Legal Indeterminacy: Causes and Significance

• Author: Conor Casey
• Position: Senior Sophister LL.B. Candidate and Scholar, Trinity College Dublin
• Pages: 42-55

© Conor Casey and Dublin University Law Society

LEGAL INDETERMINACY: CAUSES AND

SIGNIFICANCE

CONOR CASEY

INTRODUCTION

The Critical Legal Studies (CLS) movement followed the American legal

realist writers in attacking the formalism of conventional judicial thought.

A common theme in a great deal of CLS scholarship is their scepticism

towards the belief in legal determinacy, and the view that law and legal

reasoning are, to a large degree, determinate. Joseph Singer argues that this

determinacy is necessary to “the ideology of the rule of law, for both

theorists and judges. It is the only way judges can appear to apply the law

rather than make it.”

1

The CLS movement argues that if the indeterminacy

critique is sound, the outcome of many legal decisions are based on the

personal, political, or institutional bias of the adjudicator. This article

discusses two distinct approaches to the indeterminacy critique: the strong

and weak theses. It will be argued that while both theses offer provocative

and, in the case of the weak thesis, insightful critiques of conventional

formalist legal reasoning, they are overstated in some respects.

Part I of this article examines the strong indeterminacy critique put

forward by the CLS Movement. It shall be argued that although language

and legal rules are in principle capable of great ambiguity and

indeterminacy, for all practical purposes, words, and thus rules, can be given

a contextualised and thus comprehensible determinacy, whether in the

context of Stanley Fish’s “interpretive communities”

2

or Ludwig

Wittgenstein’s “Forms of Life.”

3

In these instances, the use of words and

rules by lawyers, judges and academics in practice, allows for the

contextualisation of prima facie open-textured and indeterminate words in

 Senior Sophister LL.B. Candidate and Scholar, Trinity College Dublin. The author would like

to thank Dáire McCormack-George for his extensive help in the editing process. The author

would also like to thank Robbie Noonan and Dr. David Prendergast for their helpful comments.

1

Joseph Singer, “The Player and the Cards: Nihilism and Legal Theory” (1984) 94(1) Yale LJ

1, at 12.

2

Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities

(Harvard University Press, 1982).

3

Ludwig Wittgenstein, “Philosophical Investigations” in Adler ed., Great Books of the

Western World Volume 55 Philosophy and Religion (2nd ed., Encyclopædia Britannica, 1990).