Law and Logic
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Law and Logic
Contemporary Issues
Editors: Krimphove, Dieter | Lentner, Gabriel M.
(2017)
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Dieter Krimphove is Jean Monnet Professor ›ad personam‹ and Professor of European Business Law at the University of Paderborn. He is also a Visiting Professor at the Danube University Krems. His research interests include legal logic and legal theory, European and German banking and capital market law, international private law, corporate law, as well as law and economics.Gabriel M. Lentner is a Postdoctoral Fellow at Danube University Krems, Austria, and a TTLF Fellow at Stanford Law School, USA. He holds a PhD in International Law from the University of Vienna, where he teaches Logic in Legal Argumentation. Gabriel received a diploma in ›Law & Logic‹ from Harvard Law School and the European University Institute in Florence in 2013. His main research interests lie in logic and legal argumentation, international investment and EU law, as well as public international law. Gabriel has published various articles in the field and speaks regularly at international conferences.Abstract
This volume seeks to revive the field of law and logic, by providing an up-to-date and accessible survey of several relevant issues. Each author is an expert in his or her field, and each chapter offers an analysis of current issues, challenges, problems, limitations and/or developments.The general contribution of this book to existing scholarship is threefold. First, it seeks to consolidate current and cutting-edge scholarship by bringing together various approaches and different theories of law and logic in one volume. Secondly, the content is presented in a way that is both stimulating for current debates in the field, and at the same time, accessible to a wider audience (particularly to readers without prior knowledge of formal logic). Finally, this book aims at highlighting the practical applicability, utility and relevance of logic for the study of law, and its application (including legal argumentation).This volume seeks to revive the field of law and logic, by providing an up-to-date and accessible survey of several relevant issues. Each author is an expert in his or her field, and each chapter offers an analysis of current issues, challenges, problems, limitations and/or developments.The general contribution of this book to existing scholarship is threefold. First, it seeks to consolidate current and cutting-edge scholarship by bringing together various approaches and different theories of law and logic in one volume. Secondly, the content is presented in a way that is both stimulating for current debates in the field, and at the same time, accessible to a wider audience (particularly to readers without prior knowledge of formal logic). Finally, this book aims at highlighting the practical applicability, utility and relevance of logic for the study of law, and its application (including legal argumentation).
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Preface | 5 | ||
| Part I: General Issues | 5 | ||
| Part II: Specific Issues | 6 | ||
| Contents | 7 | ||
| Part I: General Issues | 9 | ||
| Dieter Krimphove: A Historical Overview of the Development nof Legal Logic | 11 | ||
| I. Introductio | 11 | ||
| II. The problem | 11 | ||
| III. The fundamental problem presented by the history of legal logic | 13 | ||
| 1. The inability of logic to develop | 13 | ||
| 2. Unequal historical development | 14 | ||
| 3. Early beginnings | 14 | ||
| 4. Aristotle | 16 | ||
| a) The reception of Aristotelian logic or the exclusion of rhetorical legal logic | 17 | ||
| b) The consequences of Aristotelian polemic that still resonate today | 18 | ||
| c) Fateful separation of logic and legal logic | 20 | ||
| 5. Continuance of “legal logic” in megarian/stoic school of logic | 20 | ||
| 6. Logic and legal logic in late antiquity | 22 | ||
| 7. The legal logic of the Middle Ages | 23 | ||
| 8. Leibniz | 26 | ||
| 9. The transition period and the exclusion of “aspects of normative observations” from the perspective of formal logic | 28 | ||
| 10. Hume’s “naturalistic fallacy” | 29 | ||
| 11. Mathematical logic | 30 | ||
| a) A brief overview of the historical development of mathematical logic | 30 | ||
| b) The significance of mathematical logic for legal logic in the 20th century | 32 | ||
| c) Gödel’s incompleteness theorems in legal ethics | 32 | ||
| d) The non-transferability of Gödel’s incompleteness theorem | 33 | ||
| 12. Intermediate result | 33 | ||
| 13. Normative logic (deontics) as a special form of logic | 34 | ||
| a) Ross’s paradoxes of deontic logic | 35 | ||
| b) The apparent paradox of the “Good Samaritan” | 35 | ||
| c) The risks of defining terms in deontics | 36 | ||
| aa) Unsuitability of the alternative formulation O(p → q) | 36 | ||
| bb) Criticism of the second alternative (p → O(q) | 37 | ||
| 14. Résumé | 37 | ||
| IV. Attempts at an ethological logic | 39 | ||
| V. The new institutional economics | 39 | ||
| 1. Logic as an “economic institution” | 40 | ||
| a) The economy of logic | 42 | ||
| b) The historical development of logic | 43 | ||
| aa) The economic value of feeling | 44 | ||
| bb) The genesis of logic | 44 | ||
| VI. Significance for legal logic | 45 | ||
| References | 46 | ||
| Matthias Armgardt: Law and Logic in Leibniz’s Legal Philosophy. An Introductio | 53 | ||
| I. Introductio | 53 | ||
| II. Leibniz’s Theory of Conditions | 54 | ||
| 1. Adequate Conditionals for Leibniz’s Probabilistic Propositional Logic | 54 | ||
| 2. Dynamic Temporal Logic | 57 | ||
| 3. Public Announcement Operator and Evidence Operato | 57 | ||
| 4. Legal Conditions and other Legal Requirements as Parts of a Conditional Legal Act | 58 | ||
| III. Deontic Logic | 59 | ||
| IV. Presumptions | 60 | ||
| V. A Formal Model of Equity | 62 | ||
| VI. Conclusio | 64 | ||
| References | 64 | ||
| Bartosz Brożek: Two Faces of Legal Reasoning: Rule-Based and Case-Based | 67 | ||
| I. Introductio | 67 | ||
| II. Two Thought Experiments | 67 | ||
| III. Rule-Based Legal Reasoning | 72 | ||
| IV. Case-Based Legal Reasoning | 76 | ||
| V. Conclusio | 78 | ||
| References | 79 | ||
| Michael S. Green: Logic and Legal Realism | 81 | ||
| I. Logic | 81 | ||
| II. Legal Irrationalism? | 82 | ||
| III. Legal Indeterminacy | 83 | ||
| IV. Legal Particularism | 85 | ||
| V. Judicial Supremacy | 87 | ||
| VI. Fact-Skepticism | 89 | ||
| VII. Positivism and Philosophical Anarchism | 89 | ||
| VIII. Conclusio | 93 | ||
| References | 93 | ||
| Part II: Specific Issues | 95 | ||
| Scott Brewer.Using Propositional Deductive Logic as an Aid nto Teaching American Contract Law: The Logocratic Approach | 97 | ||
| I. The goal of this chapter: To illustrate the use of logic in teaching the doctrinal course in Contracts at Harvard Law School | 97 | ||
| II. Some background concepts for the Logocratic Method of explaining the logic of legal rules and legal arguments | 100 | ||
| 1. Argument | 100 | ||
| 2. Logic and logical form | 100 | ||
| 3. The four modes of logical inference | 100 | ||
| 4. Two properties of arguments: defeasibility and indefeasibility | 103 | ||
| 5. The enthymeme | 103 | ||
| a) Rule-enthymeme | 103 | ||
| b) A note on the indent/right method of representing legal rules in the grammar of propositional logic | 106 | ||
| 6. Argument-enthymeme | 110 | ||
| III. A brief word on how the Logocratic concepts just described are related to the “master rule” of Contracts handout presented below | 112 | ||
| IV. Handout given to students in the Contracts course at Harvard Law School, used to teach the overall logical structure of American contract law | 113 | ||
| 1. Introduction: purpose of this handout | 113 | ||
| 2. Discerning the “master rule” for contractual liability in American contract law: the concepts of “prima facie contractual obligation” and “defeater doctrines” | 113 | ||
| a) Glossary | 113 | ||
| b) Restatement 2nd of Contracts – Chapter 1. § 1 Meaning Of Terms | 114 | ||
| c) Chapter 4. Formation Of Contracts–Consideration; Topic 2. Contracts Without Consideration § 90. Promise Reasonably Inducing Action Or Forbearance | 114 | ||
| 3. Baehr v. Penn-O-Tex | 114 | ||
| 4. First element: rule for “prima facie” contractual obligatio | 115 | ||
| 5. Second element: rule for (all) defeater doctrines | 115 | ||
| Comments on Rule 1 and Rule 2 | 115 | ||
| 6. Third element: rule for enforcement on grounds of reliance | 116 | ||
| Comments on Rule 3 | 116 | ||
| 7. Master rule for “all things considered” contractual obligatio | 117 | ||
| 8. Using the master rule: some examples | 117 | ||
| 9. Comments on Master Rule: the analytical value of understanding this rule | 118 | ||
| 10. Special note on the use of formal logical tools | 119 | ||
| V. Concluding comments on the Logocratic use of propositional deductive Logic to teach American Contract Law: On the criteria for using propositional vs. predicate logic for representing rule enthymemes | 121 | ||
| References | 123 | ||
| Jaap Hage and Antonia Waltermann. Logical Techniques for International Law | 125 | ||
| I. Introductio | 125 | ||
| II. Techniques to Avoid Conflicts | 126 | ||
| 1. Preliminary: the Nature of Rules | 126 | ||
| 2. Kinds of Rule Conflicts | 127 | ||
| 3. Subscripting | 128 | ||
| 4. The Scope of Rules | 129 | ||
| 5. Interpretatio | 130 | ||
| 6. Changing the Background | 131 | ||
| 7. Derogatio | 131 | ||
| 8. Incorporation and Reference | 132 | ||
| 9. Limitation of Rule-Creating Powe | 133 | ||
| III. Exceptions To Rules | 134 | ||
| 1. Applicability and Applicatio | 135 | ||
| 2. Are Exceptions Unavoidable? | 135 | ||
| 3. Case – Legal Consequence Pairs | 136 | ||
| 4. Burden of Proof | 137 | ||
| 5. The Logic of Exceptions | 138 | ||
| 6. Prevalence between Rules | 139 | ||
| IV. Conclusio | 140 | ||
| References | 141 | ||
| Jan C. Joerden. Logic and Criminal Law | 143 | ||
| I. Propositional Logic | 143 | ||
| 1. Dyadic Case-systems | 143 | ||
| 2. For Example: The Issue of dolus alternativus | 146 | ||
| a) First Thesis: Two Intents must be Attributed | 147 | ||
| b) Second Thesis:Only one Intent must be Attributed | 148 | ||
| c) First Sub-Thesis:Intent Attributed Depending on the Criminal Result | 149 | ||
| d) Second Sub-Thesis:Intent Attributed only Regarding the more Lenient Accusatio | 150 | ||
| e) Third Sub-Thesis:Intent Attributed only Regarding the more Severe Accusatio | 151 | ||
| f) Decision between Second Sub-Thesis and Third Sub-Thesis | 151 | ||
| g) Monadic Level of Attribution of Intent | 151 | ||
| h) Dyadic Level of Attribution of Intent | 153 | ||
| 3. Checking the Reasoning in Judgments | 155 | ||
| II. Class Logic | 155 | ||
| III. Logic of Relations | 158 | ||
| IV. Further Fields of Logic and Outlook | 160 | ||
| References | 161 | ||
| Gabriel M. Lentner: Logic and the Analysis of Legal Arguments in Public International Law | 163 | ||
| I. Introductio | 163 | ||
| II. Methodology in International Law | 164 | ||
| III. The Concept of Argument – the Logocratic Method | 167 | ||
| 1. Deductive Arguments | 169 | ||
| 2. Inductive Arguments | 171 | ||
| 3. Abduction (Inference to the Best Explanation) | 174 | ||
| 4. Analogy | 176 | ||
| IV. Conclusio | 178 | ||
| References | 178 | ||
| Tanel Kerikmäe and Sandra Särav: Paradigms for Automatization of nLogic and Legal Reasoning | 205 | ||
| I. Introductio | 205 | ||
| II. Are Robots Purely Autistic Positivists? | 206 | ||
| III. Artificial Intelligence as an Agent for Systematisation or for Applying Law? | 208 | ||
| IV. Interdisciplinary Empiricism as a Potential Core Element for the Emerging Principles of Digital Law | 214 | ||
| V. Situational Logic and Morality as Promoters of Regulating e-Technology: Do we Need Samaritan IV? | 216 | ||
| VI. Conclusio | 218 | ||
| References | 220 | ||
| Academic Literature | 220 | ||
| Othe | 222 | ||
| List of Contributors | 223 |