1. Roberto Unger, "The Critical Legal Studies Movement," Harvard, Law Review 96 (1983): 561, 571.

2. Duncan Kennedy, "Form and Substance in Private Law Adjudication," Harvard Law Review 89 (1976): 1685.

3. Another strategy suggested by the connection between theories of legal reasoning and indeterminacy is first to determine the correct theory of legal reasoning and then to investigate the consequent concept of indeterminacy. That undertaking is beyond the scope of this effort.

4. Three places where radical indeterminacy might create difficulties are with respect to utilitarian grounds of obligation, with the duty to uphold just institutions, and with fraternity.

5. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969): 39.

6. Kress, "Legal Indeterminacy." California Law Review 77 (1989): 283.

7. See, e.g., Owen Fiss, "Objectivity and Interpretation," Stanford Law Review 34 (1982): 739, 749; Erwin N. Griswold, "The Judicial Process," Federal Bar Journal 31 (1972): 309, 314.

8. See Joseph Raz, The Morality of Freedom (New York: Oxford University Press, 1986), 100-101; A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), 6-7, 12, 195-96.

9. Alan Hyde, "The Concept of Legitimation in the Sociology of Law," Wisconsin Law Review 1983: 379.

10. Mark Tushnet, "Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles," Harvard Law Review 96 (1983): 781-82.

11. In this article, I consider for the most part the consequences of metaphysical or ontological indeterminacy for legitimacy concerns. I make some initial comments about epistemological indeterminacy in Kress, "A Preface to Epistemological Indeterminacy," Northwestern University Law Review 85 (1990): 134. See also infra notes, 38, 40.

12. "Liberal" is used throughout this article to refer to the tradition of political philosophy based on the moral authority of the individual, a tradition exemplified by Locke, Hume, Kant, Bentham, Mill, and Rawls. In this usage, Reagan, Bush, Bork, and Posner, as well as Dworkin, Dukakis, Carter, and the Kennedys, are liberals.

13. Actually, there are two separate questions here. First, why would conventional, liberal legal theorists care if the indeterminacy thesis were true? Second, what do critical legal scholars claim that the indeterminacy thesis shows to be wrong with conventional legal theory? My suggestion is that both conventional legal theorists and some influential critical legal scholars accept the view that significant indeterminacy undercuts the legitimacy of courts, although the attribution of that view to liberal legal theorists is more certain than the attribution to critical legal scholars.

14. Joseph William Singer, "The Player and The Cards: Nihilism and Legal Theory," Yale Law Journal 94 (1984): 1, 12-13.

15. Ibid., 12.

16. Ibid., 11.

17. Ibid., 14.

18. Andrew Altman, "Legal Realism, Critical Legal Studies, and Dworkin," Philosophy and Public Affairs 15 (1986): 205, 227-35.

19. Duncan Kennedy, "Legal Formality," Journal of Legal Studies 2 (1973): 351-54.

20. The requisite consent could be to the entire constitutional framework. Alternatively, it might be thought that voting for legislative representatives is a form of tacit consent.

21. Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 102-5, 113-15; see also Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917), Holmes, J., dissenting: "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions."

22. H. L. A. Hart, "Positivism and the Separation of Morals," Harvard Law Review 71 (1958): 593, 606-7.

23. Steven J. Burton, An Introduction to Law and Legal Reasoning (Boston and Toronto: Little, Brown, 1985), 176-84, 199-214 (suggesting contextual grounds for legitimacy in place of criteria requiring rigid formalist construction).

24. See, e.g., Kennedy, "Legal Formality," 35-54.

Even if some critical scholars would not locate the significance of the indeterminacy thesis in its consequences for political legitimacy, there is certainly a significant strain within critical legal scholarship that would. It will therefore repay our patience if we examine the connection between these critical legal scholars' claims of indeterminacy and legitimacy by brief consideration of the texts of Singer, Altman, and Kennedy.

It should be acknowledged that there are other perspectives in critical legal scholarship regarding the significance of the indeterminacy thesis in addition to its consequences for legitimacy. Some emphasize its instrumental value in unfreezing legal consciousness and effectuating critical scholars' political agenda. Additionally, if law is indeterminate, then judges are political actors wielding great power. Law is politics. Indeterminacy thus raises issues concerning the proper and best exercise of that power by judges and concerning which institutional frameworks are most conducive to the wise exercise of that power. But these inquiries raise, albeit indirectly, much the same questions as would be raised by inquiring directly about the legitimacy of adjudication under conditions of indeterminacy. This is especially so if the conditions for wise exercise of judicial power and the legitimacy of adjudication are, as this article suggests, largely dependent on the substantive virtues of the decisions judges make. I discuss instrumental uses of the indeterminacy thesis in "Legal Indeterminacy," 284, 336.

25. For an analogous reconstruction of the formalists' argument that adjudication is illegitimate because judges do not always apply law, see Burton, Introduction, 183-84.

26. Simmons, Moral Principles and Political Obligations, 191.

27. See Leslie Green, The Authority of the State (Oxford: Clarendon: New York: Oxford University Press, 1988); Joseph Raz, The Authority of Law (Oxford: Clarendon: New York: Oxford University Press, 1979); Simmons, Moral Principles and Political Obligations, 191-95; Steven J. Burton, "Law, Obligation, and a Good Faith Claim of Justice," California Law Review 73 (1985): 1956, 1980-82.

28. This may appear incoherent because where law is indeterminate, there is no action that must be performed or avoided, no norm that must be obeyed. But the point is that citizens are obligated to obey official acts that specify or concretize the law, thus making it determinate where it was formerly indeterminate.

29. The claim that most or all citizens have consented to the law is considered a fantasy by most contemporary political theorists. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), 194; David Lyons, Ethics and the Rule of Law (Cambridge and New York: Cambridge University Press, 1984), 211; M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" Yale Law Journal 82 (1973): 950, 960-64.

30. Jean Jacques Rousseau, The Social Contract, trans. Maurice Cranston (Harmondsworth, Eng.: Penguin, 1968).

31. See David Hume, "On the Original Contract," in Essays: Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Fund, 1985); John Plamenatz, Consent, Freedom, and Political Obligation (London and New York: Oxford University Press, 1968), 7.

32. Hume, "On the Original Contract," 475; see Dworkin, Law's Empire, 192-93.

33. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 342-50; Simmons, Moral Principles and Political Obligations, 101-8; H. L. A. Hart, "Are There Any Natural Rights?" Philosophical Review 64 (1955): 175, 185; John Rawls, "Legal Obligation and the Duty of Fair Play," in Law and Philosophy, ed. Sidney Hook (New York: New York University Press, 1964), 3, 9-10.

34. For discussion of the duty to uphold unjust institutions, see Rawls, Theory of Justice, 333-42; Simmons, Moral Principles and Political Obligations, 143-56; see also Rawls, "The Justification of Civil Disobedience," in Civil Disobedience: Theory and Practice, ed. Hugo Bedau (New York: Pegasus, 1969), 240-41.

35. See Perry, Morality, Politics, and Law, 39-43.

36. These practical distinctions still do not "capture the intimacy of the special duty"; ibid.

37. Raz, Morality of Freedom, 53.

38. Dworkin, Laws Empire, 195-216. The notion of indeterminacy employed here is epistemological, not metaphysical. Because Dworkin would reject the metaphysical issue as meaningless, an epistemic concept fits more naturally with his interpretive attitude.

39. Ibid., 88-89, 136-39. See also Kress, "The Interpretive Turn," Ethics 97 (1987): 834, 836: "Law, Dworkin contends, requires disagreement at the appropriate golden mean to flourish. Too little and law stagnates; too much and law founders."

40. Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon: New York: Oxford University Press, 1986), 160-62, 168-82; see generally 147-90. Here, also, an epistemological conception of indeterminacy fits more naturally than an ontological one.

41. This is an appropriate place to note an oversimplification in the analysis. I have at various points moved freely between the legitimacy of government, or the institution of adjudication, and citizens' obligations to obey. In fact, there are other legitimacy concerns besides the obligation to obey the law, including rule of law and democratic values. While a more extensive examination would need to consider them, the conclusion of the analysis would remain unchanged.

Another complication worth noting but insufficient to affect the argument concerns the relationship between governmental legitimacy and citizens' obligations to obey. Although these two notions are usually coextensive, they are analytically separable and on occasion will come apart. See Jeremy Waldron, "Theoretical Foundations of Liberalism," Philosophical Quarterly 37 (1987): 127, 136-39 (arguing that consent, especially hypothetical consent, arguments for legitimacy are sometimes more powerful than consent arguments for obligation). For example, under the Benthamite "settled expectations rationale" for government legitimacy, sufficient indeterminacy that fails to promote utilitarian values exceeding that of the expectations it unsettles will block legitimacy. But given de facto adjudicatory institutions, it may nonetheless promote utility to obey their decisions, to avoid interminable disputes, and to promote coordination of behavior. Thus, a legal system that is illegitimate on Benthamite grounds because significantly more deterministic legal systems are available may nonetheless generate an obligation that citizens obey its commands. Similarly, a particular judicial order that is illegitimate and should not have been given because it fails to maximize utility may nonetheless, once given, generate an obligation to obey deriving from the disutilities arising from disobedience.

42. But see A. D. M. Walker, "Political Obligation and the Argument from Gratitude," Philosophy and Public Affairs 17 (1988): 191 (defending the argument from gratitude).

43. Fuller, Morality of Law.

44. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 129.