legal logic and legal integration

1. 1 Legal Logic and Legal Integration

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3. 3 Supreme Court The behaviour of Maas was not tortuous towards Willems in case Willems offended against the same regulations as Maas.

4. 4 The purpose of classification The Supreme Court thought it unattractive if Maas were liable towards Willems for an offence that Willems committed himself too. To avoid liability, the Supreme Court classified the case facts in an unexpected way. Classification has as one important function to determine whether a rule will be applied.

5. 5 Exceptions to rules The Court did not want to apply the rule leading to liability. To that purpose, it declared that the conditions of the rule were not satisfied. The same result could have been reached by making an exception to the rule.

6. 6 Non-applicability and exceptions A rule is applicable to a case if and only if the facts of the case satisfy the conditions of the rule. There is an exception to a rule in a particular case if and only if: the rule applicable to that case the rule is nevertheless not applied.

7. 7 The Relevance of Legal Logic Given a set of legal rules, one�s views of how these rules operate determine the impact of the rules on concrete cases. Given a particular view of how rules operate, one�s views on how cases should be solved determines which rules one wants. A change in legal logic may result in a change in: the outcomes of legal cases which rule contents are desirable.

8. 8 Toepassen op rechtsvergelijkend thema. Legrand als voorbeeld.Toepassen op rechtsvergelijkend thema. Legrand als voorbeeld.

9. 9 Legrands argument (1) Question: Should European private law be harmonized by means of a uniform European Civil Code? Answer: No, because � amongst others � introduction of a uniform code in countries without a uniform legal mentality does not lead to the desired harmonisation.

10. 10 Civil law reasoning According to Legrand, legal problem solving in the civil law tradition is

11. 11 Common law reasoning a kind of inductive reasoning based on prior cases that do not exhaustively specify which facts are relevant for the decision.

12. 12 The case of the murderous spouse A rich old lady was nursed by a poor young man. After some time the two married, without making any special arrangements about their properties. According to the Dutch law, this meant that their properties were joined together and became their common property. Not long after their marriage the young man murdered his wife. The legal issue at stake was whether he could receive half of the marital estate because the marriage had ended. The Dutch legislation holds that if a marriage ends, the marital estate is by default equally divided between the former spouses. It does not contain a special rule for the division of the marital estate in case a husband murders his wife.

13. 13 If Legrand were right The civil law tradition cannot take the fact that the husband murdered his wife into account, and the husband will receive half of the marital estate. The common law tradition can easily take the fact that the husband murdered his wife into account, and the husband will not receive half of the marital estate.

14. 14 The crucial trade-off The very existence of a legal system presupposes an a priori distinction between facts that are legally relevant and facts that are not. If the law is to give satisfactory answers to question about what to do, it should not a priori disregard potentially relevant facts.

15. 15 A partially open system The law is an open system to the extent that it allows recognition as legally relevant, of facts that are by default irrelevant. A legal system cannot be completely open. A legal system should not be completely closed.

16. 16 The central question Is a legal system in which case law and case based reasoning are central, necessarily more open than a system in which written laws and rule based reasoning are central?

17. 17 Riggs vs. Palmer A grandson was mentioned in his grandfather�s last will. The grandson murdered his grandfather in order to inherit. The grandson did not inherit, although statutory law literally construed indicated otherwise.

18. 18 How to draw an analogy? Which facts of the case are relevant?Is it relevant that the grandson inherited on the strength of a last will? Under which description are they relevant?Is the above fact relevant because it involves his grandfathers will? (Would a gift also do?) What is their logical role in determining the outcome of the case?Does the fact that the grandson inherited on the strength of the last will plead for or against the conclusion that he should inherit?

19. 19 The legal syllogism IF C1 and (C2 or C3) THEN Conclusion C1 and C3 THEREFORE: Conclusion Only the facts C1, C2 and C3 are relevant for the application of this rule. If this rule is the only one concerning Conclusion, then only C1, C2 and C3 are relevant for the Conclusion.

20. 20 Reason-based logic Reasons are facts that plead for or against the presence of other facts. Decisive reasons guarantee the presence (or absence) of another fact. Contributive reasons merely influence the presence (or absence) of another fact.

21. 21 Reason-based logic of rule application (1) If a rule applies to a case, the conclusion of this rule holds in this case.(Application is a decisive reason for the rule conclusion.) Whether a rule applies to a case depends on the balance of contributive reasons for and against application.

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23. 23 Reason-based logic of rule application(2) When the conditions of a rule are satisfied, (the rule is applicable) this is merely a contributive reason for applying the rule. When the conditions of a rule are not satisfied, this is merely a contributive reason against applying the rule.

24. 24 A model of reasoning with rules

25. 25 Reason-based logic and the openness of the law On reason-based logic, there is no a priori limitation of the facts that are relevant for the application of a rule: There can be reasons to apply a rule analogously. There can be reasons for making an exception to the rule.

26. 26 Analogy the facts of a case are similar to those of cases to which the rule is applicable, and. application of the rule would be conform the rule�s purpose.

27. 27 Exceptions If

28. 28 The possibilities of rule-based reasoning to apply a rule (analogously) to make an exception to an applicable rule for or against a legal conclusion (rule-independent reasons)

29. 29 Conclusions regarding Legrand�s argument The difference between case-based reasoning and rule-based reasoning as such needs not make any difference in the openness of a legal system. If the English legal system is more open than the continental systems, this is coincidental, rather than based on the distinction between the relative importance of case law and statutory law. The difference in legal mentality between the common law tradition and the civil law tradition needs not be an obstacle to harmonisation through the introduction of a uniform civil code.

30. 30 Relevant research questions Which factors determine the extent to which a legal system is open? Under what circumstances should a legal system allow the introduction of new relevant facts, or disregard facts that are prima facie relevant? Can a legal system allow that it has territorial differences regarding to its openness?

31. 31 Conclusions regarding legal logic the contents of the rules and cases the way in which these sources are used in legal reasoning