Inconsistency in the Law : In Search of a Balanced Norm

Arbeitspapier

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.

Object Details

• Language: Englisch

References and Relationships

• Bibliographic citation: Series: Preprints of the Max Planck Institute for Research on Collective Goods ; No. 2004/16

Classification and Topics

• Classification: Wirtschaft ; Basic Areas of Law: General (Constitutional Law) ; Legal Procedure, the Legal System, and Illegal Behavior: General
• Subject: Consistency vs. Inconsistency ; Deontological vs. Consequentialist Concept of Law ; Set Theory ; Statistical Concepts ; Rechtsökonomik ; Rationalismus ; Theorie

Contributors, Places and Time

• Event: Geistige Schöpfung
• (who): Engel, Christoph
• Event: Veröffentlichung
• (who): Max Planck Institute for Research on Collective Goods
• (where): Bonn
• (when): 2004

Further information

• Handle: http://hdl.handle.net/10419/19898
• Last update: 10.03.2025, 11:42 AM CET