Abstract

Legal indeterminacy refers to the lack of determinate knowledge, of what a legal rule means and of how judges should apply it. Where law is indeterminate, no theory, rule, or principle constrains a judge to interpret or apply a law in a particular way. Consequently a case could have several different answers, yet all of them equally valid. The notion that judges make rather than find law implies to many observers consequences such as unequal or arbitrary treatment of individuals. Drawing on an interdisciplinary body of scholarship, I confront the phenomenon of legal indeterminacy with two questions: How is justice possible when aspects of the legal regime seem arbitrary, inconsistent, and subjective? And how should a society deal with indeterminacy? Chapter 1 provides an extended example of the phenomenon of indeterminacy, namely in the legal regulation of speech. Chapter 2 shows that various counter arguments, including several prominent theories of determinacy, do not preclude or otherwise defeat the thesis of indeterminacy. Chapter 3, drawing on pragmatism, develops a theory of "enlightened localism," a form of relativism that can explain why indeterminacy in social norms is not often a problem in the day to day functioning, or even legitimation, of modern polities. The meaning and application of norms often need not be consistent over time or between cases; validity can only be relative. Such relativism presupposes a non-absolute objectivity, where we can give decisions objective grounds for the most part, but not grounds valid semper, ubique, et omnibus. Weakly objective grounds are locally rather than universally applicable. Chapter 4 shows that although such a theory invokes no ultimate foundation for itself, it is expressly not postmodern. Chapter 5 develops enlightened localism as a theory of a democratic legal order under conditions of indeterminacy. Chapter 6 examines indeterminacy in legal community, and chapter 7, how courts of law can respond to that problem. Chapter 8 analyzes indeterminacy in legal rules, and chapter 9, how a micro-sociological methodology can approach the phenomenon empirically. Chapter 10 investigates indeterminacy in normative criticism, and chapter 11, how social critique might deal with indeterminacy