One of the most significant contributions the CLS movement made to contemporary legal thought was the theory of law’s inherent tendency towards indeterminacy. Yet, despite broad agreement about its importance, what exactly was meant to be the object of this theoretical intervention is frequently misunderstood. As I will argue in the first part of this post, this confusion arises, at least in part, because within the body of literature commonly thought of as CLS, it is possible to discern not one but two very different approaches to formulating the indeterminacy thesis. In the second part of the post, I will show that these two approaches or ‘models’ are not, in fact, mutually exclusive and need not be viewed as contradictory, by offering what one might call a ‘unifying’ account of CLS-style indeterminacy critique. The upshot of this account is that, in its CLSian understanding, indeterminacy should be regarded as a kind of collective experience that legal actors produce as part of their interpretative work, and fight for as part of pursuing their shared political projects.
Two Models of Indeterminacy
The first model – what one might call the conceptualist model – presents indeterminacy as an objective feature of the contemporary legal system that arises from the common tendency of judges, lawmakers, and legal scholars to overestimate the capacity of certain types of concepts to resist interpretative cacophony. Some versions of the argument extend its reach to all abstract concepts, including categories like ‘personhood’, ‘harassment’, and ‘vehicles in the park.’ Other versions limit the focus only to those concepts that are historically central to the ideological framework of classical liberalism and liberal political economy: ‘property’, ‘contract’, ‘consent’, ‘rights’, etc. In either event, the main thrust of the argument remains essentially the same: some concepts that are commonly used in legal reasoning can be validly interpreted in sufficiently many different ways to deprive any legal rule that is built around them of most, if not all, of its problem-solving capacity. As a result, any legal actor charged with interpreting this rule will inevitably have to make use of ‘things’ that lie outside the actual rule itself, which opens the door to all manner of inarticulate major premises, bias, and self-serving agendas and the conclusion that “all law is politics.”
A good illustration of the conceptualist model can be found in the critique of liberal rights-fetishism summarized by Mark Tushnet:
[it is common in the modern rights discourse to] identify highly abstract right[s] whose existence cannot be challenged. … But fundamental indeterminacy makes it impossible to connect [an] abstract right [such as] “autonomy” … to any particular outcome without [taking for granted] a wide range of social arrangements … that another person who believes in “autonomy” might reject.’
The argument here, notes Tushnet, is not just “that abstract rights [can only] get specified in particular legal contexts,” but that they can only “get specified in particular social contexts,” which means that any rule based around such rights will fail to constrain the process of its interpretation even if it were to be made as detailed and precise in content as possible.
The omnipresence of the conceptualist approach in CLS discourse is quite self-evident. One can find its traces in every attempt to subvert or debunk traditional liberal distinctions like public/private or lawmaking/adjudication, as well as in arguments that appeal to ideas like the Derridean ‘dangerous supplement’ or say things like “the substantial indeterminacy of what counts as duress gives judges a lot more power in contract disputes than is commonly recognised.” The lines of genealogical descent that lead to the conceptualist model similarly seem rather obvious. One only has to look at Robert Hale’s work on coercion, Karl Llewellyn’s canons of interpretation, or Felix Cohen’s article on transcendental nonsense to recognise this.
By contrast, the second model of the indeterminacy critique – what one might call the phenomenological model of indeterminacy – has no discernible links with realism. According to this model, developed, among others, by scholars like Duncan Kennedy and Peter Gabel, indeterminacy is not something that actually ‘exists’ in the legal system itself. It is not an objective feature that structurally accompanies liberal legalism or an intrinsic property that attaches to any particular group of concepts. What it is, rather, is a certain kind of mental experience that any one of us can be plunged into under the right circumstances: an overwhelming impression of interpretative openness that any given legal actor navigating a given set of positive legal materials can develop about them, whether in the form of an entirely spontaneous reaction to “how the law presents itself” or as a result of carefully examining them.
On this view, the determinacy or indeterminacy of any given rule or concept is not really a ‘thing’: everything depends on who it is that encounters this rule or concept and their immediate situation (personal history, level of training, institutional motivations, etc.). The rule/concept itself at best only has the “inert force of worked matter.” It is the phenomenological state of the person who interacts with it that makes it feel more or less determinate. The same statutory provision that an untrained lay person perceives as overwhelmingly clear may be perceived by a trained legal professional as profoundly ambiguous. The hidden potential for reinterpretation that an activist lawyer committed to a cause may be able to spot in an established legal doctrine can very well escape the attention of a politically uninvolved academic who encounters it for the first time.
It should not be hard to work out how the two models diverge. Switching from a theory that treats indeterminacy as an external fact residing within the legal system itself to a theory that views it as a species of mental experience dependent on one’s individual circumstances not only shifts the aesthetics of our worldview from conceptual empiricism to constructivist relativism. It also brings out much more clearly the role of the human element in legal interpretation and the idea that, as legal actors, we all have a certain degree of power to change the world we live in, rather than accepting it the way it presents itself to us.
At which point, the question inevitably arises: what should one make of this apparent divergence?
Indeterminacy as Work and Struggle
My aim in this part of the post is to sketch the outlines of an account that not only resolves the apparent contradictions between the conceptualist and the phenomenological models but also brings them “under the same roof.” At the core of this account lies a two-pronged proposition, the first part of which states that the best way to understand the phenomenon of indeterminacy is to view it essentially as a species of collective intersubjective consensus; the second part, in turn, asserts that this consensus is a product both of a certain kind of group work and the different forms of group struggle that accompany it.
In its more extended form, the argument goes something like this: In each legal field, there exists a multitude of more or less organized groups of legal professionals who work with different bits and pieces of the existing positive legal order in order to generate, entrench, and subvert commonly held beliefs about the corresponding rules, concepts, and doctrines. The main output of this work is the production of juridically relevant interpretations. The means by which this work is done include the writing of judgments and amicus briefs, the publication of scholarly writings, law commission reports, policy papers, etc.
The groups in question can take any number of different forms: consumer and abortion rights advocates, the defence bar, anti-death penalty activists, law-and-economics movement, legal formalists, antitrust technocrats. Some groups may have clearly identifiable institutional umbrellas and membership criteria, others will only exist in the form of loose imagined communities. What drives each group and gives its work a sense of coherence at least in some part comes from its sense of its project – which will often be unconscious and un-self-reflective – and the respective disciplinary and political agendas arising from it.
Since projects do not exist in a vacuum, a large part of what happens “on the ground” for each group will also be conjunctural and contextually determined. The more the projects pursued by different groups clash, the more the strategic demands of the ensuing struggles will influence what kind of interpretative choices each group will make and thus what sort of interpretative work its members will undertake, what interpretations they will advance and challenge, and the meaning of which concepts and rules they will thus end up contesting.
The crucial point to recognise here is that both determinacy and indeterminacy are essentially nothing more than provisional by-products of these struggles and the interpretative work by means of which these struggles are in part conducted. What makes legal rules more or less in/determinate, thus, is not really decided so much by their “contents,” but by the intensity and length of the fights we have over them. And since people’s willingness to fight over an interpretation of a particular rule, or to refuse to give up if they do not succeed, is determined in part by the stakes that they associate with the rule, it follows that not all rules will have the same in-built capacity for being made indeterminate.
Intellectually, the argument I have just outlined may seem at first sight to be little more than a form of sociological jurisprudence. On the one hand, there stands the classical constructivist argument that meaning is an artefact of collective beliefs, and collective beliefs are products of processes that involve groups, not individuals. On the other hand, there stands the idea that these group processes – whether one views them in terms of ‘praxis’ (Karl Klare) or ‘transformative vocation’ (Roberto Unger) – involve both a certain element of labour and a certain element of struggle. And neither of these ideas, of course, is particularly novel. The fact that none of the other versions of indeterminacy critique proposed in modern jurisprudence – from Kelsen to the realists to Joseph Raz – makes use of them, however, can make it seem that it is precisely this combination of building blocks – constructivism, collectivism, the ideas of labour and struggle – that gives the CLS theory of indeterminacy its unique flavour. And maybe this view is ultimately correct. What I want to suggest here, however, is that, all things considered, it is, in fact, an entirely different aspect of the argument presented above that represents the most radical innovation brought by CLS to the discussion of indeterminacy: the idea of viewing indeterminacy as a function of time.
The level of indeterminacy that is likely to be ascribed to any given rule, concept, or doctrine in the collective legal opinion is a function not only of which groups or movements are looking to contest its interpretation, but also of how much time they have on their hands to carry out their interventions, as well as how much time has passed since that rule, concept, or doctrine first entered into that community’s collective consciousness, i.e., how much time there has been for other groups to engage with it, to produce, entrench, and disseminate their interpretative claims about it, fill the discursive space around it, win followers, attract allies, sell their ideas about it as the one true correct view, etc.
The ‘passive’ fact of indeterminacy, in the CLS perspective, constitutes, in the end, a far less important event than the actual processes of indetermination and de-indetermination, the peculiarly lawyerly form of knowledge production and political practice from which this fact emerges. Different groups, applying a relatively standardised arsenal of analytical tools and rhetorical techniques to a given set of positive legal materials and conceptual frameworks, produce interpretations of them that help entrench or subvert what the broader legal community ‘knows’ these materials or concepts to ‘mean’, and in the process of doing so compete with one another and wrestle for ideological supremacy. Sometimes they do this openly: the pro-life camp vs the pro-choice camp in the right to abortion debates. At other times they do it in a more sublimated fashion that takes the form of abstract intellectual debates: progressives vs originalists or Dworkinean liberals vs Chicagoan law-and-economics. What holds each group together is a sense of a commonly shared project coupled with a more or less agreed view about which rules and concepts should be targeted for reinterpretation and a general roadmap for how this can be best done.
Some projects will aim at creating or reinforcing the experience of interpretative openness. When they succeed at their task, their target audience may come to view the respective rules and concepts as more indeterminate, i.e. less constraining, than before. Other projects will aim at generating or shoring up a sense of interpretative certainty and closure. The more they succeed in their mission, the more their target audience will come to perceive the rules and concepts in question as able to constrain the process of their own legal application. A good example of the former kind of projects is American legal realism. A good example of the latter is international human rights-centrism.
The crucial point is that both group work and group struggle are processes that take place in and over a period of time, which is to say that large-scale transformations such as those necessary to indeterminate or de-indeterminate a more or less extensive set of legal rules or concepts cannot be brought about by a single judge or legal scholar, and they certainly cannot be completed overnight. The primacy of collectivism, group organising, and the connection between interpretative work and the exigencies of group reproduction are, in this sense, absolutely central to the CLS theory of indeterminacy.
A second closely related idea is that this kind of work and struggle always proceed in both directions. Neither determinacy nor indeterminacy, in other words, is something that just exists out there, lying dormant within some remote segment of the legal reality. From the CLS point of view, every modicum of in/determinacy has to be actively produced, to be fought for in the field of political-intellectual struggle.
The ability to expend of this kind of effort and organize this kind of struggle requires, of course, not only a certain measure of dedication and political capital, but also time, a fact that can both help and hurt the respective groups and projects. It can help them because, insofar as history does not restart anew every day, the interpretative pronouncements accumulated in the previous rounds of contestations do not just disappear into thin air, but slowly pile up, filling in the previously empty interpretative space. Sometimes, this growing pile of interpretations will have no immediate bearing on what we can do with the particular rule we are working on. Sometimes, its presence can make things easier for us since it will mean that we don’t have to start our arguments from the scratch but can co-opt and recycle what is already ‘there.’ And sometimes the sheer size of the pile that has built up can make us feel like we are trudging through Augean stables.
The more time passes, the bigger the pile grows, and the more debris accumulates within the field that we may have to clear away to get to where we want. Recall, however, the lessons of the phenomenological approach: the pile does not really exist other than through our consciousness of it. Every consciousness, ultimately, is a product not only of knowledge and memory, but also of ignorance and forgetfulness. A pile of interpretative debris that one day seems to be virtually immoveable can be simply forgotten or pretended away the next day. Chicagoan law-and-economics did not bother hacking its way through the thicket of realist legacies. It simply dismissed them as irrelevant to bother about and persuaded its followers to forget realism ever took place.
Indeterminacy as a form of collective experience produced over time – what is the value of restating the CLS theory of indeterminacy in this particular way? The answer, I believe, is this: it helps make clear what progressively motivated lawyers, such as those involved in the LPE movement, can take today from CLS’s complex and varied legacy.
Not all versions of indeterminacy critique work the same way. If you take up a linguistic or a natural law-style conception of indeterminacy, you will treat indeterminacy as an objective condition, a thing-out-there that needs to be managed, overcome, or exploited. If you follow the CLS perspective, by contrast, you will come to think of indeterminacy as a created experience, a product of work and struggle, time and group solidarity. You will see in it an extension of Marxist humanism and a theory about the limits and conditions of legal reform. And the knowledge of this can serve you both as a source of empowerment and a reminder never to stop strategizing and organizing.