Legal Indeterminacy: Causes and Significance

AuthorConor Casey
PositionSenior Sophister LL.B. Candidate and Scholar, Trinity College Dublin
© Conor Casey and Dublin University Law Society
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.”
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”
or Ludwig
Wittgenstein’s “Forms of Life.”
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.
Joseph Singer, “The Player and the Cards: Nihilism and Legal Theory” (1984) 94(1) Yale LJ
1, at 12.
Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities
(Harvard University Press, 1982).
Ludwig Wittgenstein, “Philosophical Investigations” in Adler ed., Great Books of the
Western World Volume 55 Philosophy and Religion (2nd ed., Encyclopædia Britannica, 1990).

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