Beyond Legal XML Günther Schefbeck 4th Workshop „Legislative XML“ Klagenfurt, 18 November 2005.
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Transcript of Beyond Legal XML Günther Schefbeck 4th Workshop „Legislative XML“ Klagenfurt, 18 November 2005.
Legal/Legislative XML
• Legal XML: using XML within the framework of the legal system
• Legislative XML: using XML within the framework of the legislative system
Legal/Legislative system
• Legal system: totality of norms valid/applicable within a given scope (personal/territorial/timely)
• Kelsen: legal system = state• Legislative system: totality of
norms/conventions relevant to the production of norms
• Legislative system < political system
Society and its subsystems
V a rio us su b sys te m s P o lit ica l sys tem L e g a l sys tem
S o c ie ta l sys tem
Procedural rules
Legislation/Laws
• Laws as the product of legislation?
• Young stage within the evolution of law!
• Maine (1861): Six stages of the evolution of law, from habit to legislation as an explicit declaration of intention incorporated in a legal enactment
• Overlapping stages!
Legislative Processes
• Complex and multi-layered
• Highly formalized legal procedure
(going back to 19th century)
vs.
• Informal political decision-making process (semi-structured or negotiation process)
• Interaction of political and legal layers
The value of legislative processes
• “A business process is a collection of activities that takes one or more kinds of inputs and creates an output that is of value to the customer” (Hammer & Champy)
• What is the value of a law?
The value of laws
• Individual law: quality of content• Rule of law: quality of justice (Aristotle: “Under the rule of law the
chances for justice are better than under the rule of men”)
• Law produced in a democratic process: quality of legitimation
(Luhmann: “legitimization by procedure”)
Rule of law in a democratic system
• Knowledge of laws as a prerequisite for acceptance of laws and law enforcement
• Transparency of the legislative process as a prerequisite for the acceptance of this process and its output
• Crucial function of publicity of laws and legislative processes
Laws/Legal knowledge
• Rule based reasoning vs. case based reasoning• Kelsen: Distinction between „Sein“ („is“,
description) and „Sollen“ („ought“, prescription)• Logical connection: condition – prescribed effect• Holmes: „The life of the law has not been logic: it
has been experience.“• Problem of interpretation: (unconsciously)
experience based
Knowledge
• Basis: data
• Structured data: information
• Contextualized information: knowledge
• Observer-sensitiveness: a particular set of characters may be data, information or knowledge, depending on the observer
Legal information/knowledge
• How to contextualize legal information?
• Classic way: human brain (lawyer‘s brain)
• Innovative way: inference engine
• Artificial intelligence vs. semantic web!
AI/Semantic web
Berners-Lee (1998): „The concept of machine-understandable documents does not imply some magical artificial intelligence which allows machines to understand human mumblings. It only indicates a machine‘s ability to solve a well-defined problem by performing well-defined operations on existing well-defined data.“
AI solutions
• Induction systems (transforming cases into rules)
• Case based reasoning systems (identifying precedences and analogies)
• Neural networks (imitating biological neural systems, e.g. for infering legal effects or for retrieving legal documents)
Semantic web solution
• Using metadata for describing data in a way enabling machines to turn these data into knowledge
• Data model: RDF (compatible with, but beyond XML)
• Description triple: resource – property – property value
• RDFS allows forming classes of resources and describing relations between them (hierarchies): precondition for work of inference engines
Semantic web/Ontologies
• Ontology: systematic model of a particular field of knowledge, based on the data described in the semantic web
• OWL: detailed description of the relations between classes of resources and their properties
• Features: cardinalities of properties, logical relations of resources and property values, equivalences of resources, classes of resources and properties
The IT impact on legal knowledge
• Legal informatics as a counterweight to balance the increasing number of norms and speed of legislation (Schmitt: „motorized“ legislation)
• Legal data bases provide easy and nearly immediate access to consolidated versions of laws (automatized consolidation will make it immediate)
The IT impact on legal knowledge (prospects)
• Improving the transparency of norms and the legal system by structurizing norms (XML) and the legal system (RDF/OWL)
• Improving the retrievability of norms by describing them (RDF) and their relations (OWL), thus enabling automatization and customization of retrieval procedures
• Enriching norms with electronic references• Going beyond national legal information systems by
creating a sermantic web as a „global data base“ and a legal ontology to embed equivalences in content, structure, and language
The IT impact on legislation• 1970s: law documentation (mainframes)• 1980s: documentation of legislative processes
(mainframes … PCs)• 1990s: electronic availability of data (metadata, full
texts of documents, audio/video streaming) to the general public (PCs … Internet)
• Today: “electronification” of legislative processes, first steps towards electronic involvement of NGOs and the general public
• Tomorrow: ?
Legislative processes and E-business/government functions
• Information
• Communication
• Transaction
• Communication and transaction functions have been made large-scale available through the Internet and Intranet applications
Five steps of electronic support of legislative processes
• Knowledge management
• Workflow management
• Improving the procedural quality
• Improving the output quality
• Improving the participatory quality
Process modelling
• Knowledge management: descriptive modelling (reduction of complexity)
• Workflow management: descriptive/prescriptive modelling (complex legal and administrative procedure)
• Future development: prescriptive modelling/process re-engineering (changing the legislative process, e.g. by introducing new instruments/steps)?
Improving the procedural quality
• Process modelling is making aware of improvement capability
• Procedural steps based on convention have already been changed/omitted
• Change of procedural steps based on rules of procedure requires amendment of these rules
Improving the output quality
• Legimatic drafting systems for improving the formal quality of legislation (checking the implementing of or immediately implementing legislative guidelines)
• Regulatory impact assessment (simulation systems) for improving the material quality of legislation