The Law's Vagueness Analysis

This paper aims to analysis fuzziness of law through method of legal positivism. First of all, we need to know fuzziness of law is a problem of jurisprudence. As we know, there are two fundamental problems in jurisprudence, and there are many methods to solve these problems in the history. Through a survey of fundamental problems in jurisprudence, we will get to know fuzziness of law is either a problem of lawmaking or a problem of application, and the problem has connection with philosophy of logic and philosophy of language.Chapter 1 will demonstrate whether the application of language in law is radically indeterminate. We will give this question a negative answer. In this section, we will particularize some claims of radically indeterminate and illustrate these claims seem to be self-contradiction. We will get to know the point that the application of fuzzy language in law is indeterminate in some cases but not in all cases by grasping a metaphor which was credited to H. L. A. Hart. We must accept Hart's proposition that pictures linguistic indeterminacy as a penumbra.The concept of indeterminacy of law will be mentioned in Chapter 1, which means there is no single right answer to a question of law, or to a question of the application of the law to the facts of a case. We need to know indeterminacy of law is not fuzziness of law and we only focus on linguistic indeterminacy.In this chapter, we will draw some conclusions. Firstly, we must accept the claims that law always has determinacy and the application of fuzzy expressions is sometimes indeterminate. Secondly, a response to the claims that the meaning of language is indeterminate because it depends on context need to show that meaning is not radically dependent on context. We should accept the concept of context because context could make meaning clearly to some extent. Thirdly, as Frederick had said, Wittgenstein's remarks showed that formulated rules are not radically indeterminate. We mainly pay attention to borderline cases and tolerance principle in chapter 2nd and this section will concentrate on the source of fuzziness of law. The main purposes of this chapter are to explain what is meant by 'fuzziness' for the purpose of this paper and to provide the groundwork for an argument that fuzziness of law leads to legal indeterminate.To examine fuzziness would be to examine various sorts of language that are well adapted to such use. We will start with imprecision and discuss 'open texture', incompleteness, family resemblances and so on. Along with express grants of discretion giving judges' power to develop the law, it is one of the most important sources of judicial discretion. We should know the potential scope of the problem is unlimited, so we cannot give a theory of everything and think one expression as one sort of fuzziness.Chapter 3 will discuss some solution to the problem of fuzziness in law. Although legal theorists have discuss problem of fuzziness now and then, but they have never come to grips with the paradox. There are two prominent approaches in the solution of fuzziness. One approach accepts the indeterminacy and claims that fuzziness of language lead to fuzziness of law in some case, and there is no right answer to the question of whether the expression applies. This claim says that a fuzzy statement is 'neither true nor false' in a borderline case, which is named 'the traditional formulation'.The other approach is to refuse fuzziness and denies that fuzziness of language lead to fuzziness of law in borderline case. This approach has been popular with some legal theorists. They concede linguistic indeterminacy, but claim that law has special resources which could eliminate such fuzziness.We will also discuss bivalence fuzziness and try to understand two important legal theorists who had researched bivalence of law—Hans Kelsen and Ronald Dworkin. We can conclude that the feature of fuzzy language that is most difficult for them accommodate is higher order fuzziness, a legal theory should accept the fuzziness claim, and the claim that a fuzzy statement is 'neither true nor false' in a borderline case is misconceived and should be abandoned.Chapter 4 examines higher order fuzziness from semanticist solutions which include supervaluation theory, degrees of truth and definiteness. Sepervaluation theory treats supertruth as truth, and superfalsity as falsity. It treats fuzzy statements in borderline cases as neither true nor false. Degrees of truth supports that a statements can be more or less true. Definiteness is proposed by Crispin Wright to allow indeterminacy and defuse paradox. Through our survey, we can say semanticist will face a form of paradox: the denial of sharp boundaries leads to the assertion of sharp boundaries.The point of this discussion is not to give a survey of proposed to the paradox, but brings into focus the importance of higher order fuzziness. This section also discusses fuzziness of law and legal interpretation, and try to get to know that how to obey a fuzzy rule. We will get to know that the methods of legal interpretation could not eliminate fuzziness of law. This discussion needs an example and we use article 45th in contract law of P.R.C as a paradigm.This section points out the problems for the logic philosophers who want to solve the borderline questions. We draw conclusions that although they had some methods to solve the problem, but they did not succeed. Fuzziness of law is an insurmountable problem. We should accept the fuzziness of law rather than try to look for a correct answer, and a fuzzy rule by all means faces different answers under the borderline condition.Finally, we will return to rule of law in our reality, and ask whether fuzziness of law is a breakage to rule of law. This part mainly purposes lying in fuzziness of law is necessary to the rule of law. We need to reiterate preceding sections had already shown which determinate rule is normal and linguistic indeterminacy is a penumbra, but we could not think a penumbra is a trivial. Since it is so, even if we will suffer threat of indeterminacy threat, our pursuing of determinacy is still worthy of. The most important idea of this paper lies in the Fuzziness of law rather than break the rule of law.Involved in problem objectivity of law, this paper will be not excessive to concern to this topic. Though this topic has connection with our problem, but it is not the subject of the paper. As we know, the research of the objectivity of the law and the legal interpretative objectivity probably will benefit for us, but we will as far as possible avoid rewording standpoints of objectivity. The paper can not solve the problems such as coincidence of law article, ambiguity of the power of lawmaking, lateness of sorting out legal document and so on.Although the paper concerns to some assertions between legal positivists and anti-positivists, we will not prepare to discuss the disputes between legal positivism and natural law. As we know, on the problems such as law and justice, law and morality etc, on the problems such as the law and the judicatory, law and morals etc., legal positivists and natural law theorist have different opinions, but the subject of paper is not to display these conflicts.