What the Epistemic Account of Vagueness Means for Legal InterpretationLaw and Philosophy

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Authors
Luke William Hunt
Year
2015
DOI
10.1007/s10982-015-9243-z
Subject
Philosophy / Law

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LUKE WILLIAM HUNT

WHAT THE EPISTEMIC ACCOUNT OF VAGUENESS MEANS

FOR LEGAL INTERPRETATION (Accepted 24 September 2015)

ABSTRACT. This paper explores what the epistemic account of vagueness (‘‘epistemicism’’) 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: (1) Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, (2) interpretative reasoning within the law must construe vague statements as an epistemic phenomenon, and (3) 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.

To suggest that the law is vague is to suggest a platitude. Almost all of our language may be thought of as vague in some sense, and the language of law is no different. What distinguishes legal language from the rest of our language is that questions of life and death may turn upon the interpretation of a word, phrase, or expression. It is in part for this reason that most of the literature on

Law and Philosophy  Springer Science+Business Media Dordrecht 2015

DOI 10.1007/s10982-015-9243-z vagueness in the law has focused upon the extent to which legislation could have been written more precisely or conversely the extent to which vagueness might be useful in law.1 While there is good reason to make sense of these issues, less attention has been given to the question of whether a particular theory of legal interpretation is consistent with a particular account of vagueness. There are likewise good reasons to make sense of this question, not least of which is that a failure to do so lends itself to an ad hoc account of vagueness in the law. If we do not adhere to a particular account of vagueness, then our rationale for asserting the content of the law is on shaky ground.

In this paper, then, I will explore the latter question raised – what philosophical accounts of vagueness mean for theories of legal interpretation – in the context of the epistemic account of vagueness (‘epistemicism’): the thesis that vague statements are true or false even though it is impossible to know which. Specifically, I will argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: (1) Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, (2) interpretative reasoning within the law must construe vague statements as an epistemic phenomenon, and (3) 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 may be dealt with more easily because they are internal to a particular theory of legal interpretation: The features of a particular legal theory either do or do not map to epistemicism coherently. The third condition poses more difficulty because it is external to a particular theory of legal interpretation: Given a particular legal theory that is consistent with the first two conditions, epistemicism itself must be expanded to account for the normativity presupposed by such a legal theory.

I will draw out these points by examining two prominent theories of 1 See Timothy Endicott, ‘The Value of Vagueness’; Scott Soames, ‘What Vagueness and Inconsistency Tell Us About Interpretation’; and Jeremy Waldron, ‘Vagueness and the Guidance of Action’, in

Andrei Marmor and Scott Soames (ed.), Philosophical Foundations of Language in the Law (Oxford: Oxford

University Press, 2011).

LUKE WILLIAM HUNT legal interpretation: Ronald Dworkin’s theory of law as integrity, which is based upon our knowledge of interpretative facts; and

Michael Moore’s theory that the law is a functional kind, which is based upon metaphysical truths about the way the world is.2 In the recent literature on vagueness and the law, it has been suggested that both theories are consistent with epistemicism.3 However, I will try to show that the former is inconsistent with epistemicism unless epistemicism is expanded as described in condition (3), and the latter is inconsistent with epistemicism because it does not satisfy condition (2). This conclusion is significant in several ways. It 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 – it shows 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.

I. THE THREAT OF VAGUENESS AND THE EPISTEMIC RESPONSE

In this section, I will provide a sketch of how vagueness threatens two principles of classical logic: the law of excluded middle (‘P or not P’), and the principle of bivalence (any sentence P that expresses a proposition is either true or false). The threat is not limited to classical logic. If vagueness threatens logical principles regarding the truth and falsity of a sentence’s propositions – and the law consists of sentences – then vagueness perhaps threatens the principles regarding the truth and 2 Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986); Michael Moore, ‘Law as a Functional Kind’, in Robert P. George (ed.), Natural Law Theory (Oxford: Oxford University Press, 1992). 3 See Ralf Poscher, ‘Ambiguity and Vagueness in Legal Interpretation’, in Peter M. Tiersma and