Research Tilburg Law School

Classically, regulation targets human behavior. In an era of Big Data, artificial intelligence, and robotics which shape and sometimes even replace human behavior, however, the classic regulatory paradigm is challenged in fundamental ways. This research program aims to map, understand, and – to the extent possible – help shape the shift from a human-centric regulatory paradigm to a data-centric regulatory paradigm.

This project recognizes the importance of human behavior and human decision-making, but challenges the assumption that regulation should continue to primarily be focused on facilitating adequate human decision-making. Rather, the shift towards automated decision-making—with its conflation of norm-setting and norm-enforcement—may require a more fundamental rethinking of the regulatory paradigm.

To this purpose three research lines are pursued focusing on key elements of regulation shifting from a human behaviour and human relations to data relations and the behaviour of data systems:

• how rules can be formulated and enforced, 
• which concepts can be used in regulation, and
• and which values are vital.

Website

www.sectorplandls.nl

Publications

Latest publications of this research program

Follow this project at the website Digital Legal Lab

Catastrophic environmental degradation is the most urgent global challenge for humanity today, and facing it demands major societal transformations at all levels.

Ours is the era of the Anthropocene, a geological period in which man is the dominant influence  on the world around us to such a degree that our legal frameworks have become inadequate to manage the risks. Distressingly little thought has been given to the legal implications of the transformations that the Anthropocene is demanding of us.

Our key hypothesis is that it is inadequate to simply and uncritically ‘globalize’ our current understandings of law and governance to face this challenge. First, it is necessary to reconsider the concept and dimensions of a decision-making collective that includes nature and future generations. Second, we will need to reconfigure our notions of territorial jurisdiction in ways that overcome the simple division between the global and the local by instead positing distinctions in terms of the sustainability of earth systems.

This project aims at generating new concepts alongside new regulatory and institutional models. These ideas are being harnessed and developed within networks of key academic, professional, and policy actors. The project will also devise ways to educate the next generation of lawyers and legal scholars.

Publications

Latest publications of this research program

Citizens and NGOs are increasingly addressing courts to force governments to change policy. This can be seen as an expression of the will to participate in public-decision making other than through voting and relying on the representative democracy. The reason this is happening has to do with a decline of the primacy of parliament in the legislative process both at the national and the European level.

Due to the pace of technological development, the legislature also relies increasingly on skeleton legislation and far-reaching delegation of regulatory tasks to non-elected executive agencies and private regulators. This forces courts to step in and act as regulatory watchdogs and more than occasional rulemakers where legislators fail to act, as is for example the case with regard to climate change law.

This research project concentrates on the increasing role of judicial lawmaking in a changing world. The traditional argument against judicial lawmaking and courts acting as more than ‘occasional legislators’ is that courts have no democratic legitimacy. This project, however, starts from the presumption that societal changes could change the role of courts legitimately.

What could it mean for courts to act as quasi legislators? What methods of lawmaking in a multilevel legal order can they apply and how do they seek legitimacy for their decisions? Besides answering these questions special attention is paid to the role of empirical data and scientific evidence to support judicial law making, and to how courts try to take into account the possible consequences of different possible decisions for society via, for instance, amicus curiae letters and court hearings.

Program leaders

• Rob van Gestel
• Jurgen de Poorter