In rule-based systems, knowledge is encoded in the form of facts, goals, and rules and is used to evaluate and manipulate data. These are, in short, computer systems that use rules to perform a variety of tasks like diagnoses, solve a problem, interpretation, or to determine a course of action in a particular situation. Moreover, these are applied to systems involving human-crafted or curated rule nodes and can be used to perform lexical analysis to compile or interpret computer programs, or in natural language processing.
A domain-specific expert system that uses rules to make deductions or narrow down choices is one of the most popular as well as the classic example of rule-based systems. Furthermore, recent advancement in technology has given way to the development of modern machines and systems like:.
Widely used in Artificial Intelligence, Rule-Based Expert System is not just only responsible for modeling intelligent behavior in machines and building expert system that outperform human expert s but also helps:.
The rule-based expert system architecture is an amalgamation of four 4 important components that are focused on different aspects of the problem in hand. From assessing the information to helping machines reach the goal state, these components are integral for the smooth functioning of rule-based systems.
These are:. Before we move on to discuss the types of rule-based systems, we need to understand its construction, as it plays a crucial role in how the system evaluated the information.
The construction of rule-based systems is based on a specific type of logic, such as Boolean logic, fuzzy logic, and probabilistic logic and is categorized into:.
Being one of the core technologies responsible for making machines capable of rule-based learning , rule-based systems offer a range of advantages like:. Though exceptionally beneficial, rule-based systems have certain drawbacks associated with them, such as:.
Machine learning is among the few techniques of artificial intelligence that is time and again compared with Rule-Based Systems to comprehend their uniqueness. Hence, a discussion on the latter cannot be complete without a comparison between Rule-Based Systems and Machine Learning:. One of the first most successful AI approaches, Rule-Based Systems, is paving the way to the development of large and complex applications, with limited efforts.
These systems are helping programmers as well as machines to tackle problems with numerous pattern nodes and solve tasks at a higher level of abstraction using human-like thinking and reasoning capabilities.
Even though it offers a few limitations, there is no doubt with the ever-evolving technology it too will evolve to be more flexible, effective, and suitable. Rule-Based Systems. By John Doe 22 Apr Introduction to Rule Based Systems: In the past few years, technology has experienced a drastic change.
The rule-based expert systems consist of three important elements: Set of Facts: These are assertions or anything relevant to the beginning state of the system.
Set of Rules: It contains all actions that should be taken within the scope of a problem and specify how to act on the assertion set.
Termination Criteria or Interpreter: Determines whether a solution exists or not, as well as when to terminate the process. Rule-Based System Example: A domain-specific expert system that uses rules to make deductions or narrow down choices is one of the most popular as well as the classic example of rule-based systems. This paper is not so ambitious, and instead merely wishes to present a model of judging and some empirical verification thereof.
This verification is not looking at the individual judges styles of judging: rather it is examining several cases to show that they fit the model as described. To verify the model, we will now consider some cases not from their doctrinal legal perspective but rather from a pragmatic results oriented perspective. Judges can, approximately, be classified in a simplified model as "formalist" or "realist".
I will try to show however that this typology, though a simplification, is however useful for modelling legal decision making. While it is true that judges have literally dozens of interpretive methods infra legal arguments at their fingertips as well as a number of competing extra-legal justifications thereof, there are nevertheless important constraints on their power of decision making.
Some infra-legal rules will simply be irrelevant. Others will be just as clearly relevant and applicable to the case at bar.
Still, there may be some methods of interpretation where the judge's individual discretion could be brought to bear - so a qualified realist position of legal manipulability has some validity - especially when there is no general rule as to the hierarchization of rules of interpretation. Categorizing interpretive methods as either formalist or realist is not always possible. Some legal methods appear to be formalist e. Even when a categorization of a legal method as formalist or realist is possible that categorization is not too meaningful for the following reasons: 1 Axiologically, both realists and formalists were moral cognitivists.
They believed moral values existed, but disagreed bitterly about what they were. As a result, unexpectedly, moral cognitivism has been largely replaced by moral relativism, not because of the strength of relativist arguments but rather due to the mutual exhaustion and opposition of contending moral cognitivists. Extra-legal justifications based on moral theory have been severely undercut due to relativism. Economic or policy justifications are taken more seriously than moral justifications, at least in contemporary U.
Both realism and formalism are empirical theories of material reality. Any vestiges of this epistemological debate were and are only that. Platonic noetic theories have more or less been universally abandoned in favor of materialist arguments: arguments which range from Richard Posner on the right to Karl Marx on the left.
Yet formal methods of interpretation such as inductive ampliation allow the development of new rules out of old ones, creating room for reform. Teleological arguments are as old as Aristotle - they are hardly modern. Conservative judges have not had much difficulty adopting economic arguments. Yet economic arguments are clearly not an element of formal deductive logic. Aristotelian syllogistic. Economic arguments, at best, could be classified as a type of phronesis, that is as practical reasoning.
However I have not found any examples of economic cost-benefit analysis or of multi-factor interest balancing tests in Aristotle's On Interpretation, in Nicomachean Ethics or in the Politics. Nor do I expect to find them. Economic analysis of the law is in fact a very recent phenomenon. While we can say that formalists and neo- formalists have had no trouble adopting economic arguments because they are conservative, economic analysis is not the monopoly of the neo realists.
Great Legal Minds These methodological tensions - the manipulability and uncertainty of law - could drive one to antinomianism, for the common law is not necessarily coherent at the systemic level.
Yet it is nevertheless entirely possible for individual jurists to be not only self consistent but also to apply a rigorous procedure with a good faith claim to seek and do justice - to be faithful to a faithless system. Individual legal methods are in fact, generally, predictable. Yet the choice of which methods a judge will apply seems, well, arbitrary in all senses. Great legal minds avoid caprice in their choice of arbitral rules by resorting to logic and morality.
They carefully and conscientiously apply extra-legal justifications consciously and honestly by expliciting their justifications and explaining why they use them. Judges seeking to apply infra-legal theories of legal decision faithfully in "hard cases" are just about inevitably forced, due to legal uncertainty and manipulability, to consider extra-legal theories of justification.
That is inexact. Policy arguments are based on normative choices. I think Justice Cardozo is the best American example of a Judge who faithfully and intelligently applies the law objectively.
Lords Lloyd and Denning are also contemporary examples of a fidelity to both law and justice which is admirable. Sadly such geniuses are truly rare. The author does not pretend to be as temperate or experienced as any of these scholars. However I do hope to expose some of the procedures that these jurists and other great jurists have used. All scientists, including legal scientists, stand on the shoulders of their predecessors.
By exposing a variety of legal interpretive methods jurists can try to apply some of the ideas of these great legal minds in their own cases. Hard Cases and Easy Cases If the realist position is at least partially true, and some judges at least some of the time force the law to fit the facts and ignore procedural black letter law in the interests of substantive justice then how can we know when judges will be likely to do so?
The typical first step in an argument for legal realism is the citation of cases in which judges have distorted the law in the service of their own political views. But the very argument that judges have distorted the law is testimony to a belief that the undistorted law can indeed be known and that the distortion is not therefore inevitable.
It seems that if judges at least sometimes rationalize the law to fit the facts then there are two possible cases: either the procedural law to be applied, the form if you will, reaches the results desired or not. Similarly the law either reaches those results which are substantively just or fails to do so. In such a case a judge is not at all obliged to force the law to fit the facts and in fact has no incentive to do so.
Let us now consider the hardest case: what of situation 4 where the law is not a reflection of the will of the judge but the law is just? What is the second easiest case? I think the second easiest case must be where the law does not lead to a just outcome but the judge wishes to force the law to reach a just outcome.
Here, while the conservatives will complain, rightly, about legal forseeability and certainty the fact is the outcome practically justifies the means - a position not at all inconsistent with a materialist as opposed to idealist definition of morality. However it is not as hard as it could be because the judge actually must not force the law to fit the facts.
I believe these cases illustrate each of the positions in schema II: the easy case, where the law compels the fair outcome desired by the judge. The hard case where the law compells an unfair outcome and the judge desires that unfair outcome.
And the intermediate cases where the law compells a fair outcome and the judge does not desire that outcome and where either the law compells an unfair outcome and the judge desires the fair outcome. Pena Irala: The easiest case for a judge is where the law and the desired result are congruent with each other. Although Filartiga v.
Pena Irala was essentially a case of first instance, we can say that the case was fairly decided and essentially consistent with a fair reading of U.
In Filartiga an alien sued a foreign governmental official for acts of torture committed outside the scope of employment under the Alien Tort Claims Act. The court determined that international law sufficiently defined the crime and tort of torture and thus applied the ATCA holding the torturer liable in tort for the injuries he inflicted on Filartiga. While most would find the remedy in Filartiga unusual, few would disagree with the result reached there: those who commit grave human rights abuses should be punished.
That result while perhaps surprising cannot be seen as a results oriented interpretation forcing the law to fit the facts. Rather Filartiga merely extended existing legal principles to their logical conclusion in a case which was, admittedly, essentially of first instance. What about cases which reach a result with which we agree but that do so in a way that simply distorts the law out of any sort of fair reading?
That is, what about those cases where realist critiques of formalism are taken seriously, and where the realist argument appears to have carried the day serving not to distort law in the interests of personal or collective injustice but rather in the interest of justice?
These are the toughest cases for anyone to be objective about because we care passionately about the result, and apparently so do others, though, strangely, they may disagree with us as to what the result should be. I would argue that in fact we disrespect democracy and undermine the natural functions of a healthy democracy when we allow judicial legislation through free floating legal interpretation.
Such interpretation opens the door for other wide interpretations that lead to results we would disagree with, even results that lead to substantive injustice.
Nevertheless the temptation judicial power presents may well overcome these concerns, particularly where the judiciary has decided, overtly or not, that moral values are subjective and that law is no more or less than the positive exercise of raw power, however politely stated. Such doctrinal moves are mistakes as they undermine democracy and justice. In fact they are really only possible in an unhealthy society which does not view morality as having any objective basis or in those dictatorships where positive law is justified not on morality but by force or in antinomian anarchical societies.
And this reveals one of the weaknesses of the antinomian strategy as response to the problem of legal manipulability. Even in domestic law such cases are the exception, generally involving however civil rights for example of racial minorities Brown v. Board of Education or of women Roe v. In Bigio v. Coca-Cola however the court - in dicta - seems willing to recognize that uncompensated expropriation, or at least uncompensated expropriation motivated by religious bigotry, while not a violation of jus cogens in the case at bar, would have been a violation of international law if committed by a state actor - though: Egypt did nationalize the land which it then transferred to Coca-Cola!
The court found that while jurisdiction did not exist under the Alien Tort Claims Act because there was neither state action by the defendant nor was the defendant a non-state actor acting under color of state law there was jurisdiction based on diversity of citizenship.
This however ignored whether a sovereign has the prerogative of expropriation. Prior to the world wars it was clear that the absolute right of the sovereign over property on its soil was an attribute of sovereignty. Even as recently as Banco Nacional de Cuba v. Sabbatino the court was willing to recognize that due to differing legal systems socialist and capitalist expropriation without compensation was not a violation of international law.
In this sense, and to a lesser extent as to the question of jurisdiction, the court in Bigio is essentially forcing the law to fit the facts to reach the outcome it desires. That outcome is itself two edged: bigotry is evil and spoliation of the unpopular minority is always a real risk of popular rule.
At the same time however vast income inequality, typical of most third world countries, is also an evil. However the judge in Bigio likely only saw the issue from the perspective of the judicial culture of an advanced capitalist regime and Raphael Bigio, Bahia Bigio, Ferial Salma Bigio and B. It may be that certain nationalizations of property for a public purpose fall within this area. Sabbatino, Receiver, et al. Of course, reductionist positions such as Marxism can be criticized here: would Marx says the judge would favor or disfavor the bourgeois capitalist Bigio or the capitalist enterprise Coca-Cola?
That proposition may be generally true but as a predictor for individual cases it is only somewhat useful. Federal Republic of Germany In Sampson v. However, though it is true that Germany was obligated to respect the jus cogens norm as to other states, other states were not obliged to present Sampson a remedy for that violation.
The court further refused to imply a waiver of state immunity. Substantively speaking, this case reaches a result which is very difficult to accept.
Forced labor was a policy of the Third Reich particularly in the late war years. Such labor was either undercompensated or uncompensated and performed in conditions with little regard to worker safety. However, legally speaking, the formal distinction made by the court while leading to substantive injustice is defensible.
Germany, whatever political choices it made, did not expressly waive its state immunity. So the court was obviously reluctant to imply Jacob Sampson, Plaintiff-Appellant, v.
The elements where judicial appreciation was possible: namely, whether customary international law post-Erie remains a part of federal common law and whether the U. Rather it means that the court tried to do its best to faithfully interpret black letter law where the black letter law was grey. The judge in Sampson was either prudent judge or uncreative but not an evil judge.
However the case was determined inadmissible on the procedural ground of a lack of jurisdiction. If we look at this case in terms of our schema it is No. However this is a hard case precisely because the defendant is powerful.
In fact the case was decided against the plaintiff on jurisdictional grounds. Here it seems an allowable inference that the court determined that no jurisdiction would exist because it would be embarrassing to the United States to indict a prominent leader from a close U. I would like to argue that Byung Wha An is an example of the court reaching the wrong results for the wrong reasons.
See Hannah Arendt, Eichmann in Jerusalem LEXIS Interpolating multiple graphs to infer a general algorithm of judicial decision Earlier we have seen two graphs which might illustrate how judges decide cases. A simple interpolation of schema one and two yields only three cases: the judge either decides cases based on an objective good faith interpretation of the law, or the judge makes decisions as the realists predict, based on the interests of the ruling class, or the judge makes their decisions as the realists want judges to decide, with only formal regard to procedure and a central focus on substantive justice.
Now in case one the law will never be distorted to fit the facts to reach a desired outcome, for there is no desired outcome, other than to apply with fidelity the law if such be possible considering the mass of potentially contradictory legal authorities as it is and not as we would wish it to be.
The second two cases are however examples of voluntarist interventionist judges who shape the law to fit their purposes be they base or noble. This judge's opinions will always reflect what the law is however and will be easily justified. What about the case of the legal realist? There we see two cases, the virtuous altruistic realist, and the vicious opportunistic realist. The typical example of this type of the virtuous legal realist might be former U.
Chief Justice Brennen. Though we can always argue that any reform merely placates rebellion and serves the system, if we ignore that point we can say that his decisions did not exclusively serve the interests of the ruling class but also sought to achieve substantive See, e. This type of judge, because they reach just decisions, can affored to generate controversy.
They can afford to be honest and admit that they are realists and that the law is a form to achieve a substantive result. In contrast, the vicious legal realist might be the late Chief Justice Rehnquist. However the claims of the realist opportunists to merely seek to apply the law objectively and impartially should be taken seriously not because of any deference to authority or any other naivety.
Rather we have to at least listen to those who give lip service to objectivity and impartiality because both are in fact key features of just decision making. Of course no judge exemplifies exclusively any one of these cases. Judges at times are faithful servants of law and justice, at times serve justice but not law, and some judges even serve law at the expense of justice.
However seeing these three cases might help us predict what a judge is likely to conclude if we know from their past record which case they most closely exemplify. From this simplified model we will in fact discover 16 possible decision models, though in fact some of those 16 judge-types are redundant or the distinctions fine enough that they can be safely ignored. We still arrive at over a half dozen different models of judicial reasoning which we can apply with reasonable distinction to different judges.
We now proceed to the more James G. On neo-formalism generally see, William J. Woodward, Jr. Murray, Jr. Translated by W. Describing, Explaining and Predicting Judicial Behavior Based on Interpolation of the Two Graphs To develop our algorithm we need to represent a series of values as variables.
Thus, whether a particular law is just, the will of the judge and whether that will is congruent with the law , the virtue of the litigant the the strength of the litigant. Where the will of the judge corresponds to the law - i. There, one possibility is the case of the truly principled originalist who believes systemic interests such as democracy are best served by not permitting judicial intervention to short circuit decisions of elected authorities.
Truly principled originalists are rare, in part because of the difficulties of interpreting a single unified meaning to the actions of a group of men hundreds of years ago based on scanty, conflicting records. The other possibility is simply that the person is injust and perhaps also is serving an injust regime. Perhaps looking at the qualities of the litigant who wins will allow us to refine this inquiry further?
In the case of the litigant who is vicious we can conclude that it is more likely that Justice Scalia has been described as a "principled originalist". Sean B. Cunningham, Is Originalism "Political"? Which may be true; But Scalia's fidelity to his conception of the law is greater than his catholicism. Unlike the Pope, Scalia supports the death penalty. Where the injustice is the result of fear of the power of the litigant we may say that the judge is a coward. To the principled originalist of course the strength or weakness of the litigant would actually be irrelevant.
What about our hidden realists? Those who, while exercising realist interpretations, pretend to be, for example, originalists? I would like to suggest that where the litigant is unjust but the laws and will of the judge are in their favor that the principled judge would be more likely to resort to realist methods. However in cases where the litigant is virtuous we cannot say whether the judge would resort to such methods: the judge could reach the desired result through results oriented jurisprudence or through reasonable fidelity to formalist methods.
Where the litigant is weak however we can say that the judge would be less likely to resort to opportunistic methods. D[n] Wherein D[1] We could also look instead to the decision which most frequently occurs median. Or we could combine the two such that we would look at the median result but if there were two or more equal medians that we would then look at the mean result either of "There are cowardly appellate judges as well as cautious ones, there are personal prejudices, there are general prejudices which reach the level of besotted bigotry, there are the sly as well as the skillful, not every appellate judge is industrious or steady in attention or careful in his work, politics and 'management' can be found inside the court and out, there have even been crooks on the appellate bench.
And so what? Taken all together, such things do not materially alter the whole picture: the appellate bench has stood up throughout our history" Karl N. Llewellyn, The Common Law Tradition With this predictive algorithm we could, theoretically, be able to judge in a future case the likely determination of this particular judge. While that might be of use to lawyers it does pose some uncomfortable questions for the idea that law is an objective prevision of the future and not an a posteriori affectation of a legal judgment to a given set of facts.
We can approximately determine the various judicial styles by carefully analyzing their decisions and looking at factors which, supposedly, do not directly influence the legal decision of the judge. The predictive value of this model is only approximate because these factors, if even acknowledged, only influence judicial decision indirectly.
Further, while some judges might consider, overtly or covertly, the factors presented in graphs I and II in making legal decisions, other courts may well in fact simply apply and interpret the law within its own mechanical rules of production. However "The altruists Kennedy's word for the legal realists deflated the claim that such rule making was neutral by showing how those rules served specific class interests, were politically biased, and did not result from the judges' mechanical interpretation of the law.
In other words, legal realism carries with it a potential to legitimate ex post legislation. Of course historically and probably constitutionally as well statute law must be objective previsions of the future ex ante. Adjudication of cases is of course a determination after the fact ex post whether the conduct of the plaintiff was a breach of the ex ante determinations of law whether manifested in statutes, custom, or case law.
Thus "Arguments about and definitions of rules and standards commonly emphasize the distinction between whether the law is given content ex ante or ex post. For example, a rule may entail an advance determination of what conduct is permissible, leaving only factual issues for the adjudicator. A rule might prohibit 'driving in excess of 55 miles per hour on expressways.
A standard might prohibit 'driving at an excessive speed on expressways. Spring On this score the formalists have the upper hand. Realism here opens the door to capricious rule. Coupled with a radical relativist axiology the result in the s was often fascism. The question whether and to what extent judges in fact force the law to fit the facts by recasting laws in a results oriented manipulation of the legal system can thus only be partially answered.
That is especially true because judges who do place their thumbs on the balance of justice, whether in the interests of substantive justice or merely to represent their class interests as members of a ruling elite in an advanced industrial society would not admit to it. Further, in some cases the class interests of the ruling class and justice coincide.
There it is probably not possible to say, from a theoretical perspective, whether the judge is principally representing their class interests or the interests of justice. However by examining other cases decided by that judge we may be able to arrive at a database large enough to allow that question to be resolved. In fact, to answer the questions raised here would ultimately require a study of hundreds of cases from dozens of jurisdictions.
I hypothesize that such a study would lead to only partially conclusive results. This is partly because, even if courts were deliberately or not weighing and balancing not laws but virtues and vices, they might not be able to admit to be doing so. Indeterminicity of such a study would also arise due to the limitations of the material should the study only consider torts?
Further it would require a satisfactory general model of morality to define virtue and vice. I do think such a model, based on whether the particular act favors individual and species survival is possible, however such an ambitious project is clearly beyond the scope of an article.
In any event the moral theory is not reflected in the program which leaves it to the end-user to determine abstractly whether the party is moral and the weight to be attached thereto. Frenzy must first have enhanced the excitability of the whole machine; else there is no art.
All kinds of frenzy, however diversely conditioned, have the strength to accomplish this: above all, the frenzy of sexual excitement, this most ancient and original form of frenzy. Also the frenzy that follows all great cravings, all strong affects; the frenzy of feasts, contests, feats of daring, victory, all extreme movement; the frenzy of cruelty; the frenzy in destruction, the frenzy under certain meteorological influences, as for example the frenzy of spring; or under the influence of narcotics; and finally the frenzy of will, the frenzy of an overcharged and swollen will.
What is essential in such frenzy is the feeling of increased strength and fullness. Out of this feeling one lends to things, one forces them to accept from us, one violates them" Friedrich Nietzsche, Twilight of the Idols, "Skirmishes Of An Untimely Man" p. Hollingdale, and Marion Faber Ch. Infra-Legal Theories of Argumentation: Interpretive Methods Extra-legal justification play themselves out accross infra-legal rules of decision.
Regardless of systemic coherence in the law due to conflicts between bases of extra-legal justification individual legal methods themselves are essentially deterministic. The conflicts and ambiguities between various legal methods, while real, are not so great as realists present them to be. Formal Rules of Statutory Construction The following interpretive methods taken separately, are reasonably determinable.
Yet, when viewed as a whole, there is tension. This tension is the result not of an inevitable resort to extra-legal justification. Rather it is due to inadequate hierarchization of the interpretive methods in the common law. One of the tasks of legal science in the common law should be to more precisely prioritize rules of interpretation. I have attempted to present these interpretive methods according to my impression of their hierarchical importance.
I attempt to present those arguments first which the court will apply first. These are formal rules of positive law. If those fail, increasingly general interpretations and justifications therefore are presented. Thus the teleologically most important rules are presented last, while the formally most important rules of interpretation are first as that appears to be the general principle governing the hierarchisation of interpretive rules.
Literal or "plain meaning" interpretation "Plain meaning" arguments state that the law means what it says, nothing more or less. One can however attack a plain meaning argument as being tautological. More articulate renditions of the "plain meaning" rule of interpretation state that the statute should be interpreted to mean not what the judiciary thinks it should mean but rather what the legislator facially stated.
This is more defensible as it provides criteria to determine whether and when a meaning is "plain". Does "or" mean "either a or b but not both", or instead "either a or b and possibly both"? Again such interpretation must not be used to reach an absurd result.
In syntactic interpretation, the position of the word within the sentence, punctuation, conjunctions, and any other syntactic clues are taken as evidence of the meaning intended to be imparted to the statute by the legislator.
Meaning, 73 Wash. Strauss, Why Plain Meaning? Department of Labor, U. Arizona, Ariz. Reinstein, Ariz. Lackner, P. United Artists Communications, Inc.
Stanley 23 F. Rather, goes the realist argument, the interpretive function should look to the purpose and function of the law than empty formalism. Like syntactic arguments, grammatical arguments parse the sentence structure looking for clues as to the legislative intent. Here however the focus is not on individual words and their positions in the sentence but rather on phrases, clauses, and also parts of speech. Thus it is only a slightly more wide ranging variant of syntactic argumentation and runs into similar objections: that it searches for a non-existent and unrealistically precise legislative intent within a statute which was either badly drafted or even intentionally ambiguous.
In the case where the ambiguity can be shown for political reasons to be intentional the judicial function has every right to intervene to clarify the otherwise ambiguous law. For example, systematic interpretation of the U. The legal rule is thus determined by comparing it with other rules established in the treaty or by referring to the entire structure of the treaty. For example, if, in the abortion question, one has to determine whether the term "life" in the constitution comprises unborn human life, one can search for the meaning of "life" in other legal texts to discover what protection "life" has received on the constitutional level.
The main goal of contextual interpretation usually is the furtherance of the consistency and coherence of all relevant legal norms, that is, legal certainty. If possible, legal terms or concepts should have consistent meanings in all the places where they are being used.
At the very least, their meanings should not conflict! Cited in Karsten Nowrot, Emily W. Int'l L. According to this second approach, legal texts have a meaning of their own, implicit in the signs of which they are composed, and independent of the actual or presumed will of their authors.
Translated by Robert S. Barker and republished in 30 U. Miami Inter-Am. Rios, Misc. City Civ. Rather than interpreting rule one in the light of rule two through n, synthetic interpretation derives a new rule.
Synthetic interprations argue that we should view the law in question as one thread in a larger tapestry; as such this individual law cannot be interpreted in a vacuum. Rather we must consider the other laws which flank it in order to understand the meaning of this law within that context.
Synthetic interpretation is an argument for open ended interpretations of laws which might otherwise be plain facially. For example, reading the Nineteenth Amendment's alteration of the Fourteenth Amendment so that their combined force is to ensure constitutional equality for women is an exercise in "synthetic interpretation" of the Constitution.
Maxims of Legal Interpretation We now look at methods of legal interpretation presented as maxims of law. These interpretive methods are all represented in the program which accompanies the article. The number of interpretive methods, their occasional mutual contradiction, and the absence of rules for prioritizing them hierarchically is problematic for the rule of law.
Judges could argue that the hierarchies of these rules are determined by customary law. But even if true, appealing to common sense and the common law to hierarchize these interpretive rules permits a volontarist judge to impose his subjective will on the supposedly objective process. It can be summarized as holding that "the express mention of one thing implies the exclusion of another". In sum, where the legislator gives a list of exceptions to a rule that list shall be considered exclusive.
Exceptio firmat regulam in casibus no exceptis Exceptio firmat regulam in casibus non exceptis An exception affirms the rule in cases not excepted. Ejusdem generis Burgin v. Forbes, Ky. Bowles, Okl. Fleetwood Enterpises, Inc.
Rules of Court, Rules , , , Cal. Dunfee, W. Riffle v. Ranson, W. Aarons, A. Slip Op. Municipal Court Runyan 20 C. Wyer, Plaintiff V. LEXIS , 15 Life Ins. Kane, F. The general words following the specific words shall be interpreted no more generally than the specific preceding words. Thus ejusdem generis is a type of syntactic argument. In fact it closely resembles expresio unius but appears to refer to contracts rather than statutes. Generalibus specialia derogant Where two rules hierarchically rules of law conflict with each other one using specific terms, and the other general terms, any conflict in interpretation resulting is resolved by determining that the special section is controlling: this is summarized in the maxim: Generalibus specialia derogant - Special provisions derogate from general ones.
Consequently a brief explanation of why that is not in fact the case seems warranted. LaBrecque, D. Industrial Accirdent Fund, Mont. Henderson, Ala. State, Ala. Griffin, Ala.
Signet Bank C. Zlateff , 53 Wn. Adams, L. Vokes, F. Several methods at first glance do seem redundant: ejusdem generis, generalibus specialia derogant, exceptio firmat regulam in casibus no exceptis, expressio unius est exclusio alterius or inclusio unius est exclusio alterius : They but all appear to express the idea that a posterior general statute must be contextualized by the prior specific statute such that the general instances in the second statute or contract in the case of ejusdem generis may not be interpreted more generally than, or in conflict with, the prior statute absent express legislative intent.
The maxim of lex posterior derogat priori might at first appear to be in conflict with the maxim expressio unius. But we must remember that just as we read statutes so that they are not in conflict with each other or with the constitution so must we also read maxims. Lex posterior states that a later law will supplant an earlier law. It expresses the general case.
Thus a true example of lex posterior is the case where the prior law is simply abrogated completely the general rule. Expresio unius is then the special case where the prior law addresses the subject with specific terms and is followed by a later statute which expresses the subject in more general terms.
Further this can be seen as a fair interpretation when we see that expresio unius only applies where no specific legislative intent can be found to overturn the earlier law.
Finally, these maxims all serve to implement the democratically elected legislature and operate according to predictable rules of formal logic. Thus, though the maxims do not always have express hierarchies such hierarchization can be derived. Concretization views laws, particularly laws which determine administrative procedures, as foundational bricks and mortar and regards the decisions of administrative courts as being the mortar which fills in the open texture of the foundational laws.
The process is completed by the execution of the individual sanction. Statutes and customary laws are, so to speak, only semi-manufactured products which are finished only through the judicial decision and its execution. The process through which law constantly creates itself anew goes from the general and abstract to the individual and concrete.
It is a process of steadily increasing individualization and concretization. Actor Incombit Probari This argument is merely the statement of the general principle that the moving party must bear the burden of proof. As such it is a part of every method previously considered and is only mentioned here so that the practitioner does not forget to include it.
Dura lex sed lex Dura lex, sed lex is an early maxim which in fact states legal postivism. For positivists, the law is the law is the law and as such the court is bound to obey it regardless of the consequences since the function of the court is merely to adjudicate and not to make law. An argument of dura lex, sed lex, is not very persuasive before contemporary courts. Formal Methods of Interpretation Oklahoma, v.
Keating, OK 36; P. Also see: Federal Trade Commission V. Ruberoid Co. CCH P67, "The right or obligation results not merely from the abstract expression of the will of Congress in the statute, but from the Commission's completion and concretization of that will in its order. Citing Kelsen ; State v. Martin, P. Articles of Drug Labeled Colchicine, F. LEXIS , 6 Deductive argument syllogism Deductive Argument reasons from general principles to specific instances.
But in doing so, they are incredibly useful. Not convinced? Why not try ThinkAutomation and see just how useful a rule-based system can be for your business. You'll be automatically redirected in 5 seconds Skip to content What is a rule-based system? What is it not? Download ThinkAutomation trial. I want to explore ThinkAutomation as a…. Partner I want to resell ThinkAutomation to my own customers. Great, let's get you to the download centre You'll be automatically redirected in 5 seconds We love to build relationships with like-minded partners You'll be automatically redirected in 5 seconds Before we begin it's important for us to understand the basic requirements for your project.
Enter Email Confirm Email.
0コメント