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Thursday, March 23, 2017

What is law? - Part 3

Previously : What is Law? - Part 2.

The corpus of law - the stuff we all, in principle, have access to and all need to comply with, is not, unfortunately a nice tidy bundle of materials managed by a single entity. Moreover, the nature of the bundle itself, differs between jurisdictions. Ireland is quite different from Idaho. Scotland is quite different from the Seychelles. Jersey is quite different from Japan, and so on.

I will focus here on US and UK (Westminister)-style legal corpora to keep the discussion manageable in terms of the diversity. Even then, there are many differences in practice and terminology all the way up and down the line from street ordinances to central government to international treaties and  everything in between. I will use some common terminology but bear in mind that actual terminology and practice in your particular part of the world will very likely be different in various ways, but hopefully not in ways  that invalidate the conceptual model we are seeking to establish.

In general, at the level of countries/states, there are three main sources of law that make up the legal corpus. These are the judiciary, the government agencies and the legislature/parliament.

Let us start with the Legislature/Parliament. This is the source of new laws and amendments to the law in the form of Acts. These start out as draft documents that go through a consideration, amendment and voting process before they become actual law. In the USA, it is common for these Acts to be consolidated into a "compendium", typically referred to as "The Statutes" or "The Code". The Statutes are typically organized according to some thematic breakdown into separate "titles" e.g. Company Law, Environmental Law and so on.

In the UK/Westminster-type of Parliament, the government itself does not produce thematic compendia. Instead, the Acts are a cumulative corpus. So, to understand, for example, criminal law, it may be necessary to look at many different Acts, going back perhaps centuries to get the full picture of the "Act" actually in force. In UK-style systems, areas of law may get consolidated periodically through the creation of so-called "consolidations"/"re-statements". These essentially take an existing set of Acts that are in force, repeal them all and replace them with a single text that is a summation of the individual Acts that it repeals.[1]

It is common for third party publishers to step in and help practitioners of particular areas of law by doing unofficial consolidations to make the job of finding the law in a jurisdiction easier.
Depending on how volatile the area of law is in terms of change, the publisher might produce an update every month, every quarter, every year etc. In the USA, most US states do a consolidation in-house in the legislature when  they produce The Statutes/Code. In a similar manner to third party publishers, this corpus is updated according to a cycle, but it is typically a longer cycle - every year or two years.

So here we get to our first interesting complication with respect to being able to access the law emanating from Legislatures/Parliaments that is in force at any time T. It is very likely that no existing compendium produced by the government itself, is fully up to date with respect to time T. There are a number of distinct reasons for this.

Firstly, for Parliaments that do not produce "compendiums", there may not be an available consolidation/re-statement at time T. Therefore, it is necessary to find a set of Acts that were in force at time T, which then need to be read together to understand what the law was at time T.

Secondly, for Legislatures that produce compendia in the form of Statutes, these typically lag behind the Acts by anything from months to years. Typically, when a Legislature is "in session", busily working on new Acts, it is not working on consolidating them as they pass into law. Instead, they are accumulated into a publication, typically called the Session Laws, and the consolidation process happens after the session  has ended.  This is an area where third party publishers typically add value because they do consolidate "on the fly" and this is something that is very useful to many practitioners.

Thirdly, the concept of "in force" is quite tricky in practice. An Act may become law as soon as it passes through a signing process but the law itself may not take effect until some other event has happened. Typically there is some form of official government publication - register/gazette - and laws come into force when they appear in the register/gazette. Through a device called a "line item veto" it may be that a law comes into force but some parts of it are essentially elided. Trickier still is the concept of conditional legislation which comes into force, if, for example the cost of a barrel of oil hits some threshold value.

Even if it is possible to arrive at the text in force as it stood at Time T, the nature of the text itself has a large role to play in its direct usefulness for practitioners. The clearest example of this is what are known as amendatory acts. An amendatory act, rather than replacing a textual unit with a replacement textual unit, expresses the required changes in terms of amendatory instructions. E.g. "After the first occurrence of the word 'dog', insert 'cat or '". Again, this is an area where third part publishers often step in.

This brings us to a very important point about law that needs to be emphasised and it is this: what the text of the law says at any time T and what the text of  the law means at time T, are two totally different things on a number of levels. At a purely text management level, there is often a big difference between what the law says and what is means because the journey towards true meaning can only start once the editorial aspects of amendment consolidation have taken place and this might not be a function that the government performs at all. Even if it is, it may lag behind the creation of new Acts in a way that impacts its usefulness to practitioners as a definitive reference of the laws in force at any time T.

Once we get past the text management level of 'meaning' in the corpus, we are still only part of the way towards "the law" because the text needs to be read/parsed in order to find the parts of the text that are  in force and what parts are not, at any given target time point T. A simple example of this is a so-called "sunset clause" in which the consolidated text of an  area of law as it was at time T may contain a statement which repeals part of the law - potentially somewhere else entirely in the corpus of law! - at some time later than time T.

Are we having fun yet? Complex, isn't it? I will just add a few more layers to it and then we will take a step back, I promise...

Having arrived - by whatever means - at the text of the law as it stood at Time T, it might not be the case that the text has definitive status as "law" , even if it is produced by the government itself. A good example of this is the United State Code[2]. In the world of law, there is the concept of "prima facie evidence of the law" which is distinct from "the law" because the corpus that is the US Code has not itself passed through Congress as a corpus.

A similar nuance comes up in US State Legislatures where the Journals - essentially the meeting minutes of the formal chambers - may be considered by the judiciary as the one true source of new and amended laws. In this way of thinking, even Statutes produced by Legislatures are, in a sense, secondary sources.

Two more wrinkles and then I will stop. I promise. Stay with me here...

The first is that the corpus of Acts in force is not necessarily self consistent. Over the course of hundreds of years and thousands upon thousands of amendments errors can creep in such that a statement in Act A with is "the law" might contradict another statement in Act B which is also "the law". This is another  point where IT people tend to wince! Paradoxes, the law of the excluded middle[3], the entire glorious edifice of boolean logic, is dependent on the absence of
logical contradictions and yet, they can and do happen in law.

When this happens, jurisdictions do not SEGFAULT or go into endless loops or refuse to boot up in the morning. Rather, the legal system exhibits an interesting property that might be referred to as autonomic resolution[4]. Texts that conflict can co-exist in law (perhaps in the form of "unconsolidated statute") alongside consolidated statute, perhaps in the form of separate acts that conflict with each other. The entity that then deals with it is typically the judiciary, where that most ineffable of concepts : "human judgement" resolves the conflict.

Peter Suber[4] has argued that such contradictions cannot be fully eradicated from law. In his book the Paradox of Self Amendment[5], he uses an argument reminiscent of Godel's Incompleteness Theorem[6] to show that any system that can amend itself needs to be able to break out of contradictions/dead ends it might get itself into through the process of amendment.

In a memorable piece of prose[7], he puts it this way:

"One may regret the lapse of law from abstract logic, appreciate the equitable flexibility it affords, take satisfaction in the pretensions it punctures, or decry the dangers it makes possible."

The second, and final wrinkle I will add for now, is the concept of a  retroactive provisions[8]. These beauties have the effect of changing the way the law as it stood at time T needs to be interpreted at some future time T+1. If your head hurts, you are not alone. It is a tough one to grasp. Basically a full understanding of the law as some historical time point T1 is dependent, not just on the corpus as it was at that time point T1 but also, as it was as some future point T2. This is because the law at T2 may contain retroactive changes to how the law at T1 needs to be interpreted.

By now you will have noticed that I keep saying "the law at time T". Hopefully, given the discussion so far, you are beginning to get a feel for why the concept of time is so important. Time, the passage of time, its impact on the corpus of law....references to time in the law itself....it is inextricably woven into the way law works in my opinion. That is why, I believe any computational model of law must have the concept of time as a first class member of model, to be able to accurately reflect what law really is.

Not convinced about the primary importance of time in the conceptual model of law? Consider this: every single litigation, every single dispute that arrives in a court of law, needs to be able to look backwards to what the law was at the time of the litigation event. The law as it is today is not the point of departure in a court case. It is the law as it was at the date or dates relevant to the case. The nature of court cases is that this can be many years after the events themselves.

The same is true for many compliance issues in regulated industries. The same is true for many tasks in forensic accounting. The same is true for many financial audit scenarios...

I could go on with numerous other interesting aspects of the legislative/parliamentary side of the corpus but I will stop there.

Next up we turn to regulations/statutory instruments which come from the executive branch i.e. government agencies.

[1] https://en.wikipedia.org/wiki/Consolidation_bill
[2] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1517999
[3] https://en.wikipedia.org/wiki/Law_of_excluded_middle4
[4] https://en.wikipedia.org/wiki/Peter_Suber
[5] http://legacy.earlham.edu/~peters/writing/psa/
[6] https://en.wikipedia.org/wiki/G%C3%B6del's_incompleteness_theorems
[7] https://en.wikipedia.org/wiki/Autonomic_computing
[8] https://en.wikipedia.org/wiki/Ex_post_facto_law

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