RJLipkin at aol.com
RJLipkin at aol.com
Tue Sep 13 11:32:57 PDT 2005
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,
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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