Mit pewności prawnej, czyli dlaczego nieprecyzyjne standardy prawne mogą być lepsze dla kapitalizmu i liberalizmu
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Date
2013
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Publisher
Wydawnictwo Naukowe Instytutu Filozofii
Title alternative
The fallacy of legal certainty: why vague legal standards may be better for capitalism and liberalism
Abstract
This article reviews key aspects of the theoretical debate on
the distinction between bright-line rules framed in clear and determinate
language and vague legal standards. It is generally believed
that legal rules provide more certainty and predictability, while
legal standards afford flexibility, accommodate equitable solutions,
and allow for a more informed development of the law. Furthermore,
the article seeks to refute the idea that bright-line rules
are superior to vague standards in regard to certainty and predictability.
In first section, the author articulates the claims that
legal certainty and predictability are essential for both capitalism
and liberalism, and that these systems of economic and political
organization therefore require legal rules framed in clear and
determinate language. Second section undertakes a critical evaluation
of that claim and argues that, oftentimes, the best-drafted
clear and determinate rules would result in less certainty than
alternative vague and indeterminate standards. Third section provides
explanations why things are so, arguing that the law is but
one of many normative systems; that competing economic, social,
and moral standards are often couched in vague and indeterminate
terms; and that many of these standards cannot be reduced
to clear and determinate rules. As conclusion author pointed out on the extensive use of vague legal standards that with no doubt
harbors dangers. Vague standards can easily mask arbitrariness,
inconsistency, and injustice, and can also generate uncertainty.
their proper use requires good faith, professionalism, and intelligence,
and therefore depends on a high caliber legal profession.
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Keywords
legal theory, bright line rules, vague legal standards, certainty and predictability of the law, legal formalism
Citation
Filozofia Publiczna i Edukacja Demokratyczna, Tom 2, 2013, Nr 2, s. 22-47.
ISBN
978-83-7092-158-3