The paper, carrying out a brief study of some theories in the field of law and information technologies, pursues the following aims: a) to outline some relevant aspects of law and information technologies, regarding particularly those theories which tend to replace judge’s discretion with a computer model (a topos probably overestimated – as denounced by some scholars – but still alive). In this first part of the paper, my intention is to outline two relevant aspects of such theories: the concept of law (essentially interpreted as mere voluntas – “will” – according to positivist account of law) and the consequent structure of legal reasoning (commonly interpreted as practical syllogism) involved by them. In this way, it will be possible to put in evidence what these theories mean by “application of law” (i.e. an algorithmic model, dominated by the dream of constructing an automatic judge). b) to showing some limits of these theories from a theoretical and logical point of view. In this point my intention is to propose a different conception of law and information technologies, based on a «classical» perspective about law. According to such conception the fulcrum of law is not statute (written) law but controversial contest in which trials and lawsuits take place. The current misunderstanding of law’s main character – the controversial one – has reduced it to a mere fact exposed to subjective will’s disposal. An idea which is coherently reflected in some accounts on law and information technologies. On the contrary, by remembering another conception of law (defined as «classical»), it would be possible to rediscover a way to speak about truth in the field of rhetoric and legal argumentation – requested by a controversial contest – different from the formalistic one, so coming to dispel the opinions according to which, in such contest, we cannot retain the presence of truth. Conclusively, the paper considers the possibility of connecting the issues about law and information technologies to the classical method of rhetoric in legal argumentation.
A Classical View on Law and Information Technologies
Puppo, Federico
2012-01-01
Abstract
The paper, carrying out a brief study of some theories in the field of law and information technologies, pursues the following aims: a) to outline some relevant aspects of law and information technologies, regarding particularly those theories which tend to replace judge’s discretion with a computer model (a topos probably overestimated – as denounced by some scholars – but still alive). In this first part of the paper, my intention is to outline two relevant aspects of such theories: the concept of law (essentially interpreted as mere voluntas – “will” – according to positivist account of law) and the consequent structure of legal reasoning (commonly interpreted as practical syllogism) involved by them. In this way, it will be possible to put in evidence what these theories mean by “application of law” (i.e. an algorithmic model, dominated by the dream of constructing an automatic judge). b) to showing some limits of these theories from a theoretical and logical point of view. In this point my intention is to propose a different conception of law and information technologies, based on a «classical» perspective about law. According to such conception the fulcrum of law is not statute (written) law but controversial contest in which trials and lawsuits take place. The current misunderstanding of law’s main character – the controversial one – has reduced it to a mere fact exposed to subjective will’s disposal. An idea which is coherently reflected in some accounts on law and information technologies. On the contrary, by remembering another conception of law (defined as «classical»), it would be possible to rediscover a way to speak about truth in the field of rhetoric and legal argumentation – requested by a controversial contest – different from the formalistic one, so coming to dispel the opinions according to which, in such contest, we cannot retain the presence of truth. Conclusively, the paper considers the possibility of connecting the issues about law and information technologies to the classical method of rhetoric in legal argumentation.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione
