The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation

Abstract

This article suggests that the problem of legal explanation revealed by the Critical theorists can be understood as a particular manifestation of the general problem of historical explanation and that work by philosophers of history can be useful in analyzing this problem. It argues that the inadequacy of doctrinal explanation leads to the emphasis in Critical theory on the motivations of decisionmakers and the explanation of legal results in terms of underlying social and political structures. Moreover, these Critical assertions about legal explanations are generally not subject to proof or refutation in an empirical sense, but are established to the extent that they have altered the questions legal scholars feel compelled to answer about the law.

This Article sets forth and defends the preceding claims through a philosophical account of the Critical concept of legal indeterminacy. It does not seek to analyze or review the written work of any particular theorist, far less, to give a coherent and exhaustive picture of something called "Critical Legal Theory." The impossibility of providing such an account has already been noted by people more capable of accomplishing that task.' Rather, by focusing on and analyzing the concepts of indeterminacy, causation, and explanation, this Article tries to make explicit what I believe is implicit in much of the writing of Critical theorists. Its goal, then, is to set forth a philosophically defensible account of what it means for the law to be indeterminate which comports with some, but certainly not all, of the main aspects of Critical theory."

Part I of this Article makes some preliminary distinctions between prediction and causation and seeks to show how the law can be indeterminate and predictable at the same time. Part II analyzes the problem of legal explanation as a subset of historical explanation and sets forth what I take to be the Critical position that doctrinal explanations of law are never adequate. Part III shows how the Critical concern with legal explanation leads to concerns about motivation
and explanation through social and political structures of thought. Part IV looks at the epistemological status of the Critical claim that the law is indeterminate and demonstrates that, while it is not subject to empirical verification, that claim is, in a sense, already established.

Keywords: philosophy, jurisprudence