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Contracting for innovation and innovating contracts: an overview and introduction to the special issue
Fellows: Thomas D. Barton, Helena Haapio authors, abstract & keywords
Authors: Thomas D. Barton, Gerlinde Berger-Walliser, Helena Haapio Overview: This special issue of the Journal of Strategic Contracting and Negotiation (JSCAN) is devoted to “contracting for innovation and innovating contracts.” From the inception of planning for the issue, the co-editors hoped to attract contributions from a full range of professionals engaged in contract theory and practice: research academics, contract managers, corporate executives, and legal counsel, plus what JSCAN Editor-in-Chief Tyrone Pitsis told us are called “pracademics:” those who straddle research and commercial environments, making concrete contributions through collaborative projects, experiments, interviews, software development, or theory-building. JSCAN is a natural publication outlet for such partnerships, since so many of the 40,000 worldwide members of the International Association of Contract and Commercial Management (JSCAN’s parent organization) are thought-leaders in every aspect of commercial contracting. The outreach to a diversity of potential authors was rewarded with a rich array of articles, research reports, essays, and a book review from a broad cross-section of professionals. The collected works of this special issue come from legal and business academics, information designers, practicing attorneys, and contract consultants. The works span theory development, project description, software analysis, and suggestions for yet further innovation. Although the works display an especially broad range of structures and writing styles, they share some common features: an emphasis on clarity and accessibility; novel uses of visualization or narrative style; and a commitment to addressing contracting practice as well as theory. Their style and sense of mission toward reaching out to broader audiences reflect the substantive themes echoing throughout the collected works: seeking to make contracts more meaningful, attractive, and useful through stronger intelligibility and relationship-building. For each author, clear, strong, mutually respectful communication seems foundational for those who use contracts, as well as for those who create and study them. We hope that each of the offerings in this special issue is broadly informative, and trust also that each welcomes further collaboration between academics and commercial professionals. |
Visualization: Seeing Contracts for What They Are, and What They Could Become
Fellows: Thomas D. Barton, Helena Haapio authors, abstract & keywords
Authors: Thomas D. Barton, Gerlinde Berger-Walliser, Helena Haapio Abstract: Commercial contract users read their contract documents infrequently, and understand them inadequately. The disincentives may be several: contract language may be too technical and too long; contracts may be organized around ensuring or avoiding legal liability rather than providing guidance toward performing contractual responsibilities; or contracts may rarely include frameworks that would prompt the parties to explore new opportunities. For whatever reason, the neglect by users of contractual documents can lead not only to unpleasant surprises in the performance or enforcement of particular contractual duties, but also to chronic underuse of contracts as potential instruments for planning, innovation, commercial relationship-building, and optimal business results. Visualization techniques - i.e., adding graphic images to supplement written words - could invigorate the effectiveness of contract documents and processes. Greater understanding and use of contract materials could reduce transaction costs, prevent disputes, and help to achieve business goals. This paper explores the possibilities for using visualization techniques within and about contracts, and invites others in the legal and commercial contracts community to join collectively in that effort. |
From Visualization to Legal Design: A Collaborative and Creative Process
Fellows: Thomas D. Barton, Helena Haapio authors, abstract & keywords
Authors: Gerlinde Berger-Walliser, Thomas D. Barton, Helena Haapio Abstract: Although the law remains predominately focused on the written word, a growing body of scholarship and legal practice reflect a dramatic increase in the use of visualization in virtually every legal context. Three starting assumptions underpin our ideas of implementing visualization ideas and techniques into what we call “Legal Design” that may aid contract simplification:First, we examine the use of images in business documents and in statutes, rather than for advocacy. Moving away from adversarial settings offers several advantages. It permits us to illustrate the use of images in a broader range of practical legal applications. It also enables us to adopt the thinking, values, and methods of a non-traditional approach to lawyering and the law: “Preventive Law” or “Proactive Law” (combined here as “PPL”). Second, we offer guidelines for using images in conjunction with words rather than in isolation, since the law only rarely abandons its verbal expression. Realistically, visualization is almost always used in hybrid ways — combinations of words and images to enhance the effectiveness of communication. That seems unlikely to change, given the need for detail and refinement when the law is imposing duties on people. Finally, our method analyzes variables surrounding choices and consequences about the process of generating, transmitting, and using images to accompany legal language. Examining this dynamic can deepen our understanding of the information conveyed; it can also reveal the potential of visualization for creating spillover value for businesses or regulatory agencies that employ the images to advance legal and organizational effectiveness. Keywords: Legal Design, Visualization, Visual Law, Proactive Law |
A foundation for the conception of Law as a practical reason
Fellow: Stefano Bertea abstract
Abstract: This essay discusses a foundation of the connection argued to exist between law and practical reason that has proved to be highly influential and debated in contemporary legal philosophy – Alexy’s. After reconstructing Alexy’s conception of practical reason as well as its foundation, I criticise the weak transcendental-pragmatic argument Alexy uses to ground the authority of practical reason. This argument, I argue, can only show why occasionally, as opposed to necessarily, we ought to follow the guidance of practical reason, and consequently makes the authority of practical reason ultimately dependent on an individual decision. By building on this criticism, in the second part of the essay I introduce and discuss an alternative argument that, by appealing to the idea of constitutive necessity, can provide a non-contingent basis for the validity of practical reason. |
Constitutivism and normativity: a qualified defence
Fellow: Stefano Bertea abstract & keywords
Abstract: In this article, I defend a meta-normative account of constitutivism by specifically addressing what I take to be a fundamental criticism of the constitutivist stance, namely, the objection that constitutive standards have conceptual, not normative, force, and so that no practical normativity can be extracted from them as constitutive of agency. In reply to this objection, I argue that the conceptual role of the standards constitutive of agency – their applying to us by virtue of our being the kinds of creatures we are – does not exclude, but rather combines with, the normative role the same standards play in our practical life. Keywords: normativity, practical reason, agency, constitutivism, metaethics |
The Master Rule, Normativity, and the Institutional Theory of Law
Fellow: Stefano Bertea abstract & keywords
Abstract: This chapter focuses on MacCormick’s contributions to legal theory on what concerns the identity and validity of legal systems, and, in particular, MacCormick’s master rule. While the Scottish professor started by building upon Hart’s characterisation of the distinction between primary and secondary norms as the key to jurisprudence, he was to engage in a long-term critical re-consideration of the problem. Moved by the inadequacy of the rule of recognition to serve as the basis of a plausible recognition of the legal order of constitutional states, especially of the open, co-operative and pluralistic European Rechtsstaat (of the post World War II period), and influenced by his reading of Kelsen’s views on the matter, MacCormick came to affirm that the identity and validity of the legal system is based upon a master rule, which is defined by reference to a more inclusive (more democratic) social practice, wherein citizens are considered relevant as norm-users, and not only judges as norm-givers. Bertea finds that, while the institutional theory of law in general, and the master rule in particular, have made major contributions to our understanding of law, the master rule fails to provide a complete and sufficient account of the normativity of law. As long as the master rule is conventional, as Hart’s rule of recognition is (and thus not hypothetical as Kelsen’s fundamental norm is), its capacity to account for the normativity of law is conditioned on the finding of a proper explanation of how such a convention can become normative, how the is becomes an ought, without indulging in the naturalistic fallacy. Bertea considers the three main characterisations of legal conventionalism in the literature (legal conventions as indicators of acceptance, as co-ordination conventions, and as constitutive conventions) and finds that all three are inadequate. Keywords: Legal System, Institutional Theory, Legal Theory, Legal Standard, Normative Claim |
Visual Law and Legal Design: Questions and Tentative Answers
Fellow: Colette Brunschwig abstract & keywords
Abstract: This paper rests on three premises: First, ongoing digitalization is unleashing visualization (still or moving images) and audiovisualization (videos, audiovisual animations, etc.). This massive technological development is also initiating multisensorization (humanoid robots, virtual realities, etc). Second, visual law and legal design are still largely unknown as fi elds of scholarly inquiry to many legal and non-legal actors. My paper therefore uses “visual law” and “legal design” as working terms to delineate these fi elds. Third, I take an etymological approach to the word “responsible” featuring in the conference title of the International Symposion on Legal Informatics 2020 as it implies a quality that is required of digitalization. The English adjective “responsible” comes from the Latin verb respondēre, whose meanings include answering (responding) and corresponding to something. Based on these premises, this paper explores four key questions: How does current legal research respond to visualization? What are visual law and legal design? How are visual law and legal design similar or diff erent? What should visual lawyers or legal designers do to act responsibly in the face of ongoing digitalization? Tackling these questions yields new insights for the debate on legal visualization. The answers given in this paper reveal how various basic legal disciplines and law-and areas gravitate around this topic. The answers also demonstrate that the insights of the basic legal disciplines and law-and areas are or should be interconnected. Taking such steps will promote not only visualization itself but also interdisciplinary legal research on this important topic. Keywords: visual law, legal design, visual legal-historical studies, visual legal theory, visual sociology of law, law-and visual art, law-and visual persuasion, law-and visual culture, law-and sight, legal communication design, legal product design, legal service design. |
Contract Comics and the Visualization, Audio-Visualization, and Multisensorization of Law
Fellow: Colette Brunschwig overview
Overview: Contract comics are relatively new on the legal horizon. They have attracted attention from various legal disciplines and from legal practice. Their novelty and growing significance open up numerous questions: biographical, terminological, classificatory, methodological, theoretical, and disciplinary. They also raise questions about technology and media, codes and communication, and the senses. My findings are threefold: first, contract comics implicitly challenge the predominantly text-only approach to contract law. As such, they need to be understood and anchored in a broader legal discourse, one that extends to and draws on established basic legal disciplines (eg, legal iconography, legal theory, legal semiotics, law and the humanities) and on emerging ones (eg, multisensory law and its branches visual law and audio-visual law (working terms)). Second, contract comics can be associated with other visual, audio-visual, and multisensory legal phenomena. Third, contract comics, indispensable to non-verbocentric communication, also provide an excellent example of representing and communicating non-contractual legal contents. |
Humanoid robots for contract visualisation
Fellow: Colette Brunschwig abstract & keywords
Abstract: This paper challenges two assumptions made by most lawyers: first, that contracts should consist of words alone; second, that only human beings are capable of designing the “look and feel” of contracts. These assumptions amount to taboos – even in today’s digital world. Humanoid robots for contract visualisation would or rather will break these taboos. Contract visualisation constitutes a fledgling subject concerning various fields of law (e.g. visual law, legal design, contract law, legal theory and EU law). This topic needs to be explored from different perspectives. Although humanoid robots are being increasingly implemented in the legal context, their potential for contract visualisation has not yet been investigated. This paper therefore discusses contract visualisation and how humanoid robots might use visuals of the Contract Design Pattern Library presented by the International Association for Contract & Commercial Management (IACCM). The findings prompt discussion about whether and, if so, how to communicate legally with those anthropomorphic machines. Or even more specifically, about whether and, if so, how humanoid robots might best represent contracts visually and communicate these both to humans and to other humanoid robots. Keywords: visual law, contract law, EU law, legal theory, robot-based contract visualisation |
Perspectives of digital law: Visualization, audiovisualization and multisensorization
Fellow: Colette Brunschwig overview
Overview: Visual, audiovisual, and multisensory media are gaining increasing importance. The latter are hybrid media that appeal not only to sight and hearing, but also to other senses (e.g., smell, touch, and motion). Considering this media development, both the digital humanities and what might (as a working hypothesis) be called digital law explore visualization, audiovisualization, and multisensorization. These fields have so far largely gone separate ways, without influencing each other, although both face similar problems and questions in investigating visualization, audiovisualization, and multisensorization. This paper makes an innovative contribution to understanding these phenomena by bringing the digital humanities and digital law closer together. It also advances interdisciplinary understanding by considering the reflections voiced at the 2017 Centenary Conference of Zürich University Library and by going far beyond the topics of that conference. |
Japan as a Victim of Comparative Law
Fellow: Giorgio Fabio Colombo abstract
Abstract: Japan has a very peculiar place in the framework of comparative law in general. It is often praised as a case of successful ground for legal transplants, as it was able to adopt and adapt Western (whatever that means) legal models in a Confucian (again, whatever that means) country. On the other hand, its depiction is more than occasionally stereotypical, based on old and surpassed scholarship which over-emphasizes Japanese “cultural uniqueness.” The general picture of Japan in comparative law scholarship has been defined as “schizophrenic.” Of course there are many reasons behind this situation, and in this paper I will try to explain why Japan has been, and still is, a “victim” of comparative law. The starting point of this analysis is one of the most widely accepted and well-known descriptions of the relationship between law and society in Japan, a picture that everybody even slightly familiar with Japanese law studies will immediately recognize. In 1976, an extremely influential book stated with no hesitations that “Japanese do not like law,” especially when it came to dispute resolution. Law, the author explained, is something external to Japanese social order and therefore, notwithstanding the significant imitation of Western legal models, the underlying traditional, social norms prevailed. Hence this bold statement was made. |
Opera and Law: Critical Notes
Fellow: Giorgio Fabio Colombo abstract & keywords
Abstract: This paper intends to provide some methodological tools to explore the many different connections between law and opera. While the paper may of course be set in the context of studies about law and humanities, it intends to address some specific issues typical of the opera context. It proposes three different pathways: studies about legal problems as described in opera plays (“Law in opera”); analyses about the regulation of opera itself (copyright, etc., collectively referred to as “Law on opera”); and a broader, less theoretically-constrained field of connections between the two worlds, covering parallels between the circulation of legal and operatic traditions, regulations of new interaction between the audience and the staging, etc. Keywords: Opera, law and literature, law and music, opera studies, interdisciplinary studies |
Sakura Sōgōro: Law and Justice in Tokugawa Japan through the Mirror of a Ghost Story
Fellow: Giorgio Fabio Colombo abstract & keywords
Abstract: Ghost stories flourished during the Edo period (16031868) in Japan. Some are very interesting for the jurist analyzing the Tokugawa legal system through the lens of popular culture. This paper examines one of those stories, the tale of a peasant leader whose martyrdom at the hands of an unjust lord - and his return as a ghost - constitute a faithful depiction of the tension between law and justice under the Tokugawa. The story is surprisingly accurate about the description of the procedural system, and the difficulties and risks of bringing legal actions against the nobles are described in detail. Finally, the ghost itself plays a distinctive and important role in the collective imaginary as the agent to correct the defects of a legal system unable to provide justice for the lower strata of the population. Keywords: Japan, ghosts, Tokugawa, justice, uprisings, petition |
Land Acquisition and Compensation in India. Mysteries of Valuation
Fellow: Sattwick Dey Biswas abstract & keywords
Abstract: This book discusses development and land acquisitions in India and analyzes a conceptual framework based on “paradox of values” and “plural value of land.” The research links the issue of valuation to its roots in classic economic theory and to its individual perception. The project offers an insightful perspective on current challenges of urbanization and development in the Global South, where land use regimes are in a highly dynamic transition to allow for urban amenities, housing and industrial land. The author concludes with a derived scheme or framework that addresses various potentials to better address values of land during land acquisition. It is an ideal book for anyone interested in land markets, land appraisal and land economics and land acquisition in the Global South. Keywords: India, Land acquisition, development, polyrational, Global North and South, justice, political economy. |
Law Without Matter? The Immateriality Thesis: A Critical Commentary
Fellow: Michał Dudek abstract & keywords
Abstract: Despite its popularity in recent theorisations of law as an artifact, the idea that law is an immaterial being, independent from even the documents that contain legal acts, has not been subjected to a focused analysis. This paper fills this noticeable gap. After providing generalizing account of the Immateriality Thesis, based on its different expositions in the literature, the paper criticises it. First, it argues that it is based on the counterfactual assumption that semantic content can exist beyond any carrier for itself. The paper then elaborates on the thesis’ empirical implausibility, particularly its ignorance of how much the law is as it is due to writing. Third, the paper reveals how the thesis is difficult to combine with other jurisprudential issues, notably law’s effectiveness. Following such a critique, the paper considers the possible origins of and reasons for the thesis. Given its highly questionable character, the paper concludes with some general ideas on taking law’s materiality seriously. Keywords: Ontology, Ontology of law, Artifact theory of law, Immateriality, Materiality |
Can Informative Traffic Signs Also Be Obligatory? Polish Constitutional Tribunal and Supreme Court Versus Traffic Signs
Fellow: Michał Dudek abstract & keywords
Abstract: This article discusses a rare instance of the highest national courts explicitly addressing traffic signs in their judgments or decisions. It critically examines the standpoint expressed by the Polish Constitutional Tribunal and the Supreme Court, according to which the basic traffic sign categories in Poland—obligatory, prohibitory, informative and warning—are not separable (not disjunctive) [e.g. prima facie non-normative signs (informative or warning) can also be normative (obligatory or prohibitory)]. These courts formulated this idea when addressing the legal question concerning the applicability of legal provision penalizing failure to comply with a traffic sign to parking a car without paying a fee in an area marked by an informative sign that indicates the need to charge a fee for parking. The article analyses and criticizes the relevant standpoint of the Polish Constitutional Tribunal and the Supreme Court. It shows how many negative consequences can result from frivolous treatment and neglect of traffic signs. It also reconstructs some possible practical recommendations concerning not only traffic signs but also visualizations of legal rules in general. Keywords: Legal theory, Traffic signs, Visualization of law, Interpretation of law |
What Legal Rules are Suitable for Protruding Media of Law and Why? Contribution to the Concept of Locality/Non-Locality of Legal Rules
Fellow: Michał Dudek abstract & keywords
Abstract: The aim of this chapter is to stress some significant and important gaps that can be noticed in analyses at the intersection of two different kinds of scientific inquiry that are devoted in the end to one problem, and propose a hypothetical way of addressing this particular gap. On the one hand, science and technology studies (STS) (especially, actor-network theory – ANT) and also philosophy of technology – all investigating, among other things, interactions between humans and human-made non-humans (objects, things, pieces of [...] technology) – seem to give significant attention to various artifacts that simultaneously in a specific way may remind people of certain legally relevant actions required of them (prescriptions or proscriptions) and force them to actually engage in those actions ... Keywords: Legal Rules; actor-network theory; artifacts |
Why are Words not Enough? Or a Few Remarks on Traffic Signs
Fellow: Michał Dudek abstract & keywords
Abstract: In this study two general theses are presented. In the first thesis—about integral character of traffic signs—it is proposed to stop treating traffic signs as only a subsidiary (illustrative) instruments—an alternatives to written linguistic utterances. It is shown that the construction of legal regulations of road traffic justifies the thesis that traffic signs are in fact an integral part of certain provisions and encoded norms, and not just a way of communicating them. This integral character and the fact that traffic signs as a means of visual-nonlinguistic communication have specific features which are extremely difficult to verbalize in an accurate, intelligible, and concise manner (e.g., angles, pictograms, or ideograms) or are even impossible to verbalize (colors) leads to second thesis—about inadequacy of concept of legal norm as a linguistic utterance in context of traffic signs. Concepts of interpretation of law which adopt a vision that legal norm (reconstructed from legal provisions—linguistic utterances of specific properties included in texts of legal acts) is an object of purely linguistic nature are inadequate, when one considers, for example, some of the provisions of Road Traffic Law, which refer to traffic signs. Their example clearly shows that in contemporary legal orders one can find legal norms, which cannot be accurately and intelligibly presented only with words. Thus, if the result of the interpretation of certain legal provisions must be made not only with words but also with broadly understood graphics, the cited concepts of interpretation of law cannot be actually realized in all of the instances. This makes them inadequate from the perspective of whole legal order. Keywords: Interpretation of law, Traffic signs, Visual communication |
Redundancies of traffic signs: an exploratory study
Fellow: Michał Dudek abstract & keywords
Abstract: Against the background of studies on redundancy in law that completely omit the visual element in law and of studies on traffic signs that are laconic about their redundancies, the present study proposes more focused investigation into the redundancies of traffic signs. After presentation of the broader context of existing studies on traffic signs and on redundancy in law, and following a discussion of the direct inspiration for embarking upon research into this topic, the article moves to present and discuss six proposed types of redundancies of signs. Utilizing Franciszek Studnicki’s distinction between sign-types and sign-realizations, and given that traffic signs exist in various complicated relationships with each other, with written formulations in legal texts, and with the environments in which they are placed, the study comments on six types of redundancy: (1) sign-type–basic task(s) of road traffic law; (2) of sign-type’s elements; (3) sign-type–sign-type; (4) sign-type–legal text; (5) sign-realization–sign-realization; and (6) sign-realization–environment. Analysis of each type is supported through examples, various subdivisions, and additional lines of inquiry. The study has value for both strictly theoretical and more practical enterprises related both to traffic signs themselves and to the wider realm of visalization of norms. Keywords: environment; legal text; redundancy; road traffic law; sign-realization; sign-type; traffic signs |
On Flat Ontologies and Law
ABSTRACT & KEYWORDS
Abstract: This book examines the importance of flat ontologies for law and sociolegal theory. Associated with the emergence of new materialism in the humanities and social sciences, the elaboration of flat ontologies challenges the binarism that has maintained the separation of culture from nature, and the human from the nonhuman. Although most work in legal theory and sociolegal studies continues to adopt a non-flat, anthropocentric and immaterial take on law, the critique of this perspective is becoming more and more influential. Engaging the increasing legal interest in flat ontologies, this book offers an account of the main theoretical perspectives, and their importance for law. Covering the work of the five major theorists in the area – Gabriel Tarde, Bruno Latour, Manuel DeLanda, Karen Barad and Graham Harman – the book aims to encourage this interest, as well as to explicate the important problems of and differences between these perspectives. Flat ontologies, the book demonstrates, can offer a valuable new perspective for understanding and thinking about law. This book will appeal mainly to scholars and students in legal theory and sociolegal studies; as well as others with interests in the posthumanist turn in philosophy and social theory. |
Conventions, Recognition, and the Practical Point of View
Fellow: Sebastián Figueroa Rubio ABSTRACT
Abstract: This work analyzes how the internal point of view, which represents the perspective of the participant in the legal domain, can be understood within a Hartian framework. It critically examines how legal conventionalism has dealt with this issue. In particular, it criticizes the way in which contemporary conventionalists represent the perspective of participants in legal practice on the basis of cognitive mental states. It also criticizes the way in which they understand how the rule of recognition constitutes the practice. To address these problems, a model based on the philosophy of recognition is presented, showing how its historicity and the way it understands conflict may help to represent the participants' perspective from a practical point of view. |
Promoting Business Success Through Contract Visualization
Fellow: Helena Haapio authors, abstract & keywords
Authors: Gerlinde Berger-Walliser, Robert C. Bird, Helena Haapio Abstract: Contracts are an important construct for the formation and performance of agreements. Yet, many business people view contract review as a time-consuming nuisance or an administrative burden. Furthermore, contracts contain concepts and language that non-lawyers often find overly complicated, obscure, and unappealing. We explore whether contract visualization, the description of their scope and terms of an agreement through visual means rather than the written word, can have a beneficial impact on the contracting process and the value capacity of organizations. Keywords: Contract, Agreement, Visualization, Proactive Law |
Lawyers as Designers, Engineers and Innovators: Better Legal Documents Through Information Design and Visualization
Fellow: Helena Haapio abstract & keywords
Abstract: Legal materials are widely available, online and offline. But are they actually read and understood? Empirical research shows that this is not always the case. Turning to lawyers does not necessarily help: legal advice may be too complex to be useful. If legal documents are ignored or misunderstood by those who are expected to read and act upon them, there is something seriously wrong. A profound change is required. After introducing research-based criteria of good documents, this paper illustrates, with case studies, how information design and visualization have been applied to improve legal documents: Wikimedia Foundation’s new, user-friendly trademark policy; a law firm’s award-winning advice letter template; and complex legal texts transformed into easy-to-use layered information. The results demonstrate how a fresh, innovative approach to design practices enables the production of better legal documents: legally sound, while easier for users to understand and act upon. Keywords: Document design, information design, information products, Legal Design Jams, legal writing, readability, simplification, usability, user-friendliness, visualization |
Business-friendly contracting : how simplification and visualization can help bring it to practice
Fellows: Helena Haapio, Thomas D. Barton abstract
Abstract: One thesis of this book is that the legal function within businesses will shift from a paradigm of security to one of opportunity. This chapter embraces that likelihood in the context of business contracting, where voices calling for a major shift are starting to surface. It explores how contracts can be used to reach better outcomes and relationships, not just safer ones. It introduces the concept of business-friendly contracting, highlighting the need for contracts to be seen as business tools rather than exclusively as legal tools, and working as business enablers rather than obstacles. By changing the design of contracts and the ways in which those contracts are communicated—through simplification and visualization, for example—legal and business operations can be better integrated. Contracts can then be more useful to business, and contract provisions can actually become more secure by becoming easier to negotiate and implement. |
Legal Design for the Common Good: Proactive Legal Care by Design
Fellows: Helena Haapio, Thomas D. Barton authors, abstract & keywords
Authors: Helena Haapio, Thomas D. Barton, Marcelo Corrales Compagnucci Abstract: Many legal problems are caused by misunderstandings. People do not read complex documents. Even if they do, they may not find what they look for or understand what they find. This chapter shows how proactive legal care can help, not only to deal with challenges of complex legal information, but also to improve access to justice and prevent unnecessary problems. Enhancing clients’ self-care by promoting their legal literacy is a central strategy for this purpose. Changing how documents are framed and presented is another. We propose a new mindset for lawyers, with a focus on the users and on using the law for the advancement of the common good. With this mindset, it becomes natural to look for skills and tools to present legal information in more engaging and actionable ways. Design patterns offer a way to identify and share such tools, for the benefit of lawyers and clients alike. Keywords: Design patterns, information design, legal health, legal literacy, Proactive/Preventive Law, self-care |
Legible Normativity for AI Alignment: The Value of Silly Rules
Fellow: Gillian K. Hadfield authors & abstract
Authors: Dylan Hadfield-Menell, McKane Andrus, Gillian K. Hadfield Abstract: It has become commonplace to assert that autonomous agents will have to be built to follow human rules of behavior–social norms and laws. But human laws and norms are complex and culturally varied systems; in many cases agents will have to learn the rules. This requires autonomous agents to have models of how human rule systems work so that they can make reliable predictions about rules. In this paper we contribute to the building of such models by analyzing an overlooked distinction between important rules and what we call silly rules —rules with no discernible direct impact on welfare. We show that silly rules render a normative system both more robust and more adaptable in response to shocks to perceived stability. They make normativity more legible for humans, and can increase legibility for AI systems as well. For AI systems to integrate into human normative systems, we suggest, it may be important for them to have models that include representations of silly rules. |
Microfoundations of the Rule of Law
Fellow: Gillian K. Hadfield authors, abstract & keywords
Authors: Gillian K. Hadfield, Barry R. Weingast Abstract: Many social scientists rely on the rule of law in their accounts of political or economic development. Many however simply equate law with a stable government capable of enforcing the rules generated by a political authority. As two decades of largely failed efforts to build the rule of law in poor and transition countries and continuing struggles to build international legal order demonstrate, we still do not understand how legal order is produced, especially in places where it does not already exist. We here canvas literature in the social sciences to identify the themes and gaps in the existing accounts. We conclude that this literature has failed to produce a microfoundational account of the phenomenon of legal order. We then discuss our recent effort to develop the missing microfoundations of legal order to provide a better framework for future work on the rule of law. Keywords: legal order, institutions, economic development, democracy, coordination |
Silly Rules Improve the Capacity of Agents to Learn Stable Enforcement and Compliance Behaviors
Fellow: Gillian K. Hadfield authors & abstract
Authors: Raphael Köster, Dylan Hadfield-Menell, Gillian K. Hadfield, Joel Z. Leibo Abstract: How can societies learn to enforce and comply with social norms? Here we investigate the learning dynamics and emergence of compliance and enforcement of social norms in a foraging game, implemented in a multi-agent reinforcement learning setting. In this spatiotemporally extended game, individuals are incentivized to implement complex berry-foraging policies and punish transgressions against social taboos covering specific berry types. We show that agents benefit when eating poisonous berries is taboo, meaning the behavior is punished by other agents, as this helps overcome a credit-assignment problem in discovering delayed health effects. Critically, however, we also show that introducing an additional taboo, which results in punishment for eating a harmless berry, improves the rate and stability with which agents learn to punish taboo violations and comply with taboos. Counterintuitively, our results show that an arbitrary taboo (a "silly rule") can enhance social learning dynamics and achieve better outcomes in the middle stages of learning. We discuss the results in the context of studying normativity as a group-level emergent phenomenon. |
Non-Truth in the Logic of Legal Process
Fellow: Antonio Incampo introduction
The question goes back to the Kelsenian theory on the “dynamic” character of legal system. Legal rules derive their validity by form, rather than by contents. It means that they are valid only if there is an underlying qualified act performed by a competent authority – and in compliance with some procedures – to laying down those rules. It is not necessarily so but the legal phenomenon certainly has, as a matter of fact, this character, at least in a broader view of things. I will try to discuss this model on the basis of law created by judges. Judges create law by passing verdicts. |
Unidad de la pena y pluralidad de culturas
Fellow: Antonio Incampo abstract
Abstract: Cuius regio, eius poena. ¿Cómo tratar a los ciudadanos frente a los delitos? Es la única cuestión real del Derecho Penal en la Edad Moderna. El Estado establece los delitos y las sanciones; los destinatarios son sus ciudadanos. Uno diría «Cuis regio, eius poena», si uno quiere parafrasear (sustituyendo «religio» por «poena») el principio de la Paz de Augusta (1555) en el origen de la constitución de los Estados-Nación. El fin, sin embargo, de los totalitarismos del siglo xx y la fragilidad de las fronteras de los Estados frente a la globalización han colocado esta cuestión en segundo plano, colocando en su lugar a dos completamente nuevas y destinadas a cambiar definitivamente el concepto del Derecho Penal. La primera: ¿cómo tratar a los ciudadanos más allá del Estado? La segunda: ¿cómo tratar al extranjero en el Estado? |
Knowledge mining and social dangerousness assessment in criminal justice: metaheuristic integration of machine learning and graph-based inference
Fellow: Nicola Lettieri ABSTRACT
Abstract: One of the main challenges for computational legal research is drawing up innovative heuristics to derive actionable knowledge from legal documents. While a large part of the research has been so far devoted to the extraction of purely legal information, less attention has been paid to seeking out in the texts the clues of more complex entities: legally relevant facts whose detection requires to link and interpret, as a unified whole, legal information and results of empirical analyses. This paper presents an ongoing research that points in this direction, trying to devise new ways to support public prosecutors in assessing the dangerousness of individuals and groups under investigation, an activity that precisely relies on the cross-sectional evaluation of legal and empirical data. A knowledge mining strategy will be outlined that lines up, into a single metaheuristic model, information extraction, network-based inference, machine learning and visual analytics. We will focus, in particular, on the integration of graph-based inference and machine learning methods used both to support classification tasks and to explore new forms of man-machine cooperation. Experiments made involving public prosecutors from the Italian Anti-Mafia Investigation Directorate and using data from real investigations have not only shown the potentialities of our approach but also offered an opportunity to reflect on the role we could assign to AI when thinking about the future of legal science and practice. |
Neminem laedere. An evolutionary agent-based model of the interplay between punishment and damaging behaviours
Fellow: Nicola Lettieri ABSTRACT & AUTHORS
Abstract: This article aims at contributing to the discussion about the relationships between ICT, computer science and policy-making by focusing on agent-based social simulation. Enabled, from a technical point of view, by the developments of Distributed Artificial Intelligence in the 1990s and by the features of the object-oriented programming paradigm, agent-based social simulations are a tool for the analysis of social dynamics that can be used also to support the design and the evaluation of public policies. After a brief description of social simulation paradigm and of its impact on social sciences, the paper presents a simple agent-based model devised to analyze, even if in a very abstract way, a phenomenon that can rouse the interest of legal scientists: the interplay between damaging behaviors, punishment and social mechanisms of learning and imitation. Our goal is to show how agent-based simulation can be used not only to illuminate basic mechanisms underlying social phenomena but also to reflect, in an innovative way, on how society can deal with them. Authors: Nicola Lettieri, Domenico Parisi |
Law in Turing’s Cathedral
Fellow: Nicola Lettieri ABSTRACT
Abstract: We live in an algorithmic world. There is currently no area of our lives that has not been touched by computation and its language and tools. Since when, in the early 1940s, a small group of people led by John von Neumann gathered to turn into reality the vision of a universal computing machine, humankind is experiencing a sort of permanent revolution in which our understanding of the world and our ways of acting on it are steadily transformed by the steps forward we make in processing information. Such a condition is vividly depicted by Alan Turing in one of the founding documents of the quest for artificial intelligence (AI): “in attempting to construct machines … we are providing mansions for the souls.” Computers and algorithms can be seen as the building blocks of a new, ever-expanding building – a cathedral, to use George Dyson’s metaphor – in which every human activity is going to be shaped by the digital architecture hosting it. |
Manifestare gli atti sociali. Canali della Giuridicità dopo Reinach
Fellow: Olimpia Giuliana Loddo abstract
Abstract: Un documento negoziale (cartaceo o virtuale), una stretta di mano che sigla l’accordo tra due contraenti, le parole espresse verbalmente da un venditore nel proporre l’acquisto di un particolare bene a un potenziale acquirente sono tutte possibili forme di manifestazione di atti giuridici volti a coinvolgere altri soggetti nel loro compimento. Adolf Reinach chiama questi atti “atti sociali”. Attraverso l’analisi fenomenologica degli atti sociali, Reinach offre un contributo fondamentale alla ricostruzione del complesso passaggio dalla percezione sensoriale all’esperienza sociale e giuridica. Gli atti sociali non si esprimono necessariamente mediante parole. Il requisito della verbalizzazione è per essi solo accidentale. Tuttavia, gli atti sociali devono essere manifestati. Essi non sono meramente atti interiori. Il loro sostrato, che può essere percepito attraverso i sensi, è un canale che consente ai loro destinatari di esperirne la natura. La manifestazione dell’atto sociale presenta, da un lato, una morfologia esterna mutevole e, dall’altro lato, un télos fondamentale immutabile che deriva da un carattere essenziale dell’atto manifestato: la necessità di essere percepito e pienamente compreso dal destinatario. L’analisi della manifestazione degli atti sociali rappresenta un’occasione di confronto tra giuristi e filosofi per indagare, sotto nuova luce, la forma dell’atto giuridico. |
The Background of Normative Pictures
Fellow: Olimpia Giuliana Loddo abstract & keywords
Abstract: Normative pictures are in use in various fields of legal practice (e.g. urban planning, contract design, and legal communication addressed to foreigner). A background knowledge enables the understanding of this sort of pictures and affects both the morphology of the normative picture and its practical use. This paper is divided into two parts. The first part will focus on the morphology of normative pictures. The second part of the paper focuses on the different roles because their relationship with the rules can vary. Keywords: normative picture, norm, visual communication, intersemiotic legal translation |
Thinking of Norms Spatially
Fellows: Giuseppe Lorini, Olimpia Giuliana Loddo abstract
Abstract: Legal philosophers have for long neglected investigation into the spatial dimensions of legal norms. The authors aim to help to fill this gap by focusing on the question of whether legal norms are spatial entities. To answer this question, they investigate the complex network of relationships that link legal norms to physical, tridimensional and geographic space (i.e. the authors do not investigate space in the metaphorical sense). More precisely, starting from Hans Kelsen, the authors first draw a distinction between two different kinds of spatial spheres of legal norms: the spatial sphere of validity and the spatial sphere of reference. They then investigate the spatial dimensions of legal norms by inquiring into the place of norm-signs. In particular, they consider whether the place in which the sign or the signs of a particular norm are located can affect the spatial spheres of the norm and its content. |
Diagrammatics and the Proactive Visualization of Legal Information
Fellow: Michael D. Murray abstract & keywords
Abstract: The visualization movement in Proactive Law seeks to transform legal communications to improve access to law for disadvantaged, illiterate, and less-than-fully literate persons, and to improve the understanding of legal relationships and agreements for all persons through illustration, simplification, engagement, and inclusiveness in the text and visual components of the communication. Guided by principles of visual legal rhetoric and visual literacy and with the goal of transparency, Proactive Law and Legal Design seeks to build knowledge and understanding in all audiences of legal communications. The goal with regard to contractual relationships and agreements is to better carry out the present will and intentions of the parties and to anticipate their future needs through legal instruments that secure a clearer understanding of terms of the relationship. This article focuses on one mode of visual legal communication: diagrammatics and the visualization of legal data. By legal data, I mean facts, processes, procedures, timelines and time periods, statistics, mathematical calculations, accounting, formulas, the quantitative and qualitative analysis of research, interviews, polls, surveys, and other scientific information. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context, • Immediate Verbal Context, • Visual Cultural Context, • Mise en Scène and Arrangement, and • Visual Rhetoric, Ethics and Professionalism My primary motivation for the visual legal rhetoric scholarship I have researched and published is to inform and educate lawyers, judges, law students, and law professors about the need to become more visually literate in this contemporary visual, digital world of law practice, and then further to explain and demonstrate that visual literacy requires not only the ability to read and comprehend visual works, but also the skill to design works and critically analyze the meaning and implications of works offered by others. That is why in my works I use the same steps of analysis I have developed to examine not only the visual elements of works (visual context and mise en scène design) but also the verbal context of multimodal works (text plus visuals), and the visual cultural context (the ability of works to be understood across language and cultural barriers). Keywords: visual rhetoric, visual legal rhetoric, diagrammatics, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visual commons, mise en scène |
Cartoon Contracts and the Proactive Visualization of Law
Fellow: Michael D. Murray abstract & keywords
Abstract: The goal of this Article is to apply the lens of visual legal rhetoric and visual literacy to the current visualization movement in Proactive Law and Legal Design in their efforts to promote visual, non-verbal communication in contracts through cartoon, comic book, and highly pictorial legal instruments. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context, • Immediate Verbal Context, • Visual Cultural Context, • Mise en Scène and Arrangement, and • Visual Rhetoric, Ethics and Professionalism This Article will analyze whether highly visual contracts and legal instruments fulfill the potential for greater access to and understanding of contract terms particularly with regard to audiences whose language skills and cultural experience might make the comprehension and acceptance of purely verbal contracts more difficult. Although legal communication in general and contracts in particular have been dominated by text for centuries, the contemporary study of visual communication in cognitive psychology and neuroscience, data visualization and rhetorical topics of arrangement, and contemporary visual legal rhetoric demands attention to the proactive approach to law and its call for increased visualization in legal communication. When visuals can overcome barriers in communication that words alone cannot, contracts and other legal instruments can be made more universal in their application, interpretation, performance, and enforcement. Keywords: Visual rhetoric, visual legal rhetoric, visualization, proactive visualization, visualization in contracts, cartoon contracts, comic book contracts, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design |
A New Methodology for the Analysis of Visuals in Legal Works
Fellow: Michael D. Murray abstract & keywords
Abstract: The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. The new methodology has the following steps drawn from visual rhetoric, visual literacy, and mise en scène studies: Immediate Visual Context, Analysis of Meaning, Taxonomy of Purpose and Function, Immediate Verbal Context, Visual Cultural Context, Mise en Scène and the Rhetorical Topic of Arrangement, Visual Rhetoric and the Ethical and Professional Propriety of the Work. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally-oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law. Keywords: visual rhetoric, visual legal rhetoric, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visualization in contracts, cartoon contracts, comic book contracts, Mise en Scène, diagrammatics |