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A model of juridical acts: part 1: the world of law

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Abstract

This paper aims at providing an account of juridical acts that forms a suitable starting point for the creation of computational systems that deal with juridical acts. The paper is divided into two parts. Because juridical acts will be analyzed as intentional changes in the world of law, the ‘furniture’ of this world, that consists broadly speaking of entities, facts and rules, plays a central role in the analysis. This first part of the paper deals with this furniture and its philosophical underpinnings, and at the same time introduces most of the logical apparatus that will be used to deal with it. The focus in the first part is on static and dynamic legal rules and their interplay in constituting the world of law.

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Notes

  1. In using the term ‘juridical act’, I follow the usage in Von Bar et al. (2009).

  2. This legal constructivism can be seen in the jurisprudential work of Ronald Dworkin (1986, 52 and 90), but also in work on ethics (Rawls 1980) and on the foundations of mathematics (Constructivism 2010; Constructive Mathematics 2010).

  3. As Torben Spaak kindly pointed out, there are more related analyses of this mode of existence, such as the one offered in Lagerspetz (1995).

  4. However, not all of the world of law belongs to the institutionalized part of social reality. Rules of customary law, for instance, belong to the world of law because they are broadly accepted as rules of law. In this paper, the non-institutionalized part of the world of law will mainly be ignored, because it is only marginally relevant for juridical acts.

  5. Although the internal legal notion and the doctrinal notion of a juridical act are different things, they have influenced each other. The doctrinal notion was developed through abstracting from different forms of juridical acts as used in the legal rules, while the rules have been adapted to the notion as it was developed in legal doctrine.

  6. It may be argued that the terminative rules are not crucial and that an institution can also exist by means of only institutive and consequential rules.

  7. For this reason, inferential theories of meaning, such as the theory of Brandom (1994), are less attractive for the understanding of legal status words, such as contract. See also Hage (2009). For a different view, see Sartor (2009a, c).

  8. This is very obvious in those writings which expose the so-called ‘will theory’ of juridical acts. See for instance Flume (1979, 7) and Fried (1981).

  9. The sentence expresses a state of affairs, but does not denote it, because full sentences do not denote.

  10. More details on the treatment of states of affairs as entities can be found in Hage (1997: 131f, 2005a: 72f).

  11. Although adequate logical models of the legal domain are not well possible without non-monotonic logics (Hage 2003; but see also Hage 2005a: 70), I will ignore that as much as possible in this paper, in order to focus on what is important in the present context.

  12. A similar distinction was also made in Sartor (2005, Chap. 21). See also the brief discussion in part 2 of this paper, section 16.

  13. The distinction between dynamic and static rules was inspired by Kelsen’s distinction between the statics and dynamics of law (Kelsen 1960, chapters IV and V).

  14. That the legal effects brought about by a dynamic rule only obtain after some event took place, should not be interpreted as that there is some lapse of time after the event and before its legal effects take place. It only means that the legal effects only begin when the event takes place.

  15. Counts-as rules have become quite popular in the recent literature, due to the influence of Searle (1995). In the jurisprudential literature, counts-as rules have for a long time been known under the name of rules of recognition (Hart 1994). As Spaak points out (Spaak 1994: 167–169), these rules were also familiar in the Scandinavian literature as ‘norms of qualification’.

  16. These conditions are the ones mentioned in article 3:84 of the Dutch Civil Code.

  17. The horizontal line from the box that represents the fact that the rule is valid to the downward arrow that represents the a-temporal relation between the fact that X is the mayor to the fact that X is competent means that the a-temporal relation is based on the static rule whose validity is represented by the box.

  18. The language is essentially that exposed in chapter 4 of Hage (2005a), with some simplifications and some additions. That chapter also gives background information that could not be presented here. Notice that the presupposed logical background is that of deductive logic. The reasons for not choosing a non-monotonic logic are first that the theory of juridical acts presupposes a reified view of the world of law, instead of legal constructivism, while defeasible reasoning fits best with legal constructivism. And second, the use of a non-monotonic logic would add logical complications which might detract from the main messages of this paper. All of this does not mean that a future extension of the present work might not have to use a non-monotonic logic as background logic.

  19. Because states of affairs are from a logical point of view individuals (or entities), they may be denoted by other expressions too, including proper names and function expressions. To distinguish between these other terms and the conventional term * s, the latter is said to denote the state of affairs expressed by Stypically.

  20. To limit the complexity of sentences, we will use the convention that all open sentences are assumed to be closed under universal quantification over all free variables. Notice that this does not apply to rule formulations, because these do not contain full sentences.

  21. Exceptions to rules and analogous rule application are ignored (again).

  22. I assume here that the time during which a rule operates coincides with its time of existence.

  23. One might argue that there are also descriptive sentences which are necessarily true, such as the sentence that circles are round. However, such sentences usually (also) express constraints on what is possible, and very often these sentences are better interpreted as formulating constraints on possible worlds than as descriptions of the facts which obtain in these worlds. See also Hage (2005a, 197–200) on the descriptive counterparts of rules.

  24. For one account of this type of semantics, see Lukaszewicz (1990, 38–43).

  25. This point has, in a different context, also been made by Prakken and Sartor (1996, 184/5).

  26. Exceptions to rules are ignored here, to focus on the role of rules as constraints on legally possible worlds. Hage (2005c) illustrates that it is possible to give exceptions to rules a place in a semantic theory like the present one.

  27. When a temporal aspect is added to the logic, rule-based constraints also rule out certain ‘lines of worlds’, as I will later call them. (Thanks to the anonymous reviewer who suggested this.).

  28. L may be thought of as the conceptual scheme by means of which worlds are 'captured'.

  29. All states of affairs are assumed to have the same time tag, which is therefore omitted.

  30. To gain simplicity at the cost of precision, the formulations of the constraints 6 and 7 do not deal with compound formulas, or the use of quantifiers or function expressions within the scope of the quantifiers.

  31. The references to the worlds wi and wi+n are necessary to make the constraint also applicable to dynamic rules. In the case of a dynamic rule, n will have the value 1 (the world of the legal consequence is the successor to the world of the operative event); in the case of a static rule the value of n will be 0 (the two worlds coincide). For rules with delayed legal consequences, the value of n will be bigger than 1.

  32. By replacing the logical constraints by other constraints (possibly a superset), different versions of compatibility can be expressed.

  33. We assume that the time 2011-01-04-12:05:01 is the immediate successor of 2011-01-04-12:05:00.

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Acknowledgments

The author thanks Torben Spaak and the anonymous reviewers for Artificial Intelligence and Law for their useful comments on the draft version of this paper. The usual disclaimer applies.

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  1. Universities of Maastricht and Hasselt, Maastricht, Netherlands

    Jaap Hage

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Hage, J. A model of juridical acts: part 1: the world of law. Artif Intell Law 19, 23–48 (2011). https://doi.org/10.1007/s10506-011-9105-4

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