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

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 ...