Ralf Poscher

Vague expressions are omnipresent in natural language. As such, their use in legal texts is virtually inevitable. If a law contains vague terms, the question whether it applies to a particular case often lacks a clear answer. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and places judges in the position to decide impartially. Vagueness poses a threat to these ideals. In borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. In the philosophy of language, vagueness has become one of the hottest topics of the last two decades. Linguists and philosophers have investigated what distinguishes "soritical " vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of "vagueness ", let alone to the various theories that try to account for these phenomena. The paper is an introduction to a book of the same title. Bringing together leading scholars working on the topic of vagueness in philosophy and in law, the book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness.

Vague expressions are omnipresent in natural language. Their use in legal texts is inevitable. A law phrased in vague terms will often leave it indeterminate whether it applies to a particular case. This places the law at odds with legal values. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and allows judges make impartial decisions. Vagueness poses a threat to these ideals. In borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. In the philosophy of language, vagueness has become one of the hottest topics of the past two decades. Linguists and philosophers have investigated what distinguishes ‘soritical’ vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of ‘vagueness’, let alone to the various theories that try to account for these phenomena. Bringing together leading scholars working on the topic of vagueness in philosophy and in law, this book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. The chapters of the book are organized into three parts. The first part addresses the import of different theories of vagueness for the law, referring to a wide range of theories from supervaluationist to contextualist and semantic realist accounts in order to address the question of whether the law can learn from engaging with philosophical discussions of vagueness. The second part of the book examines different vagueness phenomena. The contributions suggest that paying greater attention to these phenomena can make lawyers aware of specific issues and solutions as yet overlooked. The third part deals with the pragmatic aspects of vagueness in law and with the professional, political, and moral issues to which such vagueness gives rise.

The theory of principles is multifaceted. Its initial expression contained an important argument against positivist theories of adjudication. As a legal theory, it fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption or balancing. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights. Its most promising aspect could be its contribution to a more comprehensive theory of legal argumentation.

In his new book, Fred Schauer adopts a prototypical approach to the law in order to reestablish the importance of “The Force of Law”, and I strongly support his claim that there are interesting things to be said about the relationship between law and force. One aspect concerns the special kind of force to which the law is related. In the tradition of political philosophy, this kind of force has often been characterized with the state's monopoly on legitimate force. Whereas the essay will support the idea that the law has a monopoly of force, it will challenge the idea that it is its legitimacy that makes it characteristic. It is a monopoly not so much on legitimate, but on ultimate force. The robustness of the force the law is—prototypically—related to, however, should not obscure the fact that the relation between law and force is quite delicate and precarious. Three strategies of the law to manage this fundamental precariousness are pointed out.

This paper is my contribution to round three of a longstanding debate between Robert Alexy and me about the principles theory’s concept of principle. In the first round, Alexy—bucking tradition—proposed a nongradualist distinction between rules and principles that divided the ontology of norms into two categorically distinct norm‐types. He connected this norm‐theoretical analysis with a theory of fundamental rights according to which such rights had to be understood as principles and thus interpreted as optimization requirements. In the first round I objected to the norm‐theoretical assumptions and questioned the doctrinal merit of the principles theory approach. Unlike Alexy, I saw no merit in his notion of principle over and above optimization requirements, which by that time Alexy, too, regarded as rules. In round two, Alexy defended his concept of principle by taking refuge in the notion of an ideal ought, which he defined as a command to be optimized. In this second round, I criticized the new attempt to save his view of principles on the ground that the norms Alexy had in mind optimized not commands but states of affairs and thus were ordinary norms or rules according to the misguided taxonomy of the principles theory. Alexy opened round three of our exchange by admitting that my critique of round two was justified and that he had erred in identifying principles as ideal commands to be optimized. He now proposes an index theory of principles. In the paper, I recapitulate the motive and the main points of our debate and scrutinize Alexy’s latest innovation.

The mechanics of claims focusses predominantly on the claim to life. The claim to life is rooted in the autonomy principle, just like other specific claims. Still, the mechanics of claims does not have a systematic place for the fundamental negation of the status as an autonomous being as such. It is, however, the proctiction of the status as such, which is at the center of the protection of human dignity in German constitutional law. Looked at it from this perspective, the protection of human dignity as the protection of the status of an autonomous human being, appears to be a blind spot of the mechanics of claims. The comment attempts to show, how this blindspot leads to inconsistencies in the mechanics of claims, and how they might be ameliorated if human dignity is considered as an absolute right independent of the claims to life.