4 Characteristics of Law

Senza categoria

A second difference between our approach and the existing literature is that, with the exception of Basu (2000) and McAdams (2005), the existing coordination reports of the law focus on the coordination problem faced by officers with primary behavior: the choice of the side of the road they want to drive on, If they claim disputed property or apply a conventional interpretation of a law, for example.15 In our model, on the other hand, the problem of coordination is a problem faced by agents who can punish primary behavior: responding to those who drive on the wrong side, taking what is not theirs, or adopting unconventional legal readings. That is to say, we focus on how the characteristics of the legal rules that govern primary conduct affect the coordination problem faced by the authorities responsible for enforcing those rules. It also makes our approach much more general than existing accounts. As McAdams (2000) notes carefully, the expressive representation of law (Sunstein 1996) is a partial representation of law that applies only to attitudes in which primary behavior is characterized by an overall incentive for coordination; This is an environment where no sanctions are required to enforce a legal standard. In our presentation, we start from the much more ordinary environment in which a legal regulation punishes a certain behavior and on this basis channels the behavior towards compliance. The biblical account shows that the characteristics or nature of the law reflect the nature of God Himself. The historical understanding of the nature of the law corresponds in almost every respect to the biblical account. The exceptional characteristic of God for legal purposes is that He is the uncreated Creator of all that exists. Thus, when God created the world, He prescribed the rules of the law according to which everything would be governed. This is implied by the fact that God created the universe and all that it contains. Modern positivists distinguish between the concept of law itself and the concept of the rule of law. In its clearest formulation, this distinction emphasizes that the legal concept is free from any necessary normative content; It is an attempt to grasp what is actually a “right”, whether the content of a legal system is deemed good or bad.

On the other hand, the rule of law is a normative ideal: a legal system may or may not have the desirable qualities of the rule of law. Fuller (1964), for example, argues that in order to be recognizable as law, legal norms must be characterized (more or less) by the eight characteristics we have listed above: generality, proclamation, foresight, clarity, non-contradiction, feasibility, stability, and congruence between rules as announced and rules as applied. Raz (1977), on the other hand, argues that these characteristics beyond a minimum are not necessary for the very existence of the law, but are rather virtues demonstrated by the rule of law. In the philosophy of law, coordination relationships have been largely stimulated by Hart`s (1961/1997) assertion that the validity of the law is ultimately a matter of social convention: a rule is considered a rule of law if the participants believe in a particular legal community and behave as if it were a rule of law. Lewis (1969), although not specifically adapted to the law, provides a key definition of convention: a regularity of behavior in which an agent perceives himself as better at engaging in behavior, expecting everyone to do the same. For Lewis and the legal philosophers who followed him, a convention is a solution to a coordination problem in the sense of the economist Schelling (1981). Postema (1982) argued that the practices of public servants in a legal system, which, in Hart`s view, define what a valid right is, have the characteristics of a coordination problem and, in this sense, the secondary rules of a legal system can be understood as conventions that solve that problem. Other philosophers who examine the role of convention in understanding the validity, authority, and autonomy of law include Raz (1977); Finnis (1980, 1989); Goose (1981); marble (1998, 2009); and Green (1983). Although this literature in some places appeals to formal game theory, it focuses largely on the relationship between a representation of the coordination of law and the normativity of law in the sense of the right`s ability to generate moral motives to obey the law. The risk of parasitism as communities grow brings us to our fourth and perhaps most important modeling choice.

We considered that the implementation would only be done through a decentralized enforcement mechanism. Environments where the application is decentralized are not difficult to find, especially before the emergence of the nation-state (Hadfield & Weingast 2011a). But the problem of parasitism may well be a major reason for consolidating state enforcement into a centrally controlled authority with a monopoly on legitimate coercive power. Here, however, our model suggests a fascinating hypothesis. We have shown a correlation between normative characteristics often associated with the desirable attributes of governance by law, not by men, and the problem of coordination and incentives for collective participation in punishment. An institution that hopes to achieve an effective legal order in this environment must ensure that its system is general, open, stable, impersonal, etc. This suggests the possibility that a regime relying on centralized coercive violence may not be restricted in the same way. We ask ourselves: does the move to centralised enforcement go hand in hand with a derogation from the rule of law? In other words, can any system that relies solely on centralized enforcement be classified as a legal system? Or does it tend (or necessarily) to turn into a Tyrranian or dictatorial order? We suspect that any order we wish to identify as legal must be based on decentralized enforcement, at least to some extent and perhaps to a large extent. This could be true because a regime that depends solely on centralized punishment must spend exponentially growing resources to administer a system of detection and punishment (exponentially, because delegating these tasks to state employees requires the application of the rules for those performers) or rely on extraordinary and disproportionate penalties to compensate only for probabilistic recognition (Becker 1968).

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