It is natural to think that law ought not to be vague. After all, law is supposed to guide conduct, and vague law seems poorly suited to do that. Contrary to this common impression, however, a number of authors have argued that vagueness in the law is sometimes a good thing, because it is a means to achieving certain valuable legislative ends. In this article, I argue that many authors?including Timothy Endicott and Jeremy Waldron?wrongly associate vagueness with instrumental roles that are really played by a closely related semantic phenomenon.
Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism?arguably best classified as a version of expected-applications originalism?is ?confused, implausible, and unworkable.? I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions.
Asgeirsson H (2016) On the Possibility of Non-literal Legislative Speech, In: Pragmatics and Law10 Springer International Publishing
The existing literature on indeterminacy in the law focuses mostly on the use of vague terms in legislation ? terms the use of which makes the content of the relevant utterance to some extent indeterminate. As I aim to show, however, not only is the content of a legislative utterance often indeterminate, it is often indeterminate what the content of such an utterance is. In the second and third section of the chapter, I discuss in some detail the conditions for successful non-literal speech and address the question whether these conditions are satisfied in the legal context. I argue that due to the fact that legislative contexts generally contain little unequivocal information about legislative intent, interpreters are typically not warranted in taking the legislature to have intended to communicate something non-literal. In the fourth section, I consider what I take to be the strongest case against my argument: the wealth of actual cases in which the courts have taken the content of the law to be something other than its literal content, seemingly based on relatively straightforward inferences about the legislature?s communicative intentions. As I hope to show, however, very few of these cases are as straightforward as they appear to be. In the fifth, and final section, I argue that the argument from sections two and three has important consequences for the extent to which we should take the content of the law to be determinate. This has significant implications for the analysis of a number of important but controversial legal cases, which I discuss in some detail.
In "The Value of Vagueness," Timothy Endicott argues that vague law can be better than precise law. I think he is in many respects correct, but will suggest that we modify and supplement his framework in order to get a firmer grip on what I call the Lawmakers' Challenge: the scenario in which lawmakers find themselves when they must determine whether the consequences of precision are worse than the consequences of vagueness. This will allow us to identify several points of actual and possible disagreement regarding the value of vagueness for law, each of which could affect Endicott's claim that vagueness is sometimes preferable to precision. The framework will also allow us to compare positions that seem ? on the face of it ? hard to compare, due to the fact that they rest on different theories of value and/or different theories of law.
Scott Soames has recently argued that the fact that lawmakers and other legal practitioners
regard vagueness as having a valuable power-delegating function in the law, evidenced by
actual legislative practice, gives us good reason to favor one theory of vagueness ? the partialdefinition/
context-sensitive theory ? over another ? the epistemic theory. The reason, Soames says, is
that for a significant set of cases, the former helps explain this function, whereas the latter
does not. If Soames is right, then facts about legal practice can in an important sense
adjudicate between rival theories of vagueness, which is an exciting conclusion, both from
the point of view of philosophy of law and philosophy of language. The argument is also
likely to generate considerable optimism about what else we might expect to learn about
language by looking at the law.
The purpose of this paper is to significantly temper any such expectations, by
arguing that we have to give up the one premise of Soames?s argument that he seems to take
to be uncontroversial: that the legal content of a statute or constitutional clause is identical
with, or constituted by, its communicative content. Following Mark Greenberg, we can call
this a version of the communicative-content theory of law.
Recently, the communicative-content theory has come under serious pressure from
several prominent philosophers of law and legal scholars ? including Greenberg, Lawrence
Solum, and Dale Smith ? who point out that legal textbooks are full of examples in which
there appears to be some clear difference between the communicative content of a statute or
constitutional clause and its legal content. I argue that the problem raised by these examples
gives us good reason to reject identity- and constitution-based version of the theory, like
Soames?s, but go on to provide a preliminary sketch of my own account of legal content ?
the Pro Tanto view, as I call it ? and show how it avoids the problem by allowing us to explain
away the apparent ?gaps? in a principled and unified way.
Despite being a version of the communicative-content theory of law, however, the
Pro Tanto view does not suffice to vindicate Soames?s argument for the partialdefinition/
context-sensitive theory of vagueness, which I examine in some detail in the latter
half of the paper. Due to the need for a fairly complex account of the relationship between
communicative content and legal content, facts about legal practice do not, after all, see
Roy Sorensen has argued that vagueness in the law cannot be justified by appeal to the value of power-delegation, and thereby threatens to take away one of the main reasons for thinking that vagueness can be valuable to law. Delegation of power to officials is justified, he thinks, only if these officials are in a better position to discover whether a particular x is F, a condition not satisfied in cases of vagueness. I argue that Sorensen?s argument is unsound: delegation of power can be valuable even if the delegates are not in a better position to answer that question.