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Information Technology and Law Series IT&LAW 32

Regulating
New Technologies
in Uncertain Times

Leonie Reins Editor

Information Technology and Law Series

Volume 32

Editor-in-chief
Simone van der Hof, eLaw (Center for Law and Digital Technologies),
Leiden University, Leiden, The Netherlands

Series editors
Bibi van den Berg, Institute for Security and Global Affairs (ISGA),
Leiden University, The Hague, The Netherlands
Gloria González Fuster, Law, Science, Technology & Society Studies (LSTS),
Vrije Universiteit Brussel (VUB), Brussels, Belgium
Eleni Kosta, Tilburg Institute for Law, Technology, and Society (TILT),
Tilburg University, Tilburg, The Netherlands
Eva Lievens, Faculty of Law, Law & Technology, Ghent University,
Ghent, Belgium
Bendert Zevenbergen, Center for Information Technology Policy,
Princeton University, Princeton, USA
More information about this series at http://www.springer.com/series/8857
Leonie Reins
Editor

Regulating New
Technologies in Uncertain
Times

123
Editor
Leonie Reins
Tilburg Institute for Law, Technology,
and Society (TILT)
Tilburg University
Tilburg, The Netherlands

ISSN 1570-2782 ISSN 2215-1966 (electronic)

Information Technology and Law Series
ISBN 978-94-6265-278-1 ISBN 978-94-6265-279-8 (eBook)
https://doi.org/10.1007/978-94-6265-279-8
Library of Congress Control Number: 2018965892

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl

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Series Information

The Information Technology & Law Series was an initiative of ITeR, the national
programme for Information Technology and Law, which was a research programme
set up by the Dutch government and The Netherlands Organisation for Scientific
Research (NWO) in The Hague. Since 1995 ITeR has published all of its research
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well-established series deals with the implications of information technology for
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Editorial Office

T.M.C. Asser Press

P.O. Box 30461
2500 GL The Hague
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Tel.: +31-70-3420310
e-mail: [email protected]
Simone van der Hof, Editor-in-Chief
Leiden University, eLaw (Center for Law and Digital Technologies)
The Netherlands
Bibi van den Berg
Leiden University, Institute for Security and Global Affairs (ISGA)
The Netherlands
Gloria González Fuster
Vrije Universiteit Brussel (VUB), Law, Science,
Technology & Society Studies (LSTS)
Belgium
Eleni Kosta
Tilburg University, Tilburg Institute for Law, Technology, and Society (TILT)
The Netherlands
Eva Lievens
Ghent University, Faculty of Law, Law & Technology
Belgium
Bendert Zevenbergen
Princeton University, Center for Information Technology Policy
USA
Contents

Part I Introduction
1 Regulating New Technologies in Times of Change . . . . . . . . . . . . . 3
Ronald Leenes
2 Regulating New Technologies in Uncertain Times—Challenges
and Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Leonie Reins

Part II New Technologies and Impacts on Democratic Governance

3 Between Freedom and Regulation: Investigating Community
Standards for Enhancing Scientific Robustness of Citizen
Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Anna Berti Suman
4 Human Rights in the Smart City: Regulating Emerging
Technologies in City Places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Tenille E. Brown
5 Automated Driving and the Future of Traffic Law . . . . . . . . . . . . . 67
Nynke E. Vellinga
6 Coercive Neuroimaging Technologies in Criminal
Law in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Sjors L. T. J. Ligthart

Part III New Technologies and Market Regulation

7 Planting the Seeds of Market Power: Digital Agriculture,
Farmers’ Autonomy, and the Role of Competition Policy . . . . . . . . 105
Tom Verdonk

vii
viii Contents

8 Sharing Data and Privacy in the Platform Economy:

The Right to Data Portability and “Porting Rights” . . . . . . . . . . . . 133
Silvia Martinelli
9 Regulating Smart Distributed Generation Electricity
Systems in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Theodoros G. Iliopoulos

Part IV The Data in New Technologies—The Utilization

of Data and the Protection of Personal Data
10 A Public Database as a Way Towards More Effective
Algorithm Regulation and Transparency? . . . . . . . . . . . . . . . . . . . 175
Florian Wittner
11 Access to and Re-use of Government Data and the Use
of Big Data in Healthcare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Miet Caes
12 The Challenges of Risk Profiling Used by Law Enforcement:
Examining the Cases of COMPAS and SyRI . . . . . . . . . . . . . . . . . 225
Sascha van Schendel
13 Regulating Data Re-use for Research: The Challenges
of Innovation and Incipient Social Norms . . . . . . . . . . . . . . . . . . . . 241
Hannah Smith
14 European Cloud Service Data Protection Certification . . . . . . . . . . 261
Ayşe Necibe Batman
15 Data Privacy Laws Response to Ransomware Attacks:
A Multi-Jurisdictional Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Magda Brewczyńska, Suzanne Dunn and Avihai Elijahu

Part V Conclusion
16 Concluding Observations: The Regulation of Technology—What
Lies Ahead—And Where Do We Want to End Up? . . . . . . . . . . . . 309
Leonie Reins
Editor and Contributors

About the Editor

Leonie Reins is an Assistant Professor at the Tilburg Institute for Law, Technology,
and Society (“TILT”) at Tilburg University in the Netherlands. Previously, she was a
Postdoctoral Researcher at KU Leuven, Belgium, where she also wrote her Ph.D.
thesis on the coherent regulation of energy and the environment in the EU. Leonie
completed an LL.M. in Energy and Environmental Law at KU Leuven, and sub-
sequently worked for a Brussels-based environmental law consultancy, providing
legal and policy services for primarily public sector clients. Leonie’s research
focuses on the intersections of international and European energy, climate and
environmental law.

Contributors

Ayşe Necibe Batman Frankfurt am Main, Germany

Magda Brewczyńska Tilburg Institute for Law, Technology, and Society (TILT),
Tilburg University, Tilburg, The Netherlands
Tenille E. Brown Faculty of Law, University of Ottawa, Ottawa, Canada
Miet Caes Leuven Institute for Healthcare Policy, Leuven, Belgium
Suzanne Dunn Faculty of Law, University of Ottawa, Ottawa, Canada
Avihai Elijahu Faculty of Law, University of Haifa, Kiryat Shmona, Israel
Theodoros G. Iliopoulos Hasselt University, Hasselt, Belgium
Ronald Leenes Tilburg Institute for Law, Technology, and Society (TILT),
Tilburg University, Tilburg, The Netherlands

ix
x Editor and Contributors

Sjors L. T. J. Ligthart Department of Criminal Law, Tilburg Law School,

Tilburg University, Tilburg, The Netherlands
Silvia Martinelli University of Turin, Turin, Italy
Leonie Reins Tilburg Institute for Law, Technology, and Society (TILT), Tilburg
University, Tilburg, The Netherlands
Hannah Smith Centre for Health, Law, and Emerging Technologies, University
of Oxford, Oxford, UK
Anna Berti Suman Tilburg Institute for Law, Technology, and Society (TILT),
Tilburg University, Tilburg, The Netherlands
Sascha van Schendel Tilburg Institute for Law, Technology, and Society (TILT),
Tilburg University, Tilburg, The Netherlands
Nynke E. Vellinga Faculty of Law, University of Groningen, Groningen, The
Netherlands
Tom Verdonk Institute for Consumer, Competition & Market, University of
Leuven (KU Leuven), Leuven, Belgium
Florian Wittner Department of Law, Hans-Bredow Institute for Media Research
at the University of Hamburg, Hamburg, Germany
 Part I
Introduction
Chapter 1
Regulating New Technologies in Times
of Change

Ronald Leenes

Contents

1.1 Introduction........................................................................................................................ 3
1.2 Back to the Future............................................................................................................. 5
1.3 Regulating Technology ..................................................................................................... 7
1.4 Connecting the Dots.......................................................................................................... 11
1.5 Solutions ............................................................................................................................ 13
1.6 Conclusion ......................................................................................................................... 15
References .................................................................................................................................. 16

Abstract This chapter provides an introduction to the overarching topic and

question of this volume on how and whether to regulate new technologies in times
of change. It introduces the regulating technology (development) model.

Keywords regulation
technology
innovation
Law of the Horse

1.1 Introduction

Let me start with looking back at an earlier point in my career. We had just survived
the Millennium Bug and Internet was still written with a Capital I. In fact, the
internet as we now know it was less than five years old. I was teaching in the

This is an extended and adapted version of the keynote presented at the Ph.D. symposium at
Tilburg University on 14 June 2019.

R. Leenes (&)
Tilburg Institute for Law, Technology, and Society (TILT), Tilburg University, Tilburg, The
Netherlands
e-mail: [email protected]

© T.M.C. ASSER PRESS and the authors 2019 3

L. Reins (ed.), Regulating New Technologies in Uncertain Times,
Information Technology and Law Series 32,
https://doi.org/10.1007/978-94-6265-279-8_1
4 R. Leenes

department of Public Administration at Twente University. My courses dealt with

law and ICT and IT and public governance. My students were really excited by the
new opportunities offered by email and the World Wide Web. Social media did not
yet exist, and online music and video were of low quality. Yet, my students saw the
prospects of the emerging technologies and were eager to produce course papers
about e-commerce and e-government. They had to focus on the legal aspects of
these developments and many seemed to follow similar arguments: a new product
or service is emerging, such as online shopping, this (type of) service is not
mentioned in the law, hence we need new rules, new law. Law has to adapt to this
new reality.1 Oftentimes, this conclusion that the law needs to be updated as a result
of new technologies was presented as obvious.2 The argument, or rather the claim,
put forward by my students was as follows: “We face a new technology, in this case
the internet, or a service on the internet, such as e-commerce. The law is silent on
these topics, which makes total sense because it is likely outdated and lawyers are
old-fashioned anyway. Why? Well, let’s face it, the law is paper-based. Besides, it
was developed for other circumstances and other phenomena and is created by
people who don’t understand modern times. Hence, we almost certainly need new
law, new rules.”
As I said, I was still young, knew little of technology law, and was a bit prone to
following this line of reasoning. However, I was also sufficiently versed in tradi-
tional law to suspect flaws in their lines of reasoning.3 Maybe (surely) the legal
system is flexible enough to cope with these, so-called, novelties. After all, how
different is e-commerce from distance selling such as the kind based on catalogues?
Why would ordering goods by telephone (or heaven forbid by fax) from a store be
different to ordering stuff online? And yes, even in the old days, one could order
goods from stores in other countries. Why would civil law, in particular contract
law, not be applicable or be outdated? Why would the regulation pertaining to
distance selling, which had been around for a while, not suffice? Why would
concepts such as agreement, contract, default, tort, etc. not do? Should we not first
explore whether they do, before jumping to the conclusion that we need new law?
With that harsh message and homework, my students went to the library and the
drawing board in order to think-tank on the issues at hand and the adequacy of
existing concepts and mechanisms.

1
Not only students struggled with the fit of the normative framework to changing reality, also
legislators around the globe pondered whether the online world requires new law (urgently). For
The Netherlands, see Ministerie van Justitie 1997–1998. See also Koops et al. 2006.
2
This may be a result of the engineering mindset of my students who had enrolled in a technical
university.
3
I had read Frank Easterbrook’s lecture at the 1996 Cyberlaw conference entitled ‘Cyberspace
and the Law of the Horse’, 1996 U Chi Legal F 207, which conveys the message that “the best way
to learn the law applicable to specialized endeavors is to study general rules”.
1 Regulating New Technologies in Times of Change 5

1.2 Back to the Future

After my move to Tilburg University, I became more and more intrigued by the
relation between technology and regulation. It will probably not surprise you that
the patterns I observed in Twente also surfaced in Tilburg.4 Anytime a new tech-
nology materialises, or when innovators and entrepreneurs come up with a novel
way of doing business, calls for regulatory changes can be heard. These voices do
not only come from students and Ph.D. students, who by definition still have a lot to
learn, but also from developers, engineers, policymakers, and the odd scientist, who
may quickly arrive at the conclusion that there is a regulatory disconnect5 in need of
fixing.
Many people seem to suffer from the ‘Flawed Law Syndrome’: the urge to call
law or regulation outdated or flawed (disconnected) and the desire to fix the
problems by addressing the law, rather than using other ways to mend the assumed
gaps (‘Legal Solutionism’).
Of course, industry will also complain that the law needs to be changed.6
Industry typically brings forward two claims regarding the regulatory framework in
their domain: one, that they are unduly constrained and two, that the rules are
unclear. This seems to be the knee-jerk reaction every time a new technology
emerges, rather than exploring the actual state of the art with respect to the tech-
nology and the law.7
We clearly see this ‘call-to-regulate’ reflex in the field of self-driving vehicles,
where Google (currently Waymo), and the car industry more generally, call for
regulation.8 A similar response can be seen with regard to “newish” ‘taxi-like’
services with human drivers, such as Uber, where a strong urge from the new
services to regulate the field is visible.9 Of course, by regulating the field, they
mean “in a manner that is to their advantage”. Uber’s concerns are different from
Waymo’s, but the source of the issues is the same in both cases: there is a regulatory

4
So much for the hypothesis that the engineering mindset of students at a technical university was
the cause of their legal solutionism. The term Solutionism was introduced by Morozov 2013a.
5
Brownsword 2008.
6
See, for instance, http://www.drivingsales.com/news/google-and-auto-executives-urge-
congress-to-develop-national-self-driving-car-regulations/; http://nhv.us/content/16024540-uber-
urges-nh-lawmakers-introduce-statewide-regulations-ride. Last accessed 23 October 2018.
7
Leenes et al. 2017 for an exploration of this phenomenon in the field of robotics.
8
See for calls in the US for instance, http://www.drivingsales.com/news/google-and-auto-
executives-urge-congress-to-develop-national-self-driving-car-regulations/. Last accessed 23
October 2018; https://collisionweek.com/2018/09/10/vehicle-manufacturers-suppliers-call-senate-
passage-autonomous-vehicle-legislation/. Last accessed 23 October 2018.
9
See, for instance, http://nhv.us/content/16024540-uber-urges-nh-lawmakers-introduce-
statewide-regulations-ride. Last accessed 23 October 2018.
6 R. Leenes

disconnect. To be fair, scientists are also unhappy and complain, for instance that
killer drones should be banned.10
There is a steady pattern of calls for new regulation whenever new technologies
enter the stage. However, if and when new regulation is introduced, the complaints
often remain. To regulate means to weigh interests and the outcome of this process
can hardly ever satisfy all. A prime example is data protection regulation. After four
to five years of tough negotiations, comprising the various legislative stages, the
European Parliament processed over 4000 amendments11 to the original
Commission proposal for a General Data Protection Regulation (“GDPR”) and new
regulation was finally agreed on.12 The internet giants have lobbied tremendously,
but apparently did not get what they bargained for. Their dissatisfaction13 is not
entirely surprising as Google and Facebook stand to lose a lot and have been in
legal battles with the Data Protection Authorities based on the former Data
Protection Directive 95/46/EC already.14
Let me return to the story and get back to the behaviour of industry in response
to regulation later on. There seems to be a strong call for new regulation when a
new technology presents itself. Some suggest a leap forward and claim that in a
dynamic environment we need dynamic regulation, or flexible regulation. Certainly
in the Netherlands, the road proposed is that of experimental regulation, such as
sunset provisions, as a means of coping with uncertainty and offering flexibility.15
I am not particularly happy with this direction and will throw my head in the
wind. Before doing so, I want to return to a story of old. Do we really need new
regulation to cope with issues associated with new technologies, or are the classical
instruments sufficient? I have mentioned Justice Frank Easterbrook’s take on this
question already in a footnote, but will turn to his idea explicitly. Easterbrook’s
target was the proposal by Lessig and others to create a new area of law,
Cyberlaw.16 This idea of creating cyberlaw as a response to novelty (like cyber-
space), is nonsense in Easterbrook’s opinion. He illustrates his point by explaining
why there is no Law of the Horse and why we should not strive to create one. The

10
See, for instance, http://www.oxfordmartin.ox.ac.uk/news/201412_Robo-Wars. Last accessed
23 October 2018.
11
For an overview of the 3132 amendments, see https://lobbyplag.eu/map/amendments/libe/. Last
accessed 23 October 2018.
12
The first COM proposal of the GDPR (2016/679) was published on 25 January 2012, it entered
into force on 24 May 2016 and became directly applicable in all EU Member States on 25 May
2018.
13
See, for instance, https://edri.org/edrigramnumber10-22facebook-doesnt-like-eu-regulation/.
Last accessed 23 October 2018.
14
Consider the cases launched by Max Schrems, see https://en.wikipedia.org/wiki/Max_Schrems.
Last accessed 23 October 2018. See also http://www.cnbc.com/2016/02/01/eu-privacy-rules-may-
hit-internet-giants-hard.html. Last accessed 23 October 2018.
15
E.g., Ranchordás 2014.
16
With this, Easterbrook started a long line of debate about Cyberlaw. One should in this line at
least mention Lessig’s response, Lessig 1999; and Andrew Murray’s wonderful 2013 Bileta
keynote: Murray 2013.
1 Regulating New Technologies in Times of Change 7

law of the horse is a metaphor for comprehensive regulation around all things
horses. Whenever there is an issue involving a horse, the law of the horse is where
to look for answers.
From a practical perspective there is significant challenge in creating such law,
after all what are the potential topics to be addressed by this law? However, there
may be merit in such an effort. On the positive side, having everything in a single
act is convenient. At least as long as we can determine that we are dealing with a
horse issue. That might be simple, you think, but what about the new invention of
the Mule? Are they covered by the law of the horse? What about unicorns? Most
certainly these are science fiction, but a quick glance at the Wikipedia entry on
horse17 leads us to the realm of the Equids, with members such as the donkey,
mountain zebra, plains zebra and crossbreeds such as the mule, hinny, jenny and
zorse.
Of course all of this deals with the classification of events, facts, observations
into legal categories, similar to the earlier e-commerce example. E-commerce might
be a species of the genus contracting, just like a donkey is a species of the genus
equus. Qualification and classification are tasks any legal scholars is trained in.
Having said that, in Easterbrook’s view, the general legal concepts and mech-
anisms are flexible and can cope satisfactory with new phenomena. The criminal
provisions regarding manslaughter do not distinguish between knives, guns and
poison, they are simply means to accomplish death (in certain cases).
Before Easterbrook, legal philosopher Lon Fuller had a similar message when he
wrote that good law is the law which is possible to obey.18 Legal compliance is
probably easier to achieve with a limited set of general rules, rather than with a
large set of specific rules for every new topic.
To stay with the law of the horse. Supposing that the law of the horse would
exist, having a single set of rules applicable to all horse-likes would be preferable
over a statute with specific rules for all horse-likes.

1.3 Regulating Technology

From the foregoing it is clear that we should be careful with interventions in

technological development. Not so much because of phenomena such as
Collingridge’s dilemma—“When change is easy, the need for it cannot be foreseen;
when the need for change is apparent, change has become expensive, difficult, and
time-consuming.”,19—but simply because of the old saying “if it ain’t broke, don’t
fix it”. All too easily we hear claims that the law is inadequate, without it being

17
https://en.wikipedia.org/wiki/Horse. Last accessed 23 October 2018.
18
Fuller 1969.
19
David Collingridge quoted in Morozov 2013b, p. 255.
8 R. Leenes

clear what the actual regulation is or requires with respect to the technology in
question.20
We can observe that in domains like big data, where entrepreneurs and devel-
opers literally ask for establishing “Pirate Islands” with few or no rules where they
can experiment without fear for fines. In robotics and many other domains the
sirens of ‘Pirate Island’ and ‘Experimental zones’ can also be heard. These were, or
are to be created to limit the scope or effects of rules that supposedly hamper
innovation. When asked what rules actually hamper innovation,21 the silence is
often deafening. The call for lessening the burden of rules seems related to the knee
jerk reaction that new law is required to cope with technological innovation.
The fact that scientists do not know the rules that define their playing field while
maintaining that they are constrained by them is problematic. For starters, igno-
rantia juris non excusat (“ignorance of the law excuses not”), and second, the law
has normative force, the rules are supposed to be adhered to. To take an example
out of a different, highly regulated domain, every professional cook is aware of the
significant amount of rules applying to their business. Enforcement, including
non-legal by TV shows like GourmetPolice, has helped raise awareness, and likely
compliance.
Developers consider the law and legal and ethical requirements not for them, but
for others and they happily muddle along as if they are unconstrained. That is, until
corporate legal, or some supervisory authority or Media come into play. A recent
example in this space is the Cambridge Analytica affair.22
Of course it is not always easy to determine the applicable rules because the
norms are abstract, they talk about products, services and not so much about
household social robots. We always have to qualify everyday phenomena into the
appropriate legal terms and interpret legal concepts and rules. And of course, there
are also real tensions because existing regulation may have undesired effects,
lacunae, or different legal regimes may lead to conflicting results. And not always
should actors blindly follow the law. Sometimes the law really is outdated and
requires change. But we need to look at things from the proper perspective and we
have to keep in mind that different interests need to be balanced.
In my understanding,23 there is an interaction between innovation/technological
development, regulation and normative outlooks such as privacy and, autonomy. If
one of the edges changes, then the other two do as well. Regulation could be

20
See Leenes et al. 2017, p. 7.
21
One extreme example of a claim that rules are in the way of innovation is Consumer
Technology Association President Gary Shapiro’s statement at a House Oversight Committee
hearing on artificial intelligence that the GDPR is “going to kill people, because if you can’t
transfer, for example, medical information from one hospital to another in the same region, that has
life consequences.” https://www.axios.com/gary-shapiro-gdpr-kill-people-1524083132-e3d317c0-
7952-4a55-9c2d-c84d82dc03e7.html. Last accessed 16 October 2018.
22
See the excellent Guardian dossier “the Cambridge Analytica Files” https://www.theguardian.
com/news/series/cambridge-analytica-files. Last accessed 16 October 2018.
23
This is one of the models that inspires our work at TILT.
1 Regulating New Technologies in Times of Change 9

adapted on the basis of technological development, but our (perception of) values
may equally change. For instance Facebook’s defining social interactions online
seems to have affected how we appreciate privacy. The mutual-shaping perspective
that is implied in this model, departs from the assumption that there is a funda-
mental interdependence between social, technological, and normative transforma-
tions. This interdependence exists in an ongoing process of socio-technological
change that is dynamic and open-ended, and that occurs in the context of a specific
time and place (Fig. 1.1).24
Yet, as discussed earlier, regulation is commonly seen as an impediment to
innovation. In the context of the GDPR, someone stated “… it’s also going to kill
people”.25 Now of course, this person had a particular stake in the debate (did I
mention he is a lobbyist?), but the fear that regulation hampers technological
development is prominent. What is interesting in this respect is that people rarely
complain about gravity impeding innovation. Gravity is simply taken as a design
constraint. Why the opposition against regulation, which in many cases simply can
be taken as yet another constraint?26
Whether regulation impedes innovation or is a necessary constraint that should
be taken as it is depends amongst others on the context.
There is a difference between testing an autonomous vehicle (that is a big word
for a car that is less than 10 cm long) that should be racing on a slot car race track
and the kind of testing required to get vehicles like Tesla’s self-driving cars on
public roads. Teslas will have to be tested under realistic circumstances, and hence
will have to drive on public roads. It simply does not matter it performs well on the
test track. What does matter is that it will not hit unexpected obstacles, such as
trucks.27 A legal obstacle in this realm has been the Vienna Convention on Road
Traffic. Article 8(1) of this convention requires that “[e]very moving vehicle or
combination of vehicles shall have a driver.”28 Arguably, driver means human
driver in this provision.29 In the Tesla case, this legal obstacle is manageable.
A Tesla has a driver behind the steering wheel and hence the car satisfies the
conditions of Article 8 of the Vienna Convention. However, the future of
self-driving vehicles will likely be one without steering wheels. The existing rules
then have consequences. Either we ban self-driving vehicles from public roads
through the enforcement of the national road traffic laws based on Article 8 of the
Vienna Convention, or we change the regulation removing the requirement for a

24
Boczkowski 2004, pp. 255–267.
25
See n. 22.
26
Of course I know that regulation can be changed and gravity cannot, but still.
27
See https://www.theguardian.com/technology/2016/jun/30/tesla-autopilot-death-self-driving-
car-elon-musk for an account of the first time it became clear that the Tesla Autopilot was not
ready in this respect, yet. Last accessed 17 October 2018.
28
For more on regulating self-driving vehicles, see Leenes and Lucivero 2014.
29
Article 1(v) of the Vienna Convention defines “driver as (v) “Driver” means any person who
drives a motor vehicle or other vehicle (including a cycle), or who guides cattle, singly or in herds,
or flocks, or draught, pack or saddle animals on a road”.
10 R. Leenes

Fig. 1.1 The interplay

between regulation,
technology development, and
normative notions in the
context of society. [Source
The author]

driver to be physically present. At least, if we want these cars on the roads soon.
This question is further addressed in Chap. 5 of this contribution.
This is where multiple interests come into play. Not everyone is convinced that
we should cast aside all limitations in road traffic regulation to pave the way for
driverless cars and some feel that we must resist the pressure from industry and
developers. One of the reasons to be careful is that industry and large corporate
players mobilise a strong lobby to get the rules they want (regulatory capture).30
Maybe prudence should prevail over speed in terms of adaptation of the regulatory
framework for self-driving vehicles produced by Waymo, Tesla, etc.
Legal action is required for other phenomena in the space of autonomous
vehicles however. Not only the car industry (and interestingly enough Search
engine giant Google (Waymo)) is racing to get a firm position in the market for
autonomous vehicles, there is also a Do-it-yourself scene. Renowned iPhone and
PlayStation hacker George Holz is eager to ship a 999 USD costing green box,
called Comma One,31 which turns certain types of Hondas into cars with the same
functionality as the Tesla S. Not quite a self-driving car, but it can drive quasi
autonomously. I do not know how adventurous you are, but I am certainly not
going to hand over control of my car to a small green box with significantly less
computing power than my iPhone. In cases like these, I feel we need authorities that
enforce the existing rules. Fortunately, the US National Highway Traffic Safety
Administration agrees with me and has informed George Holz that he will have to
comply with the safety requirements for motor vehicles.32 Is this hampering
innovation or a necessary reminder of his responsibilities? I think the reminder that
the norms are there to be observed was essential. George Holtz did not agree and to
circumvent his liability and responsibility under the Motor Vehicle Safety Act, he
posted the software and schematics of the green box on Github, facilitating the

30
See Stigler 1971, pp. 3–21.
31
See https://techcrunch.com/2016/09/13/comma-ai-will-ship-a-999-autonomous-driving-add-
on-by-the-end-of-this-year/. Last accessed 17 October 2018.
32
See https://www.scribd.com/document/329218929/2016-10-27-Special-Order-Directed-to-
Comma-ai. Last accessed 17 October 2018.
1 Regulating New Technologies in Times of Change 11

daring among us to try it out.33 If you want to keep one lesson from this talk, then
this is it: do not try this at home.

1.4 Connecting the Dots

Establishing that there is regulatory disconnect, such as in the case of the driver
requirement for self-driving cars, or that the regulation contains lacunae is actually
difficult. Nevertheless, it is a necessary step in the field of technology regulation.
We cannot simply jump to the conclusion that we need new law, new rules.
In my teaching, I have used this work in progress model to illustrate the steps
and some of the questions that need to be asked (Fig. 1.2).
Let me illustrate this by means of my simple Law Technology and Society
(LTS) model. Moving through the model from left to right as I think we should be
doing. Starting with (1) the technology. This step seems easy, but actually is not.
There seem to be two conflicting approaches here. The start of the conversation
might be an instance of a particular type of technology, let us take the well-known
Google self-driving vehicles as an example. Then the discussion focusses on this
very specific instance of the technology, or we move to the broad super-category of
‘self-driving vehicles’.34 Neither approach seems desirable. In the first we might
focus on the potentially coincidental features of the technology that then determines
how to proceed towards regulation,35 in the latter case, the discussion runs the risk
of becoming abstract and unhelpful because of the generalisation.
Lyria Bennett Moses36 rightfully addresses the problem of addressing ‘tech-
nology’ as a regulatory target and instead calls attention for looking at the
socio-technical landscape, which resembles my earlier call for a mutual shaping
perspective. In this phase, taking a socio-technical lens we should determine what
the technology of focus actually is, what its relevant characteristics are and which
interests are at stake or are being promoted.
In the next stage (stage 2), the issues raised by the technological development are
addressed. Here all sorts of distinctions can be made with respect to the issues. Are
we talking about potential risks (autonomous vehicles may have to make decisions
about whether to hit the child chasing a ball on our side of the road, or the elderly

33
See https://www.slashgear.com/comma-ai-self-driving-agent-open-sourced-after-comma-one-
fail-01465892/ and https://github.com/commaai/openpilot. Last accessed 17 October 2018.
34
Or take the other grand technologies of fame, such as nanotechnology, biotechnology, neu-
rotechnology, etc.
35
For instance, in the US the focus in developing self-driving vehicles seems to be on the
autonomy of the car based on sensors in the car. In Europe there is much more attention for
collaboration between the vehicle and its environment to establish the intended autonomy. See
Leenes and Lucivero 2014 for more information on these differences in approach.
36
Bennett Moses 2013.
12 R. Leenes

Fig. 1.2 The regulating technology (development) model v1. [Source The author]

couple crossing the street from the other side),37 or are there manifest problems
already (such as autonomous vehicles causing accidents on public roads). Again,
the socio-technical context as well as the various stakeholders came into play. Who
defines the problems or places topics on the agenda, who are the stakeholders
anyway, etc.? At this stage, also the question that I have beaten to death so far, what
does the current law have to say about this problem/technology comes into view.
Then if there is a regulatory gap, we might consider intervening (stage 3). Here,
regulation comes into play. There appear to be three broadly accepted under-
standings of what ‘regulation’ is.38 In the first, regulation is the promulgation of
rules by government accompanied by mechanisms for monitoring and enforcement,
usually assumed to be performed through a specialist public agency. The second
assumes regulation to be any form of direct state intervention in the economy,
whatever form that intervention might take. The third one takes regulation to be all
mechanisms of social control or influence affecting all aspects of behaviour from
whatever source, whether they are intentional or not. I subscribe to Julia Black’s
decentred conceptualisation of regulation, which moves beyond the state as the sole
regulator and which includes other modalities of regulation. Regulation, then, is
‘the sustained and focused attempt to alter the behaviour of others according to

37
Think of Applied Trolley Problem here.
38
Black 2002.
1 Regulating New Technologies in Times of Change 13

standards or goals with the intention of producing a broadly identified outcome or

outcomes, which may involve mechanisms of standard- setting,
information-gathering and behaviour-modification’.39 In this stage, questions need
to be raise who is to intervene, who (or what) to address, through which (combi-
nation of) means (e.g. law, norms, architecture, markets).
At all places in the model we need to ask critical questions. There are many tools
that can help us in this respect.
Many of us (legal scholars), take for granted that we need regulation to cope
with undesirable results of technology and innovation. But increasingly, I do not
take that for granted and I become more sensitive to the position taken by econ-
omists and many American legal scholars that regulation is only permissible to
address market failures, like unfair competition, windfalls etc. In Europe, we
acknowledge that also protecting human rights (for instance privacy and data
protection) and even furthering social goals such as solidarity are equally appro-
priate goals.40 Yet, regulation should not be our first reflex. Ideally, we should not
just regulate ‘just because we can’. Lawyers too may suffer from hammer syndrome
(nails everywhere)! Let the market handle things.
The regulator needs to justify that a problem fits within one of the three cate-
gories market failure, human rights protection, conflict resolution to warrant
intervention. Interestingly, the box ticked then also provides some guidance as to
how to regulate. For instance, in the case of Uber, one could argue that all sorts of
costs (like insurance) are not incorporated into the price of the service and that Uber
can therefore charge lower prices than traditional taxi services. To create a level
playing field, Uber could be obliged to insure their drivers just like any (other) taxi
service does. On the other hand, maybe the traditional taxi services are at the root of
market failure here. Maybe the compulsory license system present in many cities is
preventing newcomers entering the market and this issue should be addressed.
I close this part with a claim that determining regulatory disconnect/failure is
difficult. I refer to our work on the cookie wars for a case study on what we consider
to be an example of regulatory failure.41

1.5 Solutions

We will now briefly look at solutions. A suitable case to explore a little is

self-driving vehicles. We do not know exactly yet what these will look like or what
their requirements are with respect to the (road) infrastructure. Hence regulating
these vehicles is not straightforward. We need flexibility. Does this mean

39
Black 2002, p. 26; Black 2005.
40
Prosser 2010, pp. 11–20.
41
Leenes and Kosta 2015; Leenes 2015.
14 R. Leenes

experimental regulation or sunset provisions?42 I am not going into details what this
means exactly because I think their names are self-explanatory.43
The crux of both is that they are temporary measures, implying that they can be
changed and thus provide for flexibility. This type of regulation provides legal
certainty because there are rules. But this certainty is also (time) limited. We know
that the rules may change in the case of experimental rules and we know that they
may change or terminate at time T+1.
This is one way of coping with the flexibility required by innovation. There is
another way of achieving flexibility. We can try to regulate behaviour by clear rules
or by more abstract principles.44 This distinction is not orthogonal to that of
experimental versus fixed regulation, but merely addresses the form of the norms.
Principles and rules are encountered all over the law. In (continental) civil law
principles and concepts such as “reasonable” or “equitable” and in data protection
we find calls for “appropriate” technical and organisational measures to be taken to
ensure a level of security appropriate to the risk (Article 32 General Data Protection
Regulation (GDPR)).45 These vague and or open textured concepts are further
developed in case law and handbooks. Yet, they are incredibly flexible and allow
for new phenomena and risks to be incorporated or excluded over time.
On the other hand we have clear rules. The Dutch constitution contains a very
clear provision in Article 13, which states that telegraph messages are secret
(protected).46 Which means something like communication by telegraph is pro-
tected communication. Telegraphs are out of fashion now, but referred to a clearly
defined technology. The rule makes very clear what is protected but in a way turned
out not to be future proof. The scope of communication secrecy was clearly defined
in Article 13 of the Dutch Constitution: telegraph, telephone, letters. But then we
got new communication technologies: fax, email, SMS. What about their protec-
tion? Strict/literal interpretation rules them out, teleological interpretation poten-
tially not (all). Moving towards technology-neutral provisions47 is a common
solution to this kind of problems. Instead of mentioning the specific technologies
(letter, telephone, telegraph), regulate communication. Instead of requiring a driver
to be present to keep the vehicle under control, regulate that the vehicle must be
safe for passengers and bystanders at all times. The notion of technology-neutral
regulation is of course not new, but does change the discourse about regulatory
approach.

42
Of course any regulation can be adapted, but it if the regulation itself contains conditions for its
review and change, actual adaptation is much easier because the review is automatically triggered,
rather than requiring some actor to initiate it.
43
See Ranchordás 2014 for an extensive account of the various concepts in this space.
44
These are also called standards, which is kind of confusing because standards in the context of
certification are actually quite precise. On regulation by rules and principles see Braithwaite 2002.
45
Regulation (EU) 2016/679.
46
In Dutch: “Het telegraafgeheim is onschendbaar.”
47
See Koops 2006.
1 Regulating New Technologies in Times of Change 15

By the way, in practice, we also see counter examples. The previous Dutch
minister of Traffic thought she could limit the number of lethal bicycle accidents by
prohibiting people to use their smartphone while riding a bike.48 The abstract
provision that you have to be vigilant in traffic would thus be transformed into a
very specific prohibition.

1.6 Conclusion

In this final section, I want to briefly touch on a few issues of technology regulation.
There is, as you will have noticed, a clear issue with principle-based regulation and
also with all types of experimental regulation. They imply legal uncertainty. We do
not know yet what appropriate measures are under de GDPR. Time and courts will
tell. Uncertainty is unavoidable in a highly dynamic environment. The law has
(successfully) coped with this for thousands of years. But, there are also other issues
we need to keep in mind.
An important one is regulatory capture. I mentioned this already in passing.
Interested parties, industry at the forefront, will invest significantly in getting their
way. In getting the regulation they want. See the net neutrality battle in the US.49
Some are fully aware of this, for instance in the case where the consumer watchdog
in the US called to withstand Google’s pressure for swift regulation of autonomous
vehicles.50
Regulation is also a means to prevent newcomers to enter the market. Uber for
instance claims that the traditional taxi companies have fostered a licensing system
as a barrier to entry. Whether they are right is hard to tell as I already mentioned.
Another issue is that we should be aware that not all norm addressees are equal.
Why do some people comply with the rules, while others do not? Kagan and
Scholtz provide a useful distinction that we need to keep in mind.51 Amoral cal-
culators make cost-benefit assessments and then determine whether they comply
with the rules or not. The content of the rules does not matter, the fines do.
A different group is that of the political citizens who do not follow certain rules as a
matter of civil disobedience. And then there are the organisationally incompetent.
These are the ignorati, they do not know or understand the rules. We need to be
aware that all three types operate in the same space and we should not assume too
easily that the rules are inadequate.

48
https://www.rtlnieuws.nl/editienl/bellen-of-appen-op-de-fiets-het-zou-verboden-moeten-
worden. Last accessed 17 October 2018.
49
See, for instance, https://www.politico.com/story/2015/02/net-neutrality-a-lobbying-bonanza-
115385. Last accessed 17 October 2018.
50
See http://www.bodyshopbusiness.com/consumer-watchdog-group-urges-california-dmv-to-
ignore-pressure-from-google/. Last accessed 17 October 2018.
51
Kagan and Scholtz 1984, p. 494.
16 R. Leenes

The world of technological development and innovation is full of pioneers, but

there are also pirates. We will have to cope with both.
And then there is one more thing. We live in the sharing economy. Maybe that is
indeed the next big thing, but let us not forget that we are in uncharted territory with
lots of promises that may not hold. The website The Drive had an interesting article
in December 201652 about the mobility bubble, with the compelling caption “When
the Mobility Bubble Bursts, Which Companies Go ‘Pop’?” over an image of the
burning Zeppelin Hindenburg in New York. Uber at that point in 2016 had lost 1.2
Billion USD per six months in 2016 without a clear business model. Do we really
take experiments like these as guiding lights for new regulation?

References

Bennett Moses L (2013) How to Think about Law, Regulation and Technology: Problems with
‘Technology’ as a Regulatory Target. Law Innovation and Technology 5:1
Black J (2002) Critical reflections on regulation. Australian Journal of Legal Philosophy 27:1–35
Black J (2005) What is Regulatory Innovation? In: Black J, Lodge M, Thatcher M
(eds) Regulatory Innovation. Edward Elgar, Cheltenham
Boczkowski PJ (2004) The mutual shaping of technology and society in Videotex newspapers:
Beyond the diffusion and social shaping perspectives. The Information Society 20:255–267
Braithwaite J (2002) Rules and Principles: A Theory of Legal Certainty. Australian Journal of
Legal Philosophy 27:47–82
Brownsword R (2008) Rights, Regulation and the Technological Revolution. Oxford University
Press
Fuller L (1969) The Morality of Law. Yale University Press
Kagan R, Scholtz J (1984) The criminology of the corporation and regulatory enforcement
strategies. In: Hawkins J, Thomas J (eds) Enforcing Regulation. Kluwer, Alphen aan den Rijn,
pp 67–95
Koops B-J (2006) Should ICT Regulation be Technology-Neutral? In: Koops B-J, Lips M,
Prins C, Schellekens M (eds) Starting Points for ICT Regulation - Deconstructing Prevalent
Policy One-Liners. T.M.C. Asser Press, The Hague, pp 77–108
Koops B-J, Lips M, Prins C, Schellekens M (eds) (2006) Starting Points for ICT Regulation -
Deconstructing Prevalent Policy One-Liners. T.M.C. Asser Press, The Hague
Leenes R (2015) The Cookiewars – From regulatory failure to user empowerment? In: van
Lieshout M, Hoepman J-H (eds) The Privacy & Identity Lab; 4 years later. Privacy & Identity
Lab, Nijmegen, pp 31–49
Leenes R, Kosta E (2015) Taming the Cookie Monster with Dutch Law – A Tale of Regulatory
Failure. Computer Law & Security Review 31:317–335
Leenes R, Lucivero F (2014) Laws on Robots, Laws by Robots, Laws in Robots: Regulating
Robot Behaviour by Design. Law, Innovation, and Technology 6:194–222
Leenes R, Palmerini E, Koops B-J, Bertolini A, Salvini P, Lucivero F (2017) Regulatory
Challenges of Robotics: Some Guidelines for Addressing Legal and Ethical Issues. Law,
Innovation and Technology 9:1, 1–44
Lessig L (1999) The Law of the Horse: What Cyberlaw Might Teach. Harvard Law Review
113:501–549

52
See http://www.thedrive.com/tech/6491/when-the-mobility-bubble-bursts-which-companies-
go-pop. Last accessed 14 November 2018.
1 Regulating New Technologies in Times of Change 17

Ministerie van Justitie (1997–1998) Nota Wetgeving voor de elektronische snelweg,

Kamerstukken II 25 880 1997–1998
Morozov E (2013a) ‘To Save Everything, Click Here’ - Technology, Solutionism and the Urge to
Fix Problems That Don’t Exist. Allen Lane, London
Morozov E (2013b) The Collingridge Dilemma. In: Brockman J (ed) This explains everything.
Harper Perennial, New York, p 255
Murray A (2013) Looking Back at the Law of the Horse: Why Cyberlaw and the Rule of Law are
Important. SCRIPTed 10:310
Prosser T (2010) The Regulatory Enterprise: Government Regulation and Legitimacy. Oxford
University Press
Ranchordás S (2014) Constitutional Sunsets and Experimental Legislation: A Comparative
Perspective. Edward Elgar Publishing, Cheltenham
Stigler G (1971) The Theory of Economic Regulation. Bell Journal of Economics and
Management Science 2:3–21

Ronald Leenes is full professor in regulation by technology at the Tilburg Institute for Law,
Technology, and Society (Tilburg University). His primary research interests are regulation by
(and of) technology, specifically related to privacy and identity management. He is also motivated
by and trying to understand the effects of profiling, function creep and privacy infringements in
general. A growing area of interest in his portfolio is the potential and negative effects of Big Data
Analytics.
Chapter 2
Regulating New Technologies
in Uncertain Times—Challenges
and Opportunities

Leonie Reins

Contents

2.1 Introduction........................................................................................................................ 20
2.2 The Scope: Democratic Governance, Market Regulation, and Data ............................... 21
2.3 The Contributions.............................................................................................................. 22
2.3.1 Part I: New Technologies and Impacts on Democratic Governance .................... 22
2.3.2 Part II: The Economic Perspective—Market Regulation of New Technologies ........ 25
2.3.3 Part III: The Data in New Technologies ............................................................... 26
2.4 The Way Forward ............................................................................................................. 28
References .................................................................................................................................. 28

Abstract This chapter provides an introduction to the volume on Regulating New

Technologies in Uncertain Times—Challenges and Opportunities. The volume is
structured along three main themes that capture the broader topic of “Regulating
New Technologies in Uncertain Times”. These three themes are: 1. The relationship
between new technologies on democratic governance; 2. Market regulation and
new technologies; and 3. The data in new technologies. It is considered that these
three themes encapsulate some of the most pressing regulatory challenges in respect
of new technologies and are therefore worth assessing in more detail. In this
introductory chapter, the three main themes that feature in this volume are dis-
cussed, before providing a brief introduction to all fourteen individual
contributions.

Keywords regulation
new technologies
democratic governance
markets

data

L. Reins (&)
Tilburg Institute for Law, Technology, and Society (TILT), Tilburg University, Tilburg, The
Netherlands
e-mail: [email protected]

© T.M.C. ASSER PRESS and the authors 2019 19

L. Reins (ed.), Regulating New Technologies in Uncertain Times,
Information Technology and Law Series 32,
https://doi.org/10.1007/978-94-6265-279-8_2
20 L. Reins

2.1 Introduction

Technology has the ability to serve humans and to make our lives easier. Yet, in
doing so, technology disrupts. It changes the status quo by enabling new forms of
interaction, new types of medical treatment or new forms of energy generation.
These new applications of technologies are often accompanied with uncertainty as
to their long-term (un)intended impacts. That is why regulators across the globe
seek to strive a balance between the appropriate protection of societies against these
risks, whilst at the same time trying not to stifle the development of these new
technologies. However, societies and the citizens that live in them, have different
collective and individual preferences in terms of the amount of uncertainty and the
type of risk that they are willing to accept. The way in which regulation can address
these differing, and sometimes conflicting, societal objectives is therefore a crucial
question of legal research. New technologies also raise questions about the
boundaries of the law as the line between harmful and beneficial effects often
becomes difficult to draw. Societal acceptance of new technologies is essential to
making them a success. Yet, societal acceptance is increasingly difficult in times
that can easily be described as “uncertain”.
With nearly one fifth of the 21st century behind us, it is safe to conclude that
mankind finds itself confronted with several significant challenges. These relate, for
instance, to the need to adapt to rising temperatures, the need to distribute resources
among an ever-increasing global population, and the need to ensure that digital-
ization and artificial intelligence does not exceed the limits of human control. At the
same time, global institutions are under pressure and multilateral collaboration
seems to have had to cede ground to unilateralism by sovereign nations.
Against this background, the question that arises is how technologies that are
developed through human ingenuity and which can contribute to solving the
problems humanity currently faces, can be regulated in a manner that safeguards
basic principles and human rights, without simultaneously stifling the development,
implementation and application of these technologies in practice. Considering the
intrinsic linkage with innovation, and the corresponding concept of novelty, it is
considered that—notwithstanding the benefits of wisdom and experience shared by
older generations—young legal scholars can provide valuable insights in this
regard. Thereto this volume presents fourteen high-quality contributions by par-
ticipants in the first Ph.D. Colloquium on “Regulating New Technologies in
Uncertain Times”, organized by the Tilburg Institute for Law and Technology
(“TILT”) at Tilburg University (The Netherlands) in June 2018.
The Ph.D. Colloquium brought together 19 young researchers / Ph.D. candidates
from over 12 universities in eight countries. The Colloquium saw presentations
organized along several themes, such as patents and innovation, energy law and
new technologies, new technologies and human rights, automation and artificial
intelligence, new technologies and algorithms, new technologies and competition
law, data protection, and humans and health.
2 Regulating New Technologies in Uncertain Times … 21

In this introductory chapter, the three main themes that feature in this volume are
discussed, before providing a brief introduction to all fourteen individual
contributions.

2.2 The Scope: Democratic Governance, Market

Regulation, and Data

This volume is structured along three main themes that capture the broader topic of
“Regulating New Technologies in Uncertain Times”. These three themes are:
• The relationship between new technologies and democratic governance;
• Market regulation and new technologies; and
• The data in new technologies.
It is considered that these three themes encapsulate some of the most pressing
regulatory challenges in respect of new technologies and are therefore worth
assessing in more detail. In this regard, both the Colloquium and this edited volume
have adopted an approach that seeks to identify commonalities between the regu-
lation of wholly different types of technologies. It is hoped that the results of the
research endeavors by the researchers featured in this volume will contribute to a
better understanding of the challenges of regulating new technologies and balancing
different societal values in the process.
The idea of this volume is therefore to bring together legal researchers who study
the regulation of new technologies from different legal background in order to
identify common problems and also some common solutions in terms of the reg-
ulation of these technologies. The aim is to learn from different legal disciplines and
to cross the boundaries that often exist between these disciplines. Consequently,
notwithstanding the three main themes identified, some of the contributions
examine the regulation of technology from a more theoretical perspective; i.e.
projects that deal with the broader underlying aspects of regulation such as legiti-
macy, trust, democracy, uncertainty, risk, precaution, competition and innovation.
Other contributions examine the regulation of a specific new technology in a
specific field, such as (public) health, data protection, cybersecurity, and intellectual
property, freedom of expression and autonomous driving.
Traditionally, risk regulation has been conceptualized as being either
technology-based, performance-based or management-based.1 Each of these three
forms of regulation has its own characteristics, merits and demerits, and may be
applied in different situations depending on the regulatory preferences at any given
point in time. Technology-based regulation is generally considered to reduce
uncertainty in respect of the operation of a specific-technology and (un)intended

1
Bonnín Roca et al. 2017, p. 1215; as well as Coglianese and Lazer 2003.
Another random document with
no related content on Scribd:
known throughout all the countries north of the Alps; Omnis orbis
cisalpinus Sintramni digitos miratur.[176]
In the two schools attached to St. Gall, lectures were given, in the
latter half of the tenth century, on Cicero, Quintilian, Horace,
Terence, Juvenal, Persius, Ovid, and Sophocles.[177] There was
even said to be among the monks of St. Gall a society established
for the study of Greek, called the Hellenic Brothers.[178] The
Duchess Hedwig of Suabia herself taught Greek to Abbot Burckhart
II. when he was a child, and rewarded him by the gift of a “Horace”
for his readiness in verse-making. The Abbot later described in verse
the embarrassment caused to him by a kiss with which the learned
Duchess had favoured him.[179] The Duchess had, when a young
woman, learned Latin from the Ekkehart who, later, became Dean of
St. Gall (Ekkehart I.), in partnership with whom she wrote a
commentary on Virgil. A very charming account of the tuition of this
fascinating young Duchess is given in Scheffel’s famous romance
called Der Treue Ekkehart. Arx states that Ekkehart III. and IV. and
Notker Labeo were familiar with Homer, Plato, and Aristotle, and
made from them Greek verses.[180]
There is every evidence to indicate that there was during the tenth
century a knowledge of Greek in certain monastery centres of South
Europe, which knowledge, two centuries later, had disappeared
almost entirely, so that the re-introduction into Italy of the writings of
Greek poets and philosophers in the thirteenth and fourteenth
centuries came as a fresh revelation. Mabillon contended that while
the monks made Holy Scripture the basis for their theological
studies, it is certain that they acquired apart from these studies, a
mass of other knowledge, and notably all that they could gather with
regard to physical science. Thence it arose that in mediæval works
the term scripturæ, or even scripturæ sacræ, does not always mean
the Holy Scriptures, but stands for all books which treat of Christian
or ecclesiastical truths or which are useful aids in understanding the
Word of God.[181] Montalembert, commenting on this passage, goes
on to say that to the monk of the tenth century no knowledge was
unfamiliar. Philosophy in its scholastic form, grammar and
versification, music, botany, mechanics, astronomy, geometry in its
most practical application, all of these were the objects of their
research and of their writings. The curious poem addressed by the
monk Alfano to Theodoric, son of the Count Marses and at the time
a novice at Monte Cassino, is cited in support of this view. The poem
presents a detailed account of the daily occupations in the great
monastery, in which occupations literary work holds a very large
place. It also gives a summary of the scholastic pursuits carried on in
the monastery.[182]
A service possibly even greater than that of the preservation of
literature and of the keeping alive of an intellectual spirit, was
rendered by the monks in the great educational work carried on by
them. In the Monasterium Resbacense, in Brieggan, founded by
Bishop Andœnus in 634, whose first abbot, S. Ægilius, was a pupil of
S. Columban’s, the list of books in the scriptorium included Cicero,
Virgil, Horace, Terence, Donatus, Priscian, and Boëthius. Of later
authors, the works of Beda, Isidore, Aldhelm, the Gesta Francorum,
etc.[183] By the time of Charles Martel and the battle of Poitiers, there
had been much plundering and devastation of the monasteries and
convents, the effects of which remained even after the Arabs were
driven back. During the tumultuous reigns of the Pepins, many
clerics returned to or took up the profession of arms, and devotion
and literature were alike neglected.[184] The biographer of S. Eligius,
writing in 760 (under Pepin) says:[185]
“What do we want with the so-called philosophies of Pythagoras,
Socrates, Plato, and Aristotle, or with the rubbish and nonsense of
such shameless poets as Homer, Virgil, and Menander? What
service can be rendered to the servants of God by the writings of the
heathen Sallust, Herodotus, Livy, Demosthenes, or Cicero?”
Fredegar, called Scholasticus, wrote his chronicle in a Burgundian
monastery, about 600. He complains that “the world is in its
decrepitude. Intellectual activity is dead, and the ancient writers have
no successors.”
The man to whom the revival of the literary interests of the
northern monasteries was largely due was the Archbishop
Chrodegang of Metz, 742-766, Chancellor of Charles Martel, a
Benedictine. He framed rules for the monasteries which restored
discipline and infused new life. His code was adopted throughout
France, Italy, and Germany, and even in England. A certain
uniformity of instruction was thus secured in the monastery schools
in singing, language, and script, which persisted almost until the time
of Alcuin, and the influence of which extended even beyond the
monasteries.
Mabillon tells a story of Odo, Abbot of Clugni (who died about
942), who was so seduced by the love of knowledge that he was led
to employ himself with the vanities of the poets, and resolved to read
the works of Virgil regularly through. On the following night, however,
he saw in a dream a large vase of marvellous beauty, but filled with
innumerable serpents, which, springing forth, twined about him, but
without doing him any injury. The holy man, waking and prudently
considering the vision, took the serpents to stand for the figments of
the poets, and the vase to represent Virgil’s book, which was painted
outwardly with worldly eloquence, but was internally defiled with the
vanity of impure meaning. From thenceforward, renouncing Virgil
and his pomps, and keeping the poets out of his chamber, he sought
his mental nourishment solely from the sacred writings.[186]
Honorius, the reputed author of the Gemma Animæ, writes in
1120: “It grieves me when I consider in my mind the number of
persons who, having lost their senses, are not ashamed to give their
utmost labour to the investigation of the abominable figments of the
poets, and the captious arguments of the philosophers, which are
wont inextricably to bind the mind that is drawn away from God in the
bonds of vices and to be ignorant of the Christian profession
whereby the soul may come to reign everlastingly with God; as it is
the height of madness to be anxious to learn the laws of an usurper
and to be ignorant of the edicts of the lawful sovereign. Moreover,
how is the soul profited by the strife of Hector, or the argumentation
of Plato, or the poems of Virgil, or the elegies of Ovid, who now, with
their like, are gnashing their teeth in the prison of the infernal
Babylon, under the cruel tyranny of Pluto.”[187]
 Peter the Venerable, who was Abbot of Clugni in the middle of the
twelfth century, is referred to by the historian Milner as a flagrant
example of the ignorance of the monastic authorities of his time.
Maitland finds cause for no little indignation with the hasty and ill-
founded statements of Milner, and devotes several chapters to an
account of the monastery of Clugni under the rule of Peter,
presenting very ample evidence of the literary activity and scholarly
interests of the abbot and of his close relations with the intellectual
leaders of his time, leaders who were, with hardly an exception,
monks and ecclesiastics. “Who will venture to say,” writes Maitland,
“that Peter would have been pilloried as an ignorant and trifling writer
if Milner had happened to have any personal knowledge of his
history and his works and if he had read in one of the long series of
Peter’s Epistles the words, Libri et maxime Augustiniani, ut nosti,
apud nos auro preciosiores sunt.”[188] (Books, and especially those
of S. Augustine, are esteemed by us as more precious than gold.)
The literary journeys of Mabillon were followed by similar journeys
on the part of Father Montfaucon and Edouard Martene, who were
both, like Mabillon, members of the learned Benedictines of St. Maur.
Mabillon’s journeys covered the period of the long wars following the
revocation of the Edict of Nantes (in 1685), including the campaigns
between France and England in the Low Countries. It was probably
due to these campaigns that his researches did not include any of
the monasteries of the lower Rhine, of Flanders, or of Brabant.
Martene’s journeys continued during a term of six years, in which
time he examined manuscripts in more than one hundred cathedrals
and at least eight hundred abbeys. The materials collected were
utilised first in the new edition of the Gallia Christiana, and later, in
five folio volumes, comprising only matter previously unpublished,
issued under the title Thesaurus Novum Anecdotorum. The account
of the journey was printed under the title Voyage Littéraire de Deux
Religieux Benedictins.
In 1718, Martene and Montfaucon were again sent on their literary
travels, and the later collections were issued in 1724 in nine folio
volumes, under the title Veterum Scriptorum et Monumentorum
Historicorum, Dogmaticorum, Moralium, Amplissima Collectio. I
specify these works of the literary Benedictines because, although
by their date they do not properly belong to my narrative, they form a
very important authority for what is known of the literary history of the
monasteries. In some of the monasteries which had in earlier times
been famous as centres of literary activity, the libraries were found
by Mabillon and Martene in a grievous condition of destitution and
dilapidation. At Clugni, for instance, they describe the catalogue
(itself six hundred years old), written on parchment-covered boards
three feet and a half long and eighteen inches wide (grandes
tablettes qu’on ferme comme un livre), containing some thousands
of titles, but of the books there remained scarcely one hundred.
Martene was told that the Huguenots had carried them off to
Geneva. At Novantula, of all its former riches Mabillon found but two
manuscripts; and at Beaupré, of the great collection of manuscripts
there remained but two or three; while many other famous libraries
were in similar condition. The destruction of so large a portion of the
collection of manuscripts and of the earlier printed books was due to
a variety of causes. During the ninth century, the ravages of the
Danes and Normans brought desolation upon a long list of the
monasteries throughout Europe which could most easily be reached
from the coast. In the index to the third volume of Mabillon’s annals,
is given a long list of the Benedictine monasteries pillaged or
destroyed by the Normans. The record begins Normanni, monasteria
et eis incensa, eversa, direpta. In many of these visitations the loss
of books must have been considerable. When, for instance, the
abbey of Peterborough in Northamptonshire was burned by the
Danes in the year 870, Ingulph records the destruction of a large
collection of books, sanctorum librorum ingens bibliotheca.[189]
Maitland points out that this expression probably stood for really a
great library, as when Ingulph speaks of the destruction in 1091 of
the collection of 700 volumes belonging to his own monastery, he
does not so describe it.[190]
Serious ravages were also made in Central Europe in the tenth
century by the Hungarians. Martene says that after the battle on the
river Brenta, the pagans advanced to Novantula, killed many of the
monks, and burned the monastery with a number of books, codices
multos concremavere.[191] The monasteries in Italy suffered primarily
from the Saracens, and those in Spain from the Moors. The losses
caused by the religious wars of the later centuries were, however,
according to Mabillon, much more serious than those brought about
by the pagans. The Calvinists are held responsible for the
destruction, among others, of St. Theodore, near Vienna, of St.
Jean, Grimberg, Dilighen, of Jouaire, and, most important of all, of
Fleury.[192] The ravages caused by fire were possibly greater than
those produced by war, many of the collections having been kept in
wooden buildings. Among the noted monasteries which suffered in
this way were Gembloux, Liége, Lucelle, Loroy, St. Gall, Fulda,
Lorsch, Croyland, and Teano near Monte Cassino. In the burning of
the latter perished, as Mabillon was informed, the original manuscript
of the famous Rule of S. Benedict. Martene speaks of the Church of
Romans in Dauphiny as having been ruined six times: by the Moors,
by the Archbishop Sebon, twice by fire, by Guigne Dauphin in the
twelfth century, and finally by the Calvinists. The library at the time of
his visit still contained a few manuscripts.
In view of these various classes of perils, it may well be a matter of
wonder, not that the monastic collections have so largely perished,
but that so considerable a number of manuscripts has been
preserved. The fact that so many mediæval manuscripts have
escaped destruction by fire and flood, and have been saved from the
ravages of invading pagans or of contending Christians, seems
indeed to be good presumptive evidence of the enormous activity of
literary production in the monastery scriptoria during the centuries
between 529 and 1450, the date of the founding of Monte Cassino,
and that of the invention of printing.
The Libraries of the Monasteries and Their
Arrangements for the Exchange of Books.—
Geoffrey, sub-prior of S. Barbe, in Normandy, is the author of a
phrase which has since been frequently quoted. In a letter written in
1170 to Peter Mangot, a monk of Baugercy, in the diocese of Tours,
he says: “A monastery (claustrum) without a library (sine armario) is
like a castle (castrum) without an armory (sine armamentario). Our
library is our armory. Thence it is that we bring forth the sentences of
the Divine Law like sharp arrows to attack the enemy. Thence we
take the armour of righteousness, the helmet of salvation, the shield
of faith, and the sword of the spirit, which is the Word of God.”[193]
Among the monasteries whose collections of books were
noteworthy and whose literary exchanges were not infrequently
sufficiently important to be described as a publishing or bookselling
trade, may be mentioned the following: Wearmouth and Yarrow,
already referred to, the book production in which was active as early
as the seventh century; St. Josse-sur-Mer, where, in the ninth
century, the Abbot Loup of Ferrières is reported to have kept a depot
of books, from which he carried on an active trade with England[194];
Bobbio in Lombardy, the literary treasures in which have been
largely preserved in the Ambrosian library; the monastery of
Pomposa near Ravenna, whose library, collected by Abbot Jerome
in 1093, was said to be finer than any other of the time in Italy; La
Chiusa, whose collection rivalled that of Pomposa; Novalese, whose
library, at the time of the destruction of the abbey by the Saracens in
905, is reported to have contained no less than 6500 volumes[195];
and Monte Cassino, which under the Abbot Didia, a friend of
Gregory VII., possessed a very rich collection. This collection was
the result of the researches in Italy of the African Constantine, who,
after having passed forty years in the East studying the scientific
treatises of Egypt, Persia, Chaldea, and India, had been driven from
Carthage by envious rivals. He came to the tomb of S. Benedict,
where he assumed the monastic habit, and he endowed his new
dwelling with the rich treasures collected in his wanderings.[196]
There are also to be mentioned Fulda, whose library at one time
surpassed all others in Germany, excepting perhaps that of St. Gall;
Croyland, whose library in the eleventh century numbered 3000
volumes; and many others.
The work of Ziegelbauer gives in detail the old catalogue of the
library of Fulda and those of a number of other abbeys. The
estimates of the relative importance of these collections are in the
main based upon Ziegelbauer’s statistics. There seems to be no
question that these monastery libraries carried on with each other an
active correspondence and exchange of books, and that this
exchange business developed in not a few cases, as in that of St.
Josse-sur-Mer, into what was practically a book-trade. It is the
conclusion of Mabillon, as of Montalembert, that during the time in
which Christian Europe was covered with active monasteries and
convents in which thousands of monks and nuns were engaged in
constant transcription, books could hardly have been really rare, at
least as compared with the extent of the circle of scholars and
readers who required them.
Cahier points out that in addition to these great monastery
collections, there were libraries of greater or less importance in
nearly all the cathedrals, in many of the collegiate churches, and in
not a few of the castles. Mabillon is of opinion that the prices of
books during the Middle Ages have been very much overestimated,
and that the impression as to such prices has been largely based
upon isolated and misunderstood instances.[197] Robertson speaks
of the collection of Homilies bought in 1056 by Grecia, Countess of
Arizon, for two hundred sheep, a measure of wheat, one of millet,
one of rye, several marten skins, and four pounds of silver, but
Robertson omits to mention that the volumes so purchased were
exceptionally beautiful specimens of caligraphy, of painting, and of
carving. Maitland points out that it would be as reasonable to quote
as examples of prices in the nineteenth century the exorbitant sums
paid at special sales by the bibliomaniacs of to-day. “May not some
literary historian of the future,” he goes on to say, “at a time when the
march of intellect has got past the age of cumbersome and
expansive penny magazines and is revelling in farthing cyclopædias,
record as an evidence of the scarcity and costliness of books in the
nineteenth century, that in the year 1812 an English nobleman gave
£2260 and another £1060 for a single volume, and that the next year
a Johnson’s Dictionary was sold by public auction for £200. A few
such facts would quite set up some future Robertson, whose readers
would never dream that we could get better reading, and plenty of it,
very much cheaper at that very time.”[198]
 It is, of course, the case that there has been such a thing as
bibliomania since there have been books in the world, no less in the
manuscript period than after the age of printing. “The art of printing,”
says Morier, “is unknown in Persia, and beautiful writing is, therefore,
considered a high accomplishment. It is carefully taught in the
schools, and those who excel in it are almost classed with literary
men. They are employed to copy books, and some have attained to
such eminence in this art, that a few lines written by one of these
celebrated penmen are often sold for a considerable sum. I have
known seven pounds given for four lines written by Dervish Musjeed,
a celebrated penman, who has been dead for some time, and whose
beautiful specimens of writing are now scarce.”[199]
Robertson quotes in support of his general contention a statement
of Naudé to the following effect: “In 1471, when Louis XI. borrowed
from the Faculty of Medicine in Paris the works of Rasis, the Arabian
physician, he not only deposited as a pledge a considerable quantity
of plate, but was obliged to procure a nobleman to join with him as
surety in a deed, binding himself, under a great forfeiture, to restore
the volumes.”[200] In the eighteenth century, however, when Selden
wished to borrow a manuscript from the Bodleian Library, he was
required to give a bond for a thousand pounds. It does not, therefore,
follow that the reign of George II. was a dark age in English
literature.[201]
Maitland points out one very important detail, which served to give
to some individual manuscript a value that might, when later referred
to, appear disproportionate to the expense of the hand labour in its
preparation. Under the process of the multiplication of books by
printing, each copy of a given edition must of course be a fac-simile
of all the other copies, sharing their measure of correctness, and
equally sharing their blunders. In the manuscript period, however,
every copy of a work was of necessity unique, and the correctness of
a particular manuscript was no pledge for the quality even of those
which had been copied directly from it. “In fact, the correctness of
every single copy could be ascertained only by minute and laborious
collation, and by the same minuteness of method which is now
requisite from an editor who revises the text of an ancient writer.... If
a manuscript had received such a collation at the hands of
trustworthy scholars, and if it had been shown to present a text of
such completeness and accuracy as might safely be trusted as copy
for future transcripts, such a manuscript would undoubtedly be
valued at an exceptional price.”[202]
Muratori speaks of books when presented to churches being
offered at the altar, pro remedio animæ suæ,[203] and on this
quotation Robertson bases a further argument concerning the high
value of books. It was, however, the ordinary routine that when a
person made a present of anything to a church, it was offered at the
altar, and it was understood, if not always specifically expressed, that
such offering was made either for his own spiritual benefit or for that
of some other person. It was doubtless the case that gifts of books to
a church were rare as compared with the gifts of other things, for the
simple reason that nearly all the books that came into existence
were produced in the churches or in the attendant monasteries.
Delisle says that the loan of books from monastery libraries was
considered one of the most meritorious of all acts of mercy. Against
this view there are many examples of the formal prohibition of the
lending of any books outside of the walls of the monastery. Some
communities placed the books of their libraries under an anathema,
—that is to say, they forbade under pain of excommunication either
borrowing or lending. This selfish policy was, however, formally
condemned in 1212 by the Council of Paris, the Fathers of which
urged more charitable sentiments on these bibliophiles: “We forbid
monks to bind themselves by any oath not to lend books to the poor,
seeing that such a loan is one of the chief works of mercy. We desire
that the books of a community should be divided into two classes,
one to remain in the house for the use of the Brothers, the other to
be lent out to the poor according to the judgment of the abbot.”[204]
In support of his contention concerning the general disappearance
of literature during the Middle Ages, Robertson quotes the authority
of Muratori to the effect that, “even monasteries of considerable note
had only one missal.”[205] Maitland has no difficulty in showing that
the passage cited has been wrongly understood, and that the
generalisation based upon it is absurd. Muratori was referring to a
letter of a certain Bonus, who was for thirty years (1018-1048) Abbot
of the monastery of S. Michael, in Pisa. In this letter, Bonus gives an
account of the founding of the monastery, and says that when he
came to Pisa he found there, not a monastery, but simply a chapel,
which was in a most deplorable and destitute condition, wanting
vessels, vestments, bells, and nearly all the requisites for the
performance of divine service, and having no service-books but a
missal (nisi unum missale). The statement so worded is of course no
evidence that there may not have been several copies of the missal.
It simply shows that there were no other books (such as texts of the
Epistles or Gospels) for use in the service. Bonus goes on to say,
with commendable pride, that in fifteen years’ time “the little hut,” as
he calls it, had expanded into a monastery, with suitable offices and
with a considerable estate in land, the single tin cup had been
exchanged for gold and silver chalices, and in place of one “missal,”
the monks rejoiced in the possession of a library of thirty-four
volumes. It is difficult to understand how Robertson could have
justified himself in basing, on a careless version of a statement
concerning a missal in a single half-ruined chapel, a broad and
misleading generalisation concerning the general absence of books
from monasteries. The list of the library later secured by the abbot
includes copies of the Gospels, the Psalms, and the Epistles, the
Rule of S. Benedict, the Book of Job, the Book of Ezekiel, five
Diurnals, eight Antiphonarii, three Nocturnals, a tractate by S.
Augustine on Genesis, a book of Dialogues, a Glossary, a Pastoral,
a book of Canons, a book entitled Summum Bonum, five Missals, a
book entitled Passionarum unum novum ubi sunt omnes passiones
ecclesiasticæ (I give the wording from the catalogue), and the Liber
Bibliotheca. “Bibliotheca” is the term very generally applied at this
period to the Bible, and often used for a collection comprising but a
few books of the Bible. The catalogue shows that the good Abbot
had made a very fair beginning towards a monastic library.
The letters of Gerbert, Abbot of Bobbio (who, in 998, became
Pope under the name of Sylvester II.), throw some light upon the
literary interests of that famous monastery and of the time. He writes
(about 984) to a monk named Rainald (letter 130 of the collection):
“You know with what zeal I seek for copies of books from all
quarters, and you know how many scribes there are everywhere in
Italy, both in the cities and in the rural districts, I entreat you then ...
that you will have transcripts made for me of M. Manilius’ De
Astrologia, Victorinus’ De Rhetorica, and of the Ophthalmicus of
Demosthenes.... Whatever you lay out I will repay you to the full,
according to your accounts.” In letter 123, Gerbert writes to Thietmar
of Mayence for a portion of one of the works of Boëthius, his copy
being defective. In letter 9, written to Abbot Giselbert, he asks for
assistance in making good certain deficiencies in his manuscript of
the oration of Cicero, Pro Rege Deiotaro. In letter 8, to the
Archbishop of Rheims, he requests that prelate to borrow for him
from Abbot Azo a copy of Cæsar’s Commentaries. In return he offers
the loan of eight volumes of Boëthius. In letter 7, he requests his
friend Airard to attend to the correction of the manuscript of Pliny,
and to preparing transcripts of two other manuscripts. In letter 44, to
Egbert, Abbot of Tours, he states that he has been much occupied in
collecting a library, and that he had for a long time been paying
transcribers in Rome, in other parts of Italy, in Germany, and in
Belgium, and in buying at great expense texts of important authors.
He asks the Abbot to aid in doing similar work in France, and he
gives a list (unfortunately lost) of the works for transcripts of which
he is looking. He is ready to supply the parchment and to defray all
the expenses of the work. In other letters he makes reference to his
own writings on rhetoric, arithmetic, and spherical geometry.
These letters, for the reference to which I am indebted to
Maitland,[206] assuredly give the impression that even in the dark
period of the tenth century, there was no little activity in certain
ecclesiastical circles and monastic centres in the transcribing,
collecting, and exchanging of books, and not merely of missals,
breviaries, or monkish legends, but of literature recognised as
classic.
Another letter, written a century and a half later, makes reference
to the practice of exchanging books or of using them as pledges. A
prior writes to an abbot in 1150: “To his Lord, the Venerable Abbot of
—— wishes health and happiness. Although you desire to have the
books of Tully, I know that you are a Christian and not a Ciceronian.
But you go over to the camp of the enemy not as a deserter, but as a
spy. I should, therefore, have sent you the books of Tully which we
have, De Re Agraria, the Philippics, and the Epistles, but that it is not
our custom that any books should be lent to any person without good
pledges. Send us, therefore, the Noctes Atticæ of Aulus Gellius and
Origen on the Canticles. The books which we have just brought from
France, if you wish for any of them, I will send you.” The Abbot
replies at the end of a long letter: “I have sent you as pledges for
your books, Origen on the Canticles, and instead of Aulus Gellius
(which I could not have at this time), a book which is called
Strategematon, which is military.”[207]
The custom of securing books by chains, which prevailed with the
libraries of all the earlier religious institutions, did not originate with
these. Eusebius mentions that the Roman Senate in the time of
Claudius ordered the treatise of Philo Judæus on the Impiety of
Caligula to be chained in the library as a famous monument. There
appears to have been an early appreciation on the part of certain of
the monastery scholars of the importance of indexes. Fosbroke
quotes among others the example of John Brome, Prior of
Gorlestone, who, in the fifteenth century, put indexes to almost all
the books in his library. From an examination of the catalogues of
various of the ecclesiastical libraries, Fosbroke arrives at the
calculation that the proportion of the works contained under the
several main sub-headings was approximately as follows: Divinity,
175; scholastic literature, 89; epistles and controversial literature, 65;
history, 54; biography, 32; arts, mathematics, and astrology, 31;
philosophy, 13; law, 6.[208] This classification does not give any
separate heading for allegory, although this was a subject in which
not a few of the earlier monkish writers largely interested
themselves.
As an example of monkish allegorical literature, Fosbroke
mentions a work written in 1435, under the instructions of a cloth
shearer in France, whose name he does not give. The cloth cutter,
being a great lover of tennis, had written a ballad upon that game.
When he was old, he wished to atone for his early sins and frivolities,
and he secured the services of a Dominican monk, who wrote, at his
instance and expense, an allegory on the game of tennis. The wall of
the tennis court stood for faith, which should always rest on a solid
foundation, while in the other conditions of the game the Dominican
finds the cardinal virtues, the evangelists, active and contemplative
life, the old and the new law, etc.
In the thirteenth century, Omons, who might be described as the
Lucretius of his day, wrote a work entitled The Picture of the World,
from which one could gather an impression of the character of the
philosophy of the early Middle Ages. In the department of
metaphysics, Omons (using largely material borrowed from Thales,
Anaxagoras, Epicurus, and Plato) described God as comparatively
an idle being, and speaks of Him as having at the time of creating
Matter also created Nature. Nature executed the will of God as an
axe executes the will of the carpenter; it sometimes, however,
through want or excess of matter, produces deformities.
The Liberal Arts, Omons divides under the usual septenary
arrangement, which is adopted as early as the fifth century by
Capella. Omons makes mathematics, however, not a mere science
of numbers, but the knowledge of everything that is produced in any
regular order whatever, while rhetoric includes judicial verdicts,
decretals, laws, etc. The term “liberal” he applied only to an art which
explicitly appertained to the mind; and therefore, medicine, painting,
sculpture, navigation, the military art, architecture, etc., although in
their theories as intellectual as are mathematics and astronomy,
were, because applicable to bodily purposes, denominated trades.
The term “philosopher” means only men versed in the occult
sciences of nature, and among the later philosophers Omons held
no one so eminent as Virgil. This was not the Bard of Mantua, but an
ugly little Italian conjurer, who, during the tenth century, had
performed various feats of legerdemain.
When Peter of Celle had borrowed two volumes of S. Bernard’s
works, he wrote to him: “Make haste and quickly copy these and
send them to me; and according to my bargain, cause a copy to be
made for me, and both those which I have sent to you, and the
copies, as I have said, send to me, and take care that I do not lose a
single tittle.” Writing to the Dean of Troyes, he says: “Send me the
Epistles of the Bishop of Le Mans, for I want to copy them”; and,
indeed, he seems to have a constant eye to the acquisition and
multiplication of books.[209]
As to this commercium librorum, it would be easy, says Maitland,
to multiply examples. In a letter of the Abbot Peter to Guigo, Prior of
Chartreuse, he mentions that he had sent him the Lives of S.
Nazianzen and S. Chrysostom, and the argument of S. Ambrose
against Symmachus. That he had not sent the work of Hilary on the
Psalms because his copy contained the same defect as the Prior’s.
That he did not possess Prosper against Cassius, but that he had
sent to Aquitaine for a copy. He begs the Prior to send the greater
volume of S. Augustine, containing the letters which passed between
him and S. Jerome, because a great part of their copy, while lying in
one of the cells, had been eaten by a bear (casu comedit ursus),[210]
a novel difficulty in the way of preserving literature.
Peter of Clugni, known as Peter the Venerable, became abbot of
the monastery in 1122. Clugni, the Caput Ordinis, was at that time
the most considerable of the Benedictine foundations, and might, in
fact, be termed the most important monastery of its age. The
correspondence of Peter and of his secretary Nicholas, who was for
a time also secretary of Bernard of Clairvaux, forms an important
contribution to the monastic history of the country and contains not a
few references throwing light on the literary conditions of the time.
Nicholas had, in addition to his business as the Abbot’s amanuensis,
what Mabillon calls a librorum commercium with various persons. It
appears from his letters that he used to lend books on condition that
a copy should be returned with the volume lent. Nicholas, while a
diligent scribe and an active-minded scholar, was discovered later, to
be a very untrustworthy person. He left Clairvaux with books, money,
and gold service that did not belong to him, and also (which Abbot
Bernard mentions as a special grievance) with three seals, his own,
the prior’s, and the abbot’s. His further career was a checkered one,
but does not belong to this narrative.
 Abbot Peter of Clugni, writing to Master Peter of Poitiers in 1170,
lays some emphasis on the inadvisability of devoting too much time
to the study of the ancients. “See, now, without the study of Plato,
without the disputations of the Academy, without the subtleties of
Aristotle, without the teaching of philosophers, the place and the way
of happiness are discovered.... You run from school to school, and
why are you labouring to teach and to be taught? Why is it that you
are seeking through thousands of words and multiplied labours, what
you might, if you pleased, obtain in plain language and with little
labour? Why, vainly studious, are you reciting with the comedians,
lamenting with the tragedians, trifling with the metricians, deceiving
with the poets and deceived with the philosophers? Why is it that you
are now taking so much trouble about what is not in fact philosophy
but should rather (if I may say it without offence) be called
foolishness.”
Counsels of this kind give some indication at least of the tendency
in Poitiers, and doubtless also in Clugni, to devote to the old-time
poetry and philosophy some of the hours which, under a stricter
observance, should be reserved for the Scriptures or the Fathers.
The venerable Abbot must himself have had some fairly
comprehensive knowledge of the literature he was criticising, and the
gentle satire of the phrase “deceived with the philosophers” does not
give one the impression of coming from a clumsy-minded and
ignorant monk such as Robertson describes Peter the Venerable to
have been.
A further evidence not only of comprehensive knowledge but of a
liberal spirit, is afforded by the fact that Peter gave to the West a
translation (possibly the first) of the Alkoran. This is the form used by
Peter himself for the Mohammedan scriptures. In a letter to S.
Bernard, he speaks of having had this translation prepared of a work
which had so greatly influenced the thought of the world that it ought
to be known to Europe. He says further that the defenders of the true
faith should familiarise themselves with the contentions of the
Mohammedan heretics, in order to be able to refute these when the
necessity arose.[211]
 CHAPTER II.
SOME LIBRARIES OF THE MANUSCRIPT PERIOD.

T HE following are some of the more important collections

referred to in the records of the Middle Ages. In Constantinople
the Patriarch had a library in Thomaïtes which was said to be of
considerable importance, and the works in it are referred to very
often in the transactions of the Synods. This collection was
destroyed by fire in 780, but was speedily replaced. Many of the
monasteries of the Greek Church possessed libraries, and in some
of these libraries were preserved the oldest manuscripts known to
the world. Among the most important of these collections was that
contained in the monastery of Mt. Athos, some of the treasures of
which have been preserved to the present day. During the time of
Basilius Macedo (867-886), much work was said to have been done
by the scribes of this monastery.[212]
In Egypt it is claimed that until the conquest by the Arab, there was
a good deal of literary activity in the monasteries, and in the
monastery of S. Catherine of the Sinai range were preserved some
specimens of the earlier manuscripts, of which the Testament
discovered by Tischendorf is the most important example.
The Library of S. Giovanni in Naples, from which many valuable
Greek manuscripts were secured for the Royal Library in Vienna,
was not an old monastery collection, but had its origin, according to
Blume, with Janus Parrhasius.[213] The Augustin monks presented
the collection in 1729 to the Emperor Charles VI., in order that they
might not be disturbed in their seclusion by the visits of zealous
scholars.[214]
The earliest of ecclesiastical libraries was probably that collected
by Bishop Alexander, in Jerusalem, at the beginning of the third
century. Fifty years later a library was founded at Cesarea by Origen,
which is described as extensive and important.[215] Collections were
also made at an early date at Hippo, at Cirta, at Constantinople, and
at S. Peter’s and the Lateran in Rome. All these earlier libraries were
apparently connected with the churches, and in most cases places
had been found for them within the church walls. Clark quotes from a
narrative of the persecution of 303-304 a paragraph saying that the
officers “went to the church where the Christians used to assemble,
and spoiled it of chalices, lamps, etc., but when they came to the
library (bibliothecam), the presses (armaria) were found empty.”[216]
From this reference we may conclude that the several vessels and
the books were in different parts of the same building.
The library of S. Augustine was bequeathed to the church of
Hippo, and the collection was preserved within the church building.
The regulations of the libraries in all the Benedictine monasteries
were based upon the Rule of S. Benedict (see ante, p. 28). As Order
after Order was founded, there came to be a steady development of
feeling in regard to books, and an ever increasing care for their safe-
keeping. S. Benedict had contented himself with general directions
for study; the Cluniacs prescribe the selection of a special officer to
take charge of the books, with an annual audit of the collection, and
the assignment to each Brother of a single volume for his year’s
study. The Cistercians and Carthusians provide for the loan of books
to outsiders under certain conditions, and the practice was later
adopted by the Benedictines. The Augustinians prescribe the kind of
press (armarium) in which the books are to be kept, and both they
and the Premonstratensians permit their books to be lent on receipt
of pledges of sufficient value. Even the Mendicant Friars, who, under
the original Rule of their Order, had restrained themselves from
holding possessions of any kind, found before long that books were
indispensable, so that their libraries came to excel those of most
other Orders. Richard de Bury, in his Philobiblon, says of the
Mendicants: “These men are as ants, ever preparing their meat in
the summer, or as ingenious bees continually fabricating cells of
honey ... although they lately at the eleventh hour have entered the
Lord’s vineyard, they have added more in this brief hour to the stock
of sacred books than all the other vine-dressers.”
 Clark points out that the word Library was used by the
Benedictines long before any special room was assigned in the
Benedictine House as a storage place for the books. He is of opinion
that until the thirteenth and fourteenth centuries the books were for
the most part kept in the cloisters, the only portions of the monastery
buildings, except the refectory and occasionally the califactorium
(warming-house), in which the monks were allowed to congregate.
The books so stored in the cloisters were shut up in presses, which
secured for them a certain amount of protection. The term applied to
these presses, armaria, was that used by the Romans for their book-
cases. The monk charged with the care of the books took his name
not from the books themselves, as in later times, but from the
presses which contained them, and was generally styled armarius.
In some of the monasteries where literary studies were pursued
with special ardour, the more persistent readers and scribes were
provided with small wooden compartments or studies called carrells.
In the book called the Rites of Durham is given the following
description of these carrells: “In the north syde of the cloister, from
the corner over againste the church dour to the corner over againste
the Dorter dour, was all fynely glased from the hight to the sole within
a little of the ground into the Cloister garth, and in every window iij
Pewes or Carrells, where every one of the old monks had his carrell,
several by himselfs, that, when they had dyned, they dyd resort to
that place of Cloister, and there studyed upon these books, every
one in his carrell, all the after nonne, unto evensong tyme. This was
there exercise every daie.... In every carrell was a deske to lye there
books upon, and the carrell was no greater than from one stanchell
of the wyndowe to another, and over againste the carrells againste
the church wall, did stande certain great almeries (or cupbords) of
waynscott all full of bookes (with great store of ancient manuscripts
to help them in their study) wherein did lye as well the old anncyent
written Doctors of the Church as other prophane authors, with
dyverse other holie men’s wourks, so that every one did studye what
Doctor pleased them best, havinge the Librarie at all tymes to goe
studye in besydes there carrells.”[217]