Chapter

Vagueness and Legal Theory

TIMOTHY A. O. ENDICOTT

in Vagueness in Law

Published in print December 2000 | ISBN: 9780198268406
Published online January 2010 | e-ISBN: 9780191714795 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198268406.003.0004
Vagueness and Legal Theory

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This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases like ‘clear case’ and ‘borderline case’) poses an overwhelming objection to various popular accounts of adjudication that take the standard view of adjudication (notably Ronald Dworkin's account). Those theories apply to law a version of the ‘principle of bivalence’ (the principle that every meaningful assertion is either true or false). This chapter rejects the application of bivalence as well as the contention that propositions of law are ‘neither true nor false’ in borderline cases. This chapter also discusses a characteristic feature of legal practice termed ‘juridical bivalence’ — the practice of treating people as if the application of the law to their situations were bivalent.

Keywords: vagueness; legal theory; principle of bivalence; adjudication; juridical bivalence; nature of law; Hans Kelsen; Ronald Dworkin

Chapter.  10101 words. 

Subjects: Civil Law

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