Chapter 8 - Indeterminate and Vague Laws

Summary

Should acts that are somewhat right and somewhat wrong be permitted or prohibited by the law? Five theories are presented and discussed. Each is evaluated with respect to how well it meets five desiderata. The first holds that a plausible theory should be decisive in the sense that it must always generate a practical ought. The court cannot refrain from ruling on a case, every case brought in front of the court must be resolved. The second desideratum is that the court should not be permitted to issue a ruling it knows to be incorrect. The third is an addendum to the second: a ruling based on a sincere but false belief is not acceptable for the same reason as a sincere but incorrect ruling on the soccer field is. The fourth desideratum is that a ruling must be predictable (after a precedent has been established) for agents with access to all relevant facts. Finally, the fifth desideratum is Aristotle’s observation that judges (and everyone else) should treat like cases alike. I argue that the only theory that meets all five desiderata is a view I call precedentism. According to this theory, doctrinally indeterminate oughts are indeed indeterminate, but precedents can generate new determinate practical oughts.