Secondary Rule Research Articles

Institutional Genidentity

Abstract An abbreviated history of marriage helps motivate the question of whether ancient Roman marriage and contemporary love marriage could qualify as stages of the same (token) institution despite carrying significantly different functions, deontological powers, and constitutive rules. Having raised the question of institutional identity over time, I proceed to answer the question by appealing to Kurt Lewin's notion of genidentity. Lewin intends the notion of genidentity to track the spatiotemporal unfolding of different physical and biological processes, such as ontogenesis. I extend the notion of genidentity to the institutional sphere by identifying two ‘re-anchoring mechanisms’ that would describe the conditions under which institutions with different characteristics could nevertheless qualify as the same institution across time. First, formal institutions can be re-anchored by way of a self-amending secondary rule. Second, informal institutions can be re-anchored by leveraging the inherent indeterminacy of the exemplars that indexically define them. I then argue ancient Roman marriage and contemporary love marriage are genidentical in virtue of the actions of a (mostly) informal re-anchoring mechanism.

Study on oil and gas filling and migration and accumulation in synclinal reservoir area

In recent years, the focus of oil and gas exploration in western Daqing has changed from a single large structural high point packaged reservoir to a diversified complex structural low point syncline reservoir. Such reservoirs are mainly lithologic traps, with complex rules of oil and gas filling, migration and accumulation, and irregular oil-water distribution, resulting in unclear understanding of the formation and distribution of syncline lithologic traps. The typical GLN area dominated by lithologic reservoirs is selected as the research object. The oil and gas filling research under the condition of reservoir forming power is carried out by using the source reservoir pressure difference. Based on the plane distribution of crude oil density, the secondary migration and accumulation rule of oil and gas is studied. It is considered that GLN can contain oil in a large area, but oil and gas can not migrate in a long distance. The low value area of crude oil density is the breakthrough of primary migration and the starting point of secondary migration, and its formation is controlled by the principle of phase potential coupling. The sand body is highly heterogeneous and the oil-water distribution is complex, while the sheet sand is mainly pure oil layer, and the water layer is formed only in the parts far away from the breakthrough and poor physical properties.

Due diligence as a secondary rule of general international law

AbstractThe conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

SIZE PRECEDENCE AND SHARE VOLUME: THE CASE OF THE PSX EXCHANGE

Most equity exchanges operate with a price-time priority market structure. Using a natural experiment, this study examines the ability of an exchange to attract share volume when size is the secondary precedence rule. In 2010, the NASDAQ OMX Group, Inc. and the Philadelphia Exchange launched the PSX equity exchange with a price-size pro-rata allocation market model. When operating under a pro-rata allocation algorithm, PSX is able to attract more volume than during a price-time regime. Systemic factors are imperative, as there is substantial evidence that the PSX attracts volume in times of heightened market volatility, but PSX volume decreases when market returns are positive. Competition is increasingly important in a fragmented market. There is evidence that order routing fees and the prevalence of off-exchange trading are significant factors in the ability of the PSX to capture market share. The results are of interest to market participants, regulators, and exchange officials.

Assessment of Measures for Tax Regulation of Transfer Pricing from the Standpoint of National Welfare

This article is devoted to development of mathematical models for resolving an actual scientific challenge in the field of corporate finance. This involves substantiating taxation policies for the counter-acting tax planning of multinational companies (MNC), and then devising and articulating the appropriate international taxation scheme, as evaluated from the position of national welfare policy. Based on an analysis of existing models of international taxation, and on the peculiarities of the actual mechanism of capital movement tax regulation, new models with equilibrium postulated have been developed.
 The primary mechanisms of this research involve the following considerations: (1) examination of an approach targeted at the determination of the final outcomes of international taxation from the perspective of national economies; (2) measures of tax planning on the part of MNCs, and corresponding counter-acting measures to the tax planning applied by governments, are taken as a complex.
 Our results indicate that because a government uses rules of controlled transactions, in order to counter-act MNCs’ tax planning, for the government the final outcome from an application of these rules may be negative. This is due to a possibility of MNCs’ development in convenient and offshore jurisdictions. This finding is illustrated by means of an approbation of models with a case study involving a three-tier structure.Further to this point, instead of additional revenues, a government is at a risk of a shrinking tax base and a reduction in budget revenues; and moreover from the perspective of national welfare, the additional loss of revenues and capital of MNCs. Therefore there is a significant importance in forming rules for MNC taxation policies which would focus not on taxes as such, but would focus on trying to keep capital within the territory and/or would facilitate the return of earlier divested income. This could be attempted, for example, by using the secondary adjustment rule in conjunction with a minimum tax on return.
 The novelty of this research resides in the specificity of our investigation and the applicability of our conclusions to the practical challenges of international taxation and national revenue policies. The peculiarities of this economic moment and the crucial challenges for national governments in dealing with MNCs and the digital economy underline the significance of this study. Our results expand and develop the existing literature in this ever-crucial area be of immediate use to policymakers, academics and administrators involved in national and international taxation, finance, economics, and analysis.

Debating the Imperative Mood in Uṣūl al-Fiqh

This article offers an analysis of the way a number of classical Muslim scholars treated the question of the normative impact of statements in the imperative mood. This question, which was standard in classical works of legal theory, is noteworthy for its direct implication in establishing links between linguistic forms and normative positions. It reveals to us with some clarity the logic of norm-formation in part of the tradition. It will be argued that the debates surrounding the normative impact of the imperative mood reflect a logic of collective deliberation that highlights a reliance on the authority of the community of jurists as a foundation of validity for jurisprudential principles. Establishing the validity of legal norms and processes that lead to their formulation is a common concern among legal systems. In the study of classical Islamic law, it is commonly assumed that the jurists derived substantive norms from revealed sources using the tools and methods of Islamic legal theory. This assumption locates the validity of legal norms and their formulation exclusively in divine will as expressed in revelation. This study suggests that we can view debates in legal theory as efforts in grounding legal validity in various sources of authority, including revealed language and the collective authority of the scholars. This corresponds to what has been described in analytic jurisprudence as a secondary rule of recognition.

The Planning Theory of Law

Hart famously characterized the “essence” of law as “the union of primary and secondary rules.” In doing so, he sought to draw our attention to the systematicity of legality. In a legal system, every primary rule is linked to every other rule by virtue of their common validation by the secondary rule of recognition. Legal systems, as opposed to, say, the norms of etiquette, are systems: the existence of any primary rule can always be traced to the very same source. While Hart thought that systematicity distinguishes law from related phenomena, he does not go so far as to claim that it is unique in this regard. For it is clear that other normative systems also contain secondary, as well as primary, rules. Condominium associations have rules about who can change the rules of the condominium and which rules residents are required to follow. Condo by-laws are thus systematically interconnected in same way as legal rules are; yet, condominium associations are not legal systems. At best, the existence of secondary rules provides only a partial answer to the question “What is law?” It constitutes the “essence” of law in the ordinary meaning of the term, i.e., the main idea or gist, rather than the technical, philosophical sense, i.e., the complete set of properties the possession of which makes the object in question the thing that it is and not something else. My aim in this paper will be to develop an account of the essence of law in the strict philosophical sense. In doing so, I will try to isolate the distinctive nature of legal institutions by contrasting them with closely related phenomena, such as parenting, clubs, organized crime, condominium associations and so on. I hope to show through this comparative process that legal systems are institutions of a very special kind: they are compulsory planning organizations that have a moral aim and bear a privileged relation to other planning organizations. I will claim that these properties constitute the essence of law insofar as their instantiation makes the law the law and not something else.

Opinio Juris as (the Ultimate) International Secondary Rule of Recognition: Reconciling State Consent and Public Conscience

International secondary rules of recognition regarding international law-making are subject to the criticism that legal officials accepting them were confined to a limited number of public actors. Concerning customary international law, opinio juris can reflect not only the will of sovereign States but also the juridical conscience of various international social actors taking action on behalf of the public. Assuming such a coexistence of State consent and public conscience, this paper explores the uncharted aspect of opinio juris ‘systemique’, which has the potential to integrate the principles of pacta sunt servanda, on the one hand, and of voluntas civitatis maximae est servanda, on the other hand. The first part of the paper shows opinio juris exists in every formal source of international law, as acceptance of international custom, consensus of treaty interpretation and recognition of general principles of law. This analysis simultaneously unlocks the possibility of juxtaposing public conscience with State consent. The second part adapts the rule of recognition theory to opinio juris which is equipped with public conscience as well as State consent. By additionally incorporating the aspect of public conscience beyond State consent into opinio juris, this paper aims at moralising this rule of recognition to include both social facts and substantive values as the decisive factors of the validity of international law; at relativizing it to modify the absolute position which dichotomises the normativity of international law; and finally, at democratising it to reduce the prominence of the voluntarist legitimacy of international law.

Self-Defence against Non-state Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule

AbstractThis article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.

Self-Defence as a Circumstance Precluding the Wrongfulness of the Use of Force

Roberto Ago, the International Law Commission’s second Special Rapporteur on the topic of state responsibility for internationally wrongful acts, defined self-defence as a faculte of a state to use force in response to an act of another state through which a breach of the principal obligation under Article 2(4) Charter is committed. On this basis, he then inserted a provision in Chapter V to Part One of the Draft Articles on State Responsibility expressing self-defence as a specific factual circumstance precluding the wrongfulness of the use of force which constitutes a response to state aggression. This conception of self-defence, although misunderstood from the onset, remained in the backdrop of the study of the law of state responsibility for a considerable period. It was only dismantled during the reign of the last Special Rapporteur on the topic of state responsibility, James Crawford. The last Rapporteur, at the onset, submitted that it is not the function of the Draft Articles to specify the content of the primary rules, including that referred to in Article 51 Charter. He then redefined the function of the circumstance of self-defence as that of precluding the wrongfulness of non-performance of certain obligations other than the general prohibition insofar as such non-performance is connected with the exercise of the right under Article 51 Charter. This contribution first scrutinises this paradigmatic shift and finds it to be symptomatic of the conviction on the part of Crawford that the notion of self-defence could also encompass the use of force against speculative threats of state origin as well as actual threats that emanate from individuals or groups which are disconnected from the organisation of any state. It then uses this finding as a springboard towards the examination of the controversy surrounding the notion of self-defence under international law. In that connection, it first outlines the findings of the World Court on the requirements of armed attack and attribution and describes the points of criticism which those findings have elicited. Next, it argues that state practice is unable to settle the controversy concerning the scope of the concept of self-defence and that the question whether or not valid invocation of Article 51 Charter must be preceded by a state’s breach of the general prohibition can be conclusively answered only as part of efforts geared to devising an explanatory account of self-defence which accurately translates its normative origins and which preserves its logical relations with the other, more ordinary but fundamental legal concepts. The study’s conclusion is that respect for such criteria demands that the notion of self-defence under international law be defined in line with Ago’s proposition, i.e. in terms of a de facto situation, recognised by a secondary rule, whereby the principal obligation under the primary rule contained in Article 2(4) Charter is pushed into abeyance to the detriment of a state which conducts itself in breach of that very same obligation in respect of another state; or, correlatively, in terms of a factual circumstance precluding the wrongfulness of the use of force which constitutes a riposte to an unlawful armed attack of another state.

MAPPING THE APPROACHES TO THE QUESTION OF EXEMPTION FROM INTERNATIONAL RESPONSIBILITY

Garcia Amador, the first Special Rapporteur on the topic of state responsibility, was of the view that in international law, special circumstances denote situations of exemption from the secondary rule which attaches disadvantageous consequences to a breach of an obligation under any primary rule. By contrast, his successor, Roberto Ago, advanced the notion that the exceptional circumstances characterise situations of exemption from the obligations arising out of primary rules. As a departure from both conceptions, James Crawford, the last Special Rapporteur on the law of state responsibility, submitted that it is only after having established that a certain course of behaviour is contrary to the terms of a prohibition that it becomes possible to enquire whether the actor had a justification for acting as he did. If affirmative, the conduct in question is to be regarded as conduct which neither conforms with the obligation nor constitutes a violation thereof. If negative, then the act amounts to an unjustified wrongdoing and accordingly forms the basis for the operation of the various disadvantageous consequences envisaged by the law of international responsibility. This contribution first examines the process of the development of the notion of exceptional circumstances in the edifice of the law of international responsibility ex delicto. It then shows that from the three competing conceptions, only that advanced by Ago proves capable of accurately accounting for the circumstances of consent, self-defence, and the legitimate application of a countermeasure.

Re-Visiting the Viability of the Rule of Recognition and the Basic Norm in Modern Legal Context

Both H.L.A. Hart and Hans Kelsen views the concept of a legal system from the perspective of legal positivism. The defect of ‘uncertainty’ that is the lack of authoritative procedures for deciding the rules as to the precise nature of the primary rules, would be remedied by a secondary rule which Hart terms ‘the rule of recognition’. The rule of recognition determines the criteria by which the validity of the rules of a legal system is decided from the internal aspect. It is, in part duty imposing. The rule of recognition presupposes the existence of judges whose duties are laid down by the rule of recognition. In Kelsen’s terms, law is based on norms which stipulate sanctions and the validity of a legal norm depends solely on its having been authorised by another legal norm of a higher rank, The final norm’s validity cannot be derived from a higher norm; the reason for its validity cannot be questioned.Hart’s rule of recognition is more viable than Kelsen’s grundnorm. Because, modern culture looks at law and legal systems empirically - as fundamentally involving questions of social facts which is present in the rule of recognition whereas for Kelsen the law was fundamentally nonempirical.However, one benefit of grundnorm is that it allows the underlying logical structure of legal systems to be revealed, just as the philosophers' approach to language reveals its logical structure.

Who Needs Rules of Recognition?

I argue against the idea (made popular by H.L.A. Hart) that the key to legal system is its of I argue that much of the work allegedly done by rule of recognition is either done by different kind of secondary rule (what Hart called a rule of change) or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and judge recognizes changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) rule of recognition for American law. The Constitution contains rules of change; that's what matters.

Evaluation of NRDC Secondary Treatment Rule Petition: End Running the TMDL Process

Evaluation of NRDC Secondary Treatment Rule Petition: End Running the TMDL Process

Dynamic modular fuzzy neural classifier with tree-based structure identification

Inspired by a modular way of reasoning, we present a subsethood-product fuzzy neural classifier with a novel, robust and dynamic architecture, involving a main module and a number of submodules. The well-known classification and regression trees (CART) algorithm is employed as a fast preprocess of structure identification, which divides the input space into high certainty and low certainty regions, each representing a primary fuzzy rule. These primary fuzzy rules use a minimum set of attributes and are mapped onto the main neuro-fuzzy module. However, the patterns belonging to a low certainty primary rule get further split into a subset of secondary rules that use an extended set of attributes. Each such rule subset is mapped onto an expert-submodule, which gets activated only when a pattern falls into the respective low certainty region. In other words, we create a rule form of “if—then–if” conditional statement, where the first “IF” concerns the main module and the primary rule, while the second “IF” concerns the respective submodule and the secondary rule set. This dynamic resource-allocating model is optimized through a supervised learning procedure. Experiments in benchmark classification tasks prove that this architecture not only does reduce complexity and computational cost, which is its primary goal, but also offers fast and accurate processing during real-time operation. Moreover, it holds certain properties that make it ideal for soft computing applications of high dimension, especially those that adopt user-profiles or require partial re-training.

Improvement of cyclic decapeptides against plant pathogenic bacteria using a combinatorial chemistry approach

Cyclic decapeptides were developed based on the previously reported peptide c(LysLeuLysLeuLysPheLysLeuLysGln). These compounds were active against the economically important plant pathogenic bacteria Erwinia amylovora, Pseudomonas syringae and Xanthomonas vesicatoria. A library of 56 cyclic decapeptides was prepared and screened for antibacterial activity and eukaryotic cytotoxicity, and led to the identification of peptides with improved minimum inhibitory concentration (MIC) against P. syringae (3.1–6.2 μM) and X. vesicatoria (1.6–3.1 μM). Notably, peptides active against E. amylovora (MIC of 12.5–25 μM) were found, constituting the first report of cyclic peptides with activity towards this bacteria. A second library based on the structure c(X 1X 2X 3X 4LysPheLysLysLeuGln) with X being Lys or Leu yielded peptides with optimized activity profiles. The activity against E. amylovora was further improved (MIC of 6.2–12.5 μM) and the best peptides displayed a low eukaryotic cytotoxicity at concentrations 30–120 times higher than the MIC values. A design of experiments permitted to define rules for high antibacterial activity and low cytotoxicity, being the main rule X 2 ≠ X 3, and the secondary rule X 4 = Lys. The best analogs can be considered as good candidates for the development of effective antibacterial agents for use in plant protection.

A intervenção do ambientalismo internacional na Amazônia

ENTRE 1989 e 2002, a Amazônia sofreu a intervenção do ambientalismo internacional. Permitida pelos governos brasileiros, essa intervenção, além do desejo de controle político, reflete as dificuldades dos povos industrializados em abandonar os princípios e os interesses desenvolvimentistas antiecológicos em casa. Os princípios e projetos do ambientalismo internacional reafirmam a atribuição de status superior à ciência, legitimando o papel central de cientistas e tecnoburocratas nos processos decisórios e ignorando que a Amazônia é patrimônio histórico-cultural dos amazônidas, em particular daqueles que praticam o plantio-manejo ecológico de recursos naturais, os quais apenas marginalmente têm alguma influência nas decisões.

The Concept of National Law and the Rule of Recognition

It is a commonly held position that a rule cannot be a legal rule unless it is binding; or to put it differently, that one element that distinguishes legal rules from other kinds of rules is that legal rules are regarded as binding by duly constituted officials - typically, courts - who are called upon to apply them. Similarly, it is an often-held position that the law consists of the rules of a jurisdiction that are duly enacted or adopted by officials who have the power to make rules that are binding in the jurisdiction. The thesis of this article is that both positions are incorrect. I begin by developing a concept that I call national law. The concept of national law is that there is a body of law in the United States that is made by officials across jurisdictions, legal scholars, and scholarly institutions, which constitutes law despite the fact that it is not binding in, and is not necessarily made by, officials of a deciding jurisdiction. Examples of national law are the rules that a donative promise is enforceable if relied upon, that an acceptance is effective on dispatch, and that the remedy for breach of a bargain contract is expectation damages. National law is law because, as I show, under the practice of the legal profession, particularly the courts, the rules of national law (and not simply the reasons for those rules) are invoked as legal rules of decision. Next, I take the concept of a rule of recognition as a postulate, and develop the following four principles concerning the meaning, application, and scope of that concept, which are independent of, but exemplified by, the concept of national law: (1) The social group that must accept a secondary rule for the rule to constitute a rule of recognition is the legal profession, rather than simply judges and other officials. (2) Whether the legal profession accepts a secondary rule as a rule of recognition can be determined by examining the kinds of primary rules that are invoked by the profession as legal rules in resolving legal issues in general, and deciding cases in particular. (3) A rule can be a legal rule even though it is not binding. (4) In the United States, law is made not only by judges and other officials of the deciding jurisdiction, but also by the national judiciary, legal scholars, and professional institutions (in particular, the American Law Institute).

Metaphorical instruction and the early learning of an abbreviated-command computer system

There has been much discussion of metaphor and analogy in human-computer interaction. However, the usefulness of metaphorical instruction is in dispute, and the little empirical evidence on the topic is mixed. In this paper it is argued that appropriate metaphors in instructional materials could serve a mnemonic function, helping users to learn and remember the available operations on a computer system. Beyond this, it is suggested that metaphorical models for device semantics may effect the learnability of command languages. These predictions are tested in an experiment in which subjects learn to play a computer game using an abbreviated command language. In the same experiment, a prediction about the learnability of abbreviations, derived from task-action grammar (TAG) is tested. Metaphorical instructions are found to improve learnability of device semantics, and of command-abbreviations, and to influence patterns of device-use. In addition, it is found that an abbreviation scheme that partitions the command language into semantic categories and applies different rules in each category is more easily learned than the currently recommend scheme (Ehrenreich and Porcu 1983), which uses a secondary rule when the primary rule generates clashing abbreviations.

Methods of Disambiguating Command Term Abbreviations for Interactive Computer Systems

The use of a truncation rule for abbreviating command terms is susceptible to the problem that two or more terms may share the same abbreviation. In order to disambiguate such duplications, one of two possible strategies can be employed. One can insist that all abbreviations adhere to the truncation rule, and that ambiguities be resolved by requiring users to enter enough letters in a term so as to uniquely identify it within the set of all command terms (consistent rule/inconsistent length). An alternative approach is to require all abbreviations be of the same length and that a secondary rule for abbreviation formation be applied when truncation would result in duplications (inconsistent rule/consistent length). An experiment compared these two approaches by having subjects memorize a set of command term/abbreviation pairings that used each of the two above strategies. The subjects were then tested on their ability to encode the terms into abbreviations and decode the abbreviations back into terms. The consistent rule/inconsistent length resulted in significantly superior performance (faster and more accurate). Furthermore, an error analysis revealed that the types of errors made were generally less severe in the consistent rule/inconsistent length approach than in the inconsistent rule/consistent length approach.