Timothy Endicott

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.

Suppose that you are wandering across the tundra, and you find an infant, all alone, in the snow. She is incapable of discourse, and yet she has the same human rights as anyone who is capable of discourse. Those rights do not depend on the practices or conventions of your people, or hers. Human discourse and human conventions play no role in human rights. I elaborate these claims through a critique of J.W. Harris’s groundbreaking analytical account of human rights. I conclude that some welfare rights are paradigms of human rights, while rights of freedom of expression, privacy, and assembly, and rights to vote, and rights to independent tribunals are not human rights at all, except in a distantly metaphorical sense. Moreover, human rights can be explained with no reference at all to state authorities (though state authorities may have various special roles in observing and promoting some of them).

People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz's compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing that law does not claim unlimited jurisdiction, and need not claim unlimited scope for its directives. But the requirements of the rule of law create a standing risk that the law will not adequately recognize the autonomy of its subjects, because of its artificial techniques for controlling its own jurisdiction and for controlling the scope of its own directives.

Moral premises are required in sound reasoning to the conclusion that a community does or does not (more or less) attain the rule of law. Those moral premises include, for example, the principle that judges should act with comity toward executive agencies. A failure in that moral requirement of comity is a failure to attain the rule of law. Because the ideal of the rule of law necessarily has a moral content, there is a necessary connection between law and morality– albeit a modest connection that is compatible with deep moral defects in the law.

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.

It can be compatible with justice and the rule of law for a court to impose new legal liabilities retrospectively on a defendant. But judges do not need to distinguish between imposing a new liability, and giving effect to a liability that the defendant had at the time of the events in dispute. The distinction is to be drawn by asking which of the court's reasons for decision the institutions of the legal system had already committed the courts to act upon, before the time of decision. I explain these conclusions through an assessment of the last episode in the debate between H.L.A.Hart and Ronald Dworkin