Geoi TRKY Samuel 168 This view of legal knowledge is now being seriously challenged by artificial intelligence (AI) and cognitive science research. There is today a body of opinion that the rule-model is incapable of adequately acting as a means of representing legal knowledge in its full complexity since rules and principles cannot, by themselves, solve actual cases in anything but a rather brittle and simplistic way.Like all reductionist models, the rule thesis fails to encapsulate legal knowledge in all its dimensions'^ since the translation o{ arsjudicandi, including its institutional context, into linguistic propositions results in a significant loss of informaticin^^. Accordingly if harmonisation takes place on the basis of the rule-model (law as propositional knowledge), what is being harmonised are symbolic representations that do not actually represent the object of the representation. Indeed a system like the common law tradition that thinks in is a mental process that, almost by definition, is one that does not 74 images think in terms of linguistic rules.7-'’ Consequently those who try to redefine the common law by means of the rule-model are simply undertaking an ideological as opposed to epistemological exercise.It may well be, then, that the rulemodel is a major obstacle to harmonisation in that it implies that ars judicandi and ars hermeneutica, at least when bound together by a scientia iuris, are largely the same mental processes. Fromthe point of view of Europe, the question that now needs to be asked is how this epistemological crisis impacts upon ideas such as a newjus comrnune. Such a question requires, perhaps, not just a reappraisal of the history of legal thought itself - including a history of techniques and reasoning methods - but a reassessment of the methodological issues in the light of contemporary epistemological models. This present paper has not, of course, undertaken such an ambitious exercise. Nevertheless it has tried to emphasise the importance of what might be called the non symbolic forms of knowledge represenration. Such forms need not in themselves act as an obstacle to harmonisation of the civil and the common law. Yet the different forms of cognitive mentality do need to be fully appreciated by jurists fromboth legal traditions otherwise one will be harmonising, for example, two forms of legal knowledge whose symmetries do not match. There remain of course questions. For example, what is the relationship between image and knowledge representation? What is meant by ‘spirit’ or ‘mentality’ and do terms such as these have any value in the understanding of legal knowledge? If these notions do have epistemological meaning,^^ how W. Bechtel Sc A. Abrahamsen, Connectionismand the Mind(Blackwell, 1991), p. 227. See e.g.. Atlas, Epistcmologic dn droit, op.cit., pp. 5-13. Delaeour, op.at., pp. 34-35. Samuel, Foundations, op.at., pp. 147-149; Zweigert & Kotz, op. cit., p. 70. Dclacour, pp. 34-42. Sec on this point P. Legrand, Comparatists-at-Laze, op.cit., pp. 3-4. On which see e.g., Delacour.
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