3.1. The ‘Realist Account’ of Legal Indeterminacy

Before I describe the ‘realist account’, a comment is in order. I do not claim that there is an intrinsic connection between American legal realism and legal indeterminacy. This connection is, as far as I see, purely historical. It is a matter of fact that this kind of claim about the indeterminacy of law has been held by some authors that are part of the American legal realist movement.

As stated in §1, the realist account holds that law is indeterminate due to the multiplicity of legal materials that yield competing but equally legally valid results. By ‘legally valid’ I mean that the decision produces legal consequences.Footnote ¹³ As Kress notices, “[i]n adjudication, law is indeterminate to the extent that authoritative legal materials and methods permit multiple outcomes to lawsuits.”Footnote ¹⁴

According to Llewellyn,

The realist account explains legal indeterminacy by resorting to an unclear set of factors that include, inter alia, the personal traits of judges, value-preferences of the interpreter, legal materials (which includes scholarly work), and methodologies used for interpretation. It is the interplay of the aforementioned factors that yield competing but equally legally valid results. This interplay depends mostly on the personality of the judge. As Frank points out,

If, according to the realist account, the judges’ personality is ‘unavoidable’ when interpreting law, then legal outcomes will vary according to the personality of the judge who decides the case. In other words, the content of the law is insufficient to ensure a single legal answer. This point has been stressed by Leiter in his reconstruction of the realist account. For him, problems of indeterminacy are problems that are associated with what he calls, ‘the class of legal reasons’. The class of legal reasons is comprised of the sources of law, the interpretative techniques of a given legal system, the legitimate way of deciding over the quaestio facti, and the techniques of reasoning (e.g., analogical reasoning, a fortiori arguments, and deductive reasoning).Footnote ¹⁷ He claims that the class of legal reasons is indeterminate and insufficient to both cause the judge to reach only one outcome and to justify only one outcome.Footnote ¹⁸ In other words, for the realist account, what causes and justifies a legal outcome is derived from both legal and extra-legal factors. That law is not enough to cause or justify a legal outcome does not mean that we cannot predict the courts’ decisions. The realist account leaves open the possibility to predict legal outcomes on the basis of discernible patterns that a specific court/judge will follow when deciding similar cases. As Leiter points out, “[j]udicial decisions … fall into discernible patterns (making prediction possible), though the patterns are not those one would expect from the existing legal rules. Rather, the decisions fall into patterns correlated with underlying factual scenarios of the dispute at issue”.Footnote ¹⁹ For example, suppose that two people come to the lawyer’s office saying that they were wrongfully terminated from their job. They want to sue their employer, but they are unsure whether the grounds for the lawsuit are strong enough to ensure a favourable result. Following the realist account, the best way to provide satisfactory counseling is knowing which judge could potentially decide the case. Once the judge is identified, then the lawyer will base the legal advice on knowledge about the political allegiances, religious beliefs, and moral commitments of the potential judge. The lawyer’s knowledge, in turn, will be based on the historical records of the judge’s decisions on similar cases. The task of the lawyer, then, is to identify that judge’s decision-patterns in similar cases to the one that requires their services, as well as the different factors that inform said patterns.

3.2. The ‘Natural Language’ Account of Legal Indeterminacy

The natural language account holds that certain features of natural languages bring about legal indeterminacy.Footnote ²⁰ These features of natural language are ambiguity and vagueness. On the one hand, ambiguity in law arises when a norm formulation can be interpreted in different ways. On the other hand, vagueness in law manifests as hard cases. These are borderline cases in which it is indeterminate if a specific state of affairs can be subsumed in the class of state of affairs that a norm formulation governs.

In this subsection, I focus on two versions of the natural language account. I call these versions ‘the double-indeterminacy’ thesis and ‘the open texture’ thesis respectively. As I will demonstrate, these two versions are related in that the double indeterminacy version entails the open texture version.

The double-indeterminacy version is held by Guastini.Footnote ²¹ This version claims that law is ambiguous and vague.Footnote ²² However, ambiguity and vagueness are to be found in different stages within the process of interpretation. Guastini points out that the term ‘interpretation’ is ambiguous and it can refer to, at least two kinds of activities that the judge engages in when deciding a case: 1) interpretation in abstracto; and 2) interpretation in concreto.Footnote ²³ Interpretation in abstracto is the task of ascribing meaning to a legal text (e.g., the legal rule ‘R’ means ‘T’). This kind of interpretation deals with ambiguity. Under the double indeterminacy thesis, ambiguity refers to the multiplicity of norms that can be ascribed to one norm formulation.Footnote ²⁴ In other words, prior to the act of interpretation, a plurality of interpretations can be ascribed to a norm formulation, thereby rendering them indeterminate (e.g., the legal rule ‘R’ can mean ‘T₁’_, ‘T₂’_, ‘T₃’, and so on). Interpretation in concreto is the subsumption of a case within the class of cases that an interpreted in abstracto legal provision governs. This kind of interpretation deals with vagueness. Sometimes it is indeterminate if the case at hand belongs to the class of cases governed by the meaning ascribed to the legal rule by the interpreter (e.g., if there is a norm formulation that prohibits the entrance of animals to government buildings, do service animals count as an animal for the purpose of this rule?). The cases that interpretation in concreto covers bear resemblance to the easy cases/hard cases distinction with which legal philosophers are acquainted.

The second version of the natural language account is the open texture thesis promoted within the legal scholarship by Hart.Footnote ²⁵ The open texture thesis states that all rules have a core of settled meanings and a penumbra zone where its application is indeterminate.Footnote ²⁶ Since law is a manifestation of natural language, legal rules will suffer from open texture. According to Hart,

He argues that because norm formulations are posited in general terms aimed at regulating particular cases, there will be both cases that will be covered by the plain meaning of the norm formulation, and cases that will fall into its penumbra, zone rendering its application indeterminate. As Hart notes,

For Hart, ‘open texture’ means vagueness.Footnote ²⁹ The fact that according to Hart, all rules have a fringe of vagueness or open texture suggests that he uses both terms synonymously. Further support to this claim can be found in the classic examples of the ‘no vehicles in the park’ rule that he gives in order to explain the open texture thesis. In this example, the judge must answer the question of whether an electrically propelled motor car is a vehicle or not. What Hart is describing is a borderline case regarding the scope of the term vehicle. The ‘open texture’ thesis stresses the fact that law qua manifestation of natural language is vague and in borderline cases, law is necessarily indeterminate.

Note that the double indeterminacy thesis entails the open texture thesis. In the next subsection, I will provide a general overview of the account that I advance in order to localize it within the scholarly debate.

3.3. On the ‘Systemic Indeterminacy’ Account

In this subsection, I will advance a revised version of the realist account that I call ‘systemic indeterminacy’. This account holds that the plurality of legal outcomes is the consequence of a typical rational legal system having an interpretative code with a multiplicity of interpretative directives. Since the source of the plurality of interpretative results is the plurality of interpretative directives, the systemic indeterminacy entails the realist account but not the other way around. This is because the interpretative directives are a subset of what the realist account refers to as ‘legal materials’. Since I identified the source of indeterminacy with a specific kind of legal rule (i.e., the interpretative directives), my account is narrower than the realist account. The systemic indeterminacy account places emphasis on structural features of legal systems (e.g., interpretative codes), instead of features of natural languages and/or extra-legal factors, such as the personality of judges, value preferences of the interpreter, legal education, and so on. To the extent that the interpretative code is posited in natural language, my account does not exclude the natural language account.

The systemic indeterminacy thesis stresses the relationship between the number of interpretative directives and the number of interpretative results. By this, I mean that a legal system will have the same number of interpretative results as the number of interpretative directives that are contained in the interpretative code. As will be developed further in §5, because typical rational legal systems do not allow for redundant norms—what I call the non-redundancy clause—necessarily different interpretative directives will provide different interpretative results. Roughly put, the connection between interpretative codes and the non-redundancy feature of typical rational legal systems is the following: since typical rational legal systems do not allow for redundant rules necessarily each interpretative directive provides a different interpretative result.

It is not surprising that the fact that interpretive codes would contribute to legal indeterminacy could seem counterintuitive. After all, it is a common assumption that the deficiencies of the semantic content of language call for the need of interpretative directives that allow the deficiencies to be addressed. In other words, typical rational legal systems try to reduce the indeterminacy of natural language that affects law through a set of second-order rules known as interpretative directives/canons of interpretation. However, the interpretative code cannot complete eliminate indeterminacy. Interpretative codes cannot eliminate indeterminacy because the interpretative directives are also affected by the indeterminacy of natural language. As Hart points out, “[c]anons of ‘interpretation’ cannot eliminate, though they can diminish, these uncertainties; for these canons are themselves general rules for the use of language, and make use of general terms which themselves require interpretation”.Footnote ³⁰ Hart’s claim relies on the natural language account of legal indeterminacy. He stresses the fact that the canons of interpretation are affected by the open texture of the words and are thus susceptible to vagueness themselves. Therefore, in cases in which the canons of interpretation are in themselves vague, they will fail to reduce indeterminacy of law.

The systemic indeterminacy account does not rely on the open texture of the interpretative code to hold that the canons of interpretation contribute to legal indeterminacy. Under my account, the plurality of legal outcomes is caused by a multiplicity of interpretative directives, independent of their semantic content.Footnote ³¹

In §1, I stated that there is a relationship between legal indeterminacy and discretion. In the next section, I will present an overview of this relationship in the three accounts of legal indeterminacy that I have laid down.

3.4. On the Relationship between Legal Indeterminacy and Judicial Discretion

The existence of a relationship between legal indeterminacy and discretion is a point that all three accounts of legal indeterminacy share. In all these accounts, discretion can be formulated as a choice made by the interpreter. Both the content of the choice and its constraints will vary depending on the account that is analyzed. In this subsection, I will provide an overview of judicial discretion and its relation to legal indeterminacy. The purpose for this is twofold: 1) to define this relationship; and 2) to say something about the scope of judicial discretion.

The realist account holds that it is possible to interpret the law in multiple different ways due to the multiplicity of legal materials. This account acknowledges the fact that judges and lawyers can ascribe and justify competing legal results by using the legal materials available to them. Which legal material will be used and how that legal material will be used will depend on a choice based on criteria that escape the law. In other words, when determining the use of the legal materials, judges exercise discretion. As Leiter points out, “[For realists,] lawyers and judges have this interpretive latitude often enough to inject a considerable degree of indeterminacy into law”.Footnote ³² Recall the distinction of having discretion compared to exercising discretion. The realist account explains having discretion (i.e., the potential of choosing) based on the multiplicity of legal materials. The exercise of discretion, (i.e., the choice itself) is explained by a complex set of non-legal factors.

The two versions of the natural language account treat discretion in a similar way. The double indeterminacy thesis holds that discretion is exercised in both interpretation in abstracto and interpretation in concreto. When judges interpret in abstracto, they need to choose among the different norms that can be ascribed to the norm formulation, thus putting an end to the ambiguity affecting the uninterpreted norm formulation. When judges interpret in concreto, discretion is exercised in borderline cases (i.e., when it is indeterminate whether the specific case can be subsumed in the general class of cases governed by the norm).

The open texture account claims that in cases that fall into the penumbra zone of a legal rule, judges have the discretion to settle the question if a certain case falls into the core meaning of the norm formulation they want to apply. As Hart states,

From the standpoint of the distinction between having and exercising discretion, according to the natural language approach, judges have discretion because of ambiguity and vagueness. Moreover, judges exercise discretion when deciding issues of ambiguity and vagueness.

The systemic indeterminacy account holds that discretion is the result of having an interpretative code with more than one interpretative directive and the non-liquet rule.Footnote ³⁴ The relationship between the non-liquet rule and discretion could be stated as follows: although there are different interpretative results to decide a case, judges are legally obliged to choose the interpretative directive on which they will justify the interpretation of the norm formulation that will govern the case. Since the non-liquet rule prescribes the obligation to decide tout court, this decision refers to a choice among the interpretative directives. Moreover, this decision must be taken even if the interpretative code does not contain legal rules that guide the use and/or establish hierarchies among the interpretative directives.

The systemic indeterminacy account claims that judges have discretion because of the multiplicity of interpretative directives contained in the interpretative code. It also claims that judges exercise discretion because of the non-liquet rule. Thus, if judges have discretion, they are legally obligated to exercise it. Whilst it is unclear if having discretion entails its exercise in both the realist account and the natural language account, it is clear that having discretion entails exercising such discretion in the systemic indeterminacy account.

The notion of discretion used in all the accounts of legal indeterminacy analyzed in this subsection can be reconstructed as a choice. The content of the choice will slightly vary from one version to another. In both the realist account and the systemic indeterminacy account, the choice is about the legal materials to be used and interpreted. However, in the natural language account, both versions seem to share that the content of the choice ultimately has to do with settling the ‘question of the meaning’ of a norm formulation that is either ambiguous and/or vague.

A point of divergence regarding discretion is that it is possible to identify the issue regarding the scope of discretion in these accounts. Discretion in legal interpretation will be present in borderline cases. This is true for both Hart’s ‘open texture’ account and Guastini’s account of the interpretation in concreto. Thus, for these accounts, discretion is a marginal phenomenon in legal interpretation because the majority of cases will fall within the core meaning of the norm formulation. This is not the case for the realist account, the systemic indeterminacy account, and Guastini’s account of the interpretation in abstracto. For all these accounts, discretion is present in all litigated cases.

The realist account, the systematic account, and the natural language account help to identify at which stage within the process of adjudication judges will have discretion. In addition, the combination of these different accounts of indeterminacy show that this phenomenon is present in all litigated cases.

In the next section, I will develop the main argument of this paper. This argument consists of three premises and the conclusion. In §4 I provide reasons to accept premise a) and b). Premise c) will be developed in §5.

4.1. On premise a): Interpretative Codes with Multiple Interpretative Directives

In §4.1.1 and §4.1.2, I provide reasons for the plausibility of the claim that in typical rational legal systems, interpretative codes contain more than one interpretative directive. Premise a) is supported by a two-part reason.

4.2. On Premise b): The Non-Liquet Rule

The term non-liquet can be translated as ‘it is not clear’ and it refers to the situation in which a competent court fails or abstains to decide a case either because there is no law that regulates the matter or the existent law is unclear.Footnote ³⁶ In law, there is a general prohibition to non-liquet. This prohibition can be expressed as a rule that prohibits judges from not deciding cases. I call this rule, the non-liquet rule. This rule stems from a general principle in law that is known as the principle of completeness. In general, the principle of completeness states that legal systems ought to provide a solution to every case.

The principle of completeness can be subjected to two readings. I call these two readings the strong and the weak reading, since the weak reading implies the strong reading. The strong reading claims that the principle of completeness binds both the legislative and the judiciary power. In other words, both the legislative and the judiciary ought to provide solutions to every case. The way that the legislators comply with the strong reading is by introducing the so-called ‘closure’ rules. A closure rule is “a rule that would qualify deontically all actions not already qualified by the system in question”.Footnote ³⁷ An example of a closure rule in criminal law is the nullum poena sine lege rule, which can be formulated roughly as follows: it is prohibited to punish an action that is not prohibited by law. An example of a closure rule in public law is the following: everything that is not allowed is forbidden. These examples illustrate the fact that all actions that have not been deontically qualified by the law in a specific way fall under these closure rules and there are thus, deontically qualified in a general way. In other words, closure rules provide necessary guidance to the judge for determining the solution to cases that encompass actions that are not specifically deontically qualified by the law.

The weak reading claims that the principle of completeness prescribes a duty to the judges to decide every case, even when there are no norm formulations that govern those cases. Thus, the weak reading’s claim only binds the judiciary power. For example, article 4 of the French Code civil prescribes that “[a] judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice”.Footnote ³⁸ Another example of a non-liquet rule can be found in article 76, paragraph 2 of the Chilean Constitution that prescribes that “[a]fter intervention is requested in legal form and for matters of their competence, [the courts] cannot excuse themselves from exercising their authority, not even in the absence of a law to resolve the dispute or issue submitted to their decision”.Footnote ³⁹

One of the defining features, if not the defining feature of the courts, is the power to decide disputes. This power is granted by competence norms that serve as a ground for the legal consequences that such decisions bear. However, courts not only have the power to decide but also the legal obligation to do so. This obligation, according to the weak reading of the principle of completeness, is imposed by the non-liquet rule. In other words, judges are bound to decide a legal matter even if there is a lack of norm formulations that govern it.

Although it is possible to imagine a legal system without the non-liquet rule, such legal systems will allow for the possibility of Déni de Justice and thus fail to both solve conflicts and protect rights.

In §4.2.1, §4.2.2, and §4.2.3, I provide three reasons to support premise b). Although these reasons are independent of each other, they are all related to the role that legal systems play within a given community.

4.3. Conclusion on the Plausibility of the Conditions a) and b)

Typical rational legal systems with interpretative codes, a plurality of interpretative directives, and non-liquet rules seem to accommodate our intuitions about how the law and courts work in a typical society.

As I have argued, premises a) and b) are plausible. In the next section, I will provide a reason for accepting premise c). This reason consists of three parts. I call the first part the non-redundancy clause. I call the second part the interpretative negative spaces scenario. I call the third part the obligation to decide.

5.1. Part One of the Reason for Accepting Premise c): The Non-Redundancy Clause

The non-redundancy clause states that rational legal systems can have neither redundant norm formulations nor norms. Following Ross, “[r]edundancy occurs when a norm lays down a legal effect which in the same factual conditions is authorized by another norm”.Footnote ⁴³

If a rational legal system has an interpretative code with more than one interpretative directive, then each interpretative directive will necessarily lead to a different interpretative result. This is because if two or more interpretative directives lead to the same result, then they are redundant and all but one needs to be eliminated from the system. In other words, a plurality of interpretative directives amounts to a plurality of norms ascribable ex ante to a norm formulation, thus making typical rational legal systems indeterminate. For example, suppose that in order to determine the evidential threshold prescribed by the legal system, judges need to interpret the ‘beyond a reasonable doubt’ standard of proof. They will turn to the interpretative code that contains three interpretative directives: the ‘plain meaning of the text’ rule, the ‘intention of the legislator’ rule, and the ‘history of the legislation’ rule. Due to the non-redundancy feature, the interpretative codes cannot provide the same interpretative result; thus, the judge will have three different norms (i.e., meanings) that could be ex ante ascribed to the formula ‘beyond a reasonable doubt’. In other words, the ‘plain meaning of the text’ rule necessarily provides a different interpretative result than the ‘intention of the legislator’ rule and the ‘history of the legislation’ rule. Otherwise, these three rules are redundant and all but one ought to be eliminated from the system.

Due to the non-redundancy clause, interpretative codes with more than one interpretative directive will necessarily multiply norms that can, ex ante, be ascribed to norm formulations. Thus, the interpreter can ascribe as many norms as there are interpretative directives to a norm formulation. Instead of reducing indeterminacy, interpretative codes will contribute to it by allowing for a multiplicity of ex ante ascribable norms to norm formulations. Thus, a norm formulation can bear, at least the same number of norms as the number of interpretative directives contained in the interpretative code of a legal system. From the multiplicity of interpretative directives, it follows that it is impossible to determine ex ante which norm will be chosen by the interpreter. Therefore, the non-redundancy clause supports the claim that the multiplicity of interpretative tools contributes to the multiplicity of norms, thus, making law indeterminate.

This multiplicity of ascribable norms allows for judges to have discretion when interpreting the law. That is, the judge will need to choose which norm from all the interpretative options will be ascribed to the norm formulation applicable to a case. However, this is not the entire story for the discretion of judges. Further argumentation will be provided in §5.2.

The non-redundancy clause supports the claim that the multiplicity of interpretative tools contributes to the multiplicity of norms, thus making law indeterminate. In other words, a norm formulation can bear, at least, the same number of norms as the number of interpretative directives contained in the interpretative code of a legal system. From the multiplicity of interpretative directives, it follows that it is impossible to determine ex ante which norm will be chosen by the interpreter.

Now, notice that this argument does not need to rely on a specific theory of meaning nor does it need to deny the existence of a right answer in legal interpretation. It could be the case that among the multiplicity of norms, there is one that can be deemed as such. However, from the perspective of the legal system, all norms equally legally valid. Those who support the ‘right answer’ thesis will need to rely on extra-legal criteria to identify it. This argument does not imply that from an empirical point of view, different interpretative directives cannot yield the same result. By result, I am referring to the decision of a case. In contrast, it is possible that several interpretative directives lead to the same result and still have a rational legal system.Footnote ⁴⁴ Notice that the use of only one interpretative directive is a sufficient condition for a norm to be legally valid. Thus, having the same interpretative result in practice is inconsequential for the validity of the legal decision and at best it could be considered a rhetorical tool to support why a particular norm should be preferred above others.

5.2. Part Two of Reason for Accepting Premise c): The Existence of Interpretative Negative Spaces

There are two kinds of interpretative codes. One kind of interpretative code is the one that is regulated by legal meta-rules. Thus, it will contain legal meta-rules that will guide and constrain the use of the interpretative directives. These meta-rules, as far as I can see, can be of two kinds: syntactic meta-rules and semantic meta-rules. The first group of rules prescribes hierarchies among the interpretative directives. Thus, they guide the interpreter in the use of the interpretative code. For example, a syntactic meta-rule can be formulated as follows: “When the wording of the law is clear the judge ought to interpret the law according to the plain meaning of the text. If the wording of the law is unclear the interpreter ought to interpret the law according to the intention of the legislator. If interpreting the law according to the intention of the legislator produces a result that infringes fundamental rights then the interpreter ought to interpret the law according to the historical context in which the legislation was enacted”. This rule prescribes an order that the judge is legally obliged to follow when interpreting the law. The second group of rules prescribes how we are to interpret the interpretative directives. Semantic meta-rules are meta-meta rules that help to reduce the natural language-based indeterminacy of the interpretative code. For example, a semantic meta-rule can be formulated as follows: “When applying the plain meaning of the text rule, the judge ought to interpret the formula ‘plain meaning of the text’ as the lexicographical meaning of the words of the law”.

The second kind of interpretative code is one that is not regulated by meta-rules. Since there are no legal meta-rules that guide and constrain the use of the interpretative directives, the interpreter will have discretion when using the interpretative code.

The lack of legal-meta rules that govern the use of the interpretative code is what I call ‘interpretative negative space’. Roughly put, in art, negative space is the area between and around an object in an image. A negative space plays at least three functions. First, it says something about the positive space (i.e., objects, identifying their shape and limits). Second, it represents the absence of a positive space. Third, it says something about the limits or boundaries of the said absence.Footnote ⁴⁵ I think there is an analogous case to be made in legal reasoning. I use the aesthetic concept of ‘negative space’ to illustrate the lack of legal meta-rules that regulate the use of the interpretative rules contained in the interpretative code (i.e., the interpretative negative space). The interpretative negative space fulfils three functions in legal reasoning. First, it says something about the legal rules that are used in legal reasoning (i.e., the positive spaces). Thus, it identifies the interpretative code and the types of interpretative directives that it contains as the rules used by judges in legal interpretation. Second, it represents the absence of rules that regulate the use of interpretative directives (i.e., the absence of semantic and/or syntactic meta-rules). Third, it defines the boundaries of the absence of rules. These boundaries refer to the scope of the decision that judges need to make regarding the use of the interpretative code. That is, the decision about both establishing a hierarchy among interpretative directives and the way that the interpretative directives are to be interpreted when applied. Since there is a lack of meta-rules, this decision is discretionary. In other words, interpretative negative spaces define the scope of discretion in legal interpretation. As I will develop further, the scope of discretion in legal interpretation extends to the decision of which interpretative directive the judge will use and how the selected interpretative directive will be interpreted. Thus, the advanced analogy stresses the fact that there are negative spaces between interpretative directives.

Due to the lack of legal meta-rules that regulate the interpretative code, all of the different norms that can be ascribed to a norm formulation are in equal standing before the interpreter. Therefore, since there are negative spaces when interpreting the law, judges do not have legal guidance to choose which interpretative directive they will use to ground their interpretation of a norm formulation. Due to the existence of interpretative negative spaces and the multiplicity of interpretative directives, judges have discretion when interpreting law.

There are two conceptually possible scenarios in which interpretative negative spaces can be found and these scenarios are mutually exclusive. One scenario is the case in which the interpretative code lacks legal meta-rules that governs how this code is to be used. Another scenario is that the interpretative codes have meta-rules, either semantic or syntactic, that governs the use of interpretative codes. It is conceptually the case that one of these two scenarios will arise. These two scenarios will be explored in §5.2.1 and §5.2.2.

5.3. Part Three of Reason for Accepting Premise c): The Obligation to Decide

From §5.1 and §5.2, it is possible to conclude that there is a multiplicity of interpretative results and an absence of legal rules that guide and constrain the interpreter as to how to choose one among the many interpretative results. However, one additional step is required in order to make the case that discretion is a necessary feature in legal interpretation. This further step has to do with prescribing a legal obligation that judges have to decide a case. As I have covered in §4.2, a typical rational legal system contains the non-liquet rule. This rule prescribes the obligation to decide all cases. This obligation is applicable even when there are no legal rules that govern the case at hand. Its scope encompasses both the final decision of the case, as well as all the other decisions that judges need to make throughout the legal process. One of these decisions is the one regarding which interpretative tool the norm that will decide the case will be grounded.

As stated in §4, whenever the interpretation of a norm formulation is required, the interpretative result ought to be grounded in an interpretative directive. Although there are interpretative negative spaces regarding how to use the interpretative code, the non-liquet rule demands a decision that will settle this specific matter regardless. Due to the existence of these interpretative negative spaces, the decision about the interpretative directive necessarily amounts to a choice over which interpretative tool will be selected. In other words, discretion is a necessary feature in legal interpretation.

Due to the obligation to decide, judges must necessarily exercise discretion in legal interpretation.

5.4. Identifying Discretion in Legal Decision-Making

The existence of interpretative negative spaces allows for a moderate account of discretion in legal interpretation. By moderate account, I mean that interpreters will exercise their discretion, in the form of judgment, whenever they choose both the interpretative directive and its interpretation. In other words, discretion can be reduced to a choice about which interpretive directive will ground the norm that will be applied in a given case.

Two comments are in order. First, discretion does not pervade the entire process of legal decision-making, this is not what I am claiming. It is only limited to the decision about the interpretative directives. Second, discretion is not merely the result of certain features of natural language which would figure prominently with a ‘plain meaning’ rule.

Although interpretative codes are thought to help reduce ambiguity and vagueness, they would explain the presence of a plurality of norms, thus contributing to the indeterminacy of law. Notice, however, that this plurality of different norms is not the result of certain features of natural languages that affect the law. Although ambiguity and vagueness play a role in legal interpretation, the picture of legal indeterminacy is complete when it is understood in combination with the notion of a rational legal system. Since legal systems cannot have redundant legal rules, each interpretative code will yield a different norm. Thus, legal interpretation necessarily involves a choice. This choice is about which norm the judge will apply to decide the case. In other words, discretion is a necessary feature in legal interpretation.