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On the Formal Analysis of Normative Conflicts

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Abstract:

The study of the formal attributes of legal systems such as consistency, completeness, independence and generality is of special interest in legal philosophy and legal theory. Apart from concern with the content of the law, these formal attributes constitute desiderata without which a legal system is considered deficient. Legisprudence is a relatively new discipline within legal theory that studies these formal (and other) attributes of law at the level of law making (i.e. legislation). This trend in legal theory is also paralleled by research in the so-called field of legimatics, which focuses generally on the use of informatics in the process of drafting legislation. One approach within legimatics studies the limits and constraints of applying artificial intelligence (AI) techniques and methods to the law making process (e.g. Jurix, 1993) as well as application of these techniques to certain tasks within this process (Jurix, 1993; Valente, 1995; den Haan 1996). This paper discusses normative conflicts, their explication and typology, and relates these to the conceptualisation of legal knowledge and methods for representing it. We examine some common approaches in legal theory for the explication of normative conflicts and show their limitations. In particular, we argue that these common approaches do not pay sufficient attention to the role 'world knowledge' plays in the analysis of normative conflicts. Finally, we suggest alternative ways for dealing with the problems that arise from inconsistency in law. The observations we make are relevant for the development of computer programs designed to assist in the law-making process.

Document Type: Research Article

DOI: https://doi.org/10.1080/713670491

Affiliations: 1: Faculty of Law, University of Amsterdam, P.O. Box 1030, 1000 Amsterdam, The Netherlands. E-mail: elhaga@lri.jur.uva.nl 2: Faculty of Law, University of Amsterdam, P.O. Box 1030, 1000 Amsterdam, The Netherlands. E-mail: breuker@lri.jur.uva.nl 3: Faculty of Law, University of Amsterdam, P.O. Box 1030, 1000 Amsterdam, The Netherlands. E-mail: Brouwer@jur.uva.nl

Publication date: 2000-10-01

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