What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the (...) nature of law, thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law. (shrink)

ABSTRACT Legal certainty is a central requirement for the rule of law. Legal systems should both enable those subject to law to predict human behaviour and institutional reactions and to prevent an arbitrary use of state power against them. The value of legal certainty is usually conceived as a formal value opposed to the values of freedom or equality. The purpose of this paper is to discuss this idea and to explore a less formal conception (...) of the value of legal certainty. In this sense, I will argue that we need to depart from a purely formal understanding of the requirements imposed by such value and to consider the need to provide them with a substantive content. So, legal certainty is not completely independent of legal substantive justice and it implies that it is impossible to define ex ante which concrete aspects of justice should not be the law’s concern. (shrink)

Purpose. The study is aimed at highlighting in the historical-comparative context the influence of anthropological teachings on the development and formation of such a legal phenomenon as "legal certainty", proving that the category of legal certainty appeared as a consequence of anthropocentric philosophical approach in law. Theoretical basis. In the article, using the system approach, the content of the term "legal certainty" was analyzed. The axiological approach allowed generalizing various manifestations of legal (...) certainty within the limits of one va-lue concept and generalizing it by formulating and emphasizing the importance of the anthropophilosophical approach in the study of legal phenomena. The method of comparison, analysis, synthesis, generalization of philosophical concepts was used, in which the principle of legal certainty was expressed in different periods of historical development. Originality. This article supports a wide approach to understanding the principle of legal certainty, and the latter one relates to general theoretical legal principles. It is alleged that legal certainty consists of a number of requirements for lawmaking and law enforcement. In conducting a historical analysis for these requirements of legal certainty, it was established that they were historically originated and developed as a part of anthropological philosophical doctrine and subsequently embodied in law. The connection with anthropological teaching in jurisprudence is transformed into a relationship between the realization of the principle of legal certainty and human rights. Conclusions. Anthropological approaches in the study of legal phenomena allow providing value humanistic orientation to law. Human rights and freedoms as the most important social value require observance of them even when the legislation is imperfect, uncoordinated, contains gaps and uncertainties. The principle of legal certainty enables to overcome these difficulties, due to it the requirements of lawfulness and observance of human rights and freedoms are agreed upon. This principle is generally legal, and its content is revealed through a set of components – requirements. (shrink)

Hungarian legal scholarship is dominated by a formal, “technical” conception of the rule of law and this is even truer in the jurisprudence of criminal law. This fact can be demonstrated by analysing the case-law of the Hungarian Constitutional Court with regard to the constitutional review of judicial decisions and criminal statutes. In constitutional complaint proceedings the Constitutional Court has ruled out legal certainty issues from the review of legal norms and judicial decisions by stating that (...) legal certainty is not a value of constitutional importance and does not raise human rights issues. In this paper the author argues for the claim that conceiving the principle of the rule of law and legal certainty as a formal and technical value which is isolated from the principles of political morality, can lead to a narrow and weak protection of human rights. If the rule of law and legal certainty issues are regarded as amoral values, (criminal) norms can become servants of political interests where highly unjust laws can be held to be constitutional. (shrink)

Hobbes treats individual property as regulated by stable law, yet dependent on the arbitrary will of the sovereign. In this paper I catalogue the different definitions of property present in his main political and legal works – The Elements of Law, De Cive, Leviathan and A Dialogue between a philosopher and a student – with the aim of showing how he attempted to square those commitments. I record how the definitions of property affect his views about how sovereigns hold (...) property, the nature of the liability of subjects to having their property confiscated by the sovereign, and the legal conflicts that may arise between subjects and their rulers regarding such confiscations. (shrink)

The article discusses the issue of realisation of the principles of legitimate expectations, legal certainty and legal security in the specific area of administrative activity – detailed territorial planning process. During this long and complex process, it is very important to ensure the protection of personal constitutional rights and guarantee the security of legitimate expectations, legal certainty and other essential principles. The article analyses the circumstances conditioning violation of the principles of legitimate expectations, legal (...) security and legal certainty and provides suggestions on the improvement of legal framework in order to avoid these violations. (shrink)

This paper considers certain aspects of Aarnio’s theory of legal reasoning. Criticism is limited to the notion of legal certainty and to the related notions of the justification and reasonable acceptability of interpretative standpoints.

The University of Michigan conference “Where Religion, Policy, and Bioethics Meet: An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care” in April 2011 addressed the issue of brain death as the prototype for a discourse that would reflect the emergence of Islamic bioethics as a formal field of study. In considering the issue of brain death, various Muslim legal experts have raised concerns over the lack of certainty in the scientific criteria as applied to the definition and diagnosis (...) of brain death by the medical community. In contrast, the medical community at large has not required absolute certainty in its process, but has sought to eliminate doubt through cumulative diagnostic modalities and supportive scientific evidence. This has recently become a principal model, with increased interest in data analysis and evidence-based medicine with the intent to analyze and ultimately improve outcomes. Islamic law has also long employed a systematic methodology with the goal of eliminating doubt from rulings regarding the question of certainty. While ample criticism of the scientific criteria of brain death (Harvard criteria) by traditional legal sources now exists, an analysis of the legal process in assessing brain death, geared toward informing the clinician’s perspective on the issue, is lacking. In this article, we explore the role of certainty in the diagnostic modalities used to establish diagnoses of brain death in current medical practice. We further examine the Islamic jurisprudential approach vis-à-vis the concept of certainty (yaqīn). Finally, we contrast the two at times divergent philosophies and consider what each perspective may contribute to the global discourse on brain death, understanding that the interdependence that exists between the theological, juridical, ethical, and medical/scientific fields necessitates an open discussion and active collaboration between all parties. We hope that this article serves to continue the discourse that was successfully begun by this initial interdisciplinary endeavor at the University of Michigan. (shrink)

The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. By Aron Zysow. Resources in Arabic and Islamic Studies, vol. 2. Atlanta: Lockwood Press, 2013. Pp. xxviii + 330. $32.95.

Instead of the usual apologetic treatment found in legal doctrine, linked to the determinacy, immutability or predictability of norms, this book treats legal certainty innovatively, holistically and in depth. Using a method at once analytical and functional, Professor Ávila examines the structural elements of legal certainty, from its definition and foundations to its various dimensions, normative forces and efficacies, citing a wealth of examples from case law to support each of the theses defended. No subject (...) is more important and topical than legal certainty. Problems relating to lack of understanding, instability and unpredictability of law intensify day by day everywhere, in civil law and common law countries alike. Normative sources are increasingly diverse in origin and multiple in nature. They change constantly, and present increasingly frequent problems of ambiguity and vagueness that significantly hinder their comprehension. This state of affairs, which to a greater or lesser extent is true of any legal order, justifies a return to the subject of legal certainty. In this book, essential questions are answered such as: Legal certainty in what sense? Certainty of what, for whom, in whose vision and by whom? When, to what extent, and to what end? “ it is probably the most comprehensive and systematic study ever produced on this subject using the analytical method.”. (shrink)

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialec-tical notion of rationality this alternative (...) account espouses an ambitious approach to rea-soning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their recip-rocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive. (shrink)

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialectical notion of rationality this alternative (...) account espouses an ambitious approach to reasoning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their reciprocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive. (shrink)

Kitap, Aron Zysow’un Harvard Üniversitesinde 1984 yılında sunmuş olduğu doktora tezinin geliştirilerek yayımlanmış halidir. Sunumunun üzerinden yaklaşık otuz yıl gibi uzunca bir süre geçtikten sonra yayımlanmıştır. Ancak yayımlanmasının bu kadar gecikmiş olması, tezin, fıkıh usûlü ve kelâm alanlarında batıda yapılan akademik çalışmalar üzerindeki katkısını ve etkisini azaltmış değildir. Kitap hakkında alan indekslerinde taranan dergilerde pek çok kitap kritiği yazılmış olması da bu etkinin göstergelerindendir.

This book re-imagines law as ecolaw. The key insight of ecological thinking, that everything is connected to everything else - at least on the earth, and possibly in the cosmos - has become a truism of contemporary theory. Taking this insight as a starting point for understanding law involves suspending theoretical certainties and boundaries. It involves suspending theory itself as a conceptual project and practicing it as an embodied and material project. Although an ecological imagining of law can be metaphorical, (...) and can be highly imaginative and suggestive, this book shows that it is also literal. Law is part of the material 'everything' that is connected to everything else. This means that once the previous certainties of legal thinking have been dismantled, it is after all possible to think of law as 'natural' - as embedded in and emergent from a normative biophysical nature. The book proposes that there exists a natural nomos: animals, plants, and Earth systems that produce their own values and norms from which human norms and laws emerge. This book, then, proposes a new way to understand law, and pursues specific arguments to demonstrate the feasibility of law as ecolaw. Drawing inspiration from current trends in the posthumanities, socio-ecological thought, and developments across the natural sciences in their specific intersections with humanities and social science disciplines, this book will appeal both to legal theorists and to others with interests in these areas. (shrink)

Nair-Collins and Joffe (2023) highlight the complexities inherent to the clinical diagnosis of death by neurologic criteria and inconsistencies between legal, scientific, and clinical standards for...

I argue that rule-based decision-making models are desired because thought to create certainty. I then raise a number of problems with this assumption. Desiring certainty, and relying on rules to obtain it, leads to inconsistency in decision-making, and atrophy of moral imagination. I draw a parallel between Dworkin’s principles-based models in legal theory and Beauchamp and Childress’ in medical ethics. These models are more successful because they can account for more moral intuitions, and do not encourage us (...) to hide our intuitions. Still, feminist ethics challenge the possibility of certainty even more radically, moving in the direction of moral imagination and care. (shrink)

The principle of publicity is one of the fundamental principles of property law: property rights should be made public in order to inform third parties about the existence of the property right and its holder and thereby to foster legal certainty and efficiency. The publicity of ownership in immovable property is achieved through registration of ownership in the public register. However, the problem arises because of the unavoidable discrepancies between the data contained in the public register and the (...) factual situation. Different states choose different models to solve the practical problems arising out of the aforementioned discrepancies. On the one hand, Lithuania belongs to the group of states that implement the so-called declaratory system of registration, i.e. the transfer of ownership is based on an agreement or other legal grounds and the registration is not mandatory but provides the transfer with a third-party effect. This can be seen as a proof of priority of a factual situation over the registered data. On the other hand, Lithuanian laws provide the data of the register with some positive reliance, i.e. third parties are not only protected from claims arising out of unregistered rights (negative reliance), but they can also rely on the transcripts in the register. This is especially true in the case of bona fide transferee of immovable property which with some minor exceptions acquires ownership even from a non-owner, if the latter honestly relied on the data of the register. This regulatory framework is further adopted and transformed by the case law of the Lithuanian courts. The analysis of the latter shows that courts are inclined to rely more on the factual situation and easily deny the meaning of the registered rights. In various ways, the concept of the bona fide transferee is restricted and there are instances of positive duties ascribed to them. Besides, the existing case law demonstrates equivocal attitude towards the legal effects of registered data. Such tendencies of case law may hinder the rule of positive reliance and cause greater legal uncertainty. (shrink)

The article analyses the key issues of the legal status of the sole managing body from the perspective of the valid legal regulation, the established case-law and doctrine. The first part of the article analyses the dualism of the manager’s legal status from the perspective of civil law and labour law. The analysis of the latest case-law presented herein shows that the rule of “internal” and “external” relations between the manager and the company formulated in the case-law (...) is applied differently, and the criterion of distinguishing the manager’s as the subject of the labour law and that of the civil law statuses still remains unclear. The authors of the article are of the view that due to insufficient legal regulation in force rules established by the case-law to regulate the manager’s legal status cannot ensure the required legal certainty. Thus, the reform of the manager’s legal regulation is essential. The second part of the article strives to answer the question what legal regulation models exist and what are the main criteria of quality legal regulation. The comparative analysis of the legal status regulation of the sole managing body allows to determine the main available regulation models of the manager’s legal status and to distinguish their advantages and disadvantages. The authors of the article believe that it is necessary to take regard to other states’ practices regulating the relations at issue, however, while creating such legal regulation, the evaluation of economic, cultural and social peculiarities of Lithuania is also required. In search for the most appropriate model of the manager’s legal status, attention should be drawn to the fact that in some aspects the labour law regime is too restrictive (e.g., shareholders cannot recall the manager, who is on maternal leave, and the manager at interim does not have full authority) and uncoordinated with the doctrine of the companies’ law. Moreover, quite a few questions directly related to the issues of the manager’s authority do not fall or only partially fall into the scope of the labour law. On the other hand, the problem of the manager’s legal status involves a broader scope of points of the companies’ law than the dualism of the manager’s status, and a part of these points has already been regulated by the Law on Companies (the agreement conclusion, termination, removal from the register of legal persons, terms of notice). In regard to this, a question can be raised if it not be better to regulate the issues of the manager’s legal status by the provisions of the Law on Companies and not of the Labour Code. It is proposed to create a specific legal regulation of the companies’ law, which could meet the needs of business and match up to the doctrine of the companies’ law, which is already being applied. (shrink)

The paper argues for a pragmatist understanding of the reasonable doubt standard in law. It builds on the idea that our dispositions to act signal the epistemic states we are in. This helps clarify the notion of a reasonable doubt and the idea of being certain beyond it. More specifically, the paper points out three major standards of proof used in legal contexts and the rationale of their distinction. It articulates the received view according to which the reasonable doubt (...) standard is superior to allegedly subjective standards as the French “intime conviction”; then it addresses what I call the “rampant critique” of the reasonable doubt standard, namely the view that, as the notion of a reasonable doubt is obscure and undetermined, the standard is irremediably subjective. The paper finally presents a pragmatist understanding and defense of the standard, building on the idea of beliefs as dispositions to act. (shrink)

The small article “Statutory Injustice and Suprastatutory Law” published in 1946 by Gustav Radbruch is one of the most important texts in 20th century legal philosophy. Until recently, its importance was said to stem from its renewal of ‘natural law’ and from its ‘formula’, according to which the value of justice should override that of legal certainty in extreme cases. In this contribution, a close examination will show that Radbruch's text is less univocal than often suggested. I (...) argue that Radbruch deals here with the acute problems of apparent criminal legality during the Nazi-era rather than with problems of validity. In order to make this clear, I first briefly sketch Radbruch's personal history and the context into which the article fits. Secondly, I analyze the text itself and focus on how to understand the well-known grudge informer case. Finally, I pay some attention to the renewed topical interest of Radbruch's formula, owing to the fact that it was used in the trials against former-GDR soldiers who shot fugitives at the Berlin Wall,and their superiors. (shrink)

This article examines how private equity returns in Asia are related to levels of legal protection and corruption. We utilize a unique data set comprising over 750 returns to private equity transactions across 20 developing and developed countries in Asia. The data indicate that legal protections are an important determinant of private equity returns in Asia, but also that private equity managers are able to mitigate the potential for corruption. The quality of legal system (including legal (...) protections) is positively related to returns. Inefficient legal protections negatively impact transaction structures and economic certainty when exiting investments. We also find that private equity managers, irrespective of the quality of legal system they are operating within, can mitigate the potential impact of corruption. Private equity returns are higher in countries with higher levels of corruption, controlling for legal systems. This finding is consistent with the view that private equity managers bring about organizational change to alleviate the costs of corruption. Our findings are robust to inclusion of controls for Hofstede cultural variables, economic conditions, and transaction specific characteristics, as well as consideration of econometric sample selection methods for unexited investments. (shrink)

The Thomistic doctrine of adequatio seems to endure as a current topic in contemporary debates on the accessibility of truth in trials, since it can account for the objectivity of our knowledge, while avoiding anti-correspondence objections. It can, thus, offer an important contribution to forensic epistemology, in particular in force of the fact that, in conjunction with Thomistic reflections on the certitudo probabilis of witnesses, it allows us to combine the claim that, in legal matters (like in all variable (...) and contingent subjects), we can never reach absolute certainty, with the conviction that one can nonetheless know what, with more probability, really happened. (shrink)

: This essay highlights how contemporary Muslim fundamentalists reduce Islam's rich and complex intellectual legacy to a set of authoritarian rules. The three branches of classical Islamic education-theology, jurisprudence, and ethics-are particularly targeted. The reductionist pattern applied to these areas is designed to eliminate both the scholarly space of inquiry and the room for individual reflection traditionally granted to its followers by Islamic religion. The essay ends with an analysis of the language used by Osama bin Laden in various documents (...) over the last ten years that show how he has abused Islam's jurisprudential tradition to confer on him a convenient likeness of legality. (shrink)

Le développement d’un droit de regard des institutions collectives sur les corps gestants et surtout d’une injonction à « se savoir et se faire savoir » enceinte remonte au xvie siècle au moins. Or la reconnaissance d’un état de grossesse et sa datation ont toujours constitué une double incertitude, face à laquelle divers procédés d’observation corporelle ont été mis en œuvre au cours des siècles. L’article aborde cette question dans le temps long (de l’époque moderne à la fin du xxe (...) siècle) en comparant les modalités et les enjeux pratiques de la détection des grossesses dans un certain nombre de situations d’ordre médico-légal : affaires d’infanticide (datant surtout du xixe siècle), lutte contre l’avortement (fin xixe-milieu xxe siècle), dossiers administratifs relatifs au non-versement d’allocations prénatales (1945-1970). Cette histoire de la socialisation de la gestation permet d’identifier les jeux d’expertise, de médiations et de négociations auprès de femmes enceintes se disant non informées de leur propre état et propose une histoire sociale du doute, de la corporéité et de la conscience de soi. (shrink)

In procedural-law scholarship as well as in the theoretical analysis of the notion of proof as a result of the joint assessment of all items of evidence introduced in a trial, reference is frequently made to notions such as the conviction, belief, or certainty of a judge or a jury member about what happened. All these notions underscore the mental states involved in the process of determining the facts on the part of a judge or a jury. In this (...) analysis, I look at the links between beliefs and the justification in the findings of fact provided by the judge or jury in her or its verdict. (shrink)

We propose simple nonlinear mathematical models for the legal concept of balancing of interests. Our aim is to bridge the gap between an abstract formalisation of a balancing decision while assuring consistency and ultimately legal certainty across cases. We focus on the conflict between the rights to privacy and to the protection of personal data in Art. 7 and Art. 8 of the EU Charter of Fundamental Rights (EUCh) against the right of access to information derived from (...) Art. 11 EUCh. These competing rights are denoted by ( \(i_1\) ) _right to privacy _ and ( \(i_2\) ) _access to information_; mathematically, their indices are respectively assigned by \(u_1\in [0,1]\) and \(u_2\in [0,1]\) subject to the constraint \(u_1+u_2=1\). This constraint allows us to use one single index _u_ to resolve the conflict through balancing. The outcome will be concluded by comparing the index _u_ with a prior given threshold \(u_0\). For simplicity, we assume that the balancing depends on only selected legal criteria such as the social status of affected person, and the sphere from which the information originated, which are represented as inputs of the models, called legal parameters. Additionally, we take “time” into consideration as a legal criterion, building on the European Court of Justice’s ruling on the right to be forgotten: by considering time as a legal parameter, we model how the outcome of the balancing changes over the passage of time. To catch the dependence of the outcome _u_ by these criteria as legal parameters, data were created by a fully-qualified lawyer. By comparison to other approaches based on machine learning, especially neural networks, this approach requires significantly less data. This might come at the price of higher abstraction and simplification, but also provides for higher transparency and explainability. Two mathematical models for _u_, a time-independent model and a time-dependent model, are proposed, that are fitted by using the data. (shrink)

It may be affirmed with some confidence that on this topic no generally accepted solution will be found in default of new evidence, for which we can only faintly hope. Against certainty on the matter it would seem that the Everlasting has fixed his canon: quis iustius induit arma scire nefas. Dogmatism is out of place; we must be content with whatever theory is least difficult to reconcile with the texts and with a reasonable interpretation of the course of (...) events at the time and the comments on them of contemporary observers. The thesis advanced in this paper is that there are strong reasons for supposing that the Lex Pompeia Licinia contained a date by which Caesar's command ended, that this date was not the end of February of the year 50 or the year 49 or the end of December of the year 50, that it did not contain a clause forbidding the discussion of a successor to Caesar before March 1, 50, and that if the date ending his command lies between the end of February and the end of December of the year 50, it may have been in fact the Ides of November in that year. (shrink)

"This collection is the first book-length examination of the various epistemological issues underlying legal trials. Trials are, among other things, centrally concerned with determining truth: whether a criminal defendant has in fact culpably committed the act of which they are accused, or whether a civil defendant is in fact responsible for the damages alleged by the plaintiff. But are trials truth-conducive? Assessing the value of trials as truth-seeking endeavors requires that we consider a host of underlying social epistemological questions. (...) The contributors to this volume address a number of these pressing questions, including but not limited to the following: How much credence should they give to eyewitness testimony? How should we balance the relative epistemic value of testimony offered by defense witnesses and prosecution witnesses? Are juries an effective means of arriving at justified beliefs about a defendant's guilt or innocence? When, if ever, is statistical information about a defendant's character relevant? What degree of certainty should we require to support a verdict of 'guilty'? How should standards of proof be interpreted for allegations that contain numerous discrete components? The Social Epistemology of Legal Trials will be of interest to scholars and upper-level students working on issues at the intersection of epistemology and philosophy of law"--. (shrink)

The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain death. Despite ongoing academic debates, the (...) law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively. (shrink)

This paper connects to Jon Bing’s great vision of an integrated national legal information system. The intention of this paper is to variegate Bing’s vision of an integrated information system by shifting the focus to the lay users, thus to those, who are subject to the law. The modified vision is an integrated information system that supports intelligible access to law for the citizens. This presupposes however an unambiguous and transparent legal system. Accordingly, it is also stressed that (...) intelligent legal knowledge engineering has high potential to increase precision and rationality in law, and hence safeguard the predictability of law and legal certainty. The central hypothesis is that putting the person who is subject to the law at the centre provides more rational reason to aim for the greatest possible precision of law by exploiting the means and technologies of our time than to uphold strategic vagueness. On this basis, the paper proposes the development of a basic set of controllable and justiciable basic legal drafting standards on EU and on national level, and promotes a transparency by design approach for legal knowledge engineering in order to enhance precision, integrity, comprehensibility and accessibility of law. Similarly to Jon Bing’s vision, this modified vision of an integrated legal information systems is, most probably, also likely to remain unfulfilled. However, what would science be without visions and (science) fictions? (shrink)

Vague expressions are omnipresent in natural language. Their use in legal texts is inevitable. A law phrased in vague terms will often leave it indeterminate whether it applies to a particular case. This places the law at odds with legal values. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and allows judges make impartial decisions. Vagueness poses a threat (...) to these ideals. In borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. -/- In the philosophy of language, vagueness has become one of the hottest topics of the past two decades. Linguists and philosophers have investigated what distinguishes ‘soritical’ vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of ‘vagueness’, let alone to the various theories that try to account for these phenomena. -/- Bringing together leading scholars working on the topic of vagueness in philosophy and in law, this book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. -/- The chapters of the book are organized into three parts. The first part addresses the import of different theories of vagueness for the law, referring to a wide range of theories from supervaluationist to contextualist and semantic realist accounts in order to address the question of whether the law can learn from engaging with philosophical discussions of vagueness. The second part of the book examines different vagueness phenomena. The contributions suggest that paying greater attention to these phenomena can make lawyers aware of specific issues and solutions as yet overlooked. The third part deals with the pragmatic aspects of vagueness in law and with the professional, political, and moral issues to which such vagueness gives rise. (shrink)

Vague expressions are omnipresent in natural language. As such, their use in legal texts is virtually inevitable. If a law contains vague terms, the question whether it applies to a particular case often lacks a clear answer. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and places judges in the position to decide impartially. Vagueness poses a threat to these (...) ideals. In borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. -/- In the philosophy of language, vagueness has become one of the hottest topics of the last two decades. Linguists and philosophers have investigated what distinguishes "soritical " vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of "vagueness ", let alone to the various theories that try to account for these phenomena. -/- The paper is an introduction to a book of the same title. Bringing together leading scholars working on the topic of vagueness in philosophy and in law, the book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. (shrink)

La 4e de couverture indique : "The author introduces the reader to reasoning in law through the possilities, boundaries and traps of assuming personal responsibility and impersonal pattern adoption that have arisen in the history of human thought and in the various legal cultures. He discloses actual processes hidden by the veil of patterns followed in thinking, processes that we encounter both in our conceptual-logical quests for certainties and in the undertaking of fertilising ambiguity. When trying to identify definitions (...) lurking behind the human construct of facts, nitons, norms, logic, and thinking, or behind the practice of giving meanings, he discovers tradition in our presuppositions, and our world-view and moral stance in our tacit agreements. Recognising the importance of the role communication plays in shaping society, he describes our existence and institutions as self-regulating processes. Since law is a wholly social venture, we not only take part in its oeuvre with our entire personality, but are also collectively responsible for its destiny. In the final analysis, anything can be qualified as 'legal' or 'non-legal' in one or another recognised sense in which law can originate, but, as a relative totality, it can only be qualified as 'more legal' or 'less legal' in any combination of the above senses. Being formed in an uninterrupted process, neither the totality nor particular pieces of law can be taken as complete or unchangeably identical with itself. Therefore law can only be identified through its motions and computable states of 'transforming into' or 'withdrawing from' the distinctive domain of the law. Thereby both society at large and its legal professionals actually contribute to -by shaping incessantly- what presents itself as ready-to-take, according to the law's official ideology. For our initation, play, role-undertaking and human responsibility lurk behind the law's formal mask in the backstage. Or, this equals to realise that all we have become subjects from mere objects, actors from mere addressees. And despite the variety of civilisational overcoasts, the entire culture of law is still exclusively inherent in us who experience it day to day. We bear it and shape it. Everything coventional in it is convenctionalised by us. It has no further existence or effect bexond this. And with its existence inherent in us, we cannot convey the responsibility to be born for it on somebody else either. It is ours in its totality so much that it cannot be torn out of our days or acts. It will thus turn into what we guard it to become. Therefore we must take care of it at all times since we are, in many ways, taking care of our own". (shrink)

This article is the first attempt to justify the "next" milestone in the development of legal realism: hyperrealism. The implications of digitalization have become the new fuel for the legal realist's jurisprudence prediction theory, that is, empirical research to predict the judge's or the court's decision. Indeed, that was impossible for American realists in the early twentieth century, and all the attempts failed. Therefore, tools such as Judicial Analytics allow us to prove that personal motives and prejudices affect (...) a dispute's resolution. Based on a systemic, comparative, and interdisciplinary analysis that intermingles legal theory, data analytics and digital technologies, the article substantiates the concept of hyperrealism itself. It evaluates the advantages and disadvantages of its primary tool—judicial analytics. The authors state the necessity of creating regulatory mechanisms of "curbing" to use them to improve justice and minimize the risk of rights violations. They propose using tools of expert evaluation, standardization, and ethical regulation of forensic analysis. (shrink)

This article intends to explore the law relating to judicial separation inMalaysia from the perspective of its importance and the issues that have arisenwith respect to its effectiveness, as an avenue to encourage the preservation ofa marriage. The investigation extended to an analysis on the lacuna in law onjudicial separation in Malaysia, specifically with respect to the need for a timeframe, which would essentially create certainty and encourage reconciliationbetween the parties. A comparative legal research methodology is employed incomparing (...) the positions in Malaysia and India. It is hoped that the findings ofthis paper on judicial separation, particularly related to the need for a statutorytime frame, will encourage reconciliation between the parties and preserve thesanctity of marriage, as is envisioned in the concept of a judicial separation. (shrink)

Nous proposons dans cet article un développement de l’idée proposée par F.A. Hayek selon laquelle l’ordre du droit coutumier est un ordre d’action, une coordination des plans individuels dans un système d’échange régi par ce droit. Cette conception s’oppose à l’idée suivant laquelle l’ordre légal doit être avant tout fondé sur la cohérence logique des concepts et doctrines de ce droit. Un exemple important de cette approche est celui de la structure de maximisation des richesses de William Landes et Richard (...) Posner. L’article montre que la cohérence logique n’est ni nécessaire ni suffisante pour un ordre de plans ou pour une “cohérence praxéologique”. Nous défendons la position du droit coutumier classique suivant laquelle le droit se développe en accord avec les anticipations marginales des parties en présence. Dans la mesure où le droit se développe dans ce sens, il est possible d’approcher des objectifs jumelés du droit coutumier : la certitude relative et l’adaptation aux circonstances particulières.This article is a development of the idea, proposed by F.A. Hayek, that the order of common law is an order of actions, that is, a coordination of the plans of individuals in a system of exchanges governed by that law. This is in contrast to the idea that legal order is primarily to be found in the logical coherence of the law’s doctrines and concepts. The article shows that logical coherence is neither necessary nor sufficient for an order of plans, or “praxeological coherence”. It argues for the classic common law position that the law develops in accordance with the marginal expectations of the relevant parties. To the extent that the law develops in this way, it is possible for the twin goals of the common law to be approximated: relative certainty and adaptation to novel circumstances. (shrink)

This article examines the domestic use of drones by law enforcement to gather information. Although the use of drones for surveillance will undoubtedly provide law enforcement agencies with new means of gathering intelligence, these unmanned aircrafts bring with them a host of legal and epistemic complications. Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II explores philosopher Wittgenstein’s notion of actional certainty as a (...) means to interpret citizens' expectations of privacy with regard to their patterns of movement over time. Part III discusses how the theory of actional certainty can apply to the epistemic challenge of determining what is a “reasonable” expectation of privacy under the law. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment. (shrink)

Norm and Nature: The Movements of Legal Thought, by Roger Shiner, is an intricate book with the perhaps surprising thesis that the outstanding problem in legal philosophy, the conflict between positivism and natural law, is irresolvable. The controversy is doomed to a never-ending cycle because “sophisticated positivism follows from positivism's difficulties with simple positivism … anti-positivism follows from sophisticated positivism's difficulties with simple positivism; [and] simple positivism follows from positivism's difficulties with anti-positivism”. For legal theory, then, an (...) understanding of law is simply an understanding of why legal theory is thus “condemned to endless dialectic”. And the reason is found in the nature of law itself and the perennial tension between, on the one hand, certainty and procedure and, on the other, flexibility and substance. (shrink)

We note an increasing consciousness of weakness of legal methodology taught to law students today: The students get neither real idea nor feeling of legal decision-making as mixture of legal matters, issue of facts, personal inputs, diverging interests, and the interplay with other actors. For minimize these defects it is necessary that law students learn in legal studies the following points: (1) Legal decision-making is a special kind of decision-making and is embedded in all problems (...) of this process. (2) Jurisprudence is a hybrid science: It deals with facts of issue as well with legal matter. (3) Jurisprudence will be understood as transnational science and requires greater cooperation between law schools all over the world. (4) Legal education should focus on general principles and legal tools rather than on detailed rules. (5) Legal theory should demonstrate students our lack of understanding legal decision-making. (6) A realistic legal methodology has to take into account the impossibility of absolute certainty of the correctness of legal decision. (7) It is important to point out that analysis of facts of the case as crucial part of legal methodology requires teaching systems to introduce students in the respective techniques in practice like case studies, projects as well as legal clinics or SASLA-system. (shrink)

American legal theorists frequently ask whether and how theorists, citizens, lawmakers, judges, and other public officials can attain truth, correctness, or certainty in their legal and moral views. This essay discusses the views of contemporary liberal legal theorists who have attempted to answer these questions in a way that is neither objectivist nor formalist, on the one hand, nor subjectivist or relativist, on the other, referring to authors that make up this group as theorists of the (...) "middle way." The essay suggests areas in which such legal thinkers might profit from studying Aristotle's writings about ethics and politics. Two approaches of contemporary liberal legal theory of the middle way are discussed. The first is characterized by a reluctance to have recourse to substantive moral and political principles that exist independently of a particular legal order. Because of their reluctance to import substantive standards external to a nation?s legal system into legal reasoning, this approach advocates to a much greater degree than the second approach reliance on communal deliberation and various structural, procedural, and related devices to constrain deliberations about human values and conduct. This study outlines some of the central beliefs of this process-oriented approach to practical knowledge and then analyzes how Aristotle might react to them. The beliefs discussed are the place and method of communal reasoning about practical matters; self governance and consent; self-governance and transformative political participation; and the emphasis on ideal speech conditions to legitimate the products of communal deliberation. The second approach of contemporary liberal legal theory of the middle way discussed in the essay is characterized by a belief that moral or political philosophy can arrive at some measure of truth about principles and values having to do with the lives of individuals and the conduct of communities. With one exception, the theorists discussed in this part of the essay are willing to recognize and incorporate such principles and values into practical reasoning that takes place within the confines of a particular legal system such as our own. These thinkers disagree about the degree to which and the occasions on which recourse to values external to a political community should occur. This essay discusses how Aristotle might react to the major ideas common to these thinkers. The ideas discussed in this part are the sources of external substantive values that legal reasoning might incorporate; the relative roles of consent and habit in securing obedience to the law; and the connection between deliberation and character. (shrink)

Many epistemological terms, such as investigation, inquiry, argument, evidence, and fact were established in law well before being associated with science. However, while legal proof remained qualified by standards of ‘moral certainty’, scientific proof attained a reputation for objectivity. Although most forms of legal evidence continue to be treated as fallible ‘opinions’ rather than objective ‘facts’, forensic DNA evidence increasingly is being granted an exceptional factual status. It did not always enjoy such status. Two decades ago, the (...) scientific status of forensic DNA evidence was challenged in the scientific literature and in courts of law, but by the late 1990s it was being granted exceptional legal status. This paper reviews the ascendancy of DNA profiling, and argues that its widely-heralded objective status is bound up with systems of administrative accountability. The ‘administrative objectivity’ of DNA evidence rests upon observable and reportable bureaucratic rules, records, recording devices, protocols, and architectural arrangements. By highlighting administrative sources of objectivity, this paper suggests that DNA evidence remains bound within the context of ordinary organisational and practical routines, and is not a transcendent source of ‘truth’ in the criminal justice system. (shrink)

This article demonstrates the fallacy of legal deduction as a method which is supposed to guarantee the certainty and predictability of the law. The Author asserts that legal deduction is in fact not of a logical nature. Their premises are of an uneven character or else one of them must be created in a non-mechanical way. This in turn makes legal deduction that is comprehended as a mode of inference that is infallible, provided its premises are (...) true / valid nothing more than misunderstanding and fallacy. In addition, in this paper, the outcomes of legal deduction are shown to be highly dependent on the direct and indirect context under the threat of their being utterly absurd. Since the lack of fixity and clarity, these contexts, however, may lead one to madness, i. e. at least unless she or he abandons the idea that only logical types of inferences govern legal deduction and are solely responsible for its outcomes. (shrink)

This article uses Ernst Fraenkel’s dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has been (...) evolving in China, it has remained stable. The Party has been able to build a relatively self-defined and self-referencing legal system to provide the certainty and order that the Chinese political economy demands while maintaining a zone of exception, expansive and continuing to evolve, for the prerogative state to safeguard authoritarian rule. (shrink)

BackgroundMedia have increasingly reported on the difficulties associated with end-of-life decision-making in patients with Disorders of Consciousness (DOC), contextualizing such dilemma in detailed accounts of the patient’s life. Two of the first stories debated in the scientific community were those related to the cases of two women, one American, the other Italian, who captured attention of millions of people in the first years of this third millennium.MethodsMuch has been written about the challenges of surrogate decision-making for patients in DOC, but (...) less has been written comparing these challenges across legal systems and cultures. In our paper, we propose a systematic analysis of the final legal documents written by the American and Italian Courts in relation to the two cases, developing our discussion around three areas: the level of certainty/reliability of diagnosis and prognosis, the reconstruction of self-expression, time of illness and time of care. They are examples of the typical issues discussed by legal authors and allow us to understand the link and the difference between the legal and ethical perspectives.ResultsThe legal approach to the two cases has some common elements: the need to be certain about the diagnosis and prognosis and the fact that the clinical criteria are necessary in determining the most appropriate treatments, although these criteria are not sufficient unless they are supplemented by the patient’s will. The issue of relations takes on importance both from a legal and an ethical point of view, but from two different perspectives. While ethics safeguards relationships by guaranteeing their differences and makes them reconcilable, law safeguards relationships by guaranteeing the cold forms of respect, equality, impartiality, symmetry, reciprocity, and irreversibility. In this perspective, the link between the time of care and the decision of the family members assumes importance.ConclusionsThe most interesting point that emerges from our analysis is the issue of relationships and how they affect decisions, both from a legal and ethical point of view. For this reason, during the patients’ hospitalization, it is necessary to identify ways in which they might give their opinion about the moral issues underlying their choices. (shrink)