Legal Permissibility and Legal Competences in Hierarchical Systems with Strong Permission

Titelangaben

Roy, Olivier ; Kulicki, Piotr:
Legal Permissibility and Legal Competences in Hierarchical Systems with Strong Permission.
In: Journal of Zhejiang University: Humanities and Social Sciences. Bd. 50 (2020) Heft 5 . - S. 51-62.
ISSN 1008-942X

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Abstract

冯·赖特区分了两种允许，即弱允许和强允许。弱允许就是不禁止，强允许则是独立于义务或禁止的明确声明。一些法学理论家认为在实际的法律文本和法律实践中不存在强允许，但其实它们可以以权利和自由的形式存在。研究分级法律体系中签发强允许如何改变体系内要素的法律地位时，可以使用行为偏好模型来描述静态的规范状态，并且用道义行动模型来描述规范状态的变化。这些形式工具可以在形式上对法律允许和法律权能做出区分。直观上讲，在分级体系的背景下，法律允许涉及的情况是较低等级的机构有权力签发新法规-，但在签发新法规会受到惩罚的情况下则是不被允许的；法律权能涉及的是较低等级的机构没有这种权力的情况，这意味着它如果试图签发一项新法规，就不会生效。逻辑模型使法律允许和法律权能的假设更加明确且精确，并可以展示出这些假设的后果。

Abstract in weiterer Sprache

Von Wright distinguished two kinds of permission, naming them weak and strong. A weak permission is simply an absence of prohibition. A strong permission, in contrast, is an explicit statement independent of any obligation or prohibition. Unlike some legal theorists claiming that there are no strong permissions in the actual legal texts and legal practice, we believe that they can be found there in the form of rights and freedom. We try to study how strong permissions issued in hierarchical legal systems can change the legal status of the elements of the systems. We focus on the situations in which a conflict appears between authorities of different levels, e.g. in European legal system some lower level state regulations are not in accordance with the higher level EU law. What we want to discuss is the way in which such inconsistency can be modeled in terms of legal abilities and legal permissibility. The two notions imply two different interpretations of such complex legal situations. From the practical point of view, according to one of the interpretations, the lower level law is not binding whatsoever, and in the other one it is, but as the lower law was introduced against the more fundamental law, it should be changed, and the lower level authority (a member state) may be punished. We are interested in logical modeling of both the ability and the permissibility approach in hierarchical legal systems. A logical model can be useful mainly because it makes the assumptions of each approach explicit and precise, and may show hidden consequences of those assumptions. Thus, it can serve as a tool for legal theorists and designers of legal systems to help them understand the possible options of interpretation of the results of strong permissions issued in hierarchical systems. Moreover, logical models can be used when artificial intelligence tools are designed to analyze legal systems of the kind or to act within them. The logical model that we employ consists of two relatively modular parts: one to represent static duties and permissions, and the other one to represent the agent’s potential to change these deontic relations. In the static part we need to express Hohfeldian notions of claims and freedoms that are the standard conceptual foundation in this field of research. In particular, directed obligations and permissions are important for us. These are obligations and permissions of one agent towards another. We will use here a family of obligation operators of the form Oi→jto represent the fact that the agent i has an obligation concerning the agent j. The semantics of the operator is based on a preference-action model where preference relation plays a crucial role. In short, we understand that is obligatory when it holds in all most preferred states. The dynamic part covers the Hohfeldian notions of power and immunity. We represent power and immunity by using tools developed in dynamic epistemic logic. We transfer them into the field of deontic logic and define how a new deontic situation is determined by a previous situation and deontic actions performed in it. Formally a deontic action model is used here along with an operator that transforms a preference-action model and a deontic action model into a new preference-action model. This formal machinery allows us to model strong permission issued by a higher level authority understood both in the spirit of legal abilities and legal permissibility. The modeling of power and immunity in terms of deontic action model makes some interesting predictions which would be worth testing against existing legal systems. The two approaches, referring to legal abilities and legal permissibility can be related to two fundamental legal principles“lex superior derogat legi inferiori” and“lex posterior derogat legi priori” respectively. More generally, the present modeling of powers predicts a high level of path-dependency in the exercise of powers because deontic actions are not commutative. Of course the prediction is not that this will always be the case. The question is which one is more in line with the actual regulations of EU and its member states, which would require further empirical research, and would also make the comparison with other legal systems particularly interesting. Our intuition is that the distinction between influencing legal ability and legal permissibility of a lower level authority is strongly connected with the issue of direct applicability of the higher level regulations, specifically permissions. Finally, the model that we have presented here raises general questions regarding logical relationships between changes in legal ability and legal permissibility. When do they“go hand in hand”? Can any change in legal permissibility and ability be captured in this framework? Answering these questions may have important consequences for policy making and design of legal procedures. The model we have studied will help us to understand the consequences of issuing permissions and changing legal competences in specific cases. We, however, leave these questions for the further research, which may be stimulated by this study.