Anchored narratives and dialectical argumentation

Abstract

Trying criminal cases is hard. The problem faced by a judge in court can be phrased in a deceptively simple way though, as follows: in order to come to a verdict, a judge has to apply the rules of law to the facts of the case. In a naïve and often criticized model of legal decision making (reminding of the bouche de la loi view on judges), the verdict is determined by applying the rules of law that match the case facts. This naïve model of legal decision making can be referred to as the subsumption model. A problem with the subsumption model is that neither the rules of law nor the case facts are available to the legal decision maker in a sufficiently well-structured form to make the processes of matching and applying a trivial matter. First, there is the problem of determining what the rules of law and the case facts are. Neither the rules nor the facts are presented to the judge in a precise and unambiguous way. A judge has to interpret the available information about the rules of law and the case facts. Second, even if the rules of law and the case facts would be determined, the processes of matching and applying can be problematic. It can for instance be undetermined whether some case fact falls under a particular rule's condition. Additional classificatory rules are then needed. In general, it can be the case that applying the rules of law leads to conflicting verdicts about the case at hand, or to no verdict at all. In the latter situation, it is to the judge's discretion to fill the gap, in the former, he has to resolve the conflict