A Study Of Legal Indeterminacy

• Main Authors: Tung-Ying Wu, 吳東穎
• Other Authors: Shih-Tung Chuang
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/06493191706987011799

碩士 === 國立臺北大學 === 法律學系一般生組 === 98 === There is a close relationship between legal indeterminacy and the rule of law. The implication of legal indeterminacy is, not only damaging the ideal of the rule of law, but also dangerous to personal responsibility which was emphasized by the rule of law. Besides, there will also be a great regression of the function of the rule of law which is to guide people’s behaviors. Contemporary legal philosophy generally disagrees about whether the law is legally indeterminate. Assuming legal indeterminacy, there are lots of explanation of why the law is legally indeterminate. I argue legal indeterminacy is deeply related to language, that is, it is caused by the nature of language. Among the discussions of this issue, I think, Brian Leiter and Brian Bix have the most remarkable ideas and comments. For example, Leiter’s paper: “Legal Indeterminacy” and Bix’s doctorial dissertation: Law, Language and Legal Determinacy. In this essay I will carefully examine Bix’s doctorial dissertation Law, Language and Legal Determinacy, Leiter’s paper “Legal Indeterminacy” and Ronald Dworkin’s single one right answer thesis, to characterize legal indeterminacy and try to give a correct explanation of it. In the first place I will begin with Bix’s discussion about H. L. A. Hart’s notion of open texture and easy case, and then Bix’s critics of theorists who utilize Wittgenstein’s rule-following argument to support legal indeterminacy thesis. Next I will articulate Dworkin’s single one right answer thesis from his paper: “Is There Really No Right Answer in Hard Cases?” which Dworkin criticized several versions of arguments supporting legal indeterminacy. Before I further investigate Dworkin’s critics over legal indeterminacy thesis, I introduce Leiter’s clarification of legal indeterminacy thesis. He separates different versions of legal indeterminacy thesis and develops a very clear theory of legal indeterminacy thesis. In his theory, he argues legal indeterminacy is a phenomenon in which a set of legal reasons could not justifies a single one right outcome in certain legal cases. I then endorse his theory and of legal indeterminacy thesis and utilize it with Bix’s theory to criticize Dworkin’s single one right answer thesis. In addition to Bix’s several considerations which Dworkin’s single one right answer thesis can’t accommodate, I argue Dworkin’s objection to the theory which holds that vagueness causes legal indeterminacy is not successful as well. In the end, I endorse Leiter’s suggestion that the debate over legal indeterminacy actually in a very large part depends on what conception we have about law.