How to Write a Law and Technology Paper?

This post is for laughs, a piece of a sit-down comedy. Admittedly, it’s making fun of some things I have written in the past. I wrote it a while ago, on a plane from law&tech conference to another. I wanted to pair it with a serious part: a reflection on what is it that we do, what we should do, what’s the point etc. Somehow, however, I never managed. On the same time, I keep showing this to people on my phone during conferences and they laugh. And laughing is good for you! Hence, I thought I’ll share it, so you can smirk, and maybe someone wiser than me will come up with a serious comment on what is behind this. Ready? Let’s go!

How to write a generic law and technology paper

So, you have given a lecture using the speech generator and now they asked you to write a paper. Worried? No need! The instruction below will help you develop a state-of-the-art contribution in ten steps.

Start with a story. Write a couple-paragraph-long horrifying/utopian story about how a technology you are talking about will soon completely change the world, and undermine one of the legally protected values: property, freedom, equality, transparency, non-discrimination, safety, privacy, anything. Don’t explain what you mean by “technology”, but be sure to mention that it is “disruptive”. If you can find some data (numbers are always impressive), cite it; even better if you can find someone (anyone, really) who has published a prediction that in 5 years everyone will be using this. You can also start with some inspirational quote.
Name the technology: robotics, AI, internet of things, big data, blockchain, algorithms, platforms, sharing economy, wearables, again anything. Say that there is no agreed upon definition of it, then define it anyhow, give a few more examples. If you write about IoT, make sure your example is a fridge ordering milk when you are out of it.
Indicate what are some laws that could apply to this technology – cite some statues, some cases, no need to be comprehensive – just have one that would be unclear in application. Alternatively, take some established concept: liability, personality, accountability etc. and show how this new technology makes its application complicated. This will make everyone think that this is a legal paper. Lawyers usually don’t know much about tech, and non-lawyers seldom read cases – this will make you seem like an expert in the other area than the reader comes from.
State that we need to regulate, in a way that will “mitigate the risks, without impeding the benefits”.
Say that obviously there are some benefits, and list them: pay special attention to how this could be used in education, or medicine, or for any type of empowerment (no need to define).
Say that, however, there are of course also some risks/challenges, and list them. No need to indicate what the criteria of distinction was, also don’t worry about explaining your normative theory (just say “criminal law”, or “consumer law”, or “privacy” etc.). Just list the problems.
Now it’s time to solve a problem: throw around one/three/five ideas on what to do. If you are creative here that’s ok, but you can also go for some safe bets: create a new administrative agency (“FDA for algorithms/robots/databases etc.), incentivize self-regulation and creation of codes of conduct, and education – education is the most important.
(Optional: write a couple of paras explaining why your solutions are better than what other people proposed, or what is already in place. This takes more time, because you actually need to read something. But will make you look like an expert. If you treat people nicely, you might even become a member of a #citationCartel).
Mention blockchain. You can just literally put the word “blockchain” in a random place somewhere in the solution section.
Finish by saying that the issue is obviously complex, so more interdisciplinary perspectives are needed, and that you know you might be wrong, but your first ambition was to draw attention to the problem and start a discussion.

There you go! The paper is essentially ready. You just became an expert in something new, congratulations!!!

The trouble with ‘What is X?’ questions

I’ve just solved a problem which has bothered me for two years, and in my excitement want to share the solution with the world.

The problem, in short, is: ‘What is X?’ questions (‘What is law?’, ‘What is religion?’, ‘What is mind?) are in English necessarily ambiguous in at least one sense. They can be questions about both:
1) the delineation of the scope of the inquiry (out of all the phenomena in the universe {x1, x2, x3, …, xn}, which phenomena are to be denoted by the term ‘X’ in a particular inquiry); and
2) the insight into the object of inquiry (having agreed that ‘X’ means {x3, x17, x56 and x875}, how is one to understand that phenomenon).
This seems obvious, but scholars surprisingly often get that mixed, and in consequence talk past each other (details below).
Why? Because English language does not differentiate between cases.

Now, my problem was the inability to communicate that, in other words, if you have not understood what I’ve just written, don’t worry, it’s my fault.

Further, this problem would not have occurred in any language with a robust system of noun declination, and by robust I mean one that uses the instrumental case, like Czech, Russian or Polish. In the last one, ‘what is law?’ question would be translated as ‘Co jest prawem?’ in the first meaning (delineation) and ‘Czym jest prawo?’ in the second (insight). Giving an answer to one while asking another would just feel obviously illogical due to the grammatical structure of the sentence. Hence, whenever talking about the problem above to someone speaking a slavic language, I got this ‘aaaaaaaaaahhhhh!’ when just translating the sentence.

Unfortunately, none of the Western languages that even use cases (German or Latin), so none of the languages that I could have expected majority of my interlocutors to understand, use the instrumental case. So I couldn’t express what I mean.

And now I got it. Two different meanings of ‘what is X?’ question can be exposed in English via the sentence structure of a negation of the question, as in:

what is not law? (negative delineation) – Co nie jest prawem?
what is law not? (negative insight) Czym nie jest prawo?

So, if you agree that these questions are not the same, you can see how a non-negated question ‘What is X?’ can always mean at least two different things.

I am super excited, I don’t now how about you.

Why would that matter? Take the 25-centuries-old, unsolved question: what is law?

I would claim that the trouble with this question lies not only with the object (‘law’), but also with the method(s) and with the question itself; one of the problems with the question being the one explained above.

Take H.L.A. Hart, who in the most overrated law book of the 20th century, The Concept of Law, starts by identifying the diversity of answers:
1) What officials do about disputes is … the law itself (Llewellyn)
2) The prophecies of what the courts will do . . . are what I mean by the law (Holmes)
3) Law is the primary norm which stipulates the sanction (Kelsen)
Clearly, ‘officials’ actions’ are not ‘prophecies’ and are not ‘norms’. The three answers above are answers to the first meaning of the question, just delineations of scope, different ones.

Hart however, to a great surprise of a reader, just skips this problem and implicitly answers the first question by limiting ‘law’ to norms, and then proceeds to the second one, to which he gives the famous answer about the union of the primary and secondary rules.
How come?! I seriously think he just didn’t notice, because he was writing in English.

So, to finish, let us negate a few more questions, just to get the feeling:

What is religion?
1. what is not religion?
2. what is religion not?
What is mind?
1. what is not mind?
2. what is mind not?
What is love?
1. what is not love?
2. what is love not?

CREDITS: Great thanks go to Józef Życiński, over whose book Elementy filozofii nauki I got the idea. The book is in Polish, I was taking notes in English, and the hesitation over the sentence structure of ‘What is not a scientific theory?’ was the eureka moment for me.
Special thanks go to Bartosz Marciniak, who spend a significant amount of time and characters to show me how to translate the two into Latin, finally explaining to me why this could not be expressed in Latin the way I wanted to do it.
Additionally, huge thanks go to Liam McHugh-Russell, who quickly spotted a problem that could have ruined the whole post, now fixed already.

Anthropology before philosophy (?)

The question I want to consider today is: Must one do anthropology before one does philosophy?

One of the fields of legal scholarship that would benefit from an answer is the now-hip field of the Transnational Legal Theory. The question could be specified as: If one wants to propose a theory explaining the phenomenon of the transnational law, must one first empirically examine the phenomenon in question?

And a tempting answer is: (hopefully) not. Hopefully, for philosophers don’t like to get their hands dirty with empirical research. And a compelling argument could be offered in defence of that answer: none of Kelsen, Hart, Dworkin, or Raz ever did any anthropology, and that their theories seem to do just fine without it. And even if the theories themselves aren’t fine, the objection is not “it seems like you guys didn’t do enough anthropology.”

Let me moot two claims.

The answer to the first question is it depends: sometimes one needs to do anthropology before one does philosophy, sometimes not. In particular, it depends on a) existence of ‘folk’ intuitions about the phenomenon to be theorized; b) these intuitions actually being true (corresponding to facts).
The answer to the second question is yes: to provide a theory of transnational law, one first needs to engage in some anthropology (or at least base the theory on the work of others who have). That is because theoreticians and/or their audience still lack sufficiently developed intuitions about the phenomenon of transnational law. Worse, the intuitions they do have often happen not to be true. The context therefore departs significantly from the intellectual milieu in which Kelsen and Hart did their theorizing about ‘traditional’ national and international law.

Let me take a moment to clear up some terminology. ‘Anthropology’ here means, very roughly, empirical research on reality (talking to people, observing phenomena, reading texts) i.e. the any collection of the data that can’t be generated just by sitting in armchair and thinking. ‘Transnational law’ means norms generated and executed by entities that are neither national nor international, ranging from the EU and the WTO, to FIFA and UEFA.

Example 1: Information vs. BitCoin
Start by considering an example of two research questions, with superficially similar structures: what is information? And: what is a cryptocurrency, like BitCoin?

One can easily imagine providing an answer to the first question via armchair philosophy. A researcher would sketch some working ontology, differentiating a piece of information as either: 1) a feature of an object (e.g. a fact of me being a Polish citizen); or 2) an expression of that fact (Filipe saying: ‘Przemek is a Polish citizen’); 3) a fixation of that expression in some context (EUI officer writing in the database ‘Przemek is a Polish citizen’) etc. He or she might then theorize the differences between these types, suggest an ontological explanation, and potentially arrive at some definitions. All this is possible because the researcher ‘knows enough facts.’

What is BitCoin, however, will be harder. For before one can offer a philosophical explanation of its existence and functioning, one needs to know what BitCoin actually is. One needs to obtain the facts. If, for example, one starts by assuming that BitCoin is a private currency, ‘an alternative mode of payment provided by a private company’, and theorizes that, one is simply wrong. For there is no company, and one would completely miss the ‘decentralized’ structure of a crypto-currency. Researcher needs the facts first.

Example two: Philosophy of the Mind
Take another question: what is the relation between a brain (body) and a mind? One could attempt to answer this controversial question solely through ‘armchair philosophy’; in the end, we have quite good intuitions about what brain and mind are. But in doing so, one could simply be wrong about the facts. The booming career of neuroscience shows that our intuitions about how brain functions had often been mistaken. Now, to be clear, I am not saying that neuroscience will ever replace philosophy of mind. I am saying that neuroscience informs it. It provides facts about which we can theorize. It’s the anthropology necessary before philosophy.

Legal theory vs. Theory of transnational law

Now let us apply these findings to legal theory and theory of transnational law.

‘Hart and Dworkin never did any anthropology’. Well, didn’t they? They both studied law and worked as lawyers before they undertook their philosophical projects. They were intimately familiar with phenomenon of ‘law’ that they were addressing, from both a theoretical and a practical perspective. And their audience was people who shared that intimate knowledge as well. They had the facts right.

Imagine someone who had never studied law trying to provide a new, descriptive theory explaining how law functions. There is a chance it would be brilliant and original, granted. But there is a much higher chance that would be wrong, because ‘that is not what actually’s going on here, pal’.

With transnational law, most scholars are in just such a position. We hardly study the phenomena at school. Many of those engaged in legal practices never deal with transnational law directly. We know about some of the relevant institutions, like UE or FIFA, but there are many others we may have never heard about. And we might be just mistaken in our intuitions about them.

A successful theory of transnational law needs to be based on observed facts. Otherwise, theorization will provide an insight not into its desired object, but into the mistaken idea that the researchers have of that object. And so the anthropology needs to come first.

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.

Must legal provisions be textual?

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Is textuality a necessary feature of legal provisions?

A while has passed, but my excitement still keeps high, since the InfoSoc Workshop on Contract Visualisation, paired with Legal Design Jam, offered by wonderful Stefania Passera, Concept Designer & Visualizer, PhD Researcher at the Aalto Univeristy. In this short post I won’t be summarising her argument, but share the thoughts that have buzzed in my head for a week now.

The problem is: contracts are long, people don’t get them (in B2C) or think they agreed are later realise they didn’t (in B2B). Text as a tool is good, but far from perfect. To quote Passera here: ‘contracts often fail not due to legal mistakes, but communication mistakes‘. Proposed solution: let’s put pictures inside, and more generally: pay more attention to visualisation and design.

Example: passage of risk in shipping contracts (from Stefania Passera):

Question that bothers me: must contract (and actually law as well) be textual, or could it be more varied in form? In other words: is textuality a necessary feature of legal provisions; or are they embodied in text because that’s the form we historically got used to? A different set of questions, which I will not consider but state here, is on the very bottom of the post.

It is worth realising that in many instances practices of supplementing, though not yet replacing, text with pictures, in order to facilitate communication, already take place. Let me here point just to two: Creative Commons licenses and App Licences in Google Play:

However, there is a significant difference between representation of existing and textual law in a different form, and creating independent non-textual legal provisions. About a year ago, during GRIM Winter School in Stockholm, prof. Peter Dahlgren, speaking about visualisation of legal material, claimed that trade-off here is between clarity of communication and precision, with pictures being clear but imprecise, logical formulas precise but unclear, and text somewhere in the middle. So it’s best to use all to represent.

But could we use all those forms to make law?

In Polish legal theory we cherish the distinction between a legal provision (a textual unit) and a legal norm (a non-textual sollen, derived from a legal text, often from many provisions, and needing language to be stated, but not being a lingual statement in itself).
If one accepts this distinction as ontologically possible, the conclusion that follows is: law as statutory law must not necessarily be textual; if there is better form, form better realising meta objectives of stating the law, then the better norm should be chosen.

The obvious examples that come to my mind here are traffic signs or non-smoking or no dogs signs (a crossed cigarette or a dog), first being examples of post-statutory regulation, second of either communication of public law, or of contract law (if the owner of a cafe decides not to allow dogs inside). The first, however, are first explained by text in the statue.

Could one imagine a judge interpreting a picture contract clause on passing of risk (like in the first figure above) or a crossed car at the entrance to the park (to use Hart’s classical non-vehicles example?). I could. But would this interpretation be text-free, or would judge first need to textualise the picture as well? But even if so, does this mean that law needs to be text?

To my mind, statutory law or ‘written’ contract do not necessarily need to be represented in text. But I’m happy to hear any criticism of this view.

Other questions here are:
1) When to replace text by pictures, when to pair one with another, and when to draft contracts in technical jargon and then separately create info-graphics to just visualise them?
2) When could it be useful to add pictures to a contract?;
3) Should it be obligatory for entrepreneurs to do so in consumer contracts? (like it is now, in some places, to e.g. draw sugar cubes on Coca-Cola cans);
4) Could using pictures help contract drafters in realising agreement’s weak points? Is there a parallel between conversion to a picture and conversion to XML, when need to clarify meaning of provisions and pictures are concerned?

All these seem like good questions for a paper to me. Feel free to take them!