We have an innovation problem…

…but as in ‘alcohol problem’. innovationx

The last time I checked, innovation was not a fundamental right protected by any constitution. And yet, for the reasons that are nor particularly clear to me, it so often seems to be an argument that trumps (..) strengthening legal protection of consumers or privacy. In a discussion, whether in the classroom or over a beer, whenever someone even mentions regulating the algorithms, or taking a stronger stance on the internet giants’ practices, there is always someone else to say: “No, this will slow down/impede the innovation!”. And then, you’re supposed to say “a, yeah, sorry”.

Really? We’ve had 20 years of that innovation now, should we not run a little assessment of what went fine and what went wrong and whether this really is the way to go? Three points.

Firstly, we have numerous laws that impede innovation, and everyone seems to acknowledge their importance. We have product safety laws and standards, we have rules on clinical trials of drugs on humans and animals, we have labour law – all of these clearly make innovation in many spheres more expensive, longer and difficult. But we have them, to protect human health, life and well being; even if the innovation in these spheres could also contribute to these values.

Secondly – what type of innovation are we talking about? Even more apps and platforms. Spotify and Netflix, and Uber, and Deliveroo. Even better targeted advertising. Even more stuff can be done on one’s smartphone. Cool, it’s convenient, it makes life easier for some of us, but is also has side effects – alienation, uberification of economy, new types of addictions, fake news, filter bubbles – I could go on, but you know all that.

And yet, even though it’s clear and obvious that Google, Facebook et al. are openly violating European personal data protection law, consumer law on unfair commercial practices and unfair terms, discrimination law; as well as all the values not yet explicitly protected by law (because “innovation”); so many people seem to be fine with that. We won’t regulate them, we won’t actually enforce the laws we have in place, because that could slow down the Progress.

Don’t get me wrong – I’m neither advocating a harsh regulation of new technologies, nor a large-scale enforcement of the laws we created before their emergence. On the contrary, I think we need a proper, informed, balanced and serious discussion on what to do with the law and regulation in the new reality. However, innovation should not be an argument against protection of privacy, increasing transparency or combating discrimination.

I get it: privacy is not as fundamental a value as life and health. But a new dating app, or the fact that your automatically generated playlist is now so perfect, or that you can order any pizza you want, are not as socially valuable as a new medications either.

Thirdly, and finally, I wonder where this comes from? Why are we so easily lured by this rhetoric? Who created it? These are the questions, and this is a post, in the research-I-would-do-if-only-I-had-time series. I don’t know, though I have a guess. It’s a mix of our modernist idolisation of progress, and really good PR of big business. And that we mistook our lives getting more convenient for our lives getting better.

All I wanted to say it that privacy is not absolute, but neither is innovation. And that we should start thinking about what type of it are we buying at what cost.

Ontological vs. methodological assumptions

It will take you 6 minutes to read this post

There is a significant difference between methodological and ontological assumptions.

One of the prerequisites of a good scholarship is ability to draw distinctions. To see critical differences between one thing, subject, method, process (…) and another. Especially if the two seem very similar or even the same. What has started with Plato’s critique of Parmenides’s confusion over the meaning of a verb ‘to be’, continues till now as a feature of what Westerners label philosophy, or to be more humble, scholarship. The aim of this post is to draw attention to the one signalled in the lead – between assumptions about ontology of the object of inquiry and assumptions internal to the method of inquiry.

This post is inspired by one sentence uttered by prof. Bratosz Brożek about a year ago, over coffee and a cookie, during Law & Logic summer school. We discussed law & neuroscience, a hip subject nowadays. When I mentioned a problem that I’ve considered an important one in philosophy – the problem of reductionism (assumption that mind can be reduced to physical, chemical and biological processes occurring in a brain), prof. Brożek just looked at me, quite annoyed, and said:

‘Those people (reductionists) confuse methodological assumptions with ontological ones‘

That was quite illuminating. So I’ve been thinking about it for a year now. I wanted to write an article about it, but of course found no time, and so hope that a blogpost will suffice for the time being. To be clear – I am not referring Brożek’s position here – I actually don’t know what he really meant. I just had to share my state of thought on the statement, which I personally consider extremely important.

I proceed in three parts. Firstly, I try to generalise, to explain what is the difference between ontological and methodological assumption in general. Secondly, I apply it the the field of neuroscience & law/philosophy/(…) and the brain/mind problem. Thirdly, I apply the distinction to ‘what is law?’ debate, especially to the natural law vs. positivism sub-debate.

What should go without saying, but let me say it just in case – there is probably tons of literature on these subjects, which I do not refer to, because I have not read it. That is why this a brief(ish) blogpost. Not a scholarly article.

I. In general

Every scholarly inquiry assumes a particular reality. It delineates its fragment, a fragment that it wishes to describe, explain and (possibly) criticise. It asks a question and sets up a method of answering it. Here the source of the distinction lies. For a method is a function of a question, and so the assumptions internal to the method will be a function of the question, not a function of the reality itself.

Take the example of the evolutionary theory of the origins of species and the problem of God’s role in the creation. In order to explain evolution, within the positivist paradigm (what we nowadays limit ‘science’ to), one does not need to assume existence of God. Probably, it’s even better not to do so. Each good scientist shaves with the Ockham’s razor, and so an evolutionist should be able to explain the origin of species relying just on the phenomena ‘matter-up’. Explanation not involving God will be a better one. This, however, does not yet mean that there is no God. This just means that assuming God is not necessary in order to answer the question. But God might be out there, creating the World through evolution. And He might be not. This does not matter. And the other way round – If the question would be ‘can the story of Genesis be reconciled with the theory of evolution?’, then existence of God would be a possible methodological assumption, even if the scholar would personally believe that He does not exist.

II. Neuroscience and X

The problem I signalled above – the problem of reductionism – could be summarised in having to accept or reject the claim: ‘The Mind, meaning the sum of intentional, intellectual, emotive etc. mental states can be reduced, and so described and explained, by solely ‘natural’ phenomena of physics, biology and chemistry’. Philosophically it is hard to defend, and yet many neuroscientists, often seeming as smart people otherwise, defend it vigorously. I claim, after Brożek, that this perplexing state of academic affairs can be blamed on the confusion of methodological assumptions with ontological ones.

For, in a sense, neuroscience needs to be reductionist in its method. Unless the assumption is there, the results would need to be always preceded by a word ‘probably’. Unless the mental states can be explained by the analysis of the brain, the analysis of the brain in order to explain the mental states would be silly. So we assume it is.

This, however, does not mean that ontologically speaking, mind is brain. There are many philosophical arguments against this claim. But as in the example of evolution, one does not really matter for another. The problem appears when a neuroscientist makes a claim that his or her methodological assumption is an ontological assumption. The argument: ‘Since I need to assume X for my method to make sense, and it seems that sometimes my method leads to true conclusions, then X is necessarily the case as a feature of the reality’ is logically invalid.

III. Natural law vs. positivism

‘What is law?’ question should trouble any lower with at least vague interest in philosophy and theory. I do not aim at answering it here, of course. But I am in the middle of a project of explain why it remains so hard to answer. In this post I just point to one of the reasons, being exactly the confusion of a method with ontology.

For the purpose of this post, take ‘legal positivism’ to mean ‘an approach according to which all the law is man-made, and if something is law, its pedigree can be traced down to sources acceptable in a given society’ and ‘natural law’ mean ‘an approach according to which, apart from man-made law, there is some sort of higher law, given by God or discoverable in nature, unchangeable by men’.

One can easily imagine a descriptive research question concerned just with human practices, e.g. ‘what is the law concerning drinking alcohol in public in Poland, and what is the official practice of its enforcement?’. In order to answer it, one would hold first doctrinal and then empirical legal research, taking social practices as sources and disregarding any assumptions about higher law. This, however, does not in itself mean that there is no natural law. On the other hand, one could imagine a question ‘what are the possible ways of regulating in-vitro fertilisation, such that they would not be contrary to the teaching of Catholic Church?’. If the question is so, since CC assumes the existence of natural law (in ontological sense), the researcher would need to methodologically assume it as well (in order to reconstruct it). But this does not mean that any natural law is out there.

Ontologically speaking, natural law exists or it does not, though it’s probably hard to find out whether it does. But this has no significance for legal method. For the method, and its assumptions, will depend on the question asked.

Scholarship is aimed at a truth, and this truth (to follow Kuhn), will always be relative to the method. It has little to do with the Truth, unless it claims to do. But this claim, one way or another, need to be explicit.

Otherwise, people will just talk past each other.

Red card and/or jail? or when is a foul still legal

It will take you 4,5 minutes to read this post

Coppa Pavone, EUI soccer cup, starts tomorrow. Good time to share a few thoughts on intersection of sport rules and criminal/tort law.

The question of this post I came up with about 3 years ago, together with my friend Kazik, when we were looking for a subject to write a master thesis about. None of us chose it in the end, but I still find it challenging, both substantially and methodologically. Feel free to pick it up.

Question: where to draw a borderline between lawfulness and unlawfulness of an action breaking sport rules? In other words: when is a foul still legal, and when is it illegal?

Substance

It is often the case that an action which would normally be unlawful gets legalised through the consent to the sport rules/ sport risk. Consider two examples: boxing and soccer.

Soccer is a sport with a risk of injury, though unlike boxing it is not about injuring the opponent. Assume three situations, two easy, one hard, when one player kicks the other one and breaks his ankle.
1) The player acts in accordance with the rules, e.g. when tackling kicks the ball first, and so there is injury but no foul. In this case court action won’t be successful, for the injured one agreed to the rules and the injurer complied.
2) Another player approaches the injured one, lying on the ground, and starts kicking him on the other ankle, breaking it. He clearly breaks the rules of the game, there is a foul, and clearly there is a tort and a crime, for his actions are in no way legalised by the rules.
3) But consider an action in which, while fighting for a ball, one player kicks another one in the ankle and unintentionally breaks it. He breaks the rules, but very often all would agree that he is not liable for tort and guilty of crime – such things just happen in soccer. If every foul resulting in injury would be illegal, no one would dare to play the game. So the consent seems to justify not only the actions complying with the rules of the game, but also those crossing them and… exactly, and what? just the intention seems to simple.

One might seek a borderline – ‘up to this point there is not illegality, right above it there is’ – or one might try to develop a test, not being a clear line itself, but allowing to deem an action lawful or unlawful in every given situation. The other one seems more plausible. But how to do it?

Boxing is easier case in one aspect, and harder in another. Since its very purpose is harming the other player in accordance with the rules, the border of breaking the law will be much closer to breaking the rules. Though still, this won’t always be the case. Still, it is harder, for… how come this is legal at all? For even if me and you agree that we will fight each other outside of the bar, and we agree on rules, if one gets injured, this will be a crime and most probably a tort.

What is so special about the sports?
What is the role of international sport associations setting up the rules?
Are they prior to the state and just accepted, or do they have any sort of delegated power?
How to explain this through legal theory?

Here again, sports might be professional and then it’s easier, but while playing football on a pitch of Villa Schifanoia we are hardly professional, rather nobody reads rules of FIFIA, and yet we come within the sport exception. But if we do box there, we don’t.

Method

This post is not about methodology, but let me just point to a few issues here, for it is a good example of how one can get a legal method wrong. The question: when is a foul still legal, and when is it illegal? makes a bad research question, unless we specify what is meant by ‘being legal’ in the given context. There is a dialectical relation between question and method; and each method has got its limitations when the ‘amount of truth’ it can bring is concerned.

The question might be rephrased as one of the following:
1) where do courts and adjudicators draw the line? then research is empirical and descriptive;
2) given the text of law as it is, how should the test be constructed? then work is doctrinal and seemingly descriptive of law, though unless there is a clear provision, the line between description and prescription gets blurred; still the normative statement here will have to be based on the normativity ‘internal’ to the law;
3) given the rationale of law and social ordering in given society, how should the existing law be interpreted? then research is normative, in the ‘external’ sense, but still bound by the provisions, since considered with interpretation and not a change;
4) given the rationale of X (here legal system in total, cultural setting, social purposes), what should be the test? then research is normative, external and unbound, but… it is very easy to disguise it as still a doctrinal research, and unfortunately this often happens in legal scholarship.

With this let me finish, and wish everyone many goals and zero injuries since tomorrow onwards!

Forza Ladybirds!