LEGAL INDETERMINACY IN CONTEXT DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Scott Alan Anderson, J.D. * * * * * The Ohio State University 2006 Dissertation Committee: Approved by Professor Dan Farrell, Adviser ______________________________ Professor Stewart Shapiro, Co-adviser Adviser Professor Don Hubin ______________________________ Co-adviser Philosophy Graduate Program ABSTRACT The debate in legal theory over whether judges’ decisions are adequately constrained by law is predicated on a more fundamental issue, namely, whether law is indeterminate. In short, if the law has “gaps”, then judges might be permitted to use discretion to settle cases calling for an application of the indeterminate law. In the debates over legal reasoning and legal indeterminacy, an even more basic issue is often overlooked, however: what is the source of legal indeterminacy? Three theorists have offered descriptions of alleged “gaps” in law by emphasizing three distinct sources of those gaps. Oliver Wendell Holmes is committed to an ontic approach, focusing on the systemic “gaps” inherent in a system requiring judges to determine law by finalizing it. H.L.A. Hart offers a semantic approach, focusing on the linguistic “gaps” in legal terms that exhibit an “open texture”. Ronald Dworkin offers an epistemic approach to account for what others take to be indeterminacy in law, describing the alleged legal “gaps” as judicial uncertainty in locating and applying relevant political principles to determine law in difficult cases. Philosophers have also taken ontic, semantic, and epistemic approaches to describing the similar phenomenon of vagueness. None of these accounts seems satisfactory, however. In response, contextualist theorists have offered an alternative approach. In particular, Stewart Shapiro has recently described vagueness within the ii context of an ongoing conversation. Vagueness, on this view, is described as borderline cases of open-textured terms that give evaluators discretion to decide those cases either way. Since Shapiro and Hart both employ Friedrich Waismann’s notion of “open texture” to describe vagueness and legal indeterminacy (respectively), a reconstruction of Hart’s theory on contextualist grounds is in order. The reconstructed view of Hart, termed “legal contextualism,” describes legal indeterminacy, not as a semantic defect of open-textured terms, but rather as a borderline case in which judges have the discretion to apply or not to apply open-textured terms in settling disputes. Legal contextualism answers the main arguments against Hart’s initial theory. Legal contextualism also suggests a starting point for the indeterminacy debate—confusion over the suppressed systematic ambiguity of the term “law”. iii Dedicated to my mother and father, Warren and Delores Anderson, who instilled in me the value of education, and to my wife, Sue, who supported me in pursuing it. iv ACKNOWLEDGMENTS I am grateful to each member of my dissertation committee. My adviser, Dan Farrell, was the consummate advocate, consistently encouraging and steadfastly supporting me. Without his unflagging concern, his tireless enthusiasm, and his insightful comments, this dissertation would not have been completed. My co-adviser, Stewart Shapiro, provided not only the theoretical focus for my thoughts about Hart and legal indeterminacy, but also a stimulating academic environment. His dialectic skill is surpassed only by his generosity. Professor Don Hubin provided many helpful stylistic and substantive suggestions that helped me to clarify the arc of the overall project. I thank you all. I also wish to thank Justin D’Arms, Graduate Studies Committee Chairman, and Debra Blickensderfer, Graduate Secretary for the Philosophy Department, who consistently and confidently guided me in all things administrative. I wish to thank my friends and family members who, through their unselfish act of listening to me blather on about things for which they could not have cared less, encouraged me more than they might realize. Chief among them are Chris Ebert, Kyle Timken, Dr. Wayne Nicholson, and Dr. Paul Hailey. Finally, I wish to thank my high school teacher, Mr. Robert Uritis, who formally introduced to me to philosophy as a subject of serious study. v VITA January 14, 1964……………............ Born in Cincinnati, Ohio 1986………………………………... B.A., Philosophy The Ohio State University Columbus, Ohio 1991………………………………... J.D. Case Western Reserve University Cleveland, Ohio 1992-1997………………………….. Assistant Prosecuting Attorney Licking County, Ohio 1997-present……………………….. Staff Attorney Ohio Criminal Sentencing Commission 2000-2002…………………………...Graduate Teaching Associate The Ohio State University Columbus, Ohio FIELDS OF STUDY Major Field: Philosophy vi TABLE OF CONTENTS Page Abstract…………………………………….……………………………………………..ii Dedication………………………………………….…………………………………….iv Acknowledgments………………………………………………………………………..v Vita………………………………………………………………………………………vi Chapters: 1. Legal indeterminacy and its sources……………………………………………...1 1.1 The ontic approach…………………………………………………..……9 1.2 The semantic approach…………………………………………….….....14 1.3 The epistemic approach……………………………………………….....23 1.4 The continuing problem………………………………………………….36 2. Parallel approaches to the problem of vagueness………………………………..40 2.1 The epistemic approach……………………………………….................53 2.2 The semantic approach……………………………………………….….55 2.3 The ontic approach………………………………………….…………...62 2.4 The continuing problem…………………………………….…………...64 3. The contextualist approach to vagueness………………………….…………….70 3.1 Psychological contextualism……………………………….................…76 3.2 Conversational contextualism…………………………………….…..…81 4. A contextualist approach to legal indeterminacy……………….……………....105 4.1 Consensus and “open texture”…………………….…….……………...107 4.2 Legal indeterminacy and vagueness……………….…….……………..113 4.3 Hart’s account of “open texture”………………….…….……………...118 4.4 A reconstruction of Hart………………………….…….…..…………..127 4.5 Legal contextualism……………………………….…….…………..….134 4.6 Distinguishing legal and conversational contextualism….………….…151 vii 5. The contours of legal contextualism……………………………………………161 5.1 Dworkin’s argument from political principles…………………………168 5.2 Dworkin’s argument against legal semantics…………………………..176 5.3 Dworkin’s argument against legal vagueness…………………………..189 6. The lingering problem of contextual ambiguity………………………………..205 6.1 Language strata…………………………………………………………211 6.2 Legal strata……………………………………………………………...216 6.3 A research program for legal contextualism……………………………236 Bibliography……………………………………………………………………………243 viii CHAPTER 1 LEGAL INDETERMINACY AND ITS SOURCES Nearly thirty years ago, the English legal philosopher, H.L.A. Hart, diagnosed what he took to be the primary problem in American jurisprudence.1 Hart claimed that the American theorists’ intense scrutiny of adjudication—the process of judicial decision- making—had distorted their perceptions and, therefore, their descriptions of law. According to Hart, this judge-centric view of law had polarized legal theory. In America, law was either a “Nightmare” or a “Noble Dream”. The writings of Oliver Wendell Holmes, Jr. contained the incipient Nightmare view of law. Holmes had claimed—against the natural law theorists of his day—that law was not some “brooding omnipresence in the sky”.2 Law was not, in other words, a set of eternal principles of human conduct that judges had merely to discover and to apply to actual cases. Moreover, even if law could be divined from principles of natural law, Holmes argued, judges would not be able to apply those principles to the facts of real cases using logical methods alone.3 Judges would have to rely on their own life experiences, at least as much as the accepted rules of inference, to appropriately settle 1 H.L.A. Hart, “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream”, 11 Georgia Law Review 969 (1977). 2 Southern Pacific Co v. Jensen, 244 U.S. 205, 222 (1917). 3 Oliver Wendell Holmes, Jr., The Common Law, ed. Mark DeWolfe Howe (Boston: Little, Brown and Company, 1963), pp. 1-2: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” 1 legal disputes. Because judges could neither discover nor deduce all the specific legal principles necessary to decide actual legal cases, judges would have to settle those cases practically, based on whatever information they deemed relevant. It did little good, then, for theorists to argue about legislative terms, moral principles “behind the law”, or anything other than the opinions courts issued. For Holmes, the law could not be viewed as fixed until a court announced an opinion finalizing it. The job of lawyers and legal theorists, Holmes claimed, was to make the best prediction about what law on a particular issue would be once a court ruled on it.4 Holmes contended that the “prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.”5 A number of American legal theorists, known collectively as Legal Realists,6 took Holmes as their forebear, expanded his “prediction theory of law”, and established