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.