Full Text

32. Indeterminacy

LAWRENCE B. SOLUM


Subject Law
Legal and Political » Legal Philosophy

Key-Topics decision making, realism

DOI: 10.1111/b.9781405170062.2010.00034.x


Extract

Does the law determine the outcome of particular legal disputes? The simple, commonsense answer to this question might be, “Yes, the laws (the statutes, cases, and so forth) fix the way that judges decide cases.” A more sophisticated answer might go, “Yes and no, the laws have a big influence, but other things (politics, preferences, and so on) may also come into play.” A very cynical answer to the question could be, “No, the laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.” This final answer to the question is a version of the claim that law is indeterminate. The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. This claim has been associated with two schools of legal theory, the critical legal studies movement and legal realism, although many scholars associated with the contemporary critical legal studies movement do not believe that a radical critique of law should involve claims about legal indeterminacy. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways. The indeterminacy debate has been ... log in or subscribe to read full text

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