Timothy Endicott

Widespread, deep controversy as to the content of the law of a community is compatible with the view that the law is a system of rules. I defend that view through a critique of Ronald Dworkin's discussion of Riggs v. Palmer 22 N.E. 188. Dworkin raised an important challenge for jurisprudence: to account for the fact that legal rights and duties are frequently controversial. I offer an explanation of the possibility of deep disagreement about the application of social rules, which reconciles controversy as to the content of the law, with the model of a legal system as a system of rules. And I discuss the implications for understanding the role of judicial discretion in law

No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I ask what counts as a ‘deficit’ in the rule of law, and I argue that none of these features of legal practice necessarily amounts to a deficit. I conclude that communities fail to achieve the rule of law only because of official infidelity to law, and the failure of lawmakers to pursue the ideal (or their decision not to pursue it). The rule of law is not necessarily unattainable.

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.