Using Legal Rules in an Indeterminate World

INDETERMINANCY IN THE MEANING and application of rules char-acterizes law as such, even if not all aspects of law in all instances.Among issues often indeterminate and therefore open to judicial manipulation are standing, standards of review, and the demands of procedural due process.Proportionately few laws or other legal rules are deeply problematic because they are indeterminate, but those that are tend to be ones of significant social and political consequence, concerning fundamental normative issues affecting many people.In addition, some rules may be unproblematic simply because the political convictions they presuppose are so unchallenged as to be unrecognizable as such.Determinate laws or legal rules are usually those in which formal legal training can provide a unique solution to legal questions, where judges and others can interpret and apply rules unproblematically.I shall argue that a judge who interprets and applies indeterminate rules does not comply with them in the sense of preserving them intact; sometimes he or she "complies" with rules by manipulating them.Sometimes a judge has no alternative but to alter them because some rules often can be interpreted and applied in no other way.I shall not argue that we need to reject all rule-based explanations of how a normative order constrains or generates social behavior.Rather, I shall emphasize that individuals in legal and other institutional settings often do not employ rules as practical guides to behavior simply by applying them in any straightforward or unproblematic way.Some approaches in contemporary jurisprudence claim as much: that in important respects, laws and other legal rules cannot be stable, consistent, or unchanging with regard to what particular rules mean and how they should be applied.H.L.