Please enable JavaScript.

Coggle requires JavaScript to display documents.

Indeterminacy - Coggle Diagram

- - - - What does an easy case look like? One recent writer has suggested this example: "IfI drove eighty miles per hour on the way home from work.. . I clearly would have violated laws prohibiting speeding."1S More precisely, the following Speeding Case is an easy case:
        
        Given an authoritative statute that reads, "Any person who drives faster than fifty-five m.p.h. must pay a fine of fifty dollars" (a legitimate source in the minimalist Class); and 2. Given that the plain meaning of this statute is that anyone who drives faster than fifty-five m.p.h. must pay a fine of fifty dollars (a legitimate interpretive operation in the minimalist Class); and 3. Given the fact that I drove eighty m.p.h.; then 4. It follows necessarily (by deduction) that I must pay a fine offifty dollars (legitimate rational operation).
        
        What are the implication of easy cases?
        
        We should grant then what seems hard to deny. There are easy cases. But what follows from this admission? Surely only that the thesis that the law suffers from GlobalIndeterminacy of Reasons is false. 19
        
        he question then iswhether Global Indeterminacy of Reasons is a thesis anyone ought to defend or whether it is the thesis that is at issue when people worry about indeterminacy. Unquestionably, Global Indeterminacy of Reasons would be an interesting thesis iftrue; but its patent falsity robs it, unsurprisingly, of its interest Is this a fatal blow to the challenge ofindeterminacy?
        
        How does the source refute global indeterminacy
        
        1 more item...
- - - - RONALD DwoRKIN, TAKING RIGus SERIOUSLY (Cambridge, Mass.: Harvard University Press, 1977), at 81.
        
        all, Dworkin (at least in his earlier work) argues that the law is Globally Rationally Determinate, but he is not supposing a minimalist conception of the Class (he has an expansive view of the sources and an optimistic view of the operations). Thus, Dworkin concedes that, on his view, the fact that the law is Rationally Determinate does not rule out the possibility that "reasonable lawyers and judges will often disagree."' 6 Rational Determinacy, without minimalism in the characterization of the Class, makes outcomes essentially contestable in a way that defeats the "easiness" of easy cases.17
    - - Formalism in Unger's terms refers to the belief that legal reasoning can arrive at determinate solutions separate from broader social and political debates. Unger rejects this idea, arguing that legal doctrine cannot be separated from broader “ideological, philosophical, or visionary” disputes about how society should be organized.
        
        Unger argues that legal reasoning cannot be reduced to a mere game of analogy, where legal principles are mechanically applied to new cases based on surface-level similarities. This approach breaks down because legal materials always contain inconsistent clues about the scope and application of any given model. As we discussed earlier, relying on analogy requires a "pre-established harmony" between legal principles and a coherent theory of right, a harmony that Unger rejects as implausible.
        
        Uses Contract and property as an example
        
        But the execution kept belying the inten-tion. As the property concept was generalized and decorpo-realized, it faded into the generic conception of right, which in turn proved to be systematically ambiguous (e.g., Hohfeld) if not entirely indeterminate. Contract, the dynamic counter-part to property, could do no better. The generalization of contract theory revealed, alongside the dominant principles of freedom to choose the partner and the terms, the counterprin-ciples: that freedom to contract would not be allowed to un-dermine the communal aspects of social life and that grossly unfair bargains would not be enforced. Though the counter-principles might be pressed to the corner, they could be neither driven out completely nor subjected to some system of meta-principles that would settle, once and for all, their relation to the dominant principles. In the most contested areas of con-tract law, two different views of the sources of obligation still contend. One, which sees the counterprinciples as mere ad hoc qualifications to the dominant principles, identifies the fully articulated act of will and the unilateral imposition of a duty by the state as the two exhaustive sources of obligation. The other view, which treats the counterprinciples as possible generative norms of the entire body of law and doctrine, finds the standard source of obligations in the only partially delib-erate ties of mutual dependence and redefines the two conven-tional sources as extreme, limiting cases. Which of these clash-ing conceptions provides the real theory of contract? Which describes the institutional structure inherent in the very nature of a market?
        
        Role of Counter principles:
        
        Unger emphasizes the significance of counterprinciples in legal reasoning. Counterprinciples, such as fairness in contract law or the protection of communal interests, often limit or conflict with dominant principles (). The very existence of counterprinciples highlights the inherent tensions and potential inconsistencies within legal systems.
        
        Role of social context ( The law to a large extent follows the model of the day)
        
        , "a court ought not to be directed by the weather of the day but by the climate of the era"
        
        Unger's rejection of formalism underscores the role of social context in shaping legal interpretation. Legal principles cannot be applied in a vacuum, and their meaning and implications shift depending on the specific social and political circumstances in which they are invoked (). As we've explored before, the lack of a pre-established harmony between legal principles and social reality contributes to the potential for inconsistencies.
        
        1 more item...
        
        Changing social intentions: . One way is familiar and straightforward: to explore the relations of cause and effect that lawyers dogmat-ically assume rather than explicitly investigate when they claim to interpret rules and precedents in the light of imputed pur-pose. The settled interpretation of a rule is often justified by a two-step operation: first the interpreter imputes to the rule a purpose, such as the promotion of family cohesion; then he decides which reasonable understanding of the rule is best calculated to advance this end. Characteristically, however, he makes no serious effort to support or revise the causal assumptions taken for granted in the second stage of this procedure. The causal dogmatism of legal analysis is all the more remarkable given the star role that our ordinary under-standing of history assigns to the unintended consequences of action and the paradoxical quality of causal connections. The other way the empirical element counts is more subtle and systematic: it opens up the petrified relations between abstract ideals or categories, like freedom of contract or political equal-ity, and the legally regulated social practices that are supposed to exemplify them. The method is to show, as a matter of truth about history and society, that these abstractions can receive - and almost invariably have received - alternative institutional embodiments, each of which gives a different cast to their guiding intentions. ( Unger direct quote)
        
        Example changes to the law of contract Eugene
- - - - Schauer does not directly address whether most laws are determinate, but he argues that rules can, in principle, constrain choices and generate determinate outcomes. This means that for some laws, applying the literal language of the rule leads to a clear and predictable result without needing to consider the rule’s purpose or other external factors. Schauer illustrates this with examples like laws requiring candidates to file petitions by a certain deadline or laws excluding certain groups from holding office based on religious affiliation, showing that rule language alone can be sufficient to determine outcomes, regardless of case specifics. He also acknowledges that rules are often over- or under-inclusive, meaning their literal application may not always align with intended purposes or lead to the most desirable outcome in every case. However, he argues that this is an inherent feature of rules: their power to constrain comes from their ability to operate independently of the specific reasons that lie behind them.
        
        Is it possible for written norms to limit the factors that a decisionmaker considers? At first glance, the answer to this question seems to be "no." Language is both artificial and contingent and therefore appears insuffi-ciently rigid to limit the choices of the human actors who have created it. The word "cat," for example, could have been used to refer to canines, and the English language could have followed the language of the Es-kimos in having several different words to describe the varieties of snow. Yet this answer confuses the long-term mobility of language with its short-term plasticity, and is a conclusion comparable to taking the ponder-ous progress of a glacier as indicating that it will move if we put our shoulders against it and push. Of course language is a human creation, and of course the rules of language are contingent, in the sense that they could have been different. It is also beyond controversy that the rules of language reflect a range of political, social, and cultural factors that are hardly a priori. But this artificiality and contingency does not deny the short-term, or even intermediate-term, noncontingency of meaning. If I go to a hardware store and request a hammer, the clerk who hands me a screwdriver has made a mistake, even though it is artificial, contingent, and possibly temporary that the word "hammer" represents hammers and not screwdrivers. Similarly, a rule requiring candidates to file nominating petitions at a certain place by a certain time on a certain day is violated by filing in the wrong place or after the specified time. Whatever the real judge did say in Hunter v. Norman, and whatever some judge might have said in any of my hypothetical variants, none of them would be that Hunter, in filing at 5:03 p.m., had filed at or before 5:00 p.m.
        
        Recognises that not all rules are determinate but determinacy exists
        
        Mirrors leter and suggests that there will be easy cases where the law is completely determinate.