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Vagueness and LawPhilosophical and Legal Perspectives$
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Geert Keil and Ralf Poscher

Print publication date: 2016

Print ISBN-13: 9780198782889

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780198782889.001.0001

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Can Legal Practice Adjudicate Between Theories of Vagueness?

Can Legal Practice Adjudicate Between Theories of Vagueness?

(p.95) 4 Can Legal Practice Adjudicate Between Theories of Vagueness?
Vagueness and Law

Hrafn Asgeirsson

Oxford University Press

Scott Soames has argued that the fact that lawmakers and other legal practitioners regard vagueness as having a valuable power-delegating function gives us reason to favour one theory of vagueness over another. If Soames is right, facts about legal practice can in an important sense adjudicate between rival theories of vagueness. I argue that due to what I call the ‘Gappiness Problem’—raised by recent critics of the ‘communicative-content theory of law’—we must give up the one premise of Soames’s argument that he seems to take to be uncontroversial: that the legal content of a statute or constitutional clause is identical with, or constituted by, its communicative content. I provide my own account of legal content and show how it provides a response to the Gappiness Problem. This account, however, does not suffice to vindicate Soames’s argument. I conclude by arguing that my point about Soames’s argument is generalizable.

Keywords:   jurisprudence, law and language, metaethics, philosophy of language, philosophy of law, theories of vagueness, vagueness

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