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summary regulation and law
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Samenvatting regulation and law.Readings week 1.
Legal philosopher Gustav radbuch defined law in terms of 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 – even though they may be incompatible in concrete cases.
Sources of law
In law, the term source of law has a very specific meaning. A source of law 1) provides legal norms with
authority based on their origin or provenance of valid legal norms, and 2) makes legal norms binding in
their effect.
1) Treaties: bind the states that have signed and ratified them.
2) Legislation (including the constitution) imposes general legal norms on those that share
jurisdiction. A written constitution has a special status, as it normally defines the powers within
the state.
3) Case law is the result of judgements made by courts.
4) Doctrine: is a body of texts published by lawyers of standing. Fundamental principles of law are
the principles that are implied on other legal sources as they inform the applicability and the
application of legal norms.
5) Customary law is at stake in the absence of written law, when legal subjects have acted in a
consistent way thus raising legit mate expectations as to how they consider themselves bound.
Video 1.2
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.
Administrative law is a branch of law which essentially seeks to ensure that governments or authorities
acts in a fair, consistent and transparent manner to avoid things like fraud.
Private law would govern the employee contract of anyone who is going to work on the apps
development for example.
Intellectual property law falls under private law subcategory.
Data ethics: can you make an app compulsory?
This is why it is important for a DS to be aware of legal considerations that will be applicable to data
science practices.
Video 1.3
We have absolute and relative rights. Absolute rights are rights that can be exercised against all other
people (e.g. property rights) having a house. Relative rights: right that can only be exercised against
one or more determined persons/specific people (e.g. loan) a contract.
,Objective and subjective law/rights. Objective law refers to the principles and foundations that exist
independently of the application of the principles. The subjective law refers to the application of the
objective principles to a given situation, which may differ from case to case (e.g. free speech).
Purpose and functions of law: the law consist of norms regulating human behavior and rules that
organize the state. Difference between moral and legal norms is that legal effect follows legal norms and
not moral norms. Example: rape: at the time of the trial, rape was defined as forced penetration of the
vagina. Any other type of penetration was excluded of the definition. The court redefined the crime of
rape, but what to do with the accused he was not guilty of rape in terms of criminal law at that time.
The scope of definitions is thus important!
Rule of law VS rule by law: rules by law refers to the situation in the past where you had kings or queens,
and they would enforce their will through the making of laws that people needs to follow could be
above of power. So now we have constitutional monarchy. In a constitutional monarchy, the government
is split into three branches. Each function independently. But it has a system of checks and balances:
- Legislative function: are the ones who make law (parlement) they determine the scope of the
judicial function.
- Executive function (police, priminister, etc.): empowered by law that is sit by parlement. They
cannot go beyond that scope.
- Judicial function: will tell if the laws the parlement wants to make fit in the constitution of the
country.
Legislative needs judicial and executive function to carry out and enforce the laws that they create.
Parliament doesn’t do that. The executive and judicial can only act within the scope of the powers that
are given by them by the power of the legislative branch.
Principles and rules: principles are at a higher level of abstraction then rules. They form the background
of legal rules. The principles are the independent or the justification for the rule. However, we know that
many rules cannot be applied simultaneously, because they conflict with each other. How do you resolve
,that conflict legal principles. Principles do not follow the same binary application that rules do.
Principles have a certain weight depending on the case. In case of two competing rules will be one of the
rules winning. But in case of competing principles, both can be relevant and inform the decision as to
which rule would be valid or which rule should be given presidency in this case. The impact of principles
on the decision can vary.
Not all rules are legal rules. Legal rules are judge mode (in verdict) or by legislator (in codes).
Sources of law:
- Treaties: they bind states that have signed or ratified or agreed to the treaty.
- Legislation: laws that are made by parlement they impose legal norms on the people within that
jurisdiction (that country).
- Case/law judicial decisions: when a judge make a judgement, it represent both application of
binding legal norms and represents a source of legal norms. We refer to precedent in law a
judge will interpret and imply law to a given case and that forms a precedent, and that
precedent can then be applied to cases that are similar to that case in the feature.
- Customary law: it requires a habit of acting in one way rather than another, secondly requires a
shared opinion that that habit or norm is based on a duty to act in such a way international
crimes like slavery, etc. or customary law marriage.
Those sources are listed in terms of hierchy.
Video 1.4
Legal domains: law can be split in three domains:
1) Private law: relationships between private individuals or egal entities companies.
2) Public law: the area of the state with people or private entities.
3) Criminal law: public law specifically on crimes with a country.
Within these areas you get different actors.
In criminal law, we get a public prosecutor employed by the state and are trying to prove that
someone is guilty of a certain crime. Private law: now one is a prosecutor but you have someone who
leads.
Active VS passive role of a judge: for example a sport game you have a referee and when they play an
active role, they are identifying when someone in a game breaks a rule. A passive referee is when players
must refer something to the judge and then the judge takes action. Like review a decision.
Interpretation and argumentation: in civil law system a judge must apply the law. But in order to do so,
the law needs to be interpreted.
Interpretation methods:
- Grammatical/linguistic interpretation: literal meaning dictionary definition.
- Historical interpretation: using the legislative history, to reveal the interest of the legislator.
- Systematic interpretation: considering the broader context of the legal framework in which a
provision is listed.
, - Theological interpretation: focus on the purpose of the law what is this law meant to do.
Argumentation: the judge must provide argumentation of the verdict. A judge must always provide
rational basis for a verdict or a final decision. Reason is to provide:
- Legal equality liked cases are treated alike.
- Legal certainty lawyers and other judges can be guided by the decision and use that decision.
Legal reasoning: can a certain decision be justified, based on law. It is important, because it prevents
arbitrary decision, based on preferences of a judge, a legal norm is represented by:
- Major: if A then B (legal norm: A = facts, B = conclusion).
- Minor: A is the case (facts).
But versions can be different when you look at it another way.
Example:
Imagine you have a start-up company that provides an online dating platform. In order to use the
platform users need to create a profile, however, your research shows that people have a tendency to
“pimp their profile” and your research shows that people really like information regarding income and
marital status to be correct on such dating profiles. So you wish to access a government database to
verify such types of information so that you can provide feedback to users that at least certain
information on a given profile has been verified. It is taking too long to get access from government to
the database, but you have an acquaintance who has access to this system, so you decide to wait no
longer, use his credentials and then just scrape as much data you can get and store it for later use. Can
you be liable for theft under Dutch law? Where do we start???
Part XXII. Theft and Poaching Section 310 Any person who takes any property belonging in whole or in
part to another person with the intention of unlawfully appropriating it, shall be guilty of theft and shall
be liable to a term of imprisonment not exceeding four years or a fine of the fourth category. What
might be problematic in view of stealing data? Article 3:1 Definition of ‘property’ as a legal object
‘Property’ (or ‘assets’) comprises of all things and all other property rights. Article 3:2 Definition ‘things’
‘Things’ are tangible objects that can be controlled by humans.
Legal reasoning:
- Analogy: a similarity in some respects between things that are otherwise dissimilar.
- A contrario: from a contrary position denotes any proposition that is argued to be correct,
because it is not disproven by a certain case.
Further on the example:
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