Timothy Endicott

In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of fundamental rights from that of another decision maker. I elaborate this view by reference to the decision of the House of Lords in Adan and Aitseguer [2001] 1 All ER 593

How can it be valuable to use vagueness in a normative text? The effect is to make a vague norm, and vagueness seems repugnant to the very idea of making a norm. It leaves conduct (to some extent) unregulated, when the very idea of making a norm is to regulate conduct. A vague norm leaves the persons for whom the norm is valid with no guide to their conduct in some cases - and the point of a norm is to guide conduct. A vague norm in a system of norms does not control the officers or officials responsible for applying the norms or resolving disputes - and part of the value of a system of norms is to control the conduct of the persons to whom the system gives normative power. In this essay I will seek to resolve these puzzles, and to show that vagueness can be valuable to lawmakers (and valuable to them, because their use of it is valuable to the people to whom the law is addressed). Far from being repugnant to the idea of making a norm, vagueness is a central technique of normative texts: it is needed in order to pursue the purposes of formulating such texts. Not all norms are vague. But vagueness is of central importance to the very idea of guiding conduct by norms.

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.