Code Driven Law?
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The document discusses Hildebrandt's taxonomy of code-driven law, data-driven law, and text-driven law. It notes that code-driven law involves legal norms articulated in computer code, while data-driven law uses automatic decision-making derived from statistical/inductive methods. Text-driven law refers to legal activity performed by humans using sources like statutes and case law. The document also examines various issues that can arise with computational approaches to law, such as whether training data adequately represents the problem domain and whether all relevant facts and rules are considered. It acknowledges limitations in fully formalizing concepts like justice and cautions that computational ideals assume problems may be solved perfectly.
![code-driven law
data-driven law
text-guided law
legal norms or policies that have been
articulated in computer code
legal activity performed by humans by
means of sources of norms such as
statute and case law decision support systems
statistical closure logical closure
legal certainty +
justice (proportionality, distribution) ?
instrumentality (contextual policy goals) ?
data-guided law
automatic decision-making
derived from statistical/inductive
methods
fact
fact
….
STRUCTURAL
rule
rule
…..
CONTINGENT
were all the relevant rules considered?
were all the relevant facts given?
is the formalization correct?
[is the reasoning tool robust?]](https://image.slidesharecdn.com/code-drivenlaw2-210615222604/85/Code-Driven-Law-15-320.jpg)
![code-driven law
data-driven law
text-guided law
legal norms or policies that have been
articulated in computer code
legal activity performed by humans by
means of sources of norms such as
statute and case law decision support systems
statistical closure logical closure
legal certainty +
justice (proportionality, distribution) ?
instrumentality (contextual policy goals) ?
data-guided law
automatic decision-making
derived from statistical/inductive
methods
fact
fact
….
STRUCTURAL
rule
rule
…..
CONTINGENT
→ it can be contested
were all the relevant rules considered?
were all the relevant facts given?
is the formalization correct?
[is the reasoning tool robust?]](https://image.slidesharecdn.com/code-drivenlaw2-210615222604/85/Code-Driven-Law-16-320.jpg)
Code Driven Law?
- 1. code-driven law? Workshop on AI and border control, Edinburgh Law School (virtual), 15 June 2021 Giovanni Sileno, University of Amsterdam. g.sileno@uva.nl
- 2. Hildebrandt’s taxonomy code-driven law data-driven law text-driven law Hildebrandt, M., Code Driven Law. Scaling the Past and Freezing the Future, In: Is Law Computable? Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (2020) legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law automatic decision-making or predictions used in support derived from statistical/inductive methods
- 3. Hildebrandt’s taxonomy code-driven law data-driven law text-driven law Hildebrandt, M., Code Driven Law. Scaling the Past and Freezing the Future, In: Is Law Computable? Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (2020) legal activity performed by humans by means of sources of norms such as statute and case law open-textured concepts multi-interpretability → it can be contested legal norms or policies that have been articulated in computer code automatic decision-making or predictions used in support derived from statistical/inductive methods
- 4. Hildebrandt’s taxonomy code-driven law data-driven law text-driven law Hildebrandt, M., Code Driven Law. Scaling the Past and Freezing the Future, In: Is Law Computable? Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (2020) legal activity performed by humans by means of sources of norms such as statute and case law open-textured concepts multi-interpretability → it can be contested statistical closure logical closure legal norms or policies that have been articulated in computer code automatic decision-making or predictions used in support derived from statistical/inductive methods
- 5. Hildebrandt’s taxonomy code-driven law data-driven law text-driven law Hildebrandt, M., Code Driven Law. Scaling the Past and Freezing the Future, In: Is Law Computable? Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (2020) legal activity performed by humans by means of sources of norms such as statute and case law open-textured concepts multi-interpretability → it can be contested statistical closure logical closure legal certainty + legal norms or policies that have been articulated in computer code automatic decision-making or predictions used in support derived from statistical/inductive methods
- 6. Hildebrandt’s taxonomy code-driven law data-driven law text-driven law Hildebrandt, M., Code Driven Law. Scaling the Past and Freezing the Future, In: Is Law Computable? Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (2020) legal activity performed by humans by means of sources of norms such as statute and case law open-textured concepts multi-interpretability → it can be contested statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? legal norms or policies that have been articulated in computer code automatic decision-making or predictions used in support derived from statistical/inductive methods
- 7. Hildebrandt’s taxonomy code-driven law data-driven law text-driven law Hildebrandt, M., Code Driven Law. Scaling the Past and Freezing the Future, In: Is Law Computable? Critical Perspectives on Law and Artificial Intelligence, eds. Markou, Deakin, Hart Publishers (2020) legal activity performed by humans by means of sources of norms such as statute and case law open-textured concepts multi-interpretability → it can be contested statistical closure logical closure COMPUTATIONAL LEGALISM legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? legal norms or policies that have been articulated in computer code automatic decision-making or predictions used in support derived from statistical/inductive methods
- 8. code-driven law data-driven law text-driven law legal activity performed by humans by means of sources of norms such as statute and case law legal norms or policies that have been articulated in computer code automatic decision-making or predictions used in support derived from statistical/inductive methods statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ?
- 9. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? in so far humans are involved data-guided law automatic decision-making derived from statistical/inductive methods
- 10. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods instance + label instance + label instance + label instance + label ….. TRAINING DATASET
- 11. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods instance + label instance + label instance + label instance + label ….. is the training data set representative of the domain in which it will be applied? is the rationality behind labeling still the same? TRAINING DATASET
- 12. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods instance + label instance + label instance + label instance + label ….. is the training data set representative of the domain in which it will be applied? is the rationality behind labeling still the same? TRAINING DATASET is the training method producing adequate, reproducible, robust results? TRAINING METHOD
- 13. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods instance + label instance + label instance + label instance + label ….. is the training data set representative of the domain in which it will be applied? is the rationality behind labeling still the same? TRAINING DATASET is the training method producing adequate, reproducible, robust results? TRAINING METHOD → it can be contested
- 14. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods fact fact …. STRUCTURAL rule rule ….. CONTINGENT
- 15. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods fact fact …. STRUCTURAL rule rule ….. CONTINGENT were all the relevant rules considered? were all the relevant facts given? is the formalization correct? [is the reasoning tool robust?]
- 16. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty + justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods fact fact …. STRUCTURAL rule rule ….. CONTINGENT → it can be contested were all the relevant rules considered? were all the relevant facts given? is the formalization correct? [is the reasoning tool robust?]
- 17. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong
- 18. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods is this all?
- 19. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) + instrumentality (contextual policy goals) + data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules
- 20. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) + instrumentality (contextual policy goals) + data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules these goals could be made explicit
- 21. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) + instrumentality (contextual policy goals) + data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules these goals could be made explicit can we be sure about a certain formalization?
- 22. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) + data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules these goals could be made explicit never. can we be sure about a certain formalization? (cf. discussions on universal human rights, ethical frameworks)
- 23. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) + data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules these goals could be made explicit may we be ever ready for that? (explicit articulation of policy-maker purposes) never. can we be sure about a certain formalization? (cf. discussions on universal human rights, ethical frameworks)
- 24. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules these goals could be made explicit may we be ever ready for that? (explicit articulation of policy-maker purposes) not to a full extent. never. can we be sure about a certain formalization? (cf. discussions on universal human rights, ethical frameworks) (it may require to be transparent on highly contestable issues)
- 25. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems statistical closure logical closure legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods those principles could be to some extent formalized as meta-rules these goals could be made explicit may we be ever ready for that? (explicit articulation of policy-maker purposes) not to a full extent. never. can we be sure about a certain formalization? (cf. discussions on universal human rights, ethical frameworks) (it may require to be transparent on highly contestable issues) the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization”
- 26. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong
- 27. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level
- 28. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level people or other actors should be able to appeal
- 29. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level let’s accept we need to integrate systematically feedbacks from higher-order courts, jurisprudence or other normative sources people or other actors should be able to appeal
- 30. code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level let’s accept we need to integrate systematically feedbacks from higher-order courts, jurisprudence or other normative sources people or other actors should be able to appeal courts or other actors should be able to cassate
- 31. including computational actors possibility of continuous, automated testing/verification code-driven law data-driven law text-guided law legal norms or policies that have been articulated in computer code legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level let’s accept we need to integrate systematically feedbacks from higher-order courts, jurisprudence or other normative sources people or other actors should be able to appeal courts or other actors should be able to cassate
- 32. including computational actors (possibility of continuous, automated testing/verification) code-driven law data-driven law text-guided law derived from legal norms or policies that have been articulated in computer code (or derived from other methods) lower authority w.r.t. human authorities!!! legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level let’s accept we need to integrate systematically feedbacks from higher-order courts, jurisprudence or other normative sources people or other actors should be able to appeal courts or other actors should be able to cassate code-guided law monolithical systems ecological system including interfaces with humans
- 33. including computational actors (possibility of continuous, automated testing/verification) code-driven law data-driven law text-guided law derived from legal norms or policies that have been articulated in computer code (or derived from other methods) lower authority w.r.t. human authorities!!! legal activity performed by humans by means of sources of norms such as statute and case law decision support systems legal certainty ? justice (proportionality, distribution) ? instrumentality (contextual policy goals) ? data-guided law automatic decision-making derived from statistical/inductive methods the COMPUTATIONAL JUSTICE ideal assumes perfect “conceptualization” the COMPUTATIONAL LEGALISM ideal works only in so far we forget all what may go wrong let’s accept things may go wrong at all level let’s accept we need to integrate systematically feedbacks from higher-order courts, jurisprudence or other normative sources people or other actors should be able to appeal courts or other actors should be able to cassate code-guided law monolithical systems ecological system including interfaces with humans a serious technological gap exists today...
- 34. Key points ● There is continuity between institutional and computational activities. ● We don’t need institutions to become more mechanical, institutional constructs need to be brought into the computational realm. ● As we have a plurality of normative sources, we need a plurality of computational normative sources. normware
- 35. Key points ● There is continuity between institutional and computational activities. ● We don’t need institutions to become more mechanical, institutional constructs need to be brought into the computational realm. ● As we have a plurality of normative sources, we need a plurality of computational normative sources. ● Yet, this won’t solve all issues. Legalist standpoints may still undermine justice. State with right does not coincide with State of right. normware even in computational terms...
- 36. Further (related) reading “Normware” is very much a concept in progress, parts of this story can be found in: Sileno, G., Of duels, trials, and simplifying systems, European Journal of Risk Regulation (2020). Sileno, G., Boer, A., Gordon, G., Rieder, B., Like Circles in the Water: Responsibility as a System-Level Function, Proceedings of 3rd XAILA workshop on Explainable AI and Law, in conjunction with JURIX (2020) Sileno, G., Boer, A. and van Engers, T., The Role of Normware in Trustworthy and Explainable AI, Proceedings of 1st XAILA workshop on Explainable AI and Law, in conjunction with JURIX (2018) Boer A., Sileno, G., Institutional Metaphors for Designing Large-Scale Distributed AI versus AI Techniques for Running Institutions, in: “Anchoring Institutions”, 2021 (forthcoming), Springer
- 37. code-driven law? Workshop on AI and border control, Edinburgh Law School (virtual), 15 June 2021 Giovanni Sileno, University of Amsterdam. g.sileno@uva.nl