Legal Determinacy vs. Indeterminacy

14 Pages Posted: 13 Jul 2015 Last revised: 26 Mar 2020

See all articles by Suman Acharya

Suman Acharya

Independent; Nepal Rastra Bank

Date Written: July 1, 2015

Abstract

Determinacy and indeterminacy are important area of philosophical contention in legal discipline. Determinacy approach is supported by British Positivism whereas indeterminacy approach is supported by realist school, critical legal study movement, feminism movement, and postmodern movement. In fact, there are three categories of indeterminacy; one is rule skepticism, another is radical indeterminacy and epiphenomenal indeterminacy. Yet, the economic thought of Karl Marx also depicts indeterminacy in law as he supports the end of law and state in communism. However, his assumptions have never been realized in the globe. Conversely, it has established the utmost importance of laws and state in contemporary society. H.L.A. Hart and Dworkin are in favor of under-determinacy. If rule is clear rule has to be applied and if rule is not clear discretionary power to the judges are granted for Hart and principle is applied through constructive interpretation for Dworkin. Nevertheless, both concepts have relevancy to apply in law because determinacy provides strict application of law and indeterminacy provides pragmatic application of law. However, indeterminacy does not support complete absence of law. They have contention only that as society changes faster than law, no law may be sufficient to address the problem of society. So, pragmatic and empirical application of law and interpretation are necessary.

Keywords: Determinacy, indeterminacy, formalism, rule skepticism, radical indeterminacy, epiphenomenal indeterminacy, under-determinacy

Suggested Citation

Acharya, Suman and Acharya, Suman, Legal Determinacy vs. Indeterminacy (July 1, 2015). Available at SSRN: https://ssrn.com/abstract=2625403

Suman Acharya (Contact Author)

Nepal Rastra Bank ( email )

Nepal

Independent ( email )

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