Governing Governance: A Formal Framework for Analysing Institutional Design and Enactment Governance

in the highest–level institutions and the most concretely defined in the lowest–level institutions. To give an example, at the (typically) highest level of governance human rights charters use abstract terminology such as ‘fairness’ or ‘privacy’ which can have many different interpretations. At a slightly lower–level, such as supranational agreements or EU directives, the terminology is more precise but countries can comply in different concrete ways. For example, the Data Retention Directive [71] states that member states should legislate for communications metadata (e.g. the time of a phone call) to be stored between 6 and 24 months. The directive’s regulation is far clearer than human rights regulations, but does not provide the precise data retention time. At a slightly lower–level, such as at the level of nation–states, regulations are more concrete. For example, providing a precise time in which data should be stored. In multi–level governance increasingly abstract regulations are prescribed at increasingly higher levels of governance which can be interpreted in many different ways, making determining compliance of institutional designs different from determining compliance of a society’s members. Institutional design compliance is determined by legal monitors such as courts, which interpret concrete regulations to determine if they violate more abstract regulations. To give an example, the European Court of Justice [70] determined that the Data Retention Directive’s relatively concrete requirement for communications metadata to be stored violated the EU Human Rights Charter’s requirement for personal data to be processed fairly [72]. The judgement was based on the interpretation that storing metadata was the same as storing personal data, and storing personal data without someone’s consent was the same as processing data unfairly. In a different context, where someone has given consent, storing personal data would not be unfair data processing. Hence, a relationship between concrete concepts having a context–sensitive abstract meaning is used to determine compliance between concrete and abstract regulations. According to the Searlian institution concept we adopt, the context–sensitive rules linking concrete and abstract social facts are constitutive rules. Hence, the relation between concrete and abstract norms as found in multi–level governance is derived from constitutive rules. To summarise, institutions govern the design of other institutions in what is known as multi–level governance, the main points are: • Constitutive rules provide context–sensitive links between concrete and abstract concepts and through a derivation, concrete and abstract norms. Chapter 3 and Chapter 4 adopt constitutive rules to determine links between concrete and abstract norms in different social contexts. • In multi–level governance abstract regulations at higher–levels are used to govern concrete regulations at lower–levels. Non–compliant concrete regulations results in punishment. Chapter 3 and Chapter 4 look at formalising and automatically detecting (non–)compliance in multi–level governance. The objective is to flag problems to institution designers before they enact non–compliant institutions (and hence are subject to punishment) and to support higher–levels of governance in monitoring the compliance of lower–level institution designs. In order to support institutional designers in enacting compliant designs, Chapter 5 looks at finding explanatory rectifications for non–compliant institutional designs. • Enforcement should be ensured for regulation governing regulations in two senses. 2.2. GOVERNING MULTI–AGENT SYSTEMS 29 Firstly, the regulation governing regulations should be supported with rewards and/or punishments. We do not look specifically at formalising reward and punishment for regulation governing regulations, but the fact that it should and does exist motivates the contribution of automated compliance checking in Chapter 3 and Chapter 4. Secondly, regulations governing regulations issued by higher-level authorities really require that lower-level authorities do not just implement certain regulations in order to be compliant, but also enforce those implemented regulations. We do not formalise the general principle of both implementation and enforcement required by regulation governing regulations, but we do formalise the specific requirement of the Data Retention Directive [71] to be supported with punishments for non-compliance in Chapter 3 and Chapter 4. GOVERNING THE INSTITUTION DESIGN PROCESS: CONSTITUTIVE SECONDARY LEGAL RULES ASCRIBING RULE CHANGE Constitutive rules define how a social reality grows out of brute facts describing the ground truth. Moreover, constitutive rules make certain social actions, such as marriage, possible. Since brute facts (the ground truth) are liable to changing, it follows that the social reality is liable to changing too and so too the social actions that are possible. Consequently, constitutive rules both describe how the social reality is built and how it evolves over time. Biagoli [20] views an institution itself as having similar dynamic qualities, referring to institutions (legal systems) as organic sets of rules that in themselves change over time. Constitutive rules regulate the change of the social reality but are also subject to changing themselves. According to Hart [117] the complexity of institutions necessitates institutional rules with the sole function to regulate rule change. Hart refers to these rule–change regulating rules as secondary rules. Secondary rules state how and when rules can be changed, modified, repealed and by whom. To give an example, the Italian constitution states that after a law is voted to be enacted by one of the houses of government it is [204][Art. 73] “promulgated by the President of the Republic within one month of their approval”. Such rules regulate rule change by describing the institution design process that must be followed for rule changes to take place. In other words, rules exist with the exclusive function to state what actions constitute rule changes and thereby make the social actions of changing institutional rules possible. Biagoli [20] views rules regulating rule change as constitutive rules that ascribe what constitutes a rule change. From this perspective, a physical rule change does not necessarily count–as a rule change. Physically changing a rule in the Italian rule book (i.e. writing it down) does not count–as changing the rule on its own. Rather, only the president approving a law previously voted for by one of the government houses counts–as a rule change, making the social action of rule change possible. Following this idea, just as constitutive rules ascribe a social reality, making the social reality possible, constitutive rules ascribing rule change make rule changes possible. An analogy can be made to Ricciardi’s argument [206] of the rules of chess constituting the game of chess where moves made outside of chess’ rules can physically be made but then the game of chess is not being played. Likewise, physical rule modifications can be made that do not follow an institution’s constitutive rule change rules, but then according to the