Legal Theory Blog

This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law’s application is concerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objections, using as a paradigm the “reasonable speed” statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way). (These questions are pursued partly in the context of Joseph Raz's conception of authority.) I also consider issues about fairness and the possible chilling effect of using rules, taking my lead from comment of the court in State v. Schaeffer that it was precisely the intention of the Ohio statute in question to chill the enthusiastic and aggressive driving of (what the court called) “[t]he reckless, wanton speed maniac.” Finally some of the insights of this essay are applied to issues about the interpretation of statutes prohibiting torture, and the possible vagueness of those prohibitions.

And from the conclusion of the paper:

Complaints about vagueness and imprecision are not just abstract concerns in legal philosophy. They do afford us an opportunity to think more complicated thoughts in our philosophical conceptions of what it is for a legal provision to guide action, and I have tried to set out in this chapter what some of those complications might be. But we need to remember that it is vague law we are talking about, not just vague propositions. That we are talking about vague law means, at the end of the day, we are talking about the auspices under which punishments will be meted out and sanctions imposed; and that should alert us to the seriousness of the matter. But we should understand, too, what is at stake in the legislative or regulative enterprise. That is also a deadly serious matter— protecting people from torturers or, in our traffic case, from “[t]he reckless, wanton speed maniac.” In these and similar areas, it is good to focus on the need for legislative flexibility, or what Aristotle once called the “lesbian” rule: “For when the thing is indefinite the rule also is indefinite, like the leaden rule used in making the Lesbian molding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts.”31 The adaptability of law, secured precisely by what others would call its indeterminacy, is not incompatible with law continuing to guide the actions of its subjects. It is a valuable legislative resource and a respectful one too, for it works in tandem with the most sophisticated understanding of people’s powers of practical reason.

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