Can We Make All Legal Norms into Legal Syllogisms and Why is That Important in Times of Artificial Intelligence?

Background: The term ‘hard cases’ trace back to Herbert Lionel Adolphus Hart who was one of the first legal philosophers who directly used it in his works and Ronald Myles Dworkin to whom the development and establishment of this concept in legal language is linked. Even though these two legal philosophers in one of the most famous - The Hart–Dworkin – legal debate couldn’t agree on certain things, they both agreed that when dealing with hard cases, there is a need to act creatively in order to resolve such a case properly. The division of cases into easy ones and hard ones gradually lost its popularity, even in legal theory, but perhaps it can be resurrected and used these challenging times to help meet the challenges prompted by technology? Methods: This paper analyses the dichotomy of hard and easy cases as well as circumstances relating to the courts’ decision-making processes in such cases. The essay examines whether the solutions proposed by legal positivism (such as applying syllogisms and precedents) are sufficient to deal with easy cases. The paper also examines what factors analysed by legal realists have an impact on judges while making decisions in hard cases (for example, psychological factors, such as hindsight bias, intuition, hunches, the anchor effect, laziness, unwillingness to take responsibility, or the gambler’s fallacy, as well as social factors, like upbringing, life experience, social relations, gender, age, education, etc.). Given that the article is theoretical in nature, logical, systemic, teleological methods dominate. Both descriptive method and scientific research method were used as well. Results and Conclusions: The author concludes that easy cases should eventually be delegated to artificial intelligence to resolve, whereas hard cases will remain in the competence of human judges, at least until technological development reaches a certain level.

Everyday Peace on the Battlefield

This chapter examines informal truces and acts of humanity and reciprocity during violent conflict. It is interested in the ‘hard cases’ of all-out warfare and draws on World War I and World War II personal diaries and memoirs. The chapter demonstrates that in some circumstances, everyday peace—or at least everyday tolerance and civility—has been possible during warfare. It contains multiple examples of ‘ordinary’ combatants showing humanity, compassion, and generosity to their supposed opponents. These cases are particularly interesting from the point of view of this book as they often occurred ‘under the radar’ or outside the surveillance of the state and others. Indeed, in many cases, they were expressly forbidden by military organisations and were contrary to the prevailing national mood of antagonism towards the enemy. They show individual and group initiative, as well as resistance to a national or wider group.

Openness and Its Discontents

Although openness has many good arguments for it, it has led to a string of hard cases, including data protection and privacy, copyright, censorship, the externalities of social networks, and net neutrality. Openness brings three problematic effects: it is hard to keep out bad actors without centralized gatekeeping; openness does not ensure representativeness or diversity; collective action problems, such as free-riding, can occur. Some technologies enable the efficiencies of openness to be reproduced in systems that are not open, and governments have a number of levers they can pull to restrict Internet freedoms. Some governments even dream of total sovereignty over the Internet. There are various specific complaints about openness, including the need to treat different media differently, the problems of bad faith at scale, a large threat surface, and bias.

The Functions of Principle as the Basis of Court Decision in Hard Cases

The task of court is to produce just decisions. A court decision may be just if it coheres moral. Principle is praxis of moral. This article is to articulate that principle has significant meanings in court’s decisions. This is because principle is a moral standard that serves to be a reference for Court to settle hard cases equitably. In this writing, case approach is employed. In addition, it also uses comparative approach, in which court decisions of different countries are presented. The purpose of using comparative approach is to find similarities in referring to principle despite different jurisdictions and even different legal systems. From this study, it is found that principle may serve four functions to the court to reach equitable decisions. First, it may be a legal basis for the court to settle a case equitably in the absence of legal rule. In fact, not all human conducts are prescribed by law. It is frequently presumed that what is not prohibited is permitted to do. In this study, it is found that what is not forbidden is not necessarily permissible. The corner stone of determining whether or not it is permissible is principle. In this case, principle served to be legal basis directly applied by the court to avoid producing unjust judgment. Second, the principle has the derogatory function to supersede a statutory provision. In this case, applying such a provision may result in decision contrary to moral. This, certainly, contradicts the idea of the establishment of court of justice. It is justified, therefore, referring to the principle, the court supersedes such a statutory provision to bring about a just decision. Third, the principle serves to be a basis for the court to interpret obscure statutory provision governing the case. It is not unusual that statutory provision is obscure or ambiguous. Such a provision is hard to understand. Settling the case governed by such a provision appropriately, the court should interpret the provision sensibly.