Determinate/Indeterminate Duality: The Necessity of a Temporal Dimension in Legal Classification

Abstract

The objective of this article is to reconcile the difficulties in legal classification that arise when subject matter is viewed from a purely spatial, i.e., two- or three-dimensional perspective. At issue is whether the dynamic complexity of legal reasoning can be represented through a process of static classification. The difficulty with traditional approaches to classification is that while legal reasoning makes use of concurrent concepts to resolve issues, classification systems operate with mutually-exclusive classes that do not permit representation of reiterative reasoning processes.

Using the example of the neologism of "propertisation", an issue of increasing concern in the field of intellectual property, the author seeks to demonstrate that a single classification system can represent both the determinacy and indeterminacy of legal concepts as they are used to resolve legal problems without sacrificing the clarity presumably required for the rule of law to operate. Resolution requires adopting a classification system that makes use of both a temporal and spatial perspective. By adopting a temporal perspective in addition to a more traditional spatial perspective, we are able to expand our focus from the products of legal classification to legal classification as a process. We can then examine the dynamic relationship of relativity between legal concepts as they operate in context, rather than limiting our analysis to the static relationship of demarcation that exists when legal classes are examined in the abstract.

Keywords: classification, property, intellectual property