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Saturday, January 07, 2012
The Hart-Fuller Debate Post-Modernized: Motor Vehicles versus Animals in the Park
An ordinance originally enacted in 1921 provides that on Sunday afternoons it is impermissible to take motor vehicles into the park but that it is permissible to take animals (even large and noisy ones) into the park on Sunday afternoons. (This is very probably a German city such as Munich.)
One fine Sunday afternoon I take a robotic cat - a robot that functions, in many ways, like a cat, but also, obviously, in some ways, like some other machines - into the park.
How now brown cow?
Shall we use Bayesian logic? (Unlikely.) Shall we flip a coin? ("Heads, it's a motor vehicle, tails it's an animal. That's a fair way to settle this question.") Delphic oracles? (cf. "I will gaze at the starry heavens - especially Sirius - and seek inspiration there.") Our unbridled discretion? ("I can and will rule the way I want. There is no applicable rule here. I will make law. Nothing else is left to me - thank God.") Or shall we (or the judge or the jury) use fuzzy logic? ("This thing partakes of an 'animal' to some degree. This thing partakes of a 'motor vehicle' to a substantial degree. ... [missing matter?] ... Therefore ...[?]")
What will or should we (or the judge or jury) do: How will or should we or they think about this problem?
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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
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4 comments:
We will most likely start in a Talmudic frame of mind: gathering in groups of the learned to speculate on reasons why the civic fathers would have so divided vehicles from animals, then see how those reasons apply to robotic cats. (Decision: smartarses are not allowed to push the limits of the law and the robot is impounded.)
Ah, yes, some sort of legislative intent - at some point in the past - as the benchmark, or initial benchmark in any event. But the ordinance was enacted long ago -- and, being a local ordinance, its origins are very probably lost to any genuine historical inquiry: no no one knows quite how the ordinance became law, or even which city councilor was responsible. So legislative intent, unless largely or wholly imagined, probably won't get the judge very far. But, yes, the absence of a historical record often hasn't prevented judges from manufacturing history: judges - some judges, in any event - would quite likely talk about the (presumed) purposes of the ordinance. Perhaps they would reason in part that the purpose of the ordinance was to promote beneficence toward animals - or to foster psychically satisfying human animal - non-human animal relationships - or to promote a degree of human immersion in Nature. But what did the City Fathers actually have in mind? That's often a very tough call.
Perhaps it is most accurate to say that those long-lost City Fathers almost certainly never thought to allow a robot to roam in their park on Sundays - just as it is accurate to say that the Founders of the (U.S.) American Republic never thought to allow (or prohibit) electronic eavesdropping. Therefore, the 4th Amendment ...? Well, however that argument may turn out, impounding the robotic cat may in fact be the wisest judicial solution: any sensible person today (putting aside the aberrant thinking of some of our youths), any sensible person must want to bar people from feeling affection for robots and must yearn to exterminate robots that disturb the peace of mind of old-fashioned and old pedestrians in the park. (I had better stop now and go back to sleep: as you can see, I am going off on a tangent.)
Postscript: American (U.S.) judges sometimes or often talk about a law's purposes without thinking it necessary to ascertain the purposes of any specific individual or group(s) of individuals. So judges sometimes or often speak loosely about a law's "having" purposes. ... Talking this way may or may not be such a bad thing; but taken to an extreme, this way of talking is ahistorical and probably contributes to the judge's or judges' imputation of purposes that seem sensible to the judge or judges doing the interpreting. (It is not without reason that Justice Scalia fears any mode of constitutional interpretation that rests on anything other than original intent. But what are judges to do when they have at best a faint idea of what the "Founders," "Framers," or legislators originally or actually had in mind? This is a familiar conundrum but, even so, it is a tough nut to crack.)
This is one possible way that fuzzy and rough logic might fit in with contemporary American legal views about legal reasoning: words in legal rules and doctrines can and should be argued about with reference to their possible purposes but the words actually used in legal doctrines (e.g., "motor vehicle" rather than "three-ton truck") can and should influence judicial interpretation of those words (and the rules in which they are embedded) and therefore even words in legal rules have a kind of "natural" behavior or weight and perhaps fuzzy or rough logic can describe this irreducible behavior by specifying the outer and inner perimeters of this set and the extent to which the outer and inner perimeters seem intuitively plausible, perhaps we can use rough set theory to specify the comparative density, so to speak, of the legal word within the word's innermost and outermost perimeters. This notion makes some sense to me. Does it make sense to you? But I would need the help of fuzzy and rough set theorists to correctly translate my words into precise mathematical expressions. Furthermore, my proposal here speaks more to the possible use of rough set theory than fuzzy set theory - but I have the sense that an analogous approach might be taken with fuzzy logic to describe how judges and other interpreters ponder the question of whether some set of facts is or is not withing some legal category (or set) and the degree to which it initially seems, to the interpreter, to be within the legal category or set in question.
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