This is basically an Argumentation System approach, which uses nonmonotonic logic and defeasible reasoning. But this system expects to treat principles and rules separately. The open texture antecedent has the derivation acceptance by justifying its contents. The conflict of rules is treated by avoiding invalid rules or conceptual interpretations. The collision of principles is treated by weighing the purpose aimed at by the principle itself. This priority can change, if the purposes change, modifying the conclusion, without any inconsistency to the system.
It is used to treat exceptions on defeasible based system, which also includes the social mutation of the semantic and pragmatic meaning of legal rule. General principles of law can be established in all status's legal systems. The ir function is clearly to assist where written sources of law have failed to provide an answer, since th? latter can hardly cover all questions which come before the Courts. The development of general principles has, within the Member States of the European Community, taken place over number of years.
The European Court of Justice (ECJ) has developed doctrine that rules of Community law may be derived from general principles of law in addition to treaties and EC legislation. This has been seen by some as means by which the ECJ has effectively justified its stepping into th? law-making process of th? EC. In this sense the ECJ has had quite creative role: it has identified those principles which command ? common assent due to the ir generality and, with th? aid of number of EC Treaty Articles, it has invoked th? se general principles as th? legal foundation of number of its judgements (Stuart, 1999, 56-79).
The ECJ will look for general principles particularly by reference to th? EC Treaties and to th? legal systems of th? Member States. In the case of Treaty Provisions, the Court would declare particular provision to be an application of some more general principle, and will the n proceed to apply the general principle in its own right.
On the othe r hand, when th? Court refers to municipal law, it does not limit its search to those principles which are strictly applied throughout the Community by all the Member States. general acceptance of the principle by most Member States appears to be enough and the Court is prepared to apply principles of law even if the y are not found in the legal system of every Member State. It is essential to note, however, that whatever the factual origin of the principle, it is applied by th? ECJ as principle of Community law and not of municipal law.
This is particularly evident in the protection of fundamental rights (Bean, 2004, 85-178). Due to th? function of general principles it is quite probable that, even without the existence of any specific Treaty provisions, the ECJ would apply general principles of law. Noneth? less, justification for general principles as source of law was also provided by th? ECJ by reference to three Articles of th? EC Treaty, namely the following:
Article 164 states that "The Court of Justice shall ensure that in the interpretation of th? Treaty th? law is observed". Since the word "law" was used in this Article, it was presumed that it had to refer to something of more general application, beyond the Treaty itself.
Article 173 deals with judicial review and specifies the grounds upon which an annulment can be based. The first paragraph of the Article includes the words "… infringement of this Treaty, or of any rule of law relating to its application … ". The refore, th? phrase "any rule of law" must necessarily refer to something oth? r than the Treaty itself. This Article has been used by th? ECJ as basis for th? principle that an act of th? EC may be quashed for th? infringement of general principle of law.
Article 215 (second paragraph) is concerned with non-contractual liability, or tort, and expressly provides that the liability of the Community is based on the "general principles common to the laws of the Member States" (Gardner & Anderson, 2004, 9-12) General principles of law can be divided into three groups, namely, principles of administrative legality and due process, the economic pillars of the internal market, and fundamental rights.
There are, however, number of important general principles which straddle all three categories. Equality would be ? typical example. Conclusion In this paper, relevant aspects of Law Argumentation Theory were discussed.
They could have consequences on AI & Law, upon its purpose to offer logical tools for arising rationality in Legal Argument and Legal Discourse.
Legal Reasoning is complex set of human beings, but it is important to model it too. We can not forget that rational discourse demands justification. Some brief conclusions are: the classification of an open texture concept could be obtained, by justifying the contents of the concept; principles and rules have different behaviours in legal domain, specifically in conflicting situations; conflict of rules imply the invalidity of rule or meaning;
Collision of principles are treated by weighting the purpose aimed at by the principle; if the goal to be achieved by the action changes, the priority can change, thus, modifying the conclusion, without inconsistency to the system; the priority and open texture treatment ought to be integrated with argument-based reasoning, on account of the defeasible aspect of legal argument; the argument level should treat the semantic mutation of the concept, bringing up pragmatic level. Other conclusions will only be obtained after discussion and after further research.