David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
University of Chicago Law Review 54:462 (1987)
This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.The strong indeterminacy thesis is the claim that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect ot a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.This article was first published in 1987, and some of the author's views have been revised in interim.
|Keywords||Indeterminacy Critical Legal Studies CLS Interpretation Underdeterminacy|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Dan Jerker B. Svantesson (2013). What Is “Law,” If “the Law” Is Not Something That “Is”? A Modest Contribution to a Major Question. Ratio Juris 26 (3):456-485.
Brian Bix (2003). Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy? Ratio Juris 16 (3):281-295.
Peter Drahos & Stephen Parker (1992). Rule Following, Rule Scepticism and Indeterminacy in Law: A Conventional Account. Ratio Juris 5 (1):109-119.
Jacques de Ville (2010). Revisiting Plato's Pharmacy. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 23 (3):315-338.
Similar books and articles
Ian McDiarmid (2008). Underdetermination and Meaning Indeterminacy: What is the Difference? [REVIEW] Erkenntnis 69 (3):279 - 293.
Steven I. Miller & Marcel Fredericks (1991). Some Notes on the Nature of Methodological Indeterminacy. Synthese 88 (3):359 - 378.
Jay F. Rosenberg (1967). Synonymy and the Epistemology of Linguistics. Inquiry 10 (1-4):405-420.
Philip L. Peterson (1984). Semantic Indeterminacy and Scientific Underdetermination. Philosophy of Science 51 (3):464-487.
Forrai (1999). Are Quine’s Two Indeterminacy Theses Compatible? Acta Analytica 14 (23.):89-99..
Bradford Skow (2010). Deep Metaphysical Indeterminacy. Philosophical Quarterly 60 (241):851 - 858.
Martin Montminy (2011). Indeterminacy, Incompleteness, Indecision, and Other Semantic Phenomena. Canadian Journal of Philosophy 41 (1):73-98.
Mark Greenberg (2011). Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II. [REVIEW] Law and Philosophy 30 (4):453-476.
Peter Pagin (2008). Indeterminacy and the Analytic/Synthetic Distinctions: A Survey. Synthese 164 (1):1 - 18.
Günter Abel (1994). Indeterminacy and Interpretation. Inquiry 37 (4):403 – 419.
Added to index2009-01-28
Total downloads29 ( #135,099 of 1,796,166 )
Recent downloads (6 months)4 ( #209,906 of 1,796,166 )
How can I increase my downloads?