Is There Significant Indeterminacy in the Law, and Does it Matter Whether there is?
Is There Significant Indeterminacy in the Law, and Does it Matter Whether there is?
1 Introduction
2 What is “indeterminacy” in law?
2.1 The extent of Law
2.2 Indeterminacy
2.2.1 Indeterminacy in General
2.2.2 Indeterminacy in the Law
3 Sources of Indeterminacy in the Law
3.1 The Open Texture of Language
3.1.1 Vagueness
3.1.2 Ambiguity
3.2 Precedent
3.2.1 Example of Indeterminate Precedents
4 How indeterminate would the law be if the sources of indeterminacy were as section 3 has it
5 What arguments are there for thinking that the indeterminacy is minor?
5.1 Semantic Theories of Law
5.1.1 The Open Texture of Language
5.1.2 The Argument Against Minor Legal Indeterminacy in Semantic Theories
5.2 Interpretivist Theories of Law
5.2.1 Existence of Judicial Discretion in Interpretivism
5.2.2 Philosophical theories showing the existence of indeterminacy
5.2.3 Incommensurability
5.2.4 Recap
6 Why Does it Matter Whether Law is Significantly Indeterminate
7 Conclusions
8 Bibliography
8.1 Monographs
8.2 Articles
8.3 Legislation
8.4 Jurisprudence
8.5 Government Publications
Is There Significant Indeterminacy in the Law, and Does it Matter Whether there is?
1 Introduction:
If a statute says ‘vehicles are not allowed in a park,’ it seems obvious a Cadillac would not be permitted in that park. However, where does the seamless boundary of law end? Is bicycle a vehicle? How about a toy airplane? How about a wheelchair?[1]
The sources of law do not provide answers for every arising fact situation. But is the problem of legal indeterminacy much more widespread than we imagine? Is there in fact significant indeterminacy in the law? If so, how does this play out for the ideal of the rule of law? Does this mean that the decisions judges apply are arbitrary if there is in fact significant indeterminacy in the law?
The aim of this paper is to show that significant indeterminacy exists in the law, and it matters because the law is ultimately resolved by judicial discretion. The approach I take answering this question is separated in five different sections.
The first section defines the extent of what I mean by law, and what “significant indeterminacy” is in the law. The second section describes the sources of legal indeterminacy. The third section discusses whether indeterminacy is truly prevalent in the law by showing the effects on society if law were truly indeterminate. The fourth section discusses whether indeterminacy is in fact minor, and counters that this is not the case. The fifth section discusses why it matters if law is indeterminate, and introduces the concept of judicial discretion.
2 What is “indeterminacy” in law?
In order to determine whether there is indeterminacy in the law, I will first define what I mean by law, and delineate between indeterminacy in general and indeterminacy in law.
2.1 The extent of Law:
Law can refer to two possible understandings: norms that are legally valid, and the actual application of those norms to particular cases.[2] There are several arguments about what law includes. For example, exclusive positivism states all law is source based, and anything that is not source based is not law.[3] Inclusive positivism accepts that moral considerations can determine the application of the law.[4] Interpretivism has it that all legal principles, spoken and unspoken, are apt legal considerations for a judge.
I will assume law applies to the application of the normative legal rules. I will take the exclusive positivist stand that law is only source based (in deciding the sources of legal indeterminacy), but will argue that law is indeterminate even if one takes into account legal principles used in the application of the law.
2.2 Indeterminacy:
Can a judge decide any case any way he or she wants to because the law is not clear? If this is the case, then indeterminacy can exist in both the law and the factual circumstances that exist in the actual application of the law. However, the purpose of my paper is to focus on the existence of legal indeterminacy as opposed to other forms of indeterminacies. The next part of my paper separates indeterminacy in general and indeterminacy in the law.
2.2.1 Indeterminacy in General
Indeterminacy in general can exist when factors outside the law impact how a case is decided, despite the existence of rules prescribing certain outcomes.[5] For example, a trial judge may be too drunk to properly instruct a jury, or may be corrupt and rule in a manner contrary to what the law prescribes. Although this area is important in the application of the law, it is not the cause of indeterminacy in the law.
Rather it could be viewed that judicial corruption (for example) may be validated because of the indeterminacy in law. I will not dwell on this subject, as it is too subjective, and it is impossible to know the thought processes of a single judge, let alone the judicial profession.
2.2.2 Indeterminacy in the Law
Indeterminacy in the law specifically refers to whether the law runs out at certain points, and where other considerations are used in place of law to adjudicate a case.[6] Indeterminacy pertains to the normative aspects of the law. This is shown through Hart’s example of what constitutes a vehicle for the purposes of a law stating: “vehicles are not allowed in a park.”[7] Hart’s contention is indeterminacy of this sort is restricted to a small penumbra of cases falling on a dotted border of uncertainty, which can only be solved through judicial discretion.[8]
The view opposing Hart is that much of law comes down to judicial decision-making, and that this small penumbra is significant in nature. Significant indeterminacy holds the following dialogue correct: “what outcome should legally result from fact scenario X”; responded by “any answer decision a judge makes would be the correct answer, as the law allows for both outcomes.”
3 Sources of Indeterminacy in the Law
For the purposes of this paper, legal indeterminacy is primarily caused by the open-texture and ambiguity of language. Precedent does not solve these indeterminacies.
3.1 The Open Texture of Language:
The law is built on language. Language is inherently indeterminate. Therefore, it follows that law is inherently indeterminate. Several aspects of language cause significant legal indeterminacy: vagueness; and ambiguity. The next section examines how these linguistic aspects cause significant legal indeterminacy.
3.1.1 Vagueness:
Vagueness exists in an expression if that has borderline cases.[9] These expressions are marked by imprecision.[10] Imprecision is caused by the “open texture” of language,[11] and the application of this expression can lead to disagreement between reasonable people on the application of that expression.[12]
The law is littered with vague concepts such as “reasonable.” Vagueness is not restricted to legal nomenclature, but applies to everyday words. For example, does a sandwich include a hamburger? Like all sandwiches, a hamburger is covered by two pieces of bread. But the meat in a sandwich is prepared differently than the middle of other sandwiches.[13] Arguments if a hamburger is a sandwich can be debated at great length. Another example pf vagueness is when Bob tells Jane to “get enough bananas,”[14] and where Bob does not give clear instructions what “enough” means. Ultimately, defining: what a sandwich is; how many is “enough;” or what “reasonable” is; will be decided by someone’s discretion.[15]
Dworkin argues vague words do not necessarily lead to indeterminacy in the law;[16] thus “reasonable” or “enough” can be clearly defined. For example, if we have a proposition that “X is P” is either “true,” “false,” or “neither-true-nor-false,” then the “neither-true-nor-false” claim leads to indeterminacy. Dworkin argues that if “X is P” is not “true” (“X is P” is either “false,” or “neither-true-nor-false”), then “X is P” is not true.[17] Dworkin’s argument draws a clear line between “X is P” and the rest of the universe.
"X is P" is true
"X is P" is neither-true-nor-false
"X is P" is false
The question that needs to be asked is whether a bright line can be drawn in cases of vagueness. Is there really a clear point of certainty that either “‘X is P’ is true” is true, or “‘X is P’ is true” is false?
While it is true there is some cut-off point with vague terms, there is no particular point at which it is true that particular point is the cut-off point.[18] For example, if there was a grain of sand, we could assert one grain of sand is not a pile of sand. If we added one grain of sand, we would then have two grains of sand, and still not have a pile of sand. If we repeated this process, and put in 10 thousand grains of sand, we would have a pile of sand. So at what point does a pile of sand clearly exist?[19] If 5000 grains of sand were chosen to create a pile, the question that must be answered is why 5000 grains of sand makes a pile as opposed to 4999 grains sand? What about 4000 grains of sand, or 6000 grains of sand? Argument will exist about what a pile of sand is in a significant area of non-clarity since there is no precise definition clearly stating what a pile of sand is.[20]
This resulting paradox of vagueness creates infinite results. Although vagueness can exist in an approximated numerical value, it is in this approximated numerical area that infinite results exist. Revisiting the ‘what constitutes a pile of sand’ example, who is to say that it is a grain of sand that becomes the marker of when a pile of sand exists instead of a particle of sand, or a molecule of sand? The fact is there can be infinite breakdowns within this approximate area of when a ‘pile of sand’ exists.
3.1.2 Ambiguity:
Ambiguity, like vagueness, leads to different interpretations of the law. However, ambiguity leads to several distinct possibilities[21] as opposed to infinite possibilities in vagueness. An example of ambiguity is as follows:
Driver: Do I turn left? Passenger: Right[22]
The answer the passenger gives does not answer the driver’s question. Based on the passenger’s answer, the driver could choose either left or right, and still follow the passenger’s instructions.
3.2 Precedent:
The importance of precedent is it provides an interpretation for the rules that make up a legal system. The more precedents there are, the more likely it is that the gaps in a legal system will be filled.[23]
Kress and Dworkin advocate this position. Their rational for holding this view is that an advanced legal system “thick with constitutional rules and practices, dense with precedents and statutes”[24] will create a lower probability of ties, resulting in more determinate law.[25] The more precedents a judge has, the more likely it is a judge will be able to find something that decides how a case should be adjudicated.
There are several objections to the idea that precedent eliminates indeterminacy. In this section of the paper, I examine how precedents can be differentiated, and how precedents do not adequately address changing societal needs. The section discussing interpretivism (section
5.2.3) will examine how increased precedents do not necessarily lead to the elimination of ties, as incommensurability exists within precedential value.[26]
Precedents can be differentiated from one another. The assumption that each case fits nicely into a previous set of facts is fallacious because almost every case is different from its predecessor case. As such, a Court has the opportunity to whittle away at precedent by picking and choosing which aspect of a precedent should hold in the case at hand. In fact, as precedents increase, law itself becomes indeterminate because a judge will have available to him or herself two (or more) different, contradictory doctrines of precedent.[27] The very nature of the legal system, adversarial in nature, allows for its litigants to prepare to the best of their abilities, an account of how the law should be applied to their circumstances.[28]
Precedents themselves do not provide answers with the emergence of new technology. The following example elucidates the contention that the application of precedent leads to different results for emerging technology, as two lines of argument are available to the judge deciding a case.
3.2.1 Example of Indeterminate Precedents
The following examines whether the monthly connection charges of a Blackberry Unit are consumable supplies under the Canadian Income Tax Act[29] (ITA).
Would an employee be able to deduct the monthly connection charges of a Blackberry unit under s. 8(1)(i)(iii)[30] where i) the listed charges are paid by the employees, ii) the purchase of these items are an employment requirement? The ITA states that an employee can only deduct items considered supplies if they are consumed directly in the performance of the employees’ duties, and the employer requires the employees to supply and pay for these items.[31]
The historical understanding by the courts regarding “supplies that were consumed” are supplies must be used up during the taxpayer’s employment, and be unfit for later use.[32] Items not used up are equipment, and are not consumable supplies; for example, the gasoline used in a blowtorch is a consumed supply, but the blowtorch is not.[33]
The meaning of “supplies” has expanded to include items not directly consumed in the course of employment. For example, a book supplied by a professor for the preparation of his class, [34] the payment of a basic monthly telephone service and a monthly rental fee for a pager[35] were considered to be supplies, despite the fact they were not consumed.
The Canadian Customs and Revenue Agency’s (CRA) approach to supplies that were consumed is consistent with the above precedents. CRA treats “supplies,” under s. 8(1)(i)(iii), to mean materials are used up directly in the performance of the duties of employment,[36] and includes items like the cost of gasoline and oil used for power saws, or long-distance telephone calls or cell phone air time. Supplies do not include monthly phone service charges, or fees to connect or license a cell phone.[37]
CRA does not permit an employee to deduct the cost of acquiring a cell phone from employment income,[38] and considers items like cell phones, fax machines and computers to have capital cost attached to them.[39] CRA disallows basic telephone fees because they are personal.[40]
However, recent cases have bucked this trend, and recognized that interpreting the ITA in its classical sense would be patently absurd.[41] The Tax Court of Canada (TCC) has stated that the monthly cost of a cell phone and pager are supplies that are consumable, and can be deducted for the purposes of s. 8(1)(i)(iii), as the distinction drawn under Interpretation Bulletin IT-352R2 between consumable and non-consumable supplies is nonsensical.[42] The Tax Court of Canada has gone even further and ruled that computer software, which by its very nature, does not wear down, is a consumable supply that can be deducted by an employee under s. 8(1)(i)(iii) if the employee implicitly required updated software for their employment.[43]
As can be seen in the above example, a judge would have the opportunity to decide allow the deductibility, or to not allow the deductibility of the monthly charges, and the initial cost of a Blackberry Unit.
4 How indeterminate would the law be if the sources of indeterminacy were as section 3 has it
Law is significantly indeterminate. A judge has the ability to choose the boundary of vague standards words like reasonable. A judge also has the ability to pick and choose different precedents to claim the correctness of his assertion. Thus, if a judge has the ability to choose differing outcomes based on legal considerations, it follows that the law is significantly indeterminate.
What are the effects on a society if the law is significantly indeterminate? If we take a soccer game as an example, where the rules are set, could a referee decide when a goal counts and when a goal does not count? Could a referee hand out penalties on a whim and be correct in handing out those penalties because the rules may be indeterminate?[44]
Many legal scholars contend the view that the law is determinate because legal determinacy validates judicial authority, and subsequently, the government. Many legal scholars hold judicial legitimacy depends on judges applying the law and not creating their own: judicial decisions are legitimate only if judges are constrained either completely or within narrow bounds.[45] An unconstrained judiciary would create indeterminacy in the law, which calls into question the legitimacy of a government. If law is indeterminate, a government is arbitrary because a) it gives effect to the unconstrained will of the rulers; b) does not treat like cases alike; and c) it does not tell its citizens where they stand, and what their rights and duties are.[46] The underlying feature of these three features is that rules would be applied inconsistently.
Therefore, these legal scholars contend that in order to determine if there is significant indeterminacy in the law, judges must a) either decide on their own without reference to the law; or b) their must be rampant inconsistency in the law.
Can a judge come to any decision they want, and be unconstrained by the words of a statute? Generally speaking, judicial decisions are cloaked in the language of the law. We do not see judges saying that the law has run out at this point, or that a decision cannot be reached in this case because the law is vague.[47] Instead, judges ground themselves in legal reasoning. Judges, as well as lawyers argue that their understanding is rooted in what the law says, despite the fact there are different readings or understandings of that law.[48] If it is possible to come to different understandings of the law due to different readings of the law, it would be an impossible task to figure out if a judge decided a case based on their own opinions, and then cloaked their decision using the language of the law.
The other possibility is an inconsistent application of the law. If law was truly indeterminate, the law would not be able to guide the lives of people, and chaos would arise. As well, those who deal with the legal system would be unable to predict how a judge would decide a case. However, experienced lawyers are able to predict how a judge will decide a given set of facts. If they did not, they would most likely be unemployed.[49] Experienced lawyers can predict a decision based on their ability to analogize a set of facts to previous sets of cases:[50] if it looks like a duck, and walks like a duck, it is probably a duck. As well, our society is one where chaos does not exist.
So, if lawyers can predict the outcome of a given case by the application of facts to the law, does this mean that the law is determinate, or does this mean that something else guides judicial decisions? The next section looks at arguments asserting that indeterminacy in the law is not significant.
5 What arguments are there for thinking that the indeterminacy is minor?
Two major arguments exist stating that indeterminacy in the law is minor. The first argument is a semantic understanding of the law, premised on the idea that shared understandings of the law will lead to minor indeterminacy in a small penumbra of cases due to misunderstandings. The second argument is premised on the idea that judges can use “political morality” and “fit” to decide cases that may not seem certain, and thus, the law always having a right answer. I will explore these arguments, and counter their assertions.
5.1 Semantic Theories of Law:
This section looks at Hart’s theory of legal determinacy. It discusses what Hart means by the open texture of language, and how legal indeterminacy applies only to “hard cases.” I will also introduce the concept of “easy cases,” and the idea that they are prevalent in the legal system. I will follow by arguing against Hart’s contentions about how the open texture of language only applies to “hard cases” and the notion of widespread “easy cases” can be discounted due to the nature of the adversarial system.
5.1.1 The Open Texture of Language:
One possible explanation to moderate legal indeterminacy is Hart’s theory concerning the open texture of language.[51] This open texture is an area of language that needs to be developed by the courts or officials, in light of competing interests varying in weight from case to case.[52] These cases exist on the fringe of language. For example, if there was a rule prohibiting vehicles from entering a park, one could easily understand that to mean that a car would not be allowed in a park. It is at the fringe cases of language where indeterminacy arises. For example, would a bicycle count as a vehicle?[53]
Hart believes indeterminacy in the law is necessary, but not significant in the vast majority of cases, because the vast majority of law does not require fresh judgment.[54] The reason Hart says legal indeterminacy does not extend to easy cases is that any general term in a natural language has a central “core” of determinate meaning and a surrounding “penumbra” of indeterminate meaning,[55] and that the rule of recognition provides for supremacy in the legal system and is the rule, conferring validity on all legal actions in the legal system. Hart is clear that the rule of recognition exists in the legal system, and is accepted in the internal statement of validity made by those who use it in identifying the law. A very important feature of the rule of recognition is that there must be unified or shared official acceptance of the rule of recognition by the officials of the legal system, and these officials must accept and endorse it from the internal point of view.[56]
The most common argument against significant indeterminacy in the law are “easy cases.” The overwhelming majority of individuals’ actions give rise to determinate legal consequences.[57] For example, walking one's dog does not violate the antitrust laws; smoking a cigarette does not offend the constitutional prohibition against third-term presidencies. Kress argues hard cases only exist in appellate and higher courts, where the law may be in question. Kress asserts his position by showing that only 4% of cases have dissenting opinions.[58] If significant indeterminacy existed in the law, judges would disagree with one another on the application of the law.
5.1.2 The Argument Against Minor Legal Indeterminacy in Semantic Theories:
The arguments against semantic theories are twofold. The first argument focuses on how shared understandings of the law do not explain the vast amount of legal actions in today’s society. The second argument provides counterarguments against the idea that easy cases are prevalent.
5.1.2.1 Shared Understandings:
The problem of Hart’s theory and the reliance of the rule of recognition, which insists lawyers all follow certain linguistic criteria for judging propositions of law[59] is that his theory cannot explain theoretical disagreement in legal practice due to the assumption that lawyers share uncontroversial tests provided by the conventional meaning of the word “law” for the truth of propositions of law.[60] If this were the case, the only forms of disagreement that could exist are empirical disagreement[61] or theoretical disagreement relating to what propositions make the law true.
Dworkin argues that “if legal argument is mainly or even partly about pivotal cases, then lawyers cannot all be using the same … criteria for deciding when propositions of law are true or false.”[62] Thus, if disagreement only occurs in difficult/pivotal cases, how is it possible that lawyers could disagree about easy cases?
Dworkin’s argument does not presuppose that people never share criteria for the application of a word: he says that there may be such shared, uncontroversial tests for the application of a word like ‘book’.[63] However, Dworkin does refute the existence of easy cases using a consistent interpretive theory that is applicable to both clear and unclear cases.[64] The next part of my argument argues against the existence of easy cases.
5.1.2.2 Easy Cases:
One must clearly be able to define what it is that makes an “easy case” an “easy case” as opposed to a “hard case.” However, such definitions do not exist. It would be naïve to think that any lawyer regards their case to be an easy case, especially when law is loaded with indeterminate language. For example, when O.J. Simpson was charged with the murder of Nicole Brown Simpson: key DNA evidence and Brunomali shoes linked O.J. Simpson to the crime scene. However, in order to be convicted of such a murder in a criminal court, O.J. had to be convicted beyond a “reasonable doubt”. Vague language like “reasonable” creates indeterminacy in the application of the law.
One can look through all existing cases, and will not find a clear line delineating the existence of “easy” and “hard” cases. In fact, Professor Schauer has already tried to look through these cases to find a bright line dividing hard and easy cases. His quest of looking through Supreme Court cases, Appellate Court Cases and trial level cases did not have any luck in ascertaining any such bright-line.[65]
Just because a dividing line does not exist does not explain why: a) most judgments lack dissents by a judge; and b) more actions do not go to trial where there is legal indeterminacy.
Stating that the legal system is not significantly indeterminate because the fraction of dissenting opinions is 4% makes two claims about the present legal system that cannot be quantified. The first point is the assumption that a significant number of judges have the will and time to write dissenting judgments. This may not be plausible when the legal system is overcrowded, overburdened, and undermanned.
Secondly, it assumes judges feel compelled to write judgments because it makes a difference in a future case. However, this is not always the case. The fact is our legal system pays homage to the concept of stare decisis. A litigant may not find a dissenting judgment to help their case because it allows opponents to use an argumentative tactic that explicitly states that opinion was made in dissent, and that precedent should be followed.[66]
With regards to the assertion of why more claims do not go to court, Kress assumes the reason is legal determinacy. Kress’ arguments are premised on the notion of a ratio of easy cases to hard cases. His premise works if one assumes that every legal action that can be appealed, are appealed. This is clearly not the case, it is easier for most people to just abide by what a judge says, and believe what a judge says to be true, as opposed to fighting[67] due to asymmetric information.
Kress’ argument also implicitly assumes everyone has the necessary resources to go ahead with a legal action. However, most people in everyday life do not contest a law that is indeterminate because it is expensive. Where legal indeterminacies exist, people engage in a cost benefit analysis to see whether it is worthwhile to challenge an existing law.[68]
If we took the example of whether an employee would be able to deduct a Blackberry Unit from their income tax,[69] an employee would only bring such a claim if their it was worth their while. We can adduce this mathematically. Let: P = probability of winning; X = what a person wins; C = costs of litigating. Assuming one is risk neutral, one would only litigate if PX > C. If people are risk averse; someone would litigate if (PX + Ø) > C; where Ø represents how risk averse that person would be. These simple equations do not take into account everyone’s risk levels, and barriers to knowledge. We can generally suppose that most people will not go to court regarding the deductibility of a Blackberry Unit, but will wait until someone with enough resources will litigate this case.
The above arguments show that there are significant areas of the law that have yet to be determined, and that a judge’s task is never easy in applying which line of reasoning ought to be used.
5.2 Interpretivist Theories of Law:
One approach that may justify insignificant legal indeterminacy is a theory of interpretivism. Interpretivism is the view that legal rights and duties are determined by a scheme of principle providing the best justification of certain political practices of a community.[70] Ronald Dworkin could be attributed as the founder of interpretivism. Dworkin believes that the law always provides a right answer. In Law’s Empire, Dworkin repeatedly asserts a judge finds law because finding law is a ‘constructive interpretation’ of legal practice.[71] A constructive interpretation is an interpretation that simultaneously fits the facts of the practice (or other object of interpretation) and portrays it as a practice that achieves its purpose.[72]
Dworkin explicates this point clearly. He claims that law is the best justification of settled propositions.[73] He argues there is always a right answer in any legal scenario because a judge will have a plethora of settled propositions and principles to sift through to get the correct answer. Two dimensions: the dimension of “fit”; and dimension of “political morality”, determines these principles.[74] “Fit,” supposes one political theory is a better justification than another in adjudicating a case. “Political morality” deduces that if the justifications are equal, one justification is superior to another if that justification comes closer to capturing the rights people in fact have, as a matter of political or moral theory.[75]
Kress defends Dworkin’s views on this point.[76] He argues it would be difficult to establish conflicting principles are frequently of equal weight, so that they balance to a tie, leading to indeterminacy between the outcomes urged by the respective conflicting principles.[77] Kress gives us an example where one principle is pitted against another counterprinciple. If principles were randomly distributed among the three categories, then we would expect ties one third of the time.[78] If there were twenty categories of strength of principles, we would end up in a tie 1/20th of the time.[79] In fact, Kress’ theory can be imputed mathematically to represent indeterminacy: 1/X where X is the number of principles. If we graph Kress’ and Dworkin’s theory, we would have the following:
As there are increasing legal principles in any legal system, the likelihood of indeterminacy is nill.
However Dworkin and Kress’ theory that legal principles can solve the problem of legal indeterminacy is flawed on two counts. The first account is the assumption that a judge will have access to all the principles in a legal theory, the second is incommensurability. I will first show that there are instances of judicial discretion, and will then show that judicial discretion is significant due to the incommensurability of legal principles.
5.2.1 Existence of Judicial Discretion in Interpretivism:
As discussed above, Dworkin and Kress argue that norms, fit, and political morality can lead a judge to a right answer. In fact Dworkin argues that in order for incommensurability of principles guiding a judge to exist:
The argument that I am wrong must therefore be a philosophical argument. It must challenge my (Dworkin’s) assumption that in a complex and comprehensive legal system it is antecedently unlikely that two theories will differ sufficiently to demand different answers in some case, and yet provide equally good fit with the relevant legal materials.[80]
Dworkin also states that an argument against interpretivism must not be merely demonstrated.[81] The reason for his assessment is that even if a case-by-case search shows inconsistencies in decisions that are made, it does not mean that the law did not have a right answer, but the opinions of the judges (and lawyers arguing for a particular case) was wrong.[82]
Dworkin’s arguments for finding a right answer in the law can be refuted both philosophically[83] and pragmatically.
5.2.2 Philosophical theories showing the existence of indeterminacy:
There are two philosophical arguments that show that interpretivism does not always
find the correct answer. The first attacks the claim that the epitome of interpretivism, Hercules, does not have access to all legal principles to justify making the best fit in a community. The second argument shows how Hercules would not be able to delineate a vague case using only “political morality” or “fit.”
5.2.2.1 Access to all Knowledge:
The law cannot be fully spelled out in advance since each explanation for how to apply a rule, principle, or concept will itself require explanation in novel situations or where conflict arises.[84]
Dworkin’s argument rests on the idea that the super-judge Hercules has infinite knowledge and time to find the best fit and political morality of any given society. Yet it is this argument that cannot be true.
Assuming there is a right answer to any given legal problem, how does Hercules know what principles to use in order to produce the best “fit” and “political morality” if he does not have access to the future?[85] If Hercules does not have access to the future in order to find the best “fit” and “political morality” on how the law should proceed, then it follows that whatever decision he makes has discretion; he cannot make the right decision without knowing what the right decision is.[86] This provides one argument that Hercules must use some form of judicial discretion in considering the future, in order to justify what the law is.
5.2.2.2 The Sorites Paradox:
The sorites paradox is the best philosophical example challenging Dworkin’s assumption that in a complex and comprehensive legal system, two theories will differ sufficiently to demand different answers in some case, and yet provide equally good fit with the relevant legal materials.
Consider a statute that bars raves that are too loud. If there were a million raves, where on the one extreme, the rave was barely audible, and on the other extreme, very loud, where would the dividing line of ‘too loud’ be? [87]
If Hercules were to face all million cases, with identical cases, except for the decibel level, he would have to choose a decision to separate between what is allowed and what is not allowed. However, it would seem preposterous to think that the results of one case where the level of music is incrementally higher than other would demand demand different answers, and still provide equally good fit with the relevant legal materials. The fact is that Hercules will have to draw a dividing line at some point, where the principles governing either case will go either way.[88]
For Dworkin to argue that the principle of bivalence is enough to justify this result is not justified.[89] Although the principle of bivalence, where a clear line should be drawn is important, it is a principle where a line must be drawn, and does not mean that a line should be drawn at that particular decibel level.[90]
The problem that arises from this scenario is significant indeterminacy. Since there is no specific reason why Hercules would choose at one point in the spectrum as opposed to another point of the spectrum of uncertainty, those who occupy a vast area of uncertainty will in the end be unsure of whether their rave is too loud to contravene the act.[91]
5.2.3 Incommensurability:
The argument that legal principles (whether they pertain to fit, political morality or precedent[92]) is very powerful. The law’s function is to settle disputes if the principles that can be adduced in support of a claim are the tiniest bit more powerful than the principles against it.[93] A normative argument suggests that it would be difficult to establish that conflicting principles are frequently of equal weight, so that they balance to a tie, leading to indeterminacy between the outcomes urged by the respective conflicting principles.[94]
However, the argument that legal principles can solve indeterminacy fails to the same arguments used by Dworkin against Hart’s positivism, the problem of a semantic sting.[95]
Incommensurability exists when two things (i.e. ideas, reasons, principles, etc.) are not comparable as better, worse, or equally good.[96] “Fit” and “political morality” are incommensurable because there are no units of measurement to quantify their measurements by a judge.[97] In order for legal principles to lead the legal world to a right answer in any given case, there must be a consensus on what the weight attached to those legal principles among lawyers and other legal actors. There could not be any argument which is more powerful, otherwise it would be like arguing about a bank, where one person believes a bank to be by a river, and the other believes a bank to be a place one stores their money.[98]
This does not mean that these principles are not important for a judge to use, it just means that these principles have varying weights that must be determined by a judge on a case-by-case basis.
5.2.4 Recap
The above discussion shows that the words, principles and ideas in law are malleable, and can be significantly indeterminate. We see that a consensus does not always exist on how to define a word, and how much weight needs to be attached to a given legal principle. We have seen that vagueness has the potential to lead to substanital indeterminacy to many people who come with that vague standard. Indeterminacy is only exaspperated by the fact that if one opens a statute, one can see many vague concepts that try to guide the everyday activities of individuals. As such, the next section of this paper looks at why significant legal indeterminacy matters.
6 Why Does it Matter Whether Law is Significantly Indeterminate
Law is significantly indeterminate. It is littered with vague concepts like “reasonable,” and the content of law does not adequately address changing societal activities. Does this mean that a judge will not be able to adjudicate a decision? Does this mean that if competing principles come to a “tie,” a judge will say, “the law is at a tie, the litigants may go home!”? Could a judge a flip a coin and come with the same answer?[99]
What I have discussed above does not have anything to do with how a judge should decide a case, but what I have discussed is that the law itself is significantly indeterminate: there are many possible avenues for argument, and a judge deciding a case can be legally justified in choosing the possible arguments advanced.
The fact is that a judge plays an important part of the legal system: it is the creative role of resolving unresolved disputes about the law.[100] When a statute is written vaguely, a judge has no choice but to determine a meaning. The only way to do this is to understand the social context and give the law a reading that is relevant, fair and just.[101] In fact, the resolution of vagueness is an act of discretion because lawmakers intentionally made the text vague and acquiesced that the judiciary be able to come to a decision depending on changing social circumstances. Thus the exercise of judicial discretion is an application Parliament intended judges to do.
Judges have a duty to give resolution. But the duty to impose resolution cannot tell us more about how judges ought to act than that they ought to guard their capacity to carry out their duty to give resolution.[102]
As well, it is a necessary feature of the legal system to be significantly indeterminate. The reason for this is that an indeterminate legal system allows for flexibility and growth. The law only comes in when society needs guides or instruction on what is the best avenue to proceed.[103] Over-legislating everyday actions would have an effect of banality as no one could, or would possibly know how to navigate through all the various forms of law in order to live under the rule of law.
7 Conclusions:
The purpose of this paper has been to show that law is significantly indeterminate, and despite its indeterminacy, finality exists in cases that need the law due to judicial discretion.
8 Bibliography:
8.1 Monographs
Dworkin, Ronald, A Matter of Principle, (Cambridge: Harvard University Press, 1985).
Dworkin, Ronald, Law’s Empire (Cambridge: Harvard University Press, 1986).
Endicott, Timothy A. O., Vagueness in Law, (New York: Oxford University Press, 2000).
Hart, H.L.A., The Concept of Law, 2nd ed. (London: Clarendon Press, 1994).
Marmor, Andrei, Positive Law and Objective Values, (New York: Oxford University Press, 2001).
8.2 Articles
D’Amato, Anthony, “Legal Uncertainty”, 71 California Law Review 1 (1983), URL =
D’Amato, Anthony, “Pragmatic Indeterminacy,” 85 Northwestern Law Review 148 (1990), URL =
Endicott, Timothy, "Law and Language", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta (ed.), URL =
Kress, Ken, “Legal Indeterminacy,” 77 California Law Review 283 (1989).
Pannier, Russell, “D’Amato, Kripke, and Legal Determinacy”, 27 Wm. Mitchell L. Rev. 881 (2000), URL =
Sorensen, Roy, “Vagueness”, The Stanford Encyclopedia of Philosophy (Fall 2003 Edition), Edward N. Zalta (ed.), URL =
Stavropoulos, Nicos, "Interpretivist Theories of Law", The Stanford Encyclopedia of Philosophy (Winter 2003 Edition), Edward N. Zalta (ed.), URL =
Sinclair, Michael B. W., “Omniscience, Omnipotence, and the Right Answer Thesis” (accessed 25 November 2005), URL =
8.3 Legislation
Federal Income Tax Act, R.S.C. 1985, (5th Supp.), c. C-46
8.4 Jurisprudence:
Luks v. M.N.R.., 58 DTC 1194.
Martyn v. M.N.R., 64 DTC 461.
Carson v. M.N.R., 66 DTC 425, at 425.
Cuddie v. The Queen, 98 DTC 1822.
Sword v. M.N.R., 90 DTC 1798, at 1802.
Fardeau v The Queen, [2002] 3 CTC 2169 (TCC).
Glen v. Canada [2003] TCJ No. 667 (TCC).
8.5 Government Publications:
M.N.R., Interpretation Bulletin IT-352R2, “Employee’s Expenses, Including Work Space in Home Expenses” (26 August 1994, modified on 1 January 1995).
Deductibility of the cost of acquiring a cellular telephone from employment income, Technical Interpretation, September 22, 1989, CRA Document No. 5-8450. (TaxFind).
Employment Expense — fax machine, cell phone etc., Technical Interpretation, December 20, 1994, CRA Document No. 9430840. (TaxFind).
Footnotes
Employee's Internet Fees, Technical Interpretation, Business and Publications Division, September 28, 1998, CRA Document No. 9816945 (TaxFind).
[1] H.L.A. Hart, The Concept of Law, 2nd ed. (London: Clarendon Press, 1994), [Concept].
[2] Andrei Marmor, Positive Law and Objective Values, (New York: Oxford University Press, 2001) at 49, [Marmor].
[3] Ibid.
[4] Ibid.
[5] Russell Pannier, “D’Amato, Kripke, and Legal Determinacy”, 27 Wm. Mitchell L. Rev. 881 (2000), URL =
[6] Ronald Dworkin, A Matter of Principle, (Cambridge: Harvard University Press, 1985) at 19, [AMP].
[7] Concept, supra note 1.
[8] Ibid.
[9] Endicott, Timothy A. O., Vagueness in Law, (New York: Oxford University Press, 2000) at 31, [VIL].
[10] Ibid. at 33.
[11] Ibid. at 37.
[12] Ibid. at 47.
[13] The meat in a hamburger is grilled.
[14] VIL, Supra note 9 at 42.
[15] Ibid.
[16] AMP, supra note 6 at 130.
[17] Ibid.
[18] VIL, Supra note 9 at 82.
[19] Roy Sorensen, “Vagueness”, The Stanford Encyclopedia of Philosophy (Fall 2003 Edition), Edward N. Zalta (ed.), URL =
[20] VIL, Supra note 9 at 68.
[21] Sorensen, supra note 19.
[22] Ibid.
[23] Anthony D’Amato, “Legal Uncertainty”, 71 California Law Review 1 (1983), URL =
[24] AMP, supra note 6 at 140.
[25] Ken Kress, “Legal Indeterminacy,” 77 California Law Review 283 (1989) at 301, [Kress].
[26] Precedents are akin to principles, and are incommensurate: it is uncertain how much weight should be attached to when judging a case.
[27] Kress, supra note 25 at 297.
[28] D’amato Uncertainty, supra note 23.
[29] Federal Income Tax Act, R.S.C. 1985, (5th Supp.), c. C-46 [ITA].
[30] Ibid., at s. 8(1)(i)(iii).
[31] Ibid.
[32] Martyn v. M.N.R., 64 DTC 461 at 465.
[33] Luks v. M.N.R., 58 DTC 1194, at 1198.
[34] Carson v. M.N.R., 66 DTC 425, at 425.
[35] Cuddie v. The Queen, 98 DTC 1822, at para. 11.
[36] M.N.R., Interpretation Bulletin IT-352R2, “Employee’s Expenses, Including Work Space in Home Expenses” (26 August 1994, modified on 1 January 1995), at para. 9.
[37] Ibid. at para. 10.
[38] Deductibility of the cost of acquiring a cellular telephone from employment income, Technical Interpretation, September 22, 1989, CRA Document No. 5-8450. (TaxFind)
[39] Employment Expense — fax machine, cell phone etc., Technical Interpretation, December 20, 1994, CRA Document No. 9430840. (TaxFind)
[40] Employee's Internet Fees, Technical Interpretation, Business and Publications Division, September 28, 1998, CRA Document No. 9816945. (TaxFind)
[41] Sword v. M.N.R., 90 DTC 1798, at 1802.
[42] Fardeau v The Queen, [2002] 3 CTC 2169 (TCC), at para. 16-18. (Fardeau)
[43] Glen v. Canada [2003] TCJ No. 667 (TCC), at para. 11. (Glen)
[44] Concept, supra note 1 at 142.
[45] Kress, supra note 25 at 285.
[46] VIL, supra note 9 at 186.
[47] Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986) at 46, [LE]
[48] Ibid., at 135.
[49] D’Amato, Anthony, “Pragmatic Indeterminacy,” 85 Northwestern Law Review 148 (1990), URL =
[50] Ibid.
[51] Concept, supra note 1 at 123.
[52] Ibid., at 135.
[53] Ibid., at 123.
[54] Ibid., at 135.
[55] Ibid., at 123.
[56] Ibid., at 116-118.
[57] Kress, supra note 25 at 297.
[58] Pragmatic, supra note 49.
[59] LE, supra note 47 at 32.
[60] Endicott, Timothy, "Law and Language", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta (ed.), URL =
[61] Disagreement that could be resolved by looking for the answer, i.e. looking at the ITA to see what rate of taxation applies.
[62] LE, supra note 47 at 42.
[63] Law and Language, supra note 60.
[64] LE, supra note 47 at 353.
[65] Pragmatic, supra note 60.
[66] Ibid.
[67] D’Amato Uncertainty, supra note 23.
[68] Ibid.
[69] See section 3.2.1.
[70] Stavropoulos, Nicos, "Interpretivist Theories of Law", The Stanford Encyclopedia of Philosophy (Winter 2003 Edition), Edward N. Zalta (ed.), URL =
[71] Law and Language, supra note 60.
[72] Ibid.
[73] AMP, supra note 6 at 144.
[74] Ibid.
[75] Ibid. at 142.
[76] Kress, supra note 25 at 332.
[77] Ibid. at 335.
[78] Ibid.
[79] Ibid.
[80] AMP, supra note 6 at 145.
[81] Ibid., at 144.
[82] Ibid.
[83] VIL, supra note 9 at 160.
[84] Kress, supra note 25 at 334.
[85] Michael B. W. Sinclair, “Omniscience, Omnipotence, and the Right Answer Thesis” (accessed 25 November 2005), URL =
[86] Ibid.
[87] VIL, supra note 9 at 160.
[88] Ibid., at 161.
[89] Ibid., at 167.
[90] Ibid.
[91] Ibid.
[92] See section 3.2.1.
[93] Kress, supra note 25 at 335.
[94] Ibid.
[95] VIL, supra note 9 at 72.
[96] Ibid., at 46
[97] Ibid.
[98] LE, supra note 47 at 132.
[99] VIL, supra note 9 at 201.
[100] Ibid., at 198.
[101] Ibid., at 199.
[102] Ibid., at 202.
[103] Ibid.
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