Jusletter IT

We often see the term “method” in the legal literature as a bare expression without describing it in any detail. At its simplest, the subject is dispatched with a comment from the author that he or she is following the method of jurisprudence. Yet mere mention does not tell the reader enough about the method involved. In a field such as law, the idea that there is a single method is in fact patently absurd. A reference to jurisprudence of course distinguishes a work from legal theory, legal history and the sociology of law, or even from today’s increasingly important field of legal linguistics. But even within jurisprudence there is a wide range of research interests and methods.

Sound scholarship should be more readily visible in its description of the methods applied or in the text of the research itself. Identifying the method cannot be left up to the readers to guess – however educated their guesses may be – or to be constrained by the tenets of their particular school of thought.¹ Indeed, law, as Antonio Anselmo Martino has insightfully noted, is – or at least should be – one of the world‘s most exact sciences.²

In today‘s new constitutional state, this idea carries more weight than ever before. We must constantly ask whether the outcome of our work is consistent with the rule of law. Unlike is often the case – sadly – answering this question involves more than a perfunctory nod to human and fundamental rights.

One way to continue an account of methods is to examine what we may call the basic method. I would describe this as the sum total of the considerations a legal researcher should take into account in trying to do quality research. The concept of a basic method as I use it here emerged in the course of my looking at the work of the famous Swiss scholar Alois Troller (1906–1987). Of particular importance was his 1975 publication on legal theory dealing with the legal methods.³ In this work, he put forward how he understood his own method. It was original thinking on his part: the publication had no footnotes. An interesting solution?

Our method brings us together and sets us apart. We are accustomed to speaking about the legal method as something we share in the legal profession and something that distinguishes us from the other professions. Different professions work in different ways. There is every reason for us to speak of the basic components of different professions. Solid professionalism is one hallmark of a profession. Methods are that professions use to communicate their uniqueness.⁴

A method is also crucial within a profession as a standard. Justice of the (Finnish) Supreme Court, Juha Häyhä, has aptly observed that “the methodological self-conception of the scientific community is one of the central guarantees of the reliability and, at the end of the day, the credibility, of the work done in the field of law”. It is easy to concur with this erudite view.⁵

The question we have to confront ourselves: what all does a method consist of, and how is it expressed? Further, we have to keep asking ourselves: How does a method change and when does a method need changing? These have been and continue to be salient considerations in assessing the role of legal informatics as one of the essential legal sciences of our time.⁶

The year 1997 saw the publication of the work Minun metodini (My Method) in Finland.⁷ It features contributions from 17 professors of law in which each examines the method he or she uses. The outcome was surprising, to say the least. The authors’ methods differed quite a bit from one another. In fact, some had not thought about or used any method at all. They said they just went ahead and wrote using legal and other sources in various ways. Shocking, absolutely shocking.

In my article, I described the different facets of my own basic method, inspired by the work of Troller mentioned above. I put forward ten essential components comprising the basic method. What I tried to do was to combine information, on the one hand, and legal reasoning and its verbalization on the other. The basic method cannot hinge solely on a single factor, such as hermeneutic reasoning, without our paying very close attention indeed to where the source material has come from and how it has been collected. Another concern is how research findings can be validated, shown to be sound so that those who use them are convinced of the value of the sources and ways in which they have been used. In this light, we see that for example footnotes as a basic tool in legal communication are far, far from being a mere formality.

I have distinguished the following main components of my own basic method:⁸

1. Doctrine of legal sources
2. Doctrine of the sources of information
3. General doctrines as means of knowledge management
4. Knowledge of the legal sciences
5. Interpretation skills
6. Justification skills
7. Communication abilities
8. Knowledge of jurisprudence
9. Professional ethics
10. Requirement of justified doubt

At first glance, the list may seem simple. This is in fact ultimately the case. These are precisely the things that we study and teach day in and day out in law. Further, these are the things we are expected to know – and know well. In fact, this is a list of essentials. Somehow, they even belong to our tacit knowledge. Otherwise, we could not stand up and be counted as lawyers. However, fusing these essential requirements into a functional method is a demanding task. In a word, our method is a guarantee of quality when assessing the different activities that we subsume under “legal life”. If any features of the product are not up to standard, the overall quality suffers accordingly.

This transposition takes place in the context of the current more international legal culture. Legal cultures vary quite a bit from country to country, although our ambition is to achieve the culture of the optimal constitutional state that the Swedish academic Kjell-Åke Modéer has highlighted.⁹ For example, the openness of government activities and of information differs from state to state even in the EU. The Nordic tradition of openness is rather alien to most of the other Member States.¹⁰ The transition from the old administrative state to the new constitutional state is gradually bringing uniformity in this regard but progress is slow. Leaving the relation between the GDPR and national legislation wide open has certainly not helped matters.¹¹

What then has changed in the basic method and what should change now that legal informatics has become an essential discipline within law in the digital network society? I presume to claim that there are four particular, critical changes we need to focus on. Firstly, we have to talk about legal questions much earlier in everything we do. Secondly, the role of information and its coverage in information systems has shaken our basic method to its very foundation. Thirdly, the importance of legal information systems has changed. Fourthly, and last, the importance of having a deep knowledge of fundamental rights has increased. If this is not daunting constellation of challenges, I don’t know what would be.

The requirement that law should figure earlier in societal processes is actually a development essential to the rule of law. We should have the right and opportunity to resolve legal uncertainty as quickly as possible. The inclination researchers and lawyers have to seek out precedents should no longer figure as significantly as it has to date in our legal thinking. The regulation on legal procedures should work to speed matters up.

Likewise, the modern court should be like a modern supermarket, offering quick service and staying open late.¹² Yet, it is even more important to realize how law figuring earlier in everything affects the design of information systems. Failing to incorporate a legal perspective into the planning of information systems until they are pretty much finished is, at the risk of overstating the case, as expensive as it is foolish. Unfortunately, this still seems to be overlooked more often than not. Very often we do not remember just how heavily a modern court of law relies computer and data systems.¹³ We should not confine out interest to the readily visible use of computers in the courts.¹⁴

We cannot really talk about information systems without talking about the handling of information as such. This starts with the initial choice of technical platform and mark-up language and extends to how and in what form the information in the system can be processed. Planning these features often requires the combination of exceptional legal and technical expertise. Where the traditional document-oriented mentality and regulation still prevail, the chances of success here are slim at best. We must remember the international ways of handling information as well. For example, the Akoma Ntoso system that has been chosen and is being developed for parliamentary documents will have far-reaching methodological ramifications for individual information queries as well as comparative law.¹⁵

The third crucial change is the development and use of legal information systems. This, if any of the changes, has been virtually overlooked in legal informatics. All too often, researchers and practicing lawyers alike give less consideration to the quality and accessibility of the information they use than to legal reasoning. In blunter terms, what they do is decide cases with inadequate information. The doctrine of information sources – part and parcel of the basic method – has taken a backseat to the doctrine of the sources of law. Above all, the principles governing the basic of legal information systems are not as well established as they might be. In my textbook on Legal Informatics, I have set out the principles in the following terms.

The core principles of official legal information are that it should be (1) available, (2) accurate, (3) accessible, (4) searchable, (5) understandable, (6) usable and (7) available for free or at reasonable cost.¹⁶ These principles apply for the most part to scientific or commercial information as well.

All in all, they are of critical importance in all legal activity and in more general contexts as well. After all, legal information is undeniably part of our social capital. As the transparency of information is becoming a near-ubiquitous and manifest principle, it will shape the ways in which we use legal information.¹⁷ If we forget this, we will find ourselves on a slippery slope. A paucity of sources may lead to our failing to notice what is right. The goal of exact match information searches will elude us.¹⁸

The fourth sweeping change is the heightened importance of fundamental rights in the European constitutional state. We are only gradually waking up – some faster, some slower – to the new role fundamental rights play in legal life in practice. The rights and their respective importance in different situations stand to change our basic methods. The GDPR, among other developments, has made this quite apparent. One telling example of the problems involved in reconciling the interplay of fundamental rights is the CJEU’s decision in the Google Spain case (C-131/12).¹⁹ The Court concluded that through its act of locating, indexing and storing data, a search engine can be regarded as a “controller” with respect to the “processing” of personal data.²⁰ Our right to be forgotten should not be undone by the permanence of search engines. We must always remember the central principle that in terms of data protection information which in practice has become unnecessary should be destroyed or archived.

One important example I can cite in the area of information management also has to do with how the legal materials used are presented in court judgements and different decisions. This is by no means a new issue and has taken on different forms in different legal cultures. But it will come a new as we develop the information systems used by courts. For example, we have to ask what kind of legal literature judges are using and what materials are available to them on their computers. If they have relatively few sources available to them, justice will become scarcer. We end up using legal sources that someone somewhere has chosen for us. This no doubt is having its impacts on the shape of our legal culture.

In my view, the four changes we must navigate on our way to the constitutional state bring out in bold relief just how demanding our basic method is as a framework of expertise in legal informatics. The day is long past when information technology was a novel development that challenged the general systematics of our discipline. Today systematics and changes in method go hand in hand. Legal life requires a higher level of skills than ever. In his work on digital law, Ethan Katsh was among the first to point out the transition to digitalization would require lawyers to have more skills.²¹ One of these derived from the heightened importance of justified doubt. As Peter Seipel has emphasized, legal informatics has been and is a forward-looking science. “The general theory of legal informatics has for a long time been aware that IT-based information handling in society tends to shift attention from reactions ex post to measures ex ante”.²²

In the Nordic countries, it has been our custom to emphasize the importance of the systematic management of legal knowledge. The idea here, too, has been to guarantee quality of product. Theories, principles and concepts create structures – allgemeine Lehren – which guide us in searching for and processing information. The internationally renowned Finnish legal theoretician Aulis Aarnio has put it appropriately: “A system

fixes the structures that determine what alternatives are available in making decisions different situations. If the boundaries of the system are broken, the decision made is not consistent with the law as it stands at the time.”²³ This does not mean any we are slaves to a static system. We must be ready to modify the system, when there are enough acceptable reasons to do so.

Let me take up one sad practical example. When Finland’s first data protection law – the Personal Data File Act – was enacted in 1987, the editor of the systematic law collection Suomen laki (The Laws of Finland) classified it under administration law. There it was between the Bladed Weapon Act and the Bingo Decree. Bingo! The editor – a member of the supreme court and expert in penal law – was not familiar with the Law of Personality (Persönlichkeitsrecht) or with Legal Informatics (Rechtsinformatik) as legal disciplines.

Nothing is created in a vacuum. Legal tech, for example, is closely bound to something that has gone before it. It is a lab tech matter that we must be better able to probe technical implementations in order to see how information is being processed in different situations. This is quite a change indeed compared to the days when even I emphasized that a knowledge of information technology as such was not essential for working in legal informatics. Today, if we engage in justifiable doubt, the use of AI in different forms in government looms as a methodological and technical concern that requires more weighty regulation. It is still important to remember that the links between AI – or calculations billed as such – and human thought processes have yet to be established. The progress we have seen in computing power and machine learning gives us good reason to enact more detailed regulation on processes that are marketed as AI systems or which would yield similar results without being touted as such.²⁴

It is no longer good enough to state that AI should not be used in assessing people. This is what we did starting with the adoption of the 1995 Personal Data Directive and on into the GDPR. Now it is imperative to go deeper and enact regulation that will ensure uniform use of AI.²⁵ We should of course have done this a while back. The enthusiasm of governments to adopt ever more powerful IT obscured the transition to the use of AI. In legal perspective, the procedures and technical implementation diverged from one another.²⁶ This is something that should never have happened.²⁷ The promising field, where we can and should use AI, is in systems that draw their readers attention of suspect sources and warn them of misleading sources. The Layman Allen old idea of a Normalizer is still valid.²⁸

Summing up, I would like to conclude with citing the words of Aulis Aarnio:

“Conceptions of justice are not born in a vacuum. Those tasked with interpreting the law are part of a tradition that has taken on a particular shape before them and will continue after them. The process at work here is the same as that governing one’s native language. Every generation acquires its own native language, masters it to a particular extent – this is taken for granted – and perhaps changes it a bit. But a language is not dependent on an individual person. Analogously, in order to recognize the standards for what is just, judges must know the culture, social history and operating principles of the nation they serve; they must comprehend the essential attributes of what it is to be a human being and what is expected of a person as a social being.” ²⁹

When we add here that analytical law as Aulis Aarnio understood it sought to remove unnecessary concepts, it is easy to see that legal informatics in Nordic perspective is clearly a continuation of the analytical law that preceded the birth of the digital network society. Without a method that addresses the challenges of the times we are easily lost or forced to satisfy ourselves with no more than describing what the law says in the spirit of “Just open the law book”³⁰. Likewise, we should avoid talking about ”overall consideration”, an expression that may be used to mask the factors affecting the decision or, indeed, to cover up the incompetence of the person(s) making the decisions. All too often just such a suspicion arises when looking at the decisions of courts and other authorities.³¹

In the age of the digital constitutional state, we see basic method undergoing renewal both horizontally and vertically. Our skills must achieve a new depth. The tendency of the profession to avoid the new (information avoidance)³², whether in the case of information technology or legal regulation, is something legal informatics is called upon to combat as effectively as possible. Confirmation bias as a lawyers basic sin has been and can continue to be a dangerous attitude for the profession in this age of digital change.³³ One of our leading sociologists in Finland, Risto Heiskala, has addressed the same issue when considering the impact of social research: “Yes, if we think that those making decisions today, once firmly assured of their positions, will keep working for the next 20 to 40 years, the direction the world takes is going to be decided based on a society that is an average of 30 years old. University teachers would do well to think very carefully about what they say in their lectures!”³⁴

When thinking for example about the content of information law, we must consider the role of the requirement of justified doubt in our basic method. What is and what should be the role of information law now when we are discussing the new European data legislation?³⁵ And should we rethink information law from the standpoint of fundamental rights so that we can better avoid the ever-increasing tensions between privacy, data protection and transparency? Here, too, we clearly have a question of method.

Let us go back to the topic I started with, the basic method. If this is not taken into consideration as a whole in the work we do, our legal information skills can easily go askew. At worst, we will find ourselves using inadequate and second-rate sources or foundering in detail to the point that our thinking will leave practical needs behind. As the saying goes, theory is done for theory’s sake. Where this is the case, the quality assurance we have in the profession is not functioning properly. The lines of communication between different legal skills have broken down. This is also a practical threat to the success of legal informatics.

Aarnio, Aulis, Tulkinnan taito, (Interpretation skills), WSOY 2006.

Aarnio, Aulis, Essays on the doctrinal study of law, Springer 2011.

Aarnio, Aulis/Saarenpää, Ahti, Juristen, rättsvetenskapen, informationen: synpunkter på rättslivets framtid i informationssamhället, (Lawyer, jurisprudence, information; viewpoints about the future of legal life in the information society) pp. 8–31 in Juntunen, Ritva (ed) ADB, lagstiftningen och juristens roll. Norstedt 1990.

Arnold L./Stern D.T., What is medical professionalism? pp. 15–37 In: Stern D.T. (ed), Measuring Medical Professio­nalism. New York, NY: Oxford University Press; 2006.

Bygrave, Lee, A Right to Be Forgotten? Communications of the ACM, January 2015, Vol. 58 No. 1, pp. 35–37.

Golman, Russell/Hagmann, David/Loewenstein George, Information Avoidance, Journal of Economic Literature Vol. 55 No. 1 March 2017.

Heiskala R., Yhteiskuntatutkimuksen vaikuttavuus ja uusi uljas maailma, (The effectiveness of social research and the brave new world), Tieteessä tapahtuu (Science Now) 1/2016 pp. 27.

Häyhä, Juha (ed) Minun Metodin,(My method), WSOY 1997.

Katsh, M. Ethan, Law in a digital world, Oxford University Press (1995).

Kilian, Wolfgang, Legal Tech: Artificial Intelligence and Legal Decisionmaking, Computer Law Review.

International 4/2022 pp. 127–128.

Modéer, Kjell-Åke, Optimala rättsliga kulturer,(Optimal legal cultures), JT 1999/00 pp. 71.

Munn, Luke, The uselessness of AI ethics, AI and Ethics 2022 https://doi.org/10.1007/s43681-022-00209-w.

Palmirani, Monica, Lexdatafication: Italian Legal Knowledge Modelling in Akoma Ntoso. AICOL 2020: 31-47.

Saarenpää Ahti, Kadonneet systeemit (Lost systems) pp. 261–278 in Häyhä (ed) Minun metodini 1997.

Saarenpää, Ahti, Oikeusinformatiikka, (Legal informatics) in Oikeus tänään, Lapin yliopisto 2016.

Saarenpää, Ahti, E-justice and the Network Society. Some comments from the Finnish point of view in Cerbena Cesar A. (ed) Brazilian and European perspectives on eJustice, Brazilian and European perspectives on e-Justice. Edition in Portuguese and English. Curitiba: Federal University of Paraná (2016).

Saarenpää. Ahti, The Digital Lawyer, in: Jusletter IT 26. Februar 2015.

Saarenpää, Ahti, Web Accessibility and what Law Should Look Like in Open Data Stores, Jusletter IT 24. Februar 2022.

Saarenpää, Ahti, Information Law Revisited/Informationsrecht – noch einmal, in Jusletter IT 23. Februar 2017.

Saarenpää, Ahti/Riekkinen Juhana, Oikeusinformatiikan perusteet, (Introduction to Legal Informatics),University of Lapland 2023. https://lauda.ulapland.fi.

Seipel, Peter, IT Law in the Framework of Legal Informatics p. 10 in Scandinavian Studies in Law 2004.

Stern, David Thomas (ed) What is medical professionalism? Oxford University Press (2006).

Talus, Anu, From Simply Sharing the Cage to Living Together. Reconciling The Right of Public Access to Documents with The Protection Of Personal Data In The European Legal Framework (2019) passim. University of Helsinki, Faculty of Law, http://urn.fi/URN:ISBN:978-951-51-5632-7.

Troller, Alois, Grundriss einer selbstverständlichen juristischen Methode und Rechtsphilosophie (Das Recht in Theorie und Praxis). 1975 Basel/Stuttgart. Helbing & Lichtenhahn.

Wikström, Kauko, Kuka tarvitsee oikeuslähdeoppia (Who needs the theory of legal sources?) in Tala/Wikström/Impola (eds), Oikeus – kulttuuria ja teoriaa: juhlakirja Hannu Tolonen, Turun yliopisto (2005).