On the edge of reason
Law at the borderline
Boundaries of the legal case
Legal cases are traditionally seen as examples of a disciplined process of legal reasoning. Precedential cases lay down clear, authoritative rules that guide civic affairs and social life and preclude further deliberations on the same actions. They reflect the accumulation of judicial wisdom and authority and provide us with certainty, which according to Hale (1956: 505) is the most important property we demand of laws.
The legal discipline is not blind to, but has often chosen to ignore the fact that such ideology is sometimes too good to be true. More than a century ago, legal realists had challenged the idea that the law is an autonomous system from a sociological perspective. As these theorists would agree, the boundaries of a case might be more fluid than traditionally envisioned.
If legal reasoning may be seen as a process of categorization, to decide on a case of murder is to categorize a situation as a member or a non-member of the category of murder. Disputes often concern whether a thing or an event fits into a particular category. In fact, it has been claimed (e.g., Solan 1993) that most of the problems that arise in the legal context have to do with categorical indeterminacy. An overwhelming majority of conceptual categories are known to have fuzzy boundaries, and legal concepts are no exception.
In many legal cases, the pivot on which arguments revolve has to do with the fuzzy boundary of certain words. Examples of borderline cases include whether a chicken coop may be considered a vehicle in the Road Traffic Act of 1930 (Garner v Burr 1951), whether race could be used to refer to a religious, social or cultural community in the Race Relations Act 1976 (Mandla v Dowell Lee 1983), or whether a couple died in a shipping accident satisfies the meaning of coinciding deaths in a will (Re Rowland 1963). The application of indeterminate laws leads to indeterminate outcomes, giving rise to so-called hard cases. H.L.A. Hart (1983) has acknowledged the open texture of the law and the penumbra of uncertainty that surrounds any legal rules.
Legal indeterminacy has attracted a lot of attention from legal theorists, as it casts doubt on the extent to which the law controls judicial decisions, and thus threatening the legitimacy of the law. The indeterminacy thesis suggests that the judge often must choose between two or more legally acceptable solutions to a case; in other words, legal questions lack single right answers (Kress 2003). This line of argument counters Austin’s belief (1995) that the law was a closed logical system posited by an authority, in which judges deduced their decisions from premises; Dworkin’s Right Answer thesis, which suggests that there is virtually always a right answer to a legal question; or Scalia’s confidence in the judge’s ability to determine what a statute clearly means and its boundary of application.
The nature of indeterminacy involved in a case implicitly affects statutory interpretation and judicial decision-making. Where the language is clear, courts are obliged to interpret statutes with the plain meaning of the words; where the language is ambiguous, courts may look for legislative intent, history and other contextual factors. Solan (2005) has also pointed out that judges are less likely to give the defendant the benefit of the doubt when a statute is ambiguous; however, in the case of a vague statute the rule of lenity may be applied.
A fuller appreciation of the nature of indeterminacy might illuminate the intricate relationship between the legal system and the way human beings conceptualize the world, and reveal the unstable boundaries of the legal case. Among the many sources of legal indeterminacy, we shall focus on vagueness, a universal property of all natural languages (Devos 2003). Consider the following list of words: old, smart, awake, rich, sweet, book. These words are vague, in the same way as there being no particular moment when night falls. Indeed, we might struggle to come up with words that are not vague. If vagueness is a core property of language, then the law, most of which is laid down in language, must also be vague. Legal terms such as reasonable care, due process, and satisfactory condition do not delineate clear boundaries.
Although the complexities of modern life often make it difficult to pass binary judgments of right or wrong, judges are required by their job to pronounce clear-cut judgments. If the concept at the heart of the dispute is vague, they need to suppress vagueness in their judgment and render an absolute verdict. They are often reluctant to acknowledge the very existence of vagueness. Through a humanist analysis of vagueness and a reconceptualization of case law and precedent in cognitive terms, this chapter hopes to inform theorists interested in legal indeterminacy, bring to judicial notice a refreshed understanding of an issue that has plagued the law under different disguises, and unveil tensions and dilemmas that are central to the foundations of the common law.
Understanding vague predicates
The Frege–Russell view takes vagueness as a result of our ancestors not being interested enough in logic and precision. Embedded in this view, and in normative doctrines such as void for vagueness, is the idea that vagueness could and ought to be eliminated. The vision that language may be purified of vagueness seems to be shared by some lawyers. An example is the ‘wild goose chase’ (Samek 1973) that lawyers have for years engaged in, in their search for the true essence of obscenity in order to properly define it. In order to explain why these lawyers are chasing tails we first need to ask: what is vagueness and where do borderline cases come from?
One defining property of vague predicates is that they provide no sharp boundaries to distinguish categorical members from non-members, giving rise to borderline cases whose categorical membership is unclear. Red is vague because one can find reddish shades that borderline with orange, purple or brown. Red is an example of the most common type of vagueness, called gradual vagueness, which is due to the uncertainty of the degree to which a predicate applies. A more complicated form of vagueness is categorical vagueness, which is due to the uncertainty of criteria for the application of a predicate. It usually also embraces gradual vagueness. Bilingual is an example of categorical vagueness, as it is unclear in order to qualify as bilingual whether one has to be exposed to two languages from birth, or what level of proficiency one needs to have in two languages. It is disputable which of these conditions is necessary or sufficient.
Vagueness needs to be distinguished from other types of linguistic and non-linguistic indeterminacies, such as relativity, ambiguity and contestability.
A word is relative when its meaning depends on the immediate context. For instance, it would be difficult to say whether something is heavy unless we know what that something is. A heavy man is still lighter than a non-heavy elephant. Relativity dissolves if one specifies what the modified object is. Although many vague words are also relative (e.g., tall), relativity and vagueness do not necessarily overlap; for example, the precise expression above average in height is relative to the population concerned but does not entail vagueness.
Homonymy, polysemy and generality are potential sources of ambiguity. A word is ambiguous if it has two or more meanings. For instance, the homonymous term bank may denote edge of a river or financial institution, the polysemous term key may stand for something to open a lock or a means to get access to something else, and the general term mother includes specific references to mothers and mothers-in-law, and a wide range of metaphorical meanings. Interpretation may resolve ambiguity, but not vagueness.
In philosophy a further type of indeterminacy is identified as contestability (Waldron 1994). A predicate is contestable if there are alternative explications of its meaning, and if that meaning contains some evaluative or normative force (e.g., social norms and moral standards). For example, democracy is contestable because it may be understood in terms of representation or direct participation in the government. Contestability is extra-linguistic and appears to overlap with categorical vagueness.
These distinctions are important, but are often ignored or confused by judges and legal scholars. Both relativity and ambiguity may be potentially resolved by linguistic context, but vagueness cannot be resolved by choosing one interpretation over another. Vagueness is unavoidable, indecomposable and irresolvable. This might explain why linguists tend to engage themselves more often in analyzing other forms of indeterminacy,1 and more attempts to analyze vagueness seem to be made by philosophers.
There is ample philosophical discussion about where vagueness comes from, especially during philosophers’ attempt in resolving the Sorites Paradox, a paradox driven by the phenomenon of vagueness. Theories differ in their stance – some argue that vagueness is nothing more than ignorance (epistemicist), some hold that vagueness is a reflection of reality, some say that vagueness is a feature of the observational character of predicates, still others postulate that vagueness is a property of comparison. It would be beyond the scope of this chapter to evaluate each theory; here I shall simply build on Goldstein’s (2009) observation of inter-subjective and intrasubjective differences in judgments about vague predicates, and argue that vagueness is first a property of how we learn before it is a property of language. In other words, it is neither purely a property of the world nor just semantics, but a phenomenon that arises when human organizes knowledge. This perspective has the merit of being compatible with contemporary psychological theories of learning and the empiricist theory of concepts.
Vagueness is not so much about our language systems but about how we naturally learn. We learn about a natural category by being exposed to many, many examples of what items are classified into this category. We learn about what chair means after seeing many examples of chairs which all look slightly different. We form a prototype of a category by extracting regularities from all the exemplars we have seen. Sometimes a common characteristic could be found, but exemplars would display it to a varying degree (gradual vagueness); at other times no single commonality can be found and the categories seem to be governed by multiple criteria of unknown weight (categorical vagueness). We judge whether a new object belongs to an existing category by comparing it with examples we have seen. Most words we know have never been defined for us, and we rarely have explicit criteria for categorization. Knowledge about the world that we abstract from experience remains mostly implicit; this implicitness is obvious if one considers how difficult it could be if one is asked to provide a precise definition for simple concepts (such as chair and red). The more variable the sample items are, the more tolerant the category is (and thus less clear the boundary). Concepts formed using a limited number of instances may be applied in an unlimited number of situations; vagueness is unavoidable as it arises in the process of applying concepts to the real world.
This refreshed understanding of vagueness, contextualized in the formation and organization of concepts, points to the following implications.
Vagueness is an essential and unavoidable feature of the law
Vagueness cannot be eliminated or improved. One cannot remove vagueness by becoming more specific; the opposite of specificity is generality, not vagueness (Waldron 1994). Reducing generality does not ensure that vagueness is also reduced. A general term (e.g., living thing) might be less vague than a specific term (e.g., tree).
If we take the trouble, we can measure the exact height of a person, or the exact wavelength of a color patch. We can even find out exactly how many grains a heap of sand contains. These tools do not imply that the concepts of red, tall or heap are not vague. Neither could an arbitrary stipulation of say, how many grains make a heap, help us in any way. When we come across these concepts we simply do not operate by precise measurements, but by the concepts as we have learned from experience. Vague predicates are useful in efficient daily communication. Moreover, precise measurements or arbitrary stipulations only seem to have a potential function in gradually vague predicates; with categorically vague predicates, one does not even know where measurement should start.
Even precise formulations may not yield precise law, given that adjudication principles are vague as they depend on evaluative and normative considerations. Take Endicott’s (2000) example: in Ottawa, one is not allowed to possess any bullfrog with tibia that are 5cm or longer. While this formulation may appear precise, one can imagine cases where liability for catching bullfrogs is indeterminate. For instance, a bullfrog may have one tibia longer than 5cm and one shorter, or another bullfrog may have a curved tibia that is 4cm long when measured across but is 6cm long when measured with a tape. Borderline cases seem to arise even if linguistic formulations appear to be precise.