There is a lot of interest at the moment in the applications of technology to the world of law. For example, in the “practice of law” area, there are numerous innovations in everything from technology-assisted review to contract drafting to knowledge management. In the “business of law” area, there are also numerous innovations in everything from legal spend analytics to client intelligence for law firms. With the advance of artificial intelligence (AI) into this space, suddenly the question of whether it could replace lawyers and judges has gained momentum.
Though technology will drive innovation in the legislative space, the very nature of the law itself prevents it from becoming replaced by robots. This is because a lot of the complexities of law are not historical, but occur on a day-to-day basis, after all law seeks to regulate human affairs in a complex, constantly changing world. It simply isn’t possible to put the world into a digital box and neither is it possible to put the laws of the world into an executable digital box. To understand this fully, we need to probe deeper into the essence of what the law actually is. This blog post provides an overview of the multi-faceted layers embodied in the question: what is law?
This blog post identifies the following key points:
- The law is not an easily identifiable set of texts that collectively encode what the law “says” at any given moment in time
- What the law “says” and what the law “means” are really two separate things
- Even if you had access to the full set of texts that make up the law at any given moment in time, you would not be able to arrive at a single definitive interpretation of what it all means. In other words, the law is not a “book of rules”
- These two aspects of law are not bugs – they are features
The text of the law is a multi-dimensional thing that is spread across many different parts of the government of a democratic state. There is generally no single entity that produces all of it, or gathers all of it into one place. Legislatures and parliaments produce bills, acts, and statutes. Government agencies produce rules and regulations that typically add detailed rules to the implementation of enacted laws. The courts then produce judgements which, in common law jurisdictions such as the USA and UK, form part of the corpus of law, and serve to further refine the meaning of law. There are numerous other entities involved: self-regulation organizations can produce regulations, while city and county governments can produce local ordinances and by-laws and so on. Understanding the law is not as simple as it may at first seem!
Even if it were possible to corral all the content of the law into a single view at some point in time, you would find that a significant percentage of the content is amendatory in nature. That is, it consists of law describing how to modify other laws. Boiling down all the amendatory material is not a task that governments themselves necessarily do, which leads to a situation where third parties step in to process the amendatory material (codification/consolidation). This is an ongoing process because every passing day can introduce new material that requires codification. Indeed, new material can become legally binding without any new text being added to the corpus at all. This happens, for example, with “sunrise provisions,” which become law on a particular date.
The passage of time, then, changes the interpretation of law, that’s why it’s necessary to keep a distinction between what the text of the law says and what it means as it can all trigger a change of interpretation of the text itself. Perhaps the biggest determinant of interpretation is the ongoing creation of new case law in common law jurisdictions. Each new case processed through the courts uses the existing case law as a guide to the interpretation of the law. The courts strive for consistency with previous judgements, but from time to time they will repeal previous judgements. The result is that any interpretation of the law at a given point in time is necessarily contingent on a wide range of factors outside the pure text itself.
Perhaps the most complex manifestation of this interpretation question comes from retroactive provisions, which are (thankfully rare!) instances where a law is passed that changes how another law should have been interpreted in the past! The complexity can be daunting at first and it’s tempting to imagine that it could be a lot simpler than it is. A common line of reasoning holds that the law is the way it is because of a series of historical accidents and that, in the 21st Century, we can reimagine it in a much cleaner, simpler model based on modern-day computing.
There are most certainly aspects of the world of law that can derive great benefits from modern computing. However, some of the fundamentals of the way the law actually is, are there for good reasons. For example, the fact that the law is not “all in one place” is both an inconvenience and a source of tremendous resilience. It is not possible to imagine how the legal apparatus of a state could be “down” – either accidentally or maliciously – precisely because of its highly distributed nature. The fact that law is open to interpretation is both an inconvenience (especially if you are looking to computerize legal reasoning!) and a sign that the law deals with the inherent complexities of an ever- changing world, one which is infinitely more complex than any computer system can reflect.
An excellent microcosm of law to look at and see these features manifest is in the world of contracts. This is especially true because contracts are a very active area of technological innovation at the moment. There is a lot of excitement around various ways technology can facilitate the creation and analysis of contracts, up to and including a very revolutionary concept of making contracts executable in the form of so-called “smart contracts.” It doesn’t take a long time looking at contracts to see the aspects of law highlighted in this article manifest themselves. Contracts are often “open-textured,” which means open to interpretation, and this is in fact a feature not a bug. The open-textured nature allows parties to enter into contracts, even in the face of ambiguities.
At Propylon, we’ve been delivering technological solutions to legal clients for a long time. Along the way, we have learned a lot about what law actually is and, by extension, what it isn’t. In spite of all its complexity, technology has a vital role to play within the world of law. It helps users to navigate through its inherent complexity, making the law and its impact more accessible and easier to understand. This saves time, increases efficiency, and ensures accuracy. Without technology, it would be much more difficult to cut through the complexity that exists in both the practice and business of law, and innovation would be near impossible.