Jusletter IT

The execution of complex regulations confronts all stakeholders involved in the legislative chain with various problems. Refining the abstract concepts into finer grained concepts that can be mapped onto the concrete situations that are subject of the governmental decision-making processes is one of them. In the POWER programme and E-POWER project conducted by the Dutch Tax Administration and its partners in the 20th century (see [8]) a first attempt was made to systematically analyse sources of law which were then ‘translated’ into formal, or more specifically computational models that could serve as components in automated systems. The method developed in the E-POWER programme implements a knowledge management solution by providing a method and tools that help to improve the quality of legislation, by pointing out anomalies in sources of law and by improving operational quality of law enforcement and service provision.

Both in the E-POWER project and its successor the ESTRELLA¹ project the formalisation process was very much focused on explicit sources of law. These sources of law and the context of their use, the network arrangements that are created for law enforcement and service delivery etc., are of course subject to change, and coping with these changes is a big issue for both the administrations and their clients.

The AGILE project [4], which builds upon the results from the E-POWER and Estrella project, focuses on adapting to these changes, on allowing the addressees of the regulations to apply right legal rules and process cases based on the legislation, and on enabling them to apply new regulations from the moment they come into effect.

AGILE consequently addresses maintenance on the legal rules they apply. AGILE is an acronym for Advanced Governance of Information services through Legal Engineering. Within this project we aim at developing a design method, distributed service architecture and supporting tools that enable organizations - administrative and otherwise - to orchestrate their legal information services in a networked environment. The AGILE project started in the second half of 2008 and will last for four years. Given the increasing importance of ICT services required for law enforcement and legal service delivery we primarily aim at improving the adaptability of ICT infrastructure, of business processes, and of data and knowledge within the organization, given changing legal demands and constraints.

Administrations of course already support their employees in making legislation better accessible and taking notice of new or changed legislation. But adapting to change and keeping operational procedures up-to-date (i.e. effective and compliant to the legal demands) at any time can be very time-consuming as well as highly expensive. Inability to adapt to changed sources of law if only by creating a (temporary) manually operated procedure can potentially lead to government agencies and companies having to deal with substantial backlogs. This is also very inconvenient for the people that filed applications and are waiting for case decisions and a source of legal uncertainty. Employees should get proper instructions every time new or changed legislation comes into effect and the supporting (legal) information systems need to be adapted to changes in legislation as well. It is common knowledge that the maintenance costs are the largest part of the total cost of ownership (TCO) of an ICT system in public administration. Moreover, staff requires additional training if the impact of maintenance on such a system is high.

Both changes in the sources of law as well as changes in the government’s policy can result in the need for an organization to create new network arrangements with other organizations. Those other organizations of course have their own rules and policies. This kind of organizational change does not only affect the amount and complexity of rules the employees within those organizations have to deal with. It also has major impact on organizational structures. Amongst other things, they will have to redesign their business processes and services, perform a mapping on existing roles and responsibilities, rearrange the order in which tasks are performed, and define new tasks. These kinds of changes can make the structure of an organization more complex, moreover the rules the employees have to deal with, grow and become more complicated too, because of interaction with other rules.

We can conclude by stating that for these reasons managing change is extremely important. It is equally important for non-governmental and governmental organizations. And while obviously not only changes in law cause the need for a proper form of change management within organizations, in this paper we mainly focus on governmental organizations, taking into account the other ones impacted by changes of the governmental organizations. The theoretical model that we present in this paper provides better handles to those that want to comment on the legal system and its implementation, bring about changes to it, or aim at improving government’s agility.

As in the already mentioned E-POWER and ESTRELLA projects one of our starting points is keeping legal services in sync with various versions of the sources of law. This is one of the shortcomings of the design methods, architectures and tools that are mostly applied in practice. Maintaining explicit links between the sources of law and the system specifications and their realization in software components is highly important in this respect. Following those traces back is helpful when undesired or unintended results are produced, but also for explaining the systems behaviour in terms of the original sources of law.

Existing approaches already pointed out the importance of traceability (cf.[1,3,8])between sources of law and their implementation in information systems. In the AGILE project another starting point is the use of Semantic Web technologies and recent applied legal theory developments (see also [3]). We aim to learn from this and other, already existing, approaches and recycle best practices wherever possible.

When talking about the legislative chain one usually addresses issues related to the horizontal integration as described in [9]. This paper is focussed on vertical integration and connecting the horizontal legislative chain to the vertical one, i.e. it addresses the connection with the policy making and operational processes that are needed for executing legislation.

In our theoretical framework we recognise three layers of reality and representation; Sources of Law, Institutional Reality and Brute Reality (see Figure 1). Change can affect each of these elements as well as the interaction between sources of law, logical representations of these sources, business process models and legal services.

Identifying the layers impacted can help to better understand the issue at hand and reduce the complexity of dealing with change.

The first layer addresses the sources of law. The sources of law include not only legislation and case law, but also policy statements and guidelines of lower level rule makers used in the organization. This layer describes documents and their components, relationships between these documents, and events that happen to these documents generally initiated by the legislator.

On the next layer we address legal institutions [3,13]. Institutions are structures and mechanisms of social order and cooperation governing the behaviour of a set of individuals. Institutions are identified with a social purpose and permanence, transcending individual human lives and intentions, and with the making and enforcing of rules governing cooperative human behaviour. The source of law is a writing that may be used to back an argument concerning the existence of a certain institutional entity, usually alegal rule , created by the legislator in a certain legal institution (cf. [5]):

The source of law is the result of a legislative act performed with the intent of creating that institutional entity, and functions as evidence of the legislative act. In this sense the sources of law are the media of legal institutional reality.

Finally, on the third layer, there is the implementation of the legal institutions in brute reality, in the context of AGILE typically within an organization. The institutional reality as represented in the sources of law only comes to life through the brute reality that constitutes (or «counts as») it. The raising of a hand counts as a bid in an auction and the issuing of a document invented by some administrative agency tasked with issuing residence permits counts as an official residence permit.

It is important to understand the ramifications of this distinction between brute reality and institutional reality when applied to rules and concepts. The institutional concepts created by the sources of law describe potential institutional entities. The legal rules in the sources of law do not only constrain the structure of institutional reality, but also constrain the mapping between institutional reality and brute reality. Any rule mapping brute reality (the raising of the hand) to institutional reality (the bid) mayeither be backed by a legal rule the sources of law, making it institutional itself, or simply by knowledge of the domain, making it brute. Dealing with these kinds of mappings and distinguishing between these layers is important when arguing about cases, for clarification of legal qualification tasks that are to be executed by the users of legal support systems, and in research on connecting regulations regarding spatial planning to maps, amongst others. In the latter example, i.e. the domain of spatial planning governed by regulations [10], spatial dimensions are part of brute reality.

We introduced our three-layered model not just for legal philosophical reasons but also for the purpose of isolating changes to layers, and mappings between layers. This way we can reduce the complexity of coping with change. These changes can concern rearrangement within an organization itself, i.e. an internal locus of change, as well as the external environment, e.g. changes in legislation.

The sources of law are constantly changing, usually as a result of change in objectives of governments or organizations, but also the interpretation of the same sources of law may change.

The representation of institutional reality – in data structures, rules, forms, etc – may be affected as laws change, but this is not necessarily the case, since changing legislation may simply re-codify the existing institutional arrangements. In such a case, only the justifying relations between institutional entities and the sources of law change. Change in institutional reality may result from reinterpretation of the sources of law. This type of change fits within the boundaries of current (written) legislation, and the sources of law do not change, while justifying relations do.

If institutional reality changes, whether or not brute reality will change as well depends on the implementation of institutional reality into brute reality, e.g. into the way the rules are implemented into a specific organization. If the chosen implementation is still doing justice to the objectives, and implements institutional concepts, as expressed by the sources of law, there is no need for changes beyond the justifying mapping of brute reality into institutional reality.

A simple example of a situation where brute reality does change is found in the «Besluit Uitvoering Wet arbeid Vreemdelingen» (Implementing Decision Employment of Foreigner’s Act) that was changed in 2008. Additional to the previous requirements, the knowledge migrant after 2008 has to also prove his high educational background. This affects organizations that have to work with these regulations. They have to update their systems to incorporate a check on educational background. Brute reality adapts to the new situation, how this should be accomplished is not specified. Conversely, if the requirement for a valid passport is dropped from the law and replaced by the more general requirement that a migrant should be identified, the implementing organization may still opt to retain the requirement for a valid passport in a «fast track» service implementation, and delegate the handling of cases where no valid passport can be shown to the fully manual appeal procedure.

Reality in itself also changes due to new technology, social or economic changes etcetera. The introduction of computer and Internet into bureaucratic reality is of course the most appealing example of such changes and their effects. Generally, we distinguish between (1) changes of the law that change institutional reality, and necessitate change of implementation, (2) changes of the law that change institutional reality, but do not necessitate change of implementation, (3) changes of the law that do not change institutional reality (for instance codification of case law or practices already developed within the organization), (4) changes of institutional reality due to a new interpretation (not coerced by the law) that necessitate change of implementation, (5) changes of institutional reality due to a new interpretation (not coerced by the law) that do not necessitate change of implementation, and (6) change of implementation for it’s own sake, for instance due to work floor feedback.

The previously given examples briefly show how the three-layered model helps policy makers and designers of legal support systems to reason about the impact of change, reducing the complexity of this problem by slicing the problem of coping with change in smaller pieces that can be handled better.

Since we finally aim at building a computational model of the legislation and ist implementation we have to find descriptive vocabularies that can be used to represent the three layers and the relationships between them as were introduced before. This results in each layer of reality being formally represented on a distinct level, as illustrated by Figure 2. Moreover, the entities on each level should be explicitly linked to corresponding entities on adjacent layers to be able to track the impact of changes as described in Section 3.

As we base the AGILE knowledge representation on Semantic Web standards, we decided to use OWL2 axioms, augmented with MetaLex XML (cf. for instance [6, 5, 3]) and a (defeasible) rule formalism to overcome some expressivity shortcomings of OWL2. In the MetaLex CEN/ISSS initiative, IT industry, publishers, government agencies, and academics work together to create an open XML interchange standard for sources of law and legislative resources. MetaLex XML provides us with mechanisms to implement traceability from knowledge representation to sources of law.

The legal rules represented by the source of law appeal to two separate realities - institutional reality and brute reality. When interpreted asInstitutional rules they map out a logical space of possible models of the institution: they form the institution's ontology, and can be interpreted as terminological axioms [3]. They are not to be considered defeasible as a matter of convention.

Institutional events areconstituted by events in brute reality. The main function of theconstitutive rule is to define the interface through which the state of the institution can be changed. As such, the most important question they answer is how to map brute realityinto institutional reality. Legal rules of a constitutive nature are however not conditionals which take brute reality propositions as a premise, and institutional propositions as conclusion. It is important to note here again, as was already stated in Section 2, that there is a distinction between rules justified by the sources of law and on the other hand brute rules, created by knowledge of the domain.

Logical propositionsdescribing constitutive legal rules can be categorized intorequirements , which posit necessary conditions on the mapping between brute and institutional facts, andindicators , which license an inference from brute fact to institutional fact, if and as long as it is consistent to do so.

Applicability plays a central role as soon as the logical proposition and the legal rule are separated [12]. If a logical proposition states that a certain proposition indicates or entails another proposition, we must add to this conclusion that a legal rule has been applied. Any logical proposition about the application of a legal rule must conclude that the legal rule has been applied. Applicability rules can be used as a guide for clustering sources of law into coherent domains of application, and are generally used for that purpose by the law. Thechoice rule makes the application of one legal rule conditional on the application of another legal rule, if the combined application of two legal rules is judged to be problematic (see also [3]).

The institutional interpretation however tells us little about the functions of law for its users. Law makes social interaction predictable by giving people reasons to do certain things and to refrain from doing certain things. To explain these functions, we have to appeal to planning and plan recognition. To explain the normalizing effect of other rules one must ascribe intentions and preferences to agents: People sometimes intentionally try to bring about or avoid certain legal facts. Since cognitive resources for planning are limited, and people share a lot of their knowledge, intentions are both predictable and recognizable on the basis of observing behaviour.

Legal norms usually address more than one party. For efficiency reasons the legislator expresses norms usually from one addressee’s perspective. In order to make sense of the complete legal consequences for all addressees one needs to understand thejural relationships between such parties. The legal philosopher Hohfeld [11] clarified these relationships. Hohfeld's relationships distinguish between the (legal) competence (or power, ability) and incompetence to play a certain agent role, and therefore to cause a certain change of position, and between the obligation to cause a certain change of position or the absence of such an obligation, and most importantly, between the one who acts and the one who predicts the actions of another (see also [2, 3, 7, 13]). In essence we are dealing with the ability of one agent to infer: 1) that another agent has the ability or inability to change his (in this case legal) position in relevant ways, and 2) that the other agent has a preference for changing or not changing it.

Business process specifications represent an intention to use one's (legal) abilities in a predictable manner. Services publicly advertise this intention, so that it creates an ability (to change their legal position) of prospective clients. These clients use this ability by requesting a service. Of central importance is the adoption of agent roles: the client becomes a client by requesting a service and - thereby - adopting a well-defined role, while the employee of the administrative organization adopts another agent role in an associated business process. In the AGILE project we use agent simulation as a tool for impact analysis and exploration of design options. This assumes the development of prototypical agents representing both the organization itself and its relevant environment.

The design methodology we are developing in the AGILE project aims at covering realization, reference, and representation (from MetaLex), applicability, and constitutiveness (a necessary addition, as discussed in [3], given reified rules, and should make a distinction between abstract institutional entities and their implementation as entities in organizational reality).

We aim to account for the relation between jural relationships on the one hand, and agents, goals, and services on the other hand. This relation is to be found in the representation of abilities and preferences.

In order to more precisely address the impact of changes of law in the representation system and consequently in the specification of legal support systems, we make a distinction between three knowledge layers. These distinctions are required if we aim at supporting legislation drafters and policy makers who need to predict the outcomes of their intended changes not only with respect to the legal consequences for the categories of cases determined by the sources of law, but also with respect to the business processes, (human) resource consumption etcetera.

Not only do we aim at reducing the complexity that comes with managing change, a problem that has increased with the growing dependency on supporting legal information systems and complexity of regulations. We also hope to further develop a meta-legal model of the regulatory system, preferably a computational model of such legal theory. The combination of such legal theory with economical models will then help to improve meta-legal reasoning about the effectiveness of law, which is relevant both from a scientific as well as a pragmatic perspective. Such a legal theory will not only be beneficial to governmental organizations that have to cope with change. Agility in the end is a key factor in an effective legal system.

This research is part of a project called AGILE² , a Jacquard project funded by the Netherlands Organisation for Scientific Research (NWO).

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Tom van Engers, Saskia van de Ven and Alexander Boer, University of Amsterdam
Leibniz Center for Law
{vanEngers, s.vandeven, A.W.F.Boer }@uva.nl}