Timothy A.O. Endicott

Vagueness in law

1. Introduction 2. Linguistic Indeterminacy 3. Sources of Indeterminacy 4. Vagueness and Legal Theory 5. How not to Solve the Paradox of the Heap 6. The Epistemic Theory of Vagueness 7. Vagueness and Similarity 8. Vagueness and Interpretation 9. The Impossibility of the Rule of Law Bibliography Index

LAW IS NECESSARILY VAGUE

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law.

Putting interpretation in its place

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language.I argue (i) that the crucial element in Marmors analysis of interpretation is his treatment of Ludwig Wittgensteins remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmors can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.

Proportionality and Incommensurability

Proportionality doctrines in human rights adjudication require the judges to ‘balance’ interests that cannot actually be weighed against each other in any sort of scales. If judges are purporting to balance things that cannot actually be balanced, it may seem that the doctrines mean a departure from the rule of law, in favour of arbitrary rule by judges. I will argue that the resolution of incommensurabilities is not in itself a departure from the rule of law; the rule of law demands a system in which judges are often responsible for reconciling incommensurable interests. But some theorists have seen a potential in proportionality for rationality, transparency, objectivity, and legitimacy, which the doctrine cannot actually deliver. And proportionality reasoning involves pathologies, by which I mean structured tendencies toward misconceived decisions. I comment on some of these dangers, to illustrate the claim that they all depend on particular mistakes, and do not arise automatically from the judges’ role in resolving conflicts among incommensurable interests.

Adjudication and the Law

It can be compatible with justice and the rule of law for a court to impose new legal liabilities retrospectively on a defendant. But judges do not need to distinguish between imposing a new liability, and giving effect to a liability that the defendant had at the time of the events in dispute. The distinction is to be drawn by asking which of the courts reasons for decision the institutions of the legal system had already committed the courts to act upon, before the time of decision. I explain these conclusions through an assessment of the last episode in the debate between H.L.A.Hart and Ronald Dworkin.

Vagueness and Legal Theory

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkins) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.

Morality and the Making of Law: Four Questions

In a discussion of Nigel Simmonds’ book Law as a Moral Idea, I argue that Simmonds is right to call law a ‘moral idea’, implying a connection between law and the morally ideal; in my view, that connection is compatible with a necessary connection between law and the morally non-ideal. I ask four questions prompted by Simmonds’ work: Is politics a moral idea? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? For each question I discuss Simmonds’ approach, and I propose a tentative answer.

MAGNA CARTA 1215: A GLORIOUS FAILURE

Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.

What Human Rights Are There—if Any—and Why?

Are there human rights to a good such as social welfare, which depends on circumstances, and on the needs of a putative right-holder? Is justice constituted by rights? Does it take belief in God to understand the grounds of human rights? The essay responds to Nicholas Wolterstorff’s answers to these questions.

«Significado internacional»: la cortesía en la adjudicación de derechos fundamentales

Los derechos fundamentales (tales como el derecho a no ser perseguido o torturado, o el derecho a no morir por razones de religion, raza o pertenencia a un clan) han de respetarse y protegerse. Es muy facil estar de acuerdo con tal peticion, aunque cada uno de los aspectos a tener en cuenta de esos derechos plantea dificiles cuestiones a los abogados, los politicos y los filosofos: ?Que derechos (ademas de los que ya he mencionado) son fundamentales? ... ?Por que? ... ?Pueden ser compensados? ... ?Que personas y agencias son responsables de protegerlos, y como? ... Y las referidas personas y agencias, ?como han de comportarse las unas con las otras? ... De todos estos interrogantes, me limitare a comentar solo la ultima cuestion, refiriendome a ella denominandola como el problema de la cortesia. Es un problema de especial importancia legal. Algunos de sus aspectos han sido