On Uberty: Legal Reasoning by Analogy and Peirce\u27s Theory of Abduction

This paper uses the work of C.S. Peirce to explore legal reasoning by analogy. Peirce divided reasoning into three basic forms: deduction, induction, and abduction. Deductive reasoning discloses conclusions that necessarily follow from the premises. Inductive reasoning gives support to statements by generalizing from the characteristics found in samples. Abductive reasoning - a concept that Peirce originated - produces explanatory hypotheses. The three types of inference vary as to security (how certain we are that a conclusion follows from the premises) and uberty (how fruitful the reasoning is in producing new knowledge). Deductive reasoning has high security, because the conclusion necessarily follows from the premises, but low uberty, for the same reason. Abductive reasoning has high uberty, because it creatively produces explanatory hypotheses, but low security, because such hypotheses may be falsified when tested. Induction falls between the other two forms; compared to abduction, its reliance on regularity increases its security, but restricts its uberty. The classic formulation views reasoning by analogy as induction; because one or more base entities with certain characteristics have an additional characteristic, we conclude that another entity with the initial set of characteristics also has the additional characteristic. Peirce, however, saw analogy as a combination of induction and abduction, which would both make the process of reasoning by analogy more complex and add the properties of abductive reasoning (for example, its lower security and higher uberty). Applying Peirce\u27s framework to legal reasoning provides a powerful analytical device for assessing the strengths and weaknesses of analogical arguments. The paper also analyzes various writings on legal reasoning by analogy, using the framework sketched above

Prosecutor v Dragan Nikolic: decision on defence motion on illegal capture

In November 1994 the International Criminal Tribunal for the former Yugoslavia (ICTY), indicted its first accused, Dragan Nikolic. It was not until over five years later, however, in April 2000, that he was finally arrested and transferred to The Hague. The circumstances of his arrest – which reportedly featured his being violently abducted from his home in the Federal Republic of Yugoslavia (FRY) by Serbian criminals before being transferred to the NATO-led Stabilization Force in Bosnia and Herzegovina and, ultimately, to the ICTY in The Hague – were the subject of a pre-trial motion. Nikolic's defence counsel asserted that the nature of his capture was such that the appropriate remedy was to dismiss the charges against him and order his return to the FRY. They made this assertion despite an admission, for the purposes of the motion, that the captors lacked any connection with SFOR or the ICTY. The trial chamber rejected the motion. In reaching its decision, the trial chamber considered fundamental issues about what constituted an illegal capture for the purposes of the ICTY and, without explicitly doing so, appeared to reject the view of the Court in <i>Eichmann</i> that a person may not oppose his being tried by reason of the illegality of his capture

Prosecutor v Todorovic: illegal capture as an obstacle to the exercise of international criminal jurisdiction

For years the majority of those individuals publicly indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) remained at large due to a lack of co-operation from states whose assistance was required to effect their arrest. In order to assist in this regard, various operations have been undertaken since 1997 by which UN and regional missions have taken steps to assist the ICTY in the difficult task of bringing accused before the Tribunal in The Hague. Such steps were taken in the case of Stevan Todorovic, who was captured and transferred to The Hague by means of an operation shrouded in secrecy and alleged to have involved illegal behaviour on the part of the NATO-led Stabilization Force. The following article discusses the nature of Todorovic's arrest (based on the limited facts available) and his various attempts to have his indictment dismissed due to the nature of his arrest. In so doing, it considers the state of the law regarding the appropriateness of an international judicial body proceeding with the trial of an individual brought before it by potentially illegal means. Although a plea agreement was reached in the case, with the result that the judicial consideration of the issues is limited, important issues are nevertheless raised in the arguments of the Office of the Prosecution and the defence counsel which are likely to recur in similar cases in the future

Breaching international law to ensure its enforcement: the reliance by the ICTY on illegal capture

n an address to the United Nations General Assembly on 7 November 1995, Antonio Cassese, then President of the International Criminal Tribunal for the former Yugoslavia (ICTY), highlighted the difficulty of enforcing international criminal justice in the absence of state cooperation. To emphasise his point, Cassese offered an apt — if somewhat inelegant — analogy: he likened the Tribunal to a limbless giant, dependent on the ‘artificial limbs’ of the enforcement agencies of UN Member States. First among the various areas cited by Cassese where the Tribunal depended upon state cooperation was the arrest of suspected criminals living within the borders of those states. Over nine years later the problem remained acute. In a 23 November 2004 address to the Security Council, the Prosecutor of the ICTY, Carla Del Ponte, highlighted failures on the part of the governments of Croatia, Serbia and Montenegro and Bosnia and Herzegovina to arrest indictees and turn them over to the Tribunal. In particular, she mentioned the lack of cooperation by Belgrade as ‘the single most important obstacle faced by the Tribunal’ in the implementation of its strategy to complete its trials by the end of 2008

Review of "Computational logic and human thinking: How to be artificially intelligent" by Robert Kowalski

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The Supremacy Clause as Structural Safeguard of Federalism: State Judges and International Law in the Post-Erie Era

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges\u27 use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state judges\u27 authority under the Supremacy Clause to harmonize treaties and customary international law with state constitutional, legislative, and common law, and to influence federal jurisprudence on the scope and effect of binding international law. The Supremacy Clause empowers state judges to adapt international law to maximize benefits for--and minimize disruptions to--state policy objectives. As more areas of traditional state authority are displaced by international law, state judicial management of international law may be the strongest structural protection for state interests