This chapter has focused on two points. First, because laws are written in language, language expresses concepts, and the concepts the language expresses become vague at the margins, it follows that laws are vague at margins. Second, much of the effort to deal with vagueness in law consists of a search for uniform ways of resolving it, so that the law regains from legal methods that certainty it has lost from vagueness. However, there is no consistent way of resolving vagueness – at least none that I know of – from which it follows that laws necessary carry some level of uncertainty.
All this means we are stuck with a level of uncertainty in legal interpretation. Some argue this fact may have some benefits. Jeremy Waldron (1994 and chapter 15 this volume) argues that at least to some extent the contestability that follows from vagueness can be healthy for a society, by bringing significant issues to the fore. Endicott (2000, pp. 188-203) does not go quite that far, but argues that vagueness is not a deficit to rule-of-law values simply because it requires judges, on occasion, to exercise discretion. Discretion at the margins is a far cry from a society governed arbitrarily by despot.
Whatever valence one assigns vagueness, it is here to stay because it is a feature of our cognitive make-up. In some instances, vagueness appears to give judges the opportunity to take advantage of linguistic accident to undermine the results of the democratic process. In other instances, it provides both flexibility and an opportunity for society to debate important questions, such as the meaning and application of the ban on ‘Cruel and Unusual Punishment’, to take Waldron’s example. Thus, I prefer to stay away from judging the overall value of vagueness. In that to resolve vagueness is to resolve close cases a the margins, it is fairly clear that societies, where most everyday activity is not at the margins, can survive with some level of legal uncertainty, regardless of whether one thinks this is to be good or bad in balance. The best we can hope for is for judges to act both transparently and sincerely in choosing the tools to resolve uncertain language in each case they address.
Lawrence M. Solan
(Why It Is So difficult to resolve Vagueness in Legal Interpretation, în Vagueness and Law (ed. G. Keil, R. Poscher), Oxford University Press, 2016, la p. 243-244)