Doctrine

About: Doctrine is a research topic. Over the lifetime, 21901 publications have been published within this topic receiving 204282 citations.

The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights

Abstract: The European Convention of Human Rights (Convention) 1 establishes a set of rights and freedoms which all member states undertake to "secure to everyone within their jurisdiction."2 At the same time the Convention provides machinery to enforce these rights: the European Commission of Human Rights (Commission); 3 the European Court of Human Rights (Court); 4 and the Committee of Ministers of the Council of Europe.5 Though the Commission continues to be the most active, the Court has in recent years developed a considerable body of case law of its own. It has also made use of the doctrine of the margin of appreciation, first developed by the Commission. As the Court is the final interpreter of the Convention, its use of the margin of appreciation doctrine and its development of standards for its application are critical to the enforcement of the Convention.

Systemic Operational Design: Learning and Adapting in Complex Missions

Abstract: NEARLY ALL MISSIONS this century will be complex, and the kind of thinking we have called "operational art" is often now required at battalion level. Fundamentally, operational art requires balancing design and planning while remaining open to learning and adapting quickly to change. Design is not a new idea. Command has always entailed responsibility for designing operations while penetrating complexity and framing problems that planners have to solve. Individual ability to learn effectively, adapt rapidly and appropriately, and to solve problems has always been self-evidently valuable to commanders. Yet, collectively, a command's overall quality of design, learning, and adaptation is what determines results. Military leaders may value individual creativity, critical thinking, continuous learning, and adaptability in their staffs and subordinate commanders, but individual traits do not necessarily add up to collective.abilities needed for the best outcomes. Traditional approaches to imparting a collective quality to campaign design introduced in the 1 980s, and more recent infusions from Joint doctrine, are no longer sufficient for achieving the best outcomes. Because operational environments evince increasingly dynamic complexity, commanders are looking for, and are in need of, help. Operational Art in Modern Complex Conflicts Operational artists at all levels need new conceptual tools commensurate to today's demands. Conceptual aids derived from old, industrial-age analogies are not up to the mental gymnastics demanded by 21st-century missions. Parallel to the development of so-called (and now discredited) "rapid decisive operations" (RDO), and as a way to facilitate RDO planning, Joint doctrine writers at Joint Forces Command (JFCOM) introduced effects-based planning (EBP), operational net assessment (ONA), and system-of-systems analysis (SOSA). Intended to be tools of operational art and planning, these concepts have been nearly impotent for making any sense of the Iraq and Afghanistan missions. The inherent logic of effects-based planning assumes a mechanistic understanding of causal chains. We can readily understand the logic of cause and effect in physical structures once we map them. Difficulty ensues when mapping social and political relationships: when we think we have a map, relationships shift. Moreover, such maps become unreliable because people need not act the way one expects they should. Critically, SOSA attempts to map five categories of interconnected, organic structures that people create - political, economic, military, social, and infrastructure informational constructs. SOSA undermines critical and creative thinking about these structures by assigning them a Newtonian causal logic that promotes conceptual rigidity. Human constructs are inherently fluid. Assigning mechanistic predictability to them in doctrine amounts to erecting false assumptions as dogma. As doctrine, SOSA is antithetical to a coherent operational design. Evolving Doctrinal Norms and Systemic Operational Design The last four years have seen the Army promote studies to reinvigorate creativity, critical thinking, and adaptability as intellectual norms in a collective organizational framework. This inquiry, just like the Army's reforms of the early 1980s, has led it to examine what other disciplines and other militaries have learned about dealing with the difficulties of novel and complex challenges. In many fields, novelty limits the extent to which reasoning models derived from experience can apply to present problem settings. New systemic complexity defies the usual approaches to sensemaking. Complicated versus complex systems. Merely complicated systems are composed of numerous parts and structures, all logically separable from their environment. An example would be the system for deploying units on a time table for an operation like D-day. Such a schedule could be accurately analyzed in the abstract. …

Positive Law and International Law

Abstract: One of the most representative authors of modern analytical philosophy, T. D. Weldon, has pointed out recently how he and his English and American colleagues have come to realize that many of the problems which their predecessors found insuperable arise not from something mysterious or inexplicable in the world around them, but from the peculiarities of the language with which we try to describe the world itself. This Oxford philosopher remarks that many errors in political doctrine and in various branches of philosophy are caused by “carelessness over the implications of language.” This carelessness, he goes on to say, is often due to the mistaken idea that words, and especially the words that normally recur in discussions on matters of political doctrine, have an intrinsic and essential meaning of their own, more or less in the same way as children have parents.

The Scholastics, Usury, and Foreign Exchange

Abstract: Did the doctrine of usury hamper businessmen and retard economic growth during the Middle Ages? Professor de Roover suggests an answer through examination of the conceptual modification of the doctrine in relation to banking and foreign exchange.

The Private Police

Abstract: Legal scholars have largely neglected private policing, and the neglect is increasingly indefensible. The private security industry already employs more guards, patrol personnel and detectives than the federal, state and local governments combined, and the disparity is growing; to a striking extent, private firms now perform many of the beat-patrol tasks once thought central to the mission of the public police. This article describes what is known and unknown about the private security industry, traces the industry's history, assesses the challenges and opportunities it creates for judges and scholars, and provides an agenda for future research and doctrinal development. Private security firms furnish tangible evidence about what some people want but are not receiving from public law enforcement, and the legal regime governing private security -- deconstitutionalized, defederalized, tort-based, and heavily reliant both on legislatures and on juries -- offers important opportunities to test some of the most persistent proposals for reforming criminal procedure law. In addition, because maintaining order and controlling crime seem paradigmatic governmental functions, private policing presents a unique and underused vantage point for reexamining the public-private distinction and the state action doctrine. Finally, and perhaps most importantly, police privatization provides occasion for reconsidering the focus of constitutional law on negative obligations of government, and the focus of constitutional criminal procedure on fairness to individual criminal defendants; the dramatic spread of policing-for-hire should prompt us to rethink what it means to guarantee all citizens, regardless of wealth, the equal protection of the laws.