From Vagueness In Language To Indeterminacy Of Law

Indeterminacy of law has become a legal issue in legal theory since it was proposed by American legal realists. Different schools have different views on whether law is determinate or indeterminate. Some jurists say law is determinate and all of the legal issues have the single answer, or the single correct answer. However, the Critical Legal Studies (Liao Meizhen, 2007:4) in U. S. holds that laws are completely indeterminate, for legal material itself often cannot—in other words, rarely or never—determine the outcome of legal disputes. The theorists of the Critical Legal Studies think that indeterminacy of law is based on the nature of language or the operation-style of language in legal reasoning. But is law determinate or indeterminate on earth?Holmes, Hart and Dworkin explore indeterminacy of law from different angles, which are philosophical approach, semantic approach and epistemic approach respectively. According to the classifications made by Professor Guo Hongyi and Professor Shen Minrong, the present thesis will discuss indeterminacy of law from indeterminacy of legal sources, concepts, rules, reasoning and legal interpretation, all of which can be categorized into indeterminacy in legislation and indeterminacy in judicial process. The causes of indeterminacy in legislation can be summarized into philosophical, cognitive and linguistic factors.According to Timothy Endicott (2000: 31), the sources of linguistic indeterminacy include vagueness, imprecision, incompleteness, contestability, family resemblances, pragmatic vagueness, ambiguity, etc. Vagueness is one kind of linguistic indeterminacy that causes indeterminacy in legislation. Therefore, through analyzing some forms of vagueness—approximators, general words and emotive words—the present endeavor tends to reveal how the linguistic indeterminacy is reflected in legislation.Lastly, by exploring the linguistic indeterminacy in legislative language, we come to the conclusion that the correct choice of words is an extremely important characteristic of legislation. However, because of the complexity and variety of social life and the defects of language itself, no matter what kind of accurate words are used in legislative language, the law can not be expressed concretely and precisely in the way what law-maker expects. Therefore, in legislative language some words of vagueness are frequently used to extend legal concept to the limits the law needs. In other words, using indeterminate words is another important feature in legislative language.