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 Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...

movement — primarily legal academics in the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

— 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 left reply to

Ronald Dworkin Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...

's "right answer" thesis. In its strongest form it is an extreme version of

legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists be ...

. 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 Liberal or liberalism may refer to: Politics * a supporter of liberalism ** Liberalism by country * an adherent of a Liberal Party * Liberalism (international relations) * Sexually liberal feminism * Social liberalism Arts, entertainment and m ...

and

conservative Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization i ...

defenders of the

rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...

, 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.

Bibliography

*Ronald Dworkin, ''No Right Answer?'', Law, Morality, and Society (P.M.S. Hacker and J. Raz, eds., Oxford: Clarendon Press, 1977). *Lawrence Solum,
On the Indeterminacy Crisis: Critiquing Critical Dogma
', 54 The University of Chicago Law Review 462 (1987). *Kenneth J. Kress, ''"Legal Indeterminacy"'', 77 California Law Review 283 (1989). *Mark Tushnet, ''Critical Legal Theory (without Modifiers) in the United States'', 13 (1) Journal of Political Philosophy 99 (2005). *A.D. Woozley, ''No Right Answer'', Ronald Dworkin and Contemporary Jurisprudence (M. Cohen, ed., London: Duckworth, 1984). *Quentin du Plessis, ''Sources of Legal Indeterminacy'', 138 South African Law Journal 115 (2021). {{DEFAULTSORT:Indeterminacy Debate In Legal Theory Legal disputes Critical legal studies

See also

Bibliography