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What is formalism?
- study of the organization or arrangement of an area of knowledge rather than its content (jug rather than the juice contained in it)
- consists of symbols and moves
- study and use of calculus systems
Law can be seen as sets of special terms, shaped and adapted by centuries of use in the law, which have been what?
assembled into word games the mastery of which is both the science and art of the lawyer
What is logical form?
the way that information should be put together in order to function effectively
What did the idealists believe was the most important entity in the universe?
The Socratic idealist were impressed with mathematics which seemed to them to be what?
the most perfect form of thinking
Why did the Socratic idealist think that mathematics was the most perfect form of thinking?
its axioms were certain and the conclusions properly drawn from the axioms were necessarily true
The Socratic idealists' confidence in the deductive mathematical process became what?
Mathematics can be viewed as what?
- games with pieces, rules, and moves which lay down or define how the game is to be played and won
- whole thing is formal
what is the general term for the formal systems of mathematics?
Who founded the school of philosophy which insisted that language was essentially sets of calculus systems, word symbols used according to rules?
What are the 3 essential elements of an applied calculus system?
system --> application --> objectives
- system properly set up with symbols and rules are clearly defined; internally self-consistent
- things/enterprises to which the system is being applied are clearly identified
- purposes/goals of the application are indicated and thereafter kept in mind when the calculus is being applied
Will the application of a calculus system work if all the essential elements aren't present?
not well if at all
Regarding an applied calculus system, what will be the result if there is inconsistency w/in the system, ambiguity as to its application, or the goals are indeterminate
Legal language can be described as what?
word calculus applied to disputes for legal purposes
What are the 2 important differences b/t math calculus and legal calculus?
- data of physical scientist is relatively unchanging whereas legal theory must be adapted and are altering all the time
- purpose of scientific calculus is the goal of truth whereas the purpose of legal calculus is the goal of good
What constitutes the mastery of an area of the law regarding an applied calculus system?
- ability of the lawyer to define and describe the technical terms of the rules,
- to illustrate their application to cases appropriately
- to decide difficult cases in ways that realize as fully as possible the ends and goals of that part of the law
Is legal calculus usually changed dramatically all at once or slowly and experimentally one piece at a time?
slowly and experimentally one piece at a time
Well established law is only changed when what?
new circumstances are very pressing and the old law breaks down so badly that the uncertainty inhereint in change is outweighed by the inconvenience and harm of an out of date calculus
What did Roy Stone call the process of change or adaptation of a calculus?
What is the definition of paraduction?
an alteration of a modification of a calculus to meet a new circumstance or to get a better result
Can more than one calculus system apply to the same set of facts?
If more than one calculus system applies to the same set of facts, do they mix well together?
most often no
The formal apparatus of law is a collection of what?
separate and usually quite small word calculus systems
Where do the terms that keep reappearing in the law come from?
If the same word symbols reappear in various pieces of legal apparatus, will the meaning and function always be the same
Who thought that words like "proof" and "certain" were status or achievement words?
What is a status word?
- one that indicates a change in status so that someone or something must thereafter be viewed and treated differently
- signal the end of one kind of behavior or treatment and the beginning of another
What did Pierce suggest in his theory of truth known as probabilism?
outside the formal proofs of math there is no such thing as absolute certainty, only degrees of probability
Is the point at which the transition from deliberation to action occurs fixed and the same for all disciplines and all purposes?
no this is variable
How is the standard of proof for a legal action determined?
by finding the legal purposes and trigger point appropriately on the probability scale
Can social and economic circumstances influence the determination of the level of proof that is required in any case?
What is "reasonable certainty" according to Pierce?
- not an absolute touchstone of truth
- asking whether it is fair and reasonable, given the circumstances, to treat the evidence as sufficient to warrant legal action
What are the 5 different kinds of games in Game Theory?
- And game
- or game
- circle game
- algorithm game
- factor game
What is the "or" game?
- any number of the alternatives may be present but at least one of them must be proved in order to activate the key term
- A or B or C = X
What is the "and" game?
- All of the elements must be present before the key term is activated
What is the "circle" game?
- illustrates the meaning of the terms all, none, and some
- if a case clearly illustrates the application of the term it is considered w/in the circle
- if equally clearly it doesn't illustrate the application it is considered outside the circle
What is the algorithm game?
branching logic device
What are the benefits of the algorithm game?
- organizes material in a formal way making it easier to see confusions and omissions in the diagram
- diagram can act as a check list of items that should be considered
- efficient way to communicate results of any other study, pick up the total overview more quickly and more accurately, and more easily compare them
- good way to indicate changes or proposed changes in the law
When are factor games most commonly used?
in difficult decisions that require balancing or weighing competing values or policies against one another
What are the 2 basic ways of applying the factor game?
- weighted factors
- scored factor system
What is the weighted factor system?
- factors are divided into major and minor factors with a formula provided to put them together in a decisional system
- major factors weigh more heavily in the decision making process
What is the scored factor system?
quantifies the factors by assigning number values to each of them and adding the resulting numbers together to obtain a total score
What are some practical uses of formalism in the law?
- improving classroom teaching methods
- improving the writing of judicial opinions
- revitalizing legal scholarship
When is the law related to ends and goals?
when a new law is being laid down
What is the problem with the language/logic approach to the doctrine of stare decisis?
what is to be followed or not followed in a precedent case hasn't always been easy to pick out from the dicta