Pavlakos, G.

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Timothy Endicott, '<i>Vagueness in Law</i>': Review

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       Pavlakos, G. (2002) Timothy Endicott 'Vagueness in Law': Review. Edinburgh Law Review, 6 (3). pp. 412-414. ISSN 1364-9809  http://eprints.gla.ac.uk/57752/  Deposited on: 02 April 2012   Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk 412 THE EDINBURGH LAW REVIEW Vol 6 2002Roman law is shown by Wijffels to be no longer relevant to the European ius commune.He reminds us that talking of a common law of Europe calls into question "Which Europe?"The vital relationship between a common law and particular laws is illustrated here throughhistorical reference.According to Markesinis, similarities can be detected by looking at cases, that is, thereality. The message is that, although there is similarity, convergence and collaboration,there is no need for European codes, and transborder uniformity of law will be created byconsultation of each others views.Viewing the two instruments of integration (the ECJ and the ECrHR) and the two differentfunctions of these, Rigoux is critical of both the dualist and monist doctrines on the relationof international and internal law. He stresses the need to look beyond Europe towards auniversal law.At a more particular level, Jost regards legal doctrine as a layer between legislation andcases, and states that the existence of different national doctrines is against unification.Problems of legal doctrine are also probed by Garcia Anon, who looks at German doctrine inthe area of "affirmative action". Elosegui compares Spanish and German approaches to"affirmative action", and is critical of Garcia Anon. Nebbia offers Anglo-Italian comparisonsin the areas of good faith and unfair terms in consumer contracts, and considers "open-texture" as the key route to harmonisation. Pino deals with problems surrounding "personalidentity" in Italy."Power ofaspiration" is seen by Kaminski to be the key to reception from, and harmonisationwith, the European Union for Poland. This essay illustrates that when what is there does notreflect a culturally shared, desirable practice and is not part of a heritage, there is no difficultyin adopting foreign patterns. Pointing out that approximation is not harmonisation, the authoranalyses these theoretical claims through changes in company law in Poland.In these essays one sees the contribution that legal theory can make to comparativelaw, and comparative law to legal theory. As a comparatist interested in methodology,theories of convergence and diversity, transpositions, and harmony, this reviewer foundfascinating insight in these contributions, many of them being interdisciplinary, viewing currentlaw from various angles. Above is a taste of what is to come. Readers will find here much tointerest them.Esin OrücüProfessor of Comparative LawUniversity of Glasgow and Erasmus University RotterdamEdinLR Vol 6 pp 412-414Timothy Endicott, VAGUENESS IN LAWOxford: Oxford University Press, 2000. xii and 213 pp (incl index). ISBN 0 19 826840 8 (hb).£40.Vagueness in Law argvies that the rule of law is an unattainable ideal because no legal systemcan avoid arbitrariness and unreasonableness in decision-making. The author supplementsthis thesis with the surprising remark that the impossibility of the rule of law is not necessarilya bad thing (ch 9). To support this claim he argues that the impossibility of the rule of law isin fact postulated on the grounds of the very idea of the rule of law. On the whole, therefore,the book appears to argue for the rather paradoxical thesis that the rule of law as a normativeideal succeeds if and only if it fails.In order to justify his claim Endicott embarks on a two-tier enterprise. He first arguesthat law is necessarily vague and then moves on to contend that vagueness in law is in factVol 6 2002 REVIEWS 413normatively justified by the very idea of the rule of law. The first of these arguments may becalled the metaphysical argument and the second the normative argument.The metaphysical argument begins by asserting that all language, and legal language inparticular, is vague, and it concludes that vagueness in law is insurmountable. Vagueness is aphenomenon that has to do with the way we apply language in order to characterise objectsand events in the environment: coarsely speaking, an expression (or a concept) is vague ifthere are borderline cases for its application. Take for instance the expression "loud music".Between those instances that clearly fall under "loud music" and those that do not, there area number of cases about which we are uncertain whether "loud music" applies. This is sodespite the fact that we know all the information concerning those cases (e.g. the physicaldata concerning sound-waves, and so on).The problem with vagueness is that it deprives one of reasons for drawing a clear linebetween those instances that fall under an expression and those that do not. The reason forthis is that vague expressions abide by something like a "tolerance principle". This expressesthe idea that indiscernible differences between two cases are not a good reason for withholdinga vague expression from one of them.Thus in relation to the example of "loud music", the tolerance principle might be expressedthus: for any n, if Xn is "loud music", then Xn-1 is "loud music".If you play music at Xn (say 10.000) or Xn-1 (say 9.999) decibels, it does not reallymake a big difference. In both cases you play "loud music". But if one keeps applying thetolerance principle for 9.998 more times, one is eventually committed to the absurd conclusionthat music played at 1 decibel is also "loud music" (this amounts to a so-called "soritesseries"):"music played at 100.000 decibel is 'loud music'" (true)"music played at 99.999 decibel is 'loud music'" (true)"music played at 1 decibel is 'loud music'" (false)Sorites series are paradoxical. As such they show that there is no way to draw a clear linebetween cases that fall under a vague expression and those that do not. In law this leads toindeterminacy and hence judicial discretion and arbitrariness.Although many people would accept the existence and the effects of vagueness in law, noteveryone would agree that vagueness is insurmountable. In this context Endicott has to tackletwo main opponents, one from the field of jurisprudence; the other from meta-physics. Thejurisprudential argument is put forward by Ronald Dworkin, who treats vague sentences asbeing "neither true nor false". Dworkin says that this sort of indeterminacy can be blocked bya principle of legislation which requires that "sentence S be treated as false if it is not true".Accordingly, any sentence that is vague (i.e. "neither true nor false") will be treated as falsesince it is not true. Endicott inventively objects that vagueness cannot be dispensed with soeasily. Roughly the reason he appeals to is that vagueness always reiterates on a higher level,which he terms second-order vagueness: it is not clear in the first place whether an expressionis "not true". The conclusion Endicott draws is that rules like Dworkin's can perhaps resistfirst-order vagueness but are futile against second-order vagueness.Endicott's metaphysical opponent is the so-called epistemic theory of vagueness. Thistheory countenances that vagueness emanates from the limits of our ability to know thingsand not from the lack of any sharp boundaries for vague concepts: in fact there are sharpboundaries for vague concepts. It is just we who cannot know them, and never will. Endicottemploys a wealth of gripping argument in chapter 6 in order to refute that thesis, though itsassessment escapes both the scope of the review and the expertise of this reviewer.However, Endicott's elaborated reasoning does not do full justice to the concept ofknowledge that lies behind the epistemic theory. The epistemic theory relies on an externalistepistemology that holds that knowledge is the most basic factive mental state an agent can414 THE EDINBURGH LAW REVIEW Vol 6 2002have. In reconstructing the process of forming knowledge about the environment, theepistemic theory follows the reverse path from most other theories; knowledge is not merelythe result of a process of justification that aims to match up our beliefs to the environment.Rather, knowledge is the starting point of the whole process; all our beliefs and other factivemental states aspire to knowledge because it is the complete whole, whereas all other factivemental states are merely incomplete versions of it. For that reason it is possible to knowthings without knowing that we know them.What is more, such a concept of knowledge makes sense only ifone presupposes a pictureof the world in which the environment lies beyond the conceptual boundaries ofour language.Then knowledge is the primary concept because it embodies the perfect match between ourconceptual scheme (language) and the environment. This is a more appropriate way forreading the epistemic theory. In this context legal concepts would be analysed as superveningupon physical counterparts that are determinate even if unknowably so. Conversely, Endicottseems to aspire to a more internalist epistemology in which language has a strong constitutiverole for the environment. In this variant the truth of our legal sentences depends stronglyupon the way we employ them rather than the way things "really" are. Of course there isnothing wrong with such an internalist picture. However, if this is what the author alludes to,then his critique of the epistemic theory turns into an external critique and loses some portionof its strength.In chapters 8 and 9, Endicott moves on to the normative argument, which backs thethesis that the very ideal of the rule of law postulates vagueness in law. Endicott argues thatthe ideal of the rule of law contains maxims apart from the rule of non-arbitrariness. Thesemaxims are not simultaneously realisable. Nevertheless, they can accommodate the effectsof vagueness in a coherent way. For that reason arbitrariness is to a certain degree normativelypostulated by the very idea of the rule of law. The idea that the rule of law contains maximsor values that run against each other is not particularly new. To mention the most prominentexample, Dworkin argued that legal systems contain principles that cannot be realisedsimultaneously in full, but instead need to be interpreted coherently in each case. However,Endicott's originality consists in arguing that a coherent interpretation of the ideal of therule of law does not amount to a single right answer but to the need for discretion (i.e. to theimpossibility of a single right answer).Vagueness in Law is an example ofbrilliant scholarship. It belongs to the line ofmonographsthat have upgraded jurisprudential thinking to serious analytical philosophy.George PavlakosLecturer in jurisprudenceThe Queen's University of Belfast

George Pavlakos

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