Data Science Regulation & Law
Lecture 1 – 31 August 2020
Session 3: Clarifying concepts
Absolute and relative rights
- Absolute rights: Right that can be exercised against all other (e.g., property right). If
you trespass a building, the right applies to all people that trespass.
- Relative rights: Right that can only be exercised against one or more determined
persons (e.g., loan). If you have a contract between a company and a person, the
right only applies to the people involved in the contract.
Objective and subjective law
- Objective law/rights: The right of freedom of speech is an object of right
- Subjective law/rights: The application and the extend of that application will differ
from one case to the next in the right of freedom of speech.
Purposes and functions of law
The law consists of norms regulating human behavior and rules that organize the state.
The law seeks to do this by:
- Establishing standards
- Maintaining order
- Resolving disputes
- Protecting liberties and rights
The main difference between moral norms and legal norms, is that the legal effect follows
legal norms and not normal norms.
‘Rule of Law’ vs ‘Rule by law’
- Judicial function: adjudicates disputes, deciding how a disagreement should be
settled
- Legislative function: determines 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.
- Rule by law: In the old times, monarchies enforce their will through the making of
laws that people have to comply by. This could ultimately lead to dictatorship.
- Rule of law: Governance and regulation is ruled by a constitution. In the
constitution, law is split into three separate elements that function depend on each
other.
, - Trias politica: legislature (parliament), judiciary (courts), and executive (government,
e.g. police). Each branch is accountable to the other branch. Judiciary holds the
parliament and executive accountable, and vice versa. Constitution has an
overarching role within which the three branches have to comply.
o Legislature: determines the law and the scope of law
o Judiciary: Is limited in their authority by the work that is formed by
legislature.
o Executive: They are empowered by the law that is given by parlement.
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).
If someone acts outside of the law that is formed after the act happened, then you cannot
go back and charge someone for something he/she did that was at that time not a crime.
Sources of law
In order of their hierarchy:
1. Treaties (NL: verdragen)
a. Treaties bind states that have signed and ratified (means: agreed to the
conditions of the treaty) them
2. Legislation (including the Constitution) (NL: wetgeving)
a. Imposes legal norms on those within the jurisdiction (means: area or scope of
the particular legislation)
3. Case law / judicial decisions (NL: jurisprudenties)
a. Decisions made by the courts. They look at subjective (case) as well as the
source. They interpreted the law if their needs to be more interpretation to
make it clearer to a specific set of circumstances.
4. Customary law (NL: gewoonterecht)
a. It requires the habit of acting one way. Second, it requires the duty to act in
that way.
Legal domains
- Private Law
- Public Law
- Criminal Law
Interpretation
Civil law system: Judge must apply the law
The law needs to be interpreted.
,Interpretation methods:
- Grammatical/ linguistic interpretation: literal meaning
- Historical interpretation: using the legislative history, to reveal the intent of the
legislator. The intent of parliament when they made the law at that time.
- 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. The difference with
historical interpretation is that here you look at what the law is trying to achieve, but
still closely linked to historical interpretation.
Argumentation:
Judge must provide argumentation of the verdict:
- Legal equality: Judge must ensure that it is equal to everyone.
- Legal certainty: Judge must anticipate what the law is and how it will apply to a
specific case.
Legal reasoning:
The crucial point is whether a solution can be justified based on law.
- Major: If A then B (legal norm)
- Minor: A is the case (facts)
- Conclusion: B (legal effect)
Example: Where do we start with theft in Dutch law?
- Analogy: compare A to B. Electricity to date. Is it the same in that case?
- A Contrario:
International and EU Law
Jurisdiction
- The official power to make legal decisions and judgements
- Case can have a different outcome depending on where the dispute arises
- Very important to know which rules applicable, which is not always easy in Internet
environment.
Dematerialisation: The move from tangible things to intangible. The sale of digital goods,
which is intangible.
Internationalisation: Less easy to define borders because all companies trade
internationally.
European Union Law
- Primary law: treaties
- Secondary law: Decision, directive, regulation (recommendation, opinion).
A directive is not directly binding in member states. That particular member state needs to
in act the directive in its own laws. The directive needs to be transposed into the law of
member states.
, A regulation is directly application in the member state as soon as the regulation becomes
enforced. The regulation is enforceable and applicable in all member states.
The Council of Europe is the primary institution responsible for enforcing and ensuring that
states comply with human rights.
Law vs. Regulation:
Is law the same as regulation?
What is regulation?
- “The sustained and focused attempt to alter the behavior of others according to
standards or goals with the intention of producing a broadly identified outcome or
outcomes, which may involve mechanisms of standard-setting, information-
gathering and behavior-modification”. Thus, regulation is an attempt to change
behavior of others.
How can we change behavior (how do we regulate)?
- Lawrence Lessig: Four modalities of regulation
o Law: The law as a way of regulating human behavior.
(e.g., speed ticket as a result of the road camera to punish speeding with fine)
o Architecture: Using the world around you to regulate human behavior
(e.g., road camera to regulate speed limits)
o Market: regulate human behavior through market principles
(e.g., smoking taxation prices gone up to make them more expensive)
o Norms: Refers to social norms. While subjective, norms can be powerful
through peer-pressure for regulating.
(e.g., giving a hand to say hello. Polite to shake hand when introducing)
What about code?
Code falls under Lawrence modality of architecture. The code regulates the behavior of
users through its framework of code, as a player of a game can only play the game within
the boundaries of the game makers.
The most effective way of regulating human behavior is by a combination of Lessig’s four
modalities.
