On the Indeterminacy Crisis: Critiquing Critical Dogma

Abstract

Critical legal scholarship challenges the liberal claim that modern western societies are characterized by "the rule of law." The liberal conception of the rule of law, critical scholars contend, serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system. Frequently, the claim that legal rules are indeterminate is the starting point for such a critique of the rule of law. What I call the indeterminacy thesis goes roughly like this: the existing body of legal doctrines-statutes, administrative regulations, and court decisions-permits a judge to justify any result she desires in any particular case. Put another way, the idea is that a competent adjudicator can square a decision in favor of either side in any given lawsuit with the existing body of legal rules. This article critiques the indeterminacy thesis as it has been developed in critical legal scholarship. Two assumptions related to the indeterminacy thesis are widely held by critical scholars. First, much critical scholarship assumes that the indeterminacy thesis always accurately describes legal phenomena. Second, critical scholarship frequently assumes that the indeterminacy thesis plays an important role in support of a related thesis, the mystification thesis- the claim that legal discourse conceals and reinforces relations of domination. I explore the problematic character of both of these critical claims and suggest that critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite. Finally, I suggest that adherence to a strong view of indeterminacy is actually counterproductive to the program of critical scholarship.

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