Timothy Endicott

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.

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.

In English law, there are various ways in which contracts can be invalid or unenforceable because they are immoral — and yet English lawyers know that many contracts are conclusively binding. The first two sources of legal gaps that Joseph Raz identifies do not seem surprising. Vagueness in the sources of law leads to gaps in borderline cases, and there is a gap if the law includes inconsistent rules, with no way of deciding which is effective. In those situations it seems right to say that the law does not tell people where they stand, so that people may need a court to make a decision. But if Raz is right about the third source of gaps, then judges have discretion whenever the law appeals to moral considerations. This chapter discusses the sources thesis, moral considerations, judicial discretion, the social morality of judges, and contract law.

Argues that some important problems in the theory of legal interpretation can be resolved with three techniques that John Finnis used in Natural Law and Natural Rights to address a methodological problem in jurisprudence: (1) The analogy principle: The application of a word such as “friendship” or “law” is not based on a set of features shared by each instance, but is based on similarities of a variety of kinds, seen by the people who use the words as justifying the extension of the word. (2) The paradigm (or central case) principle: You cannot understand a word like “friendship” or “law” without seeing what counts as a good instance of friendship or law. (3) The context principle: What counts as a good instance depends on the context in which the word is to be used, and on the concerns and purposes which justify the use of the word.

A state is sovereign if it has complete power within a political community, and complete independence. It may seem that the idea of sovereignty is objectionable because of two moral principles, or incoherent because of a paradox. The paradox is that a sovereign state must be capable of binding itself and must also be incapable of binding itself. The moral principles are that no state can justly exercise complete power internally, or complete independence (since complete independence would imply freedom from norms of ius cogens, and from interference with mass atrocities by the state). Through an analogy with human autonomy, I argue that the paradox is only apparent, and that the moral principles are compatible with state sovereignty. So the idea of sovereignty is a coherent idea, and sovereignty, rightly understood, is a valuable feature of states in international law. Sovereignty is to be understood as internal power and external freedom that are complete for the purposes of a good state.

I address four questions that arise out of Nigel Simmonds's book, Law as a Moral Idea : Is politics a moral idea too? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? To each question I propose an answer that shares much with Simmonds's views, but diverges. Simmonds is right to call law a 'moral idea', and that implies a connection between law and a moral ideal; in my view, the connection is compatible with a necessary connection between law and the morally non-ideal