The appearance in 1945 of the idea of the open texture of empirical concepts, which anticipated Friedrich Waismann’s thesis of a many-level-structure of language, led to a re-evaluation of “context”. It widens the sense of context that we are accustomed to mentioning as being Wittgenstein’s conception of meaning in his later philosophy. The new idea Waismann brought into the landscape is how to “clarify the context”, which is in a way a very non-Wittgensteinian question as well as an “explanation of (...) context”, where open texture plays a key role. But despite the amount of literature about open texture, this idea of Waismann is still not properly understood. Open texture must be situated as an obstacle to exhaustiveness of definition for internal reasons not only because of unforeseen conditions that could always arise in the future, but also by virtue of an a priori aspect of the texture of concepts. Thus, the main goal of this paper is to propose an interpretation of open texture as an immanent property of a concept, that is, as something that is underlying its nature. (shrink)

Fifty years of effort in artificial intelligence (AI) and the formalization of legal reasoning have produced both successes and failures. Considerable success in organizing and displaying evidence and its interrelationships has been accompanied by failure to achieve the original ambition of AI as applied to law: fully automated legal decision-making. The obstacles to formalizing legal reasoning have proved to be the same ones that make the formalization of commonsense reasoning so difficult, and are most evident where legal reasoning has to (...) meld with the vast web of ordinary human knowledge of the world. Underlying many of the problems is the mismatch between the discreteness of symbol manipulation and the continuous nature of imprecise natural language, of degrees of similarity and analogy, and of probabilities. (shrink)

This paper examines how the Barthesian difference between écrivains et écrivants can help analyse H.L.A. Hart’s Open Texture of the law. By comparing literary and judicial interpretation, one is able to better understand how lawyers, judges, and legislators can better interpret, use, and draft legislation and case law. In using concrete examples of legislation with regard to the phrase “cruel and usual”, this paper evaluates different interpretive techniques, uncovering key differences. In particular, it compares what implications the Death of the (...) Author would have on legislation that may be considered as vague, or open-ended. Could this mean the Death of the Legislator? What kind of impact may this have on a democracy’s authority? Ultimately, it is suggested that Barthe’s interpretive literary theories are undesirable when it comes to deciphering legislation. Indeed, more concrete and structured approaches are needed. (shrink)

Classically, vagueness has been considered something bad. It leads to the Sorites paradox, borderline cases, and the (apparent) violation of the logical principle of bivalence. Nevertheless, there have always been scholars claiming that vagueness is also valuable. Many have pointed out that we could not communicate as successfully or efficiently as we do if we would not use vague language. Indeed, we often use vague terms when we could have used more precise ones instead. Many scholars (implicitly or explicitly) assume (...) that we do so because their vagueness has a positive function. But how and in what sense can vagueness be said to have a function or value? This paper is an attempt to give an answer to this question. After clarifying the concepts of vagueness and value, it examines nine arguments for the value of vagueness, which have been discussed in the literature. The (negative) result of this examination is, however, that there is not much reason to believe that vagueness has a value or positive function at all because none of the arguments is conclusive. A tenth argument that has not been discussed so far seems most promising but rests on a solely strategic notion of function. (shrink)

Considerable attention has been given to the accessibility of legal documents, such as legislation and case law, both in legal information retrieval (query formulation, search algorithms), in legal information dissemination practice (numerous examples of on-line access to formal sources of law), and in legal knowledge-based systems (by translating the contents of those documents to ready-to-use rule and case-based systems). However, within AI & law, it has hardly ever been tried to make the contents of sources of law, and the relations (...) among them, more accessible to those without a legal education. This article presents a theory about translating sources of law into information accessible to persons without a legal education. It illustrates the theory by providing two elaborated examples of such translation ventures. In the first example, formal sources of law in the domain of exchanging police information are translated into rules of thumb useful for policemen. In the second example, the goal of providing non-legal professionals with insight into legislative procedures is translated into a framework for making available sources of law through an integrated legislative calendar. Although the theory itself does not support automating the several stages described, in this article some hints are given as to what such automation would have to look like. (shrink)

The classification of a state of affairs under a legal category can be considered as a kind of con- densed decision that can be made explicit, analyzed, and assessed us- ing argumentation schemes. In this paper, the controversial conflict of opinions concerning the nature of “marriage” in Obergefell v. Hodges is analyzed pointing out the dialecti- cal strategies used for addressing the interpretive doubts. The dispute about the same-sex couples’ right to marry hides a much deeper disa- greement not only (...) about what mar- riage is, but more importantly about the dialectical rules for defining it. (shrink)

Transnational legal communication seeks to identify transnational legal regimes and attempts to establish channels and technics for comprehensible communication of the legal information to specified groups of recipients. It also strives to conclude about possible inconsistencies in law. The approach is based on the cooperation of scientists within the area of law and applied linguistics and the coordination of their efforts, in order to conduct research from various perspectives, share conclusions and develop more complete approaches as well as achieve and (...) mutually use more multilateral research results. It strives to reconcile legal research and linguistics research despite of their very different paradigms. The paper aims to explain the nature of legal communication and to establish its general research questions and objectives. The study is going to find an answer to the question what methods are to be used to communicate law comprehensively to its recipients and to draw conclusions on the consistency of legal regimes to be communicated. It accentuates that the solidarity necessary to achieve the objective of comprehensible and consistent law goes beyond the particular interests of individual sciences and is the foundation of the existence of the transnational legal communication community, non-depending on the place of living and the scope of practical knowledge. (shrink)