On the Meaning of Vagueness to the Rule of Law
Xiaodan Sun* Wenna Yang* Tingting Yang*
(Southwest University of Political Science and Law, Chongqing 401120,China)
Abstract: Legal determinacy is one of the major aspects of Jurisprudence. In reality, laws are indeterminate due to the complexity of the outside world and the vagueness of language. Laws are comprised of ordinary language, which is vague, leading to vagueness in law. This thesis is intended to be a study on the meaning of vagueness in law to the rule of law. The author first introduces the concept of legal indeterminacy. Then a research on the definition and sources of vagueness is made, in which part the author comes to the conclusion that vagueness only exists in
. At last, in combination with the ideal of the rule of law, the author draws a conclusion that vagueness is a price that must be paid, but the vagueness is not necessarily a deficit to the ideal. Vagueness in law requires the judge to decide, on the basis of the purposes of law and legal reasoning. Finally, coming to a decision is also a basic requirement of the rule of law.
Keywords: Legal Determinacy Vagueness in Law The Rule of Law Borderline Cases
1 Legal Indeterminacy and Vagueness
1.1 Legal Indeterminacy
No person shall take or possess, in the County of Lanark or the Regional Municipality of Ottawa-Carleton, and any bullfrog unless the tibia thereof is five centimeters or more in length.
(Regulation under the Ontario Game and Fish Act. O. Reg. 694/81)
The regulation above sets a rule prohibiting taking or possessing bullfrog the tibia thereof is 5cm or more in length. It seems a determinate rule for its precise set length of the object. But if we take a close look, it is not difficult to find the many indeterminate parts in this rule.
Firstly, there is some linguistic indeterminacy. Does the ambiguous word “person” include a company? Does the person or bullfrog have to be in Ottawa? As to the precise part of the tibia, what if the bullfrog has a tibia longer than 5cm but another shorter than the set standard? What if its curved tibia is measured 4cm with ruler, but 6cm with a tape?
Besides, there is also non-linguistic indeterminacy. What if a conflict arises between this rule and another regulation? Whether the principal take the responsibility when agents take bullfrogs? Whether the court will exercise discretion in certain cases? Whether the proof of mental state is required?
These indeterminacies are common in law. Due to the complexity of the non-linguistic world, the non-linguistic indeterminacies are inevitable. But as to linguistic indeterminacies, it seems that law drafters can remove them by careful use of words. In the above regulation, the drafters perhaps have tried to avoid the imprecision of terms as “adult bullfrog” or “large bullfrog”. Their failure to eradicate linguistic indeterminacies may lead to the rough conclusion that indeterminacy in law is pervasive and impossible to remove.
As Bentham said, it is impossible for legal language to remove diversity and complexity in the physical world, which is deeply rooted in ordinary language. We are using a restricted tool to describe such diversity and complexity. (Endicott, 2000:32)
The question is, to what extent the legal indeterminacy is caused by indeterminacy of language. To get a clear picture of that, we need to have a look at what legal theorists say about vagueness in law.
1.2 The Penumbra and Borderline Cases
In study of philosophy of law, legal theorists also pay much attention to vagueness in law. There is a popular metaphor in the 20th century to describe vagueness in law. Benjamin Cardozo wrote that “the borderland, the penumbra, where controversy begins”. (Cardozo, 1921:130) In a review of legal problems about the meaning of words, Glanville Williams wrote “since the law has to be expressed in words, and words have a penumbra of uncertainty, marginal cases are bound to occur. (Hart, 1994:278) Hart popularize the metaphor of core and penumbra in reference to the shadowy purlieu between the clear application of an expression and its clear inapplicability. (Endicott, 2000:8)
However, many pay doubt to the core of the meaning rather than the penumbra. In their eyes, vagueness of meaning and usage of words is intrinsic and essential. This point of view is prone to get into a trap set up by itself. If using words should lead to fundamental vagueness, such claim is itself vague. What’s more, in most cases, there is no doubt about the word usage.
Therefore, vagueness exists only in some cases. To get more knowledge of vagueness, the next chapter will provide a definition of vagueness and its source.
2 Definition of Vagueness and Its Sources
2.1 Definition of Vagueness
Pierce was the first to formulate the notion in a rigorous way. He said that a proposition is vague where there are possible states of things concerning which it is intrinsically uncertain whether he would has regarded them as excluded or allowed by the proposition. (Peirce, 1902:748) He held that language produce utterance without deciding certain fact to be excluded or be allowed. Here, the “possible states of things” are what to be focused on. Endicott said in his Vagueness in Law that an expression is vague if there are borderline cases for its application.(Endicott, 2000:31) Borderline cases are cases where one, who knows facts well, do not know whether to apply an expression or not.
In understanding the classical definition, we should pay attention to the following:
Firstly, the vagueness we are talking about is the vagueness caused by language. Furthermore, language may cause kinds of vagueness. Here the focus should be on vagueness in borderline cases. For example, in most cases, we know whether to apply “tall” to describe a person. But in some cases, though having the knowledge of the exact number, we still do not know whether it is applicable.
Secondly, the state of unclear application of a word does not mean we do not know its meaning. As the adjective “bald”, one with the knowledge of its meaning may still feel puzzled when applying it to certain individual.
Thirdly, “do not know whether to apply an expression or not” has two implications, one is “do not know whether” an expression can apply, another is “do not know whether” it is appropriate to apply an expression. This is a question about semantic vagueness and pragmatic vagueness. For example, when the water left in a vessel has only one drop, A asked B: “is the vessel empty?” If the answer is “no”, semantically, it is true, but not appropriate. An appropriate answer should be “yes”.In the next section, we will get a deeper insight into vagueness by discussing its types or sources.
2.2 Sources of Vagueness
To understand the concept better, the “tolerance principle” need to be introduces. It is a principle by which a tiny change in an object can not make a difference between applying and not applying certain expressions. If the principle is applied to “bald”, a sorites series can be constructed as such:
1. A man with no hair is bald.
2. If a man, he is still bald by growing one hair.
3. So a man with one hair is bald
4. Reiterate 2
5. So a man with two hairs is bald.
6. Reiterate 2
N. So a man is always bald even when he grows 150,000 hairs.
By valid reasoning, an obviously paradoxical conclusion is drawn. This paradox can only be resolved by denying step 2. Namely, there is a sharp boundary to say when a man is with certain number of hair is bald, but not bald when his hair goes beyond that number. But this is impossible, at least can not be realized by human. And this unclear boundary is a similarity between tolerance principle and borderline cases. The raising of borderline cases is a result of tolerance principle.
In ordinary language, most words have the same situation as the word “bald”, where people find it hard to define its connotation and denotation. The only way to understanding them is by putting them to actual usage. Laws, by a large scale, are composed of ordinary language, whose inevitable vagueness lead to indeterminacy in law. In judicial procedures, such borderline cases are not rare. It paralyzes commom deduction. Expressions susceptible to tolerance principle are imprecise. Imprecision leads to vagueness and borderline cases. Imprecision is a typifying feature of vagueness.
Incompleteness is related to “open texture” raised by Hart. It means that in application of words, there is a core where the meaning is clear and set and a penumbra where the meaning is unclear. In the core, there is no doubt about whether to apply a rule. But in “open texture”, the judge needs to “create” a balance according to different situations.
For example, in the case of “No vehicle is allowed in the park”, cars and motors are definitely included in vehicle. But roller skate or toy shoes need a further consideration. Like cars and motors, they also make noises and may break the order of a park. But they are smaller than cars or motors and do not cause pollution. Here cars and motors are the core meaning of “vehicle”, while roller skate or toy shoes belong to its “open texture” for the shared characteristics and also the obvious differences.
Likewise, even though the boundaries of a territory are perfectly precise, it is still unclear whether to apply the expression “commit an offence in the territory” when a defendant takes part in an international fraud that has some connections with the jurisdiction. The related provision did not say enough about the question as to which offenders are within the jurisdiction of the court. Thus, this expression constructs an incomplete rule where it fails to realize the original purpose for the requirement of judge’s interpretation. Also, in such situations, people do not know whether to apply a rule or not.
Based on the above discussion, it can be seen that incompleteness is also a feature of vagueness.
2.2.3 Dummy Standard
This is a concept helpful for us to understand some adjectives we are going to discuss in the following part. Endicott has given an example to illustrate this concept. When you asked a friend who asked you to bring some bananas for him how much to buy, you got the answer of “enough”. (Endicott, 2000:38) How should we think of such answer? He seems to say “the right number”, but it is not precise. It is not the ordinary vague expression like “about half a dozen”. He seems to presuppose a standard but do not lay down the standard. Besides, it is different from express grant of discretion.
Prof. Chen Xingliang points out that “serious circumstance” which appears in many articles of Chinese Criminal Law is also a case in point. It can be the watershed between crime and noncrime or between felony and misdemeanor. But both its connotation and denotation is vague. The standard depends on the understanding of judges. (Zhou Li, 2008:55)
If the standard of a rule is set by judges, it is dummy standard. Pragmatic vagueness may help us to get a better understanding of this concept.
2.2.4 Pragmatic Vagueness
In ordinary language, when you are invited to come to a party at 5 o’clock. It may be appropriate to come at 5:01 or 5:10 depending on different circumstances. The required time seem to be precise. But context makes it vague. Then the precise requirement is said to have a pragmatic vagueness, or rather to say it is vague. It depends on the circumstances if you have to decide what time is appropriate or reasonable. There is still no sharp boundary to the circumstance that should be taken to consideration.
Pragmatic vagueness is significant for legal interpretation. Again, in the case of “No vehicle is allowed in the park”, does an ambulance driving into the park for someone’s life violate the rule? This question seems to go counter with Hart’s opinion that there is not doubt about core meaning. If the driver is convicted non-guilty, the judge is not applying the rule on the basis of words’ core meaning. To solve the problem, the combination of interpretation and rule’s purpose is necessary. Considering the purpose of the rule, ambulance should not be included in “vehicle”.
Our above discussion has told us that legal vagueness is caused by vague language or by interpretation, which can be called semantic vagueness and pragmatic vagueness. Pragmatic vagueness is easy to lead people to think language as an essentially vague system and its requirement of judge’s interpretation results in an understanding that the judge has an infinite power to decide. But in fact, application of vague expressions is reliant on the purposes of the rule. So pragmatic vagueness only occurs in borderline cases. Judges interpret and decide in accordance with the purposes of the rule.
Having achieved a better understanding of the concept of vagueness and its sources, we can come to the following points:
Firstly, vagueness is deeply rooted in ordinary language. Law is made by language. Therefore, vagueness is a typical feature of law, influenced by which, there exists situations where people do not know whether to apply a rule or not even though they knows facts well.
Secondly, meaning has an internal structure where there is a distinction between the core and the penumbra. Penumbra leads to borderline cases but does not mean that law is intrinsically vague. Compared with definite cases, borderline cases only exist in a relatively small number.
Thirdly, dummy standard reflects the need of discretion of judge. Dummy standard is neither vague standard nor permission of discretion, but a requirement of judge to make a balance according to facts and the rules.
Fourthly, pragmatic vagueness does not denote that law is vague essentially, but asks the judge to consider the purposes of the rule in interpreting and deciding. And such cases also belong to borderline cases.
It is time for us to discuss the influence of vagueness on the rule of law.
3 Vagueness and the Rule of Law
3.1 Threats of Vagueness to the Rule of Law
The ideal of the rule of law was brought by Aristotle. He said that it is better for the law to rule than anyone of the citizens to rule. His proposal has two meanings: 1) the life of the community is governed by law; 2) laws are clear, open, coherent, prospective and stable. But his political idea shows that he takes law as a tool to rule.
Locke laid the theoretical foundation of the rule of law for the western world by four principles. Later, Dicey, Raz, Hayek and other legal theorists also affirm the rule of law. The rule of law in their eyes is about human rights, separation of power, due process and rule governing. They seem to define the rule of law as a rule-governing system based on human rights. This is a model emphasizing on protecting human rights by due legal processes. In comparison with Aristotle, law is no longer deemed only as tool. A society ruled by law is governed by set rules, which guide people to reasonably expect the result of their conduct and help them to predicate others’ actions. These on the whole will bring a sense of safety on people live in the society and inspire them to pursue a life they want. On this course, society will be in order and rational with necessary vigor and vitality.
The rule of law is opposite to anarchy or autocratic government. Autocratic government has one of or all the following three characteristics. 1) Government renders the rulers unrestrained willingness force; 2) Government fails to treat like cases alike; 3) Government is unpredictable.
Vagueness we are talking about brings indeterminacy to law. Without determinacy, how can rules govern? The Criminal Justice and Public Order Act of Britain empowers the police to direct organizers of “raves” to shut down their sound equipment and creates an offence of refusing to do so. The power applies to “a gathering … at which amplified music is played, during the night, and is such as, by reason of its loudness and duration and the time, at which it is played, is likely to cause serious distress to the inhabitants of the locality”. (Endicott, 2000:57) It is not difficult to imagine cases where the regulation is clearly applied and clearly not applied. But due to the expression of “serious distress”, there are borderline cases of the application of the regulation. This is an example of imprecision which is susceptible to tolerance principle. Suppose that a million rave organizers are accused of violating the provision, and
are brought to the same court one after another and asked to play the same music in the same way under the same condition except that the successive organizer plays the music at an imperceptibly lower
volume till the one millionth organizer plays at a hush. The
last organizer surely plays music without distress
to anyone and should be acquitted. But if the one millionth is acquitted,
there is no reason to convict the last but one to be guilty if the increase of voice is too trivial to be noticed. If one is found guilty, then the successive one in the pair should also be guilty if like
cases are treated alike. Then finding the organizer guilty in one
case but not guilty in the other seems arbitrary. In borderline cases where rules are vague, judges seem to make arbitrary decisions. Imprecision caused by tolerance principle mad lead like cases to unlike treatment,
making laws unpredictable and have the features of autocratic government.
Thus vagueness in law is inevitable and may influence the ideal of
the rule of law by posing threats to it. It is a price the rule of law must pay.
3.2 Positive Effects of Vagueness on the Rule of Law
First of all, based on the conclusion we draw in the second chapter, vagueness exists only in borderline cases. In most situations, meaning is not controversial and the law is determinate. But it does not mean that vagueness is not important. It is in these cases that disputes arise. As to the attitude to vagueness, it is affirmative that our pursuit to legal determinacy is trustworthy. It is in this pursuing process that we are getting closer to the rule of law.
On the other hand, vagueness is not necessary a deficit to the rule of law. In borderline cases, decisions and interpretations made by the judge seems to be arbitrary, but are in accordance with the law. Judges exert discretion with an intention to better apply the rule, which is totally different from the arbitrariness of autocratic government. On predictability, people’s prediction of law is not based on the rule itself, but the basis of the rule. What’s more, making a resolution is a basic requirement of the rule of law. People can not obey a law giving no resolution of disputes. It is the judge’s duty to play the role of deciding in cases where the law gives no answer. That is the reason why courts have an odd number of judges and a simple majority voting system. Even if the voting system may reflect random as the vague words, for example, a tiny difference between 51 percent vote and 49 percent vote makes a difference in the result, the resolution is needed. Then the last question left is how to differ judge’s choice from “arbitrary” will of man. It is the need for judicial discipline, which goes against corruption, prejudice and willfulness. It is an attitude always trying unremittingly to give effect to the law.
This thesis is written with an intention to study the meaning of vagueness in law to the rule of law. It gives an overview of the problem of vagueness, from its raising, to the penumbra to the focus of discussion. The author by analyzing the definition of vagueness and its sources, come to the conclusion that vagueness exists only in borderline cases with undeniable significance however. Vagueness is a price the rule of law must pay. But it is still worthy to pursue. And vagueness is not necessarily a deficit to the rule of law and does not reduce people’s trust in rules. Judge’s discretion is exerted based on law and making decisions is just a basic requirement of law.
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［5］ Peirce, C.S. Vagueness, in Dictionary of Philosophy and Psychology II. London: Mackmillan, 1902:748.