1) Vagueness, Sorensen, and Non-literal Speech in Law
A term is vague if and only if there are cases – borderline cases – to which neither the term nor its negation is justifiably applied. There are vague terms in law. For instance, it is clear that the term “business establishment” in Unruh Civil Right Act applies to hotels and does not apply to houses, but it is not clear if it applies to Boy Scout of America or not. Many philosophers have tried to present an account to explain the implications of vagueness in law, both for law and for language. One of these accounts proposed by Roy Sorensen holds that judges necessarily lie when they face borderline cases. Sorensen explains that judges, like other language users, cannot justifiably apply a vague term or its negation to borderline cases; however, they have a professional obligation to choose either of the options. Resultantly, judges necessarily lie when they decide borderline cases, Sorensen says.
I argue that there is an assumption that Sorensen has taken uncontroversial which holds that the legal application of a term is permissible only if its ordinary application is allowed according to the rules of language. In contrast, I show that while judges do not apply vague terms to borderline cases (since it is unjustifiable as Sorensen explains), they use vague terms metaphorically. The main duty of judges is to request fitting legal consequences for involved parties. As a result, using a vague term for a borderline case just implies that judges intend the same consequences for the borderline case that they would intend for a clear case. This account not only refutes Sorensen’s counter-intuitive argument, but it also accounts for certain legal decisions in the history of modern legal system.