Jumps and logic in the law

Abstract

The main stream of legal theory tends to incorporate unwritten principles into the law. Weighing of principles plays a great role in legal argumentation, inter alia in statutory interpretation. A weighing and balancing of principles and other prima facie reasons is a jump. The inference is not conclusive. To deal with defeasibility and weighing, a jurist needs both the belief-revision logic and the nonmonotonic logic. The systems of nonmonotonic logic included in the present volume provide logical tools enabling one to speak precisely about various kinds of "rules about rules", dealing with such things as applicability of rules, what is assumed by rules, priority between rules and the burden of proof. Nonmonotonic logic is an example of an extension of the domain of logic. But the more far-reaching the extension is, the greater problems it meets. It seems impossible to make logical reconstruction of the totality of legal argumentation. The lawyers' search for reasons has no obvious end point. Ideally, the search for reasons may end when one arrives at a coherent totality of knowledge. In other words, coherence is the termination condition of reasoning. Both scientific knowledge and knowledge of legal and moral norms progresses by trial and error, and that one must resort to a certain convention to define what "error" means. The main difference is, however, that conventions of science are much more precise than those of legal scholarship. Consequently, determination of "error" in legal science is often holistic and circular. The reasons determining that a legal theory is "erroneous" are not more certain than the contested theory itself. A strict and formal logical analysis cannot give us the full grasp of legal rationality. A weaker logical theory, allowing for nonmonotonic steps, comes closer, at the expense of an inevitable loss of computational efficiency. Coherentist epistemology grasps even more of this rationality, at the expense of a loss of preciseness.