5 - Critical claims

Summary

POLITICAL DETERMINACY

There are two ways of attempting to ground the determinacy condition from a critical and political standpoint, outside the practice of law and judging. One, developed by members of the critical legal studies movement, holds the law up to the claims it is said to make for itself. That is, the law is criticized for failing to deliver on its own pretense though the critic thinks the pretense unfounded. General determinacy of results, it is urged, is one of those claims. Prevailing practices are said to show this claim to be a pretense with harmful implications for our understanding of law, hampering social change. The second seeks to derive the determinacy condition from accepted principles of political morality, notably Rule of Law values said to be implicit in traditional democratic political theory. Neither of these political claims, however, adequately grounds the determinacy condition in a way that threatens the good faith thesis. The reasons for this conclusion help to clarify what it means for a judge to be constrained by the law.

INTERNAL CLAIMS OF THE LAW

Legal indeterminacy claims advanced by adherents of critical legal studies might start with the claims the law makes for itself and question whether the law lives up to its own advertising. To agglomerate several versions of this “internal critique,” the argument is that (1) the law, as conventionally understood at the present time, claims that the outcomes of judicial decisions are generally determined by legal rules.