Probably the most important problem for lawyers is
the relationship between cases that confront them and the
rules of the legal order that they have to apply. Lawyers
want to know whether a certain case falls under a certain
rule or, more generally, to which set of cases a certain rule
has to be applied. If they are able to answer this question,
then those lawyers can tell you fairly precisely what the
content of a certain rule is

Thaler, Michael

English

Elektronisch archivierte Theorie - Sammelpunkt

  257
Is Determinism with regard to the Spheres  
of Law or Nature Consistent?* 
 
Michael Thaler, Salzburg 
 
 
Probably the most important problem for lawyers is 
the relationship between cases that confront them and the 
rules of the legal order that they have to apply. Lawyers 
want to know whether a certain case falls under a certain 
rule or, more generally, to which set of cases a certain rule 
has to be applied. If they are able to answer this question, 
then those lawyers can tell you fairly precisely what the 
content of a certain rule is. 
If the Criminal Code provides that armed robbery 
should be punished by a prison sentence of 15 years 
whereas plain robbery only demands a prison sentence of 
10 years, then by way of interpretation the lawyers have to 
give an answer as to the difference between armed and 
plain robbery. 
At this point, the philosophy of law poses a crucial 
question: suppose a judge applies these rules in a certain 
case; is his ruling determined by these rules or do the rules 
leave him a certain freedom; is he strictly bound by the 
content of these rules or does he have discretion? If he is 
strictly bound, then there is one and only one correct 
ruling. If he has a certain discretion, he is free to choose 
among several equally correct solutions within the scope of 
his discretion. 
Philosophy of law offers a plethora of answers to 
the problem at issue1. The present essay shall be 
concerned with mainly one set of answers, which this 
author will call “legal determinism”. The main contention of 
legal determinism is that the legal order properly 
interpreted offers in each and every case one and only one 
correct answer. The legal order thus strictly determines its 
own application and leaves the judges no freedom of 
decision. 
This may seem to you a rather peripheral problem, 
restricted to a sphere of law that might as well be left to 
philosophers of law to worry about. The contention of this 
essay is that this is not the case and that there are 
structural parallels between the problem expounded here 
and the question of determinism with regard to human 
action within the sphere of nature. To prove the point, I 
shall start with a thought experiment designed to test the 
assumption of determinism within the sphere of law. In a 
second step, which I have to reserve for my talk at the 
symposium, a thought experiment is introduced with 
parallel structures with a view to testing determinism within 
the sphere of nature. If this argument proves to be 
successful, it should show that there are certain parallels 
between the fundamental problems within the different 
branches of philosophy. 
Consider a legal realm consisting of a lawmaker 
enacting legal rules, judges and authorities applying these 
rules to specific cases and persons with legal personality 
whose behavior is regulated by the rules of the legal order 
of this realm. 
The rules are usually structured in such a way that 
a legally relevant behavior pattern is connected with a 
                                                     
1
 See for instance Cohen (Ed.), Ronald Dworkin and Contemporary 
Jurisprudence, Totowa (1984) 
 
legal consequence. For instance, armed robbery is linked 
with a prison sentence of 15 years whereas plain robbery 
only demands a prison sentence of 10 years. 
The judges and officials as well as a certain 
number of persons belonging to the legal realm are to be 
considered as lawyers. Lawyers have the ability to 
envisage behavior patterns of persons belonging to the 
legal realm. Owing to this ability, they can rehearse 
possible cases in their minds. In turn, this enables them to 
give you a certain indication as to what has to be 
considered as the content of a certain rule. For instance, 
when asked "What is armed robbery?", they can offer you 
a few examples which according to them have to be 
considered as cases of armed robbery and also a few 
cases which in their opinion are lying outside the scope of 
this legally relevant behavior pattern. Their list of cases is 
highly selective and consequently the lawyers are far from 
certain where the exact boundaries of this legally relevant 
behavior pattern are situated. 
Suppose also that there is a super-lawyer who has 
a better understanding of the legal order than the other 
lawyers do. Let us call this super lawyer “Hercules”2. 
In a gigantic effort, Hercules constructs a theory on 
the legal order by reconstructing the principles underlying 
the rules pertaining to that order. By means of this theory, 
he is able to find for every possible case the right answer 
or the correct legal consequence. He can only do that by 
making the rules of the legal order explicit. 
Hercules’ way to make these rules explicit is to 
distinguish for instance the legal behavior patterns "armed 
robbery" and "plain robbery" with the help of some 
underlying principles of the legal order. 
How can Hercules make these rules explicit? Or in 
other words, how is he going to distinguish between the 
legal behavior patterns "armed robbery" and "plain 
robbery"? His way to do this is to find so called hard 
cases3 that seem to defy the boundaries of the legal 
behavior patterns. He makes the boundaries tight also with 
respect to hard cases by resorting to the underlying 
principles of the legal order. According to his theory, if you 
interpret the rules in the light of their underlying principles, 
they become explicit even with regard to hard cases. The 
added principles make the boundaries of the legal 
behavior patterns tight, which could for instance enable 
you to define the term "plain robbery" as "unarmed 
robbery". 
But how do you know that you really succeeded in 
making the rules of the legal order explicit? In order to test 
your result, you would have to envisage all possible cases 
and to put them into distinct sets namely those cases that 
fall under a certain legal behavior pattern and those that do 
not. 
                                                     
2
 Compare Dworkin, Hard Cases, in: Taking Rights Seriously, Cambridge 
Mass. (1977), 105 et seq. 
3
 See again Dworkin, Hard Cases, 105 et seq. 
 * I thank the Jubiläumsfonds of the Austrain National Bank for supporting the research from which this contribution derives. The research which is meant to be
published in a book in the near future was enabled by an invitation of the Philosophy Department of Haravard University for which I have to thank Hilary Putnam
whose influence on my work should be noticeable in the following pages. My thanks are also due to Pascal Engel who invited me to give a talk on these issues at
the Université Paris IV-Sorbonne earlier this year. 
Is Determinism with regard to the Spheres of Law or Nature Consistent? - Michael Thaler 
 
 
 258 
Suppose that Hercules by means of his superior 
gifts is able to predict how persons belonging to the legal 
realm may act under every conceivable circumstance. This 
allows him to rehearse in his theory all possible cases in 
relation to the rules of the legal order. 
He achieves this by constructing a list of all 
possible behavior patterns that might serve as elements of 
a possible case. In addition, he puts these behavior 
patterns into different classes, namely those that have to 
be subsumed under a legal behavior pattern and those 
that do not. With the help of this manual, he can always tell 
whether a given case may be subsumed under a certain 
rule. Consequently, he is always in a position to give the 
right answer in a legal case, i.e., point out the correct ruling 
of the judge. 
The superior knowledge of Hercules is founded on 
his theory regarding the underlying principles4 of the legal 
order and on his manual of possible behavior patterns as 
elements of possible cases. The theory is reliant on the 
manual. Without the manual, you cannot be certain 
whether you have envisaged all hard cases and thus made 
all rules of the legal order explicit. 
This knowledge is in fact what every lawyer is 
striving for. Therefore, Hercules serves as an ideal that 
every lawyer strives to achieve. Every lawyer wants to be 
Hercules, that is to say, to reconstruct his theory together 
with his manual. 
There is, however, a cut5 between Hercules and 
his knowledge on the one hand and the persons and 
lawyers within the legal realm on the other hand. They lack 
his knowledge concerning their possible behavior. 
Because of this, lawyers are unable to envisage all 
possible behavior patterns. This prevents them from 
envisaging all hard cases, which in turn makes it 
impossible for them to make the rules of the legal order 
explicit. However, they are fellow lawyers with the capacity 
to reconstruct the superior knowledge of Hercules. 
If they are successful and thereby eliminate the 
cut, both theory and manual are not complete any longer. 
They now form part of the knowledge of lawyers and 
certain laymen within the legal realm, which leads to these 
persons no longer being the same. Their previous behavior 
patterns were linked to their imperfect knowledge of 
themselves. Now, in adapting themselves to their 
enhanced knowledge, they will develop new behavior 
patterns not foreseen by the manual. The new behavior 
patterns will lead to new hard cases, which the theory will 
be unable to deal with. 
To put it in a paradoxical way, by acquiring the 
knowledge on how to make the rules of the legal order 
explicit, the persons within the legal realm lose the 
capacity to do so. How is this possible? The knowledge of 
Hercules only applies to the behavior patterns of persons 
within the legal realm. It does not involve his own behavior 
patterns or behavior patterns of persons who share his 
knowledge. It is true that Hercules can solve all hard 
                                                     
4
 See Dworkin, The Model of Rules I and II, in: Taking Rights Seriously, 14 et 
seq. 
5
 The idea derived from an essay of Putnam, the theory of non-trivial systems 
as well as Gödels Incompleteness Theorem. Cp. Putnam, Realism with a 
Human Face, in: Realism with a Human Face, Cambridge Mass. (1990), 3; 
Foerster, Prinzipien der Selbstorganisation im sozialen und 
betriebswirtschaftlichen Bereich, in: Schmidt (Ed.), Heinz von Foerster, 
Wissen und Gewissen. Versuch einer Brücke (1993), 252 et seq.; Foerster, 
Lethologie, in: KybernEthik (1993), 126; Gill, Introduction to the Theory of 
Finite State Machines (1992); Gödel, Über formal unentscheidbare Sätze der 
Principia Mathematica und verwandter Systeme, I, Monatshefte für 
Mathematik und Physik, 38 (1931), 173. With regard to Gödels 
Incompleteness Theorem see also Nagel-Newman, Gödel´s Proof (1958) and 
Hofstadter, Gödel, Escher, Bach: an Eternal Golden Braid (1979). 
cases, but these are hard cases based on the behavior 
patterns of persons within the legal realm. It does not 
include the ability to solve hard cases based on a more 
extended and refined list of behavior patterns shared by 
Hercules and persons with the same knowledge. 
Let me give you an example: 
The original legal realm, i.e., the legal realm 
beyond the cut contained the two rules that armed robbery 
is to be punished by a prison sentence of 15 years 
whereas plain robbery only demands a prison sentence of 
10 years. With the help of his theory, Hercules was able to 
define "plain robbery" as "unarmed robbery". The manual 
furthermore enabled him to solve any hard case at hand, 
which made it possible to put any case of robbery in the 
classes of either armed or unarmed robbery. This result 
was, however, based on the list of possible behavior 
patterns of persons within the legal realm. 
Now that the theory and manual of Hercules have 
become common knowledge amongst lawyers and 
interested laymen, any lawyer can look up the list of 
behavior patterns with the intention of finding one of his 
own (newly acquired) behavior patterns or inventing a 
behavior pattern not contained in this list that defies the 
boundaries of the legal behavior patterns. For instance, he 
could ask himself "How could I rob a bank neither unarmed 
nor armed?" According to the list of behavior patterns 
pertaining to the original legal realm, this was not possible. 
You had to be either armed or unarmed. Since the list was 
complete, it excluded the behavior pattern the lawyer is 
looking for. The lawyer is interested in this behavior pattern 
because if found it would be an element of a hard case 
that could not be solved by Hercules. He could prove both 
Hercules’ theory and manual to be incomplete. 
The lawyer finally comes up with the solution that 
one has to rob the bank with an unloaded gun6. An 
unloaded gun may be considered as a weapon because it 
is a gun. It may however also be argued that in the present 
case the gun cannot serve as a weapon because it has not 
been loaded. This is a hard case because it defies the 
boundaries of the two legal behavior patterns at hand and 
more importantly, it is a hard case not foreseen by 
Hercules, which proves his theory and manual incomplete. 
One may argue that this does not prove legal 
determinism wrong. The lawyer in question may be 
considered as a sort of Super-Hercules trying to come up 
with an enhanced and refined theory and manual for the 
new and more complex legal realm. However, this does 
not evade the problem because now the cut reemerges 
between Super-Hercules and his knowledge on the one 
hand and the persons of the more complex legal realm on 
the other hand. They do not share the knowledge of 
Super-Hercules. Only because of that is the enhanced and 
refined knowledge of Super-Hercules able to determine the 
right answer or the correct ruling of a judge in a given 
case. Once this cut is eliminated again, the knowledge of 
Super-Hercules becomes incomplete. 
The problem is caused by the cut or rather by the 
fact that the cut is dynamic. If the cut is overcome, it is not 
overcome for good but appears at another point again. 
Given that, no theory or manual is truly comprehensive. 
One could counter this tendency either by eliminating the 
cut or by freezing it in a certain position. 
                                                     
6
 For a different example in a different context see Putnam´s case of a king 
ordering his mistress to come to the ball neither naked nor dressed. Her 
solution is to appear wrapped in a fishnet. Cp. Putnam, Rethinking 
Mathematical Necessity, in: Words and Life, Cambridge Mass. (1994), 254. 
Is Determinism with regard to the Spheres of Law or Nature Consistent? - Michael Thaler 
 
 
 259
The elimination of the cut would create a complete 
and comprehensive legal realm. Assuming the cut 
between Hercules and his knowledge, on the one hand, 
and the persons within the legal realm, on the other hand, 
is to be eliminated then this creates another legal realm, 
which should be complete and comprehensive by 
prerequisite. This is only possible, however, if the regress 
to the enhanced and refined theory and manual of Super-
Hercules is disconnected. The knowledge of Hercules 
needs to be represented as complete, that is to say also 
covering its own application, i.e., the behavior patterns 
based on its superior knowledge. This, however, is the 
enhanced and refined knowledge of Super-Hercules, 
which does not cover its own application. The application 
of this knowledge is only covered by the knowledge of a 
Super-Super-Hercules. The assumption, therefore, leads 
to a contradiction: The legal realm presupposed to be 
comprehensive turns out not to be comprehensive after all. 
Another possibility would be to freeze the cut in a 
certain position. Suppose Hercules is to be considered as 
an ideal that lawyers should seek to achieve, however, 
without the hope of ever reaching this goal. This would 
mean that only Hercules could make the rules of the legal 
order explicit because only Hercules is able to envisage all 
behavior patterns of persons belonging to the legal realm. 
Therefore, only Hercules would be in a position to solve all 
hard cases in order to make the boundaries of the legally 
relevant behavior patterns seamless. Lawyers could never 
dream of achieving this simply because they cannot 
foresee all possible behavior patterns of persons within the 
legal realm. 
This argument does not save legal determinism 
either. It is not necessary to foresee all possible behavior 
patterns. Suppose a lawyer reconstructs only part of the 
manual. Imagine, for instance, that it is the established 
behavior pattern to rob a bank either armed or unarmed. 
All he has to do is to invent a behavior pattern that would 
fall under the category of a bank robbery that is neither an 
armed nor unarmed bank robbery. If he can come up with 
such a behavior pattern, he has found the element of a 
hard case. With respect to this case, the rules of the legal 
order are not explicit, i.e., do not determine the right 
answer or the correct ruling of the judge. 
If you accept the assumption of the thought 
experiment that the rules of the legal realm are explicit, 
i.e., determining the right answer or the correct ruling of a 
judge in every conceivable case, you have acknowledged 
the fact that there are lawyers in such a realm. However, if 
there are lawyers in such a realm it is not possible that all 
the rules of the legal order are explicit. Your assumption 
leads to a contradiction. 
 
 
 


Is Determinism with regard to the Spheres
of Law or Nature Consistent?

Name not available

  257Is Determinism with regard to the Spheres  of Law or Nature Consistent?*  Michael Thaler, Salzburg   Probably the most important problem for lawyers is the relationship between cases that confront them and the rules of the legal order that they have to apply. Lawyers want to know whether a certain case falls under a certain rule or, more generally, to which set of cases a certain rule has to be applied. If they are able to answer this question, then those lawyers can tell you fairly precisely what the content of a certain rule is. If the Criminal Code provides that armed robbery should be punished by a prison sentence of 15 years whereas plain robbery only demands a prison sentence of 10 years, then by way of interpretation the lawyers have to give an answer as to the difference between armed and plain robbery. At this point, the philosophy of law poses a crucial question: suppose a judge applies these rules in a certain case; is his ruling determined by these rules or do the rules leave him a certain freedom; is he strictly bound by the content of these rules or does he have discretion? If he is strictly bound, then there is one and only one correct ruling. If he has a certain discretion, he is free to choose among several equally correct solutions within the scope of his discretion. Philosophy of law offers a plethora of answers to the problem at issue1. The present essay shall be concerned with mainly one set of answers, which this author will call “legal determinism”. The main contention of legal determinism is that the legal order properly interpreted offers in each and every case one and only one correct answer. The legal order thus strictly determines its own application and leaves the judges no freedom of decision. This may seem to you a rather peripheral problem, restricted to a sphere of law that might as well be left to philosophers of law to worry about. The contention of this essay is that this is not the case and that there are structural parallels between the problem expounded here and the question of determinism with regard to human action within the sphere of nature. To prove the point, I shall start with a thought experiment designed to test the assumption of determinism within the sphere of law. In a second step, which I have to reserve for my talk at the symposium, a thought experiment is introduced with parallel structures with a view to testing determinism within the sphere of nature. If this argument proves to be successful, it should show that there are certain parallels between the fundamental problems within the different branches of philosophy. Consider a legal realm consisting of a lawmaker enacting legal rules, judges and authorities applying these rules to specific cases and persons with legal personality whose behavior is regulated by the rules of the legal order of this realm. The rules are usually structured in such a way that a legally relevant behavior pattern is connected with a                                                      1 See for instance Cohen (Ed.), Ronald Dworkin and Contemporary Jurisprudence, Totowa (1984)  legal consequence. For instance, armed robbery is linked with a prison sentence of 15 years whereas plain robbery only demands a prison sentence of 10 years. The judges and officials as well as a certain number of persons belonging to the legal realm are to be considered as lawyers. Lawyers have the ability to envisage behavior patterns of persons belonging to the legal realm. Owing to this ability, they can rehearse possible cases in their minds. In turn, this enables them to give you a certain indication as to what has to be considered as the content of a certain rule. For instance, when asked "What is armed robbery?", they can offer you a few examples which according to them have to be considered as cases of armed robbery and also a few cases which in their opinion are lying outside the scope of this legally relevant behavior pattern. Their list of cases is highly selective and consequently the lawyers are far from certain where the exact boundaries of this legally relevant behavior pattern are situated. Suppose also that there is a super-lawyer who has a better understanding of the legal order than the other lawyers do. Let us call this super lawyer “Hercules”2. In a gigantic effort, Hercules constructs a theory on the legal order by reconstructing the principles underlying the rules pertaining to that order. By means of this theory, he is able to find for every possible case the right answer or the correct legal consequence. He can only do that by making the rules of the legal order explicit. Hercules’ way to make these rules explicit is to distinguish for instance the legal behavior patterns "armed robbery" and "plain robbery" with the help of some underlying principles of the legal order. How can Hercules make these rules explicit? Or in other words, how is he going to distinguish between the legal behavior patterns "armed robbery" and "plain robbery"? His way to do this is to find so called hard cases3 that seem to defy the boundaries of the legal behavior patterns. He makes the boundaries tight also with respect to hard cases by resorting to the underlying principles of the legal order. According to his theory, if you interpret the rules in the light of their underlying principles, they become explicit even with regard to hard cases. The added principles make the boundaries of the legal behavior patterns tight, which could for instance enable you to define the term "plain robbery" as "unarmed robbery". But how do you know that you really succeeded in making the rules of the legal order explicit? In order to test your result, you would have to envisage all possible cases and to put them into distinct sets namely those cases that fall under a certain legal behavior pattern and those that do not.                                                      2 Compare Dworkin, Hard Cases, in: Taking Rights Seriously, Cambridge Mass. (1977), 105 et seq. 3 See again Dworkin, Hard Cases, 105 et seq.  * I thank the Jubiläumsfonds of the Austrain National Bank for supporting the research from which this contribution derives. The research which is meant to bepublished in a book in the near future was enabled by an invitation of the Philosophy Department of Haravard University for which I have to thank Hilary Putnamwhose influence on my work should be noticeable in the following pages. My thanks are also due to Pascal Engel who invited me to give a talk on these issues atthe Université Paris IV-Sorbonne earlier this year. Is Determinism with regard to the Spheres of Law or Nature Consistent? - Michael Thaler    258 Suppose that Hercules by means of his superior gifts is able to predict how persons belonging to the legal realm may act under every conceivable circumstance. This allows him to rehearse in his theory all possible cases in relation to the rules of the legal order. He achieves this by constructing a list of all possible behavior patterns that might serve as elements of a possible case. In addition, he puts these behavior patterns into different classes, namely those that have to be subsumed under a legal behavior pattern and those that do not. With the help of this manual, he can always tell whether a given case may be subsumed under a certain rule. Consequently, he is always in a position to give the right answer in a legal case, i.e., point out the correct ruling of the judge. The superior knowledge of Hercules is founded on his theory regarding the underlying principles4 of the legal order and on his manual of possible behavior patterns as elements of possible cases. The theory is reliant on the manual. Without the manual, you cannot be certain whether you have envisaged all hard cases and thus made all rules of the legal order explicit. This knowledge is in fact what every lawyer is striving for. Therefore, Hercules serves as an ideal that every lawyer strives to achieve. Every lawyer wants to be Hercules, that is to say, to reconstruct his theory together with his manual. There is, however, a cut5 between Hercules and his knowledge on the one hand and the persons and lawyers within the legal realm on the other hand. They lack his knowledge concerning their possible behavior. Because of this, lawyers are unable to envisage all possible behavior patterns. This prevents them from envisaging all hard cases, which in turn makes it impossible for them to make the rules of the legal order explicit. However, they are fellow lawyers with the capacity to reconstruct the superior knowledge of Hercules. If they are successful and thereby eliminate the cut, both theory and manual are not complete any longer. They now form part of the knowledge of lawyers and certain laymen within the legal realm, which leads to these persons no longer being the same. Their previous behavior patterns were linked to their imperfect knowledge of themselves. Now, in adapting themselves to their enhanced knowledge, they will develop new behavior patterns not foreseen by the manual. The new behavior patterns will lead to new hard cases, which the theory will be unable to deal with. To put it in a paradoxical way, by acquiring the knowledge on how to make the rules of the legal order explicit, the persons within the legal realm lose the capacity to do so. How is this possible? The knowledge of Hercules only applies to the behavior patterns of persons within the legal realm. It does not involve his own behavior patterns or behavior patterns of persons who share his knowledge. It is true that Hercules can solve all hard                                                      4 See Dworkin, The Model of Rules I and II, in: Taking Rights Seriously, 14 et seq. 5 The idea derived from an essay of Putnam, the theory of non-trivial systems as well as Gödels Incompleteness Theorem. Cp. Putnam, Realism with a Human Face, in: Realism with a Human Face, Cambridge Mass. (1990), 3; Foerster, Prinzipien der Selbstorganisation im sozialen und betriebswirtschaftlichen Bereich, in: Schmidt (Ed.), Heinz von Foerster, Wissen und Gewissen. Versuch einer Brücke (1993), 252 et seq.; Foerster, Lethologie, in: KybernEthik (1993), 126; Gill, Introduction to the Theory of Finite State Machines (1992); Gödel, Über formal unentscheidbare Sätze der Principia Mathematica und verwandter Systeme, I, Monatshefte für Mathematik und Physik, 38 (1931), 173. With regard to Gödels Incompleteness Theorem see also Nagel-Newman, Gödel´s Proof (1958) and Hofstadter, Gödel, Escher, Bach: an Eternal Golden Braid (1979). cases, but these are hard cases based on the behavior patterns of persons within the legal realm. It does not include the ability to solve hard cases based on a more extended and refined list of behavior patterns shared by Hercules and persons with the same knowledge. Let me give you an example: The original legal realm, i.e., the legal realm beyond the cut contained the two rules that armed robbery is to be punished by a prison sentence of 15 years whereas plain robbery only demands a prison sentence of 10 years. With the help of his theory, Hercules was able to define "plain robbery" as "unarmed robbery". The manual furthermore enabled him to solve any hard case at hand, which made it possible to put any case of robbery in the classes of either armed or unarmed robbery. This result was, however, based on the list of possible behavior patterns of persons within the legal realm. Now that the theory and manual of Hercules have become common knowledge amongst lawyers and interested laymen, any lawyer can look up the list of behavior patterns with the intention of finding one of his own (newly acquired) behavior patterns or inventing a behavior pattern not contained in this list that defies the boundaries of the legal behavior patterns. For instance, he could ask himself "How could I rob a bank neither unarmed nor armed?" According to the list of behavior patterns pertaining to the original legal realm, this was not possible. You had to be either armed or unarmed. Since the list was complete, it excluded the behavior pattern the lawyer is looking for. The lawyer is interested in this behavior pattern because if found it would be an element of a hard case that could not be solved by Hercules. He could prove both Hercules’ theory and manual to be incomplete. The lawyer finally comes up with the solution that one has to rob the bank with an unloaded gun6. An unloaded gun may be considered as a weapon because it is a gun. It may however also be argued that in the present case the gun cannot serve as a weapon because it has not been loaded. This is a hard case because it defies the boundaries of the two legal behavior patterns at hand and more importantly, it is a hard case not foreseen by Hercules, which proves his theory and manual incomplete. One may argue that this does not prove legal determinism wrong. The lawyer in question may be considered as a sort of Super-Hercules trying to come up with an enhanced and refined theory and manual for the new and more complex legal realm. However, this does not evade the problem because now the cut reemerges between Super-Hercules and his knowledge on the one hand and the persons of the more complex legal realm on the other hand. They do not share the knowledge of Super-Hercules. Only because of that is the enhanced and refined knowledge of Super-Hercules able to determine the right answer or the correct ruling of a judge in a given case. Once this cut is eliminated again, the knowledge of Super-Hercules becomes incomplete. The problem is caused by the cut or rather by the fact that the cut is dynamic. If the cut is overcome, it is not overcome for good but appears at another point again. Given that, no theory or manual is truly comprehensive. One could counter this tendency either by eliminating the cut or by freezing it in a certain position.                                                      6 For a different example in a different context see Putnam´s case of a king ordering his mistress to come to the ball neither naked nor dressed. Her solution is to appear wrapped in a fishnet. Cp. Putnam, Rethinking Mathematical Necessity, in: Words and Life, Cambridge Mass. (1994), 254. Is Determinism with regard to the Spheres of Law or Nature Consistent? - Michael Thaler    259The elimination of the cut would create a complete and comprehensive legal realm. Assuming the cut between Hercules and his knowledge, on the one hand, and the persons within the legal realm, on the other hand, is to be eliminated then this creates another legal realm, which should be complete and comprehensive by prerequisite. This is only possible, however, if the regress to the enhanced and refined theory and manual of Super-Hercules is disconnected. The knowledge of Hercules needs to be represented as complete, that is to say also covering its own application, i.e., the behavior patterns based on its superior knowledge. This, however, is the enhanced and refined knowledge of Super-Hercules, which does not cover its own application. The application of this knowledge is only covered by the knowledge of a Super-Super-Hercules. The assumption, therefore, leads to a contradiction: The legal realm presupposed to be comprehensive turns out not to be comprehensive after all. Another possibility would be to freeze the cut in a certain position. Suppose Hercules is to be considered as an ideal that lawyers should seek to achieve, however, without the hope of ever reaching this goal. This would mean that only Hercules could make the rules of the legal order explicit because only Hercules is able to envisage all behavior patterns of persons belonging to the legal realm. Therefore, only Hercules would be in a position to solve all hard cases in order to make the boundaries of the legally relevant behavior patterns seamless. Lawyers could never dream of achieving this simply because they cannot foresee all possible behavior patterns of persons within the legal realm. This argument does not save legal determinism either. It is not necessary to foresee all possible behavior patterns. Suppose a lawyer reconstructs only part of the manual. Imagine, for instance, that it is the established behavior pattern to rob a bank either armed or unarmed. All he has to do is to invent a behavior pattern that would fall under the category of a bank robbery that is neither an armed nor unarmed bank robbery. If he can come up with such a behavior pattern, he has found the element of a hard case. With respect to this case, the rules of the legal order are not explicit, i.e., do not determine the right answer or the correct ruling of the judge. If you accept the assumption of the thought experiment that the rules of the legal realm are explicit, i.e., determining the right answer or the correct ruling of a judge in every conceivable case, you have acknowledged the fact that there are lawyers in such a realm. However, if there are lawyers in such a realm it is not possible that all the rules of the legal order are explicit. Your assumption leads to a contradiction.    

Is Determinism with regard to the Spheres of Law or Nature Consistent?

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