Strategic Indeterminacy in the Law

2019 ◽  
Author(s):  
David Lanius
Keyword(s):  
Advantages And Disadvantages ◽  
Comprehensive Account ◽  
Legal Texts ◽  
The Law ◽  
Do So

Indeterminacy in legal texts is pervasive.At the same time, there is a widespread misunderstanding about what indeterminacy is - especially in the law. Legal texts are particularly interesting insofar as they address a heterogeneous audience, are applied in a variety of unforeseeable circumstances and must, at the same time, lay down clear and unambiguous standards.Sometimes they fail to do so, either by accident or by intention.While many have claimed that indeterminacy facilitates flexibility and can be strategically used, few have even recognized that there are more forms of indeterminacy than vagueness and ambiguity. A comprehensive account of legal indeterminacy is called for. This book is a contribution to lift the puzzle about the role of indeterminacy in in the law andaims to answer three, related, questions. First, what are the sources of indeterminacy in law? Second, what effects do the different forms of indeterminacy have? Third, how can and should they be intentionally used?Based on an examination of the advantages and disadvantages of the different forms of indeterminacy in the wording of laws, contracts, and verdicts, this book argues for the claim that semantic vagueness is less relevant than commonly supposed in the debate, while other forms of indeterminacy (in particular, polysemy and standard-relativity) are underrated or even entirely ignored. This misconception is due to a systematic confusion between semantic vagueness and these other forms of indeterminacy. Once it is resolved, the value and functions of linguistic indeterminacy in the law can be clearly shown.

Money laundering

2016 ◽  
Vol 19 (4) ◽  
pp. 346-375 ◽  
Author(s):  
Emmanuel Ebikake
Keyword(s):  
International Law ◽  
Money Laundering ◽  
Legal Positivism ◽  
Soft Law ◽  
Content Type ◽  
Advantages And Disadvantages ◽  
Hard Law ◽  
The Law ◽  
Law Making

Purpose The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC). Design/methodology/approach This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area. Findings Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically. Research limitations/implications The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study. Practical implications The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law. Social implications The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law. Originality/value The research perspective to the study of ML is theoretical and focuses on the nature of the law.

scholarly journals ПОКРЕТАЊЕ ПОСТУПКА НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У РЕПУБЛИЦИ СРБИЈИ

TEME ◽  
2019 ◽  
pp. 1419
Author(s):  
Bálint Pásztor
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Advantages And Disadvantages ◽  
Institutional Values ◽  
The Law ◽  
The Republic ◽  
The One

The author of the article analyzes the specificities of the normative control of the law, i.e. the procedure of assessing the constitutionality and legality of the law in the Republic of Serbia, with the aim of detecting historical and legal preconditions of the effective functioning of the rule of law. The historical perspective of the development of the constitutional judiciary in the Socialist Federal Republic of Yugoslavia and the Republic of Serbia, as well as the analysis of the experiences of various systems of control of constitutionality and legality, open the contextual, scientific-historical and pragmatic dimensions of understanding. The specificity of the system of normative control is reflected in its triplicity, meaning that three institutes are known that characterize different procedural possibilities (to initiate the process of assessing the constitutionality and legality of general acts). The paper is written in order to point out the dichotomy of the proposal and initiative of the procedure of the assessment of constitutionality and legality, as well as the advantages and disadvantages of the ex officio procedure. Furthermore, the author wanted to point out the essential and procedural differences between the proposal, the initiative and the constitutional complaint, especially analyzing the purpose of retaining the institute of the initiative in the light of the existence of the constitutional complaint and the fact that the initiative does not imply the automation of the initiation of proceedings. The dilemma that the article opens concerns the possibility that in the case of abolishing the initiative as an institution accessible to all, is it possible to preserve the democratic culture and the participation of citizens, furthermore is it possible to abolish the fundamental institutional values and freedoms of a legal state and the rule of law? The paper opens other issues of importance for the establishment of an effective constitutional architecture that concern: the width of the circle of authorized proposers of normative control before the Constitutional Court; the dual role of the constitutional judiciary: on the one hand protection of the Constitution, constitutionality and legality, on the other hand effective protection of human and minority rights and freedoms.

Toward a Theory of Legal Interpretation

2014 ◽  
Author(s):  
Scott Soames
Keyword(s):  
Legal System ◽  
Legal Interpretation ◽  
Empirical Theory ◽  
Legal Norms ◽  
Ideal System ◽  
Legal Texts ◽  
Moral Theories ◽  
The Law

This chapter is concerned with the content of legal norms governing the interpretation of legal texts by legally authoritative actors in a legal system. As such, a theory of legal interpretation is a theory of the content of the law, codified or uncodified, governing legally authorized interpreters. Thought of in this way, it is a nonnormative empirical theory related to, but distinct from, (a) empirical theories about what the mass of judges in a particular legal system actually do in the cases before them; (b) moral theories about what they morally should do in particular cases; and (c) politically normative theories about what the role of the judiciary should be in an ideal system. The most important question to be answered by such a theory is, what precisely is required of legally authoritative interpreters, how much and what kind of latitude are they allowed, and what factors are they to take into account in their interpretations?

The role of pragmatics in (re)constructing the rational law-maker

2013 ◽  
Vol 21 (2) ◽  
pp. 399-414 ◽  
Author(s):  
Alessandro Capone
Keyword(s):  
Important Distinction ◽  
Legal Texts ◽  
Recent Debate ◽  
The Law ◽  
Ordinary Conversation ◽  
The Relationship ◽  
The Ideal

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski (1991), between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism (see Manning 2005, 2006), I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary proceedings and legal texts. I then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski (1991). I argue that contextualism (of the moderate kind) is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker (also see considerations by Fish 2005); (on contextualism see Dascal and Weizman 1987). I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s (1997) textualism and contextualism (see Manning 2005, 2006 on the divide between textualism and contextualism).

Psychiatry and the Dangerous Sexual Offender

1977 ◽  
Vol 22 (4) ◽  
pp. 155-159 ◽  
Author(s):  
Cyril Greenland
Keyword(s):  
Sexual Offenders ◽  
Expert Testimony ◽  
Sexual Offender ◽  
Law Reform ◽  
Canadian Law ◽  
The Law ◽  
Interim Measure ◽  
Psychiatric Profession ◽  
Do So

A study of Dangerous Sexual Offenders, undertaken for the Canadian Law Reform Commission, reveals that about one-third of DSOs seriously threatened or actually endangered the life of the victim. One-third were moderately assaultive. The remainder, mostly homosexual pedophiles, were offensive but not physically violent. The role of psychiatrists, employed by the Crown in the process of securing an indeterminate sentence, is described. Most of them did not declare their role as ‘double-agents’. Their expert testimony before the Courts also revealed a failure to discriminate between fact and opinion. Individual prejudice was, not infrequently, presented as the wisdom of the psychiatric profession. The life of DSOs, in Canadian penitentiaries, is likely to be exceedingly brutal. Four of them have been murdered while in custody. Others have killed themselves or made determined attempts to do so. Since it is obviously unethical for psychiatrists to participate in any procedure which is likely to result in harm or the death of an individual, the author urges the Canadian Psychiatric Association to support the Law Reform Commission's condemnation of the DSO legislation. As an interim measure psychiatrists should be urged not to collaborate in DSO cases.

3 Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction

2015 ◽  
Author(s):  
Buga Irina
Keyword(s):  
Final Section ◽  
Law Of The Sea ◽  
Stability And Change ◽  
International Environment ◽  
The Future ◽  
The Law ◽  
Do So

The UN Convention on the Law of the Sea (LOSC) contains both explicit and implicit mechanisms to deal with the changing international environment. Subsequent practice has had a significant impact on the development of the LOSC framework and will continue to do so in the future. This chapter begins by describing the process of modification by subsequent practice in general. It then explores examples of modification in the LOSC and looks at the role of subsequent practice in the process of regime interaction between the law of the sea and other regimes. It examines alternative mechanisms that facilitate informal adaptation and regime interaction in the LOSC, therefore reducing the need for modification by subsequent practice. The final section draws some conclusions regarding the evolution of the LOSC.

scholarly journals The performance of police duties in the context of the principles governing the operation of the state administrative authorities

2021 ◽  
Vol 38 (1) ◽  
pp. 55-69
Author(s):  
Petar Bulatović
Keyword(s):  
The State ◽  
Main Topic ◽  
Primary Role ◽  
Police Powers ◽  
State Administration ◽  
Legal Texts ◽  
Police Authority ◽  
The Law ◽  
Internal Affairs

Police duties represent a part of the internal affairs performed by the Police, by applying the police authority, measures and actions. The new concept of combating crime is based on the preventive activities of the police and judiciary. In this sense, the police affairs can be approached from different aspects. The primary role of the police is in the criminal and misdemeanor procedure, but, as it can be concluded in the text of this paper, the administrative activities of the police in preventing, detecting, and solving criminal acts, misdemeanors, and other crimes are also very important. So, the paper deals with the issues that significantly helped the main topic of this research paper to be analyzed in the best possible way. This paper analyzes the issues related to the affairs of the Ministry of Internal Affairs, the organization and competence of the police, the principles of operation of the state administrative bodies, police affairs and criminal and misdemeanor procedure as well as administrative activities of the police in preventing, detecting and solving crimes and other offenses. The primary legal texts being consulted were the Law on Police and the Law on State Administration, in addition to consulting two important rulebooks in this area - the Rulebook on police powers and the Rulebook on the manner of performing individual police duties.

Philosophical Foundations

2019 ◽  
pp. 105-131
Author(s):  
Stephen A. Smith
Keyword(s):  
Subject Matter ◽  
Philosophical Foundations ◽  
General Duty ◽  
Large Numbers ◽  
The Law ◽  
Proper Subject ◽  
Do So

Enacting rules is an obvious way for authorities to guide behaviour and set standards for large numbers of people. Imposing sanctions, in turn, is an obvious way to help ensure compliance with rules. The role of judicial orders (remedies) is less obvious. What is the point of ordering defendants to do things when the law has, or could have, rules that tell individuals to do the same things and sanctions that it can impose when rules fail to motivate? Chapter 5 explores this question. It argues that judicial orders provide distinctive reasons to perform the actions they stipulate, reasons that differ in kind from those provided by either rules or sanctions. Like duty-imposing rules—but unlike sanctions—orders purport to give rise to duties to perform the actions they describe. However, the explanation of how such duties arise differs as between rules and orders. Duty-imposing rules are propositions about, and constitutive of, the existence of duties. When courts assert such rules, they presume ‘declarative authority’—the authority to declare that, by virtue of the assertion (or ‘declaration’), something is the case, here that a certain duty exists. In contrast, orders are imperative statements: they command the performance of particular actions. Insofar as orders give rise to duties to perform the actions they stipulate, they do so indirectly, by virtue of a presumed general duty to obey orders. In presuming this general duty, the law invokes ‘directive authority’—the authority to command obedience. Because these forms of authority are different, orders can provide new reasons to do things that rules already require and, as well, reasons to do things that are not a proper subject matter for rules.

The Role of Hormones in Wall Loosening and Plant Growth

1986 ◽  
Vol 13 (1) ◽  
pp. 93 ◽  
Author(s):  
R.E Cleland
Keyword(s):  
Growth Rate ◽  
Turgor Pressure ◽  
Cell Enlargement ◽  
Advantages And Disadvantages ◽  
Osmotic Solutes ◽  
Yield Threshold ◽  
Wall Loosening ◽  
Wall Extensibility ◽  
Do So

The rate at which any plant cell enlarges is determined by the product of two cellular parameters; the wall extensibility (m) and the effective turgor (�*p - Y), where �*p is the turgor pressure and Y is the wall yield threshold. When hormones modulate the rate of cell enlargement, they do so by altering one or both of these parameters. To determine whether the affected parameter is m, one must be able to measure it. There are four methods for assessing m; the Instron technique; stress relaxation; turgor relaxation; and the growth rate v. turgor method. Each has advantages and disadvantages. Ideally, at least two methods should be used and the results should agree, at least qualitatively. In every case so far examined, wherever auxin promotes cell elongation, it also increases m. Gibberellins and cytokinins, on the other hand, sometimes increase m and sometimes do not. Abscisic acid, in the few cases tested, decreases m, while the effects of ethylene are mixed. A change in m can occur only if the cell exports (or takes up) a wall loosening factor (WLF) in response to the hormone. In some cases the WLF must be, at least in part, protons, but in other cases it is clear that it is something different. In dicotyledonous stems it could even be the uptake of Ca�+ from the walls. Turgor can be influenced by hormones but, with the exception of gibberellins, the responses appear to be secondary, induced by the growth processes rather than by the hormone. However, the ability of cells to take up osmotic solutes and maintain �*p may be the most important factor, in nature, modulating the growth rate of plants on an hour-to-hour basis.

A Re-Appraisal of the Role of Blood Coagulation and Platelets in the Generalized Shwartzman Phenomenon

1966 ◽  
Vol 15 (03/04) ◽  
pp. 519-538 ◽  
Author(s):  
J Levin ◽  
E Beck
Keyword(s):  
Blood Coagulation ◽  
The State ◽  
Coagulation System ◽  
Renal Lesions ◽  
Intravascular Coagulation ◽  
Renal Glomeruli ◽  
Coagulation Mechanism ◽  
Shwartzman Phenomenon ◽  
Do So

SummaryThe role of intravascular coagulation in the production of the generalized Shwartzman phenomenon has been evaluated. The administration of endotoxin to animals prepared with Thorotrast results in activation of the coagulation mechanism with the resultant deposition of fibrinoid material in the renal glomeruli. Anticoagulation prevents alterations in the state of the coagulation system and inhibits development of the renal lesions. Platelets are not primarily involved. Platelet antiserum produces similar lesions in animals prepared with Thorotrast, but appears to do so in a manner which does not significantly involve intravascular coagulation.The production of adrenal cortical hemorrhage, comparable to that seen in the Waterhouse-Friderichsen syndrome, following the administration of endotoxin to animals that had previously received ACTH does not require intravascular coagulation and may not be a manifestation of the generalized Shwartzman phenomenon.

Sign in / Sign up

Export Citation Format

Share Document