Research

In the section philosophy of law research is centred around the following three subjects.

1 Legal method

2 The concept of law

3 Legal (judicial) decision-making

1 Legal method

Questions:

The department TLS is engaged in, among others, research that transbounds the borders of different disciplines. So, one of the questions is: what are possible ways to do multi- and interdisciplinary legal research? Another focal question is about the role, the nature and method of dogmatic legal scholarship.

Mackor has written about the nature and method of legal dogmatics, focusing among others on the distinction between the descriptive, evaluative and prescriptive goals and on the nature and role of truth in law and in legal dogmatics.

Westerman investigated the current tendency to supplement legal dogmatics with empirical research and linked it to an increasing emphasis on the effectiveness of rules in the pursuit of policy aims.

 2 The concept of law

 (A) Hard law, soft law: alternative forms of regulation

Questions: To what extent does the emergence of soft law challenge the traditional philosophical accounts of validity and bindingness of law? In what extent do informal arrangements and informal actors agree with the requirements of the rule of law? And in what sense does informal regulation affect democratic decision-making?

Mackor: One of the topics Mackor deals with concerns alternative forms of (self)regulation of legal professionals, in particular of the judiciary. The judiciary is one of the three state powers in the rule of law and is supposed to be independent and bound only by hard law. Thus, an important question is which roles for example codes of conduct and professional standards can play while respecting the independent position and function of the judiciary within the rule of law.

Westerman: the emergence of soft law is analysed in relation to both domestic and international law. Her book on Outsourcing the law extensively described the emergence of soft law as a result of a process in which the central legislator outsources the making, monitoring and application of rules to the private or semi-public institutions which work in the regulated sector. This analyses leads her to investigate its implications: to what extent does the emergence of soft law call for a modification of the common legal framework with its use on dichotomous valid/invalid distinctions?

 (B) The concept of international law

Questions: To what extent do we need a concept of law that is better adapted to the special characteristics of international law and how would such a concept look like? Many theories on international law are suffering from what is called the ‘domestic analogy’; the prevalence of the dominant concept of law that is based on the ways in which law manifests itself in national jurisdictions. International law is organised in a drastically different way. The question is how to analyse and describe these differences in such a way as to do justice to the differences and to account for the fact that it can be held binding notwithstanding its lack of formally enforceable sanctions.

Gorobets: one of the central concepts for both domestic and international law is the one of authority, which is in the centre of Gorobets’ research. Most conventional approaches to authority tend to focus on organs/institutions that mediate creation, application, and enforcement of legal norms. Authority of international law challenges this perspective and calls for a reconstruction of the concept of authority as exerted primarily and directly by norms. When such an approach is adopted, the problem of ‘domestic analogy’ is bypassed; the fundamental structure of authority is common for domestic and international law, but they feature different degrees and technics of its mediation through ‘officials’. Thus, the main theoretical concern is: how authority links up to the legality of international law, where the standards of legal validity are blurred?

Westerman: customary international law starts from the assumption that factually existing state practices need to be supplemented with `opinio juris’ in order to gain normative force. These assumptions result from a perceived tension between `is’ and `ought’ that might be remedied if one takes into account insights from modern philosophy of science and language.

(c)  The concept of crime and the concept of criminal law 

Ten Voorde: Ten Voorde focuses on criteria of criminalisation. The research is divided in three parts: 1. can courts use criteria of criminalisation in the interpretation of criminal legislation (and if so, how), 2. can criteria of criminalisation be used to get a clearer division between criminal law and administrative law (and if so, how) and 3. can (and if so, how can) criteria of criminalisation be useful when criminal legislation has an international origin (e.g. in EU directives)?

 (d) Metaphorical concepts of law

Question: law can be captured in different metaphors. Law is pictured as trees, organisms, houses, or machines, to name but a few of these metaphors. What are the implications of these metaphors; which underlying vision of law is revealed by the choice of metaphor?

The research conducted by Van der Meulen addresses these and other related questions. The main focus of his research is on the metaphor of the organism as used in 19th century German literature.

 3 Legal (judicial) decision-making

 (A) Rational models of judicial decision-making with respect to evidence in criminal trials

In the context of criminal law, decisions concerning proof of facts must be rational because of what is at stake, but they must also be cognitively feasible because of procedural constraints and cognitive limitations. The joint project of Mackor and Prakken elaborates on and compares three important approaches in light of these demands: arguments, probabilities and narratives or explanations. All three approaches acknowledge that evidence cannot provide watertight support for a factual claim, as there is always room for doubt. Probabilistic approaches account for this by applying Bayesian probability theory, argumentative approaches emphasise the comparison of supporting and attacking arguments and narrative approaches advocate the elaboration and comparison of alternative scenarios or explanations about what may have happened. An important aim of the project is to achieve insight into how the different approaches can be applied in practical legal contexts.

 Jellema focuses on how narrative reasoning can be used to arrive at probable conclusions. His PhD project combines Bayesian probability theory with ideas about explanatory reasoning from the philosophy of science and explores how we can apply these ideas to the context of criminal law.

Mackor focuses on the scenario approach, dealing a.o. with the concept of coherence, the role of predictions and the comparison of the scenario approach with other explanation-based approaches.

Prakken focusues on AI models of legal proof, combining formal models of argumentation and scenario construction with Bayesian networks.

 (B) Judicial decision-making and AI

How can judicial decision making be supported with AI software? Can AI algorithms suggest legal arguments or decisions? To what extent can legal decision making be automated? Can machine-learning algorithms be used to predict outcomes of legal cases or to recognise legal arguments in texts of past decisions?

Prakken studies these questions from an AI point of view.

 (C) Rhetorical strategies in judicial decision making 

Khyzhniak focuses on how legal changes are rhetorically manifested in the jurisprudence of the European Court of Human Rights. Her project strives to show what rhetorical strategies the ECtHR judges use in order to depart from a previous case-law but at the same time to preserve coherence of the jurisprudence. The project employs literary methodology combining the theory of the anxiety of influence by H. Bloom and narrative theory.