Abstract
The literature in jurisprudence and legal theory has rarely explored the link between argumentation theory and the institutional theory of legal concepts. A remarkable exception that devoted some (non-systematic) effort to this link is, for instance, the work by MacCormick (2005). This paper aims at offering a fresh contribution to this research issue by developing a theory of the extensive and restrictive interpretation of legal provisions. We show that these interpretive techniques correspond to complex revision operations over theories of constitutive rules. Indeed, restrictive and extensive interpretations are typical examples of how courts deal with the open texture of legal language and with penumbral cases by further developing the content of legal rules: courts act in such a way as to expand or restrict the core of determinate meaning of rules taking into account their purposes (Hart, 1994, Chap. 7). Herbert Hart suggested that, in those cases, judges act as surrogate legislatures by filling legal gaps. Indeed, this view is confirmed in this paper and made analytically clear: legal concepts can be holistically and inferentially characterized by arbitrarily large and connected theories of constitutive rules, and so, when we expand or restrict the scope of legal concepts we are doing nothing but changing (revising or contracting) those theories. This analysis also sheds light on the relation between the legal and the ordinary understandings (if any) of a given concept: in the case they both take place, we should compare and aggregate two corresponding theories, the one corresponding to the ordinary reading and the one corresponding to the legal reading.
This paper is the result of a joint effort, with Corrado Roversi writing Sects 11.1.2, 11.2, and 11.3, and Antonino Rotolo Sects 11.1.1 and 11.4–11.7.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
Hence, constitutive rules in this second sense are similar to semantic rules describing institutional concepts: each of such rules does not constitute the reality of the institution—a reality that may very well depend on phenomena that are different from rules, such as imitation, empathy or behavioral responses—but defines its concepts and makes them cognitively graspable and so usable. Perhaps, this intuition can be compared to Ross (1957)’s well known account of legal intermediate concepts: see (Sartor, 2006). However, a comparison with Alf Ross’s work is out of the scope of this paper.
- 2.
For clarity’s sake, we use in this section bold type expressions to denote goals.
- 3.
References
Bench-Capon, T. 2002. The missing link revisited: The role of teleology in representing legal argument. Artificial Intelligence and Law10(1–3):79–94.
Bench-Capon, T., and G. Sartor. 2003. A model of legal reasoning with cases incorporating theories and values. Artificial Intelligence150:97–143.
Boella, G., Governatori, G., Rotolo, A., and L. van der Torre. 2010a. Lex minus dixit quam voluit, lex magis dixit quam voluit: A formal study on legal compliance and interpretation. In AI approaches to the complexity of legal systems, Complex systems, the semantic web, ontologies, argumentation, and dialogue, vol. 6237, 162–183. Berlin: Springer.
Boella, G., Governatori, G., Rotolo, A., and L. van der Torre. 2010b. A logical understanding of legal interpretation. In Principles of knowledge representation and reasoning: Proceedings of the twelfth international conference, KR 2010. Menlo Park: AAAI Press.
Gilbert, M. 1989. On social facts. Princeton: Princeton University Press.
Governatori, G., and A. Rotolo. 2008a. BIO logical agents: Norms, beliefs, intentions in defeasible logic. Autonomous Agents and Multi-Agent Systems17(1): 36–69.
Governatori, G., and A. Rotolo. 2008b. A computational framework for institutional agency. Artificial Intelligence and Law16(1): 25–52.
Governatori, G., Rotolo, A., and G. Sartor. 2005. Temporalised normative positions in defeasible logic. In Proceedings of the ICAIL 2005, 25–34. New York: ACM Press.
Governatori, G., Padmanabhan, V., Rotolo, A., and A. Sattar. 2009. A defeasible logic for modelling policy-based intentions and motivational attitudes. Logic Journal of the IGPL17(3):227–265.
Grossi, D. 2007. Desigining invisible hancuffs. Formal investigations in institutions and organizations for multi-agent systems. Ph. D. thesis, Utrecht University.
Hage, J. 1997. Reasoning with rules: An essay on legal reasoning and its underlying logic. Dordrecht: Kluwer.
Hart, H. L. A. 1994. The concept of law. Oxford: Clarendon.
Lagerspetz, E. 1995. The opposite mirrors. Dordrecht: Kluwer.
MacCormick, N. 2005. Rhetoric and the rule of law: A theory of legal reasoning. Oxford: Oxford University Press.
Peczenik, A. 1989. On law and reason. Dordrecht: Kluwer.
Prakken, H. 2002. An exercise in formalising teleological case-based reasoning. Artificial Intelligence and Law10:113–133.
Prakken, H., and G. Sartor. 2004. The three faces of defeasibility in the law. Ratio Juris17: 118–139.
Ross, A. 1957. Tû-tû. Harvard Law Review70:812–825.
Rotolo, A. 2011. Norm compliance of rule-based cognitive agents. In Proceedings of the twenty-second international joint conference on artificial intelligence. Menlo Park: AAAI Press.
Ruiter, D. W. P. 2001. Legal institutions. Dordrecht: Kluwer.
Sartor, G. 2005. Legal reasoning: A cognitive approach to the law. Dordrecht: Springer.
Sartor, G. 2006. Fundamental legal concepts: A formal and teleological characterisation. Artificial Intelligence and Law14(1–2):101–142.
Searle, J. R. 1964. How to derive “ought” from “is”. Philosophical Review73(1):43–58.
Searle, J. R. 1996. The construction of social reality. New York: The Free Press.
Searle, J. R. 2010. Making the social world: The structure of human civilization. Oxford: Oxford University Press.
Skalak, D. B., and E. L. Rissland. 1992. Arguments and cases: An inevitable intertwining. Artificial Intelligence and Law1:3–44.
Tuomela, R. 1995. The importance of us: A philosophical study of basic social notions, Stanford series in philosophy. Stanford: Stanford University Press.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht.
About this chapter
Cite this chapter
Rotolo, A., Roversi, C. (2013). Constitutive Rules and Coherence in Legal Argumentation: The Case of Extensive and Restrictive Interpretation. In: Dahlman, C., Feteris, E. (eds) Legal Argumentation Theory: Cross-Disciplinary Perspectives. Law and Philosophy Library, vol 102. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4670-1_11
Download citation
DOI: https://doi.org/10.1007/978-94-007-4670-1_11
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-4669-5
Online ISBN: 978-94-007-4670-1
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)