Indeterminacy debate in legal theory
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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 movement — primarily legal academics in the United States — 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, in its strongest form, is the proposition that a judge can "square" any result in a particular case with the existing legal materials through the use of legitimate legal arguments. In the 1990s the indeterminacy thesis came under heavy attack by liberal and conservative defenders of the rule of law, and the debate eventually subsided.
Bibliography
- Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma (http://home.sandiego.edu/~lsolum/Westlaw/ontheindeterminacycrisis.htm), 54 The University of Chicago Law Review 462 (1987).
- Kenneth J. Kress, “Legal Indeterminacy, 77 California Law Review 283 (1989).