Matriz de evaluación

Given that legal pluralism, not only in the form of conflict of laws, but also of in-ternational and transnational laws as well as subnational laws, is by now a fact in our interconnected and interdependent world, Sartor (2005) proposes to use a plu-ralist logic for enabling a reasoner to handle, in a unitary reasoning process, inter-actions between different legal systems.

Objective of this logical approach is modelling how distinct normative systems may disregard legal qualifications provided for by other legal systems, or, on the contrary, be open to and use them as premises for further inferences. In the pro-posed logical language, the symbol ʘ is an abbreviation for ‘relatively to,’ and the formula φʘS means that proposition φ holds relatively to the normative system S.

The running example is represented by the interaction between the Italian law and the law of Catholic Church, i.e., Canon law, regarding marriage.

Bearing in mind that, for reason of simplicity, some normative conditions have been ignored, let us consider the two following provisions, respectively of Canon and Italian law, on the intentions of the spouses to get married (id., p. 661):

ʘCatholic

FORANY (x, y)

IF [x and y declare that they intend to be married]

AND [a priest proclaims that x and y are married]

THENⁿ [x and y are married]

ʘItalian

FORANY (x, y)

IF [x and y declare that they intend to be married]

AND [the city major proclaims that x and y are married]

THENⁿ [x and y are married]

In addition, Italian law states that, if two people are married according to Can-on law, they are married also according to the Italian legal system:

ʘItalian

FORANY (x, y)

IF [x and y are married]ʘCatholic

THENⁿ [x and y are married]

With regard to the previous rule, it is worth noting that a proposition of a legal system can include propositional constituents that hold relatively to a different normative system, e.g., relatively to S1, and the fact that antecedent A holds rela-tively to S1 determines consequent B relatively to S2:

(IF AʘS1 THEN B)ʘS2

In the marriage example, if John and Mary are married according to the Canon law, they are also automatically married for the Italian law.

Italian law provides also for a provision that allows a married couple to divorce and terminate their marriage:

ʘItalian

FORANY (x, y)

IF [x and y are married]

THENⁿ[x and y can divorce]

Then, absolute and relative endorsements of a proposition are defined:

 when reasoners are absolutely endorsing a proposition, they are not considering any specific point of view, and can use that proposition in any inference, unless there are reasons not to use it (in this sense, they are defeasibly universal);

[John and Mary declare that they intend to be married] ʘabsolute

 on the contrary, relative propositions refer to those propositions endorsed in re-spect to a particular point of view, e.g., system S1; this is normally the case for normative propositions:

ʘItalian

FORANY (x, y)

IF [x and y declare that they intend to be married]

AND [the city major proclaims that x and y are married]

THENⁿ [x and y are married]

Relative and absolute propositions may be combined in the reasoning process, as shown in the example below, where it is also clear that relative conclusions can be derived from absolute conditions:

(1) [John and Mary declare that they intend to be married] ʘabsolute

(2) [a priest proclaims that x and y are married] ʘabsolute

(3) ʘCatholic FORANY (x, y)

IF [x and y declare that they intend to be married] AND [a priest proclaims that x and y are married]

THENⁿ [x and y are married]

_______

(4) [John and Mary are married] ʘCatholic

Starting from such considerations on absolute and relative endorsements, Sartor identifies three reasoning schemata for pluralist legal reasoning, drawing a parallel with the logic of beliefs in multi-agent framework:

 relativisation: when a proposition is absolutely endorsed, it can be defeasibly endorsed also with reference to any specific point of view, e.g., a legal system;

Reasoning Schema: Relativisation (1) believing that Aʘabsolute

__________ IS A DEFEASIBLE REASON FOR (2) believing that AʘS

 relativised detachment: if reasoners relatively endorse both the conditional and its antecedent, they can relatively endorse the consequent as well;

Reasoning Schema: Relativised detachment (1) believing that (IF A1 AND … AND An THENⁿ B)ʘS

(2) believing that (A1)ʘS,…, (An)ʘS

______________IS A DEFEASIBLE REASON FOR (3) believing that (B)ʘS

 relativised syllogism: such schemata obtains combining relativisation with the usual logic specification;

Reasoning Schema: Relativised syllogism (1) believing that

(FORANY (x) IF A1 AND … AND An THENⁿ B)ʘS; (2) believing that (A1[x/a])ʘS,…,(An[x/a])ʘS

______________IS A DEFEASIBLE REASON FOR (4) believing that (B[x/a])ʘS

Combining the rules of each legal system, relative and absolute propositions, and the described reasoning schemata, the reasoner is now able to perform a plu-ralist reasoning, as in the following example (id., p. 667):

1. [John and Mary declare that they intend to be married] ʘabsolute

2. [John and Mary declare that they intend to be married] ʘcatholic

<from 1, by relativisation>

3. [a priest declares that John and Mary are married] ʘabsolute

4. [a priest declares that John and Mary are married] ʘcatholic

<from 3, by relativisation>

5. ʘCatholic

FORANY (x, y)

IF [x and y declare that they intend to be married] AND [a priest proclaims that x and y are married]

THENⁿ [x and y are married]

6. [John and Mary are married]ʘCatholic

<from 2, 4, 5 by relativised detachment>

7. ʘItalian

FORANY (x, y)

IF [x and y are married]ʘCatholic

THENⁿ [x and y are married]ʘItalian

8. [John and Mary are married]ʘItalian

<from 6 and 7 by relativised detachment>

9. ʘItalian

FORANY (x, y)

IF [x and y are married]ʘItalian

THENⁿ [x and y can divorce]ʘItalian

10. [John and Mary can divorce] ʘItalian

<from 8 and 9 by relativised detachment>

Sartor’s work thus shows that it is possible to have a pluralist logic for reason-ing with legal provisions comreason-ing from different normative systems.

Also Hage (2015) explores the chance to use a pluralist logic for addressing le-gal pluralism. For his purposes, conflicts among rules arise when more lele-gal rules coming from different normative systems are all applicable to the same case, but with incompatible legal consequences: the typical situation governed by private international law rules. In particular, he considers that:

 From a strictly logical perspective, there is no contradiction, nor inconsistency, if distinct legal systems regulate the same situation in different ways: legal sys-tems are separated by definition; so, whether or not different legal consequenc-es apply to the same case depending on where it will be eventually ruled is

log-ical-indifferent; though, from the standpoint of individuals and companies, a di-lemma exists, since they are subject to different legal outcomes and have to de-cide which they should be compliant with. In a practical reasoning sense, the two legal systems are no more separated: they both provide reasons for action.

 Private international law traditionally avoids inter-systemic conflicts to occur through conflict rules: conflict rules are rules that regulate and limit scope con-ditions of national rules, identifying not only which court of which state has ju-risdiction and is competent to decide the cross-border case, but also which sub-stantive law, national or foreign, applies to the case. Conflict rules are scope-defining rules: they determine when national legal rules have to be applied, i.e., when no foreign rule is applicable to the case.

 Once it has accessed the domestic system, the foreign law may be acknowl-edged different status, depending on how that legal order applies and interprets it in practice: legal systems tackle the issue either by merely referring to the law of the other state or by incorporating it in the domestic legal system. In the first case, the recipient system treats the foreign law as a matter of fact, also in trial, and conflicts are avoided because the content of the recipient system adapts to the content of the foreign one. Differently, incorporation guarantees that the foreign law becomes integral part of the domestic law, thus recognising it the character of a matter of law: this identifies one system as the only rele-vant to rule the particular case.

In such context, the task of logics would not be to solve conflicts, but to outline

“a conceptual framework that clearly defines when a rule conflict occurs and which tools are available to avoid these conflicts or to deal with them.” In particu-lar, non-deductive logics may help to formulate theories of private international law thanks to its analytical power. In the paper, it is not presented a precise logical model of the pluralist legal reasoning in private international law. Yet, referring to Glenn’s research (2014) on the concept of sustainability of diversity in law, Hage seems to suggest that a “multivalence thought” is the only one able to encompass interactions among legal traditions and levels of laws beyond the borders of nation states, up to cross-references among courts of different legal systems.