5,558 research outputs found

    Polish jurisprudence in a crooked mirror : (a polemic with Tomasz Bekrycht and Rafał Mańko)

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    Artykuł zawiera krytykę obrazu dwudziestowiecznej teorii i filozofii prawa, jaki przedstawili Tomasz Bekrycht i Rafał Mańko w artykule pt. Polish Jurisprudence in the 20th Century: A General Overview, opublikowanym na łamach Review of Central and East European Law (2020, nr 45). Argumentujemy, że wskazany artykuł nie jest niewyważony i stronniczy, w związku z czym przedstawia nietrafny obraz polskiej teorii i filozofii prawa

    Coherence in the Process of Legal Proof

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    The concept of coherence has long been thought to provide answers to a number of classical philosophical questions in metaphysics, epistemology and elsewhere. In recent decades, the promise of coherence has drawn the attention of many in legal theory, where coherence has since been employed for a number of different reasons. Among the many claims made for coherence in law and legal reasoning, some have argued that coherence plays a central role in the process of legal proof, justifying beliefs about unperceived past events. This claim constitutes the primary subject of this thesis. Focusing on the influential coherence-based theories of justification presented by Laurence BonJour, Neil MacCormick and Amalia Amaya, I argue that the use of coherence in the process of legal proof has been overestimated. Highlighting a number of conceptual and epistemological problems for coherence theories of justification, I suggest that coherence provides too weak a test to deliver justificatory force in the acceptance of beliefs about unperceived past events. In light of these findings, I tentatively propose a new, more limited role for coherence in the context of discovery and theory-formulation, where coherence may have a part to play in the process of legal proof after all

    Sincere and Strategic Voting Norms on Multimember Courts

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    In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment.\u27 In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court

    Legal analogical reasoning - the interplay between legal theory and artificial intelligence

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    This thesis examines and critiques attempts by researchers in the field of artificial intelligence and law to simulate legal analogical reasoning. Supported by an analysis of legal theoretical accounts of legal analogising, and an examination of approaches to simulating analogising developed in the field of artificial intelligence, it is argued that simulations of legal analogising fall far short of simulating all the is involved in human analogising. These examinations of legal theory and artificial intelligence inform a detailed critique of simulations of legal analogising. It is argued that simulations of legal analogising are limited in the kind of legal analogising they can simulate - these simulations cannot simulate the semantic flexibility that is characteristic of creative analogising. This thesis argues that one reason for current restrictions on simulations of legal analogising is that researchers in artificial intelligence and law have ignored the important role played by legal principles in legal analogising. It is argued that improvements in simulations of legal analogising will come from incorporating the influence of legal principles on legal analogising and that until researchers address this semantic flexibility and the role that legal principles play in generating it, simulations of legal analogising will be restricted and of benefit only for limited uses and in restricted areas of the law. Building on the analysis of legal theoretical accounts of legal reasoning and the examination of the processes of analogising, this thesis further argues that legal theoretical accounts of legal analogising are insufficient to account for legal analogising. This thesis argues that legal theorists have themselves ignored important aspects of legal analogising and hence that legal theoretical accounts of legal analogising are deficient. This thesis offers suggestions as to some of the modifications required in legal theory in order to better account for the processes of legal analogising

    A Competency Model for Judges

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    Throughout most modern and contemporary legal scholarship there appears an unbridgeable division between two dominant approaches to judicial decision making. Put succinctly, legal scholars argue that there exist either objective, foundational, ultimate groundings for legal theory and decisions or legal theory and practice inevitably follow a path to relativism and skepticism. This dissertation argues for a theory of evaluation grounded in the Pragmatic, practical ontology and epistemology. Grounding the theory in this fashion avoids the philosophical views of extreme objectivism and extreme subjectivism. In contrast to these conventional stances, which are rooted in philosophical dualism, the view argued for in this dissertation perceives the ontological and epistemological relationship between humans and their environment as inherently interconnected or relational. This philosophical relationship is characterized as intentional, perspectival, and dialectical and embodied. Consonant with the Pragmatic Ontology, the dissertation argues for a conception of rationality termed embodied reason. Unlike abstract versions of rationality, embodied reason is characterized by its concreteness, situatedness, and intersubjective validation. The theory clarifies the concept of legal reasoning and develops meta-theory underlining practical, expert based, holistic, narrative, argumentative, intuitive dimensions. Additionally, given the embodied and perspectival characteristic of judicial decision making the importance of individual differences, especially context-dependent, holistic thinking style is underlined

    Legal knowledge-based systems: new directions in system design

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    This thesis examines and critiques the concept of 'legal knowledge-based’ systems. Work on legal knowledge-based systems is dominated by work in 'artificial intelligence and law’. It seeks to automate the application of law and to automate the solution of legal problems. Automation however, has proved elusive. In contrast to such automation, this thesis proposes the creation of legal knowledge-based systems based on the concept of augmentation of legal work. Focusing on systems that augment legal work opens new possibilities for system creation and use. To inform how systems might augment legal work, this thesis examines philosophy, psychology and legal theory for information they provide on how processes of legal reasoning operate. It is argued that, in contrast to conceptions of law adopted in artificial intelligence and law, 'sensemaking' provides a useful perspective with which to create systems. It is argued that visualisation, and particularly diagrams, are an important and under considered element of reasoning and that producing systems that support diagramming of processes of legal reasoning would provide useful support for legal work. This thesis reviews techniques for diagramming aspects of sensemaking. In particular this thesis examines standard methods for diagramming arguments and methods for diagramming reasoning. These techniques are applied in the diagramming of legal judgments. A review is conducted of systems that have been constructed to support the construction of diagrams of argument and reasoning. Drawing upon these examinations, this thesis highlights the necessity of appropriate representations for supporting reasoning. The literature examining diagramming for reasoning support provides little discussion of appropriate representations. This thesis examines theories of representation for insight they can provide into the design of appropriate representations. It is concluded that while the theories of representation that are examined do not determine what amounts to a good representation, guidelines for the design and choice of representations can be distilled. These guidelines cannot map the class of legal knowledge-based systems that augment legal sensemaking, they can however, be used to explore this class and to inform construction of systems

    The Hidden Structure of Fact-Finding

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    This Article offers a new account of legal fact-finding based on the dual-process framework in cognitive psychology. This line of research suggests that our brains possess two radically different ways of thinking. “System 1” cognition is unconscious, fast, and associative, while “System 2” involves effortful, conscious reasoning. Drawing on these insights, I describe the ways that unconscious processing and conscious reflection interact when jurors hear and decide cases. Most existing evidential models offer useful insights about the ways that juries use relevant information in deciding cases but fail to account for situations in which their decisions are likely to be affected by irrelevant stimuli. The dual-process approach, by contrast, is able to explain both probative and prejudicial influences on decision making. As a demonstration, I use the dual-process framework to explain the surprising result in People v. Rivera, a case in which a jury convicted a man of rape and murder despite the admission of exonerating DNA evidence. This result, I suggest, was not the product of an unusually lazy or unreasonable jury but rather illustrates the way that our ordinary cognitive processes can lead us to endorse quite unreasonable results if primed using certain common prosecutorial strategies. After elaborating the dual-process model in a descriptive form, I then consider some of its normative implications. Many leading evidence scholars have argued that verdicts resting on “pure” or “naked” statistical evidence are problematic. Although the dual-process model of fact-finding is descriptive rather than normative, it nevertheless provides surprising insight into this debate by showing that our intuitive discomfort with verdicts that are based on purely statistical data may arise from the failure of such evidence to speak in terms that our unconscious, intuitive System 1 can process reliably. In such circumstances, intuitions about outcomes should be treated with caution. Thus, what unites the seemingly disparate examples of the Rivera trial and the naked statistical evidence debate is that, in both contexts, it feels right to do wrong

    Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia

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    The Hidden Structure of Fact-Finding

    Get PDF
    This Article offers a new account of legal fact-finding based on the dual-process framework in cognitive psychology. This line of research suggests that our brains possess two radically different ways of thinking. “System 1” cognition is unconscious, fast, and associative, while “System 2” involves effortful, conscious reasoning. Drawing on these insights, I describe the ways that unconscious processing and conscious reflection interact when jurors hear and decide cases. Most existing evidential models offer useful insights about the ways that juries use relevant information in deciding cases but fail to account for situations in which their decisions are likely to be affected by irrelevant stimuli. The dual-process approach, by contrast, is able to explain both probative and prejudicial influences on decision making. As a demonstration, I use the dual-process framework to explain the surprising result in People v. Rivera, a case in which a jury convicted a man of rape and murder despite the admission of exonerating DNA evidence. This result, I suggest, was not the product of an unusually lazy or unreasonable jury but rather illustrates the way that our ordinary cognitive processes can lead us to endorse quite unreasonable results if primed using certain common prosecutorial strategies. After elaborating the dual-process model in a descriptive form, I then consider some of its normative implications. Many leading evidence scholars have argued that verdicts resting on “pure” or “naked” statistical evidence are problematic. Although the dual-process model of fact-finding is descriptive rather than normative, it nevertheless provides surprising insight into this debate by showing that our intuitive discomfort with verdicts that are based on purely statistical data may arise from the failure of such evidence to speak in terms that our unconscious, intuitive System 1 can process reliably. In such circumstances, intuitions about outcomes should be treated with caution. Thus, what unites the seemingly disparate examples of the Rivera trial and the naked statistical evidence debate is that, in both contexts, it feels right to do wrong
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