The Structure of Norm Conditions and Nonmonotonic Reasoning in Law

Giovanni Sartor
Cirfi& University of Bologna
Via Galliera 3/5, 40100, Bologna

This paper examines the relatwn between the structure of legal the effect laid down by the norm; the anteceden~ the condition tn
norms and nonmonotonic reasom”ng. which the effect is subordinate. To simplify our exposition, we
It is argued that there is need to distinguish two categories of shall consider a simplified model of norm, where the norm
elements in norm conditions: principal futs and secondary f~ts. wndition is a conjunction of literalss, which we shall call furs, and
Ascertainment of the principai facts is required to &rive the the legal effect is a literal.
consequent of the norm. Ascertainment of the secondary frets is not
necessary: it is s@cient that their complements are not ascertained.
Nonmonotonic reasom’ng in law is based on this distinctwn, as is 1.2. Principal and secondary facts
!he relatwnship btmveen rusks and exceptions.
The second part of the paper cotwiders the adequacy of diffkrent When the use of norms in legal decisions is considered, a
formalisms for the purposes of representing norms including distinction is necessary between two ways in which a fact can occur
principal and secondary f~ts and expressing rules and exceptiom. in a norm condition.
After showing the inru.ciency of both classical logic and Horn The law confers on certain authorities (in the fiist place, on
clauses extended with negation by failure, some alterwive judges) the power to ascertain legal situations (a legal situation is a
proposals are considered, moving j%rn Reiter’s &fult logic. set of legal effects), and to decree the result of the ascertainment
with an authoritative decision. Legal decisions must be taken (or at
least justified) acxmrding to the law, that is by applying legal norms.
1. THE STRUCTURE OF NORM CONDITIONS BUL in order to ascertain a legal effect. it is not necessary to
ascertain all the facts of a notm condition. The judge is under a duty
to consider the norm condition fulfdled and, therefore, to derive its
1.1. Conditional norms effect+ if and only ifi

Legal norms typically have a hypothetical structure: they link a 1. some elements of the norm condition, that we shall call
legal consequence to a legal condition, principal f~ts, have keen ascertain~ and
For legal consequence or legal effect, in a broad sense, we 2. the complements of the other elements of the norm
mean any qualii5cation established by a legal norm not only deontic condition, that we shall call secondary facts, have not been
modalities (obligatory, permitted ...)2 but also status (such as the ascertained.
qualities of citiz~ parenL spouse ...). professional qualifications
(surgeon, lawyer, judgq professor ...). and other legal qualities of Therefore, a conditional norm can be represented in the
persons (incapable, under disability, bankrup~ habitual crisninaf structure
...~ and things (personal property, real ~operty, State property
... . E+ FI A... A ~i A s(~j ) A .. . A S(F”)
For legal condition, or norm condition, in a broad sense, we
mean any fact or combination of facts (actions, events, states of where Fl, .... Fi are principal facts and Fj, .... F. are
things) to which a legal consequence is subordinate. secondary facts (the operator S qualifies its argument as
The most direct formalization of a conditional norm is obtained secondary).
through a conditional senteatce. The consequent of this sentence is To say that a fact F is secondary (in a certain norm condition)
means saying that (in order to fulfil that norm condition) it is not
lJIVen if diff~ti COIVX@MS of the rektionship ~ Iegd conditkms necegsary that F be ascertained, but it suffices that –F is not
snd legat ccmsequemxs have been ppos4 rhexeis substantial consmsus on ascertained. Therefore, the expression S(F) can be considered
the casditional structure of kget norms among most legal theorists. Cf., for
equivalent to the expression 4a(-F), where la stands for legally
them cdl, Keken (1934, 21m 1960, 3ff, 79ft).
2’IIIe pmblms of deontic logic will not be exmstined hem b pasticukr. we ascertained.
wiU not ccawider wts~ dcontic implication requires a special formalization A fact must be considered legally ascertained if and only iE
(as suggested, for example, by McCarty (1986), snd Jomxsad P&n (1985)).

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155
 it is an empirical fact for which sufficient evidence has been (principal) and facts for which proof to the contrary must not be
givens, or given (secondary); facts with regard to which the onus of proof is
it is the legaf effect established by the instance of a norm, on the plaintiff (principal) vs facts with regard to which the onus of
whose condition has been fulfllled. And a norm condition is proof is on the defendant (complements of secondary facts).
fulfilled when all the principal facts included in it are ascertained,
and the complement of no secondary fact is ascertained. Conrtitutive f~ts vs irnpediertf facts

h-t fac~ the closure postulate of the legal world is not expressed A general criterion is laid down in Art. 2697 Italian Civil Code8:
by the so-called closed world assumption (everything is false that is
not known to be true), but by the requirement that afl (positive or Art. 2697 (Onu.r of proof). Any person who wishes to have a right
negative) facts not legally ascertained must be considered rcmgnixed before the courts must prove the facts calstituting the gourds
extranmus to the justification of legaf decisions. for iL
We will not my to give a precise logical deftition of the concept Any pmson who rsises an objecticm about the ineffectiveness of these
of legally a.rcertairted and of secordzry far, even though it is clear facts, of objects that the right tuss beem modified or is extinct must wove the
facts m which the objecticn is based.
that they come close to some modaf or metalogical notions.
So, the concept of fegally ascertained a~oaches the epistemic
The facts representing the grounds (the justification) of the legal
notion of belief, from the point of view of a rational person, who
effec~ and therefore constituting or causing it (as efficient causes),
believes only the facts for which sufficient evidence has been are called comtitutive fufs (in Italian, f~ti costitutivi). They must
produced, legal norms, the logical consequences of his own
be ascertained if the judge is to fmd the legal effec~ which is the
beliefs, and is aware of what he believes and not believes (cf. object of the claim. In other words, constitutive facts are principal.
Moore 1984, Levesque 1989). In this perspective, =la F (that is The facts preventing a legal effect from happening (like self
defence, excluding liability for torts or crimes), amending it (like
S-F’) means something like “it is not believed that F“, srtd will be
partial paymen~ reducing the right to a credit), or eLirninat@g it (like
included in the set of beliefs of such a person (it will be legally
complete paymen~ extinguishing the right to a credit) are called,
ascertained) if and only if F does not belong to dtat set (it is not
legally ascertained). respectively, impedieti, amending or extincfive factsg. They must
be proved for an exception to be allowd so that the application to
The same concept of kgafly ascertained can rdso be interpreted
through the concept of deducibility, by assuming that a legally have the legal effect ascertained be rejededlo. In other words, their
rationaf person accepts all and only the facts deductively justified complements are secondary facts in the norm providing for the
effectl 1.
from the legal premises he accepts. Then, -IlaF can be read as
So, a norm stating that a legal effect E is conditioned by
something like “it is not deducible that F’, or, “it is consistent that constitutive facts F1, .... Fi. and hindered by impedient facts Fj,
-F* (cf. Reiter 198Q Bowen and Kowalski 198% 167ff). . . . . F. can be represented as:

E + F1 A ...A Fi A S(_Fj) A .. . A S(_FJ.

1,3. Principal and secondary facts in legal language
Legal language normally in~oduces primary facts by stating a
The law distinguishes principal from secondary facts in order to general defensible rule, and introduces secondary fact by allowing
make the proof of legal effects easier, to realize a certain balance exceptions to the rule. The complement of each (irnpedient) fact
between the parks in the cas% or to grant a particular protection to grounding an exception is a secondary fact in the norm obtained
certain legaI positiona. combining rule and exception. We can distinguish two main types
In facL for the realization of a legal effecL the occumence of of exceptions
facts typically justifying it is not sufficient. To that purpose, the
absence of every circumstance requiring a dtiferent solution (even a. Exceptwn to norms. The exception provides that a particular
in the presence of those typical elements) is necessary. Law nom unambiguously identiflet4 does not apply in a given situation
considers the complements of such circumstances secondary facts, (impedient fact). Example (from law 27 July 1978, n. 392,
since it is easier to prove one of these circumstances (to block the regulating the leasing of urban properties)
derivation of the effect) rather than prove the complements of all of
them (to derive the effect). Art. 34. tsr k case where a lease relating to a prqserty coming within
Furthermore, in some cases it is very difficult for the interested the provisions of ArL 27 bar beem tans W ... the lessee fms ti right to
party to prove certain facts, in particular when these come Wifi an indannity ...
the other party’s sphere of irtfhsence and there is an imbalance of Art. 35. The provisions of the previous article do not apply to the
power and knowledge. The legislator cart qualify those facts as tenninatiort of le&cs relative to pro&ties used for catrying out activities
secondary in order to improve the trial position of the weaker party,
?hat do not involved- contactwith the public ...

so as to achieve a substantial equality. b. Exceptions to effects. ‘flte exception lays down tha~ in a
The legaf language has no pair of terms to express d~ectly the certain situatiou a particular legal qtralitlcation does not occur, is
qualifications of principal and secondary, but refers to this excluded. That situation is, namely, an impedient fact with respect
distinction by using various formulations. In particular, the to the class of norms establishing the given qualification. Example
following oppositions are employe.tk constitutive (principal) vs
imp~ent facts (complements of secondary facts~ non presumed ArL 2044 (Se~ deferrce) Any one who causes damage by defending
(prtnclpal) VS presumed facts (secondary); facts to be proved himself or orhcss is not liabk.

5F=~ -mg ~ifi ~~ a~~ must be ddd m. fn‘- m k

bmis of art. 115 ILatian Civil Procdue Code, the judge may “withcut the need 8AU& following cXampk.S, Wk.SS OkSWiSc specified, tie Men from tbe
of proof, derive his decision from factual notions coming under common Itatisn Ckil Code.
e+=”. % distitxtion between ccnstitutive, itnpedienL amending, and extirrctive
‘%e closure of tfte justifkation context of any Iegst decision d- not facts (in Itatiaq fani irrrpeditivi, nwdi-ficufivi, and esfinfivi) is usually
exclude that this context can be built on prehbitity corrsidersduns (in proving intrcducd in civil prmdure handbmk.
empirieat facts) and on evaluative choices (in idmtifybtg norms, that k, in 10f& ~ of * def~ mag m impedient f- is Cstled excepliorr.
ascribing meanings to legal texts or bs extending the nmnativc base by 110- ~~ f~ are quafifd as Premppositioru Qwesnppo.riziom),
mstogicat ~). to mean that they are not the “true” causes of h effecq but provide ordy the
7FW exm~e, fi is piacticafly impossible, fm h consumezharmed by a himoricat-environmental conditions whexe principat facts (the eftlcirnt cause)
defective product to strictty pvc the produces’sfaufL --

156
 presumed fact has not occurred) impedes the legal effect being
This article makes an exception to all norms providing tort drawnld.
liability. In other words, it introduces the secondary fact of the
absence of self&fence in the condition of each one of these norms.
Facts to prove vs fats to which contrary proof must not be given
Rule and exceptions are sometimes included in the same
sentence, the latter being normally expressed by a subordinate
In other cases, in order to establish the division between
proposition introduced by conjunctions like unless~z, provided
principal and semndary facts, the law distinguishes fizcts that have
that, acept that, save that, etc. Obviously, this type of formulation
to be proved from facts for which contrary proof 15 must not be
can be used only for exceptions to norms. Example
given (in order to derive a certain legal effect). Obviously, the
Art 1481 (Danger of revendiaaion). The buyer can suspmd paymmt of
former are princi@ while the latter are secondary.
rhe price whm he has reason to fear Urns the thing or part of it cculd be For example, Art. 2051 Italian Civil Co& lays down that it is
reclaimed by a third party, unless tie seller provides suitable guarantees. not necessary to prove fault to show the liability of the holder for
darnage caused by things in safe-keeping. Liability is excluded only
The danger of the claim is a cortstitutive fact for the right to if lack of fault (a fortuitous case) is provedls.
suspend paymen~ while the failure to give guarantees is a
secondary fact. Art. 2051 (Damzge caused 6y fhirrgs in m.rfody). A person is liable for
Usually amending or extinctive facts are provided for in separate damage caused by things in his custody except where he shows evidmce of a
sentences. These sentences can be conceived as exceptions fortuitous case.
operating from the moment in which the amending or extinctive
This prescription could be represented ax
facts happen. Exafn@

Art. 1236 (Declaration of rem”ssion of the &trt) The declaration of the liabLe(X@rnageJacl) +
creditor of remission of the debt extinguishes the obligatiar when the debtor
has in custody (X,Thing) A determined(Thing,Fact) A
is rrotitirxt ...
cw-ed~FactJkrntage) A S(at fmkjor(X,Fact)).
Non presumed vs presumed fats
The distinction between principal and secondary facts is
Ofte~ to state that a fact is to be considered secondary, the law connected to the division of the onus of proof. In facq two parties
qualifies it as presumed. Example are involved in any legal case (in civil law suits): the plaintiff,
concerned that the judge finds a certain legal effect (for example,
Art 1148 (Acquisition 4 ths frud$). Tk holdex in sod faith of a thing the right to compensation), and the defendan~ concerned that the
makes its &uits his own. same effect is not found.
Art. 1147 (Pomersion qfgcwd fa”th) ... Good faith is presumed. The plaintiff bears the risk of failing to provelT the principal
facts to which the legal effect is conditioned if those facts are not
CW@fW a f~t ~ ~ pfestffn~ in a norm establishing the legal legally ascertained, the effect cannot be derived and he has to
effect E, means thaL to ascertain E, F does not need to be succumb. In this sense, the plaintiff has the onus of proving the
ascertained it is sufficient that -F is not ascertained. So, the principal factsls.
combination of the two norms set out above can be formalized as Instead, the defendant bears the risk of failing to prove the
impedient facts: if the principal facts are ascertained and no
owner(X,Fruit) + impedient fact is ascertain~ the legal effect must be derived, and
the defendant has tos uccurnb. In thiss- the defendant bears the
holder(X,Thing) A prcduced(Thing,Fruit) A
onus of proving the irnpedient facts. Therefore, in cases in which
S(in_goodJaith(X)). the law transforms a principal into a secondary facL it is said to
invert or shift the onus of prooflg.
The ambiguity of the term presumption should be stressed. Here
we consider only the so-called rebuttable presumption (praesumprw
juris mntum), that we must distinguish from both presumption of 1.4. Negti”va non sunt probanda
fact (praesumptio hominis) and irrebuttable presumption
@e.sumptio juris et ak jure). A legal sxmdition can include positive and negative facts.
A presumption of fact is a judicial inference based on The former usually are principal. They represent the grounds
circumstantial evidence and on probable rules of experience. that typically justify the legal effect (that “constitute” it), and
Instea~ in rebuttable presumptions, by qualifying a fact as therefore have to be ascedned in order to &rive the effect.
presurn~ the law does not perform the inference of that fac~ nor On the contrary, the latter usually are secondary. They represent
orders it to be made. Rather, it prescribes that the legal consequence the negation of positive circumstances that would make the effect
be derived even if the presumed fact is not ascertain- so long as inadequate, even when the typical grounds are present. Those
neither the sxmplement of the latter is ascertained (cf. Sacco 1957, circumstances are normally rxmaidered irnpedient facts, that have to
407ff). be axertahed to block the derivation of the effecL
We have an irrebuttabfe pre.rumptwn when the law, after having
established the wmsequences of a certain fac~ also intenda to allow
the same consequences to be produced by a different fact. So,
using a synthetical forrnulationts, it says that the fist fact is 14~ ~ ~mmti~ of irrebutmble prrmrmptions, cf. Rousm ( 1989,
prestuned (or is intended as verified), when the second is proved.
243 f).
Since the law actually intends to equate the two facts, the proof that ~5com~ pro# means proof@ the compkmms.
the presumed fact has not occurred is irrelevan~ once the other has 16f~i~ le8~ *1- * wfw&x the formitmrs case coincides Wifb no
been proved. Insted in rebuttable presumptions, the proof of the fattlL For our purposes, purely as a m- of example, we consider the
complement of the presumed fact (that is, the proof that the fofnfitous caac u no fault.
17~e-s Ioprm ~Pr~~ used W in a W sense. *Y ~lude
1’2L.E.Mm fISSs@Med ths meaning of unfess in numerous articfe$ (cf., krth evidrawc d sisnpk facss atvi derivadat of legal cmseq~
for c.xantple, Allen (1982, 375f~ Allen md Saxon (1989)), but without 18~e _ OWS of pr~of is oti used io a stricter sense, that is fof
rdizii IIMS rhts -juraAvn usuaUy dws nvs inrr.aduGG a ne@vs @ipal WfCTT@ ju= W - WhiGh W@ ti ~-
h -~= GVidUIGS(IW UUUdly
fac~ buts rqative semdary fact (a positive impedimt fact). Cf. McCarty Ocurre kr Civif pmceediigs). cf. Sacco (1957, 357ff).
( 19g9. 184). 191f a f-~ becofffes secosIrtafy, the plaintiff can prove She kgat effect
13&d ~ _ition of histmical and idecdogical ~. witfrart proving F, while the defedant has the onus of proving -F.

157
 Therefore, as a rule, negative facts do not have to be proved In fac~ legal decisions have to deal frequently with incomplete
(negativa non sunt probanda), failure to prove the complementary information, so that an assumption of total knowledge cannot be
impediertt fact is sufficient. made
In law, negation can be often treated by using the rule of
- Empirical facts are sociaf situations artd events about which
negation by failure (infer -IA if the proof of A fails) because this
complete knowledge is not granted;
rufe corresponds to the treatment of negative secondary facts (the - Legal effects can be assumed to hold onfy on the basis of
effect conditioned on the secondary fact -d can be derived if A norms establishing them, but the complexity of legal systems and
does not result ascertained). the possibility of erdarging a normative base by means of analogical
In some norms, nevertheless, negative principal facts occur. reasoning must be taken into account.
Example:
By distinguishing principal and secondary facts law establishes
ArL 361 Itatiao Criminal Code (Om’thzi crinss report by civif servant). the consequence of uncertainty on the ascertainment of facfszl: if a
The civil servant faiting to report ... a crime ... is punished .. .
fact F is uncertain (neither F nor -F is ascertained) the norm
To derive the criminal responsibility, it must be proved that the conditions in which F is principaf cannot be satisfied, while norm
crime has not been reported, so that this prescription cart be conditions in which F is secondary can. This aspect has a
formalized as cortsi&rable practical importance. For example, a recent directive
of the European Community concerning consumer protection has
punished(x)+ introduced into the Italian legal system an inversion of the onus of
proof of the fault of the manufacturer. The norm
civiI_servant(X) A crime(C) A +eports(X,C) ...
liable(X@rnage,Fact) +
More frequently, we have secondary positive facts, that is
negative impedient facts. They are introduc~ in particular, by produced(XJ%duct) A &terrrtined(Prcduct, Fact) A
norms establishing rebuttable presumptions or inversions of the caused(FactJkmage) A unlawjiul(Darnage) A
onus of proof. So, in the example above, the good faith of the
~fwlt for(X,Fact)
buyer is a positive secondary fact. In the following paragraph from
the British Nationality ACL birth in the United Kingdom, and from has been substituted by the norm
a British citizen are positive secondasy facts.
lhMe(X&nsage,Fact) +
(2) A newban infant who, after eomsncsxemenL is found sbandond in
the United Kingdmn shatl, untess the ccmtrary is shown, be deurted for the produced(X&oduct) A detertruked(PrcAct,Fact) A
prpose of subsection (l):
(a)mbe~brntieUti@&&~a-~md
caused(FactJktrtage) A unla@d(Damage) A
(b)tohave bcutbom toapsuent wheat therime of the birth wasa S(atfault for(XJact )).
British cidsen or satted m the United Kingdom.
Aa a consequence, when neither fault nor non no.fault can be
Here is the representation by Sergot et al. (1986, 380) demonstrated, the manufacturer must now be held liable, while
before he could not.
X acquires British citizmship on date Y by secL 1.2+
X was found as a newborn iofant abandmed in the U.K. A
XW=fOlfIXtOIS*~A 1.6. The exceptions
Yis6fteror~~~@A
nOt(XWSS &2fbCmt inthe U. K.afkZ 0fc4’twuMo~efft)A Legaf language frequently combines rules and exceptions (cf.
nof(Xwasn@ bmntoaparera wtmqualificdumiex I.latdmeofbti). Gordon 1988, 115ff). The representation of exceptions is
problematic since they seem to include two aspects:
where nothas to be interpreted as negation by faihsre and ~ as
ordinary classical negationm. an object level informatiotx the content of the exception is a
In fact. this norm subordinates a legal effect to the non conditional norm whose effect is the negation of the effect of the
ascertainment of the following negative facts mle (exceptions to effects) or of the rule itself (exceptions to
norfrfsm;
+XwasbomintheU.K.a fieroroiI —mcunent) a metalevel information the exception blocks conflicting
+Xwaabornto aparmtwhoquatitied un& 1.1 attifneofbti),
rules.
that is, to the complementary positive secondary facts. So, it can
To qual@ norms as rules or exceptions, let us use the keywords
be represented as
rule and exception(n), where n is the priority level of the
X acquiresBritish cifizmship on date Y by secL 1.2 t- exception (higher numbers indicating a higher priority). Those
X was found as a newbcrrt infant sbandoned in the U.K. A keyworda will be followed by the name of the norm (on naming,
Xwasfouftdmdate YA cf. Poole 1988, 32ff) and then, by the norm itself. Norms
Yisafter oroncoffunesKmrlent A intending to exclude a legal effect E (exceptions to effects), wilf be
S(XWSSbOmiSl ftte U.K. tlfK!?Of OIt C0UMflCZtCClUfflt)A represented as exceptions whose conclusion is the complement of
S(X WUU L7VM SO m PCIS WhO qunlifll url(k 1,1 W tilllG of binh), /3, and norms intending fo GXGhIdG fhe applicability of a norm h’
(exceptions to norms) as exceptions whose conclusion is the
negation of the name of N. Example
1.5. Secondary facts and uncertainty
rule fauk_liability(X@ntageJact):
The distinction of principal from secondary positive facts
corresponds to the dmtinction of positive information from the lack
of negative information while the distinction of principal from 21 Dif ferenf pkcipies, that we will not consider h=c, concern the
secondary negative facts corresponds to the d~tirtction of negative umemsinties of-s. So, if a fact is established ss mosequ- of a norm, its

information from the lack of positive information. ~ (in this regard) is only the onmtain ty regarding asemahnmt of *
cmdititn of that - (the um.ertainty on the “existenee” of the norm is not
rc.kvm~ ifs this rcapcct),
22.~s _fstioff Of cxcc@ms to norms seats to presuppose that the
%nssicai mgaden was expessed by ad hoc negative predicates. ‘Pi~~ ill the norm is not ustmdcd as material ifnplieatiom

158
 Mde(X@mage,Fact)+
If we have v exceptions to the effect E, each norm with
accompiish@~act) A caused(FactJkwnage) A conclusion E must incIu& the disjunction of the conditions of afl
wrongfui(Darnage ) A at f~h fOr(x#aCt). the v exceptions. So, we will obtain formulas such as:

exception(1) irresporuible_self_defiX~~ge,Fact)): ~ 4- FR1 A ... A S(FRm) A S+ (F~~l A ... A S(F~~k) ) V . .. V

4able(X,Danage,Fact) + did_in_self_defmce(X,Fact). (F~”l A . .. A S(F~vfl) ) )
exception{ 1) irresponrib/e_incap(X~ wge,Fact)):
where F~i. represents the element j of the condition of the
4iable(X,Damage,Fact) + incapabfe_during(X,Fact).
e.ception i. f“his formula is equivalent to a set of nom whose
exception(2) non_irresp_incap Jault(X&rnage,Fact)): conditions includes:

~irrespomibLe_incap(X~wge,Fwt)) + - all the facts F~l, .... S(FRJ in the condition of the rule, and,
incapable_by f~lt_during(XJact). in addition
a conjunction of v facts, each one corresponding to a fact in
The derivation of the effect of a norm with name N and effect E the condition of one of the exceptions.
must be conditioned by the failure to derive any (higher priority)
exceptions to E or to N. So, we can translate a set of rules and SO, the rules and exceptions of the example above can be
exceptions into a representation without exception clauses by transformed in the following norms:
following this procedure: for every exception clause, starting from
those with the highest priority, we eliminate iL and we include in liabfe(XDamage,Fact) G
the body of any norm blocked by it an additional conjunc~
requiring that the exception condition is not ascertained. occornplishes(XFact) A caused(Fact@rnage) A

Let us assume to have a rule such us: +@~ge A affatifor(X,Fact)

) A

S(+incqoable_during(XYact)).
rule rulel(X): E + Fffl A ... A S(FRm)
liabie(X,Damage,Fact).+
and an exception such us:
accornpiishes(x~act) A cau.red(Fact&mage) A

exception(l) exq(l’): =E + F~l A .. . A S(F~fl) wrongfid(Darnage) A at fadt for(x~act) A

S(T (did -- in se~_dgfence(XJact) A

where X and Y are respectively the free variables in rulel e
incapable_by fwit_during(XJact).
e.xcl~. Let us add to the condition of rulel the statement S(-I(F~l
A .. . A S (F~n )), requiring that the condition of exc I is not The transformation procedure just illustrated determined an
unnatural representation. Moreover, when there are numerous
ascertained (S=@ is satisfied if and only it a is not ascertained). exceptions, this representation has to include so many and complex
We obtain: norms to be unintelligible. To eliminate one exception to the effect
E, all norms stating that effect have to be modified, and the
E + FR1 A . .. A S(FRJ A S(+FE1 A . .. A S(F~n)). dynamic aspect of the exception (it applies automatically to any
future lower priority norm) is lost. Eliminating a clause stating an
tha~ by applying a De Morgan law, distributing S on the exception to a norm causes less problems, since just that norm has
elements of the resulting disjunction, and simplifying double to be modified. In fac~ as we have seen above, legaf language
negationa, can be Wmsforfned inkx sometimes prefers to insert the exceptions to a norm in the
statement containing the norm. For example, the two last
E+ FRIA ... A S(FRm) A S(-F~I) V .. . V S(+S(F~n))). exceptions clauses of the example above correspond to the
following preacfiptiorx
But S (~(S(F))) is ascertained if and only if S(F) is not
Art. 2046 (Liability for lb harn@l fact). He who was incapable at rhe
ascertain~ that is if and only if –F is ascertained: S(-I(S(F)) can time when he committed the harmful fac~ is not responsible for its
be considered equivalent to -F. So, the formula above can be ~~. ~=s ~ * of _ifity dcrives from his fault.
ccmsi&red equivalent to the following: and a more isomorphic representation would combine them in
the following statefnenc
E + FR1 A . .. A S(FffJ A ( S(–FE1) V . ..V -FEn).
exception irresponribfe_se~_de flX@trtage,Fact)):
where the complements of the principal facts in the exmption 4able(X@rnageFact)+
condition are secondary, while the complements of the secondary
facts are principal. kcapabk_during(XJact) A

The last formula is equivafcnt to a set of n conditional norms, S+incapable_byJault_during(X~act)).

each corresponding to one element in the condition of the exceptiom
1.7. Nonmonotonic reasoning
~ + FR1 A .. . A S(F~J A S(-F~l)
... Secondary facts (exceptions) introduce in legal reasonirtg a
E + FR1 A .. . A S(FRm) A -FEn. norrrnonotonic aspecL to which the dialectical structure of legaf
pfocedurea is connected
Let us assume, for example, that Mary wants compensation
~w~ u-e, to simplify au expositia that each tCIUl ill tht? H Of a from Mark father of Joluu saying that JohtL invited to a party in
rule w of m cx.cq.tiat is a free variable, snd that vsriabk names in the brad of her house, has broken her precious Chinese vase. These are the
tic rutc and of dm cxccptirm coincide. Thar is if rhc rute head is p(Xl ,..~n), norms to apply
the exception head is +XI ,..~n) and vice versa. Moreover, we assume rhrd
variable names contained onty in the bedy of a norm mm not used in any
exceptions to be imertcd in it.

159
 rule pareti_liab:(X,DamageJact) +
liable(X&tnageJact) + A conditional norm expressed in classical logic has tie suucture
parent(X,Y) A habk(YDzntageJact) A

S(~could~revent(XJact) )”.

rule fatdt_iiability (X&rnage,Fact): where the F1, .... F. are iiterals. All facts have to be principal,
since it is impossible to represent secondary facts.
liabk(XJkzmage,Fact)+
mcompkshes(x~act) A caused(Fact@rnage) A
A normal clause has the stnscture
wrongful(Dantage ) A at fait for(X,Fact).
exception(1) irrespomib/e_se~_deflX,Darnage,Fact)): AO+A1 A . . . AAi A?Wt Aj A... AIWt An

-Jiabfe(X.Damage,Fact)+
where Ao, .... A. are atoms, and not is negation by failure. A.
did -- in se~_d~ence(X,Fact). can be derived when the Al, .... Ai are proved, and the proof of the
exception(1) irresponsible_incap(X&mage,Fact)): Aj, .... An fails. A formula not A can be read as our ~la(A) (it is
+abk(X~amageJact) +- not legally ascertained that A), that is as S(+). Normal clauses
/&qxzbk_during(X~act) A correspond therefore, to norms such as:
S+incapable_by fault_during(X,Fact)). AO+A1 A .. . A Ai A S(Aj) A . .. A S(+fl)

Let us assume that the following facts have been proved: in which all principal facts are positive and all secondary facts
are negative. It is impossible to represent norm conditions
accornpMed(john,chinese_vase>ush). containing negative principal facts or pasitive secondary facts.
caused(chi~se_vasey uskchinese vase_distruction). As we have seen, principal facts are usually positive and
unlawjU(chmese_vase_alstruction~ secondary facts are usually negative. Therefore, normal clauses
at f auk fortjohn,chinese_vcase] ush). allow most legal norms tn be represented. Nevertheless, different
parent(markjohn). situations emerged even in the fwst attempts to formalize legal
knowledge in this language (see par. 1.4 above).
Given these facts, Mark appears liable for the damage caused by
John (since the rule conditions are satisfied and no exctmtion
condi~on is). 2.2. Legal norms as defaults
Mark can free himself bv satisfvimz the condition of one of the
exceptions. So, for exampl~, if he’pro%es that John was incapable Reiters’s default logic is one of the moat expressive and widely
at the moment of the acciden~ that is that used formalisms for nonmonotonic reasonin g. Let us recall that

incapable_during(john,chinese_vase~ush), A &fault theory ... is a pair (D,W) where D is n set of default rules
applying to seine world being modetfq aad W is a set of “hard” facts about
John’s liabtity is excluded by the exception irresponsibk_irzap. that world. Formatly, W is a set of fmt ordc.r statements while a typical
But Mary can prove that John’s incapability derived from his &fautt ties of D is dusti
faul~ since it was caused by his drunkenness. So the exception
u(O Mf31(X), .... Mj3n(x)
irresponsibfe_incap is blocked John appears liable agairL and au
Mark.
Then Mark could try to prove that he could not control his son, W(m
so as to prevent fhe fac~ that is whcxc @,Y), ~1 (X), .... ~fl(x), w(X) are aU fust order fermutae whose
free variables are among ihose of X = XI, .... Xm. intuitively, tis default
+ou/dyrevent(markchinese_vase~ush), rule is interprtid ss saying “For atl individuals Xl, . . . . Xm.if a(X) is
believed and each of ~l(x), .... 9fi(X), is ccmsistesst with our beliefs, then
and freehimself again from the liability. w(X) may be believed” (Reitcr and Criscuolo, [1981] 1987, 94-95).
In every phase of the dispute, secondary facts (and exception
conditions) assume a particular relevance if the complement of a The formulas a(X) and w(X) are called respectively,
secondary fact (or an exception condkion) is proved, the inference prerequisite and conclusion of the de faul~ while the expression
based on that fact (or on the rule to which the exception refers) is
M~l(X), .... M ~n(x) is its justif~ation. Representing a norm as a
blocked.
default, the conjunction of the principal facts becomes the
prerequisite; the secondary facts, the elements of the justificatio~
2. IMPLICATIONS FOR THE LOGICAL the legal effec~ the conclusion. For example, the norm
REPRESENTATION OF LEGAL KNOWLEDGE
liab&(X@rntageJact) +
produced(Xproduct) A &terntined(Product~act )A
2.1. Insufficiency of classical logic and of normal
clauses caused(Fact~atruage) A urda@d(Darnage) A
S(atfault for(X,Fact ))
A language for representing legal knowledge should express
norms containing principal and secondary facts. Both fust order would be translated into the &faulc
classical logic and normal programs (Hem clauses extended with
negation by failure) turn out to be insufllcient for this purpose. produced(X~roduct) A &termsne
‘ d(ProductPact )A
caused(FactlMmage) iWda@d(D@nage):
Z+IMS clause f~alk ~ pm Of m. 2048 Italian Civil Code (Parent M(atfakfor(X~act ))
liabiiity ...} “The fmha ml the mother ... are Iiabtc fcs the damages caused by
= —Nshd by their unda age chitdrm .. . ~] sre freed from tiW liable(X@rnage~act).
responsibility ordy if they fxove they cautd not pwtt ti f~t.”

160
 normal logic programs. It is sufficient to substitute each negative
Defaults allow for a satisfying representation of norm
literal +,..) with an atom p’(...),representing the positive form of
conditions, but default logic presents some diftlcult problems, and
the negative literal+ where p’ is a new predicate of the same arity as
in particular the following:
P.
- To derive a default conclusion, each element of the So, this proposal seems to provide a much more expressive
justification must be shown to be consistent. This is language with the least cost. Some difficulties remain, like the
computatiortally costly ancL in general, not decidable. possibility of contradictions, and the fact that all counterpositive
- Rule and exceptions have incompatible conclusions. If both inferences are blockedfi.
rule and exceptions are represented as defaults, to avoid
contradictions we must use scrnirtormaf default (whose justification
2.4. Programs of rules and exceptions
includes the complement of the conclusion). So, we end up with
default theories with multiple extensions: by applying the defaulta
Kowalski and Sadri (1990) solve the problem of contradictions
to the facts and to the already inferred consequences, we obtain
by interpreting clauses with positive heads as rules and clauses with
alternative seta of consequences (extensions).
negative heada as exceptions. For example, the above introduced
In the following sections we will consider some prqmsals: norms axwxning liability would be represented as:

to reach et%ciency by treating default reasoning insi& a logic liabk(Xllrmage,Fact) +

programming framework
c7CCOMphk/@xFaCt) A caured(Fact&rnage) A
to solve the problems of multiple extensions by defiig
priorities between rules and exceptions, or by making explicit the unkzw@l(Damage) A atfwlt for(X,Fact).
assumption upon which the different extensions are based.
--t(liable(X~amage,Fact))) +
~d_in_se~_d@ence(X,Fact).
2.3. Extended logic programs
+liabfe(X@mage,Fact))) +
Defaults whose prerequisite and justification are conjunctions of incapable_during(X,Fact).
literals and whose conclusion is a literaf correspmd to extended
clauses (clauses of extended logic programs) such as +liabtk3(X&3rnageJact))) +
did_by_necersity (Xfact).
LJ+lq, .... Lm, not Lm+l, .... not Ln,
A program of rules and exceptions cannot be contradictory since
where each L-i is a literal (Gelfond and Lifschit.z 1990). exceptions are assumed to have a higher priority than rules, so that
In extended logic programs two kinda of negation appear: they overri& conflicting rules. Such a program can be transformed
classical negatiow =, and negation by failure, not. The first is to be into an equivalent extended program by adding in the body of each
clause with head E, the formula
intended as falsity, the second as lack of information (not L means
that the program does not give grounds for L). Extended logic
prograrna allow both principal and secondary facts to be FUX ~E,
represented. In particular, positive principal facts can be
represented as positive literals (A), and negative principal facts as if the program contains exceptions to that clause. So, for
example the rule above would be traoaforrned into the following
negative literals (-A) positive secondary facts can be represented
as not -A (corresponding to S(A)) and negative secondary facts as liabfe(X&mage,Fact) +
not A (corresponding to S(-iA) ). aCCCW@iSh@~aCt) A caused(Fact&mage) A
So, a conditional norm such as
-KDmge) A atfahfof(x~mt) A
E + F1 A ... A Fi A S(Fj) A ... A S(Fn). not (4ubt2(X~amage,Fact)).

corresponding to the default This representation allows for a simple treatment of exceptions,
but under restricted conditiorw

F, A . .. A F; MFj A ... A h4Fn - There must be ordy one level of exceptions. In fac~ second
level exceptions would have a head such as ~~E, equivalen~ in
E
classical logic, to E. Therefore, they would be rules, and fist level
can be translated into the clause exceptions would prevail over them.
This representation assumes that there is no rule with negative
E + FIV .... Fi, not -Fj, ... ~t –Fm. he~ and no exceptions with positive head. There are cases,
anyway, in which negations cannot be interpreted as exceptions:
For example, the prescription of the example above could be so, for example, when empirical facts are concerned, when a
represented as: negative literal is the argument of a modal operator, when an
explicit closed world assumption is introduced (as with the
principle nullum crimen sine lege), when an exhaustive
liabfe(X&nsagePact) +
enumeration is formtdated%.
produced(XJ%duct) A &?tertnine d(Product,Fact) A
ccrused(Fact&mwge) A unk@d(Datnage) A

not-atfalt f@X,Fact). 2-5tf Comqtive infcrencu WUC M blocked, WC WOUtd tSSVC the whok
of classicat logic (with its well known computational problems). So,
Gelfond and Lifschitz (1990) define a semantics for extended hrodrlcirllt ckueicsl rl.saclirn impfia renamcrng h ehaaicd AqAdax.
105iG program, the answer set semansics, extendtng the StSblf$ %W o~y f side of c.x)mwtivc cnumrzations is a g=rd Nk. With a
model semantics (Gelfond and Lifschitz, 1988). They also negative trad. S~iat ncsms with posirive head can introduce exceptions to tk
introduce a procedure to transform extended logic programs into ~g~e cff- ~fi~ by sucfI g- -.

161
 only exceptions excluding legaf effects can be directly
E+ FI A... A Fi A S(Fj) A ... A S(Fn)
formulated. No device is offered for treating exceptions referring to
norms. would be represented by the following declarations:

2.5. Defaults in McCarty’s clausall intultionlstic logic default Mm: E + F} A ...A Fi

McCarV and Cohen (1990) propose a representation of &faufis and for each element of the justification NWw
in the framework of clausal intuitionistic lof;ic (cf. McCarty 1988~
1988b). McCarty tee distinguishes failure and logical negation (the constraint ~&F * -IF,
latter being intuitionistic negation). In this approach the general
form of a &fault rules is as follows This translation is based on the transformation of secondary
facts into excqtions:
E + GIA ... AGm A ?Wt al A . ..A ?@ an
- the rule connecting the principal facts to the effect is a defaul~
where each Gi is a monotonic component (any expression that - fhe complement of each secondary fact grounds an explicit
exception to that defaul~ represented as a constraint.
can appear in the body of a rule in clausal intuitiortistic logic) and
each Dj is a default component (a conjunction of atoms ~d of
For example, the norms above would be represented as the
negations of conjunctions of atoms). following abduction theory
We will not examine further McCarty’s proposal. Let us obseme
only that his demonstration procedure fclr default rules seems default liubiLty(X~amage,Fac[):
adequate to the structure of norm conchtions resulting from our
liabk(X~ansage,Fact)+
analysis. In particular, this procedure consists in (a) demonstrating
the monotonic components (the principal facts) and (b) trying to accor?tpkrhe$x~act) A caused(Fact&rnuge) A
demonstrate the negation of a default component (an irrspedient utdawfid(Dansage) A atfai.tfor(X,Fact).
fact). If the demonstration sub (a) succeeds and the demonstration
sub (b) fails, the conclusion of the default is a justifiable constraint +liable(X@mage,Fact))+
presumption (the legal effect has to be considered as legally
did .- in se~_de&tce(X,Fact).
wxtaitled).
cortatraint +liab/e(X~untage, Fact))+
2.6. Abduction ~~~k_~fflg(X,Fut).

Abduction is another interesting approach to non monotonic constraint +liable(X&mage,Fact))+

reasoning. In the abduction framework (cf. Poole 1988, Eshghi did_by_necessity(XYuct).
and Kowalski 1989, snd in the legal dclmaim Gordon 1989),
default reasoning is modelled as theory formation from a ftxed set To appreciate the signiflcartce of abduction for legal reasoning,
we must distinguish two possible uses: (a) reasoning inside an
of possible hypotheses.
interpretation of the law, and (b) reasoning among alternative
‘the intuitive idea is IJW the users supply a set of facts known to be interpretations of the law.
true, and a pool of possible hypotkscs they arc pmpsred to accept ss part of An interpretation of the lawzs, in order to justify the solution
so explanation to predict she expected obscrvaticm (i.e., togethm with ths (legal effect) E of a certain case, must satisfy at least the following
facts implies she obscmmtions) which is consistcm with she facts (i.e., dorw re@rements2?
not psrdict mything known to k fake) (Pook 1988, 28).
a. The interpretation must aHow a necessary (non merely
An abduction framework is &fmed by three sets of formulae: hypothetical) derivation of J? To this purpose it should not allow
for alternative sets of consequences (models, extensions, etc.),
a. A set fF of closed formulae called factsZT. Facts are
some including E, some not.
statements considered true, that we do da not wish to call into
b. On the basis of the principle of universalizability,
question. expressing a moraf (cf. Hare 1963) as well as a legal requirement
b. A set C of closed formulae cdcd constraints.
(cf. Alexy 1978), the interpretation must consist of rules intended
c. A set A of formulae, called the set of possible hypotheses. as universally applicable, unless contradicted by universal
exceptions: rules can be defeat~ inside the given interpretation,
Any ground instance of a formula in A can be used as a only by exceptions, and exceptions only by exceptions having a
hypothesis to explain (justify) a go~ if that instance is consistent higher PriorityJo.
with the facts and the constraints, so to build a thcmy, or a
scenario, in which the goal is true. To satisfy those requirements, the technique of reducing the
space of possible explanations by deffig exceptions as cons~aints
Poole (1988, 34ff) presents a programming language for default
reasoning, called THEORIST. In this language any statement must is too rigid since legal exceptions are &feasible. An adequate and
be declared a fact, a default or a constraint (by using flexible representation would be obtaine4 instearL if both rules and
corresponding keywords), and defaults are given names.
Techniques for translating Reiter’s defaults into the THEORIST 2STIK tm interpretation is used in a broad sense, m mean my

language are proposed (Poole 1988,40 SS.). So. a Reiter’s default rcconsstuction of she kgst discipline frcm the availsbtc legat matdat, that is
such as q~timofblaw.
2%s is the asfssct of she so cskd judiciot syffogis~ PCftaitting m tie
_ justification of Iegst dceisiats (cf., for stt, Akxy 1978, 273ff).
FIA... AFi: MFj A .. . A MFa 30A ~C r~fi unjV~ if We ~@t jut i“ ~ ccamadicted by m
tiV_d GXCCptiWl(cf. Akxy 1978, 275). Atf such imtmces muss be rejected
if both John d Mary csuecd damage fcm self defencc, and we kept John’s
iststxncs of the rule establishing rcqsostsibility snd Mary’s instance of the
cmreapcmding to a norm such as Gxc+ion for self dcf-, b rsquirsanan of format jusdco (univcrsalizatrility)
would be violti. To keep Jofm’s instance of the ruk (while rejecting Mary’s)
27We usc bid @amctis to distinguish PoOtC’s WJSIC+ Of “fSCt” hoot k wc need a second kvct excepdcm (saying, fcx examplr+ h sctf defcncc dces not
Om intfcdud in par. 1.1 above. apply if tk defcme is excessive) apptying to him (and not to her).

162
exceptions were considered defaults, but an ordering of the norms representing rules and exceptions. From the review above some
included in the interpretation were defined, such that conflicts suggestions can be derived in both directions.
among norms with the same priority were excluded. The maximaf
scenario allowed by such a representation should include, in A representation of principal and sesondary facts can be obtained
addition to the facts of the case, all irtstances of higher priority using logic programrnin g languages combining negation by failure
exceptions and only and all the instances of rules (and lower and logical negation. Prolog offers instruments for a simple
priority exceptions) consistent with them (plus facts and implementation of this double negation: an approximation to
constraints). Reasoning inside the given interpretation should negation as failure is offered by Prolog not, while a form of
consist in deriving the implications of (subsets of) that scenario31. classical negation can be obtained, as we have seen, just by
Reasoning among alternative interpretations should be concerned renaming Prdlcates in negative literals. A simple Rolog interpreter
in the implications of alternative representations of the law (possible for irttuitionistic default rules is included in McCarty and Cohen
subsets of the normative defaults, and possible orderings of them) (1990). The d=tinction between principal and secondary facts can
satisfying the criteria above mentiontxk the alternative abductive also be dealt with inside am abduction framework (see end of par.
explanations should be (subsets o~ maximal scenarios each 2.6), with the advantage of making explicit (as an abductive
corresponding to an interpretation. So, mechanisms are needed to explanation) the secondary facts a proposed conclusion is based
select legally acceptable abductive explanations and to render upon33. Analyses of this distinction using a modal (epistemic) logic
explicit the interpretations that each one of them presupposes. might give additional insights.
Finally, a last use of abduction to reason inside a given A simple but limited solution to the problem of representing
interpretation is possible. Let us assume that a determirted rules and exceptions is offered by Kowalski and Sadri’s approach.
interpretation of law, represented as a coherent set of rules and A more complete solution would be obtained by distinguishing
exceptions, has been rewritten eliminating all exceptions (cf. par. negations from exceptions, assigning priorities to exceptions, and
1.6 above). Let us translate the resulting norms into an abduction treating both exceptions to effects and to norms. The deftition of
framework on the basis of the following procedure (cf. Poole priorities does not seem to put difficult problems in most cases: we
1988, 40). Any norm such as: have normally only one level of exceptions to effects, and
exceptions to noms prevail over the norms they refer to%.
J!+~I A... A ~i A S(Fj) A ... A S(F)J Abduction offers interesting insights concerning the rule-
exception relationship, but some developments of Poole’s
is represented by a fact: framework seem necessary to deal with important aspects of law,
such as the defensibility of exceptions. So, defaults with priorities
fact E + F1 A ...A Fi A MFj A ... A MFn. are required to express determined rule-exception interpretations.
For reasoning in the space of possible interpretation abduction is a
promising approach, since it allows explicit the alternative
where MFP .. .. MFn. are new predicate symbols. For each kf~,
hypotheses (interpretations) justifying a certain legaf conclusion,
the following declaration are added but the limits imposed by the universalizability principle should be
taken into account.
defauit MFV
constraint ~17v * d,

Let us represent the known facts of the case as facts.

Each explanation for a legal effect E will be composed of the
facts f(legal norms and circumstances of the case) and by a set D
of instances of the defaults MF 1, MFn (where each MFi
comesponds to a secmdary fact Fi appearing in some rule
condition) such that YU D 1- E32. The minimal of such sets D
are particularly interesting:.l? will have no explanation if the party
interested in preventing it M able to prove, for every minimal Di, a
fact instance –Fj Sttch that kfFj c Di. SO, by examining fninifnd
explanations, possible objections would be suggested to the party
interested in impdiig that conchtsiom while the party interested in
maintaining it would anticipate the adveramy’s moves.

Ssfjimiia reeuf@ w bc obtaind by using corxtitiomt MS-% ~ q-

2.7. Conclusion
pardatly implanted irt the Apes shell (cf. Sergca 19g3, 38), and developed in
the Skitagi shetf (cf. Saga md Cosmadopoutos, 1991)
Two main exigencies emerge from our analysis of the structure MM us ~sid~ the following exmqrfe (from fh’dott 1988): ~*sc~ uc
of legaf norms: distinguishing principal and secondary facts, and by default vatid, they am not vatid if a party is minor, but they sre valid if IIE
miner has a guardiam A correct rcprcacntaticir stuns to be h following

rute vafti_contract(x) :
31wre~= m~~g a totatty dcmrrrtird irrtczpmadm ~ch ~ f~ ~~ did(x) + COnlrrlct(x).
effect E, givar certain facts, E must, or camot, be conaidacd justified. It could exception invalid_minority(XJ9:
be argued IIMG for an intquetation to justify a legal effect Ei. it is sufficient +afid(x) + contract(x) A ~w_CIjip~ A ~“~df).
that Ei is necessarily derived (bxiig included in sIl extensions), even if tie
intcrprctatitxt is indetcxminate as far as ottmr effects me commncd (those being exception mn_invdti_m”mri~_with~~MXJ)
included onty in some of the extensions). Tbc anstysis of such problems is *“d_nrvuW@(xy) t hru_aJLnr&X@9.
oatsids of the scope of ttds paper.
32k is Waasary to introduce ncw prdkatm Substituting ttte last clause with a second level exccptiott to the effect
to b used in secondq facts,
+@d(x)), stating that a conuact is vstid if it not the case that it has a minor
sitxx the qualification of a fact as secondary is locaf, in the sense that it pany without a guardi~ woutd give the msutt of blocking othu exceptions to
q)erates Otdy irr dcssrninate norm cordtions and doa not depend on the tk vatid~ of contracts, for which the prescawc of a guardian is irrelevm such
gwedim. S0. the same f- p(x) em be semmdmy inacertain norrrtsnd
w rhc fouowing:
prirrcii in snotire. Fcx exampfq the fault of the rnxtxtf~ is ● scadary
f=mti~ofti civil ~lti~, isa~~f-~ti~ofhc exception inrmlid_not_wriUen(X):
uiminai Iialility. -w&xx) t sde_cf_reul_askak4Y) A .wriaum

163
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