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Summary Data Science Regulation and Law Cluster 1-3.
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Data Science Regulation and LawIntroduction to Law and Data Science (Cluster 1)
Required Reading:
Chapter 2 of Hildebrandt, M. (2019). 2. L, Democracy, and the Rule of Law. In Law for Computer
Scientists (Specifically sections 2.1.1 and 2.2 are compulsory).
2.1 What is Law?
It is hard to define law; it is based on our tacit knowledge. Legal certainty is one of the core values of
law and draws upon the delicate balance between stable expectations and the ability to reconfigure or
contest them.
Gustav Radbruch defined law in terms of 3 constitutive values: 1) legal certainty, 2) justice and 3)
instrumentality. To qualify as law, a normative framework must aim to sustain, develop and balance
these values.
2.1.1 Sources of Law
the term ‘source of law’ has a very specific meaning refers to a source of knowledge about the law
AND the sources of law are constitutive of law. 1) Provides legal norms with authority based on their
origin, 2) makes legal norms binding in their effect.
To ensure legal certainty only a limited set of sources ‘count’ as sources of law and are binding in a
specific jurisdiction:
1. Treaties: bind the states that have signed and ratified them. They might also bind citizens and
other legal subjects within those states.
2. Legislation (incl. Constitution): imposes general norms on those that share jurisdiction (e.g.
within a national state), including obligations not to interfere and rights to specific actions by
others.
a. A written Constitution has a special status as it defines powers within the state
(national level & sub-national level).
3. Case Law: the result of judgments made by courts.
4. Doctrine: a body of texts published by lawyers of standing. These texts, restatements,
treatises, articles, develop a specific interpretation of a part of the legal framework.
5. Fundamental principles of law: are the principles that are implied in other legal sources, as
they inform the applicability and the application of legal norms. Do not function as ‘rules’, they
either apply or do not apply (f.e.: equal cases have to be treated equally)
6. Customary Law: is at stake in the absence of written law, when legal subjects (often states)
have acted in a consistent way thus raising legitimate expectations as to how they consider
themselves bound. It requires usus (a habit of acting in a way) and opinion necessitates (a
shared opinion that the habit is based on a duty to act that way).
Some states do not have constitution it is then part of unwritten customary law.
2.2 What is law in a constitutional democracy?
Law is closely related to politics and to morality.
One of the core functions of the law: the simultaneity of its instrumental and protective nature (politics).
Law allows legal subjects (incl. the state) to act in law and to generate legal effect, condition by
limitations that ensure e.g. legal certainty, proportionality and transparency. It also protects interest,
rights and freedoms; these might also be private interests, but their protection is often deemed a public
good (fe: privacy, to protect the individual autonomy).
Second, the point of law is to provide preconditions for developing an ethical stance and acting upon it
(morality).
2.2.1 Law, morality and politics, and the nature of legal rules
Herbert Hart (one of the most famous legal philosophers) explained the meaning of law in terms of 3
questions, aiming to set law apart from morality and politics.
Question 1: asks how law relates to and fifers from orders backed by threats.
Answer: modern positive law 1) has teeth, 2) assumes state authority, and, 3) depends on sovereignty
but also constitutes it. His answer about the difference: under the Rule of Law 1) legal norms apply to
those who enact them (distinguishes law from discipline and Rule of Law from dictatorship), 2) legal
norms that confer legal powers to legislate/contract are not orders backed by threats, 3) not all legal
norms come into existence as explicit prescription, 4) sovereignty is not an apt description of law.
Question 2: is about how legal obligation differs from and relates to moral obligation.
,Answer: modern law 1) has teeth, moral obligation is an individual commitment, 2) integrates primary
rules with secondary rules (that validate primary rules).
Answer reg. relationship between legal and moral obligation: law is not merely a matter of being forced.
Having an obligation implies 1) the existence of a standard, 2) its application to a particular person, 3)
may be against the interest of the person having the obligation.
Question 3: what are rules and to what extent is law an affair of rules.
Answer: legal rules are rules in the sense of obligations, not in the sense of regularities. Second, rules
are observed from an internal point of view, and have a sense of obligation.
Core difference between law and force: the possibility to disobey the law is constitutive of the law
raises the question: what determines the validity of legal rules?
Answer: law itself decides this. Legal rules come in 2 types: primary and secondary rules.
Primary rules = regulative rules, regulate our interactions by a prescription or a prohibition (“you shall
not kill”).
Secondary rules = are constitutive rules that determine the validity of primary rules and the legal effect
of violation (confer powers: “if you kill you will be punished with…”)
2.2.2 Legal Certainty, Justice, Instrumentality
Back to Radbruch (intro).
Legal certainty: refers to the need to provide a foreseeable response to one’s actions, to create
societal trust. Law provides a measure of certainty about the legal rights we have and the legal
obligations we should comply with.
Justice: refers to treating equal cases equally and unequal cases unequally to the extent of their
inequality. It is directly connected with legal certainty as this enables people to plan ahead, capable of
anticipating how their actions will be read by the law and responded to by the government. Justice as
fairness concerns 2 types of equality: distributive and proportional.
- Distributive justice: everyone should be treated in the same way, to the extent that similar
conditions apply
- Proportional justice: punishment should be proportional to the seriousness of the crime and
compensation proportional to the damage suffered.
Instrumentality: refers to the fact that law is an instrument to achieve a variety of goals that are in part
external to its own functioning.
Summed up: in a constitutional democracy, legal rules that confer powers simultaneously restrict them:
they provide functionality in a way that provides protection, thus serving the double instrumentality of the
law as a tool of both government and protection.
Difference between Dworkin and Hart
Hart: claimed that modern law can be characterized as a system of legal rules, which are either
applicable or not.
Dworkin: argued that the decision as to which legal rule applies and how it must be interpreted in
concrete cases involves an important role for legal principles.
Why Law & Data Science? (Video lecture, session 2)
Data science = is an inter-disciplinary field that uses scientific methods, processes, algorithms and
systems to extract knowledge and insights from many structural and unstructured data.
Law = rules that govern and guide actions and relations among and between persons, organizations
and governments.
Privacy examples lectures: NS privacy data & law.
Intellectual property: data are the head of ‘Internet of Things’ (IoT). Without connected devices being
able to capture, transfer, analyze, report and act on data. The benefits of the IoT cannot be achieved
(example of ownership of data).
Criminal investigations
Example pacemaker: police wanted to use the data for an investigation. The person says he was not
involved in the fire, but expert could tell from his heart rate that the person was indeed involved.
Interesting to see how data can be used to investigate.
Example COVID-19 app tracker
List of potential things that could have a bearing in this example:
- Privacy or Data protection: data can be misused (data breach)
, - Administrative law = a branch in law in which authorities act in a fair, consistent and
transparent manner. When government teams up with a private company they have to obey
administrative law and be completely transparent. Prevent bias or discrimination, eliminate
fraud so public is aware what’s going on.
- Private law, government decides who will work on the app (workers).
- Intellectual property law, defining who owns what.
- Data ethics, deciding what data is collected and then deciding what the data is exactly used
for. Medical data is very sensitive data (infections).
Data Scientist should be aware of the ways data are used.
Clarifying Concepts (session 3)
The key objective of this course is to make students aware about the role law plays – or can play – in
the field of data science.
Goals of the cluster:
- Identify the basic functions of law
- List the various sources of law
- Describe the relation of law to different modalities of regulation
Rights (absolute rights vs. relative rights)
Absolute right: right that can be exercised against all others (e.g. property right).
Relative rights: right that can only be exercised against one or more determined persons (e.g.
loan/contract).
Objective and subjective law/rights
The law (objective); my right (subjective) – e.g. free speech.
Hate speech is not allowed, objectively you have the right to say what you want but still subjectively
limited (vs.)
Purposes and functions of Law
The law consists of norms regulating human behavior and rules that organize the state.
Establishing standards
Maintaining order
Resolving disputes
Protecting liberties and rights
Moral norms vs. legal norms
Legal effect follows the latter, legal norms (not moral norms).
Law seeks to be as objective as possible.
South-Africa example: crime of rape.
Rape was defined for penetration in vagina, not anal (so males were excluded) huge issue. Outcome
at that time and redefined the crime of rape, however the difficulty in the case they could not accuse the
person guilty, only indecent behavior (show how important legal definitions can be).
Also you cannot change prior cases when a definition is changed legal certainty.
‘Rule of Law’ vs ‘Rule by Law’
Rule BY Law: simply means rule by any law, which is laid down by the supreme law making authority
of that country. One is not concerned what the law is or what it’s purpose is.
Rule OF Law: connotes rule of law, which is based on certain principles of law.
Judicial function: adjudicates disputes, deciding how
a disagreement should be settled.
Legislative function: determine the rules that will
govern the process of adjudication. Legislation tells
judicial function how to adjudicate.
Executive function: ensure, first, that the disputing
parties submit to adjudication in the first place, and
second, that they actually comply with the settlement
eventually reached through the judicial process.
Checks and balances.
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