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)

The existing literature on indeterminacy in the law focuses mostly on the use of vague terms in legislation – terms the use of which makes the content of the relevant utterance to some extent indeterminate. As I aim to show, however, not only is the content of a legislative utterance often indeterminate, it is often indeterminate what the content of such an utterance is. In the first two sections of the paper, I discuss in some detail the conditions for successful (...) non-literal speech and address the question whether these conditions are satisfied in the legal context. I argue that due to the fact that legislative contexts generally contain little unequivocal information about legislative intent, interpreters are typically not warranted in taking the legislature to have intended to communicate something non-literal. In the third section, I consider what I take to be the strongest case against my argument: the wealth of actual cases in which the courts have taken the content of the law to be something other than its literal content, seemingly based on relatively straightforward inferences about the legislature’s communicative intentions. As I hope to show, however, very few of these cases are as straightforward as they appear to be. In the fourth, and final section, I argue that the argument from the first two sections has important consequences for the extent to which we should take the content of the law to be determinate. This has significant implications for the analysis of a number of important but controversial legal cases, which I discuss in some detail. (shrink)

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic (...) framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions. (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)

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)

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)

Roy Sorensen has argued that vagueness in the law cannot be justified by appeal to the value of power-delegation, and thereby threatens to take away one of the main reasons for thinking that vagueness can be valuable to law. Delegation of power to officials is justified, he thinks, only if these officials are in a better position to discover whether a particular x is F, a condition not satisfied in cases of vagueness. I argue that Sorensen’s argument is unsound: delegation (...) of power can be valuable even if the delegates are not in a better position to answer that question. (shrink)

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing out, (...) but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected. (shrink)

In "The Value of Vagueness," Timothy Endicott argues that vague law can be better than precise law. I think he is in many respects correct, but will suggest that we modify and supplement his framework in order to get a firmer grip on what I call the Lawmakers' Challenge: the scenario in which lawmakers find themselves when they must determine whether the consequences of precision are worse than the consequences of vagueness. This will allow us to identify several points of (...) actual and possible disagreement regarding the value of vagueness for law, each of which could affect Endicott's claim that vagueness is sometimes preferable to precision. The framework will also allow us to compare positions that seem - on the face of it - hard to compare, due to the fact that they rest on different theories of value and/or different theories of law. (shrink)

If a sound philosophical curiosity as to what might possibly drive the lawmaker to employ vague words in normative drafting brought you to this book, y...

Journal of Applied Philosophy, EarlyView.

We present a novel treatment of set theory in a four-valued paraconsistent and paracomplete logic, i.e., a logic in which propositions can be both true and false, and neither true nor false. Our approach is a significant departure from previous research in paraconsistent set theory, which has almost exclusively been motivated by a desire to avoid Russell’s paradox and fulfil naive comprehension. Instead, we prioritise setting up a system with a clear ontology of non-classical sets, which can be used to (...) reason informally about incomplete and inconsistent phenomena, and is sufficiently similar to ${\mathrm {ZFC}}$ to enable the development of interesting mathematics. We propose an axiomatic system ${\mathrm {BZFC}}$, obtained by analysing the ${\mathrm {ZFC}}$ -axioms and translating them to a four-valued setting in a careful manner, avoiding many of the obstacles encountered by other attempted formalizations. We introduce the anti-classicality axiom postulating the existence of non-classical sets, and prove a surprising results stating that the existence of a single non-classical set is sufficient to produce any other type of non-classical set. Our theory is naturally bi-interpretable with ${\mathrm {ZFC}}$, and provides a philosophically satisfying view in which non-classical sets can be seen as a natural extension of classical ones, in a similar way to the non-well-founded sets of Peter Aczel [1]. Finally, we provide an interesting application concerning Tarski semantics, showing that the classical definition of the satisfaction relation yields a logic precisely reflecting the non-classicality in the meta-theory. (shrink)

Sextus seems to offer inconsistent accounts of the sceptics’ achievement of tranquillity, apparently saying both that the sceptics’ tranquillity is achieved by suspending judgement on all issues and that it is achieved by suspending judgement only on the issue of there being objective goods and evils. It is argued that Sextus does not make the latter claim. The reason for the sceptics’ achievement of tranquillity is to be found in the original perplexity that instigated scepticism and left them immune to (...) the value beliefs that disturb everyone else. After discussing this perplexity that gave rise to scepticism, the paper focuses on Sextus’ explanation of sceptical tranquillity and dogmatic disturbance. (shrink)

Sextus Empiricus tells us that the sceptics conduct investigations. Genuine investigations are commonly taken to have some connection with the aim of discovering truth. Sextus also tells us that the sceptics aim at tranquillity in their investigations. But they do this only by suspending judgement. In what sense, then, are their investigations connected with the aim of discovering truth? This article argues that there is a sense in which Sextus can reasonably take sceptical investigations to be connected with the aim (...) of discovering truth, even though the sceptics only aim at preserving their tranquillity by suspending judgement. (shrink)

This inquiry regarding the ethical parts of the works of Sextus Empiricus is mainly concerned with answering four questions. Firstly, how is one to understand his Pyrrhonian arguments against the claim that there are natural goods and evils? Secondly, how is one to understand the argument with which Sextus purports to show that one is disturbed by having the opinion that there are natural goods and evils, even if there are such things? Thirdly, in what sense is tranquillity the moral (...) end of the sceptics? And fourthly, what is one to make of the claim that the sceptics attain tranquillity? ;In advancing his destructive arguments against the dogmatic thesis that there are natural goods and evils, Sextus employs the same argumentative strategy as in his arguments against all other dogmatic theses. He is concerned with, first, refuting the dogmatists, and then with pitting his negative conclusions against the positive dogmatic theses, in order to induce suspension of assent. He is not concerned with maintaining as his opinion that there are no natural goods and evils. Sextus' argument for the claim that one is disturbed by having the opinion that there are natural goods and evils, even if there are such things, exhibits all the traits of ad hominem arguments: he tries to use assumptions and concessions of the dogmatists in order to force them to admit to his conclusion. Again, he is not committed to the conclusion himself. When Sextus says that the moral end of the sceptic is tranquillity, the question arises whether this claim is dogmatic. It appears, however, that Sextus can avoid charges of dogmatism, by defining the moral end in terms of someone who is not a sceptic, and implying that the sceptic, as a sceptic, has no such end. The final claim that the sceptic attains tranquillity is found to present Sextus with problems of consistency. The claim is presented as a conclusion to a philosophical argument, but Sextus seems clear when he states that insofar as claims are supported by philosophical arguments they are not endorsed by the sceptic. (shrink)

The Cambridge Companion to Ancient Scepticism. R. Bett (Ed.), New York: Cambridge University Press 2010, pp. 380+xii, ISBN 780521697545. -/- The Cambridge Companion to Ancient Scepticism, edited by Richard Bett, consists of an Introduction and fifteen papers written by international authors (three of them have been diligently translated into English by the editor). The volume presents the major figures of ancient skepticism and the major interpretational problems. Separate papers are devoted to Pyrrho of Elis (Svavar Hrafn Svavarsson), Arcesilaus and (...) Carneades (Harald Thorsrud), Aenesidemus (R.J. Hankinson) and Sextus Empiricus (Pierre Pellegrin). Agrippa seems to be the only missing figure on the list. Moreover, we can also find a lot of information about the minor figures of ancient skepticism. Mi-Kyoung Lee presents skeptical ideas in early Greek philosophy and Carlos Levy writes about the later academic skeptics, especially Clitomachus, Philo of Larissa and Cicero. Richard Bett in his Introduction lists the most important problems in interpreting ancient skepticism: What kinds of belief, if any, are open to a skeptic? Can a skeptic allow for choice and action and if so, then how? Is skepticism compatible with an ethical outlook? Is there a real difference between the Academic and Pyrrhonist varieties of skepticism? Casey Perin takes on the first one, Katja Maria Vogt—the second, Richard Bett—the third, and Gisela Striker—the last one. We also have the next five papers presenting other important aspects of ancient skepticism. Paul Woodruff writes about skeptical modes, James Allen about the relation between Pyrrhonism and medical schools, Emidio Spinelli about the critique of specialized sciences, Luciano Floridi about the modern rediscovery of ancient skepticism, and Michael Williams about its Cartesian transformation. The Companion is very rich in content and very up-to-date, presenting the latest hypotheses. Here I would like to discuss the problem of Pyrrho’s place within the skeptical tradition. (shrink)