The Logic of Time in Law and Legal Expert Systems*

Abstract. Research on an expert system regarding unemployment insurance law has pointed to the difficulties of explicitly representing temporal relations. The question has been addressed in the artificial intelligence literature with respect to planning systems and linguistic analysis. The approaches adopted do not appear to be directly transposable to legal discourse. The problem seems so far to have escaped notice amongst researchers attempting to develop legal expert systems. The paper explores in a preliminary way how lawyers use temporal concepts. It is submitted that “legal time” only partly overlaps with real time. A sketch of a formalization of temporal relations in law, following J. F. Allen's approach, is presented.     

法律原则在法律推理中的地位和作用——一个比较的研究

我国关于法律原则的讨论一般集中在立法过于笼统与立法所规定的法律基本原则这两个方面。这种意义上的法律原则与德沃金所说的法律原则存在重要区别。德沃金关于法律原则的讨论其目的是强调法律的确定性 ,而我们关于法律原则的讨论却在强化法律的模糊性。法律原则的讨论主要涉及法律推理过程中原则与规则之间的关系。基于法治的原因 ,法律推理必须坚持将法律规则作为法律推理的大前提 ;在法律规则含义不明确、模糊或者相互矛盾时 ,可以使用法律原则 ,但是 ,必须经过一定的法律原则的认定程序。     

On the Autonomy of Legal Reasoning*

Abstract The paper argues that reasoning according to law is an instance of moral reasoning. Several ways of understanding this claim are distinguished. A number of arguments to the effect that because of the internal logic of the law, or the special skills it involves legal reasoning should be seen as immune to moral considerations are rejected. Nevertheless, the paper affirms the relative and limited autonomy of legal reasoning, and the sui generis role of doctrine in it which is manifested in the many cases in which the moral considerations pertaining to the case underdetermine its result.     

法律推理中的法律理由和正当理由

法律推理具有逻辑方法和审判制度的双重属性,它的发展经历了一个从前者向后者的演进过程。法律推理是一个综合运用法律理由和正当理由的法庭决策过程。法律解释作为该过程的一个环节,是以正当理由阐释法律理由而获得法律推理大前提的手段。     

An Integrated Model of Legal and Moral Reasoning and Rule-Violating Behavior: The Role of Legal Attitudes

Legal socialization theory predicts that attitudes mediate the relation between legal reasoning and rule-violating behavior [Cohn, E. S., & White, S. O. (1990). Legal Socialization: A Study of Norms and Rules. New York: Springer-Verlag]. Moral development theory predicts that moral reasoning predicts rule-violating behavior directly as well as indirectly [Blasi, A. (1980). Bridging moral cognition and moral action: A critical review of the literature. Psychological Bulletin, 88, 1–45]. We present and test an integrated model of rule-violating behavior drawing on both theories in a longitudinal study of middle school and high school students. Students completed questionnaires three times during the course of 1 year at 6-month intervals. Legal and moral reasoning, legal attitudes, and rule-violating behavior were measured at times one, two, and three respectively. Structural equation models revealed that while moral and legal reasoning were directly and indirectly related to rule-violating behavior among high school students, legal reasoning bore no direct relation to rule-violating behavior among middle school students. The implications for an integrated model of reasoning and rule-violating behavior are discussed.     

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.     

论语用学视域中的法律推理

语用学是从微观、语言的层面分析和把握法律推理的新视角。在语用学规范性视域中,法律推理是一种融合话语行为、命题行为和语用行为的交互言语行为。其中,"说者"与"听者"都是法律推理主体;达成合理共识是法律推理的目的和原动力;遵守合作原则是法律推理语言有效性的保证。语境通过语言选择的"装扮"来影响法律推理,是影响话语权分配、共识达成及合作原则遵守与否的关键因素。改善语境是发展法律推理的必由之路。     

Argument from Expert Opinion as Legal Evidence: Critical Questions and Admissibility Criteria of Expert Testimony in the American Legal System*

Abstract. While courts depend on expert opinions in reaching sound judgments, the role of the expert witness in legal proceedings is associated with a litany of problems. Perhaps most prevalent is the question of under what circumstances should testimony be admitted as expert opinion. We review the changing policies adopted by American courts in an attempt to ensure the reliability and usefulness of the scientific and technical information admitted as evidence. We argue that these admissibility criteria are best seen in a dialectical context as a set of critical questions of the kind commonly used in models of argumentation.     

The Potential of Abductive Legal Reasoning

The article describes the potential of abductive legal reasoning as a means of systematically exploring the role of inferences within legal reasoning. Starting out from the structures of abduction as originally presented by Peirce in his four‐horsemen example, the author points to the fact that Peirce actually employed a hypothesis that targeted an institutional fact. Hence the abductive inference has a great potential for categorising new phenomena under norms, yet it is undertheorised within the field of law as compared to other fields of science. The article presents the idea of comparison in the frame of “double abduction” as an important feature of legal reasoning.     

Towards the Semantics of Constitutive in Judicial Reasoning

The aim of the paper is to supply a contribution to the semantics of constitutive, as confined to the scope of judicial reasoning. More precisely, the aim of the paper is to inquire what links the use of constitutive in three distinct (seemingly unrelated) issues on adjudication, namely: (a) the procedural classification of different sorts of judicial decisions, (b) the epistemological debate on the very nature of judicial decisions, and (c) a logical query on the import constitutive rules might be taken to have in affecting the sort and/or the nature of judicial decisions in which they might occur as the legal premiss, grounding the solution of the case. The attempt to fix some markers towards the semantics of constitutive in judicial reasoning will have Alchourrón and Bulygin's analyses as a main point of reference.     

Legal Reasoning and Legal Theory Revisited

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.     

Synthesizing Related Rules from Statutes and Cases for Legal Expert Systems

Abstract. Different legal expert systems may be incompatible with each other: A user in characterizing the same situation by answering the questions presented in a consultation can be led to contradictory inferences. Such systems can be "synthesized" to help users avoid such contradictions by alerting them that other relevant systems are available to be consulted as they are responding to questions. An example of potentially incompatible, related legal expert systems is presented here - ones for the New Jersey murder statute and the celebrated Quinlan case, along with one way of synthesizing them to avoid such incompatibility.     

Minimal Semantics and Legal Interpretation

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation.     

法律论证中的融贯论

法律论证中的融贯论具有两个基本特性,即逻辑一致性以及信念之间的相互支持关系。法律论证中的融贯论在于回答因融贯本身所存在的责难而涉及越来越广泛的领域,它不仅仅是一种方法选择, 也是一种法律理论。其统一以法律、道德、政治为核心而形成融贯的体系。     

可废止性法律推理的理论与实践——基于严格主义法律推理的检讨

既有的严格主义法律推理采行三段论演绎方法,简洁、直观地将法律推理呈现为一个实质蕴涵的过程,确保了法律推理的可判定性、确定性和可操作性。基于构建公理性法律体系是不可能的,法律推理并不能实现无矛盾和无缝对接,法律推理所使用的语言并非是单义性的,法律推理前提集的一致是不可能的判断前提,故严格主义法律推理并不能真实地刻画现实的法律推理活动。可废止性法律推理具有非分析性、实践性、可辩驳性及双向性等特征,其在评价标准、对待推理前提的态度和推理过程方面同严格主义法律推理呈现出不同的特征。可废止性法律推理的理解离不开语境,因而并不是不确定的法律推理。可废止性法律推理整体上为我们描绘了一幅完整的法律适用的逻辑框架,以此为出发点,我们能够很好地理解日常实践中法律运作的逻辑结构。     

Just Interpretation: The Status of Legal Reasoning in the Continental Legal Tradition

The following text discusses an issueof legal interpretation status in continentalsystem of law. Exploring a metaphor of theinterpretation as a translation, it emphasizesits creative aspect, which has been deniedoften in modern times. Reminding the Romanorigins of contemporary continental legalsystems, it uses historical arguments to accentthe intrinsically inventive character of legalinterpretation.     

论一般法律会话含义推理及其有效性

一般会话含义推理是推出说话者的一般会话含义,促进对话者之间达成理解的推理.它的前提和基础是对合作原则的遵循.正是因为合作原则在法律推理中的适用,一般会话含义推理才作为一种法律推理方法存在.相对于关于前提和结论的演绎、归纳等推导方法,一般法律会话含义推理是将推导融入对话过程的理解方法,是实现个案正义的必要方法.一般法律会话含义推理的有效性以逻辑有效性为基础,以程序有效性为核心,以语言有效性为前提.     

论民事诉讼中专家辅助人的法律定位

司法鉴定意见在诉讼中占据重要的地位,但因鉴定意见具有较强的专业性,在法庭质证中普通人很难对其进行实质审查,虽然当事人可以聘请专家辅助人参与质证,但由于对专家辅助人的适用缺乏可操作规定,以至于严重影响这一制度的执行。如何发挥专家辅助人在鉴定意见质证中的作用,需要制定一套科学的程序来保障。     

Legal Reasoning as a Special Case of Moral Reasoning

Abstract. Moral statements are related to some ought- and good-making facts. If at least one of these facts exists then it is reasonable that an action in question is prima facie good and obligatory. If all of these facts take place, then it is reasonable that the action is definitively good and obligatory. Yet, moral reasoning is relatively uncertain. The law is more "fixed". Legal interpretatory statements ought to express a compromise between the literal sense of the law and moral considerations. They can be to a high degree both coherent and accepted. One may emotionally reject them but most people have a disposition to endorse a coherent and commonly accepted value system.