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Patrick S. O'Donnell

As Timothy A.O. Endicott thoroughly explained in his important book, Vagueness in Law (2000), vagueness is "ineliminable from a legal system" and in any case it "is not necessarily a deficit in the rule of law," especially if the law is to do the sundry things we've come to expect it to do. Moreover, and relatedly, Endicott details, with a sufficient command of both philosophy of language and legal theory, why precision in the law is not always a desideratum. Vagueness is clearly a deficit, however, "when it lends itself to arbitrariness--to abandoning the reason of the law." Vagueness and indeterminacy are a matter of degree, and legal systems respecting substantive due process and the principle(s) of legality (or procedural restraints) generally, that is, exhibiting features of procedural fairness and minimal moral legitimacy, have not been afflicted by vagueness and indeterminacy to a disabling degree or in a manner that undermines such fairness and legitimacy. In short, vagueness, as you illustrate here, is not an insuperable obstacle and may, at times, be a legal virtue.

Parenthetically, it's interesting and a tad ironic, as Brad Wendel notes at the Legal Ethics Forum in connection with the interpretation of the statutory prohibition on torture and the Torture Memos, that it's the Right today (like CLS of yesteryear) "that is arguing that we can't really say that a lawyer is distorting or twisting the law because, well, the law can be made to mean pretty much anything at all."

Patrick S. O'Donnell

Or, as Wendel also puts it, we can have plausibility, reasonableness, and so forth as objective criteria or standards and yet lack certainty in a strong sense, much like a good argument need not demonstrate the precision of formal logic and deductive reasoning to exhibit the kind of rationality we associate with practical reasoning.

Steve Shiffrin

Patrick, good stuff as always. Peter Gabels writing is relevant to
what Brad Wendel has to say. I dont want to steal his perspective
before he starts posting here though. I share the irony, however.

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