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Capabilities, Powers and Competences
Code for cross-reference: 2021-x
Published in: not published yet
In the jurisprudential literature, the notions of legal power and legal competence are usually not well distinguished, if they are distinguished at all.
For instance, in his classic paper on the subject, Hohfeld (1913) only writes about (legal) powers, not about competences.
Spaak (1994), following Lindahl (1977), claims that the terms ‘competence’ and ‘power’ are used for the same thing by authors on the European continent,
respectively from the Anglo-/American tradition. To confirm this theory, Hart (2012), MacCormick (1981) and Raz (1972) wrote about powers.
Lindahl and Reidhav (2017) remain in the Swedish tradition by claiming that powers and competences are the same.
Kurki (2017), finally, considers competences to be a subset of powers.
The present article tries to articulate the distinction between the two notions.
Moreover, it also aims to embed them in social ontology and the theory of actions. More about that soon.
Obviously, a theory of powers and competences should use the words 'power' and 'competence' by and large in their ordinary meanings.
However, these ordinary meanings are ambiguous, and arguments that develop well-defined notions must unavoidably deviate from some forms of parlance.
The argument in this article should be read as a plea to use the words 'power' and 'competence' in a particular well-defined way,
and does not aim to capture all aspects of how these notions are used in legal practice or the jurisprudential literature.
I do not care much about words. The distinctions that the argument makes matter; the precise words that are used for them do not.
The distinction between powers and competences is blurred by the fact that the word 'power' is ambiguous.
In its broader meaning, 'power' stands for the capability to do something.
This meaning is used in, for instance the sentence ‘Making it to the finale of Wimbledon turned out to be beyond Jaap Hage’s power.’
In its narrower meaning, it stands for the capability to bring about legal consequences by means of a 'juridical act'.
This meaning is used in, for instance, the sentence ‘It lies within the power of the Constitutional Court to declare this provision null and void.’
I will call these latter powers 'legal powers'. The notion of a legal power is related to the notion of a legal competence, although important differences remain.
This article consists of two main parts. The argument of the first part is bottom-up: it starts with a discussion of actions and capabilities to act,
and defines powers as capabilities to act (sections 2-4). Then follows a brief discussion of juridical acts,
because the performance of juridical acts is one important way to exercise powers.
The power to bring about legal consequences by means of a juridical act, the legal power, is a special case of power in the broader sense (section 5).
Legal competences are necessary for the existence of legal powers. This is the argument of the first part of this article and at the same time
the master argument of the article as a whole (section 6).
The second part consists of a number of applications of the theory about competences and powers that was developed in the first part.
These applications are also used for distinguishing my view from other views (section 7). The article is concluded in section 8.
The master argument of the article can be formulated without connecting it to social ontology and with only a modicum of theory of action.
However, that would leave the argument open to objections based on misunderstandings of what capabilities, actions and intentions are.
By embedding the basic argument in a setting of social ontology and action theory, I hope to avoid at least some of these objections.
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ARE THE COGNITIVE SCIENCES RELEVANT FOR LAW?
Code for cross-reference: 2021-x
Published in: not published yet
This paper addresses the question whether the cognitive sciences are relevant for law.
The answer to this question will turn out to be a threefold ‘yes’.
First, if law is traditionally conceived as a set of rules that prescribe what ought to be done,
there is a role for the cognitive sciences in determining the facts of the cases to which the law is to be applied (evidential reasoning).
Legal decision making often involves the application of open-textured concepts,
and the cognitive sciences can study the psychological processes and perhaps also the biases involved in such application.
Moreover, the results of the cognitive sciences may also be important for the evaluation of law, and for determining what would be good law.
A perhaps more ambitious role for cognitive sciences in law has to do with the determination of the content of the law.
If law is a social phenomenon and if social phenomena depend on what goes on in human minds, cognitive sciences can, at least in theory,
study the content of the law. Some would argue that the cognitive sciences could never fulfil this more ambitious role,
because law has to do with what OUGHT to be done, or ought to be the case, while sciences, including cognitive sciences,
can only study what IS the case. It will be argued that this fundamental objection against this role for the cognitive sciences is misguided:
there is no hard difference between IS and OUGHT and even if law belongs to the realm of OUGHT,
cognitive sciences may still be relevant for determining the con-tent of the law.
Finally, the cognitive sciences may disrupt the image of humankind that underlies law.
It turns out that people are less rational than may seem at first sight, that they often do not know what motivates them,
that it is not obvious what actions and agents are, and that it is unclear what the best level of explanation is for human actions or bodily movements.
A change in the image of humankind that underlies law, to reflect the recent insights of the cognitive sciences,
but also of ancient philosophical debates, may have important consequences for the contents of law.
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RESPONSIBILITY, LIABILITY, AND RETRIBUTION
Code for cross-reference: 2021-x
Published in: not published yet
co-authored with Antonia Waltermann
This paper focuses on the relationship between liability in (criminal) law, responsibility, and retribution.
It addresses the question whether law – in particular criminal law – should base liability on responsibility and
whether responsibility should be based on retributivism.
In examining these questions, the aim of the chapter is to present the main lines of the debates surrounding these questions and to examine
whether – and if so, how – compatibilism is a means to reconcile the different positions within the debates.
A central role in this regard is reserved for a social practice we call ‘the practice of agency’
and the tension between two different ways of looking at the world around us, namely the phenomenological and the realist way.
Criminal liability can be justified by reference to consequentialism or retributivism.
The latter fits into a view of the world that includes free will libertarianism; the phenomenological view of the world.
This view includes agents with free will who are responsible for their actions and deserve liability on those grounds.
It can be contrasted with the realist view, which denies the existence of a free will and the possibility of responsibility or liability based on desert.
Compatibilism suggests that these two views of the world can co-exist because our actual social practice of agency does not depend on any philosophical position.
We argue that for compatibilism to be successful in this regard, it needs to be shown that
a. the two views of the world are about the same thing, and
b. that it is desirable for both views of the world to co-exist. The cognitive sciences are relevant for both of these claims.
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Exceptions in International Law
Code for cross-reference: 20xx-x
Published in: Lorand Bartels and Federica Paddeu (eds.), Exceptions in International Law, Oxford University Press 2020, pp. 11-34
co-authored with Antonia Waltermann and Gustavo Arosemena
Together with Logical Tools for legal Pluralism and Logical Tools for International Law,
this article forms a set of related and partially overlapping articles which cover
different aspects of the role of logic in dealing with international law.
Exceptions to rules play an important role in law, and in particular in international law.
A proper understanding of exceptions is therefore of crucial importance for legal practice, legal doctrine and legal theory.
The aim of this article is to contribute to this understanding;
it is not to describe the law or the present usage with regard to rules and exceptions.
As background for the development of a theory about exceptions to rules,
sections 3 and 4 go into some detail concerning rules, rule-formulations, legal sources, reasons and their logic.
In section 5, we will elaborate on the distinction between the applicability and the application of a rule.
A rule is applicable to a case if the rule is valid, and if its ordinary and scope conditions are satisfied by the case.
If a rule is applied to a case, the rule attaches its legal consequences to the facts of the case.
Normally the applicability of a rule to a case is a contributory reason why the rule should be applied to the case.
An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to the case.
In section 6, two main grounds for making an exception to a rule are identified.
First, the maker of the rule may use the rule-exception construction to create a division in the burden of proof.
As argued in section 9, this leads to a so-called undercutting defeater.
Second, there may be reasons why the legal consequences of the rule in the case are undesirable.
This leads to a reason against applying the rule, which needs to be balanced to the applicability of the rule as reason for application.
In this situation we speak of rebutting defeaters (see section 9.2).
An important reason why it is undesirable to apply a rule to a case is that application would generate a conflict with another applicable rule.
Section 8 discusses a number of tools/techniques that can be used to avoid rule conflicts and which would in that way make exceptions superfluous.
Finally, the question may be raised whether legal rules really have exceptions.
Is it not the case that if a rule is well-formulated, it mentions all ‘exceptions’ as negative rule conditions?
Such a well-formulated ‘derived’ rule can then be applied deductively to cases that satisfy the rule conditions.
In sections 10 and 11, this possibility is discussed and it is shown that this use of derived rules blocks the possibility
to model the division of burden of proof which is implicitly given with the rule-exception model.
The article is summarized and concluded in section 12.
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European Integration: A Theme
Code for cross-reference: 2020-x
Published as: Jaap Hage, European Integration: A Theme, Den Haag: Eleven 2020, 208 p.
A teaching book, primarily meant for students who follow the course 'States, Markets and European Integration' at the Maastricht European Law School. It uses European integration as a theme to discuss the history and theories of European integration, the nature of explanation and understanding, the empirical cycle, the economics of free and of international trade and of monetary integration, social ontology and sovereignty, and psychological explanations of euroscepticism.
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THE LIMITED ROLE OF HERMENEUTICS IN LAW
Code for cross-reference: 2019-x
Published in: David Duarte e.a. (eds.), Legal Interpretation and Scientific Knowledge, Cham: Springer 2019, pp. 1-11
Paper presented at the workshop on legal reasoning (Lisbon 22 June 2018)
The main claim of this article is that lawyers should make less use of the hermeneutical method than they do.
The reasons that I will adduce to support this claim are the following:
Law (tout court) is first and foremost an answer to the question of how to act, and more in particular,
the question of which rules to enforce by collective means. As such, law does not coincide with positive law.
Nevertheless, positive law determines the content of the law to a large extent. It does so for two reasons.
The first reason is that positive law contributes to legal certainty, and that legal certainty is very important
for the question concerning which rules should be enforced by collective means.
The second reason is that respect for the positive law, which was created by democratic bodies, implies respect for democracy.
However, positive law can only contribute to legal certainty if its application is predictable.
If the positive law can be interpreted in more than one way, its application will not be predictable.
In that case the positive law is not relevant for the content of the law tout court.
Theories about the interpretation of positive law (hermeneutical theories) are particularly relevant where
positive law can be interpreted in different ways, that is: where positive law is not relevant for the content of the law tout court.
Therefore, hermeneutical theories are not relevant for the content of the law and lawyers should not waste their time on them.
A similar argument can be given for the democratic legitimation of positive law.
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AUTONOMY, REASON AND BIAS IN CONTRACT LAW
Code for cross-reference: 2019-x
Published in: Antonia Waltermann e.a. (eds), Law, Science, Rationality, Den Haag: Eleven 2019, pp. 31-50
The cognitive sciences provide us in high frequency with insights in the functioning of the human mind.
One of these insights is that human decision making is often not rational.
The law has tools to deal with lapses of rationality, but it works on the basis of an image of mankind according to which humans are,
and typically act, rationally. This raises the question whether law should be more adaptive to the stream of new insights produced
by the cognitive sciences. The present article aims to answer this general question for an important field of law: the law of contract.
It shows that there are good reasons to assume that the conclusion of a contract is often not a rational event.
The law can follow two strategies in dealing with the insight that contracts, and – extrapolating a bit – juridical acts in general –
are often not created rationally. One strategy is to use the tools which law already has, for dealing with irrationality
for newly discovered kinds of cases such as the anchoring bias.
Another strategy is to redesign substantial parts of the law to take into consideration that subjective preferences
often do not reflect objective interests. Which strategy is the best depends on the frequency of situations in
which subjective preferences do not reflect objective interests.
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TWO KINDS OF NORMATIVITY
Code for cross-reference: 2018-x
Published in: Stefano Bertea (ed.), Contemporary Perspectives on Legal Obligation, London: Routledge (2021), pp. 18-33
Paper presented at the Workshop 'Current Theories of Legal Obligation', Frankfurt 4-5 July 2018
There are at least two kinds of normativity. They can be distinguished easily, but nevertheless they are sometimes confused.
This article aims to clarify the distinction and thereby to prevent more confusion.
The one kind of normativity has to do with what ought to be done, or what ought to be the case.
The other kind of normativity has to do with facts that exist as the result of applying a rule.
Being deontic and being rule-based do not exclude each other, but being deontic is not a subcategory of being rule-based, and neither is it the other way around.
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What is Legal Validity? Lessons from Soft Law
Code for cross-reference: 2018-x
Published in: P. Westerman e.a.(eds.), Legal Validity and Soft Law, Dordrecht: Springer Nature 2018, pp. 19-46
The purpose of this article is to use the elusive phenomena of legal validity and soft law to illuminate each other.
Three notions of legal validity are distinguished.
Source validity and binding force (in a special technical sense) are internal legal notions that are used in legal argumentation.
On the contrary, efficacy (also in a special technical sense) is an external notion, used
in descriptive theories about law such as sociology of law or legal theory.
Source validity is a characteristic of, amongst others, legal sources and something was validly made in this sense
if it was made by a competent agent in accordance with the relevant procedure.
A rule has binding force if this rule exists and generates legal consequences when applied.
A rule is efficacious if its consequences are accepted by the relevant legal subjects, including officials.
With these three notions of legal validity in place, the focus of the argument shifts to the nature of soft law
and how it combines with the three notions of legal validity. For a proper analysis of soft law three elements are required.
First it is necessary to replace the traditional rule-based view of legal reasoning by a view in which reasons, rather than rules,
take the central place. For this purpose a special logic for reasons, reason-based logic, is introduced into the argument.
Second it is necessary to replace the view of legal justification according to which justification consists of an
argument with the object of justification as its conclusion, by a view that emphasizes the dialogical nature of justification.
For this purpose, a dialogical variant of reason-based logic is briefly explained.
And third, the view of legal reasoning as a reconstruction of legal effects that exist independently has to be replaced
by a constructivist view according to which legal consequences are determined by means of legal argumentation.
On the basis of these three changes of perspective, the definition of soft law as law that can less easily be used
in legal argumentation becomes understandable.
Moreover, the tools that have become available by the introduction of the three notions of validity, dialogical
reason-based logic and constructivism make it possible to identify different reasons why legal rules may be soft:
limited applicability, dubious binding force, frequent exceptions, and weak reasons for the rule consequences.
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Two Concepts of Constitutive Rules
Code for cross-reference: 2018-x
Published in: Argumenta Issue 7
In this article, it is argued that rules have two main functions, the practice-defining function and the constraining (fact-to-fact) function. These two functions are compatible. In their function as constraints, some rules are also indirectly regulative. In both of their functions, rules differ from the summaries (rules of thumb) that Rawls discussed and opposed to the constitutive (fact-to-fact) rules which make that some decisions are the right ones. In his work, first on the philosophy of language and later on social ontology, Searle focused on one kind of constitutive rules: counts-as rules, which are constitutive in the sense that they attach new facts to the existence of “old” ones. In doing so, Searle created the scientific interest in constitutive rules which they deserve. However, because of his narrow focus on counts-as rules, Searle also created the impression that counts-as rules are all there is to constitutive rules. This impression is wrong, if only because it overlooks dynamic rules.
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Objectivity of law and objectivity about law
Code for cross-reference: 2018-x
Published in: not published yet
The notion of objectivity derives its sense from the view that there is a reality that does not depend on beliefs or opinions,
or on any operation of the mind, and that ideally our knowledge is a faithful reflection of parts of this reality.
This view supports two notions of objectivity. One notion is the objectivity of a mind-independent world;
the other notion is the objectivity of a faithful representation of this world.
In connection to law, the first notion concerns the objectivity of law, while the second notion concerns the objectivity about law.
The objectivity about law seems to depend on the objectivity of law,
because if the law itself is not objective, it is doubtful whether objectivity about law is at all possible.
This article investigates whether, and to what extent, the distinction between objectivity about law and objectivity of law makes sense.
Section 2 starts with a discussion of the objectivity of knowledge and its desirability.
Section 3 continues with an introduction of the conceptual framework for this contribution.
Section 4 deals with rules. Section 5 addresses objective facts and ‘things’ (individuals),
while the sections 6-9 focus on social facts, which are for law the most interesting category.
Section 10 summarizes the argument and draws some conclusions.
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Of Norms
Code for cross-reference: 2018-x
Published in: G. Bongiovanni e.a. (eds.), Handbook of Legal Reasoning and Argumentation, Dordrecht: Springer Nature 2018, pp. 103-138.
This contribution aims to clarify the notion of a norm by elaborating the idea that norms are rules that lead to deontic consequences.
The elaboration focuses both on the nature of rules and on the nature of deontic facts.
Rules, it is argued, are a kind of constraints on possible worlds.
They determine which facts necessarily go together or cannot go together.
Three kinds of rules are distinguished: dynamic rules which attach consequences to the occurrence of events,
fact-to-fact rules which attach one fact to the presence of some other fact, and counts-as rules,
which make that some things (often events) also counts as something else.
The very existence of a rule makes that some fact obtains: the factual counterpart of the rule.
The descriptive sentence that expresses this fact – the descriptive counterpart of the rule - is an open generalization
and this generalization often has the same formulation as the rule from which it derives its truth.
Many things that have been defended in connection with the logic of norms are better defendable
when interpreted as dealing with these descriptive counterparts.
By distinguishing between objective facts, brute social facts, and rule-based facts
and thereby introducing facts that are mind-dependent, an attempt is made to overcome resistance
against the idea that facts might be normative, that there might be deontic facts.
Deontic facts are facts that tend to induce a motivation to comply with them in agents to which they apply.
They are most often the result of the application of fact-to-fact rules (duties) or dynamic rules (obligations).
However, they can also be the result of mere acceptance, or perhaps even exist because that is rational.
A distinction is made between two kinds of basic deontic facts - the existence of duties and of obligations –
and two kinds of supervening deontic facts: being obligated and owing to do something.
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Foundations and Building Blocks of Law (Book)
Code for cross-reference: 2018-x
Published by: Eleven International Publishing.
See Foundations and Building Blocks of Law
This books presents and elaborates my work of the last decade on basic legal and deontic concepts. It deals, amongst others, with:
- the nature, and the different kinds, of rules
- the nature and objectivity of different kinds of facts
- the meanings of facts (as opposed to words or sentences)
- normativity
- the ‘deontic furniture of the world’ (what many indiscriminately call ‘norms’)
- validity (both of sources and of rules)
- powers and competences (not the same)
- juridical acts (legal transactions)
- rights and the Hohfeldian concepts
- legal status
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Jaap Hage, Bram Akkermans and Antonia Walterman (eds.): Introduction to Law (2nd edition of the book)
Code for cross-reference: 2017-x
Published by: Springer.
See Introduction to Law
This book provides in 15 chapters an introduction to law in general,
rather than to the law of a particular jurisdiction.
It exemplifies a unique way of looking at legal education, and is used in many different universities, in several countries.
The chapters deal with:
Sources of Law
Legal Reasoning
Basic Concepts of Law
The Law of Contract
Property Law
Tort Law
Criminal Law
Constitutional Law
Administrative Law
The Law of Europe
Tax Law
International Law
Humann Rights
Elements of Procedural Law
Philosophy of Law
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THEORETICAL FOUNDATIONS FOR THE RESPONSIBILITY OF AUTONOMOUS AGENTS
Code for cross-reference: 20xx-x
Published in: Artificial Intelligence and Law, vol 25 (2017), pp. 255-271-287 https://link.springer.com/article/10.1007/s10506-017-9208-7
This article partially overlaps with "The Compatibilist Fallacy".
Together they develop the idea what the lack of free will and traditional responsibility means for law.
In this article, the question will be addressed whether autonomous agents can be held responsible for their acts.
The argument, which leads to the conclusion that autonomous agents can be held responsible for their acts,
is based on an analogy between human beings and autonomous agents and its main element
is that if humans can be held responsible, so can, in principle, autonomous agents.
This argument can only be convincing if the relevant similarities between human beings and autonomous
agents are more important than the relevant differences. An important part of the argument
is therefore aimed at showing precisely this.
The main point here is that the argument does not claim that autonomous agents are actually like human beings,
but rather that human beings are actually like autonomous agents.
This analogy can only lead to the conclusion that autonomous agents can be held responsible if it
is assumed that human beings can be held responsible, even if they – as the argument assumes – are like autonomous agents.
This is argued indeed, and leads to the transition from the question whether human beings and autonomous agents
can be held responsible and liable to the question whether it is desirable to do so.
The answer to this last question is guardedly affirmative: it depends on the circumstances, but yes,
sometimes it is desirable to hold human beings and autonomous agents responsible and liable for what they did.
Therefore it sometimes makes sense to do so.
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The Compatibilist Fallacy
Code for cross-reference: 20xx-x
Published in: Jerzy Stellmach, Bartosz Brozek and Lukasz Kurek (eds.), The Provinde of Jurisprudence Naturalized , pp. 82-103
Also published online in a lighly different version in revus
There is an issue with free will and responsibility. Some believe that humans lack a free will
and that free will is a necessary condition for responsibility.
The conclusion they validly draw from these two premises is that humans cannot be responsible for their doings.
Others believe that humans can be, and normally are, responsible for what they do and in support of this belief
they either assume that humans do have the free will that is necessary for responsibility, or that free will is not necessary for responsibility.
These others are called ‘compatibilists’, because they assume that responsibility is compatible with a lack of free will.
The main conclusion of this article will be that compatibilists are right and wrong at the same time.
They are right in their claim that responsibility is compatible with the absence of free will,
but they are wrong to assume that compatibility can be founded on our social practice.
This assumption would involve the naturalistic fallacy, and the compatibilist fallacy would be the nth instantiation of this naturalistic fallacy.
The argument that leads to this conclusion that compatibilists are both right and wrong
is based on the starting point that there are two fundamentally different ways of looking at humans as agents and at their acts.
One way starts from the way in which people subjectively experience their acts,
including their own role as agents who perform these acts.
I call this the ‘phenomenological view’.
The second way starts from the facts as they can be established by the sciences,
facts which are assumed to be independent of our knowledge of them or the way we experience them.
I call this the ‘realist view’.
The main message of this article is that these two views are hard to combine into a single approach to responsibility,
but that a separation, as compatibilists propose, is not well possible.
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Logical Techniques for International Law
Code for cross-reference: 20xx-x
Published in: D. Krimphove and G.M. Lentner, Law and Logic. Contemporary Issues, pp. 125-142
This article was co-authored with Antonia Waltermann
Together with Logical Tools for legal Pluralism and Exceptions in International Law,
this article forms a set of related and partially overlapping articles which cover
different aspects of the role of logic in dealing with international law.
Conflicts of rules occur when it is possible that two or more rules attach incompatible legal consequences to a case.
Such conflicts can be conflicts of imposition, where two rules impose incompatible facts upon the world,
or they can be conflicts of compliance, where two rules demand incompatible behavior from one and the same agent.
These conflicts can occur between rules of the same system, but equally between rules of different (legal) systems.
International law is not excluded from this development, and is in fact in many ways particularly prone to such rule conflicts.
To deal with these conflicts, it is often necessary to make exceptions to one or more of the rules that are involved in the conflicts.
One major purpose of this contribution is to investigate which techniques logic has on offer
to deal with conflicts between rules and the exceptions that are needed in that connection.
A second major purpose of the present contribution is to see what logic can offer us as techniques to avoid rule conflicts.
If only one of two conflicting rules is applicable to a case, there is no conflict.
Although logic can provide us with techniques to avoid and to handle conflicts of rules, it cannot make the decisions for us.
The knowledge which techniques are available only gives us an indication of what is possible.
Next to that we need a view on what is desirable, and this view requires the study of law, politics, international relations and morality.
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Anything Goes. An Apology for Parallel Distributed Legal Science
Code for cross-reference: 2016-x
Published in: Informal Logic 39 no. 2 (2016), p. 271-287
At first sight doctrinal legal science seems to lack a proper method, and perhaps even a proper purpose. The aim of this contribution is to give an interpretation of doctrinal legal science which makes the value of doctrinal legal science visible. The backbone of the argument consists of two theses. The first thesis is that coherence - in an in law unusual sense - plays a crucial role in legal science. The second thesis is that, as any science, doctrinal legal science is a social enterprise and that this should be taken into account in any attempt to make sense of legal science. Based on these two theses, a picture of doctrinal legal science is given according to which it consists of parallel distributed construction of consistent, comprehensive and expansive sets of legal beliefs. Given this picture, seeming weaknesses of doctrinal legal science turn out to be actual strengths.
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Logicical Tools for Legal Pluralism
Code for cross-reference: 2016-x
Published in: H.P. Glenn and L.D. Smith (eds.), Law and the New Logics, pp. 89-108
This article provides an overview of the logical tools that are available to deal with the existence of multiple legal systems and the conflicts between them.
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Facts, Values and Norms
Code for cross-reference: 2016-x
Published in: Sanne Taekema, Bart van Klink and Wouter de Been (eds.), Facts and Norms in Law, Edward Elgar 2016, p. 23-49
Philosophical and methodological discussions with regard to normative and value judgments presuppose the availability of a set of clear concepts by means of which these discussions can be made fruitful. To provide such a framework, or at least its beginnings, the present paper makes and explains distinctions between, amongst others, facts and descriptions thereof, kinds of facts, kinds of deontic (normative) facts, kinds of rules, deontic facts and norms, and facts and values. By means of some examples, the usefulness of the introduced concepts for methodological issues is illustrated.
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Moeten belastingen rechtvaardig zijn?
Code for cross-reference: 2016-2
Published in: J.H,M. Arts, B. Jansen en J.J.A.M. Korving (red.), De internationalisering van het belastingrecht, Maastricht: Shaker Publishing 2016, p. 81-88
This article (in Dutch) contains a brief argument why taxes should be good, but not necessarily just.
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Facts and meaning
Code for cross-reference: 2016-1
Downloads: [PDF]
Published in: Jerzy Stelmach, Bartosz Brozek and Lukasz Kurek (eds.), The Emergence of Normative Orders, Krakow: Copernicus Center, p. 13-42.
The purpose of this paper is to give an account of the world and the facts in it,
that makes room for normativity as element of the world, under the recognition that norms must function
as yardsticks by means of which the world can be evaluated. The key element in this account is the adoption of a ‘rich’ ontology
that allows facts to be mind-dependent, and more in particular to have facts with inherent meaning.
The first step of the argument is to distinguish between three kinds of facts, from which two kinds are somehow mind-dependent.
The crucial step of the argument that facts can have meaning is to acknowledge that some facts have this meaning inherently:
they could not be the same facts without having this meaning.
Language makes the existence of these facts possible by having special words, such as “duty”, “beautiful”, and “cowardice” to denote them.
In this way language creates a rich ontology that not only allows meaningless ‘brute’ facts
(if it even allows these), but also facts with inherent meaning.
Building on the insight that facts can have inherent meaning a theory of reasons for acting is developed.
The argument starts with an account of what is a reason for a particular person to do something (a personal reason).
Then it tackles the question to what extent such personal reasons must be rational and more in particular
whether personal reasons can be based on false beliefs.
The account of personal reasons is expanded to cover facts that count as reasons within a social group, and reasons based on rules.
Then the argument returns more explicitly to normativity again, by discussing should- and ought-facts.
These facts are arguably elements of the world, but can nevertheless also function as a yardstick against which behaviour can be measured.
The paper is concluded with some very brief observations on the assumption that reality must be mind-independent.
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Recht en utilisme
Code for cross-reference: 2015-x
Downloads: [HTML] [PDF] [Law and method] )
Published in: The article was published in the journal Law and Method.
This paper, which is written in Dutch, contains a plea to use classical utilitarianism as guideline for legislation.
After a brief introduction explaining the advantages of utilitarianism, most of the article consists of a discussion
of traditional objections against utilitarianism.
The most important part of the article is devoted to the objection that utilitarianism leads to counterintuitive results.
The refutation of this objection deals with the (quite limited) role of intuition in ethical theorizing and focuses in this connection on coherentism
as method for ethics.
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The (onto)logical structure of law. A conceptual toolkit for legislators
Code for cross-reference: 2015-x
Published in: Michal Araszkiewicz and Krzysztof Pleszka, Logic in the theory and practice of lawmaking, Cham: Springer 2015, p. 3-48
The work of a legislator is to contribute to the set of rules that gives structure to the ‘world of law’.
This world of law consists of all the facts, rules and other entities that exist through the application of legal rules.
Logic may well be interpreted as a theory of the (logically) necessary relations between facts in the world.
This article combines these two ways of looking at legislation and logic.
It analyses a number of central legal notions such as right, duty, obligation,
power and competence in order to provide insight into the structure of the world of law.
The relevance of this insight for legislators is illustrated by means of an example about the transfer of a piece of land,
which shows how facts in the world of law are glued together by different kind of rules.
It is also illustrated at the hand of the question how law can affect the ‘outside world’
and how legislators can contribute to this impact by providing proper ‘pathways through the world of law’.
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Bram Akkermans, Jaap Hage, Nicole Kornet and Jan Smits, Who does what in European Private Law? An Introduction
Code for cross-reference: 2015-x
Published in: Bram Akkermans et al (eds.), Who Does What? On the allocation of regulatory competences in European Private Law, 1-14
This introduction to the book pays amongst others attention to the methods used by the authors of the different chapters in arguing why a particular part of European private law should be regulated on a particular level. In this way it connects the relatively abstract chapter on the justification of value judgments to the more concrete chapters.
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The Justification of Value Judgments.
Theoretical Foundations for Arguments about the Best Level to Regulate European Private Law
Code for cross-reference: 2015-x
Published in: Bram Akkermans et al (eds.), Who Does What? On the allocation of regulatory competences in European Private Law, 15-56
This article discusses the justification of value judgments.
It distinguishes between monological approaches, according to which justification is a single a-temporal argument,
and procedural approaches according to which justification is a process stretched out in time,
and very often consists of a kind of dialogue between the proponent of a thesis and an audience which the proponent aims to convince.
The article uses the procedural approach to elucidate how an argument can be presented in, for example, a scientific paper.
Within the category of monological approaches, a distinction is made between argumentation in the form of a deductively valid argument
or at least something similar, and argumentation based on balancing reasons for and against a thesis.
Special attention is paid to the issues that arise from the fact that value judgments are supervenient,
can be universalised and presuppose a standard which has no truth value. Comparative value judgments,
stating that one alternative is better than some other alternative, or even the best, also receive special attention.
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On which level should private law in Europe be created?
Code for cross-reference: 2015-x
Published in: Bram Akkermans et al (eds.), Who Does What? On the allocation of regulatory competences in European Private Law, 73-96
In this paper an attempt is made to answer the question what is the proper level of regulation for private law in Europe.
It starts with a methodological section that explains how this question can be made tractable by considering only three plausible alternative levels: t
hose of the EU, national states and private agents and choosing the best of these three.
Then Utilitarianism is proposed as the ultimate standard to deal with evaluative questions. In this connection Utilitarianism is briefly explained.
The paper considers two main kinds of arguments why a particular level of regulation should be adopted.
One kind concerns the quality of the rules, and in this connection the expertise of the rule-makes, the avoidance of externalities,
the role of coherence, and the scope of application of the rules are taken into consideration.
It depends on the circumstances of the case what is the best level of regulation, and more often than not the relevant data are not yet available.
However, the paper indicates what kinds of data would be necessary in case utilitarianism is adopted as the ultimate standard.
The second kind of argument considers autonomy as a reason why rules should be made by those to which the rules will be applicable.
It is argued that autonomy may be relevant, but in the light of the choice for Utilitarianism only if the exercise of autonomy leads to more happiness,
which is not necessarily always the case.
The choice for a particular level of regulation should not be made in abstraction from the actual situation.
Therefore it is proposed to replace the question what the best level of regulation is by the question what is the best transition from the actual situation to a better situation.
After an intermediate summary, the paper is concluded by a comparison of its findings with the results of a paper by Jan Smits that addresses more or less the same questions.
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Bram Akkermans, Jaap Hage, Nicole Kornet and Jan Smits (eds.), Who Does What? On the allocation of regulatory competences in European Private Law, Cambridge: Intersentia 2015.
Edited Volume
Code for cross-reference: 2015-x
A book with papers that discuss the allocation of regulatory competences in the European Union. Apart from four more general contributions, the book contains case studies about different fields of private law in Europe.
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Separating rules from normativity
Code for cross-reference: 2015-x
Downloads: [PDF]
Published in: Michal Araszkiewicz et al (eds.), Problems of Normativity, Rules and Rule-Following, Cham: Springer 2015, 13-30
Often the notion of a rule is connected to the guidance of behaviour.
The expression ‘following a rule’ nicely illustrates this.
The aim of this paper is to show that this connection between rules and normativity is much looser than is often assumed,
and that - although there are rules which aim to guide behaviour - the notion of a rule and the notion of normativity are not necessarily connected.
This aim is pursued by two arguments.
The first argument tries to show that rules that guide behaviour,
regulative rules, are at the same time constitutive rules and that therefore the opposition of regulative and constitutive rules is a bogus one.
To this purpose, it is first shown that there are more constitutive rules than counts as-rules only.
The second step is to argue that there can be ‘deontic facts’, facts that specify what ought to be done, and which can therefore guide behaviour.
The third step is to show that two main kinds of ‘regulative’ rules are in fact duty imposing fact-to-fact rules or obligation-creating dynamic rules,
both kinds of constitutive rules. The fourth step is to argue, very briefly, that other kinds of regulative rules are, for similar reasons,
also constitutive rules and that therefore regulative rules are a subcategory of constitutive rules.
The second argument tries to give an account of rules as constitutive rules by presenting rules as constraints on which facts can go together,
or - to state the same in more technical jargon - as constraints on possible worlds.
To this purpose the argument takes from model-theoretic semantics the intuitions of a possible world and of constraints
that define which worlds count as possible.
The technical aspects of model-theoretic semantics are mostly ignored, however, since they are irrelevant for the purposes of this paper.
The paper gives a mostly informal indication of the logic of constitutive rules by positing them as ‘soft constraints’ in
between the constraints that define sets of possible worlds and declarative sentences which are contingently true or false.
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Recht als rede: een les uit de geschiedenis van het privaatrecht
Code for cross-reference: 2014-Y
Published in: R. de Groot e.a. (red.), Kritiek op recht, liber amicorum Gerrit van Maanen, Deventer: Kluwer 2014, 153-176
This article uses the Quint/Te Poel decision of the Dutch Supreme Court
to argue that reason plays a crucial role in determining the content of law.
The role of positive law lies mainly in promoting legal certainty, and is subordinate to the role of reason.
See also 2011 Weg met de hermeneutiek in het recht.
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Comparative Law as Method and the Method of Comparative Law
Code for cross-reference: 2014-x
Published in: Maurice Adams and Dirk Heirbaut (eds.), The Method and Culture of Comparative Law. Essays in Honour of Mark Van Hoecke, Hart Publishing, Oxford and Portland, Oregon 2014, 37-52.
The article addresses both the justificatory role of comparative law within legal research (comparative law as method)
and the method of comparative law itself. In this connection two questions will be answered:
1. Is comparative law a method, or a set of methods, for legal research?
2. Does comparative law have a proper method of its own?
In answering these two questions, the article develops an account of the nature of a scientific method and the relation between method and methodology.
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Conceptual Tools for Legislators. Part 2: Pathways through the world of law
Code for cross-reference: 2013-x
Downloads: [PDF]
Published in: The Theory and Practice of Legislation 1 (2013), issue 2, 277- 304
The main purpose of this article is to show a number of implications if legislation is seen as a way of building the world of law.
The focus in this connection is on the ways in which the world of law relates to the rest of the world.
The paper istarts with distinguishing between two perspectives on legal rules, the ‘world of law’ perspective that is central in this paper,
and the perspective according to which rules are tools in legal argumentation.
Second the idea of a more or less separate world of law is elaborated by distinguishing between kinds of facts,
by comparing the roles of causal laws and legal rules in structuring the World,
and by studying how the different kinds of facts can influence each other.
This leads to the third topic of this article, namely the issue how the world of law interfaces with the rest of the world, the ‘outside world’.
The basic idea in this connection is that facts in the outside world are transformed by counts as rules into facts inside the world of law
(‘input facts’) and that these input facts lead to other facts in the world of law, ending with so-called ‘output facts’
which lead human beings to bringing about changes in the outside world. The chain of facts within the world of law from input facts to
output facts is called a ‘pathway through the world of law’.
The conclusion formulates and briefly argues for the recommendation to legislators to pay attention to the
‘pathways through the world of law’ which they build by maintaining the set of legal rules.
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Can Legal Theory be Objective?
Code for cross-reference: 2013-x
Downloads: [PDF]
Published in: Jaakko Husa and Mark Van Hoecke (eds.), Objectivity in Law and Legal Reasoning, Oxford: Hart 2013, 23-44
This paper was presented at the 6th Benelux Scandinavian Symposium on Legal Theory (Rovaniemi June 2011).
It argues that, despite the many differences between the positive law of different jurisdictions, analytical legal theory can be objective.
This is the case because the objects of legal theory, e.g. the logic of legal rules, or the nature of juridical acts,
can be fixed by means of conventions.
This finding may seem trivial, but nevertheless is not. The strategy to delineate the scope of 'empirical' concepts by means of a
conventions is employed quite frequently and makes it possible to gain a priori knowledge about actually existing parts
of reality to the extent that they satisfy the conventionally defined criteria that delineate a kind.
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Three kinds of coherentism
Code for cross-reference: 2013-x
Downloads: [PDF]
Published in: Michal Araszkiewicz and Jaromir Savelka (eds.), Coherence: Insights from Philosophy, Jurisprudence and Artificial Intelligence, Dordrecht: Springer 2013, 1-32
This paper aims to show what makes coherentism attractive in comparison to its main competitor, foundationalism.
It also aims to show that constraint satisfaction is not the most attractive way to give content to the notion of coherence.
In order to achieve these purposes, the paper distinguishes between epistemic, constructive and integrated coherentism.
Epistemic coherentism treats coherence as a test for knowledge about a world which exists independently (ontological realism).
Constructive coherentism uses coherence as a standard to determine what the facts are in a particular domain. This is a form of ontological idealism.
Usually, both epistemic and constructive coherentism apply the coherence test to only part of the positions (beliefs etc.) which a person accepts.
The definition of and standards for coherence, just as usually logic and standards for belief revision are kept outside the process
of making a position set coherent.
Integrated coherentism differs by including everything in the coherence creating process.
A set of positions is integratedly coherent if and only if it satisfies the standards included in the set of positions itself.
The paper argues that integrated coherentism best fits with the ideas underlying coherentism and that it is incompatible
with coherence as constraint satisfaction in a strict sense.
See also 2011 Integrated Coherentism
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The deontic furniture of the world
Code for cross-reference: 2013-x
Downloads: [PDF]
Published in: J. Stellmach, B. Brozek and M. Hohol (eds.), The Many Faces of Normativity, Copernicus Center Press, Krakow 2013, 73-114.
This paper aims to elucidate the nature of normativity by discussing the ‘deontic furniture of the world’, the concepts which embody this normativity.
In its first part, the paper deals with facts and rules, the different kinds of rules, and the difference between facts and rules.
Three important conclusions are that:
· the well-known distinction between constitutive and regulative rules is a dubitable one;
· there is a real important difference between static and dynamic rules, and that there are at least two kinds of static rules;
· depending on the meaning assigned to ‘norm’ either there is no difference between norms and facts, or the difference is rather uninteresting.
In its second part, the paper attempts to elucidate the nature of normativity by addressing the relations between motivating and guiding reasons.
Two important conclusions of this discussion are that:
· there are two ‘families’ of guiding reasons, one based on the motivation of actors, and the other on reason;
· not all guiding reasons are reasons why something ought to be done.
In its third part, the paper makes some distinctions between the central normative notions of duty, obligation, being obligated,
being obliged and ought to do.
Two important conclusions of this discussion are that:
· there is a clear difference between duties and obligations and neither one of them is an ought;
· the fact that P should, or ought to, do A is not a reason for P to do A.
The theme of the first part returns in: 2013 Separating rules from normativity
The theme of the second part returns in: 2013 Facts and meaning
The theme of the third part returns in: 2014 The (onto)logical structure of law. A conceptual toolkit for legislators
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Conceptual Tools for Legislators. Part 1: Rules and Norms
Code for cross-reference: 2012-x
Downloads: [PDF]
Published in: Legisprudence 6 (2012), issue 1, 77-98.
This paper aims to contribute to the precision of legislative language.
Through the analysis of a number of central legal concepts and a discussion of the mutual relations between these concepts,
it aims to provide legislators with conceptual tools that facilitate precise legislative drafting.
The paper starts with a foundational section that discusses the relation between language and reality.
As a follow-up, the nature of rules is addressed, and a distinction is made between three main categories of rules.
Then the focus moves to norms as a subcategory of rules. I
n this connection much attention is devoted to the so-called deontic facts, which are brought about by norms.
Finally, the findings are summarised and related to the topics of the other three projected papers on conceptual tools for legislators.
Many topics of this paper return in: 2015-x The (onto)logical structure of law. A conceptual toolkit for legislators
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JURIDICAL ACTS AND THE GAP BETWEEN IS AND OUGHT
Code for cross-reference: 2012-x
Published in: Netherlands Journal of Legal Philosophy 43 (2012), vol. 1, 50-66.
This paper argues that Searle’s argument how to derive ought from is, is basically correct,
but that it would become stronger if the argument would rely on contracts, rather than on promises.
The reason is that contracts do not necessarily lead to obligations and that shows that the way in which
contracts lead to new facts has nothing to do with obligations or oughts.
That is even the case when a contract is used to create an obligation.
The mode of operation of contracts and other juridical acts is that of constitutive acts,
acts which bring about changes in the world through the operation of rules.
One kind of change is the generation of an ought where previously there was none.
If one simulates the generation of an ought in the form of an argument, this may very well be an argument with only is-premises and an ought-conclusion.
A legal ought can be generated by applying a rule, for instance a rule about the creation of obligations, to facts.
The existence (validity) of a legal rule is a matter of fact, and the facts to which the rule is applied are - obviously - also facts.
The application of such a ‘factual’ rule to ‘factual’ facts may lead to a legal ought.
It is in this little spectacular way that the law can be on the borderline of is and ought.
The central theme of this article is, in a different setting, also the subject of: 2013-x Separating rules from normativity
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Legal Reasoning and the Construction of Law
Code for cross-reference: 2012-x
Downloads: [PDF]
Published in: i-Lex, vol. 7, issue 16, 81-105
http://www.i-lex.it/us/previous-issues/volume-7/issue-16/103-legal-reasoning-and-the-construction-of-law.htm
There are two competing views on what makes propositions of law true.
The one, legal realism, takes it that propositions of law are true because they reflect an independently existing reality of legal facts.
These facts would be generated by legal rules which would operate autonomously, without need for human intervention.
The institutional theory of law illustrates this view. On this view it is the function of legal arguments to reconstruct
the results of the autonomous rule application.
The other view is legal constructivism, according to which propositions of law are true
because they are the conclusion of the best (possible) legal argument. On this view the function of legal argumentation is constitutive:
argumentation determines the contents of the law.
This paper argues that legal realism is not very plausible because it is based on metaphysical assumptions which cannot be verified or falsified.
Legal constructivism would be more plausible, in particular in the variant where the law is determined by the best actual legal argument.
This position is defended by means of a brief exposition of the so-called ‘Erlanger-approach’ to legal justification.
This article expands the argument of Construction or Reconstruction?
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Hoe moet recht worden onderwezen?
Code for cross-reference: 2012-x
Downloads: [PDF]
Published in: Recht en Methode 2012/2, 25-42
The paper starts from the, argued, assumption that law is the answer to a normative question, and not a social phenomenon. Based on that assumption a proposal for an alternative bachelor teaching program in law is presented. According to this proposal, the bachelor program (in contrast to the master program) should hardly contain any positive law.
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Construction or reconstruction?
Code for cross-reference: 2012-x
Downloads: [PDF]
Published in: C. Dahlman and E. Feteris (eds.), Legal Argumentation Theory: Cross-Disciplinary Perspectives, Dordrecht: Springer 2012, 125-144
This is a completely rewritten version of the paper that was presented at the IVR 2011 workshop on Legal Argumentation. The paper discusses whether legal reasoning merely aims at finding out what the legal consequences of a case are, or that it constitutes these consequences. The conclusion is that the consequences are constituted, despite the appearance, especially in easy cases, that this is different.
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Weg met de hermeneutiek in het recht
Code for cross-reference: 2012-x
Downloads: [PDF]
Published in: E.T. Feteris e.a. (red.), Gewogen oordelen. Essays over argumentatie en recht, Den Haag: BJu 2012, 41-54
The paper that belongs to the presentation 'Zin en onzin van de hermeneutiek'. It argues that there is hardly a place for hermeneutics in legal reasoning, because legal reasoning aims at finding good rules, and because the interpretation of texts is not a suitable method for finding good rules.
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Legal Transactions and the Legal Ought
Code for cross-reference: 2011-x
Downloads: [PDF]
Published in: Jerzy Stellmach and Bartosz Brozek (eds.), The Normativity of Law, Krakow: Copernicus Press 2011, p. 167-190
This paper discusses Searle's derivation of 'ought' from 'is' and makes and discusses distinctions between duty, obligation, should and ought.
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The uses of comparative law
Code for cross-reference: 2011-x
Downloads: [PDF]
Published in: A.W. Heringa and B. Akkermans, Educating European Lawyers, Cambridge e.a.: Intersentia 2011, 65-77
This paper argues that the main function of comparative law is heuristic, but that comparative law can play a role as a method for some research questions. See also 2014 Comparative Law as Method and the Method of Comparative Law.
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Elusive normativity
Book review of S. Bertea, The Normative Claim of Law
Code for cross-reference: 2011-x
Downloads: [PDF]
Published in: Rechtsfilosofie en Rechtstheorie 2011/2, 146-168
This extended book review contains a discussion of the nature of normativity and the relation between motivating and guiding reasons.
See also 2013 Facts and Meaning.
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A Model of Juridical Acts, parts 1 and 2
Code for cross-reference: 2011-x
Published in: Artificial Intelligence and Law 19 (2011), 23-73
These two papers contain an abstract theory of juridical acts in general, and a logical analysis thereof.
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Integrated coherentism
Code for cross-reference: 2011-x
Downloads: [PDF]
Published in: Not published in the present form.
This is an updated version of the papers which appeared in Ratio Juris 17 (2004), 87-105
and as chapter 3: Law and Coherence in my book Studies in Legal Logic.
The paper illustrates the operation of integrated coherentism as applied to the relation between legal rules and their underlying principles.
The paper is supplemented by 2012 Thee kinds of coherentism.
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The Method of a Truly Normative Legal Science
Code for cross-reference: 2011-x
Downloads: [PDF]
Published in: M van Hoecke (ed.), Methodologies of Legal Research, Oxford: Hart Publishing, 19-44
The paper argues that and how (through coherentism) it is possible to create a truly normative science of law
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What is a legal transaction?
Code for cross-reference: 2009-x
Downloads: [PDF]
Published in: M. del Mar and Z. Bankowski (eds.), Law as Institutional Normative Order, Ashgate 2009, 103-124
This paper gives an informal outline of a general theory of legal transactions, with special attention to the work of Neil MacCormick on this topic.
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Legislation and Expertise on Goals
Code for cross-reference: 2009-x
Downloads: [PDF]
Published in: Legisprudence vol 3 (2009), 351-366
The paper argues that expertise on goals is - at least in theory - possible and that the alleged impossibility of such expertise is therefore not a good reason for democratic import into legislation.
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P.W. Brouwer and J.C. Hage, Basic Concepts of European Private Law
Code for cross-reference: 2007-x
Downloads: [PDF]
Published in: European Review of Private Law 1-2007, 3-26
The purpose of this paper is to develop a small set of basic legal concepts in terms of which the private law of European legal systems can be expressed.
The concepts should not reflect the law of any particular system, and should for this reason by suitable as a tertium comparationis for comparative law.
The paper proposes for this purpose the set consisting of the concepts ‘duty’ and ‘competence’,
and illustrates the possibilities offered by this small set by analyzing the concepts of right in rem, right in personam legal act,
and immunity in terms of it. Moreover, it contains a comparison of the proposed set to the set of basic concepts proposed by Hohfeld.
The major difference is that the Hohfeldian concepts are relational (e.g. X has a duty towards Y to do Z),
while the set proposed in this paper is not (e.g. X has a duty to do Z).
It is argued that the non-relational concepts are to be preferred to the Hohfeldian set of relational concepts.
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Noot Harmonisatiewetarrest
Code for cross-reference: 20xx-x
Downloads: [HTML] [PDF] in Dutch
Published in: Ronald Janse, Sanne Taekema en Ton Hol (red.), Rechtsfilosofische annotaties , Ars Aequi 2007, p. 14-16
This annotation to the 'Harmonisatiewet' decision of the Dutch Supreme Court uses the Razian notion of an exclusionary reason to explain the court decision and to analyze several notions in relation to the voidness and non-applicability of legislation
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Building the World of Law
Code for cross-reference: 2007-x
Downloads: [PDF]
Published in: Legisprudence 1 (2007), vol. 3, 359-379
The general purpose of this paper is to provide a conceptual framework in terms of which more detailed studies of different types of legal rules, and their roles in legislation, can be performed. The first part of the paper sketches a picture of legislation as a kind of legal transaction by means of which the world of law is partially (re)built. The second part discusses norms (prescriptive, prohibitive and permissive rules), competence conferring rules and powers, and rules that deal with legal status (entry, exit and consequential rules) as abstract building blocks of the world of law.
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Comparing Alternatives in the Law. Legal Applications of Qualitative Comparative Reasoning
Code for cross-reference: 2005-x
Downloads: [PDF]
Published in: Artificial Intelligence and Law 12 (2005), vol. 3, 181-225
This article desribes how reason-based logic can, after expansion, be used to model reasoning that involves a choice between alternatives. The article does not only develop the necessary logical tools. but also demonstrates how they can be used in legal argument. The techniques developed in this paper were used and further developed in the PhD-thesis of Gustavo Arosemena, 'Rights, Scarcity, and Justice. An Analytical Inquiry into the Adjudication of the Welfare Aspects of Human Rights'.
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Law, Economics and Uniform Contract law: A Sceptical View
Code for cross-reference: 2005-x
Published in: J. Smits (ed.), The Need for a European Contract Law. Empirical and Legal Perspectives, Groningen: Europa Law Publishing, 55-68
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Studies in Legal Logic
Code for cross-reference: 2005-x
Downloads: not available
Published by: Dordrecht: Springer 2005
This book consists of a number of articles - adapted ones if they were published before - that were written since the publication of Reasoning with Rules. The papers are: 'Law and Defeasibility', 'Law and Coherence', 'Reason-based Logic', 'Comparing Alternatives', 'Rule Consistency', 'What is a Norm?', 'Legal Statics and Legal Dynamics', Dialectics in Artificial Intelligence and Law' and 'Legal Reasoning and Legal Integration'.
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The Possibility of Legal Logic
Code for cross-reference: 20xx-x
Published in: not published yet
This article argues that a special legal logic is not only possible, but that it already exists. Originally, it was meant to be the first chapter of my book Studies in Legal Logic but a reviewer advised me that I should leave it out. In retrospective I disagree with this advice.
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Law and Coherence
Code for cross-reference: 2004-x
Downloads: [PDF]
Published in: Ratio Juris 17 (2004) 1, 87-105
The precursor of the same-titled chapter in my Studies in Legal Logic
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J.C. Hage and G. Sartor, Legal Theory Construction
Code for cross-reference: 2003-x
Downloads: [PDF]
Published in: Associations. Journal for Legal and Social Theory 1 (2003, 171-184)
The paper that Giovanni Sartor and I presented as plenary lecture at the IVR 2003 conference in Lund
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Legal Reasoning and Legal Integration
Code for cross-reference: 2003-x
Downloads: [PDF]
Published in: Maastricht Journal of European and Comparative Law (2003), 67-97
A practical application of Reason-based Logic
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Law and Defeasibility
Code for cross-reference: 2003-x
Downloads: [PDF]
Published in: Artificial Intelligence and Law 11 (2003), 221-243
This article attempts to answer three questions: (1) 'What is defeasibility?' (2) 'Is legal reasoning defeasible?', and (3) 'Do we need a non-monotonic logic to model legal reasoning?'
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B. Verheij and J.C. Hage, Rechtsinformatica als tak van wetenschap
Code for cross-reference: 2002-x
Downloads: not available
Published in: A. Oskamp and A.R. Lodder (red.), Informatietechnologie voor juristen
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Contrary to Duty Obligations. A Study in Legal Ontology
Code for cross-reference: 2001-x
Downloads: [PDF]
Published in: Bart Verheij, Arno R. Lodder, Ronald P. Loui and Antoinette J. Muntjewerff (eds.), Legal Knowledge and Information Systems. Jurix 2001: The Fourteenth Annual Conference. Amsterdam: IOS Press, 2001, 89-102
This paper argues that many of the so-called contrary-to-duty paradoxes, such as the Forrester (Gentle Murder) Paradox are the result of confusing a duty to perform a particular kind of act and a duty to perform an acts in a particular way.
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What to expect from legal logic?
Code for cross-reference: 2001-x
Downloads: [PDF]
Published in: Bart Verheij, Arno R. Lodder, Ronald P. Loui and Antoinette J. Muntjewerff (eds.), Legal Knowledge and Information Systems. Jurix 2001: The Fourteenth Annual Conference. IOS-Press, Amsterdam, 77-87
This paper argues for a proper position for legal logic in between a general theory of legal reasoning
and a general theory of valid reasoning. In discussion with McCarty it argues that legal logic should not be
seen as a general theory of legal reasoning, but rather as a theory of what counts as valid reasoning in the legal field.
In discussion with earlier work by Verheij and the author himself, and of Prakken and Sartor,
the paper argues that legal logic should employ a conceptual framework that is as close to that of the legal domain as possible.
A simpler logic, how attractive as it might seem at first sight,
has the disadvantage that it leads to problematic formalizations of the domain theory and to marginalization of the logic
as means to evaluate the validity of informal arguments.
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Legal Logic, its existence, nature and use
Code for cross-reference: 2001-x
Downloads: [PDF]
Published in: A. Soeteman (ed.), Pluralism and Law, Kluwer Academic Publishers, Dordrecht 2001, 347-374
This paper argues for the possibility of a dedicated legal logic by attacking the argument against it based on the presupposition that the law provides the content, not the form of arguments. It goes on to discuss two typical topics for legal logic, and to argue for its practical relevance.
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J.C. Hage, R.J.N. Schloessels en M.W. Wolleswinkel (red.), Recht, vaardig en zeker
Code for cross-reference: 2001-x
Downloads: not available
Published by: Boom juridische uitgevers, Den Haag 2001
The first edition of the book that was used for the course 'Inleiding in het recht' at the Maastricht law faculty. The book has seen five editions before it was abandoned in 2013 for a book with more emphasis on the positive law.
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Goal-based Theory Evaluation
Code for cross-reference: 2000-x
Downloads: [PDF]
Published in: J. Breuker e.a. (eds.), Legal Knowledge and Information Systems. Jurix 2000: The Thirteenth Annual Conference. IOS-Press, Amsterdam, 59-72
This paper describes how part of Dworkin’s Model of Principles, a coherence theory of the law, can be made sufficiently precise to capture it in a logical theory. The result is formalised by means of an addition to Reason-based Logic.
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Consistency of Rules and Norms
Code for cross-reference: 2000-x
Downloads: [PDF]
Published in: Information and Communications Technology Law 9 (2000), nr. 3, 219-240
This paper develops the theory that a set of rules is consistent if it is not possible that
1) the conditions of the rules in the set are all satisfied,
2) there is no exception to either one of the rules, and
3) the consequences of the rules are incompatible.
To this purpose the notion of consistency is generalised to make it cover rules and is relativised to a background of constraints.
It is argued that a similar theory is also useful to characterise the consistency of deontic sentences of the ought-to-do type.
The theory about rule consistency is formalised by means of Rule Logic,
in which rules are treated as constraints on the possible worlds in which they exist.
Rule Logic itself is introduced by giving a model-theory for it.
It is characterised by means of constraints on worlds that are possible according to Rule Logic.
The formal theory is refined by disallowing ungrounded exceptions to rules.
To that purpose an additional constraint is imposed on worlds that are possible according to Rule Logic.
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Dialectical Models in Artificial Intelligence and Law
Code for cross-reference: 2000-x
Downloads: [PDF]
Published in: Artificial Intelligence and Law 8 (2000), 137-172.
The paper discusses dialogical approaches to logic and justification and their application in AI models of legal reasoning.
In particular it distinguishes between dialectics as a tool to understand what one can justifiedly accept
and dialogs as procedures that lead to particular outcomes.
An updated version of the paper was included in Studies in Legal Logic as chapter 8.
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The naturalistic fallacy
Code for cross-reference: 2000-x
Downloads: [PDF]
Published in: P.J. van Koppen and N.H.M. Roos (eds.), Rationality, Information and Progress in Law and Psychology. Liber Amicorum Hans F.M. Crombag, Metajuridica Publications, Maastricht, p. 227-238
This paper gives an analysis of some arguments which allegedly would commit the naturalistic fallacy and argues why and under which assumptions those arguments might be logically correct.
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Institutionele rechtstheorieen
Code for cross-reference: 1998-x
Downloads: [PDF]
Published in: Rechtsfilosofie en Rechtstheorie vol 27 (1998) no. 2, 127-143
This paper offers an overview of the institutional theories of law of MacCormick and Weinberger, Searle, Ruiter, Lagerspetz, and Morton.
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Het toepassingsbereik van rechtsregels
Code for cross-reference: 1998-x
Downloads: [PDF]
Published in: Rechtsfilosofie en Rechtstheorie vol 26 (1998) no. 3, 196-212 (co-authored with Marjolein Visser)
The paper is mainly interesting because of its distinction between different kinds of (legal) concepts.
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Moderately naturalistic deontic logic
Code for cross-reference: 1998-x
Downloads: [PDF]
Published in: P. McNamara and H. Prakken (eds.), Norms, Logics, and Information Systems, IOS Press, Amsterdam e.a., 56-72
Deontic naturalism is here taken to be the view that it is possible to give the truth conditions of deontic sentences
by means of solely non-deontic sentences.
This paper argues for a moderate version of deontic naturalism and describes a variant of deontic logic that takes
this form of naturalism into account.
The argument hinges amongst others on a strict distinction between deontic rules and deontic facts and on the treatment of rules,
including deontic rules, as logical individuals.
The logic is presented by model-theoretic means.
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Handelende computers
Code for cross-reference: 1997-x
Downloads: [PDF]
Published in: Computerrecht (1997/5; 219-223).
This paper argues that there are no fundamental reasons why computers could not perform juridical acts. In particular the fact that computers have no consciousness would not be such a reason
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A Theory of Legal Reasoning and a Logic to Match
Code for cross-reference: 1997-x
Downloads: [PDF]
Published in: Artificial Intelligence and Law 4 (1996), 199-273
This article is a summary of my book Reasoning with Rules, which focuses on the technical side of the argument presented there.
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Two Metaphors of Reasoning
Code for cross-reference: 1995-x
Downloads: [PDF]
Published in: H. Prakken, A.J. Muntjewerff and A. Soeteman (eds.), Legal knowledge based systems; the relation with legal theory, Koninklijke Vermande, Lelystad, pp. 127-138.
The paper focuses on the philosophical aspects of Reason-based Logic. It was almost refused for the Jurix 1994 conference for being insufficiently scientific. I still disagree strongly.
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Jaap Hage, Ronald Leenes and Arno Lodder, Hard Cases. A Procedural Approach
Code for cross-reference: 1994-x
Downloads: [PDF]
Published in: Artificial Intelligence and Law 2 (1994), 113-167
The paper argues that the distinction between easy and hard cases can only be made well in a dialogical setting.
It also gives a first - and now strongly outdated - dialogical version of Reason-based Logic.
I am still grateful to Thom Gordon, who rightly criticised a draft version so strongly that
it made me aware of the standards for scientific publications on an international forum.
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Feiten en betekenis
Code for cross-reference: 1987-x
Downloads: [PDF] [PDF-references]
Published in: No official publication
Feiten en betekenis (Facts and meaning) is my PhD-thesis. On re-reading it after almost 30 years it struck me that
many ideas of my present research were already present in rudimentary form in this thesis.
Since my thesis was never published officially (I then thought that the text was too complicated to constitute something people would like to read),
I am glad that modern technology makes it possible to publish it after all.
The text is based on a conversion from WordPerfect-format (WordPerfect used to be a popular word processing program in the eighties of the 20th century)
to Word for Windows-format and may contain some strange mistakes.
In the conversion, the list of literature was lost, and therefore this list is provided as a scan of the original text, with deviating page numbers [PDF-references].
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