On the formal analysis of normative conflicts
A.A.O. Elhag, Joost Breuker, Piet W. Brouwer, Marie‐Francine Moens, H.J. van den Herik, C.A.F.M. Grütters · UvA-DARE (University of Amsterdam) · 1999
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 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 conceptualization of legal knowledge and methods for representing it. In particular, we discuss 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. 1 The problem of normative conflicts Normative conflict or inconsistency in law1 is broadly defined as the provision by the legal system of incompatible solutions to the same individual 1 There is a plethora of terms used to refer to the phenomenon of inconsistency in law notwithstanding the conceptual differences underlying these terms. Normative inconsistencies, normative conflicts, antinomies, discordance etc. are among these terms. In this paper we do not attempt to offer a full account of the conceptual differences underlying these terms but will make reference to them when