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!!!

Problems with normative/descriptive claims about law; vol. 1

A basic distinction in legal scholarship lies between descriptive claims (what is the law?) and normative claims (what should be the law?). In this post I argue that one can easily fall into the trap of making one instead of another, due to: 1) law’s normative character; 2) law’s hierarchical (or heterarchical) structure; and 3) often argumentative style of legal reasoning.

Initial claims:
1. Since law itself is normative, a descriptive claim about law will be a normative claim about sth else;
2. A descriptive claim about a higher order provision (in Kelsen’s sense or some heterarchical sense, e.g. about the EU law) will be a normative claim about a lower order provision;
3. When law is ambiguous, a seemingly descriptive, ‘interpretative’ claim might actually include extra-legal normative components.

Examples:
Assume a hypothetical state, the Republic of Silesia, where the Traffic Regulation Act sets the default speed limit at 60 km/h in the towns.

Descriptive question: what is the default speed limit in the towns in the Republic of Silesia? is pretty straightforward, and the answer: ‘the speed limit is 60 km/h’ is a correct, descriptive claim.
But this claim already includes a normative statement: ‘people should not drive faster than 60 km/h in Silesia’.

However, a normative question: what should be the default speed limit in towns in Silesia? invites different possible types of answers:
#1: The speed limit should be lower, because I’m afraid of cars driving so fast;
#2: The speed limit should be higher, so that people can be more efficient, move faster and so have more time to work, due to saving time on transportation;
#3: The speed limit should be higher, because the art. X of the Constitution of the Republic of Silesia states ‘The Republic ensures the citizens’ right to move around quickly’.

Higher/lower limit is insignificant here, what matters is the reasons behind the normative claims.
In #1, this is just an opinion;
in #2 a higher-level normative claim: ‘law should maximise the efficiency’ is assumed, though this claim is external to the legal system;
in #3 a descriptive claim about higher level law (constitution) is made, together with a normative claim: ‘lower level norms should comply with higher level norms’, which is internal to the legal system, and could be summarised as an internal normative claim: ‘law should make sure that citizens can move around quickly’.

Note that #2’s normativity comes from outside of the legal system, while #3’s from the inside.
Why does it matter?
Because one could claim that a statement: ‘The speed limit in towns in Silesia must be higher, because the current one is unconstitutional’ is actually a descriptive claim about the law.
In other words: seemingly normative statements about the law (due to the lingual side and usage of the modal verbs like ‘should’, ‘ought to’ or ‘must’) can be considered descriptive statements by some scholars.

One should bare in mind that when making any claim about the law, one sees at least 3 levels:
1. Reality;
2. Legal provisions in statutes;
3. Constitutional/human rights provisions.

When making a descriptive claim about a higher level, one makes a normative claim about the lower level; when saying what the law is, one says how the reality should be; when saying what the constitutional norms are, one says how the lower level law should be. All these normative statements are internal to legal system.

However, there is a space for ‘cheating’ here. For example, it is not obvious that the speeding limit must be higher, maybe it is sufficient. This is already an argumentative exercise.

Now, the picture gets more complicated when one makes a normative claim based on reasons external to the legal system. These claims, again, can be directed at different levels:
1. People should be moving around quickly to be efficient;
2. Law should protect safety of the citizens, because human life is the highest value.
3. The silly provision about the right to move around quickly should be taken out of the Constitution, because it only causes confusion.

The importance of the distinction is high, because one can argue that executing a normative proposition internal to the law is a legal action, while executing one external to the law is just political action.

Now, this gets even more complicated when legal provisions are not straightforward.
Assume the Constitution states: ‘The Parliament of Silesia elects the Justices of the Constitutional Court and President of the Republic accepts the vow from them’ and assume that the Parliament has elected 4 justices, but the President refused to accept the vow.
The question begging a descriptive answer: ‘Is the President allowed not to accept a vow from the justices?’ needs an argumentative argument actually; and the reasons invoked might be internal, but might just as well be external to the legal system.
One can imagine both an affirmative and a negative answer, about which it is hard to state whether they describe the law, or just state as it should be.

In consequence, a rigid scholar should be always be explicit about the internality or externality of the source of normative claims he or she is making; and about the level about which a claim is made. Otherwise, falsity of the theories might hide to deep in the argument to be detected.

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!