This chapter focuses on work exploring the influence of ideology on judicial decision-making. It explores the nature of indeterminacy as developed by the Legal Realists and the Critical Legal Studies movement, the latter of whom regarded judicial decision-making as thoroughly political. It then takes up work, conducted largely by political scientists, that imagines judges as political actors in the same way that legislators are, and surveys both refinements to and critiques of that work.

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.

This chapter uses three classic examples to explain what entrepreneurship is NOT. Entrepreneurial decisions are different from managerial decisions, and cannot be understood within the neoclassical rational model. First, entrepreneurial decision-making is not scientific decision making, which is based on data and calculations, instead, it mainly depends on intuition, imagination, and judgement. Second, entrepreneurial decision-making is not about finding a solution under given constraints, instead it changes constraints. Third, entrepreneurial decision making is not solely profit focused, the entrepreneur has non-profit goals. Imagination is the most important for entrepreneurial decisions under an uncertain and indeterminate future. This means that mainstream economics’ externality theory, anti-monopoly theory, and corporate governance theory must all be revised. This also means industrial policy has lost its theoretical basis. This chapter is the core of the entire manuscript. It is extremely important for our understanding of the market economy.

In this concluding chapter, we identify two potent contributions of the concept of constitutional identity, underscoring and exploring its relationship with the associated ideas of disharmony and difference. We first discuss the relationship between constitutional identity and constitutional development, before turning to lessons that the concept of constitutional identity offers both scholars and practitioners. Against this background, we then identify three promising areas for future scholarly reflection and briefly sketch the first steps of a research agenda oriented towards carrying forward the project limned in this volume. Inspired by the analytic purpose underlying the concept of constitutional identity, our comments in this section are intended to be less prescriptive than interpretive. The scholarly futures we discuss emerge as much from the political world in which constitutional governance must now proceed as from the progress that scholars have made towards understanding the aspirations of that enterprise.

The Coda sketches how the distinctive tradition of uncertainty in nineteenth-century literature and culture changes with the rise of literary modernism. Uncertainty remains of vital interest to writers like Henry James, D. H. Lawrence, James Joyce, Virginia Woolf, and E. M. Forster. Yet a more self-conscious embrace of chance, contingency, and randomness, alongside a more thoroughgoing skepticism, disengages this writing from the earlier literature’s concerns. Further valences acquired by the concept of uncertainty in the early twentieth century – as radical indeterminacy in physics and contrast class to risk in economics – both intensify cultural interest in the topic and disarticulate its nineteenth-century framework. In a reading of Joseph Conrad’s novel Chance (1914), I argue that his emphasis on the value of momentary judgments, on knowledge as mercurial and provisional, and on the role of accident in literary plots all reprise Victorian tactics.

The introduction sets out the intent of the book, an overview of the major works in the field, and a view of the arguments appearing in each chapter. Gambling is central to the cultural, social, and intellectual history of the nineteenth century. Studying casino gambling provides a way to see how nineteenth-century Europeans understood their changing world, even as it also reflected those changes itself. In this way gambling was used in an explanatory capacity, one that let contemporaries probe the inner workings of the machine and the creation of knowledge. If we want to understand the intricate dance of society, culture, politics, and ideas, then gambling is a useful tool to pry open these different stories, allowing us to see better large historical transformations.

This chapter turns to the second step of interpretation, namely content-determination. This exercise can be narrated in two ways: first, by reference to the formal rules of interpretation set forth in the VCLT; second, in light of the assumptions, predispositions, and standards of acceptability shared by the judicial community. The juxtaposition of these accounts highlights the interplay between freedom and constraint in international treaty interpretation. What guides the gaze of the interpreter? Where are the boundaries of their discretion? On the one hand, VCLT rules are powerless before the ontological indeterminacy of legal norms, and have therefore little cash value when it comes to derive exact meaning. On the other hand, the patterned practices and background knowledge of the community impose powerful limitations on the interpreter’s discretion.

This chapter concludes the discussion of interpretation by focusing on the emotions and mental processes of the interpreter. Each case presents at least one dilemma that cannot be solved through pure legal deduction. What options, then, does the interpreter have? First, they will seek the illusory comfort of legal objectivity, and convince themselves that the answer is out there, buried somewhere in the record. But it is not. Second, the interpreter will try to exercise responsible agency and provide an answer that best resonates with their ethical or political commitments. But the interpreter does not really know which interpretive outcome is preferable. Third, the interpreter will turn to the standard practices of the community and write pages upon pages of corollary analysis, hoping that the intractable issue will magically vanish. Finally, the interpreter will stick to their decision and defend it as the sole logical solution.

This chapter offers a synoptic survey of work on the discourse dynamics of vague language. It starts by briefly introduction to the traditional philosophical puzzles of vagueness, to do with indeterminacy and tolerance. From there, it turns to evidence that vague language exhibits nontrivial discourse dynamics. Different approaches to the discourse dynamics of vagueness are taxonomized and critically evaluated. The chapter concludes by considering the prospects of leveraging an account of the dynamics of vague language to provide a solution to the traditional puzzles of vagueness.

Chapter 3 moves on to our first constellation, the utopian vision of Planet Earth as an actor in its own right. Rather than conceiving of humans as endowed with a special status that sets them apart from both non-human animals and the planetary ecosphere, proponents of this idea sketch a hypothetical scenario that destabilizes entrenched ways of reflecting on our species’ place in the world. I approach this proposal, framed by a What-If plot line, via two stages: first, by unpacking the Gaia hypothesis as recently revisited by Bruno Latour. I posit that Gaia should be deciphered as a framework that seeks to estrange us for, rather than from, the world. In a second step, the chapter directs attention to N. K. Jemisin’s Broken Earth trilogy, proposing that this fantasy text can further tease out the elusive Gaia figure. Even if the champions of the Gaia hypothesis as well as the author of the Broken Earth trilogy assess several options, their utopianism primarily consists in the speculative opening up of novel possibilities for being and living otherwise. A fault line running through the What-If plot line is therefore its characteristic reluctance to forge concrete ways forward.