The Meaning and the Mining of Legal Texts

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Mireille Hildebrandt

(Hildebrandt, M.: The Meaning and the Mining of Legal Texts 16)

Notes

difference between human interpretation and computational pattern-recognition

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the mining process necessarily disambiguates the legal texts in order to transform them into a machine-readable data set

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algorithms used for the analysis embody a strategy that will co-determine the outcome

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due process concern

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normative bias that informs law

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The practice of law, however, seems engrossed in a hermeneutical approach to legal texts

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interpretation and context determine the meaning of the applicable legal text with regard to the case at hand, while the meaning of the case at hand is determined by the relevant legal text

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question to what extent a norm is reinterpreted and changed due to a decision on its application and to what extent a decision is constrained by the norm that is expected to regulate it

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decisions often posit the norm that rules them

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interpretations may have legal effect and thus always anticipate decision-making

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arguments that can be used are limited to those grounded in the authoritative legal sources

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assumption of coherence and constitutional compliance cannot be understood as something to be taken for granted

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‘solution’ that fits and adjusts the system in a manner consistent with what Montesquieu once called ‘the spirit of the laws’

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Normativity of legal texts

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normativity of this undertaking must, however, not be confused with moralism

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integrity of the law, which goes one step further than mere consistency

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integrity adds a measure of discretion that is typical for judgement, as compared to mere application

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judgement must be exercised by ‘mining’ the principles and policies that implicitly inform the relevant body of law

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moral dimension of the law

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law is more and less than logic

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legal tradition that values practical wisdom based on human experience over mere logical rigor

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Measurabilities

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Can we measure the lawfulness or even the justice of a verdict?

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granularity of wrongfulness

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Can punishment be calculated in precise measure to the causality, wrongfulness, and culpability of an action? Or rather should we calculate the type and measure of punishment in accordance with its effectiveness

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liability for toxic waste or occupational diseases where only epidemiological inferences are available, providing evidence in probabilistic terms

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productive nature of a normative bias and the need to reflect and review our normative inclinations as part of a fragile but all the more important dimension of human society

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The point is not to get lost in sterile debates on subjectivism but to acknowledge the normative underpinnings

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Not-reading

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difference the process of ‘not-reading’ makes to the subsequent reading of texts deemed relevant

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get our finger behind those assumptions

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Machine learning delivers new texts – trees, graphs, and scatter-grams – that are not any easier to make sense of than the original texts used to make them

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In relation to the mining of legal text, due process would signify the effective right to contest a specific interpretation of the law

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To grasp the standards against which her actions are measured, a citizen too must be empowered to ‘read’ and scrutinise the data-mining techniques that co-determined the outcome of her case.

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