reminds us of the fact that inef­fi­ci­en­cy is cha­rac­te­ris­tic of the imple­men­ta­ti­on sce­n­a­ri­os of non-scala­b­le sys­tems, (and this is not con­nec­ted to the stan­dards set for the WWW). Para­do­xi­cal­ly enough, court pro­ce­du­res may even dece­le­ra­te on account of the imple­men­ta­ti­on of EDP. This is clear­ly exem­pli­fied by the first attempt under­ta­ken some time ago to auto­ma­ti­ze an order of pay­ment pro­ce­du­re.
We also encoun­ter inef­fi­ci­ent infor­ma­ti­on sys­tems which ren­der fin­ding rele­vant infor­ma­ti­on impos­si­ble. Thus a uni­for­mi­ty of tre­at­ment can­not be gua­ran­te­ed due to the­se inef­fi­ci­ent infor­ma­ti­on sys­tems.

As a con­se­quence, we have to dif­fe­ren­tia­te (and her­ein lies the main dis­tinc­tion) bet­ween bad­ly imple­men­ted and effi­ci­ent­ly imple­men­ted EDP. It is not easy to know in advan­ce how this dis­tinc­tion should be made. Natu­ral­ly, we are all the wiser later. The princip­le: „The test of the pud­ding is its eating“ is always reli­able. This is not, howe­ver, a plan­ning stra­te­gy. The aim is rather to be able to dif­fe­ren­tia­te the one from the other as ear­ly as pos­si­ble. And this is the basic plan­ning pro­blem which does not beco­me appa­rent at all if we regard the imple­men­ta­ti­on of EDP as an unques­tion­ab­le good.
The­re is cer­tain­ly no plan­ning sce­n­a­rio which could auto­ma­ti­cal­ly enab­le us to detect inef­fi­ci­ent EDP in the first place. Still, the­re are some pro­mi­sing indi­ca­tors in this field. They can be found by asking spe­ci­fic ques­ti­ons and, if the­se can­not be ans­we­red by a stra­te­gic respon­se, then the EDP sce­n­a­rio has to be hand­led with care.
The fol­lo­wing ques­ti­ons pro­vi­de an examp­le of what this means in metho­di­cal terms:

Are the­re any pro­ven bene­fits to be gai­ned from the new tech­ni­que?

The ques­ti­on whe­ther the recom­men­ded sys­tem offers pro­ven bene­fits com­pa­red to cur­rent ope­ra­tio­nal pro­ce­du­res is one that must always be posed. For instan­ce, when asking this ques­ti­on with regard to the imple­men­ta­ti­on of elec­tro­nic files, we will soon per­cei­ve various dis­ad­van­ta­ges when we com­pa­re this method with that of tra­di­tio­nal filing. Intui­ti­ve under­stan­ding of the „old“ medi­um in com­pa­ri­son with the „new“ one is an aspect of this dis­cus­sion. Some elec­tro­nic files may seem defi­ci­ent when this approach is taken. The­se defi­ci­en­ci­es can be reme­di­ed. If this is not done then we find our­sel­ves from the very start con­fron­ted with inef­fi­ci­ent­ly imple­men­ted tech­no­lo­gy.

Has the dura­bi­li­ty of the new tech­ni­que been taken into con­si­de­ra­ti­on?

What about the mana­gea­bi­li­ty of the new tech­ni­que?

Digi­tal signa­tures are illus­tra­ti­ve examp­les for ques­ti­ons of mana­gea­bi­li­ty. It is indu­bi­ta­ble that we need this new tech­no­lo­gy (this is in fact con­nec­ted with the elec­tro­nic file, sin­ce every ent­ry and any chan­ge in it has to be authen­ti­cal­ly docu­men­ted in the file). Even so, the imple­men­ta­ti­on of digi­tal signa­tures may crea­te con­di­ti­ons that ham­per the easy mas­te­ry of this basic tech­no­lo­gy. This is an indi­ca­ti­on of the fact that its pre­sent-day imple­men­ta­ti­on may not be the most effec­tive one. To con­clu­de that legis­la­ti­on is respon­si­ble for this situa­ti­on does not help mat­ters in the least.

Traf­fic as an EDP Sys­tem

Let us reca­pi­tu­la­te: EDP in princip­le con­forms not only to traf­fic cases but also to traf­fic. Let us do a cross-check: Could we ever ima­gi­ne traf­fic as exis­ting wit­hout EDP? I don’t think so. Wit­hout EDP, traf­fic could not func­tion pro­per­ly with regard to mass, uni­for­mi­ty and speed. I am well awa­re of perhaps repea­ting com­mon­pla­ces, but some­ti­mes sha­red know­ledge needs to be men­tio­ned in order to arri­ve at a sys­te­ma­tic frame­work. Let me give you a few key­words: Cars have mean­while evol­ved into „rol­ling infor­ma­ti­on sys­tems“. Net­wor­ked infor­ma­ti­on sys­tems con­trol traf­fic. To put it in exa­g­ge­ra­ted terms: Traf­fic has its­elf beco­me an EDP sys­tem.

Chan­ces and Risks

After having tried to arri­ve at some fun­da­men­tal insights, let us now take a look at the pos­si­bi­li­ties and risks of traf­fic-rela­ted EDP.
First of all we have to cla­ri­fy the mea­nings of „pos­si­bi­li­ty“ and „risk“. A risk looms lar­ge behind ever­ything that seems to be a pos­si­bi­li­ty. Thus pos­si­bi­li­ties and risks are two sides of the coin. If we con­si­der only the pos­si­bi­li­ties of EDP wit­hout kee­ping its risks in mind, fun­da­men­tal issu­es will be igno­red (and vice ver­sa). Both aspec­ts tog­e­ther form a com­pre­hen­si­ve pic­tu­re. Let me the­re­fo­re cite some cru­ci­al examp­les for pos­si­bi­li­ties and risks.

The Net­work

Nowa­days the infor­ma­ti­on sys­tems that we encoun­ter are net­works. This has beco­me a fun­da­men­tal princip­le of the­se sys­tems. It is gene­ral­ly regar­ded as an impro­ve­ment, and right­ly so. Iso­la­ted infor­ma­ti­on islands no lon­ger exist. Data exchan­ge bet­ween hete­ro­ge­ne­ous app­li­ca­ti­ons via the world wide net­works has beco­me com­mon prac­tice ins­tead. The inter­net and the visi­on of a „seman­tic web“, a net­work that has been given a well-defi­ned mea­ning which faci­li­ta­tes infor­ma­ti­on exchan­ge, has been very expli­citly demons­tra­ted by the W3C-con­sor­ti­um. This was the brain­child of Tim Ber­ners-Lee, who, along with Robert Cail­lau, was one of the two „fathers“ of the World Wide Web. Tim Ber­ners-Lee is con­vin­ced that this tech­no­lo­gy does not have any inherent mea­ning and so requi­res mea­ning to be fed into it. Sen­se is con­nec­ted to mea­ning, and this mea­ning needs to be ancho­red to the World Wide Web. At pre­sent, this is one of the most exci­ting issu­es in legal infor­ma­tics. The Ger­man world of juris­pru­dence has not yet ade­qua­te­ly rea­li­zed the impor­t­an­ce of this issue, and con­se­quent­ly our field of rese­arch still lies out­si­de the sci­en­ti­fic main­stream. If the­se key­words should appe­ar to be too cryp­tic, help can be obtai­ned from the W3 web­sites which can be con­sul­ted as one would a lar­ge libra­ry.

The Coope­ra­ti­ve Con­nec­tion

Nowa­days, indi­vi­du­al EDP sys­tems are part of a coope­ra­ti­ve cohe­rent sys­tem (and can only be ade­qua­te­ly unders­tood as such). This fact is a chan­ce and is also a cen­tral risk. It is essen­ti­al to find a frame­work whe­re the risks and the pos­si­bi­li­ties are pro­per­ly balan­ced. This pos­tu­la­te refu­ses an „eit­her / or“ logic. In con­trast to this, we often encoun­ter EDP dis­cus­sions that are, stric­t­ly speaking, struc­tu­red accord­ing to this logic. This stra­te­gy is metho­di­cal­ly mis­lea­ding . My lec­tu­re the­re­fo­re inten­ded to show that EDP in traf­fic mat­ters is essen­ti­al, not for its own bene­fit and not as an arbi­tra­ri­ly imple­men­ted device, and that it is impe­ra­ti­ve to find a balan­ce bet­ween diver­gent expec­ta­ti­ons and objec­tives. It would be a gre­at achie­ve­ment if this princip­le could under­lay any dis­cus­sion about the use of EDP in legal mat­ters.

The Lan­guage of Images

Ano­t­her fur­ther mix­tu­re of pos­si­bi­li­ties and risks is pre­sen­ted in the way we hand­le images. At the ent­ran­ce of this hall we encoun­te­red an inte­res­ting tech­no­lo­gy which ser­ves to visual­ly recon­struct road acci­dents. When loo­king at the­se images, we are remin­ded of dialec­tics in the clas­si­cal sen­se of the word: On the one hand, we are encoun­tering a use­ful tech­no­lo­gy, a pos­si­bi­li­ty. On the other hand, the­re are also risks lur­king here. Images, as we all know, exert a power­ful influ­ence on us. Sin­ce we tend to suc­cumb to this princip­le, we live in the age of visua­li­za­ti­on. In Ame­ri­can traf­fic courts, the recon­struc­tion of road acci­dents is shown in film form. The illu­si­on that is ther­e­by crea­ted is that rea­li­ty has been cap­tu­red and brought into the court room, an illu­si­on which is clear­ly not true. Images are only reflec­tions of rea­li­ty, not rea­li­ty its­elf. The images fol­low their own sug­ges­ti­ve rhe­to­ric. Prof. Kro­eber-Riel, my col­league from Saar­land Uni­ver­si­ty, is the aut­hor of a work of refe­rence ent­it­led „Visu­el­le Kom­mu­ni­ka­ti­on“ (Visu­al Com­mu­ni­ca­ti­on). If we cea­se to be awa­re of the dif­fe­rence bet­ween rea­li­ty and images, and if we don’t reflect on it in a nuan­ced way, then a dan­ge­rous app­li­ca­ti­on of tech­no­lo­gy with unpre­dic­ta­ble con­se­quen­ces may occur. As this trend towards visua­li­za­ti­on does not yet play a pre­do­mi­nant role in legal pro­ce­du­res in Ger­ma­ny, the­re is still enough time left for us to pre­pa­re for it through pre­pa­ra­to­ry reflec­tion. This might be a com­mon issue for the association’s sym­po­si­um on traf­fic and the Asso­cia­ti­on of Com­pu­ting in the Judi­cia­ry: The lan­guage of images in traf­fic mat­ters.

Blind Trust

The last kind of risk I would like to dis­cuss is a fun­da­men­tal one. We could call it „the risk of blind trust“. This atti­tu­de is espe­ci­al­ly dan­ge­rous as it tends to be nur­tu­red by the appar­ent­ly smooth func­tio­n­ing of EDP. The risk that we would never trust soft­ware which does not func­tion is mini­mal. Yet we auto­ma­ti­cal­ly belie­ve that all is well when EDP appar­ent­ly works smooth­ly. But this is not necessa­ri­ly true. As a con­se­quence, a field of stu­dy with regard to „trusted com­pu­ting“ has evol­ved in infor­ma­tics. Its cen­tral ques­ti­on is: „What makes us trust appar­ent­ly func­tio­n­ing EDP?“ It would be advi­s­able to make this topic, which is spe­ci­fic to infor­ma­tics, rele­vant for our con­cerns as well. Let me give you an examp­le of whe­re the pro­blem lies: Some time ago incor­rec­t­ly pro­gram­med pocket cal­cu­la­tors were given to pupils in the U.S. in order to stu­dy the pupils‘ reac­tions. It was only after a 25% devia­ti­on from the expec­ted result beca­me visi­ble that the pupils poin­ted out the cal­cu­la­ti­on error, and this was done only very hesi­tant­ly. This beha­vi­or not only occurs in arti­fi­ci­al­ly indu­ced situa­ti­ons, it also ari­ses in real life. If you take a cal­cu­la­tor and extract the root of a num­ber, say 3, and then squa­re the result, you should obtain the same num­ber you star­ted off with, but often enough this is not the case. This is an indi­ca­ti­on of the calculator’s inner arith­me­tic being dif­fe­rent from what stric­t­ly for­mal mathe­ma­tics requi­re. The dis­tur­bing ques­ti­on as to which result we can trust remains.

Is the machi­ne taking over?

What will the final result be in this situa­ti­on? The pos­si­ble con­se­quen­ces may be inde­ed serious. We may lose our own powers of judgment. The machi­ne will take over. I fear this has alrea­dy hap­pen­ed in many are­as of our ever­y­day life. If we were to take away somebody’s EDP-machi­ne, would they still be able to cope with the task they’­ve been set? A sci­ence fic­tion aut­hor has taken this issue as the mate­ri­al for an impres­si­ve sto­ry: Some­time in a future mill­en­ni­um a giant space­ship loses its ori­en­ta­ti­on in the gala­xy. Its com­pu­ter has bro­ken down. It is not pos­si­ble to cal­cu­la­te the para­me­ters of its return cour­se. Thousands of peop­le on board the­re­fo­re pre­pa­re for their immi­nent death until some­bo­dy says that form­er­ly peop­le were able to cal­cu­la­te cour­ses wit­hout the help of machi­nes. The crew now orga­ni­zes its­elf into several units, each of which is assi­gned the task of sol­ving a part of the arith­me­ti­cal pro­blem. Each result is then pas­sed on to the next unit, and in the end the groups mana­ge to work out the return cour­se. But what, asks the aut­hor, if no one had been able to cal­cu­la­te any more? The­r­ein lies the real dan­ger. And in con­si­de­ring this, we are approa­ching the final key point in our ana­ly­sis: The limits.

The Limits

We should always con­si­der that the­re are limits to every instru­ment which have to be asses­sed. But besi­des the­se more com­mon limits the­re are other limits in the case of cer­tain tools (com­pu­ters being perhaps the most pro­to­ty­pi­cal of them) which cau­se man­kind to re-assert its­elf. In our con­text this is the case when the ward (EDP) wants to beco­me the guar­di­an, or when EDP refu­ses to obey com­mands any lon­ger. The princip­le of human self-asser­ti­on in the face of the thre­at posed by machi­nes when used judi­cious­ly can be very hel­pful in asses­sing EDP pro­jec­ts. For examp­le, a state­ment such as „the EDP won’t per­mit it“ ought to imme­dia­te­ly trig­ger reflec­tion as to whe­ther the machi­ne is signa­ling its wish to take over com­mand. We should deve­lop a very high degree of sen­si­ti­vi­ty to this kind of situa­ti­on and go to the trou­ble of pre­ven­ting the essen­ti­al­ly use­ful machi­ne on which we actual­ly depend from domi­na­ting us.