Notes / Law
The skateboard at the gate
Working note — a draft kept in the open. Tell me where it’s wrong.
A by-law says: no vehicles in the park. A car, plainly forbidden. A pram, plainly fine. Now the skateboard arrives at the gate, and the bicycle behind it, and the council’s electric maintenance cart, and the war memorial that happens to be a jeep on a plinth. Hart used this case to make a point that has organised the philosophy of law ever since: a general term has a core of settled instances and a penumbra of doubt, and in the penumbra the rule does not decide the case by itself. Someone must decide it.
This is the previous note’s sorites wearing a robe. The same structure — clear cases, a tolerant middle, no line drawn by the meaning — but with two differences that change everything. First, a decision is unavoidable: the skateboarder is either fined or not, and “the matter is borderline” is not an available verdict. Second, the decider is accountable: a judge must give reasons that others can weigh, appeal, and overturn.
Hart and Fuller, in the same penumbra
The famous exchange of 1958 is usually read as positivism versus its critics, but on the question of meaning the two are closer than they look. Hart says: in the penumbra the judge has discretion, and chooses; the law has, for that case, run out, and what fills the gap is not more law but judgement. Fuller answers: you cannot even identify the core without already asking what the rule is for. Does the memorial jeep count? Not if you remember that the rule aims at quiet and safety; the truck that is plainly a vehicle may be admitted if it is the ambulance the rule was never meant to exclude.
I think Fuller wins the local point and Hart wins the larger one. Purpose does reach into the core and unsettle it — meaning in the law is never the bare dictionary entry, because an utterance in a statute is an act done for reasons, and the reasons are part of what was said. But Fuller’s purposes do not eliminate discretion; they relocate it. Whose purpose? At what level of generality? When purposes conflict — quiet against access, safety against tradition — the choice among them is exactly the discretion Hart was pointing at. Purpose enriches the penumbra; it does not abolish it.
Endicott’s heresy: vagueness is a virtue
The reflex of the careful drafter is to treat vagueness as a defect — sharpen the terms, define “vehicle,” close the penumbra. Endicott’s claim, which I take to be right, is that this is often neither possible nor desirable. Not possible, because the sharpening terms are themselves vague (define “vehicle” as a “conveyance” and ask what a conveyance is). Not desirable, because vague standards do work that precise rules cannot: “reasonable,” “due care,” “excessive” delegate judgement to the moment of application on purpose, trusting the official to weigh particulars a drafter could never foresee.
Vagueness in the law is not always a failure of the rule of law. Sometimes it is the rule of law doing something a sharp rule could not. after Endicott, Vagueness in Law
The worry about the rule of law
Here is the cost, and Waldron presses it. The rule of law promises that we can know in advance what is demanded of us, so that we may plan and not be at the mercy of an official’s mood. Vague law seems to break that promise: at the gate, the skateboarder genuinely cannot know whether she is permitted until someone decides. Is governance by vague standards even compatible with legality?
My answer runs through the pragmatism again. What the rule of law requires is not that every case be settled in advance by the words — an impossible demand — but that the unsettled cases be decided answerably: by a known procedure, by an official who must give reasons, under a discipline of consistency and appeal. The citizen at the gate cannot read her verdict off the by-law, but she can know the kind of consideration that will decide it, can predict the clear cases perfectly, and can demand that her borderline case be treated like the next person’s. Legality lives not in the elimination of the penumbra but in how we conduct ourselves inside it.
That is why the hard case is not a hole in the law. It is the place where law shows what it is: not a machine that outputs verdicts from words, but a practice of deciding, under rules, what the rules will be taken to mean — the giving and asking for reasons, with the bailiff waiting outside.
Touching: Hart (1958, 1961), Fuller (1958), Endicott Vagueness in Law (2000), Waldron (1994). See the canon §B. Begins in The grain that never matters.