Legal Reasoning and Adjudication

This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does not suffice for legal (...) proof. I then introduce and motivate a knowledge-centred explanation of this fact. The knowledge-centred explanation rests on two premises. The first is that legal proof requires knowledge of culpability. The second is that one cannot attain knowledge that p from bare statistical evidence that p. To motivate the second premise, I suggest that beliefs based on bare statistical evidence fail to be safe—they could easily be wrong—and bare statistical evidence cannot eliminate relevant alternatives. -/- I then cast doubt on the first premise; I argue that legal proof does not require knowledge. I thereby dispute the knowledge-centred explanation of the inadequacy of bare statistical evidence for legal proof. Instead of appealing to the nature of knowledge, I suggest we should seek a more direct explanation by appealing to those more foundational epistemic properties, such as safety or eliminating relevant alternatives. (shrink)

The present work deals with the problem that negligence poses for the relationship between agency and responsibility, that is, it is not possible to establish a sharp connection between the agent’s guilty mind and the wrongful situation. A critical examination of the various strategies that attempt to deal with this problem is presented, and an ascriptivist conception of action and responsibility, as well as the distinction between conduct rules and imputation rules, is developed to address the problem. As a result, (...) a complex theory of agency is defended, the distinction between tracing and non-tracing cases is supported, and it is proposed to understand the latter under the social and normative aspects of agency. (shrink)

Jury nullification, in its simplest definition, occurs when a jury returns a not guilty verdict for a defendant it believes to be legally guilty of the crime charged. To put this explicitly, a jury nullifies when, despite believing both a) that the defendant did, beyond a reasonable doubt, commit the act/omission in question, and b) that such behavior is, in fact, prohibited by law, nevertheless declares the defendant innocent. This book explores the specifically philosophical aspects of the phenomenon. Is jury (...) nullification a right? A power? A mere ability? A privilege? A pernicious form of juror malfeasance? Is a system that allows for jury nullification more, or less just, than one that does not? -/- This important book fills a gap in the current scholarship around jury nullification, which, for the most part, has been confined to purely doctrinal analyses, rather than the broader ethical, social, political, and philosophical contours of this issue. (shrink)

This volume traces the modern critical and performance history of this play, one of Shakespeare's most-loved and most-performed comedies. The essay focus on such modern concerns as feminism, deconstruction, textual theory, and queer theory.

Ratio Juris, Volume 35, Issue 1, Page 3-20, March 2022.

The counter majoritarian difficulty is one of the main objections against the judicial review. In this paper, this objection is analyzed from the standpoint of the norm formulation/norm distinction. By stressing the distinc- tion between norm formulations and norms, I claim that when judicial review prevents the application of a norm to an individual case the counter majoritarian difficulty objection does not hold.

In the field of Evidence Law the relation between truth and law has been a somewhat non- debated topic in the past years. It is a given that such a connection exists and, it is understood as the notion of the ascertainment of the truth of disputed questions of fact through legal evidence. The thesis that I have reconstructed in this paper has been presented by Prof. Jordi Ferrer who grounds the connection between truth and law in the role of (...) the legal system as a tool for guiding the behavior of the governed. I call this thesis the theory of the structural clause of truth. In this paper I shall present a possible reconstruction of this theory, I shall raise two objections against it and I shall present five possible interpretations of the relation between truth and law. (shrink)

This book offers a transnational perspective of evidentiary problems, drawing on insights from different systems and legal traditions. It avoids the isolated manner of analyzing evidence and proof within each Common Law and Civil Law tradition. Instead, it features contributions from leading authors in the evidentiary field from a variety of jurisdictions and offers an overview of essential topics that are of both theoretical and practical interest. The collection examines evidence not only as a transnational field, but in a cross-disciplinary (...) context. Each chapter engages with the interdisciplinary themes cutting through the issues discussed, benefiting from the expertise and experience of their diverse authors. (shrink)

In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...) neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, or as inductive arguments, or both, and if so how. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This paper argues that objectivism faces serious problems as it cannot deal with disagreement: Reasonable and rational people can often disagree as to what the interpretation of a (...) text should be. It also defends subjectivism against criticisms by objectivists. (shrink)

This collection contains studies on justice, juridical reasoning and argumenta tion which contributed to my ideas on the new rhetoric. My reflections on justice, from 1944 to the present day, have given rise to various studies. The ftrst of these was published in English as The Idea of Justice and the Problem of Argument. The others, of which several are out of print or have never previously been published, are reunited in the present volume. As justice is, for me, the (...) prime example of a "confused notion", of a notion which, like many philosophical concepts, cannot be reduced to clarity without being distorted, one cannot treat it without recourse to the methods of reasoning analyzed by the new rhetoric. In actuality, these methods have long been put into practice by jurists. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof. It is important, then, that philosophers should not limit their methodologi cal studies to mathematics and the natural sciences. They must not neglect law in the search for practical reason. I hope that these essays lead to be a better understanding of how law can enrich philosophical thought. CH. P. (shrink)

Informatics and the Foundations of Legal Reasoning represents a close collaboration between a wide range of disciplines and countries. Fourteen papers, together with a long analytical introduction by the editors, were selected from the contributions of legal theorists, computer scientists, philosophers and logicians who were members of an International Working Group supported by the European Commission. The Group was mandated to work towards determining how far the law is amenable to formal modeling, and in what ways computers might assist legal (...) thinking and practice. The book is the result of discussions held by the Group over two and half years. It will help students and researchers from different backgrounds to focus on a common set of topics of increasing general interest. It embodies the results of work in progress and suggests many issues for further discussion. A stimulating text for undergraduate and graduate courses in law, philosophy and computer science departments, as well as for those interested in the place of computers in legal practice, especially at the international level. (shrink)

What does anyone know after a trial, after a witness gives testimony, or even after seeking the counsel of a lawyer? Hopefully, the answer to these questions has something to do with the truth. Legal systems claim to have truth-seeking functions. Lawyers have specific roles in the procedures by which legal systems seek the truth and these roles are informed by the norms of legal practice. Yet, lawyers' relationship to truth and knowledge remains underexplored in the philosophy of lawyering. I (...) argue that the philosophy of lawyering needs to develop the epistemic branch of inquiry. The epistemic study of the legal profession offers both enrichment of this applied field of philosophy itself and the opportunity for the philosophy of lawyering to link up with a nexus of emerging scholarship about cognition in legal systems and legal services especially metacognition in legal pedagogy and behavioural legal ethics. Advancing an epistemic approach to the philosophy of lawyering, I study the way in which the lawyer is involved in the adversarial systems truth-seeking function. My theory of lawyering is informed by recent scholarship in social epistemology and virtue epistemology. I propose a normative epistemology of lawyering, meaning specifically that my approach speaks to the professional character development of the lawyer. In the adversarial system of adjudication, lawyers can support the truth-seeking function of the system by developing the intellectual virtues of an epistemic partisan. I put my proposal to the test against Monroe Freedmans Client Perjury Trilemma, reaching new conclusions about the responses to the famous problem. Ultimately, I call for a commitment to professional character formation in service of the legal systems search for truth. (shrink)

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what (...) there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve (...) the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)

What is the role and value of virtue, emotion and imagination in law and legal reasoning? These new essays, by leading scholars of both law and philosophy, offer striking and exploratory answers to this neglected question. The collection takes a holistic approach, inquiring as to the connections and relations between virtue, emotion and imagination. In addition to the principal focus on adjudication, essays in the collection also engage with a variety of different legal, political and moral contexts: eg criminal law (...) sentencing, the Black Lives Matter movement and professional ethics. A number of different areas of the law are addressed and the issues explored include: the benefits and limits of empathy in legal reasoning; the role of attention and perception in judicial reasoning;, the identification of judicial virtues and judicial vices ; the values and dangers of certain imaginative devices ; and the interactive and social dimensions of virtue, emotion and imagination. (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies, has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. (...) We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

In this paper I argue that textualism is far less attractive as a theory of written law than some of its modern proponents think. For it is not usually sensible to expect the grammatical meaning of a provision to determine its appropriate legal meaning. Factors that are unrelated to grammar in the identification of law (e.g., legal theory, context) do too much of the work. **Draft -- acknowledgments welcome, but please do not cite.**.

This article aims to evaluate the contribution of Bentham’s ideas to the jurisprudential debate in view of their relevance vis a vis their contemporary reception. The focus is on Bentham’s revolutionary idea of publicity with its spill-over effects on contemporary debates on the rule of law and accountable and transparent governance. As far as the method is concerned, after having examined Bentham’s ideas on the rule of law and the debate they raised, the focus in the second section of this (...) article is specifically on his conception of publicity. Some critical remarks then show that Bentham’s focus on publicity and transparency has been rightly interpreted in the contemporary debate as an important contribution. However, it is their justification that it is judged to be problematic. In fact, the assessment of the fundamental importance of publicity for the rule of law and transparent and accountable governance leads to a critical engagement with contemporary readings of Bentham’s scholarship, in primis that of Gerald Postema, with a development of the latter’s republican interpretation. The direction of travel that is proposed is towards a more liberal republicanism. The article not only shows how Bentham’s contribution should be revaluated in view of contemporary interpretations, but also proposes directions for further research developments according to which contemporary conceptions of regulation need to take a reflexive turn while aiming at legitimate legality at the same time. (shrink)

In 'The Standard Picture and its Discontents', Mark Greenberg remarks that the typical way that legal theorists think about legal obligations does not sit well with the way the common law works. I argue that Alexander's and Sherwin’s Rule Model of precedent can deal with all the problems that Greenberg accuses the Standard Picture of having. Nonetheless, I further argue that combining the Standard Picture and the Rule Model ultimately leads to another problem: the inability of the Standard Picture – (...) Rule Model to separate rule from dicta. (shrink)

The new evidence scholarship addresses three distinct approaches: legal probabilism, Bayesian decision theory and relative plausibility theory. Each has major insights to offer, but none seems satisfactory as it stands. This paper proposes that relative plausibility theory be modified in two substantial ways. The first is by defining its key concept of plausibility, hitherto treated as primitive, by generalising the standard axioms of probability. The second is by complementing the descriptive component of the theory with a normative decision theory adapted (...) to legal process. Because this version of decision theory is based on plausibilities rather than probabilities, it generates plausibilistic expectations as outputs. Because these outputs are comparable, they function as relative plausibilities. Hence the resulting framework is an extension of relative plausibility theory, but it retains deep ties to legal probabilism, through the proposed definition of plausibility, and to Bayesian decision theory, through the normative use of decision theory. (shrink)

The notion of risk plays a central role in economics, finance, health, psychology, law and elsewhere, and is prevalent in managing challenges and resources in day-to-day life. In recent work, Duncan Pritchard (2015, 2016) has argued against the orthodox probabilistic conception of risk on which the risk of a hypothetical scenario is determined by how probable it is, and in favour of a modal conception on which the risk of a hypothetical scenario is determined by how modally close it is. (...) In this article, we use Pritchard’s discussion as a springboard for a more wide-ranging discussion of the notion of risk. We introduce three different conceptions of risk: the standard probabilistic conception, Pritchard’s modal conception, and a normalcy conception that is new (though it has some precursors in the psychological literature on risk perception). Ultimately, we argue that the modal conception is ill-suited to the roles that a notion of risk is required to play and explore the prospects for a form of pluralism about risk, embracing both the probabilistic and the normalcy conceptions. (shrink)

In classical American pragmatism, fallibilism refers to the conception of truth as an ongoing process of improving human knowledge that is nevertheless susceptible to error. This paper traces appearances of fallibilism in Jewish thought in general, and particularly in the halakhic thought of Eliezer Berkovits. Berkovits recognizes the human condition’s persistent mutability, which he sees as characterizing the ongoing effort to interpret and apply halakhah in shifting historical and social contexts as Torat Ḥayyim. In the conclusion of the article, broader (...) questions and observations are raised regarding Jewish tradition, fallibility, and modernity, and the interaction between Judaism and pragmatism in the history of ideas. (shrink)

Traditional philosophical discussions of knowledge have focused on the epistemic status of full beliefs. In this book, Moss argues that in addition to full beliefs, credences can constitute knowledge. For instance, your .4 credence that it is raining outside can constitute knowledge, in just the same way that your full beliefs can. In addition, you can know that it might be raining, and that if it is raining then it is probably cloudy, where this knowledge is not knowledge of propositions, (...) but of probabilistic contents. -/- The notion of probabilistic content introduced in this book plays a central role not only in epistemology, but in the philosophy of mind and language as well. Just as tradition holds that you believe and assert propositions, you can believe and assert probabilistic contents. Accepting that we can believe, assert, and know probabilistic contents has significant consequences for many philosophical debates, including debates about the relationship between full belief and credence, the semantics of epistemic modals and conditionals, the contents of perceptual experience, peer disagreement, pragmatic encroachment, perceptual dogmatism, and transformative experience. In addition, accepting probabilistic knowledge can help us discredit negative evaluations of female speech, explain why merely statistical evidence is insufficient for legal proof, and identify epistemic norms violated by acts of racial profiling. Hence the central theses of this book not only help us better understand the nature of our own mental states, but also help us better understand the nature of our responsibilities to each other. (shrink)

This is an examination of similarities and differences between Atocha Aliseda's semantic tableaux analysis of abduction and Dov Gabbay's and the present author's ignorance-preservation model of it. Also discussed is the suitability of these models for the analysis of the logical structure of legal reasoning.

This is a review of Shiffrin's _Speech Matters_.

The present series of studies examine how jurors and public defenders evaluate different pieces of evidence and integrate them into a coherent conclusion within the context of a criminal case. Previous research has shown that in situations where both sides of the case are compelling, decision-makers nevertheless come to highly confident and polarized decisions, called coherence shifts. The present research sought to expand on coherence effects, improve upon the methodology of previous studies, and explore potential moderators of coherence. In Study (...) 1, mock jurors read about a criminal case and evaluated multiple pieces of evidence at various points throughout the case. Results indicated that participants exhibited pronounced coherence shifts became more consistent as the case progressed, and were evaluated in line with their initial leanings) using an improved methodology that randomized evidence order and evidence valence. Furthermore, participants’ interim leanings of guilt or innocence biased their subsequent evaluations of ambiguous evidence. The direction and magnitude of participants’ coherence shifts were predicted by their pretrial dispositions towards prosecution and defense. Participants lacked awareness of how their perceptions of the evidence have shifted. Coherence shifts were not, however, moderated by asking mock jurors to justify their decisions, or by asking mock jurors to play devil’s advocate while considering each piece of evidence, underscoring the pervasiveness of this cognitive bias. Study 2 examined whether actual public defenders experience coherence shifts and how those shifts relate to the plea bargaining process; however, no coherence shifts were observed. Study 3 examined whether the timing of the defense’s presentation of their case could reduce coherence effects; results indicated that reading about the defense’s case immediately after the prosecution’s case marginally reduced coherence effects among jurors who acquitted the defendant, suggesting one potential strategy to mitigate this bias. (shrink)

Many important regulatory decisions are taken by professionals employing limited and conflicting evidence. We conduct an experiment in a merger regulation setting, identifying the role of different standards of proof, volumes of evidence, cost of error and professional or lay decision making. The experiment was conducted on current practitioners from 11 different jurisdictions, in addition to student subjects. Legal standards of proof significantly affect decisions. There are specific differences because of professional judgment, including in how error costs and volume of (...) evidence are taken into account. We narrow the range of explanations for why professional decision making matters. (shrink)

本书讲述了逻辑基础知识和有关逻辑知识在法学领域的应用。内容包括概念的一般逻辑知识及其应用、命题的一般特征、性质命题、复合命题、规范命题、推理的概述等等.

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune to (...) the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication. (shrink)

I shall argue that software agents can be attributed cognitive states, since their behaviour can be best understood by adopting the intentional stance. These cognitive states are legally relevant when agents are delegated by their users to engage, without users’ review, in choices based on their the agents’ own knowledge. Consequently, both with regard to torts and to contracts, legal rules designed for humans can also be applied to software agents, even though the latter do not have rights and duties (...) of their own. The implications of this approach in different areas of the law are then discussed, in particular with regard to contracts, torts, and personality. (shrink)

This article presents a critical assessment of Herring v. United States, 129 S.Ct. 695 (2009), holding the Fourth Amendment exclusionary rule inapplicable whenever "the error was the result of isolated negligence attenuated from the arrest." The opinion of the Chief Justice for the majority is criticized as (1) falsely claiming that cost/benefit balancing is an established basis for selectively applying the exclusionary rule at a criminal trial because of a police violation of the Fourth Amendment; (2) falsely representing that the (...) Court's precedents support the proposition that the exclusionary rule may be selectively applied depending upon the degree of "culpability" attending the Fourth Amendment violation; (3) asserting as a foregone conclusion, without an iota of supporting analysis or evidence, the proposition that application of the exclusionary rule in instances of a negligent violation of the Fourth Amendment has a reduced "deterrent effect"; (4) purporting to cabin the holding by requiring that the negligence also be "attenuated," but doing so only by passing reference and without any explanation of what attenuation means in the instant or any other case or why attenuation is relevant to the critical reduced "deterrent effect" conclusion; and (5) inflicting upon trial and appellate courts new and uniquely difficult tasks to be performed in adjudicating Fourth Amendment claims. (shrink)

Abandonment of a belief in the objectivity of knowledge, along with the postmodernist assertion that language, truth and power are not only inextricably joined but malleable has left us with a sense of profound uncertainty. This pervasive doubt extends to virtually all realms, including law. The sense of uncertainty causes us to struggle over the application of indeterminate rules written in indeterminate language and applied to indeterminate contexts. At the core of our uncertainty is the fact that once our most (...) important legal doctrines were disconnected from any belief in divine or natural sources of right and wrong, sources that existed independent of humanity but to which we are subject, nothing of consensual substance has replaced those strong belief systems. The challenge is that in relation to all issues of social consequence choices must be made even though there are no clear formulae to guide us. In law, those who purport to be able to identify certainty in interpretation, such as Justice Antonin Scalia, themselves offer only relativistic methods that are just as vulnerable to attack as vague or biased as the choices made by those they criticize. While the disconnection between law, natural law and divinity is rationally and evidentially justifiable in terms of our being unable to “prove” that God or an overarching system of natural law exists based on methods acceptable to our “modern” post-Enlightenment community, we have nothing to replace the value system represented by the magic of faith, mystery and myth other than resort to political power. Nor is it likely we can reinvent a strong consensual source for law and fundamental values. With the resulting moral vacuum this means that, since law is a primary method of power in Western society, gaining control of the institutions by which law is created, interpreted and applied is central to the strategies of competing factions. The dilemma is that the struggle to control law and legal institutions is weakening the hidden or tacit order of the Rule of Law by undermining respect for law and reducing our ability to compromise. (shrink)

In this paper, we describe the use of legal ontologies as a basis to improve IT support for professional judges. As opposed to most legal ontologies designed so far, which are mostly based on dogmatic and normative knowledge, we emphasize the importance of professional knowledge and experience as an important pillar for constructing the ontology. We describe an intelligent FAQ system for junior judges that intensively use the ontology.

H. L. A. Hart and the "Open Texture" of Language tries to clarify the writings of both Hart and Friedrich Waismann on "open texture". In Waismann's work, "open texture" referred to the potential vagueness of words under extreme (hypothetical) circumstances. Hart's use of the term was quite different, and his work has been misunderstood because those differences were underestimated. Hart should not be read as basing his argument for judicial discretion on the nature of language; primarily, he was putting forward (...) a policy argument for why rules should be applied in a way which would require that discretion. (shrink)

In this article we describe two core ontologies of law that specify knowledge that is common to all domains of law. The first one, FOLaw describes and explains dependencies between types of knowledge in legal reasoning; the second one, LRI-Core ontology, captures the main concepts in legal information processing. Although FOLaw has shown to be of high practical value in various applied European ICT projects, its reuse is rather limited as it is rather concerned with the structure of legal reasoning (...) than with legal knowledge itself: as many other “legal core ontologies”, FOLaw is therefore rather an epistemological framework than an ontology. Therefore, we also developed LRI-Core. As we argue here that legal knowledge is based to a large extend on common-sense knowledge, LRI-Core is particularly inspired by research on abstract common-sense concepts. The main categories of LRI-Core are: physical, mental and abstract concepts. Roles cover in particular social worlds. Another special category are occurrences; terms that denote events and situations. We illustrate the use of LRI-Core with an ontology for Dutch criminal law, developed in the e-Court European project. (shrink)

Many scholars have written about the changes in international humanitarian law in recent years. Many have seen this change in the environment of International humanitarian law as a result of greater application of human rights in this area of law. This article approaches the changes in international humanitarian law from a different perspective, that of law and economics. The main claim in this article is that recent changes in international humanitarian law could be seen as a change from a rule (...) based normative system, to a standard based one. The differences between a rule system and a standard system lie not in the complexity of the norms, but in the questions of who makes decisions and when are decisions taken. In a rule - the decisions are taken before the fact, and in a standard - after the fact. This article then evaluates the advantages and disadvantages of this move from rules to standards, and offers some observations and future possibilities for research. (shrink)

I search for an ability of appellate courts to apply the law. I provide the reader with an intuitive understanding of Kenneth Arrow's Impossibility Theorem, a severe mathematical proof relevant to all decision-making processes. I show its relevance for jurisprudential theory. I show how the proof has been misunderstood and underappreciated in legal thought. I then show why appellate courts cannot apply the law: since appellate courts make decisions through a group of members casting equal votes, appellate interpretations are severely (...) limited to certain characteristics. The Arrovian result is that judges, like any group making a decision, compromise based on the power of their subjective preferences, and not on any objective application of a law. Practically, this analysis shows the most controversial cases in law are problematic and predictably irreconcilable - if not seemingly hypocritical - but there is a mathematical and inherent reason for this. The basis for the inconsistency is not necessarily insincerity or deceit by judges, nor even some contemptible strategy by those who appoint them. Rather, institutional limitations interrupt the communal aspirations of group decision-making in our courts. (shrink)

Argues that some important problems in the theory of legal interpretation can be resolved with three techniques that John Finnis used in Natural Law and Natural Rights to address a methodological problem in jurisprudence: (1) The analogy principle: The application of a word such as “friendship” or “law” is not based on a set of features shared by each instance, but is based on similarities of a variety of kinds, seen by the people who use the words as justifying the (...) extension of the word. (2) The paradigm (or central case) principle: You cannot understand a word like “friendship” or “law” without seeing what counts as a good instance of friendship or law. (3) The context principle: What counts as a good instance depends on the context in which the word is to be used, and on the concerns and purposes which justify the use of the word. (shrink)

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative (...) inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept or theory of law that so truncated its account of the juridical, and of the sources of legal reasoning, that it could provide little or no guidance in situations of legal difficulty. The paper suggests that these flaws result, to some significant extent, from the skeptical doubts about morality evident particularly in his later work. All this has implications for the kind of approach to law and legal theory often self-described as positivist. (shrink)

Legislation usually lacks a systematic organization which makes the management and the access to norms a hard problem to face. A more analytic semantic unit of reference (provision) for legislative texts was identified. A model of provisions (provisions types and their arguments) allows to describe the semantics of rules in legislative texts. It can be used to develop advanced semantic-based applications and services on legislation. In this paper an automatic bottom-up strategy to qualify existing legislative texts in terms of provision (...) types is described. (shrink)

Access to legal information and, in particular, to legal literature is examined for the creation of a search and retrieval system for Italian legal literature. The design and implementation of services such as integrated access to a wide range of resources are described, with a particular focus on the importance of exploiting metadata assigned to disparate legal material. The integration of structured repositories and Web documents is the main purpose of the system: it is constructed on the basis of a (...) federation system with service provider functions, aiming at creating a centralized index of legal resources. The index is based on a uniform metadata view created for structured data by means of the OAI approach and for Web documents by a machine learning approach, which, in this paper, has been assessed as regards document classification. Semantic searching is a major requirement for legal literature users and a solution based on the exploitation of Dublin Core metadata, as well as the use of legal ontologies and related terms prepared for accessing indexed articles have been implemented. (shrink)

In their adversely critical attitude towards administrative agencies, many lawyers and judges disclose a distrust of the expert, the specialist. That distrust is curious, for the position of our profession in society rests on the fact that we ourselves are specialists.In the famous colloquy which is said to have occurred about three hundred years ago between King James I and Judge Coke, the King remarked that, if “law was founded upon reason, he and others could reason as well as the (...) judges,” and Coke loftily replied that lawsuits “are not to be decided by natural reason, but by the artificial reason and judgement of the law, which law is an art that requires long study and experience before that a man can attain to the cognizance of it.” The King, an intelligent amateur, was angered, for doubtless he saw that, as McIlwain observes, “if... the law was to be supreme, at the same time a mystery open only to the initiated, it is clear that, if the claim of the lawyers were to be admitted, the supreme authority would be their exclusive possession.” Demos, now King, sometimes echoes James’ anger at the idea of a government of lawyers, not of men. (shrink)

Abduction is or subsumes a process of inference. It entertains possible hypotheses and it chooses hypotheses for further scrutiny. There is a large literature on various aspects of non-symbolic, subconscious abduction. There is also a very active research community working on the symbolic (logical) characterisation of abduction, which typically treats it as a form of hypothetico-deductive reasoning. In this paper we start to bridge the gap between the symbolic and sub-symbolic approaches to abduction. We are interested in benefiting from developments (...) made by each community. In particular, we are interested in the ability of non-symbolic systems (neural networks) to learn from experience using efficient algorithms and to perform massively parallel computations of alternative abductive explanations. At the same time, we would like to benefit from the rigour and semantic clarity of symbolic logic. We present two approaches to dealing with abduction in neural networks. One of them uses Connectionist Modal Logic and a translation of Horn clauses into modal clauses to come up with a neural network ensemble that computes abductive explanations in a top-down fashion. The other combines neural-symbolic systems and abductive logic programming and proposes a neural architecture which performs a more systematic, bottom-up computation of alternative abductive explanations. Both approaches employ standard neural network architectures which are already known to be highly effective in practical learning applications. Differently from previous work in the area, our aim is to promote the integration of reasoning and learning in a way that the neural network provides the machinery for cognitive computation, inductive learning and hypothetical reasoning, while logic provides the rigour and explanation capability to the systems, facilitating the interaction with the outside world. Although it is left as future work to determine whether the structure of one of the proposed approaches is more amenable to learning than the other, we hope to have contributed to the development of the area by approaching it from the perspective of symbolic and sub-symbolic integration. (shrink)