Inconsistency in the Law: In Search of a Balanced Norm

60 Pages Posted: 3 Dec 2004

See all articles by Christoph Engel

Christoph Engel

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods; University of Bonn - Faculty of Law & Economics; Erasmus University Rotterdam (EUR), Erasmus School of Law, Rotterdam Institute of Law and Economics, Students; Universität Osnabrück - Faculty of Law

Date Written: December 2004

Abstract

The law is not a bunch of scattered rules, it is a body. This simple statement suffices to demonstrate that consistency is crucial for the law. Esteemed philosophers radicalise the statement: If it stops being consistent, to them the law is no longer the law. Consequently, consistency must be an absolute value, not to be traded against whatever competing normative concern. This paper adopts the opposite, consequentialist position. It takes consistency as a value, but one that bears balancing according to the principle of proportionality.

In order to rationalise this balancing exercise, the paper does two things. It offers a taxonomy of consistency objects, and of ensuing definitions of consistency. Rules, authoritative statements of fact, output and outcome are taken up in turn. Definitions rely on mathematical set theory, and on basic concepts from statistics, like variance and skewedness. Secondly, the paper opposes the normative values in favour of legal consistency, and the concerns that might justify occasional deviations from this normative goal. It sketches the complementary implications of design for consistency and design for (some) inconsistency.

Keywords: Consistency vs. Inconsistency, Deontological vs. Consequentialist Concept of Law, Set Theory, Statistical Concepts

JEL Classification: K10, K40

Suggested Citation

Engel, Christoph, Inconsistency in the Law: In Search of a Balanced Norm (December 2004). Available at SSRN: https://ssrn.com/abstract=628387 or http://dx.doi.org/10.2139/ssrn.628387

Christoph Engel (Contact Author)

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Universität Osnabrück - Faculty of Law

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