Logik beim dogmatischen Setzen mit schwach inferenziellem Anspruch. Nicht-Monotonie und Geltungsränge in der juristischen Ordnungsbildung

Abstract

How logic can cope with the law, and vice versa, strongly depends on how one imagines the structure of legal reasoning. Of course, one can analyze relationships between (supposed) statements of legal code in the conditional, prescriptive form deontic logic is acquainted with; they will behave as standard deontic sentences do. But that captures neither the set of sentences that actually guides legal decisions nor the way lawyers actually deal with it. Especially in the German doctrinal tradition, the actually decisive set contains further sentences that establish integrity and order; the work of lawyers is mainly to construct, compatibilize and apply such sentences. The big question is then, how well these sentences and their relationships can be digested in logical terms. The paper connects findings from the debate about the construction of legal systems with Wolfgang Spohn’s decision theory based on defeasible normative reasoning. Indeterminacy and overcomplexity will always rule out full formalizations of legal reasoning. But since doctrinal thinking strives for consistency and rule-based, deductive rationality, jurisprudence can draw on formal theory to reflect on its own standards of analysis.