Abstract
Vagueness in the law, as elsewhere, comes in different forms. Some of it is unavoidable, while other cases are optional and deliberately chosen by lawmakers. My main purpose in this essay is to distinguish between different types of vagueness in the legal context and to explain their rationales. The argument proceeds in two main stages: The first part is taxonomical, mostly about the semantics of vagueness, and related linguistic indeterminacies, that we find in statutory language. The second part takes up each one of these different types of vagueness in law, suggesting some ways in which legal decision makers reason with vague language, and some of the normative considerations that apply, depending on the kind of vagueness involved.
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Notes
- 1.
According to the epistemic theory of vagueness (mostly developed by Timothy Williamson Vagueness (Williamson 1994), there is a fact of the matter about the application of vague terms to what seems like borderline cases, but those facts are not knowable. The epistemic theory of vagueness is rather controversial, and in any case, I will not explore its possible implications in this essay. Mostly, it probably makes no difference, in the legal context, which particular theory of vagueness one works with. Soames (2012), however, argues that the ways in which we think about vagueness in the legal case may actually provide support to nonepistemic theories.
- 2.
What I call “fuzziness” of borderline cases is often called second-order vagueness, meaning vagueness about where borderline cases begin and where they end. As long as it is clear that there is no first-order vagueness without second-order vagueness, the terminology should not be problematic. Still, I prefer to avoid the notion of second-order vagueness because I doubt that this is a matter of hierarchy.
- 3.
Notably, the epistemic theories of vagueness (and some others) deny the truth of the induction step. The main motivation behind the epistemic theories, and some other theories offered in the literature, is precisely the idea that we have to avoid the sorites paradox, otherwise, we face serious problems with the principle of bivalence and the law of excluded middle in propositional logic. There is certainly no consensus in the literature about how deep the sorites paradox is and whether it is avoidable. I intend to take no stance on this complex issue.
- 4.
There are exceptions, of course. For example, in child support law in the USA, there are some federal guidelines, adopted by most states that provide an exemption to payors who have “an extraordinarily high income.” I will discuss this case later on.
- 5.
See, for example, Commonwealth v. Cotto 52 Mass. App. Ct 225, 752 N.E.2d 768 (2001).
- 6.
I am not suggesting that this is the only semantic feature of words we can call vague in some sense or that there is a consensus in the philosophical literature about what vagueness really is. It is at least one standard sense of vagueness and that is how I use the term here.
- 7.
I assume here that incommensurability is a relation between two (or more) items such that it is not true that one item is better or worse than the other, nor is it true that they are on a par with each other, according to the relevant evaluative dimension.
- 8.
By this roughness, I mean that we know that age is not the only dimension determining maturity, but it is the dominant one, and making the cutoff point determined by this single criterion, tough inaccurate and oversimplified, for sure, is not an obvious miss or a gross misconception.
- 9.
Endicott (2011) provides a very elegant account of these considerations in greater detail.
- 10.
It is possible that other conversational maxims, such as the maxim of quantity, also have borderline cases that would generate conversational vagueness in a similar way.
- 11.
It is not essential to my point here that the examples in the text have something to do with the distinction between referential and attributive uses of definite descriptions; other kinds of examples will be used later.
- 12.
Consider, for example, the various uses of the word “man,” such as in, “Jo finally behaved like a man” (man as stereotype); “Marriage is a contract between a man and a woman” (man as adult male or gender); “Socrates is a man and therefore mortal” (man as a member of Homo sapiens). These kinds of examples are often given as examples of polysemy, and surely, there is a sense in which they are. But the use of “man” to stand for a stereotype can also be analyzed as a quasi-figurative use, one that goes well beyond the definite extension of the meaning of the word.
- 13.
On the role of general (and very vague) concepts, as opposed to conceptions, in constitutional documents, I have written a separate paper, “Meaning and Belief in Constitutional Interpretation” (Marmor 2013). The concept v conceptions distinction raises many complicated issues that could not be dealt with here.
- 14.
Furthermore, it is easy to see how we get a sorites sequence here: Suppose we say that an electric bicycle is not a motor vehicle. Then, what about a small golf cart powered by an electric engine? A golf cart powered by a regular engine? A small scooter? And so on and so forth. As I explain in the text below, however, sorites sequence, which results from semantic features of words used, should not be confused with slippery-slope arguments, particularly of the causal-predictive type.
- 15.
A nice example is the case of Garner v Burr (1951), 1 KB 31. The British Road Traffic Act of 1930 stipulated that any “vehicle” traveling on a public highway must be fitted with pneumatic tires. Mr Burr fitted a poultry shed with iron wheels and pulled it with his tractor on a stretch of a highway. The court of appeals reasoned, quite sensibly, that even if a poultry shed fitted on wheels is not quite a vehicle, it counts as a vehicle for the purposes of the this law, because the manifest purpose of the law requiring pneumatic tires is simply to prevent damage to the asphalt roads. I have discussed this case in my “Textualism in Context” (Marmor 2012).
- 16.
See, for example, Randall v. Orange County Council Boy Scouts of America, 17 Cal. 4th 736, 952 P. 2d 261, 72 Cal. Rptr. 2d 453 (1998) where one of the main worries of the dissenting judge relies on this kind of argument.
- 17.
Traffic regulations often have some kind of a requirement to drive with reasonable attention to the conditions of the road. There are also countless such examples in US tax legislation. For instance, section 541 imposes an accumulated earnings tax on corporate-retained earnings beyond those retained “for the reasonable needs of the business.” Section 535(c): Tax-free mergers are typically conditioned on the transaction having a corporate “business purpose,” etc.
- 18.
I explained this in greater detail in Marmor (2011, 97).
- 19.
In fact, the problem is often more severe, because a serious concern about fairness also comes into the picture. The more vague a legal regulation is, in the sense discussed here, the more crucial it becomes for potential litigants to have information that enables them to predict courts’ decisions, which gives repeat players, mostly large corporations, considerable advantage over ordinary citizens.
- 20.
In some areas, precisification requires a great deal of expertise, of the kind that legislatures typically lack. But in such cases, legislatures tend to delegate the decisions to administrative agencies, not so much to the courts. And administrative agencies tend to issue detailed general guidelines, not case-by-case decisions.
- 21.
This idea is supported by the fact that most US states do not allow child support arrangements to form part of a prenuptial agreement. US tax legislation, as I mentioned earlier, is also replete with transparently vague terms. It is not all that surprising, given the fact that in US federal tax law, quite generally, retroactivity is not regarded as a major concern.
- 22.
In some rare cases in the US vague statutory references to a child’s “welfare” or a child’s “neglect” have been struck down as unconstitutionally vague (see, for example, Roe v Conn, 417 F. Supp. 769, (1976).) Most of these cases, as Roe v Conn exemplifies, are entangled with problems of racial discrimination and racial bias at the enforcement level, and I am told by experts that these kinds of issues are almost always lurking in the background of void for vagueness constitutional cases.
- 23.
Scope ambiguity is the typical case of syntactical ambiguity we find in legislative language.
- 24.
Technically speaking, this is probably an example of what Grice called “generalized conversational implicature,” such as the expression “an X,” without anaphora or further clarification, normally implicating that the speaker has no particular knowledge about the specifics of X or does not deem it relevant to the utterance in question. See Grice, (1989, 37). Similarly, the expression “A uses an X” would normally implicate that A uses the X for X’s typical function or purpose.
- 25.
I am certainly not suggesting that this is the only issue that is central to this complicated case, nor that it bears on the desirable result.
- 26.
In one clear sense, this is an oversimplification because I ignore the time sequence between the different pieces of legislation. But my point in the text is not to analyze the case, only to illustrate a general point.
- 27.
I am grateful to the participants of the legal theory workshop at UCLA (Feb 2013), the participants of the conference on Vagueness in Law at the NYU Department of Philosophy (March 2013), and the participants of the legal theory workshop at the Julius Stone Institute of Jurisprudence at the University of Sydney (April 2013) and to David Enoch and Alon Harel for helpful comments on a draft of this paper.
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Marmor, A. (2018). Varieties of Vagueness in the Law. In: Bongiovanni, G., Postema, G., Rotolo, A., Sartor, G., Valentini, C., Walton, D. (eds) Handbook of Legal Reasoning and Argumentation. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9452-0_19
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