The vagueness of the law
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.
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.
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