The Meanings of the Logical Constants in Deontic Logic

If deontic logic is to cast light on any of the normative sciences, such as legal reasoning, then certain problems regarding its logical constants must be faced. Recent studies in the area of deontic logic have tended to assume that it is our responses to the "paradoxes" of deontic implication which are fundamental to resolving problems with the use of deontic logic to investigate various branches of normative reasoning. In this paper I wish to show that the paradoxes are of secondary importance; that they are merely by-products of the central issue, namely the ability of certain syntactic forms to embody natural language structures used in reasoning about norms. An investigation of modal syntax is proffered as the best starting-point from which to tackle the questions that still dog the legitimacy of deontic logic. Part I provides some philosophical background to the discussion of deontic logical constants. Part II addresses in greater detail issues concerning the representation of normative concepts; and Part III offers a few remarks on the general issue of deontic logic's fruitfulness as an analytical tool.     

一个结合时态的法律规范推理系统TDWL’0

义务冲突问题的存在，使法律规范推理的应用功能受到限制，让其成为规范逻辑研究中必需解决的问题。通过对义务的具体语境进行分析，提出结合义务的时态因素建立法律规范推理系统TDWL’0的新主张，这不但可以有效处理义务冲突问题，并且有利于增强规范逻辑在法律实践领域中的应用价值。     

A Philosophical Approach to Norm Logic

The author outlines his views on the essence of philosophical logic. There are two means of philosophical argumentation: intuition and analysis of the problem situation under examination. Logical intuition can be replaced by improved intuition based on new intellectual constructions. Then the author explains—in opposition to von Wright—the main philosophical traits of his conception of norm logic. The structure of the information processing determining action justifies the application of dichotomous semantics in action theory and in practical philosophy. The theory of action and institutions is based on three anthropological features of man: our capacity of acting, our being a zoon politikon , and our capacity to form institutions. These features determine our ontology, our semantics and the logics of practical thinking. The action-theoretical approach leads to a formal and finalistic theory of action in which action is not only analysed as an element of the norm content, but as the essential basis of the whole field of practical philosophy. In the frame of this action theory a conception of freedom of will is provided which does not contrast with determinism. The formalism of action is applied in two different problem situations: in action deliberation and in motive interpretation. Jørgensen's dilemma is discussed and overcome by the introduction of a generalised notion of inference. Deontic logic is confronted with the idea of a genuine logic of norms. The main principles of norm logic are discussed and a normative conditional is introduced. Von Wright's conception of a genuine norm logic is confronted with the present author's conception. The author shows that norm-logical skepticism would be detrimental to analytical jurisprudence.     

Deontic Logic as Logic of Legal Norms: Two Main Sources of Problems

Abstract .
The paper offers a critical survey of two main sorts of problems hindering the possibility of conceiving deontic logic as a suitable account of the logical behaviour of (sentences expressing) legal norms. The notion of "legal norm" is viewed as the main source of the first sort of problems: (a) the typological variety of legal norms requires an account both of the differing logical behaviour of (sentences expressing) differing legal norms, and of the relations which might hold amon them; (b) the ontologic, semantic, and epistemic features of legal norms shed doubt on the very attempt to figure out a logical analysis of (sentences expressing) legal norms. The notion of "systemic legal validity" is viewed as the main source of the second sort of problems: Deontic logic does not provide suitable logical tools to account for legal phenomena like enactment, derogation, and conflicts between legal norms which rely on systemic legal validity.     

关于我国物权法体系结构的思考

法律的体系结构问题是一个按一定逻辑联系将法律规范加以排列组合的问题。各国民法典 (包括其物权编 )体系结构上的差异 ,原于体系设计者选择的逻辑标准不同。法国法系国家在设计其民法典 (包括其物权编 )的体系结构时 ,更注重调整对象标准 ;而德国法系国家在设计其民法典 (包括其物权编 )的体系结构时 ,则更倾向于法权形式标准。本文作者主张以调整对象为标准来分配物权法与债法的内容 ,将作用于商品交换领域的抵押、质押、留置及让与担保等担保制度纳入债法规定 ,而不照搬德国法系国家的作法纳入物权法规定。对物权法内部的体系结构 ,本文作者主张除总则外 ,分所有权、用益物权、相邻权、占有与登记四个组成部分 ,以分别调整物的归属关系、物的用益关系、不动产相邻关系及无本权的动产占有人、不动产物权登记名义人与物之本权人之间的关系。本文作者认为 ,这一体系结构有利于明确物权法内各制度各自作用的社会经济生活领域 ,张扬它们各自不同的目的和功能 ,实现它们各自不同的价值。     

Practical Logic and the Analysis of Legal Language*

Abstract. One of the theses of the present work is that, at the strictly logical and methodological level, practical logic has neither made, nor can it make any contribution to the philosophy of law, since none of the three branches of practical logic that have been taken into account, namely, the logic of norms, deontic logic and legal logic, seems to be theoretically possible. The contribution of practical logic to the analysis of legal language is assessed in terms of both the instruments of analysis elaborated by practical logic, the artificial languages, and the results obtained in two capital subjects, the negations of norms and the permissions.     

Legal Concepts in a Natural Language Based Expert System*

Abstract. A new approach to the formalization of concepts used in legal reasoning such as obligation and cause is presented. The formalization is based on the linguistic use of the concepts both in legal language and in ordinary language, and has been motivated by work on a legal expert system with a natural language interface. Particularly for the concept of obligation this yields quite different results from those obtained by the usual approach of deontic logic: So-called paradoxes are avoided, quantification over obligations becomes possible, no restriction to a “single-agent system” is required, and collisions of obligations can be formulated.     

On the Logic of Deontic Conditionals*

Abstract. The paper outlines the approach to the analysis of deontic conditionals taken in earlier work by Jones and Pörn, compares it very briefly with two main trends within dyadic deontic logic, and then discusses problems associated with the augmentation principle and the factual detachment principle. The author then modifies Jones and Pörn's previous system, using a classical but not normal (in the sense of Chellas) deontic modality to provide the basis for an alternative analysis of deontic conditionals. This new analysis validates neither the factual detachment nor the augmentation principles. However, influenced by the approach of James Delgrande to default reasoning, the author tries to show how a restricted form of factual detachment may be accommodated within the revised system.     

法律行为:我国刑法中作为义务类型的合理性质疑

不作为犯罪的义务来源一直是我国刑法理论中最具争议的问题之一。结合相关案例,分别从驳论和立论两方面对法律行为被确立为作为义务类型的合理性进行质疑。认为肯定论的观点问题在于:存在着逻辑上难以论证的难题;刑法理论不应当以其他法律为圭臬;与刑法谦抑主义的要求背道而驰;容易引发不良的司法反映。因此,认为法律行为不应当作为独立的作为义务的来源形式。其意义有四:符合思维的逻辑;为实质义务论提供了客观的推动力;有利于实现刑法保护机能和保障机能的协调;有利于犯罪和刑罚实现规范化和法定化。     

Deon in Deontics

Abstract.
The starting point of deontic logic is the distinction between non-normative necessity and normative necessity. The first part of the paper shows that the distinction between normative necessity and non-normative necessity occurs already in Aristotle's Orgunon . The second part of the paper makes a further distinction within normative deon itself: The distinction between deontic deon and anankastic deon . Anankastic deon behaves differently from deontic deon in a very important respect: Deontic indifference has no anankastic counterpart.     

民事责任的两种规范模式

民事权利义务规范的设定有行为本位和资源本位两种模式,民事责任规范作为民事规范的一种也不例外。传统的学说将民事责任界定为义务的违反显然是行为本位视角的产物,实际上民事责任的产生与当事人的义务违反没有必然联系。民事责任是为保护民事权利或者法益,基于特定的法律事实而对一定的民事主体产生的不利后果。根据民事规范的设定模式,可以把民事责任规范设定模式分为“义务(行为)——责任”模式和“权利(资源)——责任”模式两种,其中前者是行为本位视角的产物,后者是资源本位视角的产物。     

Deontic Logic and Legal Knowledge Representation*

Abstract. The current literature in the Artificial Intelligence and Law field reveals uncertainty concerning the potential role of deontic logic in legal knowledge representation. For instance, the Logic Programming Group at Imperial College has shown that a good deal can be achieved in this area in the absence of explicit representation of the deontic notions. This paper argues that some rather ordinary parts of the law contain structures which, if they are to be represented in logic, will call for use of a reasonably sophisticated deontic logic.     

Normative Systems,Permission and Deontic Logic*

Abstract. The authors concentrate on the analysis of the concept of permission. After a general account of differing concepts of permission both with regard to different legal theories and to different legal ideologies, they argue in favour of a “radical” imperativism which leaves no place for permissive norms. Thus, in contrast with the logic of normative language (LNL) purported by Alchourrón and Bulygin, the authors figure out a system of deontic logic - supplemented by devices of the possible world semantics - according to which a normative system (N) is conceived as a set of logical consequences of a certain finite set of basic obligations and no room is left either for the concept of weak permission or for the concept of strong permission. Finally the authors raise some criticisms concerning the view maintained by Alchourron and Bulygin on strong permission.*     

论政府的民生尊重义务

恪守民生尊重义务,是政府保障和改善民生的基础.民生尊重义务对应民生对政府的防御权功能,包括不作为的形式尊重和作为方式的实质尊重.在政府保障民生的实践中,因部分民生尊重义务履行不到位,一定会程度上使得民生问题复杂化.政府履行尊重民生义务,应在坚持民生价值取向、消解民生价值与行动逻辑背离的基础上坚持有限政府原则,以不作为方...     

Back to Basics: A Theory of the Emergence of Institutional Facts

In order to account for the mode of existence of social rules and norms, the author develops a theory of the emergence of institutional facts. Just as other kinds of institutional fact, rules and norms are meanings. Therefore, insight into the emergence of social rules and norms can be achieved by studying the recognition and the communication of meanings. Following accounts of meaning and factuality, institutional facts are characterized as unquestionable shared typifications. It is argued that, in becoming an institutional fact, a typification goes through two phases. First, it becomes a social habit. Second, this habit turns into an obligation by being objectified.     

论中国台湾地区的行政执行制度及理论

我国台湾地区的行政执行制度及理论对探讨中国内地制定行政强制执行法具有借鉴意义。笔者介绍了台湾行政执行的概念、特征、种类 ,探讨了其法理基础及原则 ,分析了其修订后的“行政执行法”在形式和内容上的变化 ,并就公法上金钱给付义务的执行 ,公法上行为、不行为义务的执行 ,行政上的即时强制 ,行政执行行为的性质及法律救济等问题进行了详细探讨 ,对台湾行政执行制度及理论的特色与不足也作了分析。