Strategic Indeterminacy in the Law

D. LANIUS, 2019
New York, Oxford University Press
xvii 331 pp, £64.00 (hb)

Philosophers interested in vagueness have traditionally focused on how to solve the theoretical
problems posed by the Sorites Paradox. Relatedly, past decades have seen the development of
numerous intricate theories of the nature, logic and semantics of vague natural language – which
have largely gone unnoticed outside of academic philosophy, though. More recently, a growing
number of philosophers have turned towards the more tangible topic of vagueness in the law.
And for good reason, it appears: not only is vagueness seemingly ubiquitous in legal texts, but
the law also comprises plenty of interesting real-world examples of borderline or ‘hard’ cases
and promises to be a rich source of principles and procedures that might inform our practical
concerns when dealing with blurred boundaries. Moreover, the fact that vague legal terms and
general clauses have survived decades of legal practice strongly suggests that vagueness might
be beneficial to some purposes of the law – maybe linguistic vagueness is a valuable ingredient
when it comes to ensuring legal flexibility and can consequently be used strategically.
If David Lanius is right, however, appearances are deceptive. In Strategic Indeterminacy
in the Law, Lanius convincingly argues that the philosophical debate on vagueness in law is
partially misguided: First, when scrutinized, many purported examples of vagueness in law
actually prove to be examples of different types of linguistic indeterminacy – notably, polysemy
or standard relativity. Second, contrary to a surprisingly widespread preconception among phi-
losophers, vagueness is in fact not particularly beneficial to communicative purposes; all argu-
ments supposedly proving the strategic value of vagueness fail. And, third, while certain other
types of linguistic indeterminacy indeed principally allow for strategic use, Lanius reminds his
fellow philosophers of a gap between linguistic and legal content: linguistic indeterminacy does
not entail legal indeterminacy. Therefore, one should be careful not to overestimate the im-
portance of linguistic indeterminacy in the law.
The book comprises five chapters, each of which ends with a helpful summary of key
claims and arguments. It is written in a highly engaging and exemplary lucid style and aug-
mented by several illustrations which enable the reader to take in central conceptual distinctions
and interrelations at a glance. Throughout the book, Lanius enlivens astute philosophical anal-
yses with insightful discussions of pertinent cases from US and UK law as well as German law.
Chapter 1, ‘Forms of Indeterminacy’, develops the conceptual tools necessary for an-
swering the book’s three guiding questions:

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 (1) What are the sources of indeterminacy in the law?
(2) Which effects does indeterminacy have in the law?
(3) How can we strategically use indeterminacy in the law?
Taking into account a wide range of work from philosophy of language and linguistics, Lanius
draws a number of helpful distinctions between various types of linguistic indeterminacy. The
upshot is that vagueness – as understood by philosophers of language and logic and discussed
in connection with the Sorites Paradox, namely as an expression’s susceptibility to (actual or
possible) borderline cases – is only one of many sources of linguistic indeterminacy in the law.
Indeterminacy might also be due to other semantic properties of words or sentences such as
lexical or syntactic ambiguity, or polysemy. Moreover, both philosophers and legal theorists
have tended to overlook the possibility of types of pragmatic indeterminacy in legal texts, such
as speech act ambiguity, indeterminacy of implicature or presupposition, or standard relativity.
Chapter 2, ‘Language and the Law’, is primarily concerned with the relation between
the linguistic and the legal content of legal speech acts (such as the enactment of laws or the
formation of contracts). Importantly, legal interpretation of an utterance – that is, determination
of the utterance’s contribution to the legal obligations that obtain in a legal system at a given
time – involves not only linguistic interpretation, but also legal construction; legal construction
thus leaves room for different interpretive choices assigning different weight to language, in-
tention, and purpose of a given legal text. Consequently, linguistic and legal content can, and
sometimes do, come apart. From this, it not only follows that linguistic indeterminacy does not
immediately translate into legal indeterminacy, but also that the so-called Communication The-
ory of Law, which is presupposed by many participants in the debate, is incorrect.
Chapter 3, ‘Indeterminacy in the Law’, discusses several actual legal cases in detail,
arguing, most importantly, that semantic vagueness is far less relevant for indeterminacy in the
law than assumed by central figures in the debate. Lanius points out that, on closer inspection,
the cases cited as paradigm examples of legal indeterminacy caused by semantic vagueness –
cases that revolve around terms such as ‘enterprise’, ‘sufficient cause’, or ‘neglect’ – are actu-
ally indeterminate for reasons other than vagueness. For terms such as ‘neglect’ are, arguably,
highly polysemous as well as standard relative. In addition, they might be vague; but in order
to declare the latter property the source of legal indeterminacy in a given case, one would have
to show that the legal indeterminacy survives the elimination of all other types of semantic and
pragmatic indeterminacy. As a rule, this is not done by key figures in the debate. Nor could it
sensibly be done, Lanius argues: for in order to abstract away from all types of indeterminacy
except vagueness, one would have to fix the context. But real-world cases, unlike fictional

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examples, generally do not allow for contextual factors to be determinately settled; real-world
contexts are themselves indeterminate to some degree.
Chapters 4 and 5 make up the constructive part of the book. In chapter 4, ‘Functions of
Indeterminacy’, Lanius uses game-theoretic tools to investigate whether linguistic indetermi-
nacy can be used strategically. Signaling games show that ambiguity, generality, and pragmatic
forms of indeterminacy can indeed be so used; in particular, these types of indeterminacy can
facilitate compromise. Semantic vagueness, on the other hand, could not be shown to be of
strategic use by applying the tools of signaling games. Moreover, Lanius persuasively rebuts a
number of much-cited arguments for the supposed value of vagueness that have been put for-
ward by Russell, Wittgenstein, Wright and others. Chapter 5, ‘Strategic Indeterminacy in the
Law’, applies the general insights of the fourth chapter to legal practice. Lanius discusses the
strategic use of indeterminacy in three types of legal speech acts – the enactment of laws, the
rendering of verdicts, and the formation of contracts, engaging with pertinent actual cases
throughout. He shows that the aforementioned types of indeterminacy can not only further com-
promise in light of conflicting interests, but that they can also be employed in order to improve
compliance, reduce drafting and social costs (such as saving face or maintaining plausible de-
niability), and to counter potential over- and underinclusiveness by delegating decisional power
to better-informed parties or by deferring decisions.
The book is highly original as well as exceptionally clear and accessible. And while its
first three chapters persuasively challenge much of the status quo of the philosophical debate
of vagueness in the law, its second half clears the way for further important research in philos-
ophy and legal theory. For these reasons and others, Strategic Indeterminacy in the Law is and
will continue to be of interest to philosophers of language and law and legal scholars alike.

INGA BONES
Karlsruhe Institute of Technology