Abstract

The main claim of this paper is the following: In a typical rational legal system, legal adjudication is necessarily discretional. Discretion is the result of what I call ‘systemic indeterminacy’. Systemic indeterminacy is the thesis that claims that typical rational legal systems that have an interpretative code with more than one interpretative directive and the non-redundancy clause are necessarily indeterminate. Since typical rational legal systems do not have redundant rules a plurality of interpretative directives will necessarily yield a plurality of interpretative results. Due to the non-liquet rule judges are obligated to choose among the different interpretative results provided by the interpretative code. In other words, by building a thesis on legal indeterminacy as the consequence of having a plurality of interpretative directives that necessarily yield different results, I proceed to provide an account of discretion as a necessary feature of legal adjudication.