The vagueness of the law

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Currently, legal scholars agree that in some cases legal rules do not specify a definite outcome. These scholars believe that such indeterminacy results from the vagueness of language: the boundaries of the application of a term are often unclear. Nevertheless, they maintain that the system of legal rules by and large rests on clear core meanings that do determine definite outcomes for most cases. Contrary to this view, an earlier group of legal philosophers, called “realists,” argued that indeterminacy pervades every part of the law.

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The realists held that there is always a cluster of rules relevant to the decision in any litigated case. For example, deciding whether an aunt’s promise to pay her niece a sum of money if she refrained from smoking is enforceable would involve a number of rules regarding such issues as offer, acceptance, and revocation. Linguistic vagueness in any one of these rules would affect the outcome of the case, making possible multiple points of indeterminacy, not just one or two, in any legal case.

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For the realists, an even more damaging kind of indeterminacy stems from the fact that in a
common-law system based on precedent, a judge’s decision is held to be binding on judges in
subsequent similar cases. Judicial decisions are expressed in written opinions, commonly held to consist of two parts: the holding (the decision for or against the plaintiff and the essential grounds or legal reasons for it, that is, what subsequent judges are bound by), and the dicta (everything in an opinion not essential to the decision, for example, comments about points of law not treated as the basis of the outcome). The realists argued that in practice the common-law system treats the “holding/dicta” distinction loosely. They pointed out that even when the judge writing an opinion characterizes part of it as “the holding,” judges writing subsequent opinions, although unlikely to dispute the decision itself, are not bound by the original judge’s perception of what was essential to the decision. Later judges have tremendous leeway in being able to redefine the holding and the dicta in a precedential case. This leeway enables judges to choose which rules of law formed the basis of the decision in the earlier case. When judging almost any case, then, a judge can find a relevant precedential case which, in subsequent opinions, has been read by one judge as stating one legal rule, and by another judge as stating another, possibly contradictory one. A judge thus faces an indeterminate legal situation in which he or she has to choose which rules are to govern the case at hand

Topic and Scope:

The vagueness of the law; specifically, the view of a group of legal philosophers called “realists” that the law is inherently indeterminate.

Purpose and Main Idea:

Instead of providing his own argument, the author’s purpose is to communicate the argument that the realists made, the main idea that’s summed up in the sentence: “Indeterminacy pervades every part of the law.”

Paragraph Structure:

Paragraph 1 begins with the current view about which “legal scholars agree” (line 1): There’s some vagueness in the way law is written and hence applied, but the foundation for the system is basically solid and based on clarity. The “earlier” (no hint about how much earlier) realists begged to differ.

Paragraph 2 uses the example about the aunt and niece to illustrate the number of different rules that might apply in a given case, and thus the realists’ first point—that any vagueness in

any of those rules will contribute to the indeterminacy of the outcome.

The third paragraph’s key signal is at line: “an even more damaging kind of indeterminacy” tells us (if the sheer length of paragraph 3 didn’t already do so) that this is the meat of the realists’ argument, taking us beyond the vagueness of language to the uncertainty of precedent. First we get the factual background: Judges’ decisions, meant to be binding precedents, are composed of holding and dicta. The holding is what later judges are supposed to be guided by, while the dicta are the inessential points of law. Yet according to the realists, this holding/dicta distinction is observed only loosely. Judges are free to redefine each in their subsequent opinions, and in the end a single court case can create multiple and contradictory precedents—hence, indeterminacy for judges who are presumably looking for concrete precedents to rely upon.

The Big Picture:

  • While most passages consist of the author’s argument, be ready for passages during which the author offers no personal point of view and instead reports on someone else’s argument.
  • The lengthy paragraph 3 offers a fairly typical CAT ploy. Between lines 26-46 there’s a lot of complex detail, and it’s easy to get bogged down. Yet if you just hang in there until line 46, the word “then” comes along to signal a conclusion, and the last two sentences sum it all up pretty clearly. The point? When in doubt, keep reading! The author will often restate matters more simply and clearly later on.

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