- Title
- Legal indeterminacy in context
- Author
- Anderson, Scott Alan
- Degree
- Doctor of Philosophy, Ohio State University,
Philosophy, 2006.
- Advisor
- Daniel Farrell
- Pages
- 258p.
- Abstract
- The debate in legal theory over whether judges’ decisions are adequately constrained by law is predicated on a more fundamental issue, namely, whether law is indeterminate. In short, if the law has “gaps”, then judges might be permitted to use discretion to settle cases calling for an application of the indeterminate law. In the debates over legal reasoning and legal indeterminacy, an even more basic issue is often overlooked, however: what is the source of legal indeterminacy? Three theorists have offered descriptions of alleged “gaps” in law by emphasizing three distinct sources of those gaps. Oliver Wendell Holmes is committed to an ontic approach, focusing on the systemic “gaps” inherent in a system requiring judges to determine law by finalizing it. H.L.A. Hart offers a semantic approach, focusing on the linguistic “gaps” in legal terms that exhibit an “open texture”. Ronald Dworkin offers an epistemic approach to account for what others take to be indeterminacy in law, describing the alleged legal “gaps” as judicial uncertainty in locating and applying relevant political principles to determine law in difficult cases. Philosophers have also taken ontic, semantic, and epistemic approaches to describing the similar phenomenon of vagueness. None of these accounts seems satisfactory, however. In response, contextualist theorists have offered an alternative approach. In particular, Stewart Shapiro has recently described vagueness within the context of an ongoing conversation. Vagueness, on this view, is described as borderline cases of open-textured terms that give evaluators discretion to decide those cases either way. Since Shapiro and Hart both employ Friedrich Waismann’s notion of “open texture” to describe vagueness and legal indeterminacy (respectively), a reconstruction of Hart’s theory on contextualist grounds is in order. The reconstructed view of Hart, termed “legal contextualism,” describes legal indeterminacy, not as a semantic defect of open-textured terms, but rather as a borderline case in which judges have the discretion to apply or not to apply open-textured terms in settling disputes. Legal contextualism answers the main arguments against Hart’s initial theory. Legal contextualism also suggests a starting point for the indeterminacy debate—confusion over the suppressed systematic ambiguity of the term “law”.
- Subject Headings
- Law ; Philosophy
- Keywords
- indeterminacy of law; vagueness; "open texture"; Hart-Dworkin Debate
Document number: osu1162267088.
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