Introduction

The US Constitution states that freedom of speech shall not be abridged, but it does not tell us what kind of speech is protected. The German Basic Law states that human dignity shall be inviolable, but it does not tell us what kind of behavior would violate it. There have consistently been complaints that such constitutional provisions say nothing by themselves. Why are they phrased so broadly?...

Functions of Indeterminacy

This chaptersheds light on the potential use of linguistic indeterminacy. It identifies conditions under which indeterminacy in general (if not semantic vagueness) can be strategically used.The negative results of this examination are that most arguments for the value of semantic vagueness are unsound and that even our best game theoretic models of vagueness only show that some form of indeterminacy is beneficial under some conditions. On the positive side, the examination provides evidence based on formal models of signalling games for the possibility to strategically use conversational vagueness, ambiguity, and pragmatic indeterminacy - at least for certain conditions: for example, if there is a conflict of interests. Thus, while most forms of linguistic indeterminacy arguably can have a positive function, there is considerable doubt about any potential value of semantic vagueness.

Forms of Indeterminacy

In the first chapter, linguistic indeterminacy is defined in terms of unclarity in linguistic content. Based on this general definition, three main forms of linguistic indeterminacy are differentiated:there is semantic indeterminacy, pragmatic indeterminacy, and conversational vagueness. Lexical ambiguity, syntactic ambiguity and polysemy as well as semantic vagueness are forms of semantic indeterminacy. Speech act ambiguity, presupposition indeterminacy, and implicature indeterminacy obscure what the utterance's illocutionary force is, what it presupposes, and what it implicates, respectively. They are forms of pragmatic indeterminacy. Another form is impliciture indeterminacy, which is most relevant when a contextually valued standard is implicited, i.e., in the form of standard-relativity. Conversational vagueness, finally, appears most commonly when an utterance is unclear due to the over-generality of its expressions.

Indeterminacy in the Law

This chapter examines the role of lexical and syntactic ambiguity, polysemy, as well as gradual and multi-dimensional vagueness in the law. It relates the legal functions of generality and conversational vagueness and finally surveys the different types of pragmatic indeterminacy. This examination shows that semantic vagueness is less relevant to the law than the debate on vagueness suggests. There are two basic reasons why the role of vagueness is overestimated by many participants in the debate. First, most examples given by them are not in fact instances of vagueness, since they structurally neglect the role of context and other forms of indeterminacy. Second, they uncritically presuppose the correctness of the communication theory of law. Its incorrectness, however, which was shown in the previous chapter, casts further doubt on the role of linguistic indeterminacy in law in general.

Language and the Law

In this chapter legal utterances are analysed as being typically normative, directed toward future events, addressed to heterogeneous audiences, and applied in a wide variety of circumstances.It argues that these features of legal language are decisive for the use of linguistic indeterminacy in law, and that they are exemplified in three paradigmatic kinds of legal utterances: the enactment of laws, rendering of verdicts, and formation of contracts. It also examines the plausibility of the communication theory of law as basis for an account of legal indeterminacy. More importantly, it identifies indeterminacy on the level of legal content. This specially legal form of indeterminacy is not only due to gaps and contradictions, but also theoretical and meta-interpretive disagreement. In particular, theoretical disagreement in legal practice renders linguistic indeterminacy (including semantic vagueness) less relevant than suggested by the debate on vagueness in law.

Strategic Indeterminacy in the Law

The last chapter identifies five basic functions of indeterminacyin laws, verdicts, and contracts.First, indeterminacy can facilitate the finding of compromise in the light of conflicting interests and beliefs. Second, indeterminacy can be used to counter the over- and under-inclusiveness due to an unforeseeable and complex world by delegating power or deferring decisions to better informed parties. Third, indeterminacy can be used to reduce drafting costs.Fourth, indeterminacy can be used as double talk, for example, to save face or gain deniability. Fifth, indeterminacy can be used to improve compliance, for instance, by exploiting asymmetrical information. The results of this chapter also confirm the main argument that semantic vagueness is overrated. While there are numerous functions of indeterminacy, there is no evidence that semantic vagueness has any value in the law. The forms of indeterminacy identifiable as valuable in the law are polysemy, conversational vagueness, and pragmatic indeterminacy.