Currently, legal scholars agree that in some cases legal rules do not specify a definite outcome.
Topic
The debate over how much indeterminacy (uncertainty) exists in legal rules and judicial decisions, focusing on mainstream legal scholars versus the "realist" philosophers.
Framework
Present Debate
Main Point
While most modern legal scholars believe that indeterminacy in law is limited to a few vague cases, the earlier "realists" argued that indeterminacy is widespread, affecting both the language of legal rules and the ambiguity of judicial precedents. ( — end of paragraph 1, and explained throughout.)
P1: Two Competing Views on Legal Indeterminacy
Most current scholars say legal rules are usually clear and only sometimes vague, but an earlier group called "realists" thought that uncertainty is much more ingrained and widespread throughout the entire law.
P2: Linguistic Vagueness and Overlapping Rules
The realists believed that every legal case involves multiple overlapping rules, each with possible vagueness. This means ambiguity can crop up at many different points, making almost every legal case potentially indeterminate.
P3: Indeterminacy in Judicial Precedents
Beyond language, the realists saw even more uncertainty in how courts interpret earlier cases. The distinction between what is "essential" and "nonessential" in judicial decisions (holdings vs. dicta) is not clear-cut in practice, so later judges can reinterpret past rulings differently. This gives judges a lot of freedom (leeway) and makes it possible for them to choose conflicting rules from the same precedent, increasing indeterminacy in the legal system.