Florida State University College of Law Scholarship Repository Scholarly Publications Fall 2012 Against Certainty Shawn J. Bayern Florida State University College of Law Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Law Commons Recommended Citation Shawn J. Bayern, Against Certainty, 41 HOFSTRA L. REV. 53 (2012), Available at: https://ir.law.fsu.edu/articles/43 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Scholarly Publications by an authorized administrator of Scholarship Repository. For more information, please contact
[email protected]. AGAINST CERTAINTY Shawn J. Bayern* I. INTRODUCTION 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;1 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.2 There are many reasons that certainty has at least a superficial appeal in legal reasoning. For one thing, it may comport with analytical philosophers‘ desires for conceptual clarity; a pragmatic or pluralist mode of analysis may appear unprincipled, intellectually incoherent, or simply unhelpful to those who promote formal argumentation.3 For * Assistant Professor, Florida State University College of Law.