Organising Concepts in Law: A Typology and Lessons for Data Protection
Posted: 18 Feb 2021 Last revised: 20 May 2021
Date Written: January 16, 2020
The paper identifies a gap in understanding the various types of concepts in law. Filling in this gap is particularly important when the law is challenged by technological change. Building on the work of Black and Schauer on structure of legal norms (or any regulatory norms), literature on regulation of technology and social science and legal theory literature on causation, this contribution offers a typology of such concepts. Three types of concepts are identified: boundary-markers reflecting the desired outcomes of the law, operational concepts reflecting factors in causal relationship to the outcomes, and indicators, more precise concepts standing for either boundary-markers or operational concepts that are on their own not sufficiently precise. The value of such a typology and understanding of concepts in law is that they help assess regulatory regimes on the matter of their internal consistency, and serve as a roadmap for reforming or rebuilding the law when it is put under strain, e.g. by technological change. To illustrate this point, I apply the typology to the case of data protection law. Two fundamental challenges are identified there: its goals are everything and nothing in particular, and its regulatory overreach due to a broad notion of personal data. That is, data protection has no clear boundary-marker, and the choice of ‘personal data’ as an operational concept is questionable. I deconstruct the concept of personal data to show how the potential boundary markers of data protection could be found, and the law restructured.
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