by Eric Engle
In considering law we may note that it has certain
fundamental congruences with a binary system of logic. Acts are either
illegal or legal. Proofs are either demonstrated or refuted. The accused
is either guilty or innocent. The logical dicta "p or not p" thus
finds its reflection in structures of law. However legal reason is finally
and fundamentally practical, not theoretical.
Where binary representation of legal processes is not appropriate, it can
still nevertheless be modelled using probabalistic reasoning. At its simplest,
the binary system can be extened into a trivalent or quaternary system.
If we include the cases which have not been adjudicated and ask either
of their legality or whether they have been proven we must state 'no'.
We do not know whether a particular act can be characterized as legal or
illegal until it is judged.Theoretically the valence of a system of logical
representation can be expanded indefinitely to include as many valences
as desired.
In terms of modeling law by a formal representation, whether using a computer or mathematical language, we should note then that a legal statement is a conditional statement in the form of if...then. A legal imperative is different from a legal condition in that the legal imperative is the consequence of the fulfillment of the legal condition. (This incidently is one flaw in Kelsen's work: he confuses conditional and imperative statements).
As we have stated, statements of law are in fact conditional statements. Such statements can be easily modeled using computer languages. Thus in pseudo-code:
function trial()
{
IF accusation THEN {trial}
IF {trial==1} THEN
{
IF (proof > threshold) THEN}nonConformity=1;ELSEconformity;IF non-conformity THENsanction=1;IF SANCTION THENimprisonment;fine;}
And so on...
While simplistic, this pseudo-code does divide the task of trial into its constituent elements. It does of course require the presumption that thresholds of proof can be represented numerically. Each one of these statements would require a page, or several pages of code before we could consider the representation as realistic. A realistic modelisation of a trial procedure or of an entire trial is possible.
|