Wednesday, July 30, 2008

The Indeterminacy and Elasticity of Legal Language

I have come to detest the indeterminate word "indeterminate." But for present purposes no other word seems to do the trick I want to do.

For decades American legal theorists have talked about the indeterminacy of legal language. Probability theorists prefer to talk about the uncertainty of legal terms. But in a recent message to a discussion list Lotfi Zadeh once again noted that it is important to distinguish between uncertainty about the meaning of words (language) and the elasticity, or plasticity, of words (language). The distinction that Zadeh makes between uncertain meaning and elastic language is, think, very important for an understanding of the nature of legal reasoning and interpretation. Although elastic words (I would say) produce uncertainty, it is important to remember that words themselves are elastic, i.e., that words exhibit elastic "behavior." Note: it is possible, in principle, to know fairly precisely how elastic words behave under various circumstances. When we have such knowledge about a word, we are not really very uncertain about the meaning of the word but we still can say and must say that the meaning of the word in question varies, or stretches, depending (for example)on the context. (In such a situation there is only a very loose -- and possibly misleading -- sense in which it can be said that the meaning of the word is indeterminate.)

the dynamic evidence page

Post a Comment