Law has been said to serve competing goals, notably:
societal order, trust and predictability; based on the 'positivity' of law
treating equal cases equally, and unequal in proportion of their inequality; based on distributive and corrective justice
instrumentality in achieving policy goals; based on the prerogative of the democratic legislator
As Radbruch has noted, these goals are not always compatible in practice, requiring acuity in sustaining them as generic and constitutive principles of law while making justifiable decisions.
Legal protection refers to 'practical and effective' remedies for individuals to exercise their rights, making sure that substantive law strikes the right balance when addressing power imbalances, while procedural law sees to it that justice is done, legal certainty upheld and instrumentality safeguarded - also when economic or other power must be overruled. This entails that the research is based on a procedural conception of the Rule of Law, complementing the substantive and formal conceptions
Key Intermediate Goal 1: Legal Protection in Text-driven Law
The first key intermediate goal is targeted for the end of the second year, based on an in-depth study of current law’s text-driven nature which should result in a deeper understanding of legal protection in modern positive law.
This will involve a substantial reflection on how concrete legal protection (legal remedies, class action, redress in private/administrative/criminal law, consumer law, competition law, fundamental rights protection, the critical role of national and international jurisdiction), is premised on the affordances of a text-driven architecture.
At a deeper level, we will gain a more detailed understanding of how the force of law operates in a way that enables contestation while simultaneously providing legal certainty.
The output will form the input for a major international conference on legal protection in text-driven law, to be organised in Brussels at the end of 2020, with provocative keynotes on the cusp of legal theory and philosophy of technology, and based on a CfPs.
Key Intermediate Goals 2 and 3: Legal Protection in Data-Driven and Code-Driven Law
Halfway the fourth year two extended papers will be written that reflect on how data- and code-driven normativities may afford the kind of protection that is warranted under the Rule of Law, achieving a dynamic reflective equilibrium between more concrete proposals of legal protection by design and an inquiry into the scope and the meaning of the concept of legal protection by design.
This will include a first reflection upon the kind of methodological innovation that is warranted by computational law if it is to sustain the mode of existence of law as the Rule of Law. The papers will be authored by the legal team, with input from the computer science team, and used as input for the dissertations of the PhD students.
The papers will interact with two major international conferences on legal protection in data-driven law (end of 2021) and in code-driven law (end of 2022) in Brussels, with pivotal keynotes and based on a CfPs.