Dear John, Rich, Doug, Gary, Chris et al,|
On Fri, Jul 8, 2011 at 9:23 AM, John F. Sowa <sowa@xxxxxxxxxxx>
This is a symptom of a philosophical disease. Please remember the basic
triad of Mark, Token, and Type. Every contract is a type, which can be
embodied in one or more tokens.
Yet in legal scenarios, one might not necessarily have a direct token let alone mark, getting to a type is often result of multiple inference steps. This is particularly true in common law jurisdictions, where no actual contract may exist and the legal obligations and rights arise due to the customs and inferred behaviour. I suppose one would say that the behaviours (or rather, claims of behaviour) are the marks which lead to the type.
I found the scenarios sketched out in this essay to be quite relevant to this discussion - going back to the maxim that all models are approximations of reality, and in the computing context, representations and deliberate simplification of reality for particular ends. Below, I reproduce two extracts which illustrate the process of the refinement of categories in a legal context, which I think also holds true for the formal, computational ontologies which we are creating. For anyone interested, I highly recommend read the entire article as it holds particularly true for less understood domains (i.e. social concepts and cutting edge physical concepts).
The first excerpt has to do with establishing liability with respect to defective items. Up until the 1920's a notion of "inherent dangerousness" was utilized to establish liability for injury or damages resulting from defective items. As this classifcation schema came across novel scenarios where the existing categories were inadequate, a "re-factoring" or "re-classifcation" of the legal ontology was invoked.
Alongside Justice Holmes’ oft-cited legal history, The Common Law, one of the classic explanations of the logical processes behind the evolution of the British/American legal system is Edward Levi’s An Introduction to Legal Reasoning. There Levi describes the process of precedence as being divided into three phases: First, a legal concept is built up as cases are compared. Later the concept becomes fixed, although individual instances may be classified within or without that concept. During the third phase, disparate fact patterns cause the legal concept to break down, forcing the creation of new legal concepts.
The legal concept Levi uses as his case in point is as amusing as it is pedagogical. Originally if a third party was injured by a seller’s wares, the seller was not held liable if the third party had not purchased the item directly from the seller. Around 1851 courts began to allow exceptions to this rule if the item in question could be considered “inherently dangerous.” By the turn of the 1900s the courts had categorized as “dangerous in themselves” a loaded gun, mislabeled poison, defective hair wash, scaffolds, a defective coffee urn, and a defective aerated bottle; while categorizing as “not dangerous” a defective carriage, a bursting lamp, a defective balance wheel on a circular saw, and a defective boiler.
In MacPherson v. Buick in 1916, the courts were asked whether the Buick Motor Company should be liable because of an automobile that had collapsed because of a defective wheel, injuring a third party. The courts encountered a dilemma: is an automobile more similar to a locomotive, as the plaintiff urged, and therefore inherently dangerous, or more similar to a carriage, which the courts had held not to be inherently dangerous? The breaking point had been reached; and the courts held that a simple dichotomy based upon dangerousness was too rigid and even “unnatural.” More recently, the group of legal experts which has written the Restatement of Torts has abandoned altogether the concept of “inherent dangerousness” and instead focused on whether the item was defective.
The problem here is not merely that human languages exhibit what Hart refers to as “open texture,” or uncertainty on borderline cases within general classifications. The barrier to long-lasting legal rules is the more fundamental one that the classification schemes themselves are inevitably short-sighted and must eventually be recast as they are applied to more disparate fact patterns. As the American philosopher Alfred Korzybski nicely put it, “The map is not the territory.” In setting down a set of rules, the law creates classification schemes that purport to describe the world in order to consistently effect desired outcomes, but because the schemes are separate from the world they describe they are inevitably inaccurate.
This next example illustrates the process of reorganizing the defining categories, again in the context of common law, quite well. I think is also directly related to the example that Gary brought up with regards to the Linneus classification system:
The importance of appropriate legal ontologies applied to factual circumstances goes beyond mere ability to distinguish among “gray lines” separating categories. Ontology building and evolution in the law is an important reflection of how well the law represents current social understandings of reality, and to what extent legal decisions will be relevant to those conceptions. An illustrative case is Schley v. Couch (1955), in which the respondent, Couch, found a jar containing old bills worth $1,000 in the earth while digging the foundation of a garage on the property in Texas owned by the petitioner, Schley. Neither party claimed to be the “true owner” of the money, but each claimed the right to possess the money until and if the original owner was found.
The Supreme Court of Texas disputed this ontology. While acknowledging that there had once been a
Treasure Trovecategory, Justice Griffin writing for the majority argued that this was an “ancient” category that applied to treasure hidden by Roman conquerors as they were being driven from the British Isles, expecting to later return and reclaim the buried treasure. Justice Griffin persuasively argued that such an ontological class had no relevance “at the present time and under present condition in [the United States].” Responding to a changing view of reality, the Court saw the ontology of discovered property as having been altered, with the
Treasure Trove class “merged with that of lost goods generally.”Of the two remaining categories, the money was classified as “mislaid” rather than “lost”, as the money apparently had only been hidden at most four years before. The money was thus given to the owner of the premises.
In the context of formal, comptuational ontologies, I think we're largely in the same boat. These issues become particularly acute in the life-cycle management of ontologies and might be captured as part of some belief revision criteria or your favourite versioning / updating paradigm. Similarly, over time, competency questions or the functional requirements which drive the creation and application of an ontology may change, necessitating a redrawing and updating of the categories to better align the ontology and its models with the slices of reality that one wants to model (for some particular purpose).
Garret Wilson. "Refactoring the Law: Reformulating Legal Ontologies." Juris Doctor Writing Requirement, Submitted 2006-03-16
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