Varieties of Vagueness

Abstract

It will surprise no one to hear that laws are often vague, and, moreover, that laws are vague for a variety of reasons.Some vagueness results from specific intentions of users of legal language.Laws may be poorly drafted, or drafted using general terms intended to capture a wide yet unspecified range of affairs.Vagueness of these kinds is, for the most part, noticeable yet bearable.Poor drafting can be fixed, and open-textured laws can sometimes be made more specific if their application proves troublesome.Yet in the trade-off between specificity and openness, a more peculiar kind of vagueness seems intrinsic to the nature of some legal norms.Their open texture cannot be sharpened to a univocal statement of what they require: they are indeterminate, leaving borderline cases where judges lack legal resources to resolve a dispute one way or another.At least part of the difficulty in handling norms of this sort comes from the mixture of reasons for their vagueness.When we observe, for example, that the Canadian Charter of Rights and Freedoms contains a vague provision permitting 'reasonable limits' 1 on fundamental rights and freedoms, we recognize also that mere understanding of the meaning of 'reasonable' goes only so far in dissolving its vagueness.'Reasonable limits' are not just any artefacts of language use.They are normative standards, notoriously elastic and insusceptible to univocal and final statement in application to concrete cases.Here the real trouble begins: there is at least the air of paradox in the contrast between the fact of vagueness in laws and the opposed determinacy demand intrinsic to the rule of law -the requirement that laws be framed in a way that makes them capable of being obeyed.When has meaning been stretched too far?What justifies judicial setting of borders on the application of indeterminate propositions of law?After all, if 'reasonable limits' have no determinate edges, our most fundamental rights and freedoms have no inviolable borders, and the rule of law has failed.

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