Indeterminacy debate in legal theory
Encyclopedia
The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies
movement — primarily legal academics
in the United States
— argued that the answer to this question is "no." Another way to state this position is to suggest that disputes cannot be resolved with clear answers and thus there is at least some amount of uncertainty in legal reasoning and its application to disputes. A given body of legal doctrine is said to be "indeterminate" by demonstrating that every legal rule in that body of legal doctrine is opposed by a counterrule that can be used in a process of legal reasoning.
The indeterminacy thesis emerged as a far-left reply to Ronald Dworkin
's "right answer" thesis. In its strongest form it is an extreme version of legal realism. It argues that nothing is law until it has been promulgated by an official - either a judge or the legislature. For example, a statute that says "No person may smoke in a hospital" does not mean that "John Doe may not smoke in a hospital"; the second statement is the law only if a legitimate authority declares so.
This is because one cannot describe a legal statement as right or wrong without making a normative value judgment about what the law should be.
In the 1990s the indeterminacy thesis came under heavy attack by liberal
and conservative
defenders of the rule of law
, and the debate, though its mantle is in the process of being taken up by a new generation of scholars, has left the intellectual spotlight for the time being.
The thesis can be criticised because the concept of legal mistake is recognised in a determinative theory of law. While such a mistake necessarily involves a normative judgment, it is not truly subjective. A positivist Hartian theory contends that this judgment is conventionally objective because the rule of recognition fails to recognise the mistake as legally valid. According to a liberal theory such as Dworkin's, the normativity of the judgment is one of reason rather than of value.
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
movement — primarily legal academics
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
— argued that the answer to this question is "no." Another way to state this position is to suggest that disputes cannot be resolved with clear answers and thus there is at least some amount of uncertainty in legal reasoning and its application to disputes. A given body of legal doctrine is said to be "indeterminate" by demonstrating that every legal rule in that body of legal doctrine is opposed by a counterrule that can be used in a process of legal reasoning.
The indeterminacy thesis emerged as a far-left reply to Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
's "right answer" thesis. In its strongest form it is an extreme version of legal realism. It argues that nothing is law until it has been promulgated by an official - either a judge or the legislature. For example, a statute that says "No person may smoke in a hospital" does not mean that "John Doe may not smoke in a hospital"; the second statement is the law only if a legitimate authority declares so.
This is because one cannot describe a legal statement as right or wrong without making a normative value judgment about what the law should be.
In the 1990s the indeterminacy thesis came under heavy attack by liberal
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
and conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
defenders of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, and the debate, though its mantle is in the process of being taken up by a new generation of scholars, has left the intellectual spotlight for the time being.
The thesis can be criticised because the concept of legal mistake is recognised in a determinative theory of law. While such a mistake necessarily involves a normative judgment, it is not truly subjective. A positivist Hartian theory contends that this judgment is conventionally objective because the rule of recognition fails to recognise the mistake as legally valid. According to a liberal theory such as Dworkin's, the normativity of the judgment is one of reason rather than of value.