Vague expressions are omnipresent in natural language. As such, their use in legal texts is virtually inevitable. If a law contains vague terms, the question whether it applies to a particular case often lacks a clear answer. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and places judges in the position to decide impartially. Vagueness poses a threat to these (...) ideals. In borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. -/- In the philosophy of language, vagueness has become one of the hottest topics of the last two decades. Linguists and philosophers have investigated what distinguishes "soritical " vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of "vagueness ", let alone to the various theories that try to account for these phenomena. -/- The paper is an introduction to a book of the same title. Bringing together leading scholars working on the topic of vagueness in philosophy and in law, the book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. (shrink)

Vague expressions are omnipresent in natural language. Their use in legal texts is inevitable. A law phrased in vague terms will often leave it indeterminate whether it applies to a particular case. This places the law at odds with legal values. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and allows judges make impartial decisions. Vagueness poses a threat (...) to these ideals. In borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. -/- In the philosophy of language, vagueness has become one of the hottest topics of the past two decades. Linguists and philosophers have investigated what distinguishes ‘soritical’ vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of ‘vagueness’, let alone to the various theories that try to account for these phenomena. -/- Bringing together leading scholars working on the topic of vagueness in philosophy and in law, this book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. -/- The chapters of the book are organized into three parts. The first part addresses the import of different theories of vagueness for the law, referring to a wide range of theories from supervaluationist to contextualist and semantic realist accounts in order to address the question of whether the law can learn from engaging with philosophical discussions of vagueness. The second part of the book examines different vagueness phenomena. The contributions suggest that paying greater attention to these phenomena can make lawyers aware of specific issues and solutions as yet overlooked. The third part deals with the pragmatic aspects of vagueness in law and with the professional, political, and moral issues to which such vagueness gives rise. (shrink)

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) (...) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned. (shrink)

Legal concepts and notions are deeply affected by religions, ethics, philosophy and the culture of a particular nation. As Friedman Comparing legal cultures, Dartmouth, Aldershot, 1997, p. 34) highlights, understanding legal culture is a crucial factor as it both affects their translation and interpretation and consequently has an impact on the application of law. This increases in importance, for example, in the context of the principle of mutual trust and recognition of judgments assumed by the European Union (...) as the cornerstone of judicial co-operation in the European Union, which would not be possible without the trust in each other’s justice system and the respect for the different legal systems and traditions of the Member States. In that vein, ‘the Third Space’, where legal concepts and notions of multiple origins meet and where their meanings are negotiated, transformed, translated and integrated into various socio-political and cultural contexts has acquired an immense significance. Although there may be natural similarities between legal professions in the European Union, they could differ quite substantially as they are deeply rooted in the history and societal evolution of a country; therefore, they are generally regulated at a national, not a European level. In light of the above, the author intends to perform an in-depth analysis of key terminology in the field of names of legal professions which exist in the Member States of the European Union. The author focuses on the terms which refer to the legal profession of lawyers as they might pose obstacles in translation and interpretation due to different functions and roles these legal professionals play in their legal systems or due to the lack of their equivalents in other legal systems. The terminology is compared to present similarities and differences in their meaning, particularly putting some emphasis on socio-political and cultural contexts. The research methods encompass the analysis of relevant literature and the terminological analysis of the research material, which includes the information on legal professions provided by particular Member States on the European e-Justice portal and relevant national regulations in that respect. Finally, the author draws the conclusion that a thorough analysis of the functions and roles of a particular legal profession in socio-political and cultural contexts is required before the translation and interpretation of the term is provided as it helps to avoid ambiguity and makes legal communication precise. (shrink)

Scott Soames has recently argued that the fact that lawmakers and other legal practitioners regard vagueness as having a valuable power-delegating function gives us good reason to favor one theory of vagueness over another. If Soames is right, then facts about legal practice can in an important sense adjudicate between rival theories of vagueness. I argue that due to what I call the “Gappiness Problem” – raised by recent critics of the “communicative-content theory of law” (...) – 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. I provide a sketch of my own account of legal content and show how it provides a response to the Gappiness Problem. This account, however, does not suffice to vindicate Soames’s argument. I conclude by arguing that my point about Soames’s argument is generalizable. (shrink)

"My argument is as follows. In the first section, I sketch briefly the ways in which intentionalism might provide a solution to the problem of vagueness. The second section describes the different areas in which counterfactuals must be invoked by intentionalism. In the third section I point out that on a classic analysis of counterfactuals - that of David Lewis and Robert Stalnaker - the truth conditions of counterfactuals depend on relations of similarity among possible worlds. Since similarity is (...) vague, so are counterfactuals. Finally, I show that there is no unique solution to the problem of vagueness for the specific types of counterfactuals required by intentionalists - those referring to authors' or legislators' mental states, and those attempting to transport historical authors into the present. Although some counterfactuals are relatively 'insensitive' - in Lewis's sense -- those required in intentionalist interpretation are at least moderately sensitive. This means taht different contexts will resolve the vagueness in different ways. The choice among contexts must be made by the interpreter and is not determined by author's intentions. Hence the vagueness due to counterfactual reasoning about author's intention leads to indeterminacies that cannot be resolved by intentionalism itself. Intentionalism is a solution neither to the problem of vagueness nor to the problem of indeterminacy." Distinguishes between strict intentionalism and moderate intentionalism. Both are often seen as a means for reducing vagueness in legal language. However, counterfactual intentions are needed to resolve certain problems. First, in combining actual intentions, e.g. in a legislature, where different combinations may result in different legislation. Second, it is needed to resolve conflicts between intentions, particularly between different levels of abstraction. Third, reducing vagueness, which will be necessary even with enactment intentions. Fourth, there may be no determinate intention that would even, in principle, resolve a borderline case - e.g. when intentions are conflated. [For discussion of application and enactment intentions, see Goldsworthy, "Originalism in Constitutional Interpretation," Federal Law Review 25: 1.] Lastly, counterfactuals may be necessary to distinguish between application and enactment intentions. Lewis on counterfactuals: "For Lewis and Stalnaker, the key idea in the explication of truth conditions of counterfactuals is that of 'comparative overall similarity' of possible worlds. A counterfactual is true if and only if in the closest, most similar world to the actual in which the antecedent of the conditional is true, the consequent of the conditional is also true." Thus, there may be a determinate relevant world for some cases - i.e. there may be a counterfactual that determines the answer to a counterfactual question. This, however, will not always be the case. For example, counterfactuals concerning Caesar being the leader of N. Korea. Here, for Lewis, where there are ties of closeness of counterfactuals, all tied CFs will be false. When considering counterfactual intentions for the sake of interpretation, some may be determinate or insensitive. Normally, however, this will not be the case. "For intentionalism to resolve the matter of whether the regulation prohibiting vehicles prohibits toy cars as well, one of these counterfactuals must be true and the other false. Imagine a possible world in which the oncsideration of the borderline case is added to the authors' mental states. It is likely that connected belief will be affected as well. For example consideration of the aim of the regulation will occur as a consequence of the consideration of whether the regulation applies to the borderline case: Is ensuring peace and quiet in the park overriding, or are there exceptions to accommodate children's games? When there are changes in a constellation of men tal states, we will have to imagine a situation in whichh the legislators' beleifs are very different from what they in fact were. This creates at least a profound epistemological problem, because, as Dworkin puts it: "[it] has the effect of sharply reducing the amount of historical evidence that is relevant to answering the counterfactual." More important, however, in some worlds in which the legislators consider the case of a child's toy car, they will treat the peace and quiet purpose as overriding, whereas in others they will treat the children's play purpose as overriding. This means that different worlds will resolve the truth-value of the counterfactuals differently." "If I am right that counterfactual reasoning is ubiquitous in intentionalism, intentionalism suffers from an extra dimension of vagueness and is therefore at a disadvantage when measured against theories that do not rely on counterfactuals.". (shrink)

This paper is based on a doctoral thesis which aimed at investigating on whether the use of strategic vagueness in Security Council resolutions relating to Iraq has contributed to the breakout of the 2002–2003s Gulf war instead of a diplomatic solution of the controversies. This work contains a linguistic and legal comparative analysis between UN and U.S. documents and their drafts in order to demonstrate how vagueness was deliberately added to the final versions of the documents before (...) being passed, and thus strategically used vagueness has played a crucial role in UN resolutions related to the outbreak of war in Iraq, and in relevant legislation produced by the United States for its Congressional authorisation for war. The comparative analysis between S/RES/1441(2002) and US legislation has evidenced that that there would have been diplomatic solutions to the Iraq crises which were not synonymous of light-handed intervention against Iraq, but deliberately vague UN wording allowed the US to build its own legislation with a personal interpretation implying that the UN did not impede military action. (shrink)

This study aims at investigating vagueness in Security Council Resolutions by focussing on a selection of nouns and phrases used as the main casus belli for the Second Gulf War. Analysing a corpus of Security Council Resolutions relating to the conflict, the study leads a qualitative and quantitative analysis drawing upon Mellinkoff’s theories on “weasel words”, which are “words and expressions with a very flexible meaning, strictly dependent on context and interpretation”. Special attention is devoted to the historical/political consequences (...) of such vague and indeterminate expressions. The findings indicate that excessive vagueness might have led to biased or even strategically-motivated interpretations of the Resolutions, triggering the Iraqi conflict instead of a diplomatic solution. The analysis of the “weasel words” used in the Resolutions suggests the double-faced strength of such expressions: though they can guaranteed a wide degree of applicability of the Resolutions, their subjective interpretability might become a source of manipulation and elusiveness, with the overall legislative intent of using intentional vagueness as a political strategy. (shrink)

When the United States Supreme Court used the expression “with all deliberate speed” in the case Brown v. Board of Education, it did so presumably because of its vagueness. Many jurists, economists, linguists, and philosophers accordingly assume that vagueness can be strategically used to one’s advantage. Roy Sorensen has cast doubt on this assumption by strictly differentiating between vagueness and generality. Indeed, most arguments for the value of vagueness go through only when vagueness is confused (...) with generality. Sorensen claims that vagueness – correctly understood – has no function in law inter alia because judges lie systematically when confronted with borderline cases. I argue that both claims are wrong. First, judges do not need to resort to lying when adjudicating borderline cases, and even if they had to, this would not render vagueness useless. Secondly, vagueness has several important functions in law such as the reduction of decision costs and the delegation of power. Although many functions commonly attributed to the vagueness of legal expressions are in fact due to their generality or other semantic properties, vagueness has at least these two functions in law. (shrink)

This paper explores what the epistemic account of vagueness means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, interpretative reasoning within the law (...) must construe vague statements as an epistemic phenomenon, and epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent. (shrink)

In psychiatry there is no sharp boundary between the normal and the pathological. Although clear cases abound, it is often indeterminate whether a particular condition does or does not qualify as a mental disorder. For example, definitions of ‘subthreshold disorders’ and of the ‘prodromal stages’ of diseases are notoriously contentious. Philosophers and linguists call concepts that lack sharp boundaries, and thus admit of borderline cases, ‘vague’. This overview chapter reviews current debates about demarcation in psychiatry against the backdrop of key (...) issues within the philosophical discussion of vagueness: Are there various kinds of vagueness? Is all vagueness representational? How does vagueness relate to epistemic uncertainty? What is the value of vagueness? Given the immense social, moral, and legal importance of demarcating the normal from the pathological in psychiatry, what are the pros and cons of gradualist approaches to mental disorders, that is, of construing boundaries as matters of degree? (shrink)

Vagueness in law leads to indeterminacies in legal rights and obligations in many cases. The book defends that claim and explains its implications for legal theory. Vague language is the book's focus, but vagueness is not merely a linguistic feature of law. Law is necessarily vague. That fact seems to threaten the coherence of the ideal of the rule of law. The book defends a new, coherent articulation of that ideal.

Vagueness in law can lead to indeterminacies in legal rights and obligations. This book responds to the challenges that those indeterminacies pose to theories of law and adjudication.

In psychiatry there is no sharp boundary between the normal and the pathological. Although clear cases abound, it is often indeterminate whether a particular condition does or does not qualify as a mental disorder. For example, definitions of ‘subthreshold disorders’ and of the ‘prodromal stages’ of diseases are notoriously contentious. -/- Philosophers and linguists call concepts that lack sharp boundaries, and thus admit of borderline cases, ‘vague’. Although blurred boundaries between the normal and the pathological are a recurrent theme in (...) many publications concerned with the classification of mental disorders, systematic approaches that take into account philosophical reflections on vagueness are rare. This book provides interdisciplinary discussions about vagueness in psychiatry by bringing together scholars from psychiatry, psychology, philosophy, history, and law. It draws together various lines of inquiry into the nature of gradations between mental health and disease and discusses the individual and societal consequences of dealing with blurred boundaries in medical practice, forensic psychiatry, and beyond. -/- Part I starts with an overview chapter that helps readers to navigate through the philosophy of vagueness and through the various debates surrounding demarcation problems in the classification and diagnosis of mental illness. Part II encompasses historical and recent philosophical positions on gradualist approaches to health and disease. Part III approaches the vagueness of present psychiatric classification systems, and the debates concerning their revisions by scrutinizing controversial categories, such as posttraumatic stress disorder, and the difficulties of day-to-day diagnostic and therapeutic practice. Part IV finally focuses on social, moral, and legal implications that arise when being mentally ill is a matter of degree. (shrink)

This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a (...) Hyperbola of Meaning is introduced, opposing Heck’s metaphor of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the (...) possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

Automated legal reasoning and its application in smart contracts and automated decisions are increasingly attracting interest. In this context, ethical and legal concerns make it necessary for automated reasoners to justify in human-understandable terms the advice given. Logic Programming, specially Answer Set Programming, has a rich semantics and has been used to very concisely express complex knowledge. However, modelling discretionality to act and other vague concepts such as ambiguity cannot be expressed in top-down execution models based on Prolog, (...) and in bottom-up execution models based on ASP the justifications are incomplete and/or not scalable. We propose to use s(CASP), a top-down execution model for predicate ASP, to model vague concepts following a set of patterns. We have implemented a framework, called s(LAW), to model, reason, and justify the applicable legislation and validate it by translating (and benchmarking) a representative use case, the criteria for the admission of students in the “Comunidad de Madrid”. (shrink)

The author argues that vagueness in law is typically extravagant, in the sense that it is possible for two competent users of the language, who understand the facts of each case, to take such different views that there is not even any overlap between the cases that each disputant would identify as borderline. Extravagant vagueness is a necessary feature of legal systems. Some philosophers of law and philosophers of language claim that bivalence is a property of statements (...) in the domains that concern them (the domain of law in the former case, the whole domain of meaningful discourse in the latter). The author argues that the bivalence claim should be rejected. In philosophy of law, the motivation underlying the bivalence claim is an urge to assert the principle that the law must be capable of standing against arbitrary use of political power. The challenge – once the bivalence claim is rejected – is to articulate the law's opposition to arbitrariness in a way that is compatible with the possibility of indeterminacy in the application of vague laws. (shrink)

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. (shrink)

What philosophers have in mind when they think about vagueness are sorites cases. Unlike vague scientific or artificial expressions, however, vague natural language expressions do not display the kind of vagueness that we associate with the sorites; they rather display what I call cluster vagueness. A non-trivial consequence of this is that those legal definitions that state precisifications of natural language concepts not only add aspects of meaning to existing expressions but also effectively change the meanings (...) of these expressions. From this, in turn, it follows that we should avoid precisifying ordinary expressions with the help of legal definitions to the extent that we wish legal language to be in line with natural language. And being in line with natural language may help us to deal with gaps in our laws at the very moment we become aware of them, and not just afterwards. (shrink)

It is widely accepted that vagueness in law calls for a specific interpretation of the law—interpretation that changes the meaning of the law and makes it more precise. According to this view, vagueness causes gaps in the law, and the role of legal interpretation in the case of vagueness is to fill such gaps. I argue that this view is mistaken and defend the thesis that vagueness in law calls only for an application of the (...) law to the case at hand, leaving the meaning of the law intact. (shrink)

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: 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, what they communicate is sometimes (...) vague and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing 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? (shrink)

Legal doctrine in Continental European law (scientia iuris) consists of professional legal writings, e.g., handbooks, monographs, etc., whose task is to systematize and interpret valid law. By production of general and defeasible theories, legal doctrine aims to present the law as a coherent net of principles, rules, meta‐rules, and exceptions, at different levels of abstraction, connected by support relations. The argumentation used to achieve coherence involves not only description and logic but also evaluative (normative) steps. However, sceptics (...) criticise juristic doctrine for its normative character, ontological obscurity, vagueness, fragmentation, and locality. The author answers this criticism pointing out the following. Normative reason is possible. Liberal ontology, admitting such entities as morally justified law, is possible as well. The vagueness of legal doctrine can be construed as defeasibility. Defeasibility is inevitable in the law and in human thinking in general. Fragmentation of legal doctrine is not absolute. Its theories are linked to overarching moral theories. Finally, locality is not absolute either. Though sometimes restricted to a given state, theories of legal doctrine display relevant similarities to corresponding theories in other states. (shrink)

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. (shrink)

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking (...) what legal theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law. (shrink)

The authors expose a challenge that legal dogmatics represents to our legal institutions. Legal dogmatics often claims that it plays a necessary role in identifying legal rules and in solving their indeterminacies. Thus, legal dogmatics is to be viewed as an indispensable complement to legislation. Like legislation, dogmatics also attempts to provide judges with precise guidelines to help them pass the right decisions and avoid the arbitrary ones. Only under this assumption does dogmatics help to (...) make more predictable decisions. However, the problem of dogmatics consists that the search for precision which is to intended to limit the arbitrariness of judicial decisions calls for distinctions that are per se arbitrary ones. In some cases, this arbitrariness results from an indeterminacy generated by vague rules, while in other cases the application of precise rules leads to arbitrariness because officials depart from the reasons that ground them. The challenge of dogmatics is to show that its contribution to rationality can be perceived as an improvement on the legislator’s contribution. That is, dogmatics must show why its rules can succeed where legislation inevitably fails for conceptual reasons. The authors of this paper claim the opposite. The application of dogmatic rules has the same conceptual difficulties as the application of legislated rules alone.Moreover, dogmatic solutions often contend with other formal justifications, i.e., reasons which ground legislated rules. (shrink)

The paper examines the ethical and legal challenges of making decisions for previously competent patients and the role of advance directives and legal representatives in light of the Oviedo Convention. The paper identifies gaps in the Convention that result in conflicting instructions in cases of a disagreement between the expressed prior wishes of a patient, and the legal representative. The authors also examine the legal and moral status of informally expressed prior wishes of patients unable to (...) consent. The authors argue that positivist legal reasoning is insufficient for a consistent interpretation of the relevant provisions of the Convention and argue that ethical argumentation is needed to provide guidance in such cases. Based on the ethical arguments, the authors propose a way of reconciling the apparent inconsistencies in the Oviedo Convention. They advance a culturally sensitive approach to the application of the Convention at the national level. This approach understands autonomy as a broader, relational consent and emphasizes the social and cultural embeddedness of the individual. Based on their approach, the authors argue that there exists a moral obligation to respect the prior wishes of the patient even in countries without advance directives. Yet it should be left to the national legislations to determine the extent of this obligation and its concrete forms. (shrink)

The paper examines the ethical and legal challenges of making decisions for previously competent patients and the role of advance directives and legal representatives in light of the Oviedo Convention. The paper identifies gaps in the Convention that result in conflicting instructions in cases of a disagreement between the expressed prior wishes of a patient, and the legal representative. The authors also examine the legal and moral status of informally expressed prior wishes of patients unable to (...) consent. The authors argue that positivist legal reasoning is insufficient for a consistent interpretation of the relevant provisions of the Convention and argue that ethical argumentation is needed to provide guidance in such cases. Based on the ethical arguments, the authors propose a way of reconciling the apparent inconsistencies in the Oviedo Convention. They advance a culturally sensitive approach to the application of the Convention at the national level. This approach understands autonomy as a broader, relational consent and emphasizes the social and cultural embeddedness of the individual. Based on their approach, the authors argue that there exists a moral obligation to respect the prior wishes of the patient even in countries without advance directives. Yet it should be left to the national legislations to determine the extent of this obligation and its concrete forms. (shrink)

Hungarian legal scholarship is dominated by a formal, “technical” conception of the rule of law and this is even truer in the jurisprudence of criminal law. This fact can be demonstrated by analysing the case-law of the Hungarian Constitutional Court with regard to the constitutional review of judicial decisions and criminal statutes. In constitutional complaint proceedings the Constitutional Court has ruled out legal certainty issues from the review of legal norms and judicial decisions by stating that (...) class='Hi'>legal certainty is not a value of constitutional importance and does not raise human rights issues. In this paper the author argues for the claim that conceiving the principle of the rule of law and legal certainty as a formal and technical value which is isolated from the principles of political morality, can lead to a narrow and weak protection of human rights. If the rule of law and legal certainty issues are regarded as amoral values, (criminal) norms can become servants of political interests where highly unjust laws can be held to be constitutional. (shrink)

This ambitious book examines the notion of legal transparency from a unique cultural and historical perspective. Drawing from their combined academic and practical experience with both Chinese and Western legal traditions, authors John Head and Xing Lijuan explore how an intense debate — pitting legal transparency against legal opaqueness — unfolded in dynastic Chinese law, which began in the dark mists of history and ended formally just over a hundred years ago. They rely on a wide (...) range of both Western and Chinese sources to explain how that great debate was resolved in the early Han Dynasty (around the third century BCE) in a way that molded Chinese law into a sophisticated legal system that for roughly two millennia balanced definitiveness with vagueness, predictability with flexibility, and egalitarianism with privilege — and that reflected cultural values still resonating in China today. Legal Transparency in Dynastic China presents a clear narrative that assumes no prior expertise in Chinese law or history, and it caters to readers interested in issues of good governance, comparative studies, China, history, and law. The book begins by defining “legal transparency” and explaining where it fits into the larger context of the transparency-in-government movement that has gained such momentum in recent years, especially at the urging of Western powers. Then the book explains the fundamentally different values espoused by early Confucianists, for whom society is best governed not through written law but through the exemplary behavior of a highly educated, virtuous, and enlightened elite. After tracing the political and ideological challenges that the Confucianists faced from the Legalists, Head and Xing examine the compromise that resulted in the so-called “Confucianization of the Law” around 200 BCE. They then show how that alloy of competing ideologies characterized Chinese dynastic law for many centuries, resulting in what some would consider the most enduring and effective legal system in human history. (shrink)

In this paper I argue that the rationality of law and legal decision making would be enhanced by a systematic attempt to recognize and respond to the implications of empirical uncertainty for policy making and decision making. Admission of uncertainty about the accuracy of facts and the validity of assumptions relied on to make inferences of fact is commonly avoided in law because it raises the spectre of paralysis of the capacity to decide issues authoritatively. The roots of this (...) short-sighted view are found in primitive mechanical models of relationships in the empirical and social world – those of objective causality and determinism. Insofar as it is believed that if we had sufficient data a clear and unequivocal answer would be available to each question, admission of uncertainty is seen as a sign of insufficiency, incompetence, impotence, and is avoided whenever a decision that must be seen to be based on valid reasons, cannot be avoided. Avoidance of some decisions, duplicity in others, is the result. -/- Decision-making must be restructured to recognize the provisional and context-bound validity and relevance of the models we use to conceptualize and order our understanding of phenomena, and to utilize this awareness as an instrument in the production of legal policies and decisions that will be authoritative precisely because they are honestly accurate and socially responsible. The paper makes a start on such a re-structuring of the legal process by exploring the implications of the observation that if law is to be “just”: 1) legal policy must be based on accurate information and rationally related to social goals; and 2) decisions applying policy to individual fact situations must be based on assumptions that are both relevant and accurate. -/- Reasons for determinations of fact must be given, otherwise the presumption that the trier of fact is “reasonable” is an unconditional licence to use private modes of logic and theories of social and natural science. What is not disclosed cannot be challenged on grounds of invalidity or irrelevance. Use of “objective validity” as a standard to evaluate conclusions made by the trier of fact in contentious cases would only serve to beg all important questions by concealing: 1) fundamental normative conflict, and 2) the limited nature and applicability of many validity claims. -/- Our use of the phrases “undue risk,” “public interest,” “reasonable,” and “necessary,” reflects the weight we choose to give conflicting social values and goals when we must make decisions in relative ignorance of all the consequences. “Objective criteria” are of limited utility in legal decision-making because their social meaning is derivative. Policy generation in the absence of any coherent conceptual-normative framework, use of vague terminology in legislation stating policy, and the absence of rational means to distinguish between individual cases to which decision-makers are required by law to apply policy, make it inevitable that many legal “decisions” made in the guise of determinations of objective fact, are charades, an arbitrary, capricious, intuitive, subjective (and thus private) use of public decision-making power. -/- Law must alter its aspirations and recognize that rational decision-making is a process that can occur only within parameters set by present knowledge and societal preference structures. Only by working with the constraints imposed by these parameters is it possible to achieve “just” decisions. Where no rational basis for differentiating cases exists, “individualized justice” must be avoided and public policy articulated in law applied uniformly to all cases in a class. The terms “reasonable” and “necessary,” used to describe policy and its consequences for specific cases, must be understood to represent provisional societal assessments, attempts to implement societal preference structures in the face of limited knowledge. Heightened awareness of the limited nature of our knowledge can only result in legal policies that have a more explicit normative basis. (shrink)

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing (...) out, but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected. (shrink)

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth?

A Note on the Linguistic Determinacy in the Legal Context This paper discusses linguistic vagueness in the context of a semantically restricted domain of legal language. It comments on selected aspects of vagueness found in contemporary English normative legal texts and on terminological problems related to vagueness and indeterminacy both in the legal domain and language in general. The discussion is illustrated with selected corpus examples of vagueness in English legal language (...) and attempts to show problems of the relation between vagueness and ambiguity in the context of legal institutionalised systems.The discussion also evokes theoretical issues which pertain to the relation between legal texts and their contexts, the problem of how linguistic forms acquire their contextual meaning and how linguistic expressions are disambiguated. These issues are further related to the post-Gricean theory of relevance, its inferential model of communication, and the interplay between the linguistic code and inferential processes in communication. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe that both (...) approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)

There is much in the paper that I agree with, much that I do not understand and am probably not competent to understand, and some which I am puzzled by. I will concentrate on the last. Both regarding puzzles, and regarding points of agreement and incomprehension, I will be selective and touch on only a few.

lt is a commonplace that law and morality intersect and interpenetrate in all the areas of legal decision-making; that in order to make sense of constitutional, statutory or common-law questions, judges and other legal decision-makers must first resolve certain philosophical issues which include moral judgments of right and wrang_ This is particularly evident with regard to constitutional interpretation, especially when constitutions give a mandate for the protection of the substantive norms and values entrenched as constitutional rights. In these (...) Situations, as a leading contemporary legal philosopher observed, the "Constitution fuses legal and moral issues, by making the validity of a law depend on an answer to complex moral 1 problems". But the need for substantive value elucidation is not confined, of course, only to constitutional interpretation under Bills of Rights. This, however, immediately raises a dilemma stemming from the moral diversity and pluralism of modern liberal societies. How can law remain sensitive to this pluralism and yet provide clear answers to the problems which call for a legal resolution? Sharply conflicting values in modern societies clash in the debates over the death penalty, abortion, homosexuality, separation of state and religion, the scope of the freedom of the press, or affirmative action. lt would often be difficult to discern a broader consensus within which these clashes of values operate, unless this consensus were described in such vague terms as to render it practically meaningless. (shrink)

Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.

Computational approaches to the law have frequently been characterized as being formalistic implementations of the syllogistic model of legal cognition: using insufficient or contradictory data, making analogies, learning through examples and experiences, applying vague and imprecise standards. We argue that, on the contrary, studies on neural networks and fuzzy reasoning show how AI & law research can go beyond syllogism, and, in doing that, can provide substantial contributions to the law.

These critiques and the ways of thinking made possible in their wake tend to be called post-modern, a term which is vague and even a little irritating. It would be more precise and descriptive to speak instead of post- Enlightenment critiques of reason. Hume is arguably the first post-Enlightenment thinker, and after Hume these critiques of reason developed further in Hegel, Marx, Kierkegaard, and Nietzsche, and were then taken up by many lesser, 20th century thinkers. If the Enlightenment was the (...) age in which human reason in the form of argument and evidence superseded authority in the form of church and state, in the grounding of scientific, philosophical, moral, and political claims, then the critiques of reason I want to talk about are all post-Enlightenment. (shrink)

Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.

In this paper, I argue against what I call “natural realism” about social kinds, the view according to which social categories have natural boundaries, independent of our thought. First, I draw a distinction between two different types of entity realism, one being about the existence of the entity, “ontological realism”, and the other one being about the direct mind-independence of the entity, “natural realism”. After endorsing ontological realism, I present the natural realist argument according to which there would be certain (...) social kinds, such as economic recessions and racism, even if we had no clue about their existence and nature. I claim that the argument fails insofar it mistakes the single instances for the kinds themselves. I then argue against natural realism by showing how the vagueness characterizing the boundaries of social kinds puts the realist in front of a dilemma: either she accepts the vagueness of these boundaries as ontic, a metaphysically problematic thesis, or she accepts that most or all social kinds remain unknown, an epistemologically problematic thesis. Thus, I argue that antirealism, according to which social kinds are constructed, is a better alternative to the realist account. (shrink)