In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between that interpretive role, and the rule of law. In the two decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law.

The papers published in this issue were delivered at a Symposium on Vagueness and Law at Columbia University Law School on September 24 and 25, 1999. The purpose of the seminar was to provide an opportunity for philosophers of law, philosophers of language, and philosophers of logic to discuss problems about vagueness that are currently under debate in all three areas.

Even to disagree, we need to understand each other. If I reject what you say without understanding you, we will only have the illusion of a disagreement. You will be asserting one thing and I will be denying another. Even to disagree, we need some agreement.

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.