Friday, November 18, 2005


Hmmm...long time no update. I had actually started to write this post about a week ago whilst slightly intoxicated by it wouldn't 'flow', so now, several essays and lots of reading later, I'll have a go.

O.k. before I outline the indeterminacy of legal reasoning I thought I'd outline the object of critique, i.e. the notion that legal reasoning is determinate.

Essentially a lot of liberal legalism posits that there is a discrete type of legal reasoning. This reasoning creates 'rules' of law, which are then applied to different situations. The different situations are predictably resolved by these rules and we all live happily ever after.

The indeterminacy (or under-determinacy) thesis makes several observations:

1. A rule cannot guarantee a particular result when applied to a particular situation (thus on the basis of the rules we cannot predict judical decisions).
2. That 'legal' reasoning is not sufficient to decide how to resolve a particular situation, hence some 'other' type of reasoning must be used.

Firstly, I will talk about the causal ineffectiveness of legal reasoning. Some people notably, the crits, adopt the view point that the indeterminacy of legal reasoning is rooted in the general, or global indeterminacy of language. I myself have a problem with this, because as we all know language may be under-determinate but meaning is given through community discourse.

Language, in terms of the law, can be a starting point for indeterminacy, if we confine it to the legal sphere. It is true that it is often unclear what a particular term means. In terms of the law it is not true that a 'community' gives a term a fixed meaning. This is because the very structure of the legal community, and the legal form, leads to contestation, lawyers are premised on the idea that legal language is contestible.

Furthermore, because statutory langauge will be necessary indeterminate it must be interpreted. It is a mistake to think of interpretation as being about divining what a word means or what it was intended to mean, rather interpretation is about giving effect to something, or resolving a particular situation. Furthermore, there are many contradictory canons of statutory interpretation, that mean a 'word' can be construed in innumerable different ways because of 'legal reasoning'.

Secondly, and linked to this is the fact that 'words' and rules have got to be applied to facts. If, as a good Pashukan-ite, one sees law as being rooted in form then this becomes important. Law's primacy lies in resolving disputes between formally equal legal subjects, thus the application of a 'rule' to a particular dispute constitutes the dynamic 'essence' of the law. Thus it is necessary to see if a particular situation is subsumed beneath a particular rule. This can be problematic in practice, as every situation cannot have been contemplated by the 'rule maker'. Thus the court must somehow decide whether a given situation falls within a particular rule.

Application is even more problematic when we're discussing the common law. This is because most common law cases contain numerous, different, lengthy judgments, with dissents etc. This means that a judge, when examining 'precedent' has no clear line 'telling' him/her what to do, since the precedent can't 'tell' the judge what to do, some other criteria must suffice. This is worsened by the fact that every precedent can be read broadly or loosely, or even 'confined to the facts'.

Also very problematic is the combination of the meaning/application of certain terms such as 'reasonableness', 'fairness' etc. These terms are highly contextual and are so broad that they cannot guarantee any particular result.

Thus if legal reasoning cannot guarantee a result how are decisions made? Evidently there must be some other (perhaps unconcsious) criterion that goes into the decision, this is where material conditions make their impact.

No comments: