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Regulation & Law 2017/2018 - Summary
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Summary Regulation & Law Data Science Public Private Property Tort Intellectual Property Criminal Administrative Law Ethics
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REGULATION & LAWIntroduction
Law & Ethics vs Data Science
- People need prevention from being tracked
- Data will tell us a lot:
o Facebook has a precise image of you (business model » advertising)
o Bonus cards track buying behaviour (data » diaper » pregnancy)
o Taxies track movements (discover where people live)
- 80% of data is about people (social data)
- Be careful with data: ‘Right to be forgotten’
- Copyright issues (YouTube)
- Hacks » sensitive data online
What is Law?
- Two principal answers:
o Natural lawyers: law consists of a set of universal moral principles in accordance with
nature
o Legal positivists: law is just a collection of valid rules, commands, or norms that may
lack any moral content
- The social, political, moral, and economic dimensions of the law are essential to a proper
understanding of its workaday operation. Reflection upon the nature of law reveals important
insights into who we are and what we do.
Justice and law
- Justice is about fairness.
- Sometimes law is about protecting fair outcomes
(interests of parties involved)
- How does argumentation work?
o Grounds: ‘he has stolen a bike’
o Warrant: underlying rule that connects ground and conclusion
o Backing: rules need to have an appropriate legal source
o Rebuttal: counter argument against conclusion. ‘Stole bike to bring man to hospital’
o Conclusion: ‘he has to pay for the damage’
Functions of law
- Order or safety: well-being of members of society.
- Justice: rules should be reasonable, general, equal, predictable and certain. Not in absolute
terms, but ideal. Requires a fair process and a competent and independent legal profession.
- Protection of individual rights: to protect individuals against the violation of an inventory of
rights that are considered fundamental.
- Protection of community: general well-being of community (defence of national security).
- Social life: enable parties to enter into contract of marriage / employment / purchase & sale.
, - Protection of property: who owns what and who has the strongest right or claim to things.
Secures independence of individuals and encourages new ideas (intellectual property »
patents and copyright).
Sources of law
- Legislation: written down in statute that is enacted by legislative body. In statutes new rules
are introduced and old ones are amended.
- Common law with distinctive hierarchy of courts: previous court decisions are fundamental,
reasoning in earlier cases is important in similar cases, promotes stability and predictability.
- Natural law: rational principles based on Roman Catholic Church philosophy (abortion).
- Academic law: courts cite scholarly colleagues’ views as expressed in textbooks and journals
- Common sense: widely accepted notions of right and wrong, generalizations about social
practices, fairness, perceptions of the law, etc.
Interpretation
- Three general problems with interpretation:
o Things (ideas) change over time
o Provision may be unclear
o Gaps in law (not covered by provision)
- Interpretation methods:
o Grammatical/linguistic interpretation: literal meaning
o Historical interpretation: using legislative history
o Systematic interpretation: what does something mean in broader context of domain
o Teleological interpretation: focus on the purpose of the law
Tangibles / Intangibles
- Tangibles can be taken, then owner loses possession
- Intangibles cannot be taken, so the owner does not lose possession
- Electricity » use once » appropriation » thef
- Data » copy » no appropriation » no thef
- Pin code » copy » no appropriation » no thef
- Sofware » copy » no appropriation » no thef
Rules, norms and principles
- Rules: any expression of regularity. Rules are conditions designed to preserve desirable
conditions such as social cooperation and rules are absolute (no debate possible).
o Primary and secondary rules:
Primary: rules of conduct
Secondary: specify how primary’s may be introduced, eliminated and varied
Rules of recognition: given rule is valid based on recognition tests
Rules of change: enables to add, remove and modify valid rules
Rules of adjudication: provides a mechanism for determining
whether a valid rule has been violated
- Norms: frameworks for shaping behaviour on a general level everybody agrees (no sanction)
- Principles: represent values that orient and rule the conduct of persons in particular society.
- Principles are more abstract than rules and not everybody agrees the same principles,
principles are not really black or white, and principles play a role in filling gaps in law.
Rules that conflict
- Conflict resolution rules:
, 1. Lex superior: a higher rule overrides a lower rule.
2. Lex posterior: newer rules override older rules
3. Lex specialis: more specific rules override more generic rules
- ‘Silent law’ » when the law does not say anything about a case.
Legal sources
- EU legal sources
o International treaties: agreement under international law
o Enacted law:
Constitution: basic principles that apply within a particular country
Statutes: created by the first and second chamber in the Netherlands
Governmental regulation
o Unwritten law:
Customary law: there has to be a regularity.
General principles of law
- Civil law in the EU: EU legislation hierarchy
o If something is on a lower level, these are replaced
by the rule of the higher level.
o Statutes in EU
Directives: directed at member states.
Regulations: have direct effect.
- Primary and secondary law
o Primary: main sources are Treaties establishing the European Union.
o Secondary: legal instruments based on Treaties
Civil law and common law
The 2 major legal traditions Civil law (Germanic/French) Common law (Anglo-Saxon)
Codified law Yes Not necessarily
Judge made law Not really Yes
Contractual freedom Less More
Type of judge Investigators Arbiters between parties
Trias Politica
- Legislative: create law
- Executive branch: applies law
- Judiciary: interpret the law and apply it to a particular case
Why are court decisions de facto legal standards?
- High court decisions always overrule lower court decisions
- Lower courts simply decide the same as the high court did » high court makes legal standards
Legal domains
- Private law: about relations between individuals (contracts)
- Public law: about relations between individual and the state (tax law)
- Criminal law: part of public law (regulates crime)
- Intellectual property: part of private and public law
Regulation
- Law is aimed at regulating people’s behaviour.
- Regulation is broader: want to achieve a certain goal and try to get people to do that.
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