Law, Language and Legal Indeterminacy
Legal indeterminacy is an important issue of legal theory in 20 century. Legal indeterminacy means that law can not provide unique correct answers to legal questions. In short, Legal indeterminacy includes indeterminacy of legal sources, legal interpretation and legal reasoning. Legal realism, legal positivism, natural jurisprudence, critical legal studies, feminist legal theory, critical race theory and legal argumentation respectively claim legal indeterminacy (or determinacy). A claim about legal indeterminacy could be divided roughly into three broad categories: descriptive theories, analytical or conceptual theories and normative or critical theories. Descriptive indeterminacy theories purport to state the facts that law can not determinate outcome of particular cases. Legal realist\'s claims of indeterminacy concerned the facts that American judges decided cases with extra legal factors. Their claims are pure descriptive claims of indeterminacy. Normative indeterminacy theories do not concern the facts that law can not determinate legal outcomes, but purport to change current situation of judicial adjudication. The indeterminacy claims of critical legal studies, critical race theory, feminist legal theory and deconstructionist legal theory belong to critical indeterminacy theories. Conceptual indeterminacy theories explore whether law is necessarily indeterminate. Legal positivists, legal interpretivists and natural legal theorists make conceptual indeterminacy claims. Modern analytical jurisprudence tends to believe that conceptual analysis is a tenable approach to research conceptual indeterminacy claims. Conceptual analysis can not only explain what is "important" about legal practice, but also evaluate that a conceptual theory is better than an alternative.The questions of legal indeterminacy often turn on claims regarding the basic nature of language. Language is the medium through which law acts. Language is commonly indeterminate and law is expressed in language, so that the requirements of the law in particular cases are frequently indeterminate. Semantic skepticism, defeasibility, vagueness, ambiguity, family resemblances, contestability, incompleteness, incommensurability and indeterminacy of translation are sources of indeterminacy. But linguistic indeterminacy is relative, the claims of radical linguistic indeterminacy is untenable. Therefore, legal indeterminacy is relative. Haitian legal positivism and Dworkinian legal interpretivism make two main conceptual claims about indeterminacy. Hart\'s claim about indeterminacy was based on a theory of the open texture of language. Hart argued that judges deciding hard cases must exercise judicial discretion because legal rules have open texture in hard cases. Hart\'s discussion of hard cases was too simple. Judges deciding cases which are \'open textured\' can exercise judicial discretion. But they should develop a kind of legal argumentation to constrain judicial discretion. Dworkin rejects Hart\'s argument about the need for judicial discretion in hard cases and makes right answer thesis. According to the thesis, all (or nearly all) legal questions have a unique right answer. Dworkin believed that any problems created by language could be circumvented. However, the interpretative approach of Dworkin on which right answer thesis was based could not be generally applied to other legal systems. The interpretative approach fails to discover the significance of legal practice. This approach neglects the importance of authority and the importance of consensus in legal practice. Furthermore, Legal indeterminacy is not necessarily a deficit in the rule of law. If indeterminate judicial decision is correct, objective and predictable, indeterminacy don\'t threaten the ideal of liberal rule of law. Legal indeterminacy means that judges deciding hard cases must exercise judicial discretion and make fresh law. Judicial discretion and judicial legislation require legal theory to develop a kind of complicate and delicate theories of adjudication. Therefore, the research of legal indeterminacy leads to legal methodology.