This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is (...) said to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity. (shrink)

"Surrender; therefore, surrender or fight" is apparently an argument corresponding to an inference from an imperative to an imperative. Several philosophers, however (Williams 1963; Wedeking 1970; Harrison 1991; Hansen 2008), have denied that imperative inferences exist, arguing that (1) no such inferences occur in everyday life, (2) imperatives cannot be premises or conclusions of inferences because it makes no sense to say, for example, "since surrender" or "it follows that surrender or fight", and (3) distinct imperatives have conflicting permissive presuppositions (...) ("surrender or fight" permits you to fight without surrendering, but "surrender" does not), so issuing distinct imperatives amounts to changing one's mind and thus cannot be construed as making an inference. In response I argue inter alia that, on a reasonable understanding of 'inference', some everyday-life inferences do have imperatives as premises and conclusions, and that issuing imperatives with conflicting permissive presuppositions does not amount to changing one's mind. (shrink)

There is a growing interest in how people conceptualise the legal domain for the purpose of legal knowledge systems. In this paper we discuss four such conceptualisations (referred to as ontologies): McCarty's language for legal discourse, Stamper's norma formalism, Valente's functional ontology of law, and the ontology of Van Kralingen and Visser. We present criteria for a comparison of the ontologies and discuss the strengths and weaknesses of the ontologies in relation to these criteria. Moreover, we critically review the criteria.

Imperatives cannot be true or false, so they are shunned by logicians. And yet imperatives can be combined by logical connectives: "kiss me and hug me" is the conjunction of "kiss me" with "hug me". This example may suggest that declarative and imperative logic are isomorphic: just as the conjunction of two declaratives is true exactly if both conjuncts are true, the conjunction of two imperatives is satisfied exactly if both conjuncts are satisfied—what more is there to say? Much more, (...) I argue. "If you love me, kiss me", a conditional imperative, mixes a declarative antecedent ("you love me") with an imperative consequent ("kiss me"); it is satisfied if you love and kiss me, violated if you love but don't kiss me, and avoided if you don't love me. So we need a logic of three -valued imperatives which mixes declaratives with imperatives. I develop such a logic. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim-to-correctness (...) thesis, according to which speech acts of the norm-enacting kind raise a claim to correctness. (shrink)

In this article we describe two core ontologies of law that specify knowledge that is common to all domains of law. The first one, FOLaw describes and explains dependencies between types of knowledge in legal reasoning; the second one, LRI-Core ontology, captures the main concepts in legal information processing. Although FOLaw has shown to be of high practical value in various applied European ICT projects, its reuse is rather limited as it is rather concerned with the structure of legal reasoning (...) than with legal knowledge itself: as many other “legal core ontologies”, FOLaw is therefore rather an epistemological framework than an ontology. Therefore, we also developed LRI-Core. As we argue here that legal knowledge is based to a large extend on common-sense knowledge, LRI-Core is particularly inspired by research on abstract common-sense concepts. The main categories of LRI-Core are: physical, mental and abstract concepts. Roles cover in particular social worlds. Another special category are occurrences; terms that denote events and situations. We illustrate the use of LRI-Core with an ontology for Dutch criminal law, developed in the e-Court European project. (shrink)

Besides pure declarative arguments, whose premises and conclusions are declaratives, and pure imperative arguments, whose premises and conclusions are imperatives, there are mixed-premise arguments, whose premises include both imperatives and declaratives, and cross-species arguments, whose premises are declaratives and whose conclusions are imperatives or vice versa. I propose a general definition of argument validity: an argument is valid exactly if, necessarily, every fact that sustains its premises also sustains its conclusion, where a fact sustains an imperative exactly if it favors (...) the satisfaction over the violation proposition of the imperative, and a fact sustains a declarative exactly if, necessarily, the declarative is true if the fact exists. I argue that this definition yields as special cases the standard definition of validity for pure declarative arguments and my previously defended definition of validity for pure imperative arguments, and that it yields intuitively acceptable results for mixed-premise and cross-species arguments. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly (...) expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

This paper analyzes legal fact-argumentation in the framework of the argumentation-based litigation game by Xiong :16–19, 2012). Rather than as an ontological one, an ALG treats a legal fact as a fact-qua-claim whose acceptability depends on the reasons supporting it. In constructing their facts-qua-claims, parties to an ALG must interact to maintain a game-theoretic equilibrium. We compare the general interactional constraints that the civil and common law systems assign, and detail what the civil, administrative, and criminal codes of mainland China (...) require of the suitor, the respondent, and the trier to establish their respective S-, R- and T-facts. We also offer an improved version of the legal syllogism. (shrink)

This work adopts H. Kelsen’s concept of legal system, proposes a formal definition for such notion, and introduces an operational semantical framework for legal systems that are situated in agent societies. Agent societies are defined. Relevant formal properties of situated legal systems are discussed; the way they are exposed in the operational semantical framework is explained, and their truth formally proved. Also, for the sake of a better understanding of the legal-theoretic assumptions of the paper, recurring issues regarding Kelsen’s theory (...) of law are briefly reviewed. They are put in confrontation with the points of view of R. Dworkin, H. Hart, and J. Raz, and an attempt is made to clarify them from the perspective of the provided formalization. A brief case study in agent-based modeling and simulation of public policy processes is presented, as an illustration of the way of using situated legal systems, and the proposed operational semantical framework, in a practical application. (shrink)

This paper presents a belief revision operator that considers time intervals for modelling norm change in the law. This approach relates techniques from belief revision formalisms and time intervals with temporalised rules for legal systems. Our goal is to formalise a temporalised belief base and corresponding timed derivation, together with a proper revision operator. This operator may remove rules when needed or adapt intervals of time when contradictory norms are added in the system. For the operator, both constructive definition and (...) an axiomatic characterisation by representation theorems are given. (shrink)

Besides pure declarative arguments, whose premises and conclusions are declaratives (“you sinned shamelessly; so you sinned”), and pure imperative arguments, whose premises and conclusions are imperatives (“repent quickly; so repent”), there are mixed-premise arguments, whose premises include both imperatives and declaratives (“if you sinned, repent; you sinned; so repent”), and cross-species arguments, whose premises are declaratives and whose conclusions are imperatives (“you must repent; so repent”) or vice versa (“repent; so you can repent”). I propose a general definition of argument (...) validity: an argument is valid exactly if, necessarily, every fact that sustains its premises also sustains its conclusion, where a fact sustains an imperative exactly if it favors the satisfaction over the violation of the imperative, and a fact sustains a declarative exactly if, necessarily, the declarative is true if the fact exists. I argue that this definition yields as special cases the standard definition of validity for pure declarative arguments and my previously defended definition of validity for pure imperative arguments, and that it yields intuitively acceptable results for mixed-premise and cross-species arguments. (shrink)

Hans Kelsen’s purity thesis is the basic methodological principle of the Pure Theory of Law. Indeed, it is no exaggeration to say that virtually everything that is peculiar to Kelsen’s legal theory stems from the purity thesis. This includes Kelsen’s normativism or non‐naturalism and his polemic against various dualisms in legal science. I set out Kelsen’s position on these issues after looking at the nomenclature of purity in his writings as well as the philosophical and contextual sources of purity as (...) he understands them. (shrink)

This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. (...) L. A. Hart, that propose a systematic distinction between legal and moral species of obligation. (shrink)

This paper introduces a formal concept of ideology and ideological system. The formalization takes ideologies and ideological systems to be situated in agent societies. An ideological system is defined as a system of operations able to create, maintain, and extinguish the ideologies adopted by the social groups of agent societies. The concepts of group ideology, ideological contradiction, ideological dominance, and dominant ideology of an agent society, are defined. An ideology-based concept of social group is introduced. Relations between the proposed formal (...) concept of ideology and the classical concepts of ideology elaborated in social sciences are examined. A computational notation is presented, to support the realization of ideological systems in computationally implemented agent societies. The adequacy of the approach for the formal modeling and analysis of ideological issues is illustrated through three case studies. (shrink)

This paper generalises classical revision theory of the AGM brand to sets of norms. This is achieved substituting input/output logic for classical logic and tracking the changes. Operations of derogation and amendment—analogues of contraction and revision—are defined and characterised, and the precise relationship between contraction and derogation, on the one hand, and derogation and amendment on the other, is established. It is argued that the notion of derogation, in particular, is a very important analytical tool, and that even core deontic (...) concepts such as that of permission resists a satisfactory analysis without it. By way of illustration the last section of the paper analyses the much debated concept of positive permission, of which there turns out to be more than one kind. (shrink)

Schmitt’s theologisation of sovereignty has been subjected, 50 years later, to a ‘quarter turn’ by Foucault’s move from issues of domination to issues of government. After a further 30 years, radicalising Foucault, Agamben’s archaeology of economy adds another ‘quarter turn’: the structure that emerges once the old European conjugality of facticity and validity, of praxis and being, emptied of all bonds, links, and loops, gives way to the bare opposition ‘bipolarity’. The new constellation provides the old legal-theoretical problem of rules (...) unsuspended from a ruler who would authorise them, with a new, unexpected, political content and with a change of epistemic paradigm. (shrink)