The Nature and Value of Vagueness in the Law

Author: Hrafn Asgeirsson
Publisher: Hart Publishing
ISBN: 9781849466066
Published In: April 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Lawmaking is - paradigmatically - a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, it is sometimes vague what content they communicate, and even when it is clear, the content itself is sometimes vague.

In this monograph, Hrafn Asgeirsson examines the nature and consequences of these two linguistic sources of indeterminacy in the law. The aim is to give plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? Asgeirsson argues that vagueness in the law is sometimes a good thing, although its value should not be overestimated.

He also proposes a strategy for resolving borderline cases, arguing that textualism and intentionalism - two leading theories of legal interpretation - in a significant sense often complement rather than compete with each other.

1. Authority, Communication and Legal Content

I. The Communicative-Content Theory of Law and Its (Recent) Critics

II. The Pro Tanto View about Legal Content

III. Authority, Communication and Legal Content

2. On the Instrumental Value of Vagueness in the Law

I. Incommensurate Multidimensionality, Extravagant Vagueness and Endicott's Argument from Instrumental Necessity

II. Incommensurate Multidimensionality is Doing the Real Work

III. The Impossibility of Specification

IV. Are Incommensurate Multidimensionality and – Hence – Vagueness Really Necessary?

V. Waldron's Argument from Facilitation

VI. Possible Reply: Vagueness Really is a Means to the Relevant Ends

VII. Another Possible Reply: The Logic of Value Validates Closure under Necessary Consequence

3. Vagueness and Power Delegation in Law

I. Sorensen's View

II. The Value of Vagueness

III. Summary

4. Vagueness, Uncertainty and Behaviour

I. Endicott's Argument from Comparative Value

II. Hadfield on the Value of Vagueness-related Uncertainty

III. Sorensen on Vagueness-related Uncertainty and Legal Unpredictability

5. On the Possibility of Non-literal Legislative Speech

I. The Conditions for Non-literal Speech and the Legislative Context

II. Revising the Argument: Restrict, Reconstruct, or Both?

III. Testing the Argument against Experience: Ekins's Argument from Examples

IV. Indeterminacy about Utterance Content

6. Textualism, Content and Interpretation

I. Textualism and Legislative Intentions

II. Textualism, Communicative Content and Legal Content

III. Textualism/Originalism and Contextual Enrichment

IV. On the Plausibility of Conception Textualism

V. Contemporary Textualism and the Problem of Legislative Context

VI. Textualism and Legal Interpretation

7. Resolving Cases of Vagueness

I. Expressly Offered Rationale and the Notion of Commitment

II. Institutional Remedies to Non-co-operation

III. Is Expression Required?

IV. Commitment and Counterfactuals

V. Legislative Rationale and Levels of Abstraction

VI. Authority, Legislative Bargaining and Maximising Fidelity to Law

VII. Expressly Acknowledged Compromise vs Tacitly Acknowledged Compromise

VIII. Conclusion

8. Legal Practice and Theories of Vagueness

I. Explaining the Value of Vagueness in the Law

II. A Closer Look at Soames's Argument

III. Generalising the Argument: Other Cautionary Tales

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