Umpiring Redux

[RJLipkin at aol.com]

In a message dated 9/13/2005 9:05:05 AM Eastern Standard Time,  
lsolum at gmail.com writes:

This  strikes me an analytically imprecise.  First, in neither case are
the  rules actually "indeterminate."  Rather, the rules that govern  the
first amendment and sports are "underdeterminate."  No one thinks  that
kicking a player repeatedly when he is down is NOT  unnecessary
roughness.  No one thinks that a statute prohibiting the  advocacy of
the election of Democrats to Congress--given roughly the  current
context--could possibly be consistent with the first  amendment.



I disagree with  Larry's thoughtful point.  The term "indeterminate" suggests 
two important  analytic points: (1) the meaning of the term is not fixed. 
(Perhaps, no term's  meaning is absolutely fixed.), and subsequently (2) a term 
can have simultaneous  meanings, perhaps even incompatible simultaneous 
meanings.  Although  perhaps pretty far from this thread, Quine's work on the 
indeterminacy of  translation in Chapter Two of Word and Object, if I recall at all 
correctly,  argued forcefully, the at least concerning referential meaning, not 
high on  Quine's list of meaning, a term is indeterminate in the sense that 
it's  translation will produce multiple meanings. I apologize if I'm 
vulgarizing  Quine; it's been a long, long time.
 
        Leaving Quine aside, legal  theory has been debating the plausibility 
of indeterminacy for at least two  decades. Distinctions such as ontological 
indeterminacy and epistemic in  determinacy sometimes dominate (to my mind 
distort) the debate. The fact that no  one believes "that kicking a player 
repeatedly when he is down is NOT  unnecessary
roughness," while true probably in all or most conceivable  contexts is not 
relevant in my view to whether a term has multiple, perhaps  incompatible, 
meanings. 
 
        The fact that in all  conceivable contexts, "equality" excludes 
slavery doesn't entail that  "equality" is not indeterminate in the sense that it 
may refer to (mean)  equality for blacks only, for blacks and women only, and 
so forth.  I think  Larry regards indeterminacy as meaning that a term can mean 
anything it all in  all conceivable contexts. I agree most (or perhaps all) 
rules are not  indeterminate in that sense.
 
        If I understand the term  "underdeterminate" to mean it's meaning is 
not fully specified, I think it's  related to, but nonetheless district from, 
indeterminacy of meaning.
 
Bobby.
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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