Maintaining the Internal Tension Model

Abstract

This chapter is dedicated to an overview of the ways the internal tension model operates to empower the executive branch, simultaneously under law and beyond its confines; the maintenance of the internal tension between the need to grant power and the need to retain a façade of legality, is achieved through practices under which an authorizing rule may present a façade of legality that derives from its binding formal status, while its content or application offer broad options for action (and possible abuse) which conceals a reality of a-legality. Beyond general and philosophical studies of the indeterminacy of law, the scholarship in this context has been conducted under the parallel paths discussed in this chapter (delegation and discretion; ‘soft law’; ‘fuzzy law’; and ‘grey holes’. The second part of the chapter is dedicated to an analysis of thirteen types of such fuzzy/grey legal constructs, organized according to the identity of their generators—the constitution, the legislature, and the executive. The resulting taxonomy of thirteen different forms of fuzziness offers a basis for the next part of this book, dedicated to case-studies of several such fuzzy measures.