Beyond Legal XML Günther Schefbeck 4th Workshop „Legislative XML“ Klagenfurt, 18 November 2005

Legal/Legislative XML Legal XML: using XML within the framework of the legal system Legislative XML: using XML within the framework of the legislative system

Legal/Legislative system Legal system: totality of norms valid/applicable within a given scope (personal/territorial/timely) Kelsen: legal system = state Legislative system: totality of norms/conventions relevant to the production of norms Legislative system < political system

Society and its subsystems Procedural rules

Legislation/Laws Laws as the product of legislation? Young stage within the evolution of law! Maine (1861): Six stages of the evolution of law, from habit to legislation as an explicit declaration of intention incorporated in a legal enactment Overlapping stages!

Legislative Processes Complex and multi-layered Highly formalized legal procedure (going back to 19th century) vs. Informal political decision-making process (semi-structured or negotiation process) Interaction of political and legal layers

The value of legislative processes “A business process is a collection of activities that takes one or more kinds of inputs and creates an output that is of value to the customer” (Hammer & Champy) What is the value of a law?

The value of laws Individual law: quality of content Rule of law: quality of justice (Aristotle: “Under the rule of law the chances for justice are better than under the rule of men”) Law produced in a democratic process: quality of legitimation (Luhmann: “legitimization by procedure”)

Rule of law in a democratic system Knowledge of laws as a prerequisite for acceptance of laws and law enforcement Transparency of the legislative process as a prerequisite for the acceptance of this process and its output Crucial function of publicity of laws and legislative processes

Laws/Legal knowledge Rule based reasoning vs. case based reasoning Kelsen: Distinction between „Sein“ („is“, description) and „Sollen“ („ought“, prescription) Logical connection: condition – prescribed effect Holmes: „The life of the law has not been logic: it has been experience.“ Problem of interpretation: (unconsciously) experience based

Knowledge Basis: data Structured data: information Contextualized information: knowledge Observer-sensitiveness: a particular set of characters may be data, information or knowledge, depending on the observer

Legal information/knowledge How to contextualize legal information? Classic way: human brain (lawyer‘s brain) Innovative way: inference engine Artificial intelligence vs. semantic web!

AI/Semantic web Berners-Lee (1998): „The concept of machine-understandable documents does not imply some magical artificial intelligence which allows machines to understand human mumblings. It only indicates a machine‘s ability to solve a well- defined problem by performing well- defined operations on existing well-defined data.“

AI solutions Induction systems (transforming cases into rules) Case based reasoning systems (identifying precedences and analogies) Neural networks (imitating biological neural systems, e.g. for infering legal effects or for retrieving legal documents)

Semantic web solution Using metadata for describing data in a way enabling machines to turn these data into knowledge Data model: RDF (compatible with, but beyond XML) Description triple: resource – property – property value RDFS allows forming classes of resources and describing relations between them (hierarchies): precondition for work of inference engines

Semantic web/Ontologies Ontology: systematic model of a particular field of knowledge, based on the data described in the semantic web OWL: detailed description of the relations between classes of resources and their properties Features: cardinalities of properties, logical relations of resources and property values, equivalences of resources, classes of resources and properties

The IT impact on legal knowledge Legal informatics as a counterweight to balance the increasing number of norms and speed of legislation (Schmitt: „motorized“ legislation) Legal data bases provide easy and nearly immediate access to consolidated versions of laws (automatized consolidation will make it immediate)

The IT impact on legal knowledge (prospects) Improving the transparency of norms and the legal system by structurizing norms (XML) and the legal system (RDF/OWL) Improving the retrievability of norms by describing them (RDF) and their relations (OWL), thus enabling automatization and customization of retrieval procedures Enriching norms with electronic references Going beyond national legal information systems by creating a sermantic web as a „global data base“ and a legal ontology to embed equivalences in content, structure, and language

The IT impact on legislation 1970s: law documentation (mainframes) 1980s: documentation of legislative processes (mainframes … PCs) 1990s: electronic availability of data (metadata, full texts of documents, audio/video streaming) to the general public (PCs … Internet) Today: “electronification” of legislative processes, first steps towards electronic involvement of NGOs and the general public Tomorrow: ?

Legislative processes and E- business/government functions Information Communication Transaction Communication and transaction functions have been made large-scale available through the Internet and Intranet applications

Five steps of electronic support of legislative processes Knowledge management Workflow management Improving the procedural quality Improving the output quality Improving the participatory quality

Process modelling Knowledge management: descriptive modelling (reduction of complexity) Workflow management: descriptive/prescriptive modelling (complex legal and administrative procedure) Future development: prescriptive modelling/process re-engineering (changing the legislative process, e.g. by introducing new instruments/steps)?

Improving the procedural quality Process modelling is making aware of improvement capability Procedural steps based on convention have already been changed/omitted Change of procedural steps based on rules of procedure requires amendment of these rules

Improving the output quality Legimatic drafting systems for improving the formal quality of legislation (checking the implementing of or immediately implementing legislative guidelines) Regulatory impact assessment (simulation systems) for improving the material quality of legislation

Improving the participatory quality Already emerging standard solution: introducing new communication tools into the representative system (responsivity as a necessary feature of transparency) Dichotomy indirect vs. direct democracy? Visionary concepts for intermediate democracy models...