法律推理和道德推理虽然在目的、价值和形式上都存在区别,但二者同样作为一种社会性规范的表达,因此就也就具有某种共通性.这种共通性主要表现在法律和道德判断都必须保持某种程度的一致性,即保证当前的判断必须和之前的判断保持一致.怀疑主义者认为不论是法官还是做出道德判断的人都可以根据当前情境的特殊事实而排除先例的适用进而得出和先例不同的判断.这一点足以否定法律判决和道德判断对一致性的要求.但作者认为,这种通过类比来确定当前的情境能否适用先例的推理方法其实正是法律和道德具有一致性的表现.区别作为一种普遍性的方法,应当普遍地被运用到全部法律和道德判断中,唯此方能确定先例能否适用于当前的情境.这样,人们就能从对当前情境和先例的比较中得出与先例一致的判断,或者依据一种普遍性的推理方法而普遍地排除先例及其规则的适用.这样的推理模式既典型的存在于法律中,同样也可以被运用于道德判断.
The rule of law rests on the quality of legal reasoning. The rule of law requires that similar cases should be decided similarly, that each case should be decided on its merits, and that decision-making processes should comply with applicable rules of procedure and evidence. Making the reasoning behind such decision-making transparent and open to scrutiny shifts the decisions away from mere subjective preference and toward objective rationale. An important means, therefore, of achieving the rule of law is articulating and evaluating the various elements of legal reasoning—the reasoning involved in interpreting constitutions, statutes, and regulations, in balancing fundamental principles and policies, in adopting and modifying legal rules, in applying those rules to cases, in evaluating evidence, and in making ultimate decisions. Despite our need for transparent and sound reasoning, we in the legal profession devote surprisingly little research to developing our own general methodology. This is in dramatic contrast to other fields and professions. We are not like mathematicians, whose reflection on their own method has given the world axiomatic proof and modern deductive logic. We are also unlike statisticians, who have developed the analytic methods in use in all areas of empirical research. Nor do we act like natural and social scientists, who carefully combine statistical methods with techniques for measurement and modeling that are tailored to their particular subject matters. Nor do we take the approach of the medical profession, which has refined various methodologies for diagnostic reasoning. We in the legal profession largely content ourselves with “knowing good legal reasoning when we see it.” We spend relatively little time refining general methods for discriminating between good patterns of reasoning and bad, or developing theories for explaining precisely why good patterns are good and bad patterns are bad. In sum, we do not pay particular attention to the logic of legal reasoning. For a
传统法律符号学把法律当作一种由法律符号组成的符号体系,应用符号学的观点和方法分析法律现象,其可以与霍菲尔德的权利分析理论相互交叉,并在这个过程中结合司法实际的案例,以此来展现霍菲尔德式的法律和符号学方法的理论及其应用.这种方法将法律概念引入一定的语言系统内,注重概念之间互相的关系,这就为认识法律概念的本质提供了路径,同时为实践中分析具体案件中的法律概念——尤其是以此为基础进行法律论证时提供了多种角度和思路.虽然文章多从美国的法律和司法实践出发进行论证,但是在方法上仍然可以为我国的司法实践提供许多借鉴.
The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges. Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judge’s own intuitions. Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning, Thomas R. Lee and Stephen Mouritsen argue that courts should “import” into the law of interpretation computer-aided means (primarily, corpus analysis) of determining “the sense of a word or phrase that is most likely implicated in a given linguistic context.” In the view of Lee and Mouritsen, statutory interpretation is an “empirical question” (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics. The potential judicial adoption of interdisciplinary knowledge and techniques from fields such as linguistics is intriguing, and the resulting discussions from such proposals will enhance both the theory and practice of legal interpretation. Nevertheless, anyone advocating for the judicial adoption of a significant and novel interpretive source bears the burden of offering a compelling explication of the interpretive source and its role within the structure of interpretation. This demonstration should establish that the new interpretive source offers some comparative advantage to existing interpretive sources and is feasible in the sense that judges can competently use it. The advocate must therefore offer a compelling theory of how the interpretive source fits into existing processes of interpretation and explain whether the new interpretive source requires a new way of viewing those processes. With corpus linguistics, some of the issues that should be addressed therefore include: (1) how corpus linguistic analysis is relevant to some objective of interpretation currently identified by judges, such as the determination of ordinary meaning; (2) whether corpus linguistics should displace long-standing interpretive sources, such as dictionaries and textual canons; (3) the extent to which corpus linguistics can take account of the relevant context of a statutory provision; (4) to what extent determining statutory meaning is an empirical endeavor (with or without corpus linguistics); and (5) whether judges have both the technical ability to conduct competent corpus analyses and sufficient linguistic expertise to evaluate the raw data and make judgments of the kind made by trained linguists. In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues. We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.
Mr. McLeod argues that the role of rules in judicial decision-making is commonly misunderstood by both the formalists and realists. The rehabilitation of rhetoric in fields of study outside law suggests a novel and useful insight for jurisprudence: judges neither mechanically apply legal 'commands' nor exercise arbitrary, subjective preferences. They engage in a process of argumentation structured by the 'wishes' of statute and precedent, and directed towards persuasion of their anticipated audiences. Mr. McLeod offers the reasons of the Supreme Court of Canada in Hunter v. Southam Press as an example of rhetorically structured argument. The Court was required to interpret the new Canadian Charter of Rights and Freedoms section 8 which prohibits "unreasonable search or seizure". He argues that though the Court could not define 'unreasonable' with reference to any prior fixed rules, it was not compelled to exercise arbitrary and subjective preferences. The decision is best understood when analyzed in light of the Court's rhetorical obligations.
A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation. It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism. These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.
Journal Article What the Philosopher May Learn from the Study of Law Get access Ch. Perelman Ch. Perelman Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Jurisprudence, Volume 11, Issue 1, 1966, Pages 1–12, https://doi.org/10.1093/ajj/11.1.1 Published: 01 June 1966
目前文本分析工具正在深刻地影响着法律实践.与过去要求手动表征法律知识的计算模型不同,文本分析技术可以将法律文本直接表示为向量来预测法律结果.然而,文本分析的局限在于它无法用法律专业人士理解的术语来解释其预测结果.近期旨在提高文本分析从法律文本中提取更多含义的一系列研究,正在尝试识别案例文本中法律专业人士能够理解的关键因素,用来解释判决,并指导法律专业人士批判性地评估AI的预测结果.同时,新技术还被用于识别案例中解释法定术语的句子和各种法律论证结构,类似的技术还被用于从法律文本和合同文本中推导出隐藏含义,以预测这些文本是否包含对给定问题的答案.这些从法律文本中提取更多含义的新方法能在多大程度上成功解决律师推理、决策以及解释法律预测结果的问题,决定了法律文本分析的发展前景.
A common objection to the use of balancing tests in human rights adjudication is that it is not possible to perform a quantitative comparison between gains and losses for rights or the public good by means only of rational criteria. Here I provide a general account of the incommensurability objection, with the aim of making explicit its scope, and of dispelling some common misconceptions surrounding it. Relying on this account, I engage with recent defences of balancing against the incommensurability objection.
It is widely accepted that vagueness in law calls for a specific interpretation of the law-interpretation that changes the meaning of the law and makes it more precise. According to this view, vagueness causes gaps in the law, and the role of legal interpretation in the case of vagueness is to fill such gaps. I argue that this view is mistaken and defend the thesis that vagueness in law calls only for an application of the law to the case at hand, leaving the meaning of the law intact.
Statutory interpretation involves an interpreter determining the meaning of the text on the basis of various interpretive tools, all of which relate to the meaning of the words and their composition in light of the relevant context. Recently, with the increasing availability of scientific research tools such as corpus linguistics, advocates of such methods have stressed that statutory interpretation is an empirical inquiry. These claims fail to appreciate the contribution that context makes to meaning, both within and outside of law. Determinants of legal meaning must all relate in some way to the context of the relevant statute, whether the connection is to its language or the circumstances surrounding its enactment. Courts give (sometimes conclusive) weight to the statutory text, which implicates the systematicities of language and constrains the interpretations available to judges. Nevertheless, the ineliminably contextual nature of language, along with such legal features as the necessity of framing the interpretive inquiry in terms of an idealized interpreter, reveal legal interpretation to be a discretionary process, which should negate any claim that the determination of the meaning of a statute is primarily, or even largely, an empirical issue.
Evidence scholars have observed probabilistic fallacies in legal fact-finding and given them names since the 1980s (for example ‘Prosecutor's Fallacy’ and ‘Defense Attorney's Fallacy’). This has produced a rather un-organised list of over a dozen different probabilistic fallacies. In this article, the author proposes a systematic account where the observed probabilistic fallacies are organised in categories. Hierarchical relations between probabilistic fallacies are highlighted, and some fallacies are re-named to reflect the category they belong to and their relation to other fallacies in that category. All fallacies are precisely defined and illustrated with examples from real cases where they are committed by fact-finders. The result is a list of 12 probabilistic fallacies organised into 7 categories.
It is widely recognized that legislation is of critical importance for the proper functioning of economies and societies. However, the increasing complexity of the problems and challenges faced by modern economies and societies have resulted in the development of extensive, highly complex, and continuously evolving legislations. This makes it difficult for firms and administrations, as well as individual lawyers and public servants, to know the current applicable legislation on a particular topic of interest, as well as its evolution over time. This difficulty increases further due to the internationalization–globalization of economic activity, as well as the development of supranational organizations (such as the European Union (EU)), which make it necessary to continuously monitor legislations of several countries on various topics of interest. Existing national legal information platforms cannot satisfy the above highly complex requirements. This paper contributes to filling this gap, initially by describing the architecture and the capabilities/functionalities of an advanced “international” legal information platform, which has been developed as part of the European research program “ManyLaws,” based on requirements collected through interviews with lawyers and public servants; it enables the advanced search and retrieval of relevant legal documents on a particular topic of interest from within the legislative corpuses of many different countries, as well as EU legislation, using existing sources of open legal information, and also the automated comparative analysis of them and identification of various types of relations among them. The evaluation of this advanced legal information platform, using an extension of the Technology Acceptance Model (TAM), provides evidence of the usefulness and the ease of use of its novel functionalities, as well as their positive contribution to the productivity of both national-level legal work and international-level legal work, especially within the EU. The proposed advanced legal information platform can be quite useful for firms and administrations, as well as individual lawyers and public servants, active in the modern globalized economic context.
This paper aims to show what makes coherentism as an epistemological position attractive in comparison to its main competitor, foundationalism. It also aims to show that, from a general epistemological point of view, constraint satisfaction is not the most attractive way to give content to the notion of coherence. In order to achieve these purposes, the paper distinguishes between epistemic, constructive and integrated coherentism. Epistemic coherentism treats coherence as a test for knowledge about a world which exists independently (ontological realism). Constructive coherentism uses coherence as a standard to determine what the facts are in a particular domain. This is a form of ontological idealism. Usually, both epistemic and constructive coherentism apply the coherence test to only part of the positions (beliefs etc.) which a person accepts. The definition of, and standards for coherence, just as usually logic and standards for belief revision, are kept outside the process of making a position set coherent. Integrated coherentism differs by including everything in the coherence creating process. A set of positions is integratedly coherent if and only if it satisfies the standards included in the set of positions itself. The paper argues that integrated coherentism best fits with the ideas underlying coherentism and that, as a general epistemological theory, it is incompatible with coherence as constraint satisfaction in a strict sense.
Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine–human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, if done well.
Judicial pragmatism is a judicial methodology known for its future-looking mode of analysis, empirically-based decision making, and openness to judicial activism. In terms of strengths, judicial pragmatism helps to (1) maximize wealth and efficiency, (2) resolve truly novel cases, and (3) account for legislative shortcomings. In terms of weaknesses, judicial pragmatism poses the risks of (1) judicial tyranny, (2) overdependence on the social sciences, and (3) marginalization of important moral values. Although judicial pragmatism has generally been accepted as a helpful analytical approach, questions still remain over the extent to which it is helpful to judges in common law adjudication, legislative 370 UIC John Marshall Law Review [52:369 interpretation, and constitutional interpretation. The area in common law adjudication where judicial pragmatism offers promise is where the facts in the case are truly novel and the application of traditional common law rules is inefficient. In legislative interpretation, judicial pragmatism offers promise where the statute is vague, provides no instruction on how to interpret the statute, and has indicia of “delegation” of lawmaking authority to the courts. Finally, the area in constitutional interpretation where judicial pragmatism offers promise is where the issues involve truly novel facts and pressing social needs that are indirectly covered by
This Comment discusses developments in the twenty-year-old interdisciplinary field of Artificial Intelligence (AI) and law. This field is important for both AI and law because it is directed at improving our understanding and modeling of legal reasoning. The AI and law projects discussed here are landmarks in this field., A unifying theme of the projects is the goal to understand and model legal argument, a keystone of an overarching goal to understand and model legal reasoning. These goals require that we know first how to represent several types of knowledge, such as cases, rules, and arguments; second, how to reason with them, such as to manipulate precedents, to apply and make inferences with rules, and to tailor arguments to facts; and third, how to use them ultimately in a computer program that can perform tasks in legal reasoning and argumentation, such as analogizing favorable cases and distinguishing contrary ones, anticipating parries in adversarial argument, and creating artful hypothetical. The projects constitute a coherent set of studies about key topics in AI and law: (1) reasoning with rules; (2) handling open-textured legal concepts; (3) reasoning with cases and hypotheticals; (4) integrating reasoning with rules and reasoning with cases; and (5) representing legal knowledge. The limitations of techniques for handling the first topic are addressed by the second, and the third topic addresses critical issues not covered at all by work on the first. The fourth integrates work on the first three, and the fifth provides underpinnings needed for all of them. The projects are some of the major accomplishments in AI and law, especially
INTRODUCTION 551 I. THREE STAGES IN DWORKIN’S THEORY OF INTERPRETATION 553 A. Hard Cases: Fit and Justification 553 B. Law’s Empire: Law as Integrity 554 C. Justice for Hedgehogs: The Unity of Interpretation 557 II. WHAT IS INTERPRETATION? 558 A. The Structure of Dworkin’s Theory 558 B. Is the Unity-of-Interpretation Thesis True? 560 III. THE PATH NOT TAKEN: THE INTERPRETATION-CONSTRUCTION DISTINCTION 567 A. Alternative Dworkin 567 B. The Interpretation-Construction Distinction 568 C. Interpretation: An Account of Semantic Availability 569 D. Construction: Alternative Dworkinian Accounts 572 CONCLUSION: FROM CONSTRUCTIVE INTERPRETATION TO CONSTRUCTIVISM 577
基于解释的必要性和可行性,法治需要解释.法治需要的解释应当是正当的,因为它是实现法治确定性的支撑、是司法权威得以确立的保障和权利话语的注脚.法治需要的正当解释是遵循规则的解释,是符合常理常识常情的解释,是坚持人民至上的解释.构建法治需要的正当解释需要完善法律解释规则,把握法治的客观性;彰显常理常识常情加强法治的可接受性;坚持人民至上反映法治的以人为本属性.
随着数字时代的到来,电子证据业已成为"证据之王".哈希值校验、可信时间戳、区块链等大量技术性鉴真方法在司法实践中被广泛适用.但却存在将技术性鉴真方法作为电子证据真实性审查的唯一方法与电子证据采信的唯一标准的定位错置问题.从规范性分析角度出发,现行电子证据真实性专门条款还存在制度供给不足,既有推定真实性规则的定性与功能不匹配,推理真实性规则的确定性、完整性以及衔接性不足,司法认知真实性规则的形式僵化、调整范围较窄,补强真实性规则中补强真实性方法的适用情形、启动条件与程序不明.为此,可从明确电子证据真实性专门条款的理论与方法定位,完善电子证据真实性专门条款的规范要素与电子证据鉴真不能的法律后果三个方面,对电子证据真实性专门条款进行系统性续造.
