(In)Determinacy and the social
Moore developed her ideas about (in)determinacy in a profound discussion of the study of law, which critically reviewed the then current anthropological approaches to law and regulation (Moore 1978).
She wrote at a time when the once-dominant structural-functionalist perspectives that focused on order were being challenged. Processual approaches that emphasized conflict became en vogue. Moore took issue with the dichotomies that dominated these discussions and from which researchers were to choose, such as order versus conflict, regularity versus change, structure versus process, and many more. She questioned the suitability of such dichotomies. Instead, she regarded these characteristics as co-existing aspects of social life that were to be studied in conjunction with one another. Therefore, she called for an analytical anthropological framework to take account of continuity and change, micro- and macro-perspectives, all premised on the postulate that “social life should be considered to be one of theoretically absolute indeterminacy [...] an underlying, theoretically absolute cultural and social indeterminacy, which is only partially done away with by culture and organized social life, the patterned aspects of which are temporary, incomplete, and contain elements of inconsistency, ambiguity, discontinuity, contradiction, paradox, and conflict” (Moore 1978, 4849). Such a model, she suggested, allows for studying the interrelated ways by which indeterminacy and determinacy, defined as that which is culturally or socially regulated or regularised, are produced and reproduced (53). It includes both intentional regulation and things that become intentionally or unintentionally regularised, such as patterns of behaviour that emerge over time through interaction. In short, only part of social life is regulated, and much regulation leaves considerable scope for freedom and thus uncertainty. Indeterminacy is the structural condition from which uncertainty in social interaction derives. And uncertainty may generate feelings of insecurity. One might say that rule of law mechanisms address the unintended uncertainties in the realm of intended determinacy. These mechanisms may especially address uncertainties that generate a sense of insecurity.Forty years later, Moore's remarks have lost none of their urgency. Even where organisations and institutions, including the law, have been established with the explicit goal of instituting high degrees of certainty, it requires a lot of energy for them to come even remotely close to accomplishing this goal. Within the realm of law, there remains much uncertainty. This is not always bad since overly strict regulations would seriously hamper efficiency, creativity, and flexibility. Indeed, various degrees of freedom and uncertainty are deliberately included in open regulations. But the very uncertainty that is welcomed by some generates deep feelings of insecurity in others. For example, we know this from the field of social security and from recent developments in the field of flexible labour relations and migration. Moreover, legal certainty in modern legal systems is unevenly distributed. Mechanisms to ensure legal certainty are strongest and institutionally most entrenched where it serves the interest of the powerful. The interests of the poor and powerless are far less institutionally supported; they enjoy lower degrees of legal certainty. Fundamental issues of power and inequality are involved. The rule of law and the underlying quest for legal certainty is not an entirely unproblematic way of dealing with these issues.