Seeking The Significance Of The Indeterminacy Of Anti-trust Law

In comparison with other law,the possession of the indeterminacy in Anti-trust law is more typical. Based on this typical indeterminacy, there is always doubt on the legitimacy of Anti- trust law. For this reason,it has the great theoretical and practical value to clarify the substance of Anti-trust indeterminacy and to scientificly understand the meaning of Anti-trust indeterminacy.The previous theory only from the dimension of the legal formalism "analysis on rules ", understood the indeterminacy of Anti-trust law, that is the uncertainty comes from the ambiguity of the rules. However, this understanding does not answer the complexity of the indeterminacy itself. On this basis, this paper argues that the dimension of the "interest analysis" and "value analysis" on the Anti-trust law will be applied to understand the indeterminacy. First,to understand the legal indeterminacy is to understand the prerequisite for the growth of social movements and the specific desires; Second, to understand the legal indeterminacy is to understand the different values of the legal participants. Once the awareness of Anti-trust law indeterminacy in such a perspective, the indeterminacy of the substance of Anti-trust law will be able to show. Anti-monopoly only means that the balance of the view on the democratic power politics and the populist power politics,the balance of the liberalism values and the communitarianism values and the choice of the knowledge of the the market rationality and the knowledge of the the government rationality.It is necessary to take the complexity of the situation into account when Anti-trust law is going to make institutional arrangements.So the Anti-trust law must built up the strain of various interests, various values and various choices of knowledge. This respect for the complex reality of the situation results in that the Anti-trust law is not just a one-sided normative system upholding the value of a single theory,but it is a more pluralistic, open and indeterminate system of normative system. In this sense, the Anti-trust law has the policy-oriented character. The policy-oriented character of Anti-trust law ensures the full complexity of the case and more accurately describes the occurrence of the complexity of the Anti-trust case: 1,the change in interests behind the policy orientation. This inspired us to pay attention not only to policy makers– government agencies on behalf of national interests but also to the role of interest groups.The difference of these subjects may be lead to the indeterminacy of Anti-trust law.2,the analysis on the value behind the policy orientation.Everybody has different preferences on the policy. Anti-trust law is sure to make a choice between the different values,as Anti-trust law is to pursue the justice and the effiency.3,the analysis on the knowledge behind the policy orientation.This shows the tension of the theory on the Anti-trust system. In one word ,the application of Anti-trust policy has led to Anti-trust indeterminacy. Flexible policy can reflect changes in the political economic and social situation,through the application of the policy, Anti-trust trial can make a realistic decision.As the policy transfors the changes in situation,the application of Anti-trust law shows the results of indeterminacy.So, as a normative system Anti-trust law can achieve "variable value" by means of the application of "fixed rules".Anyway, the true value of the indeterminacy of Anti-trust law is to restore the reality of the complexity of the situation to ensure that substantive rationality in pursuit.On the other hand, when the Anti-trust law totally respects the substantive ration, allowing the principles, policies and other norms to influence the legal decision , the law must be open to the political values, moral values .As a result,the substantive ration of the judgments can be get,but the formal ration of the judgments has to be lost. The rule of law has to degenerate into a rule of man.In order to prevent Anti-trust law from degenerating into Anti-trust policy ,the indeterminacy of Anti-trust law must be reasonably limited . This indeterminacy comes from a large number of policies and principles applied,as a result policies and principles (flexible norms) produce an effect on the rules of law (rigid norms).So the reasonable limit on the indeterminacy of Anti-trust law is to clarify the relationship between legal and policy in the dimension of the legal theory.This paper has ordered Dworkin's theory and Posner's theory on the view of"law -policy ".The view on policy of Posner thinks:as a legal reasoning norm, policy is a important way to achieve reasonable result.From the methodological point of the definition of the relationship between law and policy, Posner wants to show that Dworkin's theory on the policy confused law and policy.Law becomes more and more uncertain. However,he thinks that law is what the judgement will do,this view increases the the arbitrary of policy's application to law.So the objectivity of legal answers has disappeared. On the other hand, the view on policy represented by Dworkin shows that: as a political value, policy must be an integral part of the law. This allows the judge's decision built on the basis of the value, thus eliminating the arbitrary of posner's theory. However, the only correct legal answer is based on an ideal methodology, the only objectivity of law can't be obtained in a state of multiple political values and moral values. Thus his answer to the question of legal certainty is questionable.On this theoretical background, Habermas proposed " the theory of legal discussions".His theory wants to recognize policy as the process of legal reasoning. At the same time, through the process defination of the application of the policy into law,giving policies the limitation bound by argumental rules and the constraints of legal argumental procedures,the limit is to ensure the determinacyof the procedure. This theory shows that the indeterminacy of Anti-trust law will determine the future of anti-trust law which is the tendency of the development on procedures. The development of Anti-trust law is certain not to increase substantive rules,but to increase the procedural rules. Only in that way, Anti-trust law can not only obtain the substantive ration,but also the procedural determinacy.