Daily Bulletin


News

  • Written by Joe McIntyre, Senior Lecturer in Law, University of South Australia

Most of our laws are dense, obscure and effectively unintelligible for most people (even some lawyers). In a country where, every year, 25% of the population face serious legal issues yet often cannot afford to protect their rights in court, any move to make the law more comprehensible seems like a good idea.

However, reforms proposed by CSIRO to embrace “legislation-as-code” – where the law would be directly read and applied by machines – is not just misguided and deaf to history, it’s dangerous.

Read more: We need human oversight of machine decisions to stop robo-debt drama

‘Legislation-as-code’

The argument for this idea goes that, as the law is just a series of rules, we should be able to reduce those rules to programmable code. When the legislation is drafted, it will be written both in human-readable words and machine-readable code. The aim is legislation could be directly applied by machines.

This agenda in Australia is being led by Digital Transformation Agency and Department of Human Services in collaboration with Data61, CSIRO’s AI and digital science arm. The approach promises “a world where government rules are easy to find, understand and follow” which should improve compliance while reducing costs. In recent submissions made to the Senate, CSIRO said:

The goal is that computer-assisted reasoning using these logics should give the same answers as judges and lawyers doing legal reasoning about the black-letter law.

The move to experiment with legislation as code is attracting attention across the world, with Australia following Denmark’s and New Zealand’s leads.

Unfortunately, as great as these ambitions sound, they ignore the very nature of law itself.

Law in practice is always dynamic and discretionary. Every law requires interpretation: does a directive to only drive on the left allow you to drive on the right to avoid a child playing in the road? What if it were not a child, but a dog? The law does not and cannot provide a single right answer, and will always depend upon judgement.

CSIRO wants our laws turned into computer code. Here's why that's a bad idea The law says cars must drive on the left in Australia. But what if they have to cross the road to avoid hitting a child? from www.shutterstock.com

It follows that judges make law. Not in the same way as parliament which actually passes the laws, but in their complex choices, judges contribute to the changing way we interpret and enforce laws.

The problem with codifying law

To understand the problem, some history is in order. During the French Revolution, the gross misbehaviour of the aristocratic judges of the Ancien Régime motivated the restriction of judicial power.

In the new order judges were expected to be the “bouche de la loi”: the mouthpiece for the law. The great Napoleonic Code of 1804 sought to reduce all French law into a single comprehensive and exhaustive document, clearly written and accessible to all, which judges could apply in an objective, disinterested and purely logical manner.

This conception of the judge held sway for much of the 19th century, yet every attempt to prevent judges considering factors beyond the code, or altering the law by its application, ended in failure. While the concept was politically attractive, it was internally incoherent and bore little relationship to practice.

By the end of that century, theorists such as François Gény and Oliver Wendell Holmes led a revolt against the practice.

This period showed that laws are incomplete, logical deduction isn’t always adequate, and judges need to be able to properly evaluate and take extra-legal considerations into account.

Holmes observed:

[the] life of the law has not been logic: it has been experience.

It is beyond ironic that the “legislation-as-code” movement now shares a name as well as an ambition with the Napoleonic Code. By misconceiving law as a complete system of rules that can be reduced to logical code that excludes discretion and evaluation, it is doomed to repeat the errors of the past.

To allow machines to “interpret” legislation as code does not eliminate the role of values, but rather replaces the evolving values of the judiciary with the values of the programmer and reinforces bias towards past values choices.

The “legislation-as-code” approach risks reinforcing a disingenuous conception of judges as mere dispute-resolvers and not as co-equal governors; the third arm of government.

It distracts from the many ways judges are held to account and promotes an expansive role for parliament and the executive. And as the robodebt saga has already shown, it will inevitably be the vulnerable who suffer most when the technology fails.

Read more: Robo-debt is only one way government stigmatises claimants. There's only so much a class action can do

Authors: Joe McIntyre, Senior Lecturer in Law, University of South Australia

Read more http://theconversation.com/csiro-wants-our-laws-turned-into-computer-code-heres-why-thats-a-bad-idea-130131

Writers Wanted

Love in the time of algorithms: would you let your artificial intelligence choose your partner?

arrow_forward

A Brief Overview of Australian Gun Laws

arrow_forward

The Conversation
INTERWEBS DIGITAL AGENCY

Politics

Prime Minister's Remarks to Joint Party Room

PRIME MINISTER: Well, it is great to be back in the party room, the joint party room. It’s great to have everybody back here. It’s great to officially welcome Garth who joins us. Welcome, Garth...

Scott Morrison - avatar Scott Morrison

Prime Minister Interview with Ben Fordham, 2GB

BEN FORDHAM: Scott Morrison, good morning to you.    PRIME MINISTER: Good morning, Ben. How are you?    FORDHAM: Good. How many days have you got to go?   PRIME MINISTER: I've got another we...

Scott Morrison - avatar Scott Morrison

Prime Minister Interview with Kieran Gilbert, Sky News

KIERAN GILBERT: Kieran Gilbert here with you and the Prime Minister joins me. Prime Minister, thanks so much for your time.  PRIME MINISTER: G'day Kieran.  GILBERT: An assumption a vaccine is ...

Daily Bulletin - avatar Daily Bulletin

Business News

Getting Ready to Code? These Popular and Easy Programming Languages Can Get You Started

According to HOLP (History Encyclopedia of Programing Languages), there are more than 8,000 programming languages, some dating as far back as the 18th century. Although there might be as many pr...

News Co - avatar News Co

Avoid These Mistakes When Changing up Your Executive Career

Switching up industries is a valid move at any stage in your career, even if you’re an executive. Doing so at this stage can be a lot more intimidating, however, and it can be quite difficult know...

News Co - avatar News Co

4 Costly Mistake To Avoid When Subdividing Your Property

As a property developer or landowner, the first step in developing your land is subdividing it. You subdivide the property into several lots that you either rent, sell or award to shareholders. ...

News Co - avatar News Co



News Co Media Group

Content & Technology Connecting Global Audiences

More Information - Less Opinion