Vagueness in Ethics and the Law

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

Some comparisons are hard. How should we think about such comparisons? According to John Broome, we should think about them in terms of vagueness. But the vagueness account has remained unpopular thus far. Here I try to bolster it by clarifying the notion of comparative vagueness that lies at its heart.

This paper explores what the epistemic account of vagueness means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, interpretative reasoning within the law must construe (...) vague statements as an epistemic phenomenon, and epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

Sergio Tenenbaum and Diana Raffman contend that ‘vague projects’ motivate radical revisions to orthodox, utility-maximising rational choice theory. Their argument cannot succeed if such projects merely ground instances of the paradox of the sorites, or heap. Tenenbaum and Raffman are not blind to this, and argue that Warren Quinn’s Puzzle of the Self-Torturer does not rest on the sorites. I argue that their argument both fails to generalise to most vague projects, and is ineffective in the case of the Self-Torturer (...) itself. (shrink)

John Broome has argued that value incommensurability is vagueness, by appeal to a controversial about comparative indeterminacy. I offer a new counterexample to the collapsing principle. That principle allows us to derive an outright contradiction from the claim that some object is a borderline case of some predicate. But if there are no borderline cases, then the principle is empty. The collapsing principle is either false or empty.

You are morally permitted to save your friend at the expense of a few strangers, but not at the expense of very many. However, there seems no number of strangers that marks a precise upper bound here. Consequently, there are borderline cases of groups at the expense of which you are permitted to save your friend. This essay discusses the question of what explains ethical vagueness like this, arguing that there are interesting metaethical consequences of various explanations.

Ethical vagueness has garnered little attention. This is rather surprising since many philosophers have remarked that the science of ethics lacks the precision that other fields of inquiry have. Of the few philosophers who have discussed ethical vagueness the majority have focused on the implications of vagueness for moral realism. Because the relevance of ethical vagueness for other metaethical positions has been underexplored, my aim in this paper is to investigate the ramifications of ethical vagueness for expressivism. Ultimately, I shall (...) argue that expressivism does not have the resources to adequately account for ethical vagueness, while cognitivism does. This demonstrates an advantage that cognitivism holds over expressivism. (shrink)

In this paper I explore the implications of moral vagueness (viz., the vagueness of moral predicates) for non-naturalist metaethical theories like those recently championed by Shafer-Landau, Parfit, and others. I characterise non-naturalism in terms of its commitment to 7 theses: Cognitivism, Correspondence, Atomism, Objectivism, Supervenience, Non-reductivism, and Rationalism. I start by offering a number of reasons for thinking that moral predicates are vague in the same way in which ‘red’, ‘tall’, and ‘heap’ are said to be. I then argue that (...) the moral non-naturalist seeking to countenance moral vagueness faces a dilemma: are moral properties vague, or perfectly sharp? On either horn of the dilemma, serious problems arise for some of the central tenets of non-naturalism: vague properties seem to threaten Objectivism, Supervenience, and Non-reductivism; on the other hand, sharp properties raise problems for Supervenience and Rationalism. The difficulties on each horn of the dilemma are real, and while they may not be insuperable, they do, at the very least, drastically limit the things non-naturalists can consistently say about moral properties, facts, and reasons. (shrink)

Two competing accounts of value incomparability have been put forward in the recent literature. According to the standard account, developed most famously by Joseph Raz, ‘incomparability’ means determinate failure of the three classic value relations ( better than , worse than , and equally good ): two value-bearers are incomparable with respect to a value V if and only if (i) it is false that x is better than y with respect to V , (ii) it is false that x (...) is worse than y with respect to V and (iii) it is false that x and y are equally good with respect to V . Most philosophers have followed Raz in adopting this account of incomparability. Recently, however, John Broome has advocated an alternative view, on which value incomparability is explained in terms of vagueness or indeterminacy . In this paper I aim to further Broome’s view in two ways. Firstly, I want to supply independent reasons for thinking that the phenomenon of value incomparability is indeed a matter of the indeterminacy inherent in our comparative predicates. Secondly, I attempt to defend Broome’s account by warding off several objections that worry him, due mainly to Erik Carlson and Ruth Chang. (shrink)

In this paper we advance a new solution to Quinn’s puzzle of the self-torturer. The solution falls directly out of an application of the principle of instrumental reasoning to what we call “vague projects”, i.e., projects whose completion does not occur at any particular or definite point or moment. The resulting treatment of the puzzle extends our understanding of instrumental rationality to projects and ends that cannot be accommodated by orthodox theories of rational choice.