Contestation all the way down. Legal indeterminacy, Norm Contestation, and the Formal Validity of Norms.

This paper contends that the norms literature underestimates the full potential for contestation in the interpretation and implementation of legal norms. In particular, the paper engages with Wiener’s theory of contestation and contends that Critical Legal Studies (CLS) provides the most fitting legal foundation for Wiener’s theory. Indeed, this theory and CLS share an understanding of norms as indeterminate, contingent, and partially constituted by those who implement them. Moreover, incorporating CLS’ insights can contribute to strengthening Wiener’s theory. Indeed, CLS suggests that the formal validity of a norm is likely to be questioned at the implementation stage, an instance of contestation the theory does not engage with but that is true to Wiener’s emphasis on contestation “all the way down”.