Legal determinacy means the ability of a given legal system to provide a determinate legal answer to every legal issue solely on the basis of authoritative legal materials. Within the framework of the classical mode of legal discourse (typical of the early modern period) legal determinacy was considered to be a critically important element of any legal system, to ensure legal predictability, stability and certainty.
The emergence of more complex societies with a very intense market and closer interdependencies and deeper social differentiation generated the inability of the simple classical model of legal systems to accomplish more complicated functions of social control. Particularly, the subsumption model of the application of law and the completeness and comprehensiveness of a legal system have become an object of deep theoretical suspicion and doubt.
The current situation involves some basic modes of reflection of the problem of legal indeterminacy.
Legal conventions are based on the idea of partial legal determinacy, which can be attributed to the “open texture” of the language of law. It regards so-called “hard cases”, where there is no determinate “right” answer to the legal question and thus the court should exercise legal discretion, as marginal due to the fact that in most routine legal cases “the right answer” is provided by the conventional meaning of the wording of a legal proposition.
The interpretative theory of Ronald Dworkin rejects “the open texture thesis” as the explanation for legal indeterminacy. The legal system is able to provide the sole right answer to every legal question due to the special type of “constructive” interpretation. The basic technical problem of the conflict of eligible interpretations can be solved on the basis of coherent epistemology.
A radical skeptical interpretation of the legal indeterminacy problem is provided by the Critical Legal Studies Movement. It denies the ability of a legal system to supply determinate legal answers because of general linguistic indeterminacy, the basic contradictions within the liberal legal mode of thinking and the content of law itself.