Can Legal Practice Adjudicate between Theories of Vagueness?
Forthcoming in G. Keil & R. Poscher (eds.), Vagueness and the Law: Philosophical and Legal Perspectives (Oxford University Press)
38 Pages Posted: 10 Nov 2015 Last revised: 11 Nov 2015
Date Written: November 1, 2015
Scott Soames has recently argued that the fact that lawmakers and other legal practitioners regard vagueness as having a valuable power-delegating function in the law 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, which is an exciting conclusion, both from the point of view of philosophy of law and philosophy of language. In this paper, I argue that in the light of recent arguments made by Mark Greenberg, Lawrence Solum, and Dale Smith 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 go on to provide a preliminary sketch of my own account of legal content and show how it provides a principled and unified response to the problems raised by Greenberg, Solum, and Smith. This account, however, does not suffice to vindicate Soames’s argument: since legal content is neither identical with nor constituted by communicative content, facts about legal practice are not able to adjudicate between rival theories of vagueness – at least not in the way envisioned by Soames. I conclude the paper by arguing that my point about Soames’s argument is generalizable.
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