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Waldron on Vagueness, the Rule of Law, and Torture

This week, Pro­fes­sor Lawrence Solum’s Legal The­o­ry Blog fea­tures Vague­ness and the Guid­ance of Action by Jere­my Wal­dron (NYU Law).  The paper is rel­e­vant to this blog not only for its gen­er­al dis­cus­sion on rule of law val­ues, but also because its final pages focus specif­i­cal­ly on the U.S. tor­ture statute.  The abstract:

This paper is part of a more gen­er­al argu­ment I am pur­su­ing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be con­strued as demand­ing deter­mi­na­cy and clar­i­ty at all costs; it should not always be con­ceived as the rule of rules (as opposed – some­times – to the rule of stan­dards). The objec­tion to stan­dards is that, because they use pred­i­cates like “rea­son­able” or “exces­sive,” they are there­fore vague; they give rel­a­tive­ly lit­tle guid­ance to those to whom they are addressed; and they leave the indi­vid­ual unclear about where she stands so far as the law’s appli­ca­tion is con­cerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objec­tions, using as a par­a­digm the “rea­son­able speed” statute con­sid­ered in State v. Scha­ef­fer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that stan­dards do pro­vide guid­ance for action: they guide the use of our prac­ti­cal rea­son­ing not just to apply a giv­en rule but to fig­ure out what kind of action is appro­pri­ate in vary­ing cir­cum­stances. In that sense they are as respect­ful of our dig­ni­ty and our capac­i­ty for agency as rules are (in their dif­fer­ent way). (These ques­tions are pur­sued part­ly in the con­text of Joseph Raz’s con­cep­tion of author­i­ty.) I also con­sid­er issues about fair­ness and the pos­si­ble chill­ing effect of using rules, tak­ing my lead from com­ment of the court in State v. Scha­ef­fer that it was pre­cise­ly the inten­tion of the Ohio statute in ques­tion to chill the enthu­si­as­tic and aggres­sive dri­ving of (what the court called) “[t]he reck­less, wan­ton speed mani­ac.” Final­ly some of the insights of this essay are applied to issues about the inter­pre­ta­tion of statutes pro­hibit­ing tor­ture, and the pos­si­ble vague­ness of those pro­hi­bi­tions.

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