® InfoJur.ccj.ufsc.br

A dialogue game for legal arguments

R. E. Leenes

University of Twente
Public Administration and Public Policy

A. R. Lodder J. C. Hage

University of Limburg
Faculty of Law

ABSTRACT

In this paper it is argued why legal reasoning should be analysed as dialogue games, rather than as logical proofs. This argument is complemented by a set of dialogue rules which define these dialogue games, and an extended example in which the working of (part of) these rules is illustrated.

INTRODUCTION

Traditional rule-based legal expert systems are usually built around a theorem prover that deduces conclusions from a set of facts and a set of rules. This approach to legal problem solving is unsatisfactory for a number of reasons.
First, the focus on providing a logical proof as the solution to a presented problem is too limited. In many cases, rules are not decisive [Cf. Gardner 1987]. If rules do not decide the solution of a case, theorem provers that work with rules will not be able to generate all legally valid conclusions. Second, even if one can logically deduce a solution for a case, this does not provide certainty about the legal correctness of the conclusion. In the law it is often possible to provide arguments against the conclusion of a logically valid argument. As a consequence, legal arguments are defeasible [Cf. Hage 1987; Gordon 1988; Sartor 1991; Prakken 1993], and this makes the use of a traditional theorem prover less attractive.
Thirdly, the knowledge base of traditional systems consists (most often) of undisputed correct legal knowledge on the basis of which it operates. This is not very realistic in the law, because there are very few domains which consist of rules that are not disputed [De Vey Mestdagh et al 1991; Gordon 1993b].
Considerations like these, have led researchers to investigate the possibility to model (legal) argument as dialogues. [Habermass 1973; Alexy 1978; Bench-Capon et al. 1992; Hage et al 1992; Gordon 1993; Loui et al. 1993; Nitta et al. 1993]. This research resulted in several models of dialogical reasoning. In this paper we formulate a dialogue model for legal reasoning that is based on Reason Based Logic (RBL) [Hage 1993, 1994; Verheij 1994]. This logic is an attempt to overcome several of the shortcomings that face traditional logic in dealing with legal reasoning. In particular, reasoning with rules, and with reasons based on rules, is given special attention. RBL has a dialogical variant which is characterised by having dialogue rules in addition to the rules which define valid inference [Hage et al. 1992]. In this paper we explore the use of dialogical RBL by means of a dialogue game.
At the University of Limburg, dialogue games are used as the basis for an intelligent tutoring system. In this tutoring system the computer is a party in a debate with a law student. We believe that dialogue games in which students have to construct legal arguments form a useful method to teach legal skills [Lodder 1993].
The paper is organised as follows. First we present some previous work on legal dialogue systems. Second, we give our motivation for taking a dialogical approach to legal reasoning. Then we illustrate our dialogue model by means of an extended example and we formulate a number of dialogue rules.

PREVIOUS WORK

The use of dialogue models is gaining attention in the AI and law community. Bench-Capon et al. [1991, 1992] are primarily interested in improving the way traditional expert systems provide explanation. It appears that Toulmin's [1958] model of arguments can be used to achieve this aim. The labeling of elements in the knowledge base on the basis of a modified version of the Toulmin schema enables a meta-interpreter to select relevant information for presentation to the user. If the user asks further explanation, he is provided with more extensive information. Because the user can specify his interest, he is given the information he wants, instead of a standard explanation.
Gordon [1993a, 1993b] constructed a system that simulates civil pleading: the Pleadings game. The game is about two players who have a dispute about some civil case concerning a priority conflict between two secured transactions. The purpose of the game is to identify the issues of the case. The dialogue between the parties is governed by rules, which are based on Alexy's discourse theory of legal argumentation [Alexy 1978]. The parties in the dispute present arguments and backing for their arguments. Conflicts between arguments are solved by arguing about the validity and priority of rules. MacKenzie [1979] aimed to learn more about the problem of question-begging in dialogues. To explore this, he constructed a dialogue game which he calls DC. Central to DC is that both players have a commitment store which contains the locutions, both statements and challenges, a player is committed to. Commitment is governed by commitment rules. The dialogue itself is guided by dialogue rules, comparable to the rules mentioned by Alexy [1978]. Nitta et al. [1993] describe HELIC-II: a parallel knowledge-based system for trial reasoning. In this model, dialogues are between two agents (plaintiff, defendant) that have different goals, views and reasoning strategies. A debate starts if the plaintiff gives his point of view. The defendant chooses the best reasoning strategy in order to reach his goal: the refutation of the plaintiff's viewpoint.

PURE PROCEDURAL LAW

Our motivation for a dialogical approach to legal reasoning has the same background as the work of Gordon's. It is based on a procedural view of legal arguments. This view finds its inspiration in the work of John Rawls on procedural justice [John Rawls 1972, p. 85f] {1}. In particular we hold the opinion that the rightness of the outcome of a legal procedure depends solely on the correctness of the procedure followed. Legal procedures aim at, what might be called, 'pure procedural law'. To explain this expression, we must say a little more about the work of Rawls.

Pure procedural justice

In practical affairs, we often adopt a particular procedure to obtain just results. In this connection we can distinguish between two cases. Either there is an independent standard for judging the outcome of the procedure, or there is no such standard. According to Rawls, dividing a cake and a criminal trial are examples of the first case, gambling and elections are examples of the second case.
If three persons divide a cake, a good procedure would be to have one of them cut the cake in three pieces and let him choose a piece as the last person. Because of this procedure, he will normally try to divide the cake into three equal pieces, thereby conforming to the available independent standard, which says that each person is entitled to an equal piece of the cake. In such a case, Rawls speaks of perfect procedural justice, because the procedure more or less guarantees an outcome conform the pre-existing standard. The outcome of perfect procedural justice is substantive justice.
According to Rawls, in a criminal process there is also a pre-existing standard for the right outcome. If the defendant is guilty, he should be convicted, and otherwise not. A criminal procedure should accomplish that as many guilty defendants as possible are convicted and as many innocent defendants as possible are released. But there is no independent way to establish whether the procedure succeeds in its aims. Therefore, even if the procedure is made as just as possible, there is no guarantee that its outcome is substantially just. That is why a criminal procedure is an instance of imperfect procedural justice.
In the case of pure procedural justice, there is no independent standard to evaluate the outcome of the procedure. Instead, the only standard to judge the outcome is the course of the procedure. This is the case with elections, where the best way to evaluate the outcome is to investigate whether the elections were held according to a (procedurally) just procedure. (In this connection, Rawls uses the example of gambling.)

Law as a rhetorical procedure

In our opinion, judging cases should be compared to elections or to gambling, rather than to dividing a cake or to a criminal procedure. There is no way to establish the correct outcome of a legal decision making process, even if we had perfect knowledge. The only way to arrive at the right outcome is to follow a legally correct procedure. Judging cases is an example of something perfectly procedural. But the outcome is in this case not justice, but law. It may appear odd that judging cases should not be compared to a criminal procedure, which seems to be a paradigm of judging a case. To make this clear, we must relate to the distinction between factual questions and legal questions. The criminal procedure, as meant by Rawls, concerns a factual question, namely whether the defendant is guilty. In contrast we are primarily concerned with legal questions which assume that some factual questions have already been answered in the affirmative.
In an argument, one party tries to convince (or persuade) another party of the correctness of some thesis. The argument ends if both parties agree to the (denial) of the thesis, if they agree to disagree, or if the argument ends because of some institutional reason (e.g. time is over). With some qualifications because of the often institutionalized nature of legal arguments, this characterization of arguments and how they end holds true for the law too. Each party tries to convince the judge of his position. They can do this by legitimate and by illegitimate means (e.g. flirting with the judge). Ideally, only legitimate means are used or taken into account. A procedure of this kind is rhetorical in character [Witteveen 1988]. Characteristic for such a procedure is that there is no fixed outcome. By presenting reasons, each party tries to draw the outcome in his direction, but the final result cannot be determined logically. Even if some reasons should logically win (no matter how this is defined), it is not guaranteed that they will win in fact. Moreover, if the procedure is followed correctly, there is nothing wrong when logically 'compelling' arguments do not win. There is no outcome which is better or worse in view of the legal procedure. There is no other correct outcome for a legal case, than the one arrived at by following the legal procedure in a correct manner. Therefore rhetorical legal procedures are purely procedural{2}.

The role of legal rules

There is a classical objection to the view of law as a rhetorical procedure. This objection has a modern form in the theory of law as institutional fact [MacCormick and Weinberger 1987]. According to this theory legal conclusions are institutional facts, which are obtained by applying legal rules to cases. These facts exist by virtue of rules, but are nevertheless independent of the procedures by which they are established. In other words, institutional legal facts are cognition-independent.
This theory of institutional legal facts fits well in established legal ideology according to which legal decision makers ought to give their decisions on the basis of what is legally the case, independent of their decision making process. This view of legal decision making was frequently been criticized by Legal Realists [e.g. Frank 1930], but nevertheless continues to dominate legal theorising. And, of course, it is clear that legal rules guide legal decision making to a large extent. Legal decision makers normally feel themselves bound to rules of law.
It turns out that the view of law as a rhetorical procedure can be combined with the recognition that legal decision makers are guided by rules of law. Rules of law can be seen as rules which specify how legal procedures are to be conducted. A procedure that violates a clearly applicable rule of law is not properly conducted. As a consequence the outcome of that procedure is not law, just as the outcome of wrongly conducted elections is invalid. In theory it is imaginable that legal rules fully determine the outcome of a particular procedure. In that case, the procedure can lead to only one outcome, and the situation cannot be distinguished from the one in which legal rules establish independently existing institutional facts. But, firstly, such a situation occurs less frequently than some might want us to believe. And, secondly, even if this situation would occur almost constantly, this would not disprove the difference between pure procedural law and imperfect procedural law; it would only make the difference more difficult to recognize. To avoid possible misunderstandings, we want to point out that although material rules of law can be seen as procedural rules, they do not exhaust the rules that govern legal procedures. There are, for example, also rules that govern the burden of proof, which determine under what circumstances particular dialogue moves are allowed, and which conditionally disallow particular argument moves (for instance adducing illegally obtained evidence).
Another possible misunderstanding would be that if legal rules are dialogue rules, they are not capable of generating normal legal consequences such as obligations. Traditional rule application may be considered as a trivially simple interior dialogue. By means of such an interior dialogue, a legal subject may (non-authoritatively) establish the legal consequences of a particular case.

INTRODUCING DIALOGICAL REASON BASED LOGIC

If law is purely procedural, this has implications for computational models of legal reasoning. One implication is that it is not feasible to take fixed sets of premises (facts and rules) as a starting point. Rather one should allow that rules and premises are introduced in the course of a dialogue. Which ones are finally accepted as a basis for the legal conclusion depends on the behaviour of both participants in the dialogue, rather than on the truth or the validity of the premises. (We will see later on that this position has to be amended somewhat.)
Moreover, there are characteristics of legal dialogues which are not easily translated into features of classical proofs. In this connection we think not only of the widely acknowledged phenomenon of the division of the burden of proof [Sartor 1991; Gordon 1993b, p. 4], but also of the less recognized phenomenon that sometimes it is not allowed to adduce arguments for one's position. In this connection one can think of illegally obtained evidence in criminal cases, of the case where particular reasons may only be adduced for a higher court provided that they were also adduced at previous proceedings, and of the situation where one has contracted not to sue for particular causes of damage. Phenomena like these influence the actual proceedings of legal debates, and consequently the outcomes of dialogues and the answers to what the law is in concrete cases. To account for them in computational models of legal reasoning, it is desirable to base these models on dialogues.
On this basis we have developed a dialogical model of legal reasoning which aims to take the typical characteristics of legal procedures into account. In particular the model allows for the so-called 'refusal' of claims. Such a refusal is the dialogical equivalent of not allowing to adduce particular arguments in real life debates. Our framework is based on Reason Based Logic (RBL), a non-monotonic logic that is especially developed to deal with legal rules, and with reasons based on rules [Hage 1993]. RBL is characterized by the fact that application of a rule only leads to a reason in favour of the rule's conclusion, which may have to weighed against other reasons. If the conditions of a rule are fulfilled, this only is a reason for applying the rule. Our framework is the dialogical version of RBL, and is therefore called 'Dialogical Reason Based Logic' (DRBL).
In DRBL, we consider legal disputes to be dialogue games between two parties about a specific proposition, which is called the thesis of the dialogue game. One party, the proponent, claims and defends the thesis, the other party, the opponent, does not accept and maybe even denies the thesis. Both parties are permitted to make argument moves [cf. Skalak and Rissland 1992], such as adducing reasons and asking for justifications. In a dialogue each party seeks to make such moves, as to commit the other party to his point of view. Moreover, they themselves try to avoid to become committed to their opponents point of view. The dialogue is the process of making argument moves which in the end leads to some result concerning the thesis. A dialogue game is a set of one or more dialogues. There is one top level dialogue, which is about the thesis of the dialogue game. The top level dialogue , and also other dialogues, often contain sub dialogues, the thesis of which is a claim in the dialogue one level higher. The rules for the top level dialogue also govern the sub dialogues. The structure of dialogues is recursive.
Some moves in a dialogue commit the party which makes them to accepting particular sentences. A dialogue ends when the opponent is committed to the thesis, or when the proponent is committed to the denial of the thesis, or revokes the thesis.
In a dialogue minimally two commitment stores are involved. A commitment store is a set of sentences to which a party is committed. Since both parties are committed to the sentences in their own set (which may be empty), each dialogue counts two commitment stores. It is often useful to have a set of sentences to which both parties are committed from the beginning of the dialogue. These sentences form a basis from which one can argue, and which is not in need of being justified itself. Candidates to be included in the commitment stores of both parties are generally accepted rules of law, and facts which are assumed to be beyond dispute.
As mentioned before, in a discussion both parties will try to adduce reasons for their positions and against their opponents position. In this section we pay attention to the various possible argument moves. It should, however, be noted that such a presentation necessarily presupposes dialogue rules. The framework of DRBL itself however does not commit to specific dialogue rules. Moreover, it even permits discussions about the rules of the dialogues. This means that the following presentation about the process of reasoning is amendable at a number of points.
A dialogue game begins when a party claims some sentence. For instance, a party claims that the other party (B) owes him ten thousand dollars. By making a claim, one starts a dialogue with the claimed sentence as its thesis. The party who makes the claim becomes the proponent in this dialogue. Since a dialogue game may contain more than one dialogue, it is possible that the party who is the proponent in one dialogue, is the opponent in another dialogue within the same dialogue game.
In principle, the opponent has four ways to react to a claim. The claim can be accepted, it can be questioned, it can be refused, and it can be denied. In fact, denial is not an independent type of argument move; it is just another claim, namely a claim of the negation of sentence claimed by the proponent. The refusal of a claim comes down to making a claim that the previous claim was not allowed. If a claim is accepted, the dialogue which was started by the claim immediately ends. After acceptance both parties are committed to the claimed sentence. If a claim is questioned, the proponent has the choice between withdrawing the claim and defending it by giving reasons in the form of further claims.
Normally a claim is defended by adducing reasons for it and arguing that the reasons adduced for the claim outweigh the reasons adduced against it. We will discuss the normal procedure in the following section. To commit the opponent to the sentence that particular facts are a reason for a thesis, the proponent must commit the opponent to the sentence that the rule which makes these facts into a reason applies in this particular case. This sentence is a sentence like any other, so that it can be argued for by adducing reasons for it. To these reasons, the same procedure applies as to any other reason. In this connection, the fact that a rule is applicable counts as a reason why the rule applies. Notice the difference between the sentence that a rule is applicable on the one hand, and the sentence that a rule (actually) applies on the other hand. The former is a reason for the latter, whereas the latter constitutes a reason for the conclusions drawn from the rule{3}.
To commit the opponent to the sentence that a rule is applicable, the proponent must commit him to the validity of the rule and to the facts that fulfill the rule's conditions. If the opponent is committed to the validity of a rule and to the facts that fulfill the rule's conditions, he is committed to the applicability of the rule, unless he commits the proponent to the sentence that the rule is excluded.
This corresponds to a shift in the burden of proof. If the facts that fulfill a rule's conditions and the rule's validity are established, the rule is by default applicable. If the opponent thinks that the rule is nevertheless not applicable, he has the burden to prove that the rule is excluded. If he does not succeed in this proof, the opponent becomes committed to the applicability of the rule.

AN EXAMPLE DIALOGUE

Before introducing the dialogue rules, we give an extended example of a dialogue which our system should be capable of generating. The dialogue is pictured schematically in the following table. Note that the example dialogue is stated rather informally to facilitate its reading, and that it does not exhaust the possible reasoning steps of DRBL.

Move 1:
This example dialogue game starts when Bert advances the thesis that Ernie ought to be sent to prison for fifteen years. Ernie questions this rather strong claim.
Move 2:
Bert adduces the fact that Ernie shot the deputy. Ernie accepts this claim.
Move 3:
Bert continues the dialogue by claiming that the killing was on purpose. This is denied by Ernie.
Move 4:
Bert wants to know why Ernie claims that the killing was not on purpose. Ernie says that the reason why the killing was not on purpose is that he only tried to disable the deputy.
Move 5:
Bert agrees that this is a valid reason. Ernie continues to claim that the reasons why the killing was not on purpose outweigh the reasons against this thesis.
Move 6:
This latter claim is denied by Bert by making the opposite claim. Of course Ernie questions this thesis.
Move 7:
Bert defends his claim: he posits the claim that the fact that Ernie pointed a gun at the deputy's heart, is a reason why the killing was on purpose. Ernie agrees that this is a valid reason.
Move 8:
Bert claims that the pointed gun provides a stronger reason than the attempt to disable the deputy. Ernie must admit this and as a consequence has to withdraw his claim made in the fifth move. Ernie has to agree to the fact that the killing was on purpose, and has to withdraw his counter claim.
Move 9:
Bert continues his quest to send Ernie to jail by producing a reason why Ernie should be sent to prison. Ernie questions the provided reason.
Move 10:
Bert supports the reason by stating that a valid rule to that effect exists. Ernie wants to know the source of the rule provided by Bert.
Move 11:
Bert adduces section 287 of the Dutch Penal Code to be the source for the rule in question. Ernie, probably after having read this section, agrees to the rule produced in move 10.
Move 12:
At this moment Bert wants to apply the rule to the stated facts. Since Ernie has agreed to the facts, as well as to the rule, he is bound to agree to the application of the rule to those facts, provided he does not adduce exclusionary reasons for not applying the rule. As a consequence, Ernie also agrees that the killing on purpose is a reason for him, to be sent to prison (A 9).
Move 13:
The final step comprises the claim that the reasons for the imprisonment outweigh the reasons against imprisonment. Poor Ernie is not capable of providing reasons against this claim, and accepts the main thesis of the dialogue.

This dialogue is represented in the following table. The first two columns indicate, respectively, the number of the dialogue move and the level of nesting of dialogues. The string 'C>' indicates that the following sentence is claimed.
Table belonging to the example dialog is missing at this time!!!

THE RULES OF THE GAME

A dialogue game is defined by dialogue rules. It this paper we use a common distinction between dialogue rules and commitment rules [MacKenzie 1979; Loui 1992]. For the purpose of the game we have added termination rules. The commitment rules describe under what circumstances a player becomes committed to sentences, and under what circumstances sentences are removed from a player's commitment store. The dialogue rules describe the way in which a player can use dialogue moves. The termination rules define the termination of a dialogue, and ultimately, the game.

DEFINITIONS

Dialogue Games
A dialogue game consists of one or more dialogues. One of these dialogues is the main dialogue. The other dialogues are sub-dialogues of the main dialogue. A dialogue game begins when its main dialogue begins, and it ends when its main dialogue ends.
Dialogue Parties
In a dialogue game there are two players involved, named A and B. The players are each other's opponents.
Commitment Stores
Each player has a commitment store. A commitment store is the set of sentences to which a player is committed. The commitment store of A is called CSA, the commitment store of B is called CSB.
Sentences
Basic sentences are sentences in the indicative mood. A negated sentence is a sentence which is obtained by prefixing the negation sign ('~') to a sentence.
In the case a negated sentence itself is negated (double negation), both negation signs are removed.
An anankastic sentence is a sentence which is obtained by prefixing the P-operator to a sentence.
There are no other sentences than basic sentences, negated sentences, and anankastic sentences .
The following sentences have a special status in RBL:
Dialogue Moves
A dialogue consists of a sequence of dialogue moves.
Types of Dialogue Moves
The dialogue moves are of the following basic types:

There are also derived move types:

The Beginning of a Dialogue
Each dialogue starts with a Claim, and each Claim starts a dialogue. The Claimed sentence is called the thesis of the dialogue, and the dialogue is said to be about this Claim. The thesis of the main dialogue is called the main thesis of the dialogue game. The player who Claimed the thesis of a dialogue is called the proponent of this dialogue; the other player is called the opponent of this dialogue.
Sub-dialogues
If a Claim is made in the course of dialogue D, the dialogue about this Claim is said to be a sub-dialogue of D. The sub-dialogue relation is transitive: If D3 is a sub-dialogue of D2, and D2 is a sub-dialogue of D1, then D3 is a sub-dialogue of D1.
Open Claims
A Claim is said to be open, if the dialogue about this Claim has not ended yet.

Commitment rules

rule 1
Each party is committed to the sentences in his CS.
rule 2
Once a sentence is claimed by a player the sentence is added to that players CS.
rule 3
A sentence accepted by a player is added to that player's CS.
rule 4
A sentence withdrawn by a player is removed from that player's CS.
rule 5
If a dialogue ends because a sentence is accepted, all open claims of that dialogue's opponent are withdrawn from his CS, and all open claims of that dialogue's proponent are added to the opponent's CS.
rule 6
If a dialogue ends because a sentence is withdrawn, all open claims of the dialogue's proponent are withdrawn from his CS, and all open claims of the dialogue's opponent are added to the proponent's CS.
rule 7
If a player accepts a Refusal, the refused sentence is removed from his CS.
rule 8
If a player P accepts a claim of the form outweighs(Reasons_for, Reasons_against, S), S is added to CSP.
rule 9
If a player P accepts a claim of the form outweighs(Reasons_against, Reasons_for, S), ~S is added to CSP.

Dialogue rules

rule 10

A dialogue about sentence S starts by claim(S). There is no other way to start a dialogue.
rule 11
A claim can only be made:
  1. as the first move of a dialogue game;
  2. as a response to another claim. In that case the new Claim must be the negation or the refusal of the previous Claim;
  3. as a response to the acceptance of another claim;
  4. as a response to a question.


rule 12
Claims are subject to the following conditions:
  1. a party P can only claim a sentence S, if neither S nor the negation of S is in CSP; where CSP is the commitment store of P.
  2. a claim to the effect that a rule should be applied is only possible if the commitment stores of both players contain the sentence that this rule is valid and the sentences corresponding to the rule's conditions are in both parties CS's.
  3. a Refusal_claim by player P is only possible if the refused sentence is not in CSP and is not an Apply_claim.
  4. An Excluded_claim is only possible after an Apply_claim.


rule 13
A party can accept a sentence S if and only if both S is not in his CS, and S is in his opponent's CS.
rule 14
A party can question the sentence S as a reaction to Claim(S), unless this party is committed to S, or if S states that a particular rule applies (S has the form apply(rule(rule_contents))).
rule 15
A party can withdraw a sentence S if and only if both S is in his CS, and S is not in his opponent's CS.

Termination rules
rule 16 A dialogue about the sentence S ends if and only if either:

  1. S is in CSa and in CSb;
  2. S is neither in CSa, nor in CSb.


rule 17 If a dialogue ends, all of its sub-dialogues end.

CONCLUSIONS

The dialogue rules as described in this paper permit the modeling of legal reasoning as dialogue games. In this way the pure procedural nature of legal reasoning can be done justice to. The rules presented in this paper not only allow 'normal' reasoning with rules. They also make it possible to deal with the exclusion of rules, and with the weighing of reasons. As a consequence they have the full power of the monological version of Reason Based Logic. As an additional feature, they allow for the refusal of claims, a feature which can not, or only with difficulty be accounted for in monological approaches to legal reasoning, and is, to our knowledge, not dealt with by other dialogical approaches.

ACKNOWLEDGEMENTS

We would like to thank D.W.P. Ruiter for his careful proofreading of this paper. The research of the third author was partly financed by the Foundation for Knowledge Based Systems (SKBS).

REFERENCES