Vagueness in Ethics and the Law

H.L.A. Hart’s objection to defining a law as a subtype of an unclear type, or one of his objections, suffers from two oversights, which I identify.

Grey zone attacks tend to paralyze response for two reasons. First, they present us with choice scenarios of inherently dilemmatic structure, e.g., Prisoners’ Dilemmas and games of chicken, complicated by difficult conditions of choice, such as choice under risk or amid vagueness. Second, they exploit our uncertainty about how much we do or should care about the things under attack¬—each attack is small in effect, but their effects accumulate: how should we decide whether to treat a given attack as something (...) meriting a serious response rather than a mere irritation to be ignored? This chapter brings standard decision theoretic tools to bear on the issues, tools such as the maximization of expected utility principle, and the precautionary principle. But it also develops three innovations. It shows that seeing it as possible to make choices not just of actions given our values, but also choices of values themselves, can extricate us from certain kinds of decision paralysis. It shows how we can rationally regard ourselves as having bright decision lines even when nothing in the circumstance of choice has these lines in its structure. And it shows how certain conflict escalation risks from the former two strategies can be managed by both parties seeing that cooperation can yield a sharable surplus of goods, and that cooperation can be rational upon a rationally defensible change in their values so that each comes to derive utility from the success of both parties. This yields cooperative solutions to what amount to Prisoners’ Dilemmas. The Cold War was prosecuted on the logic of strategic rationality and that part of game theory that is deterrence theory. We need a new logic from decision theorists for the games that constitute grey zone conflict. (shrink)

Niniejsza praca ma na celu przedstawienie, w jaki sposób Hartowska koncepcja otwartej struktury prawa może posłużyć dla teoretycznej refleksji nad zjawiskiem ewolucji instytucji prawnych. W pierwszej części artykułu zostanie zaprezentowany sposób, w jaki rozumiane jest pojęcie „otwartej struktury”. Jest to presktyprywna interpetacja propozycji Herberta L.A. Harta, zaproponowana pierwotnie przez Briana Bixa, która „zakłada”, a nie „dowodzi” istnienie otwartej struktury. W drugiej części przedstawię, jak otwarta struktura prawa wyjaśnia aktywizm sędziowski bądź zmiany legislacyjne w stosunku do instytucji prawnych na przykładzie instytucji (...) małżeństwa. Jednym z głównych problemów jest tzw. argument semantyczny, który wskazuje na językowe granice dla dokonywania pewnych zmian prawnych (np. uchwalenia małżeństw jednopłciowych, nadania osobowości prawnej rzekom). Problem semantycznych granic zostanie umieszczony w kontekście podziału na pojęcia odnoszące się do rodzajów społecznych oraz prawnych. Powyższe rozważania zostaną na końcu umieszczone w kontekście polskich przepisów, szczególnie art. 18 Konstytucji RP. (shrink)

I claim that hate speech is actually antithetical to free speech. Nevertheless, this claim invokes the misconception that one would be jeopardizing free speech due to a phenomenon known as "false polarization" – a “tendency for disputants to overestimate the extent to which they disagree about whatever contested question is at hand.” The real polarity does not lie between hate speech (as protected free speech) vs. censorship. Rather, hate speech is censorship. It is the censorship of entire sectors of the (...) population, a violation of their right to be heard, and at worse, an incitement to their extinction. The liberal attempt to try to fit the metaphorical 'round peg' of hate speech into the 'square hole' of free speech is impossible without revealing one’s reluctance to endow people of color, the LGBTQ+ community, women, and other socially oppressed/marginalized groups as equal and deserving of full human dignity. I start by providing a clear definition of "hate speech" (which is lacking in legislation); then I review the original and alleged political intent of the "freedom of expression" within US history; and finally I illuminate the very material consequences of hate speech. (shrink)

That the law should guide those who are subject to it is both requirement and rationale of the law. Yet many legal norms are indeterminate and, therefore, incapable of guiding the conduct of their subjects. This note seeks to answer part of the conceptual puzzle implied by the use of such legal norms: does their indeterminacy serve some positive function? I proceed by way of literature review to identify seven functions of legal indeterminacy that scholars have identified but note that (...) their use is not thereby made necessarily justifiable. (shrink)

What does it mean to understand the law? This challenging book discusses whether and how understanding the law is qualitatively different from understanding a different, non-legal text or linguistic utterance, and whether knowledge of a language is sufficient to understand legal content in that language. Providing a comprehensive overview of current studies of interpretivism, both in the common and civil law systems, this book applies state of the art theories and tools of modern philosophy of language to shed new light (...) on traditional questions in legal theory. Chapters discuss the normative importance and descriptive impact of moral inferences in legal interpretation and critically analyse the claims of legal interpretivism, uncovering the most recent versions of legal positivism. The impressive selection of leading contributors explore an array of important topics including metaethics, expressivism and legal semantics. Outlining a new direction of study and delineating the path for future research on moral inferences in legal interpretation, this timely book will be a thought-provoking read for legal scholars and students interested in legal theory, philosophy and interpretation. (shrink)

What does it mean to understand the law? This challenging book discusses whether and how understanding the law is qualitatively different from understanding a different, non-legal text or linguistic utterance, and whether knowledge of a language is sufficient to understand legal content in that language. Providing a comprehensive overview of current studies of interpretivism, both in the common and civil law systems, this book applies state of the art theories and tools of modern philosophy of language to shed new light (...) on traditional questions in legal theory. Chapters discuss the normative importance and descriptive impact of moral inferences in legal interpretation and critically analyse the claims of legal interpretivism, uncovering the most recent versions of legal positivism. The impressive selection of leading contributors explore an array of important topics including metaethics, expressivism and legal semantics. Outlining a new direction of study and delineating the path for future research on moral inferences in legal interpretation, this timely book will be a thought-provoking read for legal scholars and students interested in legal theory, philosophy and interpretation. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

This chapter presents several arguments related to Parfit's notion of evaluative imprecision and his imprecisionist lexical view of population ethics. After sketching Parfit's view, it argues that, contrary to Parfit, imprecision and lexicality are both compatible with thinking about goodness in terms of positions on a scale of value. Then, by examining the role that imprecision is meant to play in defusing spectrum argument, it suggests that imprecision should be identified with vagueness. Next, it argues that there is space for (...) robust moral realists to think of evaluative vagueness as a semantic phenomenon, illustrating this view with a version of conceptual role semantics on which the precisifications of betterness are correctness conditions for the precisifications of preference. Finally, it gives a probability-based argument against the imprecisionist lexical view. (shrink)

ABSTRACT I consider paradoxical spectrum arguments involving transitive relations like ‘better than’. I argue that, despite being formally different from sorites arguments, at least some spectrum arguments arise from vagueness, and that vagueness might often be the most natural diagnosis.

Traditional analyses characterise or identify vagueness and ambiguity as the sole or primary sources of legal indeterminacy. In this article, I identify and characterise various other sources of legal indeterminacy. In addition to the semantic indeterminacy of vagueness and ambiguity, philosophers of language have identified conversational, pragmatic, and contextual indeterminacy, each of which is capable of generating a ‘hard case’ as applied to the legal sphere. Nor is all legal indeterminacy linguistic in nature. Following Henry Prakken, I identify non-monotonicity, or (...) the fact that legal inferences are defeasible, as a final source of legal indeterminacy. Each source of legal indeterminacy thus identified includes case-law examples to aid in the discussion. (shrink)

While the legal concept of a subject of rights is eminently an abstraction, Ricoeur’s philosophical challenge seeks to rethink its identity within the philosophy of action, in correlation with the ideas of capacity, attestation, and recognition. The terminology Ricoeur employs presents some significant marks of this theoretical stance, as he speaks of a “veritable” or a “real” subject of rights as distinguished from the purely formal one. I argue that Ricoeur’s approach to the legal subject attains its highest meaning in (...) connection with the renewal of the semantics of responsibility in a prospective sense. In particular, I contend that Ricoeur’s idea of a “veritable” subject of rights deploys its full theoretical potential in relation to a prospective idea of responsibility in contrast to the “static” perspective of the ascription of rights and duties. Reciprocally, a prospective idea of responsibility deploys its full meaning in relation to a subject of rights not reduced to a legal abstraction since, as far as narrative identity is implied, this subject is and has to be an embodied one. I shall show that the thesis advocating a projection of responsibility towards the future may have some significant theoretical implications, in particular in relation to the effect of techno-scientific development in areas such as Artificial Intelligence. (shrink)

We recognise certain acts as ‘sexual assault’, ‘sexual violence’, or a ‘sexual offence’, often to offer strong moral condemnation or to prescribe legal sanction. A common feature of these attacks is that they impose nonconsensual sexual contact; they are sexual attacks. While there has been extensive discussion of consent to sexual contact and of the conditions under which consensual contact is sexual, there has been little investigation into what it is for nonconsensual contact to be sexual. The purpose of this (...) article is to examine the conditions under which an attack (nonconsensual contact) is sexual. I first argue that an account of sexual attacks is important, not least because the question has pressing moral and legal implications. I then consider and reject three accounts, one appealing solely to intuitions, one appealing to the body parts involved, and one appealing to the assailant’s mental state. Finally, I develop my own account. I propose that an attack is sexual if and only if it carries a sexual expressive significance, and thereby conveys a sexual meaning. (shrink)

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...) and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

This paper argues that the disagreement between positivists and nonpositivists about law is substantive rather than merely verbal, but that the depth and persistence of the disagreement about law, unlike for the case of morality, threatens skepticism about law. The range of considerations that can be brought to bear to help resolve moral disagreements is broader than is the case for law, thus improving the prospects of reconciliation in morality. But the central argument of the paper is that law, unlike (...) morality, is a concept-dependent social kind, in the sense that law cannot exist in a society without someone in that society having the concept of law. Since the existence of the social kind law is largely dependent on the existence of the corresponding concept, when different actors have different concepts, they can end up creating different kinds. Hence, the difference between positivists and nonpositivists is not just a conceptual one but is capable of giving rise to different legal norms. (shrink)

It has frequently been observed in the literature on hybrid wars that there is a grey zone between peace and war, and that hybrid wars are conflicts which are not clear cases of war. In this paper, I attempt to illuminate this grey zone and the concept and nature of war from the philosophical discussions of vagueness and institutional facts. Vague terms are characterized by the fact that there is no non-arbitrary boundary between entities which lie in their extension, and (...) entities which do not lie in their extension. I apply a theory of vagueness to notions such as “war” and “peace” and go on to suggest that the exact boundary for what counts as a war or not is arbitrary. However, the context in which the conflict occurs determines a range of possible locations for this boundary. The most important contextual parameter is in this respect how the parties to the conflict themselves conceptualize the conflict. I suggest that this can in various ways help us understand grey-zone conflicts. (shrink)

The first part of the chapter surveys some of the main ways in which the Sorites Paradox has figured in arguments in practical philosophy in recent decades, with special attention to arguments where the paradox is used as a basis for criticism. Not coincidentally, the relevant arguments all involve the transitivity of value in some way. The second part of the chapter is more probative, focusing on two main themes. First, I further address the relationship between the Sorites Paradox and (...) the main arguments discussed in the first part, by elucidating in what sense they rely on (something like) tolerance principles. Second, I briefly discuss the prospect of rejecting the respective principles, aiming to show that we can do so for some of the arguments but not for others. The reason is that in the latter cases the principles do not function as independent premises in the reasoning but, rather, follow from certain fundamental features of the relevant scenarios. I also argue that not even adopting what is arguably the most radical way to block the Sorites Paradox – that of weakening the consequence relation – suffices to invalidate these arguments. (shrink)

In this book I examine various forms of indeterminacy in the law and scrutinize (i.a. by way of game theoretical models) the conditions under which they can be strategically used. In particular, I analyze the advantages and disadvantages of indeterminacy in the wording of laws, contracts, and verdicts. Legal texts are particularly interesting insofar as they address a heterogeneous audience, are applied in a variety of unforeseeable circumstances and must, at the same time, lay down clear and unambiguous standards. I (...) argue for the claim that semantic vagueness is less relevant than commonly supposed in the debate, while other forms of indeterminacy (in particular, polysemy and standard-relativity) are underrated or altogether ignored. This misconception is, as I argue, due to a systematic confusion between semantic vagueness and these forms of indeterminacy. Once it is resolved, the value of indeterminacy can be clearly shown. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set of both written (...) and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments. (shrink)

This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking behind judicial decisions. It offers a comprehensive account of the ongoing debate, as well as a novel solution to the problem of understanding legal pragmatics. Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the (...) question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making. (shrink)

If ‘F’ is a predicate, then ‘Fer than’ or ‘more F than’ is a corresponding comparative relational predicate. Concerning such comparative relations, John Broome’s Collapsing Principle states that, for any x and y, if it is false that y is Fer than x and not false that x is Fer than y, then it is true that x is Fer than y. Luke Elson has recently put forward two alleged counter-examples to this principle, allegedly showing that it yields contradictions if (...) there are borderline cases. In this paper, I argue that the Collapsing Principle does not rule out borderline cases, but I also argue that it is implausible. (shrink)

We explain three phenomena in legal discourse in terms of MacFarlane’s assessment-sensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator’s interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse (...) as understood in light of that view and discourse about matters of taste and future contingents. Thus, if assessment-sensitive semantics provides a compelling account of discourse about matters of taste and future contingents, then it likewise provides a compelling account of those statements in legal discourse. (shrink)

Scott Soames argues that consideration of the practice of legal judgement gives us good reason to favor the partial-definition/context-sensitive theory of vagueness against epistemicism. Despite the fact that the value of power-delegation through vagueness is evidenced in practice, Soames says, epistemicism cannot account for it theoretically, while the partial-definition/context-sensitive theory is capable of it. In this paper, I examine the two possible arguments against epistemicism that can be extracted from Soames’s account: (i) an argument based on unknown obligations, and (ii) (...) an argument based on power-delegation through vagueness. The first argument tries to convince us that, as based on epistemicism, the law has already decided the borderline cases, so that judges have obligatory decisions even in such cases: therefore epistemicism is inconsistent with the discretion of judges in borderline cases. I show that even if we sympathize with Soames’s intuitions concerning the legal practice, the argument he offers is not conclusive since it is either invalid, unsound, or paradoxical. The second argument holds that only the gaps which the partial-definition/context-sensitive theory predicts give judges the possibility of lawmaking in borderline cases. However, by categorizing the vague laws as imperfect laws, the judges can claim the right of lawmaking without any need to refer to gaps in the law. By neutralizing these arguments, I argue that epistemicism is able to explain the phenomena just as well as the partial-definition/context-sensitive theory. (shrink)

In the present paper, I argue against the claim that ex aequo and bono adjudication cannot be epistemically objective. I start with a survey of legal rules allowing the parties to resort to ex aequo et bono adjudication. Next, I argue that decisions taken on ex aequo et bono basis are not subjective for three main reasons. First, they are analogous to decision making in hard cases. Second, theories of practical reasoning and hybrid expressivism provide a precise theoretical account of (...) the mechanisms at stake. Third, the context of adjudication provides substantial constraints on judicial tasks. (shrink)

In the present paper, I argue against the claim that ex aequo and bono adjudication cannot be epistemically objective. I start with a survey of legal rules allowing the parties to resort to ex aequo et bono adjudication. Next, I argue that decisions taken on ex aequo et bono basis are not subjective for three main reasons. First, they are analogous to decision making in hard cases. Second, theories of practical reasoning and hybrid expressivism provide a precise theoretical account of (...) the mechanisms at stake. Third, the context of adjudication provides substantial constraints on judicial tasks. (shrink)

The purpose of the paper is to analyze the thesis that an agreement between representatives of two different cultures can and should be reached at a theoretical level. The author tries to verify the Theory of Communicative Action proposed by Jürgen Habermas in the light of philosophical reflections of American neopragmatist Stanley Fish. Habermas is one of the most important and widely read social theorists in the post-Second World War era. He is also one of the authors of the concept (...) of deliberative democracy, which holds that, for a democratic decision to be legitimate, it must be preceded by authentic deliberation – disinterested exchange of reasons – not merely the aggregation of preferences that occurs in voting. The foundation of deliberative democracy is, according to the German thinker, a communicative action based on communicative rationality. Stanley Fish, in turn, is one of the most eminent American philosophers of the twentieth and twenty-first centuries. The main area of his scientific activity is the theory of literature, law, and history. In the course of his reflections, Fish constructed the concept of an interpretive communities, which implies an original view on the nature of the process of cognition, status of human convictions or beliefs, nature of communication situation and capabilities of theory. The final conclusion stemming from the reflection on Fish’s philosophy explains why Habermas’ theory is not an adequate tool to reach an intercultural agreement. (shrink)

It causes many difficulties for jurisprudence to define the notion of judicial activism. At the very beginning it had rather a journalistic character, but but over time it has become a serious charge against these judges who act on the basis of their vision of what the law ought to be like rather than what it actually is like. On the ground of the polish legal theory the echoes of the dispute about judicial activism are reflected in the discussions about (...) the nature of legal interpretation. Transposing the problem of activism into the problem of interpretation allows the use of analysis tools that were previously unavailable. One of these tools are concepts emerged on the neopragmatist philosophy of Stanley Fish. Fish tries to describe the nature of the interpretation in the context of reader-response criticism and the concept of interpretive communities. Application of Fish's philosophy in the field of legal theory provides constructive conclusions about the concepts of judicial activism and judicial law-making. (shrink)

I offer a reconstruction of contemporary medical procedures of sex assignment for infants with intersex conditions. In the perspective adopted, sex assignment to intersexed newborns can be understood as a procedure that imposes determinate sex predicates. The account describes two stages of sex assignment. At the first stage of the process, the sex predicates ‘female’, ‘male’, or ‘intersexed’ are taken to denote genital morphology. Initial genital assessment of newborns imposes clear boundaries upon the extensions of these predicates through diagnostic schemes (...) of precisification. At the second stage, the sex predicates ‘female’ and ‘male’ denote sex of rearing, a therapeutic and pedagogical project aimed at producing stable and psycho-socially well-adjusted gender identity. The multi-dimensional indeterminacy of prognosticating sex of rearing at the second stage is mitigated through the prioritization of some subsets of the medical data. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

This book shows how research in linguistic pragmatics, philosophy of language, and rhetoric can be connected through argumentation to analyze a recognizably common strategy used in political and everyday conversation, namely the distortion of another’s words in an argumentative exchange. Straw man argumentation refers to the modification of a position by misquoting, misreporting or wrenching the original speaker’s statements from their context in order to attack them more easily or more effectively. Through 63 examples taken from different contexts (including political (...) and forensic discourses and dialogs) and 20 legal cases, the book analyzes the explicit and implicit types of straw man, shows how to assess the correctness of a quote or a report, and illustrates the arguments that can be used for supporting an interpretation and defending against a distortion. The tools of argumentation theory, a discipline aimed at investigating the uses of arguments by combining insights from pragmatics, logic, and communication, are applied to provide an original account of interpretation and reporting, and to describe and illustrate tactics and procedures that can be used and implemented for practical purposes.. This book will appeal to scholars in the fields of political communication, communication in general, argumentation theory, rhetoric and pragmatics, as well as to people working in public speech, speech writing, and discourse analysis. (shrink)

Статтю присвячено проблемі аналізу сучасної мовної ситуації в Україні. Дослідження здійснено на основі найновішого соціолінгвістичного опитування ТОВ «Перша рейтингова система», яке проводено в лютому 2017 року. Проаналізовано мовну поведінку мешканців різних міст України для виявлення їхнього ставлення до мовних проблем, а також схарактеризовано їхні погляди на використання української та російської мов сьогодні та у перспективі.

У статті висвітлено особливості мовного законодавства трьох пострадянських країн – України, Грузії та Молдови. Окреслено історичну перспективу мовно-політичного дискурсу з часів розпаду Радянського Союзу. Особливу увагу приділено конституційному затвердженню статусу державних мов, нещодавньо ухваленим чи напрацьованим законам та законопроектам, ролі конституційних судів у регулюванні мовного питання. На додаток, розглянуто специфіку регулювання вжитку мов національних меншин.

Some comparisons are hard. How should we think about such comparisons? According to John Broome, we should think about them in terms of vagueness. But the vagueness account has remained unpopular thus far. Here I try to bolster it by clarifying the notion of comparative vagueness that lies at its heart.

A brief, opinionated summary of the papers in the Ratio special edition on incommensurability and vagueness.

Sergio Tenenbaum and Diana Raffman contend that ‘vague projects’ motivate radical revisions to orthodox, utility-maximising rational choice theory. Their argument cannot succeed if such projects merely ground instances of the paradox of the sorites, or heap. Tenenbaum and Raffman are not blind to this, and argue that Warren Quinn’s Puzzle of the Self-Torturer does not rest on the sorites. I argue that their argument both fails to generalise to most vague projects, and is ineffective in the case of the Self-Torturer (...) itself. (shrink)

In an alleged counter-example to the completeness of rational preferences, a career as a clarinettist is compared with a career in law. It seems reasonable to neither want to judge that the law career is at least as preferred as the clarinet career nor want to judge that the clarinet career is at least as preferred as the law career. The two standard interpretations of examples of this kind are, first, that the examples show that preferences are rationally permitted to (...) be incomplete and, second, that the examples show that preferences are rationally permitted to be indeterminate. In this paper, I shall argue that the difference between these interpretations is crucial for the money-pump argument for transitivity, which is the standard argument that rational preferences are transitive. I shall argue that the money-pump argument for transitivity fails if preferences are rationally permitted to be incomplete but that it works if preferences are rationally permitted to be indeterminate and rationally required to be complete. (shrink)

Scott Soames has recently argued that the fact that lawmakers and other legal practitioners regard vagueness as having a valuable power-delegating function gives us good reason to favor one theory of vagueness over another. If Soames is right, then facts about legal practice can in an important sense adjudicate between rival theories of vagueness. I argue that due to what I call the “Gappiness Problem” – raised by recent critics of the “communicative-content theory of law” – we have to give (...) up the one premise of Soames’s argument that he seems to take to be uncontroversial: that the legal content of a statute or constitutional clause is identical with, or constituted by, its communicative content. I provide a sketch of my own account of legal content and show how it provides a response to the Gappiness Problem. This account, however, does not suffice to vindicate Soames’s argument. I conclude by arguing that my point about Soames’s argument is generalizable. (shrink)

This paper explores what the epistemic account of vagueness means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, interpretative reasoning within the law must construe (...) vague statements as an epistemic phenomenon, and epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent. (shrink)

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. (shrink)

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. (shrink)

What philosophers have in mind when they think about vagueness are sorites cases. Unlike vague scientific or artificial expressions, however, vague natural language expressions do not display the kind of vagueness that we associate with the sorites; they rather display what I call cluster vagueness. A non-trivial consequence of this is that those legal definitions that state precisifications of natural language concepts not only add aspects of meaning to existing expressions but also effectively change the meanings of these expressions. From (...) this, in turn, it follows that we should avoid precisifying ordinary expressions with the help of legal definitions to the extent that we wish legal language to be in line with natural language. And being in line with natural language may help us to deal with gaps in our laws at the very moment we become aware of them, and not just afterwards. (shrink)

It is natural to think that law ought not to be vague. After all, law is supposed to guide conduct, and vague law seems poorly suited to do that. Contrary to this common impression, however, a number of authors have argued that vagueness in the law is sometimes a good thing, because it is a means to achieving certain valuable legislative ends. In this article, I argue that many authors—including Timothy Endicott and Jeremy Waldron—wrongly associate vagueness with instrumental roles that (...) are really played by a closely related semantic phenomenon. (shrink)

Sex determines much about one's life, but what determines one's sex? The answer is complicated and incomplete: on close examination, ordinary notions of female and male are vague. In 2012, the International Olympic Committee further specified what they mean by woman in response to questions about who, exactly, is eligible to compete in women's Olympic events. I argue, first, that their stipulation is evidence that the use of vague terms is better described by semantic approaches to vagueness than by epistemic (...) approaches. In addition, the IOC's 2012 stipulation was made with sensitivity to its practical consequences. Linguistic actions often have morally relevant consequences, and I contend that, other things equal, we should adopt theories about language that acknowledge the responsibility we bear for what we say. Taking vagueness to be an epistemic phenomenon precludes the sense of agency needed for moral responsibility; taking it to be semantic does not. Thus I advance two arguments for semantic approaches to vagueness, as against epistemic approaches: one descriptive and one normative. (shrink)

Ethical vagueness has garnered little attention. This is rather surprising since many philosophers have remarked that the science of ethics lacks the precision that other fields of inquiry have. Of the few philosophers who have discussed ethical vagueness the majority have focused on the implications of vagueness for moral realism. Because the relevance of ethical vagueness for other metaethical positions has been underexplored, my aim in this paper is to investigate the ramifications of ethical vagueness for expressivism. Ultimately, I shall (...) argue that expressivism does not have the resources to adequately account for ethical vagueness, while cognitivism does. This demonstrates an advantage that cognitivism holds over expressivism. (shrink)

In this paper I explore the implications of moral vagueness (viz., the vagueness of moral predicates) for non-naturalist metaethical theories like those recently championed by Shafer-Landau, Parfit, and others. I characterise non-naturalism in terms of its commitment to 7 theses: Cognitivism, Correspondence, Atomism, Objectivism, Supervenience, Non-reductivism, and Rationalism. I start by offering a number of reasons for thinking that moral predicates are vague in the same way in which ‘red’, ‘tall’, and ‘heap’ are said to be. I then argue that (...) the moral non-naturalist seeking to countenance moral vagueness faces a dilemma: are moral properties vague, or perfectly sharp? On either horn of the dilemma, serious problems arise for some of the central tenets of non-naturalism: vague properties seem to threaten Objectivism, Supervenience, and Non-reductivism; on the other hand, sharp properties raise problems for Supervenience and Rationalism. The difficulties on each horn of the dilemma are real, and while they may not be insuperable, they do, at the very least, drastically limit the things non-naturalists can consistently say about moral properties, facts, and reasons. (shrink)

John Broome has argued that value incommensurability is vagueness, by appeal to a controversial about comparative indeterminacy. I offer a new counterexample to the collapsing principle. That principle allows us to derive an outright contradiction from the claim that some object is a borderline case of some predicate. But if there are no borderline cases, then the principle is empty. The collapsing principle is either false or empty.