Vagueness in Governance

By: S. Leon Felkins

Written: 24 July, 2004
Revised: 10/9/09
"Best if used by 31 December, 2010"[*]




Notes:

*. I love the expression, "Best if used by ..." as seen on groceries and such. What does it mean? Wouldn't it be more proper to say, "Better if used by ..."? What happens on the end date? Does the stuff suddenly blow up or is suddenly infested with maggots? Would it still be "best" for one more day? Or maybe just "better"?

1. "The government" (or just "government") or the "state" refers to all governments in general. However, much of this article is about the U.S. government, in particular, for that is the government that I have intimate knowledge about.

2. "Acceptance of vagueness as meaning 'essential' vagueness is similarly compatible with acceptance of central or core meaning. 'Essential' vagueness carries the idea that there are matters whose inclusion in or exclusion from the concept constitute a borderline case. Borderline cases, in the context of essential vagueness, are those in which 'law' neither determinately applies nor determinately fails to apply, and attempts to sharpen the application or linguistic extension of 'law' are not dispositive of the problem of application of the concept. Essential vagueness is not a matter of ignorance to be remedied by further investigation, nor a matter of ambiguity where there is a plurality of determinate meanings." -- Keith Culver, "LEAVING THE HART-DWORKIN DEBATE" (http://www.utpjournals.com/utlj/utlj514.html)

3. George C. Christie, "Vagueness and Legal Language", 48 Minn. L. Rev. 912 (1963-1964), online at http://eprints.law.duke.edu/archive/00000247/

4. "Tax rates" and the breakpoints between rates provide an example of one way that some vague terms can be definitized. While the tax rate (in this example, for simplicity, I will just refer to a rate rather than rates) appears to be vague and there appears to be no definitive rate, there actually is an optimum rate. This argument was made famous as the "Laffer curve". Which is that total revenue as a function of tax rate has a maximum. That maximum, assuming it can be found, would be the logical tax rate breakpoint for the government.

Possibly many other vague terms could be definitized if subjected to the constraint of maximizing some meaningful function. For example "speed limit" might be set at the value that gives maximum transportation efficiency.

5. Breakpoints for vague terms that are subject to the sorites paradox cannot be defended. See Typicality, Graded Membership and Vagueness, in which is stated; "Perhaps the sorites paradox is really a disguised version of Zeno’s other familiar paradox of Achilles and the tortoise, and may be explained as the failure of a mind that has evolved to handle countable objects in daily life to comprehend the infinite and the infinitesimal and continuous functions - how an infinite number of points can lie between two others yet can be traversed in a finite time." Interesting.

7. Compare this to the "reasonable suspicion" that a policeman must have to stop someone on the street and search them. The officer must have ". . . articulable suspicion that a person has committed or is about to commit a crime.", according to the U.S. Supreme Court in Florida v. Royer, 103 S.Ct. 1319, 1324 (1983).

6. The actual quote is: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.", U.S. Supreme Court JACOBELLIS v. OHIO, 378 U.S. 184 (1964) (http://laws.findlaw.com/us/378/184.html)

8. John Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 56 (March 1962), 814. (online copy at http://www.politics.ubc.ca/fileadmin/template/main/images/departments/poli_sci/Faculty/goux/Roche.pdf).

9. It should be noted that the concept of a constitution is itself vague. Britain claims to have a constitution but it is not a formal, distinct, document as in the US, for example. And the US Constitution is supported and enhanced by other documents. The case law attempting to interpret the Constitution is many times more voluminous than the Constitution itself. And the Declaration of Independence gives a better understanding of the goals of the Constitution as this article suggests that a constitution should do.

10. Even if breakpoints are precisely set, personnel in law enforcement still have the last say for they can decide whether a person is to be "noticed" or not. If you get their attention, it can be very painful and expensive -- even if you "win".

11. 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

12. The Dictionary of the History of Ideas, Edited by Philip P. Wiener, 5 volume set, copyright 1974, Charles Scribners & Sons. "Justice" article online at http://etext.lib.virginia.edu/cgi-local/DHI/dhi.cgi?id=dv2-73

13. Case law defines "due process" as notice and an opportunity to be heard.

14. Quoting "ADDRESSING VAGUENESS, AMBIGUITY, AND OTHER UNCERTAINTY IN AMERICAN CRIMINAL LAWS" by John F. Decker, 80 Denv. U. L. Rev. 241-343 (2002)
"The absence of a determinate standard" in a given legal proscription "gives police officers, prosecutors, and the triers of fact unfettered discretion to apply the law and, thus there is a danger of arbitrary and discriminatory enforcement" of such a law.


Supplementary Bibliography

Here are some additional references that pertain to vagueness in governing that were not necessarily referenced in the body of this essay.


"Freedom of Expression at the National Endowment for the Arts", 1998, >http://www.csulb.edu/~jvancamp/doc17.html<

Blasi, Gary, "Lawyers, Guns and Money: Content Contextualism and the Cognitive Foundations of Statutory Interpretation", March 17, 2004, ExpressO Preprint Series, >http://law.bepress.com/expresso/eps/197/<

Endicott, Timothy, "Law and Language", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2002/entries/law-language/>.

HERTKO, MATTHEW J., "STATUTORY INTERPRETATION IN ILLINOIS: ABANDONING THE PLAIN MEANING RULE FOR AN EXTRATEXTUAL APPROACH", 2005, UNIVERSITY OF ILLINOIS LAW REVIEW, >http://home.law.uiuc.edu/lrev/publications/2000s/2005/2005_1/Hertko.pdf<

SOLAN, LAWRENCE M., "PERNICIOUS AMBIGUITY IN CONTRACTS AND STATUTES, 2004, >http://papers.ssrn.com/sol3/papers.cfm?abstract_id=500543<

Werbach, Kevin, "LOOKING IT UP: The Supreme Court's Use of Dictionaries in Statutory and Constitutional Interpretation", 1994, >http://werbach.com/stuff/hlr_note.html<
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