Roland Portmann, Legal Personality in International Law, Cambridge: Cambridge University Press, 2010, 333 pp, hb £65.00.
| Date | 01 January 2012 |
| Author | Christian Henderson |
| Published date | 01 January 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00894_1.x |
REVIEWS
Andrei Marmor and Scott Soames (eds),Philosophical Foundations of Language in
the Law, Oxford: Oxford University Press, 2011, 272 pp, hb £50.00.
How, if at all,might the philosophy of language contribute to our understanding
of law and its interpretation? This is by no means an unfamiliar question in
jurisprudence. As Marmor and Soames point out in their Introduction, some
version of this question continues to dominate the debates between legal posi-
tivists and their rivals.The upshot is that we may very well wonder what, if any,
need there is for a new collection of essays exploring the intersection between
the philosophy of language and the law.
Marmor and Soames have commissioned these essays in the conviction that
recent developments in the philosophy of language – particularly developments
in the areas of vagueness and pragmatics – have important implications for our
understanding of law and its interpretation (3, 13).They identify three main areas
where the philosophy of language may contribute to our understanding: firstly,
regarding the nature of law itself;secondly, how it may offer some new resources
when determining the content of the law in a given legal system;and thirdly, how
it can provide a sophisticated perspective on the role played by language in more
particular contexts, such as in the legal definition of inchoate crimes.
There can be little doubt that the essays collected in this volume make for
rewarding reading. The essays are clear, and they make minimal use of symbolic
notation. Consequently,all of these essays can be read by philosophers and lawyers
with equal profit. As I will explain in a moment, the theses defended in these
essays are at the very least plausible,and they all succeed in highlighting how the
specific issues in the philosophy of language with which they deal may have
important implications for our understanding of law and its interpretation.
Having said that, after summar ising the contents of this collection, I will argue
that it suffers from an important defect.
The first three essays take up the topic of vagueness.They address two main
questions: do we have reason to value vagueness in legal provisions? And does the
presence of vague provisions in the law frustrate its ability to guide the actions of
its subjects? Timothy Endicott argues that it can be valuable to use vagueness
when crafting normative texts (29). He pur sues an interesting strategy. First, he
explains why we have reason to value precision in legal provisions. For Endicott,
this consists in the absence of arbitrariness in legal norms. More specifically, it
consists in the ‘guidance value’ of providing clear standards which subjects can use
to guide their conduct, and the ‘process value’ of controlling the application of
legal norms (15). It is against this backdrop that Endicott develops his case for
why we should value vagueness in legal provisions. His claim is that far from
frustrating law’s guidance and process value, it actually requires the use of vague
provisions in the law.As Endicott puts it, removing arbitrariness requires much
more than providing clear standards. It also requires the use of vague standards
© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(1) MLR 149–157
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
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