Friday, May 20, 2016

From textual authority to interpretive authority: the next big shift in legal and regulatory informatics

This paper : law and algorithms in the public domain from a journal on applied ethics is representative, I think, of the thought processes going on around the world at present regarding machine intelligence and what it means for law/regulation.

It seems to me that there has been a significant uptick in people from diverse science/philosophy backgrounds taking an interest in the world of law. These folks range from epistemologists to bioinformaticians to statisticians to network engineers. Many of them are looking at law/regulation through the eyes of digital computing and asking, basically, "Is law/regulation computation?" and also "If it is not currently computation, can it be? Will it be? Should it be?"

These are great, great questions. We have a long way to go yet in answering them. Much of the world of law and the world of IT is separated by a big chasm of mutual mis-understanding at present. Many law folk - with some notable exceptions - do not have a deep grasp of computing and many computing folk - with some notable exceptions - do not have a deep grasp of law.

Computers are everywhere in the world of law, but to date, they have primarily been wielded as document management/search&retrieval tools. In this domain, they have been phenomenally successful. To the point where significant textual authority has now transferred to digital modalities from paper.

Those books of caselaw and statute and so on, on the shelves, in the offices. They rarely move from the shelves. For much practical, day-to-day activity, the digital instantiations of these legislative artifiacts are normative and considered authoritative by practitioners. How often these days to legal researchers go back to the paper-normative books? Is it even possible anymore in a world where more and more paper publication is being replaced by cradle-to-grave digital media? If the practitioners and the regulators and the courts are all circling around a set of digital artifacts, does it matter any more if the digital artifact is identical to the paper one?

Authority is a funny thing. It is mostly a social construct.  I wrote about this some years ago here: Would the real, authentic copy of the document please stand up?  If the majority involved in the world of law/regulation use digital information resource X even though strictly speaking X is a "best efforts facsimile" of paper information resource Y, then X has de-facto authority even though it is not de-jure authoritative. (The fact that de-jure texts are often replaced by de facto texts in the world of jure - law! - is a self-reference that will likely appeal to anyone who has read The Paradox of Self Amendment by Peter Suber.

We are very close to being at the point with digital resources in law/regulation have authority for expression but it is a different kettle of fish completely to have expression authority compared to interpretive authority.

It is in this chasm between authority of expression and authority of interpretation that most of the mutual misunderstandings between law and computing will sit in the years ahead I think. On one hand, law folk will be too quick to dismiss what the machines can do in the interpretive space and IT people will be too quick to think the machines can quickly take over the interpretive space.

The truth - as ever - is somewhere in between. Nobody knows yet where the dividing line is but the IT people are sure to move the line from where it currently is (in legal "expression" space) to a new location (in legal "interpretation" space).

The IT people will be asking the hard questions of the world of law going forward. Is this just computing in different clothing? If so, then lets make it a computing domain. If it is not one today, then can we make it one tomorrow? If it cannot be turned into a computing domain - or should not be - then why, exactly?

The "why" question here will cause the most discussion. "Just because!", will not cut it as an answer. "That is not what we do around here young man!" will not cut it either. "You IT people just don't understand and can't understand because you are not qualified!", will not cut it either.

Other domains - medicine for example - have gone through this already. Medical practitioners are not algorithms or machines but they have for the most part divested various activities to the machines. Not just expressive (document management/research) but also interpretive (testing,  hypothesis generation, outcome simulation).

Law is clearly on this journey now and should emerge in better shape, but the road ahead is not straight, has quite a few bumps and a few dead ends too.

Strap yourself in.

2 comments:

Anonymous said...

You do ask some awkward questions Sean.

Peter Suber said...

Hi Sean. Thanks for citing _Paradox of Self-Amendment_. I thought you might want to know that it now has a more permanent URL:

https://dash.harvard.edu/handle/1/10243418