Monday, March 27, 2017

What is law? - Part 4



Now we will turn our attention to the second part of the legal corpus, namely regulations/statutory instruments. I think of this material as fleshing out of the material coming in the form of Acts from the Legislature/Parliament. Acts can be super-specific and self contained, but they can also be very high level and delegate finer detail to government agencies to work out and fill in the details. Acts that do this delegation are known as "enabling acts" and the fine detail work takes the form of regulations (USA terminology) or Statutory Instruments (UK terminology).

The powers delegated to executive branch agencies by enabling Acts can be quite extensive and the amount of review done by the Legislature/Parliament differs a lot across different jurisdictions. In some jurisdictions, there is no feedback loop back to the Legislature/Parliament at all. In others, all regulation/statutory instruments must pass a final approval phase back in the Legislature/Parliament.

As with the Acts, the regulations go through a formal promulgation process - typically being activated by public notice in a Government gazette/register publication. As with the Acts, an official compendium of regulations may or may not be produced by Government itself and if it exists, it may lag behind the production of new Regulations/Statutory Instruments by months or even years. As with Acts, third party publishers often add value by keeping a corpus of regulations/SIs up to date with each register/gazette publication (often a weekly publication).

One useful rough approximation is to conceptualize the Regulations/Statutory Instruments as appendices to Acts. Just as with any other type of publication, a full understanding of the text at time T requires a full understanding of the appendices at time T. In other word, to understand the Act at time T you need the Regulations/Statutory Instruments at time T.

This brings us to the first significant complication. The workflows and publication cycles for the Acts and the Regulations/Statutory Instruments are different, and the organizations doing the work are different, resulting in a work synchronization and tracking challenge. Tracking Acts is not enough to understand the Acts. You need to track Regulations/Statutory Instruments too and keep the two in sync with each other.

The next complication comes from the nature of the Regulations/Statutory Instruments themselves. When the need arises for very detailed knowledge about some regulated activity, there is often a separate association/guild/institute of specialists in that regulated activity. Sometimes, the rules/guidelines in use by the separate entity can become part of the law by being incorporated-by-reference into the regulations/statutory instruments[1]. Sometimes, the separate association/guild/institute is formally given powers to regulate and becomes what is known as a Self Regulatory Organization (SRO)[2]. The difficulty this presents for the legal decision-making box we are creating in our conceptual model of law is that this incorporated-by-reference material may not be freely available in the same way that the Acts and Regulations/Statutory Instruments are generally freely available (at least in unconsolidated forms).

In Part 1, reference was made to the legal concept that "ignorance of the law is no defense". Well, you can see the potential problem here with material that is incorporated-by-reference. If I can only read the incorporated-by-reference aspects of the legal corpus at time T by paying money to access them, then the corpus of law itself (however complex and difficult to interpret it might be) is not actually fully available to me.

The important distinction here is between fee-based access to convenient "packaging" and perhaps associated explanatory material, versus fee-based access to the raw materials themselves. This is an open issue in the world of law at the moment. The world continues to become a more and more complex place and the need to delegate detailed work on regulations down to the practitioners who have deep domain expertise, continues to grow. However, expertise is expensive and needs to be paid for somehow. One revenue source for associations/guilds/institutes has, historically been, charging for access to the rulebooks/guidance they produce. If the rulebooks/guidance become free as a result of incorporation-by-reference into regulations, then the revenue stream is removed. The issue is not unique to regulations/statutory instruments. When we take a look at the judiciary, we will see that some similar issues can arise there also. For now, let us slide over the question of fee-based access to incorporated-by-reference material and proceed as if we have access to it from our conceptual model. 

The next challenge we encounter is the diversity of the regulatory/statutory instrument material itself. Unlike Acts, it is not unusual for this material to contain maps, photos and other forms of multimedia. As the trend towards "born digital"[3] materials continues, more and more complex document types are in fact applications, not documents. Examples include GIS (e.g. redistricting[4]), spreadsheet models in finance, web forms in eligibility determination etc.

This is probably the biggest challenge facing the existing fixed writing-centric conceptualization of legal materials which has been with us since The Code of Hammurabi[5] of ancient Babylon, The Twelve Tables[6] of Ancient Rome and The Brehon Laws[7] of ancient Ireland. Namely, we appear to be transitioning parts of the corpus of law away from words and into software applications. The big shift here is that with a software application, behavior can be observed, but not the reasoning behind the behavior. It may be that deep down in the software there are a set of rules that govern the applications behavior but these are invisible to the consumers of the law and, in many cases, proprietary. For extra spice, consider that the present-day trend towards deep learning approaches to law, presents the head-hurting possibility of a software application whose behavior can be observed but for which there is literally no human-digestible set of rules that govern its behavior.

To see why this is a big deal consider a hypothetical court case where the judge finds the defendent guilty as charged but records the reasoning behind the judgement simply as "Because I said so." We would not accept that because there is no defense of the the reasoning (known more formally as an explanans[8]). Software applications behave this way all the time:-) We will return to the profound implications of this later on.

Another twist. In some jurisdictions, regulations/statutory instruments can modify Acts. This one is another "head hurter" because it means that activity happening "downstream" from a Legislature/Parliament in regulations/Sis can potentially change the texts of the Acts produced by that Legislature/Parliament. Tracking this is made more difficult by the often significant organizational boundaries between the Legislature/Parliament function and the Government Agencies function. It also significantly complicates the concept of consolidation. Each new regulation/statutory instrument issued potentially changes the text of the Acts.

One final twist and then we will move on to the judicial branch aspects of the legal corpus Sometimes a regulation/statutory instrument takes the form of interpretive guidance rather than a textual changes. For example, it might say something like "from this day forward, when you read 'X' in Act N, interpret that to mean 'X or Y'".

You might need to let that sink in for a minute. It means that not only can the full meaning of Acts not be found in the Acts themselves – you need the regulations/statutory instruments to fill in the detail - but that the meaning itself can change over time by changes happening in the regulations/Sis without any textual changes to the Acts!

Any software developers out there might want to think of it this way: consider a simple math equation in your code with no external dependencies on the outside world at all. What if I told you that the math of your formula might need to act differently tomorrow because I might redefine some of your variables without telling you? Creates an interesting challenge doesn't it?

Fun stuff, right? As we will see, the third part of the legal corpus - the part produced by the judiciary - has a similar ability to modify semantics. In fact it can modify the semantics not just of the Acts but of the regulations/statutory instruments, and modify its own semantics to boot.

Thank you for sticking with me through all of this sometimes head-hurting stuff. I am trying to lay this out with sufficient detail so that when I say that legal content management is “complicated”, you have a sense of what I mean. I see too many well intentioned architects working in this space incorrectly concluding that “getting the texts of the law” to work on, is an easy first step in computational law. It is complicated, but it can be done as we will see.

But first, time to turn to the judicial branch and look at its contribution to the legal corpus. See you in Part 5.


-->

No comments: