Legal indeterminacy in context by Scott Alan Anderson

By Scott Alan Anderson

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The epistemic approach denies the phenomenon of vagueness and describes the phenomenon in terms of uncertainty. Moreover, the three distinct positions suggest a trilemma, one which calls for a fourth alternative that is, unfortunately, not apparent. The three similar approaches—ontic, semantic, and epistemic—to describing and dealing with legal indeterminacy and vagueness suggest parallel methods of accounting for the phenomena. 82 To develop more fully the parallel between legal indeterminacy and vagueness, a fuller treatment of the history and research on vagueness must be provided.

76 Therefore, each of the three accounts is taken as a rival, comprehensive account of the phenomenon of legal indeterminacy. The presentation of the three rival views of legal indeterminacy suggests a kind of trilemma in which there appears to be only three theoretical options, none of which seems independently satisfactory. 77 The epistemic account renders the seemingly commonplace phenomenon of legal indeterminacy a mystery, solvable only by the proposal that judges might lack access to the determinate answers that actually exist in the cases that come before them.

Pursuant to the Statute of Wills—the law of intestate distribution in New York at the time (1889)—the murdering heir would get his allotted share of his grandfather’s will. Y. E. 188 (1889). Dworkin first cited the Riggs case in support of his “right answer thesis” in “The Model of Rules I”, reprinted in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), hereafter TRS, pp. 14-45. 24 fundamental maxims of law precluded such a result. In particular, the equitable principle that “no man should profit from his own wrong” worked to nullify the provision of the grandfather’s will that would have given the murderer his share.

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