A Model of Legal Acts: Part 1: The World of Law

Jaap Hage
2011 Social Science Research Network  
This paper aims at providing an account of legal acts that forms a suitable starting point for the creation of computational systems that deal with legal acts. The paper is divided into two parts. Because legal 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,
more » ... cal 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 Keywords legal acts; dynamic legal rules; static legal rules; counts as rules; doctrinal concepts; internal legal concepts PART 1: THE WORLD OF LAW 2 the civilian tradition. In the civilian tradition it is customary to treat all these different events under the common denominator of legal acts. Expressions used to denote them are 'juridical acts' (Von Bar 2009, 183), 'Rechtsgeschäfte' (Larenz and Wolf 2004, 393) and 'actes juridiques' (Terré 2006, 170). In the common law tradition, the notion of a legal act does not play the central role which it has in the civilian tradition, but a similar role is taken by the notion of a power. Where the civilian tradition speaks of a legal act, the common law tradition speaks of the exercise of a power. (Halpin 1996) As a first approximation, legal acts may be characterized as intentional changes in 'the world of law', where the world of law is the set of all facts and things brought about by the law. (This will be made more precise in section 4.) Although quite a bit work in AI and Law more or less touches upon legal acts (e.g. a and b), a systematic treatment of this central legal notion from a computational perspective is still lacking. In this paper I hope to start remedying this deficiency. My intention is to give an account of legal acts that is both realistic from a legal perspective and sufficiently precise to form the basis for a computer implementation. The paper does not describe such an implementation. As will be elaborated in the second part of this paper, the enterprise of providing a systematic treatment of legal acts in general is hazardous for at least two reasons. The one reason is that the idea of a legal act is an abstraction from legal acts as they figure in different legal systems. A general account of legal acts must on the one hand avoid to be so abstract as to be useless, and on the other hand remain an account of legal acts that abstracts from concrete legal systems, and not a characterization of one system's positive law. The second reason is that, to the author's knowledge, no legal system has a set of rules that regulates all legal acts in full. Some systems do not have any rules for legal acts in general, but only rules for, for instance, legislation, administrative dispositions, judicial decisions, and contracts. Other systems -the Netherlands are a case in point -have general rules for some aspects of some kinds of legal acts in general. Despite these complications it is possible to say a 2 In using the term 'legal act', I follow the usage in Von Bar et al. 2009. 3 number of things about legal acts in general. How this is possible is discussed extensively in the second part of this paper. This paper aims at providing an account of legal acts that forms a suitable starting point for the creation of computational systems that deal with these transactions. They might include systems that automate the relation between administrative organs and citizens, and sophisticated systems for automated trade. Systems that simulate the operation of (part of) a legal system probably cannot even reach some level of adequacy if they cannot deal with the dynamics of law that is connected with legal acts. The account given in this paper is on the one hand analytical, in order to be sufficiently precise for purposes of automation, and on the other hand 'logical' in the sense that it is described by means of a logical language. The advantage of such a 'logical' description is that it shows how representation of the world of law in a computational system is possible. That is helpful even if in the end the choice for another formalism of representation is adopted. The paper is divided into two parts. Because legal 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. The first part of the paper deals with this furniture, including its philosophical underpinnings, and at the same time introduces most of the logical apparatus that will be used to deal with it. Only in the second part, legal acts will be the central object of attention. There, a number of crucial notions in connection with legal acts will be discussed, such as validity, avoidance, representation, capacity, competence, and power. Also the consequences of legal acts will be dealt with. The paper is concluded with a comparison with other work and a summary overview of the topics that were dealt with. PRELIMINARIES Most of the examples have been borrowed from Dutch law, because the author is most familiar with that particular legal system. Care has been taken, however, to find examples the relevancy of which is recognizable for readers who have their legal roots in different legal systems, whether they belong to the civilian or to the common law tradition. According to this view of the law, which one might call 'legal constructivism' 3 , rules are tools for the construction of legal arguments. A legal reasoner can use a rule to make the step from the facts that satisfy the rule conditions to the facts of the rule conclusion. Acceptance of the conclusion is then justified because the rule is taken to be valid and its conditions to be satisfied. In this connection, defeasibility plays an important role, because many rules allow for exceptions which are not mentioned in the rule conditions. As a consequence, conclusions that were justified on basis of the rule and the facts that satisfy its conditions may turn out not to be justified anymore in the light of additional information. (Hage 2003) If the role of rules as reasoning tools is to be modeled by logical means, the best way to do so is in a dialogical or at least a dialectical setting.
doi:10.2139/ssrn.1788951 fatcat:xwloq6uybbhztfvxivrwsdxwky