Against Certainty

38 Pages Posted: 1 Feb 2013 Last revised: 6 May 2014

See all articles by Shawn Bayern

Shawn Bayern

Florida State University - College of Law

Date Written: January 30, 2013


In legal argumentation, appeals to certainty and predictability have enormous rhetorical power. This Article argues that their use outstrips their legitimate role in legal analysis. The Article is not literally “against certainty” in the sense that it promotes uncertainty as a good thing in itself; it is just a skeptical consideration of the role of appeals to certainty in legal theory. The Article’s principal contention is that arguments about certainty are often mistaken, that certainty itself is often misunderstood, and that many defenses of certainty in legal rules are tautological, irrelevant, or substantively overstated.

Keywords: certainty, formalism, predictability, precedent, reliance, uncertainty, legal theory, common law

JEL Classification: K10, K12, K13, K19, K00, K40

Suggested Citation

Bayern, Shawn J., Against Certainty (January 30, 2013). 41 Hofstra Law Review 53 (2012), FSU College of Law, Public Law Research Paper No. 624, Available at SSRN:

Shawn J. Bayern (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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