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Time Frames and Legal Indeterminacy

Published online by Cambridge University Press:  08 February 2017

Tanzil Chowdhury
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Abstract

A consensus has long been established that adherents of the Critical Legal School (and to a lesser extent, Legal Realism) exaggerated their claims of law’s indeterminacy. This paper however, attempts to resurrect the indeterminacy debate by articulating, developing and elevating a particular strand of it; namely, the use of unrestrained time frames in factual construction. This claims that factual construction in adjudication is, in part, contingent on the time frames adopted—though absent some metaprinciple on whether to adopt broad or narrow time frames—indeterminacy rears its head. The paper primarily argues that time frame indeterminacy is important as it actually underwrites the attacks levelled by both Critical Legal Studies (CLS) and American Legal Realism (ALR) on legal liberalism. It nourishes ALR critiques by enriching the strict and loose articulations of precedent authored by Karl Llewellyn, and also connects some of the definitive themes that underline the CLS literature, specifically the rules-standards and free will-determinism contradictions in legal liberal discourse.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 30 , Issue 1 , February 2017 , pp. 57 - 76
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2017 

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References

1. Robert Gordon, “Law and Ideology” (1988) 3:1 Tikkun 14.

2. Kairys, David, ed, The Politics of Law (New York: Basic Books, 1988).Google Scholar

3. Morton G White, “Social Thought in America: The Revolt Against Formalism” (1947) 8:2 Journal of the History of Ideas.

4. [1982] 1 WLR 142 157.

5. The indeterminacy thesis can roughly be divided into the strong thesis, which claims a radical indeterminacy of law, or the weak thesis, which states a modest indeterminacy. The degree of (in)determinacy lays overall claims to the very legitimacy of law and adjudication as a normative system. See also Ken Kress, “Legal Indeterminacy” (1989) 77:2 California L Rev 285.

6. Gordon, supra note 1 at 15.

7. Mark Kelman, “Interpretive Construction in the Substantive Criminal Law” (1981) 33:4 Stan L Rev 591 at 594.

8. Kevät Nousiainen, “Time of Law, Time of Experience” in Jes Bjarup & Mogens Blegvad, ed, Time, Law and Society: Edited Proceedings of a Nordic Symposium at Sandbjerg Gods (Franz Steiner Verlag, 1994) 23—the reason why Nousiainen’s paper is less so associated is because her argument is not framed within the context of legal indeterminacy.

9. Kelman, supra at note 7.

10. Nousiainen, supra note 8 at 23.

11. Kelman, supra note 7 at 594-95.

12. Karl Llewellyn, The Bramble Bush (New York: Oceana Publications, 1930) at 76.

13. Many would reject the idea that law is, at worst, radically indeterminate. See also Kress, supra note 5.

14. Ibid.

15. Emmet T Flood, “Fact Construction and Judgement in Constitutional Adjudication” (1991) 100; 6 Yale LJ 1795.

16. Joseph Singer, “The Player and the Cards: Nihilism and Legal Theory” (1984) 94:1 Yale LJ 1 at 8.

17. This is an ontological claim, rather than an epistemological one.

18. Kress, supra note 5.

19. Lucy, William, Understanding and Explaining Adjudication (Oxford: Oxford University Press, 1999) at 189.CrossRefGoogle Scholar

20. Conor Casey, “Legal Indeterminacy: Causes and Significance” (2015) 18 Trinity College L Rev 42 at 47.

21. Singer, supra at note 16 at 7.

22. Gordan, supra at note 1.

23. Kress, supra at note 5.

24. Duncan Kennedy, “Form and Substance in Private Law Adjudication” (1976) 89 Harv L Rev 1685.

25. Singer, supra note 16.

26. Ibid at 51.

27. Frederick Schauer, “Formalism” (1988) 97:4 Yale LJ 534.

28. Kripke, Saul, Wittgenstein on Rules and Private Language: An Elementary Exposition (Cambridge: Harvard University Press, 1982).Google Scholar

29. Casey, supra note 20 at 44.

30. Brian Leiter & Jules Coleman, “Determinacy, Objectivity and Authority” (1993) 142;2 U Pa L Rev 568.

31. Casey, supra note 20 at 45.

32. Singer, supra note 16 at 14.

33. This is also developed by Alexandre Lefebvre in his rejection of the subsumptive theory of judgment. See Lefebvre, Alexandre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford: Stanford University Press, 2008) 107–14.Google Scholar

34. 163 US 537.

35. 347 US 483.

36. Conor Casey tries to argue that elements of Wittgenstein have been overlooked that actually refute this strong thesis. See Casey, supra note 20.

37. Kelman, supra note 7 at 592.

38. Arthur R Hogue, Origins of the Common Law (Bloomington: Indiana University Press, 1966) at 11.

39. Singer makes a distinction between indeterminacy and arbitrariness. See also Singer, supra note 16 at 20-22.

40. Singer, supra note 16 at 50.

41. Mark Tushnet, “Following the Rules Laid down: A Critique of Interpretivism and Neutral Principles” (1983) 96:4 Harv L Rev 785.

42. Kress, supra note 5 at 285.

43. Ken Kress challenges the claim that moderate indeterminacy, having disposed of radical indeterminacy, undermines legitimacy by using a ‘heterodox’ understanding of legitimacy. See also Kress, supra note 5 at 285.

44. Kennedy, “Legal Formalism” (1973) 2: 2 J Legal Stud 352.

45. William Twinning & David Myers, How to Do Things with Rules, 5th ed, (New York: Cambridge University Press, 2012) at 290.

46. Tamanaha, Brian, On the Rule of Law (New York: Cambridge University Press, 2004) at 3.CrossRefGoogle Scholar

47. Judith Shklar, “Political Theory and the Rule of Law” in A Hutchinson & P Monahan, eds, The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) at 1.

48. Tom Bingham, The Rule of Law (London: Penguin Books, 2010).

49. AV Dicey, Introduction to the Study of the Law of the Constitution, 9th ed (London: Macmillan, 1945) at 188.

50. Ibid at 193.

51. Ibid at 195.

52. Singer, supra note 16 at 12.

53. Ibid at 14. Interestingly, in commenting on the controversial US Supreme Court case Bush v Gore 531 US 98 (2000) which decided who had won the 2000 presidential election, Jeremy Waldron highlighted how the rule of law had been invoked by both sides, and therefore meaning little more than ‘hooray for our side’. See also Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)” in R Bellamy, ed, The Rule of Law and Separation of Powers (Aldershot: Ashgate, 2005) at 119.

54. Mark Kelman, A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987) at 2.

55. Kelman outlines that liberals including ‘deontological rights theorists and those who are openly utilitarian are linked; anarchic libertarians and New Deal apologists are treated as forming the same school’. See also ibid at 3.

56. Kelman, supra note 54 at 2.

57. Ibid at 3.

58. Ibid.

59. Ibid at ch 1. This is also discussed in the Legal Realist school in determining whether rules are to control or to guide. See also Karl Llewellyn, The Common Law Tradition (Brown & Company, 1960) at 178-80.

60. Kennedy, supra note 24 at 1687-88.

61. Part 1, online: http://www.legislation.gov.uk/ukpga/1983/2.

62. Kennedy, supra note 24 at 1712.

63. MDA Freeman, Introduction to Jurisprudence, 8th ed (London: Sweet & Maxwell, 2008) at 1211.

64. Is this conflict over-emphasised? Ibid at 1212-13.

65. Kelman, supra note 54 at c 2.

66. Roberto Unger, Knowledge and Politics (London: Free Press, 1974).

67. Kelman, supra note 54 at 73.

68. Ibid at ch 3.

69. Ibid at 86.

70. I later discuss this as a good example of time-framing possibilities and so potential uncertainty.

71. Llewellyn, supra note 12 at 71.

72. Twinning & Myers, supra note 45 at 306.

73. Llewellyn, supra note 12 at 73.

74. Ibid.

75. Twinning & Myers, supra note 45 at 278.

76. Llewellyn, supra note 12 at 74.

77. Twinning & Myers, supra note 44 at 306.

78. Though this may be ripe for radical indeterminacy, Llewellyn explains that there are certain stabilising ‘cluster of factors’ such as ‘law-conditioned officials’, known doctrinal techniques, the arguments of council etc. See also Karl Llewellyn, The Common Law Tradition (Boston: Little, Brown, 1960); he also says that certain strict readings of precedent would be absurd such as making the distinction on the basis of hair colour. See also Kress, supra note 5 at 299.

79. Llewellyn, supra note 12 at 75.

80. Oliver Wendell Holmes, Jr, The Common Law (New Jersey: The Lawbook Exchange, 1881).

81. Kress, supra note 5 at 300-01.

82. Brian Leiter, “Legal Indeterminacy” (1995) 1 Legal Theory 481.

83. Kelman, supra note 7 at 591.

84. Benjamin Cardozo also accounts for the ‘subconscious element in the Judicial Process’ as the forces of ‘likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habit and convictions, which make man, whether he be litigant or judge.’ See also Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) 167.

85. Kelman, supra note 7.

86. Norrie, Alan, Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge: Cambridge University Press, 2011) at 141.Google Scholar

87. (1885) 48 NC 417 18.

88. Kelman, supra note 7 at 595.

89. Ngaire Naffine, “Who are Law’s Persons? From Cheshire Cats to Responsible Subjects” (2003) Mod L Rev 362.

90. Steven L Winter, “Indeterminacy and Incommensurability in Constitutional Law” (1990) 78 California L Rev 1486.

91. Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Portland: Hart, 2009) at 64-65.

92. Norrie, Alan, Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge: Cambridge University Press, 2011) 137–41.Google Scholar

93. James Boyle, “Is Subjectivity possible? The Postmodern Subject in Legal Theory” (1991) 62 U Colo L Rev 522.

94. Lindsay Farmer, “Time and Space in Criminal Law” (2010) 13:2 New Crim L Rev 340.

95. Nousiainen, supra note 8.

96. Reference to time frames are almost never explicit and requires creative reading of the facts to determine when broad or narrow time frames are engaged. See also section Time-frame indeterminacy and precedent.

97. R v Ahluwalia [1993] 96 Cr App R 31.

98. [1995] 2 Cr App R.

99. R v Duffy [1949] 1 AER 932.

100. R v Ahluwalia [1993] 96 Cr App R 31 138 [emphasis added].

101. Referring to the trial judge.

102. R v Baillie (John Dickie) [1995] 2 Cr App R 37 [Baillie].

103. This is a point to which I shall return to shortly but it should be noted at this juncture that this appears to claim a strong degree of indeterminacy in the use of time frames. See section: The degree of Time-frame indeterminacy.

104. This is also mentioned in Freeman’s discussion of the article. See also Freeman, supra note 63 at 1214.

105. Kelman supra note 7 at 592.

106. Ibid.

107. Ibid.

108. Ibid.

109. Lefebvre, supra note 33 at 13.

110. Kelman uses ‘determinism’ in a very specific way that describe conditions with exculpatory force. Rather than the more typical definition of determinism which claims that all events and effects are predetermined by causes at any point in time, Kelman describes determinism as holding that the last event in a ‘chain is so predetermined as to merit neither respect nor condemnation’. See Kelman, supra note 54 at 86.

111. Pierre J Schlag, Rules and Standards (1985) 33 UCLA L Rev 2.

112. Kelman, supra note 54 at 15.

113. Pierre J Schlag, supra note 111.

114. Pierre J Schlag, Rules and Standards (1985) 33 UCLA L Rev 1.

115. Singer, supra note 16 at 16.

116. R v R [1991] 1 A.C. 599 (in which the matrimonial exception to rape, was reversed without legislation). Lord Keith’s comments were particularly illuminating: para 616.

It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail…. In modern times any reasonable person must regard that conception as quite unacceptable.

117. Kelman, supra note 54 at 18.

118. Ibid at 26.

119. Kelman, supra note 7 at 592.

120. Lefebvre, supra note 32 at 102.

121. Lord Scarman, The Brixton Disorders 10-12 April 1981 Report Command 8932—London, HMSO, 37.

122. Norrie, supra note 92 at 137-40.

123. Could this expanded notion of broad time frames also include, among other things, socio-economic duress, colonialism, slavery? This would appear to circumvent the problem of potentially constructing factual situations of relevancy which begin ab aeterno.

124. Kelman, supra note 7 at 666.

125. Kress, supra note 5 at 299.

126. Ibid at 300-01.

127. R v Ahluwalia [1993] 96 Cr App R 31.

128. Baillie, supra note 102 at 31.

129. ‘The battered spouse’s defence lengthens the time horizon of the subject and makes the subject exist through time. The lawyers and scholars who created this defence argued that the time-horizon for self-defence in this case was five years not five-minutes. Now what is that but a broadening, a temporal stretching, if you will, of the legal subject? Yet at the same time that they are using the traditional genre of legal arguments about the subject and self-defence, these advocates are also calling that genre into question—the apparently fixed world of free will and its limited exceptions around which criminal law is constructed’.

130. Owen Fiss, “Objectivity and Interpretation” (1982) 34 Stan L Rev 739.

131. Singer, supra note 16 at 20-21.

132. Ibid at 23.

133. Casey, supra note 20 at 47.

134. Ibid at 48.

135. Kress, supra note 5.

136. Farmer, supra note 94.