Generalizations and Reference Classes

This chapter examines the implications of the reference-class problem for attempts to model the probative value of evidence in mathematical terms. This examination makes three distinct contributions to evidence scholarship. First, and most importantly, it articulates and explains the problematic relationship between algorithmic tools and legal decision-making. Second, it points out serious pitfalls to be avoided for analytical or empirical studies of juridical proof. Third, it indicates when algorithmic tools may be more or less useful in the evidentiary process. As such, the chapter offers yet another demonstration of the very complex set of relationships involving human knowledge and rationality, on the one hand, and attempts to reduce either to a set of formal concepts, on the other.

Contextualization of The Istiṣḥāb Wa Sadd Al-Żarī’ah Towards Islamic Economic Practices in Indonesia

Istiṣḥāb wa sadd al-żarī’ah are two methods of legal decision making in Islam among other methods, whose application always rests on the concept of maṣlahāt. This study describes how the application of istiṣḥāb wa sadd al-’arī’ah to contemporary economic problems in Indonesia. This research is a research library. Data sources are literature or come from various literatures, including books, journals, newspapers, documents, etc. which are relevant to the contextualization of istiṣḥāb wa sadd al-żarī’ah in Islamic economic practices in Indonesia. Data collection techniques in this study used editing, organizing, and finding. Data analysis in this study used deductive and interpretive methods. The results showed that the method of istiṣḥāb wa sadd al-żarī’ah is still very relevant for contextualizing Islamic law in Indonesia in the midst of efforts to oppose social change in facing the challenges of the times, especially in fields related to social and economic practices in Indonesia. Its application still refers to the objectives of Islamic law (maqāṣid al-syarī’ah) and always takes into account the values of mafsadāt and maṣlahāt in istinbaṭ al-hukm.

The Opacity of Law: On the Hidden Impact of Experts’ Opinion on Legal Decision-making

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making.

Precautionary Principle in the Court Settlement of Civil Environmental Cases

In recent years, the precautionary principle has begun to enter legal decision-making in Indonesian civil courts. This introduction is in line with environmental cases that often involve much scientific evidence. This article aims to describe theoretical elaboration and, to a certain extent, legal developments in the application of the precautionary principle in the settlement of civil environmental cases in Indonesia. The precautionary principle provides a framework for environmental decision-making in the event of scientific uncertainty. The theoretical elaboration shows a wide dimension of influence of the precautionary principle on the system of liability and proof. In comparison, the court cases also show the application of the precautionary principle in the liability system and proof despite still in its weak version.

Can Artificial Intelligence (“AI”) Replace Human Arbitrators? Technological Concerns and Legal Implications

Artificial intelligence (“AI”) has advanced to the point that machines can compare and contrast historical cases in order to predict the outcome of a dispute at hand. AI studies that predict the outcome of litigation have stirred heated debate about the possible arrival of AI judges. Few scientific and legal studies have investigated the prediction of legal decision-making in arbitration despite the fact of AI predicting case outcomes and the emerging talk of AI judges. Inspired by these debates and to fill this gap in legal scholarship, the article poses the question of whether AI will be able to replace arbitrators, enquires into AI’s ability to predict outcomes of future cases in the context of international commercial arbitration, and scouts the potential implications if AI does, in fact, replace arbitrators. Although this article focuses on the international arbitration perspective, it looks at examples and studies from a wide range of legal fields, and its findings apply adjudicatory decision-making more generally.

Advanced Introduction to Legal Reasoning

This insightful and highly readable Advanced Introduction provides a succinct, yet comprehensive, overview of legal reasoning, covering both reasoning from canonical texts and legal decision-making in the absence of rules. Overall, it argues that there are only two methods by which judges decide legal disputes: deductive reasoning from rules and unconstrained moral, practical, and empirical reasoning.