Strategic Indeterminacy in the Law

Abstract

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.

Empirical Studies on Truth and the Project of Re‐engineering Truth

“…2 2 One might think that it is more plausible that ‘true’ exhibits some form of polysemy rather than ambiguity (see Lanius, 2019, for this distinction). Since the difference between ambiguity and polysemy plays no role for our purpose, we simply speak of ambiguity throughout.…”

Korupsi Di Sektor Swasta Dan Tanggung Jawab Pidana Korporasi

“…Perdebatan pertanggungjawaban korporasi juga tergantung pada konsep mens rea. Dalam konteks perkembangan hukum pada negaranegara eropa, konsep ini didasarkan pada "act does not make a person guilty, unless the mind is legally blamed" (Lanius, 2019) dimana perbuatan dan kehendak harus samasama bersalah. Terdapat dua syarat yang harus dipenuhi, yakni adanya perbuatan salah atau dikenal dengan actus reus dan kehendak yang salah atau mens rea (Lanius, 2019).…”

What Is the Value of Vagueness?

“…While there is a number of contributions in the philosophy of law (e.g., Sorensen, 2001; Endicott, 2005; Asgeirsson, 2015; Lanius, 2019; Asgeirsson, 2020), game theory (e.g., Lipman, 2000; de Jaegher, 2003; de Jaegher and van Rooij, 2011), as well as computational linguistics (van Deemter, 2009, 2010; Green and van Deemter, 2011; Green and Deemter, 2013; Green and Deemter, 2019) that discuss in some way or other the value of vagueness, the legal community is concerned with the use of vagueness and other forms of indeterminacy specifically in the law and most of the contributions by game theorists and computer linguists try to explain in general why language has evolved to be vague in the first place. This paper, in contrast, deals with the question of why individual language speakers use vague terms in ordinary conversation when they could have used more precise ones instead.…”