Beyond Legal XML

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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

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

Improving the participatory
quality


Already emerging standard solution:
introducing new communication tools into
the representative system (responsivity as a
necessary feature of transparency)


Dichotomy indirect vs. direct democracy?


Visionary concepts for intermediate
democracy models ...