program transparency for legal machines
DESCRIPTION
PAPER: Vytautas Čyras, Friedrich Lachmayer (2014) Program transparency for legal machines. In: E. Schweighofer, F. Kummer, W. Hötzendorfer (eds.) Transparency, Proceedings of the 17th International Legal Informatics Symposium, IRIS 2014, 20-22 February 2014, Universität Salzburg, pp. 47–54. Österreichische Computer Gesellschaft, Wien, ISBN 978-3-85403-302-8. Also in the online journal Jusletter IT 20 February 2014, Editions Weblaw, Bern, ISSN 1664-848X, http://jusletter-eu.weblaw.ch/magnoliaPublic/issues/2014/IRIS.html. ABSTRACT: This paper attempts to define the transparency problem. The context is the changeover from a text culture to a machine culture in law. The paradigm change to electronic procedures reveals new contexts for justice. Note that equal access to e-procedures does not guarantee justice. The transparency of the law leads to the transparency of programs. We formulate two requirements for legal machines: 1) the architecture of the program must be made accessible; and 2) the program must provide legal protection. The implementation of these requirements is a subject for software engineering. A need therefore arises for the requirements to flow down to lower level specifications. In the end we define program transparency as a compliance problem.TRANSCRIPT
Program Transparency
for Legal Machines
IRIS 2014, Salzburg, 20-22.02.2014
Friedrich LACHMAYER University of Innsbruck
Vytautas ČYRAS Vilnius University
Faculty of Mathematics and Informatics
1. Legal machines
and transparency
2
Changeover
3 Text culture Machine culture
4
General Norms Laws
Decrees
Published
Legal machine
programs
No access
Technical changeover ‘legal text’ ‘program’
Text culture Machine culture
5
General Norms Laws
Decrees
Published
Legal machines
Ticket machines
Form proceedings
- tax declaration
- FinanzOnline
Legal machine
programs
No access
Technical changeover ‘legal text’ ‘program’
Problems
6
1. Transparency e.g. RIS.bka.gv.at
General Norms Laws
Decrees
Published
Party
Individual Norms
Court judgements
Administrative decisions
2. E
x-p
ost
leg
al
pro
tecti
on
Text culture
These 2 means were not from the beginning.
They were trained in the course of time,
but now come as a standard.
• Horizontal level
• Vertical level
7
1. Transparency
General Norms Laws
Decrees
Published
Party
Individual Norms
Court judgement
Administrative decisions
2. E
x-p
ost
leg
al
pro
tecti
on
Legal machine
program
No access
Technical changeover ‘legal text’ ‘program’
Text culture Machine culture
These 2 standards are missing
in the emerging machine culture!
8
Party
Legal machines
Ticket machines
Form proceedings
Legal machine
programs
No access
1. Lack of
transparency
2. N
o e
x-a
nte
leg
al p
rote
cti
on
We address these 2 standards in
the emerging machine culture:
1. transparency
2. ex-ante legal protection
9
Party
Legal machines
Ticket machines
Form proceedings
Legal machine
programs
No access
1. Lack of
transparency
2. N
o e
x-a
nte
leg
al p
rote
cti
on
Requirement 2:
Programs shall provide
a trained, effective and rapid
legal protection
Example1. The law provides 10 variations
but the program contains only 9.
(e.g. declaration of travel expenses)
Example 2. A ticket machine gives no money back.
Requirement 1:
Programs shall be accessible
at least architecturally
Goal
10
Transparency and legal protection
in text culture and machine culture
• Same level standards
11
Party
1. Transparency
General Norms Laws
Decrees
Published
Party
Individual Norms
Court judgements
Administrative decisions
2. E
x-p
ost
leg
al
pro
tecti
on
Legal machines
Ticket machines
Form proceedings
Legal machine
programs
No access
1. Lack of
transparency
2. N
o e
x-a
nte
leg
al p
rote
cti
on
Technical transformation ‘legal text’ ‘program’
Text culture Machine culture
2. The context of justice
in the paradigm change
to e-procedures
12
Injustice in machine culture
• H. Kelsen’s objectives in his Pure Theory of Law:
– Paradigm shift. Succeeded.
– Overcoming of the natural law. Succeeded
– To stop argue using the concept of justice.
Did not succeed
• The principle of equality is an element of justice
• Equality is a challenge in e-procedures!
13
About injustice
• Injustice is
– less of a normative problem
– more a cognitive (interpretative) problem
• Subsumption is interpretative
– i.e. cognitive at its core
14
Equality is challenged in
e-procedures
• Subsumption is accomplished by the parties and not by the court
– State of affairs is a basis for subsumption • Party fills in e-procedure input fields itself
– not a court
• Equality ≠ justice
– A party may be not skillful in law (and IT)
– Intermediaries (in IT) are required
• Big difference between communicating with a human operator and a machine
15
Paradigm shift to machine culture
• Success in middle areas
• Hard cases will be handled as before with
manual legal work
• Trivial matters will not be perceived as law
16
Implementing transparency
17
Requirement 1: Programs shall be accessible
at least architecturally
Requirement 2: Programs shall provide
a trained, effective and rapid
legal protection
• No one-off, best-of-breed solution in software engineering
• Requirements flowdown – to low level specifications
Conclusions
• There is a problem of the transparency of
legal machines
• There is no silver bullet to implement
transparency requirements easily
18
