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Complexity and Normative Clarity - Or: Legal Statutes are Made for Lawyers

45 Pages Posted: 11 Jan 2009  

Emanuel V. Towfigh

EBS Law School; Max Planck Institute for Research on Collective Goods

Date Written: May 2008

Abstract

The paper deals with the complexity of legal norms and the instrument the German constitutional law establishes to control it, namely the requirement of normative clarity. First, I introduce a definition of complexity of written legal norms, conceptualized by their density (number of items to be considered) and interdependencies (within a norm and of different norms), thus focussing on the complexity of the underlying rule, rather than its language. Complexity is then described as a primarily cognitive problem, with reflexes on the time and monetary scales. The view taken here is therefore a subjective one, setting out from the individual who tries to understand a legal text. The technicality of a norm can reduce complexity for those trained in the law, and at the same time raise it for laypeople. Legal doctrine, too, aims at reinforcing consistence and reducing complexity. The requirement of normative clarity, however, is not a means to reduce complexity, but only to control it. Normative clarity is held to be founded in the principle of the separation of powers, and its measure is the executability of the law. Against concurrent views, I therefore argue that it is not the norm's addressee who must understand the norm, but rather lawyers. Only then can the problem of legal complexity be handled in systems that rely heavily on statutory law. The argument is supported by theoretical, behavioural and doctrinal reasons.

Suggested Citation

Towfigh, Emanuel V., Complexity and Normative Clarity - Or: Legal Statutes are Made for Lawyers (May 2008). MPI Collective Goods Preprint, No. 2008/22. Available at SSRN: https://ssrn.com/abstract=1314196 or http://dx.doi.org/10.2139/ssrn.1314196

Emanuel V. Towfigh (Contact Author)

EBS Law School ( email )

Gustav-Stresemann-Ring 3
Wiesbaden, Hessen 65189
Germany
+49 621 7102-2253 (Phone)
+49 621 7021-10-2253 (Fax)

HOME PAGE: http://www.lehrstuhl-towfigh.de

Max Planck Institute for Research on Collective Goods ( email )

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D-53113 Bonn, 53113
Germany
+49 228 91416-30 (Phone)
+49 228 91416-930 (Fax)

HOME PAGE: http://www.coll.mpg.de/team/page/emanuel_towfigh

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