Using values and theories to resolve disagreement in law

Abstract

In this paper we describe a novel approach to reasoning with cases and precedents. The approach is intended to address two main problems. First we find that current case based reasoning systems tend to offer relatively little support in determining the outcome of a case. They either present a list of cases which may inform, but cannot determine, the outcome, or else, as in HYPO and its successors ([1], [2], [3]), present arguments for both sides of a question leaving it the user to decide which is the more persuasive. What is lacking from these accounts is a notion of what it is that makes an argument persuasive. This is addressed in the context of AI and Law by Berman and Hafner in [4], and in law generally by Perelman (e.g. [5]). For Berman and Hafner an argument is made persuasive by supporting the purposes that the law is designed for, and for Perelman it is by advancing or protecting values that its audience subscribes to (on teleological argument, see also [6]). We believe these things to be effectively the same: the purpose of a law is typically to advance or promote some desired value, and the audience is the community subject to the law. Thus our first goal is to provide a model of case based reasoning in which we can use purposes and values to explain disagreements and their resolution. The second problem is the lack of the notion of context in many of the existing case based reasoning systems. A given case is decided in the context both of relevant past cases, which can supply precedents which will inform the decision, and in the context of future cases to which it will be relevant and possibly act as a precedent. A case is thus supposed to cohere with both past decisions and future decisions. This context is largely lost if we state the question as being whether one bundle of factors is more similar to the factors of a current case than another bundle, as in HYPO, or whether one rule is preferred to another, as in logical reconstructions of such systems, for example that of [7]). Recognition of context is vital if we are to understand accounts of legal reasoning (e.g. [8]) in which it is

Cite this paper

@inproceedings{BenchCapon2001UsingVA, title={Using values and theories to resolve disagreement in law}, author={Trevor J. M. Bench-Capon}, year={2001} }