English summary of Data Science Regulation and Law from the Master of Data Science and Society. Summary of the full course (full semester). Summary includes information from the slides of the lectures, the readings, and notes taken during lectures.
In the exam, you get 3 questions each relating to a cluster of the course.
Slides and compulsory readings are in the exam.
Lecture 1
Clarifying some concepts:
Absolute rights and relative rights:
- Absolute right: that can be exercised against all others. Applies to everyone outside
of myself (e.g., property right). For example, if you own property, everyone should
respect your property.
- Relative rights: rights that can only be exercised against one or more determined
persons (e.g., loan). For example, contract creates relative rights. They only relate to
or can be exercised against the parties in the contract.
Objective and subjective law/rights:
- The law (objective); my right (subjective) – e.g., free speech.
- Objective refers to the principles that exist individually from the application
- Subjective refers to the application of the principles
Free speech: objectively everyone has the right of free speech. However, the application of
that right can be limited. In some countries you have a prohibition of hate speech. This
limits my right of freedom of expression. So, objectively I have the right of freedom of
expression but how I use that right and in what circumstances is subjective.
Purpose and functions of law:
- The law consists of norms regulating human behavior and rules that organize the
state.
o Establishing standards
o Maintaining order
o Resolving disputes
o Protecting liberties and rights
Moral norms vs legal norms:
- Legal effect follows a legal norm. Legal effect means that there is a legal
consequence when breaking a legal norm.
- If you break a moral norm, there might be a consequence but not a legal one and
there does not necessarily have to be a consequence.
‘Rule of law’ vs ‘Rule by law’ (can come in exam):
Rule of law: trias politica:
- Judicial functions: adjudicates disputes, deciding how a disagreement would be
settled.
o Largely the courts.
o If two parties have a dispute, they bring it to court and the court helps them
to decide how to solve the dispute.
, - Legislative function: determine the rules that will govern the process of adjudication.
Legislation tells judicial function how do adjudicate.
o Parliament of a country. They make the rules. They determine the rules
about how the court functions.
o Create the rules for the court. For example set minimal and maximal
sentence. This is how the judicial functions are held accountable by the
legislative function.
- Executive function: ensure, first that the disputing parties submit to adjunction in the
first place, and second, that they actually comply with the settlement eventually
reached through the judicial process.
o Government. Usually, you have a prime minister, and they will have a
cabinet. The police force is part of the executive function, it helps them to
enforce the law.
o The executive function normally have a say as to who can be appointed as a
judge.
o The police force is a part of the executive function. If the court makes a
decision, they will rely on the police force to carry out this decision.
All of these branches are subject to the constitution. The parliament make laws. They are
held accountable by the judicial function. They provide a review to the law to see if the laws
made are consistent with the constitution. The executive branch are the ones who have to
carry out the laws. So that is how parliament is reliant or held accountable to the executive
and the legislative functions. The executive function has rules on how to behave. If they
break them, they have to go to court. Parliament determines the scope of how the
executive function has to behave. The court makes a decision if someone from the executive
goes out of that scope.
Rule by law:
The historical past. The individual persons will gets carried out by making rules that
everyone else has to follow.
- An order is an order
Principles and rules:
Principles are at a higher level of abstraction then rules. They form the background of legal
rules and can be used to interpret, to complete or to correct legal rules
Legal rules: judge made (in verdict) or by legislator (in codes).
,Sources of law:
1. Treaties: bind states that have signed and ratified them
o Takes the form of a document and have many different countries that agree
to the things in the treaties.
2. Legislation (including the Constitution): imposes legal norm on those within the
jurisdiction. These norms enact prohibitions and obligations, including obligations
not to interfere and rights to such non-interference or rights to specific actions by
others. Legislation is binding for all those subject to its jurisdiction.
3. Case law / Judicial Decisions: result of judgments made by courts. These judgments
are simultaneously the result of applying binding legal norms, and a source of legal
norms.
o Generally, cases are applying legislation.
o Sometimes they help us make sense of the legislation.
4. Customary law: in the absence of written law, when legal subjects have acted in a
consistent way thus raising legitimate expectations as to how they consider
themselves bound.
Legal domains:
- Private law
- Public law: situations between the government and other individual parties.
Relationships between the state and individuals.
- Criminal law: have a sentence to them.
- There are different actors in different legal domains. E.g., Public prosecutor.
- Different roles of same actor in different legal domains. E.g., active or passive role of
a judge.
Interpretation methods: judge needs to apply the law, therefor interpretation if important
- Grammatical / linguistic interpretation: literal meaning.
- Historical interpretation: using the legislative history, to reveal the intent of the
legislator.
- Systematic interpretation: considering the broader context of the legal framework in
which a provision is listed.
- Teleological interpretation: focus on the purpose of the law.
Argumentation: judge must provide argumentation of the verdict:
- Legal equality
- Legal certainty: the need to provide a foreseeable response to one’s actions, in order
to create societal trust.
, Example:
Law often lacks behind technological development. That does not mean that every aspect
should remain unregulated. Often judges have a case for them and there is no particular law
for that case, but they still need to come up with a decision. This example is one that came
up previously.
This was originally the law in regards to data:
What is problematic in the view of stealing data? It is not tangible.
Definition of property:
In this case the government is still in possession of the data. However, you have managed to
also get access to the data.
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.
Similarities by analogy:
Verdicts regarding:
- Electricity
- Source code
Electricity:
- Exists in itself
- Can be sotored in physical object
- Can be generated and distributed
- Can be consumed as desired
- Has value
310 Sr. aims to protect assets taken by unauthorized people, so electricity can be considered
to be property.
On the basis of the criteria electricity it might be a property/thing.
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