We cannot be ruled by law

Vagueness in law

The argument is that vagueness, and resultant indeterminacies, are essential features of law. Although not all laws are vague, legal systems necessarily include vague laws. When the law is vague, the result is that people's legal rights and duties and powers are indeterminate in some (not in all) cases.

The indeterminacy claim seems to make the ideal of the rule of law unattainable: to the extent that legal rights and duties are indeterminate, we cannot be ruled by law. The indeterminacy claim is a threat to what it shall be called the "standard view of adjudication": the view that the judge's task is just to give effect to the legal rights and duties of the parties. These drastic consequences have made the indeterminacy claim into an important focus of controversy in legal theory in this century.

To put those controversies in a new light, the second characteristic mark of vagueness is addressed - the tolerance principle.

It would be senseless to try to quantify the indeterminacies that arise from vagueness in any legal system, but we should accept the general claim that they are significant. Unlike radical indeterminacy claims, the argument casts no doubt on the sense of the practice of law, or on the meaningfulness of statements of law.

The application of vague language is indeterminate in some cases but not in all cases.

The focus on vagueness is a paradigmatic source of indeterminacy in law, and a very important source. Along with express grants of discretion and conventions giving judges power to develop the law, it is one of the most important sources of judicial discretion. And unlike other sources of indeterminacy such as ambiguity, it is a necessary feature of law.

The similarity model claims that there is no more satisfactory way of picturing the application of vague expressions than to say that they apply to objects that are sufficiently similar to paradigms. The similarity model is barely a model, and is not a theory: It gives no general explanatory account of the application of vague expressions.


Professor Timothy Endicott, Dean of Oxford Law, 2007
http://fds.oup.com/www.oup.co.uk/pdf/0-19-826840-8.pdf