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Strategic Indeterminacy in the Law

Strategic Indeterminacy in the Law
Author: David Lanius
Publisher: Oxford University Press
Total Pages: 353
Release: 2019-05-30
Genre: Language Arts & Disciplines
ISBN: 0190923717

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Though indeterminacy in legal texts is pervasive, there is a widespread misunderstanding about what indeterminacy is, particularly as it pertains to law. Legal texts present unique challenges 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, however, either by accident or by intention. While many have claimed that indeterminacy facilitates flexibility and can be strategically used, few have recognized that there are more forms of indeterminacy than vagueness and ambiguity. A comprehensive account of legal indeterminacy is thus called for. David Lanius here answers that call and in so doing, addresses three central questions about the role of indeterminacy in the law. First, what are the sources of indeterminacy in law? Second, what effects do the different forms of indeterminacy have? Third, how can and should these forms be intentionally used? Based on a thorough examination of the advantages and disadvantages of the different forms of indeterminacy in the wording of laws, contracts, and verdicts, Lanius 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 mistakenly underrated or even 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.


Indeterminacy and Society

Indeterminacy and Society
Author: Russell Hardin
Publisher: Princeton University Press
Total Pages: 182
Release: 2005-12-25
Genre: Philosophy
ISBN: 0691123926

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In simple action theory, when people choose between courses of action, they know what the outcome will be. When an individual is making a choice "against nature," such as switching on a light, that assumption may hold true. But in strategic interaction outcomes, indeterminacy is pervasive and often intractable. Whether one is choosing for oneself or making a choice about a policy matter, it is usually possible only to make a guess about the outcome, one based on anticipating what other actors will do. In this book Russell Hardin asserts, in his characteristically clear and uncompromising prose, "Indeterminacy in contexts of strategic interaction . . . Is an issue that is constantly swept under the rug because it is often disruptive to pristine social theory. But the theory is fake: the indeterminacy is real." In the course of the book, Hardin thus outlines the various ways in which theorists from Hobbes to Rawls have gone wrong in denying or ignoring indeterminacy, and suggests how social theories would be enhanced--and how certain problems could be resolved effectively or successfully--if they assumed from the beginning that indeterminacy was the normal state of affairs, not the exception. Representing a bold challenge to widely held theoretical assumptions and habits of thought, Indeterminacy and Society will be debated across a range of fields including politics, law, philosophy, economics, and business management.


The Nature and Value of Vagueness in the Law

The Nature and Value of Vagueness in the Law
Author: Hrafn Asgeirsson
Publisher: Bloomsbury Publishing
Total Pages: 200
Release: 2020-04-10
Genre: Law
ISBN: 1509904441

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Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague and, even when it is clear, the content itself is sometimes vague. This monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law. The aim is to give plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? It argues that vagueness in the law is sometimes a good thing, although its value should not be overestimated. It also proposes a strategy for resolving borderline cases, arguing that textualism and intentionalism – two leading theories of legal interpretation – often complement rather than compete with each other.


Indeterminacy and Society

Indeterminacy and Society
Author: Russell Hardin
Publisher: Princeton University Press
Total Pages: 183
Release: 2013-06-27
Genre: Philosophy
ISBN: 1400848962

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In simple action theory, when people choose between courses of action, they know what the outcome will be. When an individual is making a choice "against nature," such as switching on a light, that assumption may hold true. But in strategic interaction outcomes, indeterminacy is pervasive and often intractable. Whether one is choosing for oneself or making a choice about a policy matter, it is usually possible only to make a guess about the outcome, one based on anticipating what other actors will do. In this book Russell Hardin asserts, in his characteristically clear and uncompromising prose, "Indeterminacy in contexts of strategic interaction . . . Is an issue that is constantly swept under the rug because it is often disruptive to pristine social theory. But the theory is fake: the indeterminacy is real." In the course of the book, Hardin thus outlines the various ways in which theorists from Hobbes to Rawls have gone wrong in denying or ignoring indeterminacy, and suggests how social theories would be enhanced--and how certain problems could be resolved effectively or successfully--if they assumed from the beginning that indeterminacy was the normal state of affairs, not the exception. Representing a bold challenge to widely held theoretical assumptions and habits of thought, Indeterminacy and Society will be debated across a range of fields including politics, law, philosophy, economics, and business management.


Carl Schmitt

Carl Schmitt
Author: Michael Salter
Publisher: Routledge
Total Pages: 314
Release: 2012
Genre: Law
ISBN: 0415478502

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There has been and continues to be a remarkable revival in academic interest in Carl Schmitt's thought within politics, but this is the first book to address his thought from an explicitly legal theoretical perspective, as it addresses the actual and potential significance of Schmitt's thought for debates within contemporary Anglo-American legal theory that have emerged during the past three decades.


Legal Strategies

Legal Strategies
Author: Antoine Masson
Publisher: Springer Science & Business Media
Total Pages: 476
Release: 2009-12-12
Genre: Law
ISBN: 3642021352

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Far from regarding the law as supreme, corporations approach law as an element of executive thought and action aimed at optimizing competitiveness. The objective of this book is to identify, explore and define corporate legal strategies that seek advantage in the opportunities revealed when the Law is perceived as a resource to be mobilized and aligned with the firm’s business and economic agendas.


Ambiguity in EU Law

Ambiguity in EU Law
Author: Sofiya Kartalova
Publisher: Taylor & Francis
Total Pages: 186
Release: 2022-10-07
Genre: Law
ISBN: 1000687015

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Ambiguity – an expression or utterance giving rise to at least two mutually exclusive interpretations – has been traditionally regarded as an ever-present, and therefore trivial, feature of EU law, alongside other forms of linguistic indeterminacy. At the same time, ambiguity has been condemned as a perilous defect in the legal text, since it is commonly assumed that the Court of Justice of the EU (CJEU) would necessarily exploit it to engage in judicial activism. In contrast, more recent theories present ambiguity as a means of promoting greater acceptability and coherence, while trusting the CJEU’s willingness to exert judicial restraint for the benefit of judicial co-operation. This ground-breaking work challenges some of the theoretical assumptions about ambiguity in EU law and puts forward a more accurate and complete theory about the CJEU’s strategic use of ambiguity. Ambiguity is here transformed from an underestimated or misunderstood detail of undetermined significance to a desirable systemic feature of the EU legal order with concrete properties and impact. Ambiguity as the implicit basis of the CJEU’s decision-making is shown to be strategically valuable for the implementation of the authority of EU law at some of the most pivotal moments in the evolution of the EU legal order. This interdisciplinary investigation presents in-depth linguistic and legal analysis of ambiguity found in the text of key provisions of EU Treaties and in the language of some of the CJEU’s leading preliminary rulings in the area of fundamental rights, freedom of movement and EU citizenship. The book suggests a categorisation of examples, basic guidance about the type of case and situation where the phenomenon is likely to emerge as well as an assessment of the advantages and disadvantages of this unusual judicial technique. The book will be a valuable resource for researchers and academics working in the areas of Law and Language, Public International Law, EU Law and Multilingualism.


The Politics of International Law

The Politics of International Law
Author: Martti Koskenniemi
Publisher: Bloomsbury Publishing
Total Pages: 388
Release: 2011-06-10
Genre: Law
ISBN: 1847317766

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Today international law is everywhere. Wars are fought and opposed in its name. It is invoked to claim rights and to challenge them, to indict or support political leaders, to distribute resources and to expand or limit the powers of domestic and international institutions. International law is part of the way political (and economic) power is used, critiqued, and sometimes limited. Despite its claim for neutrality and impartiality, it is implicit in what is just, as well as what is unjust in the world. To understand its operation requires shedding its ideological spell and examining it with a cold eye. Who are its winners, and who are its losers? How - if at all - can it be used to make a better or a less unjust world? In this collection of essays Professor Martti Koskenniemi, a well-known practitioner and a leading theorist and historian of international law, examines the recent debates on humanitarian intervention, collective security, protection of human rights and the 'fight against impunity' and reflects on the use of the professional techniques of international law to intervene politically. The essays both illustrate and expand his influential theory of the role of international law in international politics. The book is prefaced with an introduction by Professor Emmanuelle Jouannet (Sorbonne Law School), which locates the texts in the overall thought and work of Martti Koskenniemi.


Justice for Some

Justice for Some
Author: Noura Erakat
Publisher: Stanford University Press
Total Pages: 405
Release: 2019-04-23
Genre: History
ISBN: 1503608832

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“A brilliant and bracing analysis of the Palestine question and settler colonialism . . . a vital lens into movement lawyering on the international plane.” —Vasuki Nesiah, New York University, founding member of Third World Approaches to International Law (TWAIL) Justice in the Question of Palestine is often framed as a question of law. Yet none of the Israel-Palestinian conflict’s most vexing challenges have been resolved by judicial intervention. Occupation law has failed to stem Israel’s settlement enterprise. Laws of war have permitted killing and destruction during Israel’s military offensives in the Gaza Strip. The Oslo Accord’s two-state solution is now dead letter. Justice for Some offers a new approach to understanding the Palestinian struggle for freedom, told through the power and control of international law. Focusing on key junctures—from the Balfour Declaration in 1917 to present-day wars in Gaza—Noura Erakat shows how the strategic deployment of law has shaped current conditions. Over the past century, the law has done more to advance Israel’s interests than the Palestinians’. But, Erakat argues, this outcome was never inevitable. Law is politics, and its meaning and application depend on the political intervention of states and people alike. Within the law, change is possible. International law can serve the cause of freedom when it is mobilized in support of a political movement. Presenting the promise and risk of international law, Justice for Some calls for renewed action and attention to the Question of Palestine. “Careful and captivating . . . This book asks that the Palestinian liberation struggle and Jewish-Israeli society each reckon with the impossibility of a two-state future, reimagining what their interests are—and what they could become.” —Amanda McCaffrey, Jewish Currents