Posner versus Kelsen: the challenges for scientific analysis of law

Law & economics scholars claim, among other things, to provide explanations of how law impacts behaviour. The aim of this article is to shed light on the conceptual and methodological difficulties related to analysis of the impact that law has on behaviour. The analysis advanced in the paper takes as its starting point a commentary on Richard Posner’s interpretation of Hans Kelsen’s pure theory of law. The work of Kelsen is treated as a meta-theoretical analysis that reveals some of the presumptions of theoretical approaches to law that claim to be scientific and, in particular, that claim to scientifically analyse the law’s influence on behaviour. The article concludes with a methodological proposal on how to approach the identified methodological challenges and conceptual tensions that law & economics contends with.     

物证鉴定证据应用层级论

用物证鉴定结论证明犯罪需要经过推理过程,将物证来源鉴定结论转化为嫌疑人行为推论,后者再作为法律事实证明嫌疑人是否有罪。物证鉴定证据应用的递进证明关系,可以用由依次推理关系连接的物证来源结论层、行为推论层和定罪层构成的物证鉴定层级模型描述。该模型可直观表达和评估物证鉴定结论证据应用效力。     

Gardner on Legal Reasoning

In Chapters 2, 3 and 7 of his new book, Law as a Leap of Faith, John Gardner provides the elements of an account of legal reasoning. It is on the basis of this account that Gardner defends or supports some of the most important theses of his book, viz. theses pertaining to how law can be made, to the relation between law and morality, and to the legitimacy of judicial law-making. A central element of Gardner’s account is a distinction (suggested originally by Joseph Raz) between two forms of legal reasoning, namely, reasoning about the law and reasoning according to law. In this paper I intend to describe and evaluate Gardner’s account. Among the critical remarks that will appear in the paper is the claim that Gardner’s concept of reasoning according to law is overly inclusive.     

Analogical Reasoning as Translation:: The Pragmatics of Transivity

This paper attempts to examine the underlying structure of analogical reasoning in decision making. The immediate (but not exclusive) context is the form of reasoning commonly seen as prevalent in common-law judicial decision making. Following Wittgenstein and Strawson the paper identifies the problem of the contingency of transitivity ofanalogical relations as a serious impediment to analogical reasoning. It then proceeds to offer a method of translation that delineates the borders of contingency and analyticity of transitivity in such cases, as well as proposeshow these borders may be manipulated. The theoretical insight is to treat analogical relations anaphorically, as ``propredicates'.Accordingly, the translation involves constructive functional transformation from the form of meaning as continuum to the form of meaning as n-chotomies. Greimasian semiotics are then critically applied to examine in what sense ``translation' – in this specific sense – can count as the ``deep structure' of analogical/transitive reasoning, and what sucha claim entails in terms of linguistic ideology. Although the model of translation is formal it is not acontextual, and must be supplemented by importation of constitutive practicalconsiderations (i.e. norms) from concrete decision-making contexts. As such this is a case study of the pragmatic functions offormalization – a conception that may seem alien to some. When determining which states-of-affairs are deemed compatible, the formal model is shown to serve as a framework to what eventually becomes a pragmatic device.     

Going to the dogs?

Corporate trustees administer assets worth billions and directorsof these trusts expect to carry on their work without fear ofpersonal liability to beneficiaries other than in exceptionalcases whose ambit is limited and well understood. The emergence in recent years of an action known as the ‘dog-leg’claim threatens this certainty. The claim is brought by beneficiariesfor breach of trust generally, directly against the trustees,where none of the usual grounds for personal liability is evenalleged. The claim relies on being able to prove that the corporate trustee'srights against directors for breach of director's duties areheld by the trustee not for its own benefit, but for the benefitof the trust. This article explains how the claims are put togetherand why, fortunately, in practice they will rarely (if ever)succeed. The recent case of Alhamrani v Alhamrani has stimulatedthis appraisal.     

人工智能与事实认定

人工智能与司法的深度融合,既体现在案件的法律适用环节也体现在事实认定环节,而事实认定是法律适用的前提。人工智能对案件事实认定的介入,需要将证据数据化、对数据进行运算整合、输出人可以理解的结论。在证据数据化环节,需要对证据进行结构化的数据改造,并克服语言障碍。在数据整合环节,人工智能主要以概率推理而不是因果推理作为逻辑推理方式,其算法也需要面对可计算性与复杂性两大难题。在结论输出环节,需要解决机器学习如何深化、信念如何建立与机器如何表达等难题。人工智能融入案件事实认定所面临的这些主要难题,可以尝试通过“小数据”训练,逐步构建人工智能“心智微结构”去慢慢攻克。     

Reforming Relocation Law: A Reply to Prof. Thompson

This article provides a response to Prof. Thomson's critique, noting many points of agreement and also the broader consensus that is emerging among experts in the field. The research evidence, and the wider body of knowledge on children's well‐being generally, supports the proposition that relocation is a risk factor for children after parental separation but provides no support for a general presumption either in favor of, nor against, relocation. Nor should it be assumed that the interests of children are the same as those of their primary caregiver. We defend our three questions arguing the need in an adult‐centric debate to focus resolutely on children's interests rather than on adult rights. Both Prof. Thompson's approach and our own involve guided decision making with the child's best interests as the paramount consideration—his through weak presumptions based upon research about how judges respond to relocation issues and ours through focused questions based on research on how parents and children respond to relocations issues. We do not consider that codifying the existing practices of the courts represents real reform. We identify various risks involved in using presumptions, but note that, in jurisdictions with limited publicly funded resources for individual case assessment, presumptions, burdens or guidelines may be needed to offer rough justice to impecunious parents.

Key Points for the Family Court Community
• Notes points of emerging agreement on relocation within the research community
• Explores the differences between the use of presumptions and focused questions and highlights the role of empirical research of the lived experience of children and families postrelocation disputes
• Identifies how the level of public resourcing for the family law system may impact upon decisions about the substance of the law concerning relocation

     

Maybe He's Depressed: Mental Illness as a Mitigating Factor for Drug Offender Accountability

Given the often perplexing relationship between mental illness and substance abuse among offenders, this article looks at how a juvenile drug court staff's presumptions of a youth's mental illness affect its decision-making process. Based on thirteen months of ethnographic fieldwork at a Southern California juvenile drug court, this article uses Manzo and Travers's "law in action" approach to analyze how the staff readjusts its application of normal remedies (a concept developed by Robert Emerson) designed to respond to a youth's noncompliance when it suspects mental illness may be influencing the youth's actions. In doing so, it highlights how court staff's considerations of youth mental disorders arise out of its everyday work practices. Furthermore, the article discusses how staff negotiations around a youth's mental illness create tensions for the juvenile drug court's accountability-based model of therapeutic jurisprudence, because assessments of mental illness tend to mitigate responsibility for a youth's behavior.     

On the Necessity of the Interconnection between Law and Morality*

Abstract. By taking issue with Robert Alexy's claim to correctness, I attempt to cast light on the nature of the necessity that pertains to the claim. With respect to it, I argue that it should be understood as deriving from the metaphysical requirements for normative knowledge in general. These requirements are shown to include a general norm of autonomy which is a priori and necessary, and comprises a minimal morality. The line of reasoning is compatible with discourse theory, but does not presuppose it; therefore more far‐reaching conclusions can be drawn.     

民事诉讼案件待证事实的确定

民事诉讼案件事实的认定是民事诉讼活动的中心任务,其认定过程分为从主张事实到待证事实再到裁判事实两个阶段。目前,民诉学界对于第二阶段即如何运用证据证明待证事实的研究已非常深入,但对于第一阶段即案件待证事实的确定过程却很少有人问津,甚至认为其是一个显而易见的前提。实际并非如此,民事诉讼案件待证事实的确定也是一个内含复杂逻辑推演的过程,是一个当事人的主张事实经实体法律规范内含的要件事实涵摄表现为程序上的主要事实再经当事人是否存在争议的筛选形成待证事实的过程。     

Pragmatic Maxims and Presumptions in Legal Interpretation

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation.     

Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs

In this article, I show how the term lawfare is being deployed as a speech act in order to encode the field of human rights as a national security threat. The objective, I claim, is to hinder the work of human rights organizations that produce and disseminate knowledge about social wrongs perpetrated by military personnel and government officials, particularly evidence of acts emanating from the global war on terrorism—such as torture and extrajudicial executions—that constitute war crimes and can be presented in courts that exercise universal jurisdiction. Using Israel as a case study, I investigate the local and global dimensions of the securitization processes, focusing on how different securitizing actors—academics, nongovernmental organizations, think tanks, policy makers, and legislators—mobilize the media, shape public opinion, lobby legislators and policy makers, introduce new laws, and pressure donors to pave the way for a form of exceptional intervention to limit the scope of human rights work.     

Critical Remarks on Robert Alexy's "Special-Case Thesis"*

Abstract
In this paper the author criticizes the way Robert Alexy reconstructs the relationship between legal and practical reasoning. The core of Alexy's argumentation (Alexy 1978) is considered the claim that legal argumentation is a "special case" of general practical discourse. In order to question this claim, the author analyzes three different types of argument: (1) that legal reasoning is needed by general practical discourse itself, (2) that there are similarities between legal argumentation and general practical discourse, (3) that there is a correspondence between certain types of argument in general practical discourse and in legal argumentation.**     

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.     

A Tale of Two Presumptions

This article examines the use of presumptions of intent within the law of murder, and some of the problems of analysis to which they give rise. It is argued that much of the confusion in the modern law is caused by the failure of the courts to grasp the different functions of different kinds of presumption in the law of evidence, and that this has led to presumptions of a particular kind being used in the present context for a purpose for which they are not really suited. This revised version was published online in August 2006 with corrections to the Cover Date.     

Clarification of rules involving residual functional capacity assessments; clarification of use of vocational experts and other sources at step 4 of the sequential evaluation process; incorporation of "special profile" into regulations. Final rules

For purposes of this document, "we," "our," and "SSA" refer to the Social Security Administration and State agencies that make disability determinations for the Social Security Administration. "You" and "your" refer to individuals who claim benefits from the Social Security Administration based on "disability." In this final rule we clarify our rules about the responsibility that you have to provide evidence and the responsibility that we have to develop evidence in connection with your claim of disability. This includes our rules about when we assess your residual functional capacity (RFC) and how we use this RFC assessment when we decide whether you can do your past relevant work or other work. These clarifications address issues of responsibility raised by some courts in recent cases; clarify that we may use vocational experts (VEs), vocational specialists (VSs), or other resources to obtain evidence we need to help us determine whether your impairment(s) prevents you from doing your past relevant work; add a special provision to our rules stating that, if you are at least 55 years old, and specific other circumstances are present, we will find that you are disabled; and make a number of minor editorial changes to clarify and update the language of our rules, and to use simpler language in keeping with our goal of using plain language in our regulations.     

The Presumption of Innocence and its Role in the Criminal Process

Many international instruments proclaim that those who face criminal prosecution ought to be afforded a ‘presumption of innocence’, and the importance and central role of this presumption is recognized by legal systems throughout the world. There is, however, little agreement about its meaning and extent of application. This article considers the purposes of legal presumptions in general and explores various, sometimes contradictory, conceptions of this most famous one. It is equated by many scholars to the requirement that the prosecution prove guilt beyond a reasonable doubt. As such, it is merely a rule of evidence (albeit an important one), with no application pre- or post-trial. The article advocates adoption of a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law. As such, it should be promoted as a practical attitude to be adopted by the key protagonists in the justice system, for the duration of the criminal process.     

Competing World Views: Perspectivism and Polemics in the Satya-?āsana-parīk?ā and Other Jaina Works

Jaina authors use a pluralistic epistemological model as a tool to claim the superiority of Jainism over the other schools of Indian thought. In this article the general tendency of the Jaina’s epistemic pluralism is discussed and it is shown how the Digambara Jaina Vidyānandin tries to establish the Jainas’ pluralism on rational grounds by identifying erroneous epistemic alternatives through methodological falsification.