Vagueness in language and in lawA speed limit on a highway is a fairly precise law: in most cases it is clear whether a driver has conformed to the standard. But highway traffic regulation also needs (and typically uses) rules against careless or dangerous driving — abstract standards which are designed to control a variety of behaviour that lacks the uniform, measurable feature (speed) that allows the precision of a speed limit. Vague laws, like a rule against careless driving, pose problems for philosophy of law that are related to problems that philosophers of language and of logic have addressed in arguments about the paradox of the heap. Suppose that, according to law, it counts as careless driving to drive with bald tires. If the law gives a precise definition of the thickness of tire tread that counts as bald, then in this regard the law is (more or less) precise, and for the purposes of the law, virtually every tire is either clearly bald or clearly not bald. But if there is no such precise standard, then there are ‘borderline cases’ in which it is neither clearly true that a tire is bald, nor clearly false. And we can construct a sorites series, and a sorites paradox for the application of the law:
… N. So a tire never goes bald. N+1. So no one can ever break the rule against careless driving by driving with bald tires. The false conclusion arises by apparently valid reasoning from apparently true premises. Philosophical approaches to the paradox seem to have implications for legal theory: arguments that vague terms are incoherent, and that reasoning with them is impossible, would support arguments that vague laws are incoherent. Since vague laws are an important part of every legal system [Endicott 2001], the implications seem to be far-reaching. ‘ Epistemic ’ arguments that the only way to solve the paradox is to deny the truth of step 2 (so that vagueness is a problem of ignorance as to where the sharp boundary is between tires that are and are not bald) imply that there is always a right answer to the application of a law stated in vague language. Arguments that the application of a vague expression is indeterminate in borderline cases (or in some borderline cases) imply that the application of a law that can be expressed in vague language is indeterminate in some cases. But it is even controversial whether such theories matter to legal philosophy [Schiffer, 2001 and Greenawalt, 2001]. Philosophers of law have not been especially concerned with the question of how to solve (or to resolve) the paradox, but they have debated the nature of borderline cases, and its implications for the role of judges in a community, and for the possibility of the rule of law. If the application of vague laws is indeterminate in some cases, then in those cases a judge (or other official) responsible for applying the law cannot do so (and in fact, no one can use the law to guide their conduct). Some legal philosophers have responded to this problem by claiming that judges never (or virtually never) have such a choice, and that there is virtually always a right answer to an issue of legal rights [Dworkin, 1986a, 1991]. Others have responded to the problem by claiming that the law gives judges discretion, in all or some borderline cases, to decide issues that the law does not determine [Hart, 1994, chapter VII.1]. That is, the standards of the system leave a choice to judges as to how to decide the issue. Then judges must treat the parties to litigation as having liabilities or obligations or entitlements that were not (determinately) theirs at the time when the dispute arose. That power of judges appears to run contrary to the principle of the rule of law, that laws (or at least, that legal burdens) should not be imposed retrospectively. It is difficult to discern the connection between these problems for legal philosophy, and the debates about the paradox of the heap in philosophy of logic. There are two related reasons. First, lawmakers avoid ordinary vague expressions like ‘driving too fast’ and prefer precise speed limits (or blood alcohol limits, or tire tread measurements). When the law uses vague language, it uses abstract evaluative expressions. Lawmakers typically do not prohibit driving with ‘bald’ tires; they either impose precise measures, or address the problem as part of a general prohibition on, e.g., ‘careless’ driving. The latter sort of standard calls upon its subjects to construct a view of the care that, in their law, a driver owes to another person — and not merely to ask, how bald is a bald tire? Such standards are a very common and a very important part of lawmaking technique. A negligence standard may require ‘reasonable care’; a constitution may define a procedural right as a right to ‘due process’, or a contract may require the delivery of goods in ‘satisfactory condition’. Those terms are very different from the vague descriptive terms that philosophers of logic use to illustrate their arguments about the sorites paradox (‘heap’, ‘thin’, ‘bald’, ‘red’…). It misses the point, you might think, to say that abstract standards do not draw sharp lines, because they are not designed to draw lines at all. By using an abstract standard, the lawmaker requires the people who must apply the law to construct a theory of the standard (of care, or of process, or of condition), which will draw any line that is needed. Ronald Dworkin has claimed that abstract expressions are not vague at all — that they have a different semantics from that of vague words like ‘heap’ (Dworkin, 1986b, 17). Secondly, the legal use of an expression may be very different from its ordinary use. Principles of legal interpretation (for example, a legal requirement that vague criminal enactments are to be interpreted as applying only in clear cases) may make the legal effect of the use of a word more precise than its ordinary effect. The interpretation of a legal prohibition on careless driving demands an understanding of what counts as careless for the purposes of the law. Given these features of law, it may seem that logicians' discussions of heaps and baldness are beside the point, and that legal reasoning is exempt from any implications of the paradox for logic or for semantics. That would be a mistake. Statements of law that use abstract expressions certainly are vague in the philosophers' sense: they appear to be susceptible to sorites reasoning. ‘Careless driving’ in its legal sense is a much more complex concept than ‘driving with bald tires’, and driving with bald tires is an instance of careless driving only in virtue of the evaluative and contextual considerations that must be understood if the law of careless driving is to be understood. Yet ‘careless driving’ is susceptible to sorites reasoning precisely because those evaluative and contextual considerations give reason to conclude that it is careless to drive with bald tires. For all their complexity (and their relation to deep questions of the rights of the citizen and the responsibilities that a community can justifiably impose on the citizen), those considerations do not determine a standard that is more precise than a standard that could be expressed using such an ordinary vague expression as ‘bald’. That is, those considerations do not provide a way of distinguishing between one tire in the sorites series and the next. Similarly, it is possible to construct sorites series for the application of even more abstract legal standards such as the United States constitutional prohibition on cruel and unusual punishment, or the right to due process — evaluative tests with special legal meanings that can only be understood in the context of a whole legal system (and by reference to their elaboration and development in a common law system of precedent). Consider again the case of Garner v Burr (above, section 2.2). The term ‘vehicle’, as properly understood for the purposes of the Road Traffic Act, is vague if there are borderline cases for its application (cases in which it is unclear whether the term applies to some object). It may seem that nothing is more patently a borderline case of a ‘vehicle’ than a chicken coop on wheels. But we should bear in mind that (if the discussion in section 2.2 above is sound) the correct application of the term depends on legal principles relating to the purposes of the legislation and the need for clarity in criminal liabilities. So the chicken coop on wheels is a borderline case if it is unclear how those principles required the term to be applied. And the application of the term was indeterminate in the case, if those principles did not require a decision one way or the other. Of course, the appeal court held that a conviction was required — which we might say amounts to a decision that the term applied determinately to the chicken coop on wheels. The magistrates and the appeal court disagreed about it, but that disagreement in itself does not mean either that the application of the term was determinate or that it was indeterminate. And the fact that the appeal judges seem to have thought that the term clearly applied to the chicken coop cannot tell us that the application of the term was determinate. The magistrates' approach put a special emphasis on the principle of certainty in criminal liability, and the appeal court's approach put a special emphasis on the effective accomplishment of the purpose the legislation was designed to pursue. Either approach would take the law in a certain direction. But the application of the term was indeterminate (before the decision of the appeal court set a precedent) if neither approach was demanded by the complex resources of legal reasoning that the courts (as a matter of legal obligation) had to act upon. If that was the case, then the appeal court's decision was not contrary to the law — but a decision upholding the acquittal would not have been contrary to the law, either. That account of a case like Garner v Burr would support the controversial claim that judges have widespread discretion in resolving legal disputes. Legal philosophers have debated whether that claim undermines the ideal of the rule of law, or reflects a basic requirement of the rule of law: that a legal system needs techniques for the resolution of legal issues that are not determined by the law (see Endicott 2000, chapter 9).
|
