Jusletter IT

It is for me a pleasure and a joy to join colleagues and friends to honor Prof. Dr. Friedrich Lachmayer. In this brief conceptual paper I will carry out a preliminary reflection on some concepts that turned out to be crucial for the research we are conducting at the UAB Institute of Law and Technology (http://idt.uab.cat ). It deals with cooperative features present in the behavior of consumers, customers, clients, citizens and, broadly speaking, users of Web Services on the Internet. Social intelligence, relational law and justice, or crowdsourcing are new concepts trying to capture human cognitive behavior and rationality through social networks. I will explore the way regulatory systems can be conceived as social systems, and designed and re-designed as regulatory models.

For the sake of clarity, I will divide the explanation into four synthetic sections: (i) Relational law; (ii) Relational justice and regulatory systems; (iii) Regulatory models and social intelligence modeling; (iv) Crowdsourcing, legal crowdsourcing and crowdservicing.

Let’s start with the following example, posted in a blog on contract law by Nancy Kim:

«Relational contracting should be the subject of renewed interest given the new business models that incorporate goods, services, and information. On the radio yesterday morning, I heard someone talk about Google’s business as being more than a series of searches ―it was about services and relationships with its customers. (Okay, maybe those weren’t the exact words, but they’re close enough). A few weeks ago, a NYT article discussed new technology companies that are assisting musicians in managing their relationships with their fans. In order to survive, many businesses (especially those in the creative industries) will have to reboot for the evolving marketplace. Not all businesses (and by ‹businesses›, I mean musicians, writers and artists who want to get paid and are not backed by large corporate conglomerates) are equipped to do this. Well, make way for companies like Topspin, Bandcamp, FanBridge and ReverbNation, to assist them. These companies help musicians run a band’s online business which means they sell music, manage fan clubs and calculate royalty payments. They have found a way to bundle physical and digital goods. How much you want to bet that those digital goods are protected by contracts?

Which brings me to relational contract law. The purpose of these companies is to enable the musician to survive (and even thrive) without being backed by a record company. Now, the musician can directly manage the relationship with the fan. In the past, a fan joined a fan club, bought a ticket to a concert from one vendor, a record from a retailer, a tee shirt from another retailer ―you get the picture. With the exception of the rules on the back of the concert ticket and the fan club membership rules, the other transactions were not governed by contract. The fan can now buy everything she or he wants that’s band-related from that band’s website, subject to the terms and conditions of the website and the licenses that accompany the digital products. Shouldn’t the terms of those contracts be considered in light of the existing relationship between the musician and the fan? Wouldn’t a relational contracts approach be helpful in analyzing the terms and how they should be interpreted and enforced?»¹

My apologies for such a long quotation, but it serves me well to show why relational contracts are back, and what lawyers mean when they oppose civil contracting to relational law.

Relational is a common property that emerges from the existing social and economic bonds among companies, providers, customers, consumers, citizens (or digital neighbors).² However, it seems to be a pervasive quality, perhaps straddling too many genres and fields, from psychology to jurisprudence, and from political science to business managing and marketing studies. «Relational» has been applied not only to contracts but to sovereignty³, rights⁴, copyright⁵, governance⁶, norms⁷, and conflicts⁸, broadening up the field from private law to the public domain, and from anthropological «relational lens»⁹ to political «responsive regulation».¹⁰ Relational refers to the capacity to set up a common space of mutual relations ―a shared regulatory framework― in which some reciprocity is expected with regard to goods, services, attitudes and actions. Thus, relational law is more based on trust and dialogue than on the enactment of formal procedures or on the enforcement of sanctions.¹¹

I am not going to delve into it right now. As said, it seems to me that we should settle first what kind of theoretical regulatory framework we are facing and from which point of view are we coping with regulatory problems (economy, political science, psychology or law). This kind of interpersonal behavior can, and actually is, envisaged and valued in acutely opposed ways from political philosophies praising the emotional side of dialogue and care ―like most feminist legal theories do― or from the purely economic or managerial point of view that describe and measure the reality of the increasing negotiation power of executives that behave and stretch commercial and labor bonds far beyond the boundaries and guarantees of legal contracting.

But this is not to say that a single specific domain may be sufficient to define the dimensions and layers of relational law. On the contrary, interestingly enough, since the beginning the relational perspective emerged from the interplay between lawyering practices, contract studies, and socio-legal scholarship, alike. Both Stewart Macauley (1963) and Ian R. Macneil (1985) viewed contracts as relations rather than as discrete transactions looking at the evolving dynamics of the different players and stakeholders within their living constructed shared contexts. The notion of «relational thinking» emphasizes the complex patterns of human interaction informing all exchanges (MacNeil, 1985). But this in fact does not disregard a more conventional notion of what law is or how lawyers think¹². More recent studies confirm that there is no simple opposition or alternate choice, but different combinations in between: legal contracting and regulatory governance may intertwine, substitute each other, or co-apply.¹³

This means that relational regulatory models are complex, and that their strength certainly stem from sources other than the normative power of positive law. Again, legal drafting, contracting and sentencing matter and can play changing roles within the system. I will call regulatory systems this set of coordinated individual and collective complex behavior which can be grasped through rules, values and principles that constitute the social framework of the law.

Regulatory systems are broader than their legal side because they include all aspects set by players in the social, political and economic games at stake.¹⁴ They are situated, flow-driven, and work specifically in a multitude of similar but different evolving scenarios. They usually have a formal, explicit side and an implicit, tacit one. Information and knowledge management and coordination constitute additional important features too, as they often require a set of steps to be followed and certain sort of actions to be taken. As long as they contain procedural ways to solve and manage conflicts as well, they shape relational systems of justice.¹⁵

Relational justice is thus the type of justice that emerges from the different conceptualizations, practices and strategic moves of the actors dealing with, managing, or solving a quarrel, dispute, conflict or fight within these situated contexts and frameworks¹⁶. Personal attitudes, moral and political beliefs are highly relevant in this kind of situations which can be initially unstructured and eventually embedded or plotted onto bigger organizational or social conflicts. Institutions may be involved (or not) at different stages and at different times¹⁷.

A conceptual distinction is needed at this point between regulation or regulatory systems and legal institutions.

Let’s put an example from the White Book of Mediation in Catalonia¹⁸. «Mediation» and «mediator» are legally defined in Europe by the EU Directive 48/2008¹⁹. However, our empirical findings showed the existence of an array of techniques and procedures in multiple domains ―private: commercial law; mixed with state agencies: consumer law; public: education, restorative justice, health, local administration, etc.― which had been locally and autonomously developed by professionals, local powers and citizens around, upon, and above the conflicts outside the legal settings (Parliament and the Courts, e.g.), and independently of (but not necessarily in opposition to) the law. Broadly speaking, we found that the local behavior that had produced the settlement of literally hundreds of mediation units over the country was in fact a collective answer to the challenges faced by the Catalan society at the beginning of the 21^st century.²⁰

Brief, single understandings, covenants and pacts cannot be isolated from their social environment. Some of them do not even need to be represented or framed in a conflict to get settled. Formal agreements are upheld by an underlying social substrate of complementary actions and social behavior. Accordingly, the mediation system literally emerged in Catalonia from the concrete actions of people involved in problems and deeply committed to achieve some acceptable solutions (teachers, doctors, social workers, etc.).

We tested and counted up to 122.957 specific actions of translation, information, facilitation, integration, religious and cultural assessment that took place in 2008 at Catalan public hospitals and first care units. All these actions, both formal and informal, cannot be considered as proper mediations, but they perform regulatory and preventive functions. Therefore, they belong to the regulatory system that eventually leaded to the conversion of the mediation process into a legal institution able to produce binding effects between the parties. Fig. 1 draws schematically this difference, while Fig. 2 summarizes its inner dynamics: the crucial task is to identify the content of the link which produces social, political or legal bonds.

Fig. 1

 Fig. 2 

It is beyond the scope of this paper to define the content of the relational bond, but what is expected from the counterparts, or felt as a duty or as a right, lies on the nature of the ties with the intervening organizations or administrative bodies (governance), with positive statutes and courts (legality), with the social environment (community), and with the different stakeholders in the dispute (conflict or agreement space).

In Artificial Intelligence, agreement and all the processes and mechanisms involved in reaching agreements through negotiation and dialogue between different kind of agents (human and non-human) are also a subject of research and analysis (Sierra et al. 2013). Interactions, transactions and the different procedural means to perform them is the subject of Agreement Technologies (AT).

The AT approach and design is grounded on the collective notion of social intelligence rather than on individual rationality. From a psychological point of view, social intelligence (SI) usually refers to the capacity to negotiate complex social relationships and environments, or an aggregated measure of self- and social awareness.²¹ But from a socio-cognitive point of view, «traditional distinctions between the natural, the social and the artificial are becoming more and more blurred as radically new forms of Information Technology-enabled social environments are formed».²²

Recent work by Cristiano Castelfranchi, Carles Sierra, Enric Plaza, Pablo Noriega, Julian Padget, Marc d’Inverno, and many others, contribute to shape this view of a social mind which is not a mere aggregate of individual abilities, but a set of social affordances. Therefore, «social interactions organize, coordinate, and specialize as artifacts, tools; […] and these tools are not only for coordination but for achieving something, for some outcome (goal/function), for a collective work. [….]. We have to revise the behavioristic view of ‹scripts› and ‹roles›; when we play a role we wear a mind» (Castelfranchi, 2013).

Let’s go back to the relation between AT, SI, institutions, and fundamental legal concepts. In this kind of social institutions, validity is not equivalent to legality²³, and a technical system (i.e. a Multi-Agent System, MAS) has to be designed as a set of tools to comply with empirical requirements in a specific meta-model. Fig. 2 summarizes a general structure for such a meta-model. I stands for «Institution», T stands for «Technology», and PSM for «Platform Specific Model» (Noriega and d’Inverno, 2014).

Fig. 3. Institutional Design. Source: Noriega and d’Inverno (2014)

Following this approach, the specific regulatory model built up for a platform to fight organized crime at the EU CAPER Project²⁴ can provide an example of PSM. CAPER operates on Open Source Intelligence (OSI). The goal of the CAPER project is to create a common platform for the detection and prevention of organized crime through sharing, exploitation and analysis of open information sources (OSI). The platform has four major components: (i) data harvesting (knowledge acquisition: data gathering), (ii) analysis (content processing), (iii) semantic storage and retrieval, and (iv) access control.

CAPER objectives are: (i) implementing a framework to perform the task of connecting multiple data sources with multiple visualization techniques via a standardized data interface, including support for data-mining components; (ii) enabling a quick and robust import of data types from disparate data sources in order to improve the ability of different Law Enforcement Agencies (LEA, national polices) to work collaboratively; (c) supporting pattern discovery, documentation and reuse, thus increasing progressively detection capabilities.

This is an interesting attempt to coordinate collaborative information workflows among European LEAs. But it has to take place in compliance with national and EU laws, protecting the civil rights of citizens at the same time. Privacy and Data Protection are big issues. Thus, CAPER Regulatory Model (CRM) constitutes the institutional tool to regulate the functioning of the platform and to guarantee the compliance with rights and statutes. To construct CRM as institution, we assume the following notions:

• Regulatory system: a set of coordinated, individual, and collective complex behavior which can be grasped through rules, values and principles which constitute the social framework of the law.
• Regulatory model: a regulatory system design, in which hard law, soft law, policies, and ethics can be combined (or mixed up) in different degrees in a set of explicit or implicit guidelines for the interoperability of systems and the inter-communication and coordination of agents.
• Validity can be conceptually defined as a second-order property, a four-tuple function of ethics (justice), policies (efficiency), soft law (effectiveness) and hard law (enforceability), fostering the application of metrics to measure institutional strengthening, i.e. the coordinated organization of components in specific platforms applying semantic technologies (among others).

Fig. 4 plots the meta-model to draw the set of guidelines, protocols and rules that regulate the functioning of the information workflow in CAPER and produce the institutional strengthening of the system. CRM constitutes an example of regulatory coordination between different expert stakeholders. But as we will see in the next section, open social intelligence can be operated as well as a kind of problem-solving mechanism.

Fig. 4. Continuum of institutional strengthening (CRM)

In the new stages of the Web, the role of collective resilience to common problems cannot be underestimated. Openness, communication and dialogue are core to the Social Web and to the upcoming business models on the Internet. From this perspective, there is no difference between political participation, technological innovation, and economic growth. In all possible scenarios, a balance has to be made between expert knowledge and lay people participation.

The term crowdsourcing was first introduced by Jeff Howe in 2006 to refer to «the act of taking a job traditionally performed by a designated agent (usually an employee) and outsourcing it to an undefined, generally large group of people in the form of an open call»²⁵. Different types have been already distinguished in the literature.²⁶ But most of the more successful examples, like the Wikipedia or Twitter, may be defined as non-profit collective aggregation of information stemming from micro-tasks widely distributed across the Web, and freely performed by people. Therefore, it implies much more than a new way to recollect information or to respond to labor offers or contests, following the Amazon Mechanical Turk or Microworks.com models.

Crowdsourcing points at the personalization of services and applications. It creates a link between Web 2.0 (the Social Web) and 3.0 (the Web of Data), for it creates the conditions to transform the aggregation of individual information into the clustering, classification and enhancement of collective knowledge. Brief, it broadens up and enhances a democratic way of living and behaving in the global world.

This is the main reason why people use it when they need it, reacting to events that concern them or into which they want to get involved. No measures based on routine or loyal customer behavior are accurate enough to capture this public dimension.²⁷

The broad democratic political model to be implemented cannot be taken for granted. It does not exist yet, as the integration between the regulatory forms of law, relational governance and what Charles Petrie (2008, 2010) called Emerging Collectivities (EC) has to be thought on new basis.

The challenge lies on the technological empowerment that the next steps of the Semantic Web, mobile technologies, grid computation, cloud computing, visualization technologies, geo-localization, and agreement technologies are able to bring to people involved in regulatory systems, and the way they can get profit and take advantage of them. Crowdsourcing can be expanded into crowdservicing (Davies, 2011).²⁸ It is close to ubiquitous computing and human computing (Das and Vucovic, 2011), and it grounds and fosters emergency responses, crisis and disaster management, conflict resolution mechanisms (ODR), democratic transparency, and the organization of legal distributed knowledge through an easier access to law, constitutional reforms, and political participation.²⁹

But how a human computer approach for law and regulatory systems can breathe a fresh air to legal models, the state, and the rule of law is a different issue to be faced in another paper. In the present one, my intention was introducing some conceptual notions that are useful to model regulations as networked interactions within the Web.

Acknowledgments: SINTELNET COORDINATION ACTION (European Network for Social Intelligence) SINTELNET FP7-ICT-2009-C-286380; CAPER Grant Agreement 261712; DER2012-39492-C02-01 CROWDSOURCING; IPT-2012-0968-390000. CROWDCRISSCONTROL.

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Pompeu Casanovas, Institute of Law and Technology (IDT), Universitat Autònoma de Barcelona.