Bigwood and Dietrich, ‘Uncertainty in Private Law: Rhetorical Device or Substantive Legal Argument?’

This article examines the normative weight of ‘certainty’ as a legitimate end in private law theory and adjudication. Claims of uncertainty tend to neglect or ignore a simple proposition: namely, that the same criticism could equally be levelled against many established jural concepts, and yet it is not. This article aims to demonstrate that criticism of jural concepts (principles, application criteria, etc) as too uncertain or vague is often selectively made. In many instances, the law, given its complex nature and society’s expectations of what it is meant to deliver, cannot avoid resort to concepts whose meanings are unfixed and whose applications leave considerable scope for expert judgement. This article argues that courts and commentators who rely on uncertainty arguments must reflect more critically on what ‘uncertainty’ means, what ‘too much’ uncertainty is, and whether ‘certainty’ is a feasible juristic goal in the relevant context. The article concludes by offering some observations about the persuasive force of arguments that are directed at the legitimacy and functionality of open-textured legal concepts. It stresses that the critical issue in many instances of putative uncertainty is a failure by courts and jurists to settle upon an agreed normative grounding for the given legal concept.

Richard Bigwood and Joachim Dietrich, Uncertainty in Private Law: Rhetorical Device or Substantive Legal Argument?, Melbourne University Law Review, forthcoming 2021.

First posted 2021-08-14 09:00:45

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