Previously: What is law? - Part 3
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.
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