Second-Order Vagueness in Law

In G. Keil & R. Poscher (eds.), Vagueness in Law: Philosophical & Legal Approaches (Oxford University Press, 2016 Forthcoming)

20 Pages Posted: 7 Mar 2016

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Date Written: March 3, 2016

Abstract

Most of the philosophical literature on vagueness starts with the identification of the term whose vagueness is at issue -- tall, short, night, day, bald, tadpole, etc. But in legal interpretation an additional problem arises, because it is not always obvious which term in a legal text, or even which legal text, is the operative one. H.L.A. Hart's idea of a rule of recognition conceptualizes the way in which some second-order rule is necessary to identify which first-order rule is applicable to some form of conduct, but it is often the case that the second-order rule itself exhibits various forms of vagueness. When that is so, vagueness appears as a distinct problem with important but often unrecognized implications.

Suggested Citation

Schauer, Frederick, Second-Order Vagueness in Law (March 3, 2016). In G. Keil & R. Poscher (eds.), Vagueness in Law: Philosophical & Legal Approaches (Oxford University Press, 2016 Forthcoming). Available at SSRN: https://ssrn.com/abstract=2741810

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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