Foreign Legal Doctrine in the IT Era

Abstract

This Article is devoted to the theory of “digital libertarianism”; it compares this theory with the classical American Libertarianism, as well as considers the viewpoints of its proponents and opponents on the issues of state, law and human rights on the Internet. Unlike the modern American Libertarianism, which is largely based upon the doctrine of natural rights, the “digital libertarianism” pays more attention to the real social phenomena, and it is closer to the sociological positivism. One of the central ideas of the “digital libertarianism” is the sovereignty of cyberspace, which is opposed to the state sovereignty. The state paternalists as the most vigorous critics of cyberlibertarians reject this point of view and believe that only state can secure the respect for behavioral rights on the Internet. The technological and legal aspects of cyberspace, which are stressed by cyberlibertarians, allow for users to bypass the specified requirements, and to set their own codes of behavior. In order to enforce the law, both state with its legal traditions and network communities in addition to the legal means of influence on users' behavior use mechanisms of material coercions. These mechanisms include a combination of specific technologies and legal requirements for their enforcement, which lead to the real (physical) limitation of freedom for expression and information, as well as to the limitation of privacy rights, and thus ensure the possibility for the state or self-regulating communities to secure the public and private interests.