Why are lawmakers using simple language

So, we might say, a law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument, other than whatever evaluative argument may be needed to determine the social facts, or to work out their implications for the case at hand. It is still possible for legal directives to have the exclusionary force that, in his theory of authority, they claim.

A speed limit on a highway is a fairly precise law: in most cases it is clear whether a driver has conformed to the standard. But highway traffic regulation also needs and typically uses rules against careless or dangerous driving. Such abstract standards are designed to control a variety of behaviour that lacks the uniform, measurable feature speed that allows the precision of a speed limit.

Vague laws, such as a rule against careless driving, pose problems for philosophy of law that are related to problems that philosophers of language and of logic have addressed in arguments about the paradox of the heap see the entry on the Sorites Paradox.

Suppose that, according to law, it counts as careless driving to drive with bald tires. If the law gives a precise definition of the thickness of tire tread that counts as bald, then in this regard the law is more or less precise, and for the purposes of the law, virtually every tire is either clearly bald or clearly not bald.

And we can construct a sorites series, and a sorites paradox for the application of the law:. Philosophical approaches to the paradox seem to have implications for legal theory: arguments that vague terms are incoherent , and that reasoning with them is impossible, would support arguments that vague laws are incoherent. Since vague laws are an important part of every legal system [Endicott ], the implications seem to be far-reaching.

Arguments that the application of a vague expression is indeterminate in borderline cases or in some borderline cases imply that the application of a law that can be expressed in vague language is indeterminate in some cases. But it is even controversial whether such theories matter to legal philosophy [Schiffer, and Greenawalt, ]. Philosophers of law have not been especially concerned with the question of how to solve or to resolve the paradox, but they have debated the nature of borderline cases, and its implications for the role of judges in a community, and for the possibility of the rule of law.

If the application of vague laws is indeterminate in some cases, then in those cases a judge or other official responsible for applying the law cannot decide the matter by applying the law, since the law does not determine the matter and in fact, no one can use the law to guide their conduct. Some legal philosophers have responded to this problem by claiming that judges never or virtually never have such a choice, and that there is virtually always a right answer to a question of legal rights [Dworkin, a, ].

Others have responded to the problem by claiming that the law gives judges discretion, in all or some borderline cases, to decide issues that the law does not determine [Hart, , chapter VII.

That is, the standards of the system leave a choice to judges as to how to decide the issue. Then judges must treat the parties to litigation as having liabilities or obligations or entitlements that were not determinately theirs at the time when the dispute arose.

That power of judges appears to some to run contrary to the principle of the rule of law, that laws or at least, that legal burdens should not be imposed retroactively. As a result, vagueness raises an extraordinarily important set of problems for the philosophy of law.

It may seem to be a different set of problems from those raised by vague language in general, because of three ways in which the legal use of vague language is distinctive. First, legal systems need to regulate the effects of the vagueness of language, providing for authoritative resolution of disputes as to the effect of vague language where in some other domains of the use of language, we can get by without any such resolution.

When the law uses vague language, it uses abstract evaluative expressions. An abstract standard calls upon its subjects to construct a view of the care that, in their law, a driver owes to another person— and not merely to ask the seemingly pointless question, how bald is a bald tire? Such standards are a very common and a very important part of lawmaking technique.

It misses the point, you might think, to say that abstract standards do not draw sharp lines, because they are not designed to draw lines at all. By using an abstract standard, the lawmaker requires the people who must apply the law to construct a theory of the standard of care, or of process, or of condition , which will draw any line that is needed.

Thirdly, the legal context of an expression may be very different from other contexts of its use. Principles of legal interpretation for example, a legal requirement that vague criminal enactments are to be interpreted as applying only in clear cases may make the legal effect of the use of a word more precise than its ordinary effect.

The interpretation of a legal prohibition on careless driving demands an understanding of what counts as careless for the purposes of the law. That would be a mistake. That is, those considerations do not provide a way of distinguishing between one tire in the sorites series and the next. Similarly, it is possible to construct sorites series for the application of even more abstract legal standards such as the right to due process, or the United States constitutional prohibition on cruel and unusual punishment.

These evaluative tests have special legal meanings that can only be understood in the context of a legal system, and in the more particular context of a specific area of law, and by reference to their elaboration and development in a common law system of precedent.

Even with a mastery of all those aspects of the context, however, the best theory of the effect of such standards will not provide a way of distinguishing between one tire in the sorites series and the next. A theory of careless driving in some particular legal system at a particular time would be a defective theory, if it yielded the conclusion that the loss of one molecule of rubber from a tire can make the difference between driving that is careless and driving that is not careless according to law.

Consider again the case of Garner v Burr above, section 2. But we should bear in mind that if the discussion in section 2. So the chicken coop on wheels is a borderline case if it is unclear whether those principles required the provision to be applied to it. And the application of the term was indeterminate in the case, if those principles did not require a decision one way or the other. Of course, the appeal court held that a conviction was required—which we might say amounts to a decision that the term applied to the chicken coop on wheels.

The magistrates and the appeal court disagreed about it, but that disagreement in itself does not mean either that the application of the term was determinate or that it was indeterminate. And the fact that the appeal judges seem to have thought that the term clearly applied to the chicken coop cannot tell us that the application of the term was determinate. Each approach would take the law in a different direction. The application of the term was indeterminate before the decision of the appeal court set a precedent if neither approach was demanded by the complex resources of legal reasoning that the courts as a matter of legal obligation had to act upon.

But a decision upholding the acquittal would not have been contrary to the law, either. The law as it was at the time of the decision allowed the courts to move it in either direction.

That account of a case like Garner v Burr would support the controversial claim that judges have widespread discretion in resolving legal disputes. Legal philosophers have debated whether that claim undermines the ideal of the rule of law, or reflects a basic requirement of the rule of law: that a legal system needs techniques for the resolution of legal issues that are not determined by the law see Endicott , chapter 9. Bentham presented his theory as a definition.

In focusing their attention on the meaning of the main terms of legal discourse, Bentham and John Austin were ahead of their time. But it has come to be a commonplace view in legal theory though still controversial that they were misguided in attempting to define those terms. So, for example, Hart in the s rejected definition as useful in philosophy of law Hart , 14— And defining that word would not solve any of the problems of jurisprudence as Hart pointed out. Their problems and their disputes would not be resolved by a statement that would help someone who did not know what the word meant.

Finnis , 6; Dworkin , A definition would have to allow for those senses. It might be an intriguing and arduous study in culture and human thought to explain the analogies among those senses, but it is a study that holds out no special promise for understanding the law of a community. Legal philosophers have tried to explain the normativity of law —the fact that the law of a community is, or presents itself as, a guide to the conduct of members of a community.

One easy way to express this abstract feature of law is by pointing out that the law can be stated by making normative statements i. And one attractive way of trying to explain the normativity of law is by explaining the meaning and use of the normative language that is often used in stating the law. That is, the problem of explaining the nature of legal norms obligations, rights, etc.

The paraphrase would use sentences that contain only words that can be defined as referring to substances and perceptions. When no such paraphrase is available, he considered that normative language is meaningless.

While the language is meaningless, he thought, we can explain its use—as a way of doing something. Using such nonsensical expressions is a way in which the speaker expresses his preferences.

Although Bentham and John Austin thought that the notion of a natural right was nonsense, they did not at all think the same about the notion of legal rights. In their command theory they found a way of paraphrasing normative expressions in their legal use. Hart used the resources of twentieth-century philosophy to challenge that approach to normative language.

He drew on the work of J. Austin, a philosopher of language who thought that problems in many areas of philosophy could be dissolved by pointing out the things that people do with words. The suggestion is that to state the law is to perform an act an act other than the making of an assertion that could be true or false.

He articulated the theory by pointing out what people do with the normative language they use in stating rules. Hart started by arguing that Bentham and Austin had explained the meaning and use of normative language in a way that failed to account for its role in ordinary discourse. They fail to give it a meaning that can be expounded by reference to sensible objects.

Bentham and Austin were linguistic philosophers, but unlike J. Austin not ordinary language philosophers. They sought a way of using language that would back up their empiricism and utilitarianism, and they were actually pleased if that technique called for a reorganisation of ordinary language: it showed that they were disclosing what had been obscured by prejudice and cant.

His argument, you might think, simply puts into the linguistic mode an argument that could be made with no mention of language: an argument that you can have an obligation without being liable to sanction. And yet, the linguistic form of the argument was important to Hart. He wanted to avoid explaining the difference between obligation and coercion in the way a natural law theorist might by saying that an obligation is a kind of reason.

He did not point out the way we use that word as an oblique way of appealing to our shared wisdom as to what obligation is. It was actually important to him to point out how we use the word.

His explanation of the normativity of law relies on the use of such words to display an attitude. His methodological purpose was to describe human practices, and he wanted to defend a conceptual separation between law and morality—a distinction in kind between legal obligation and moral obligation see Hart , — The practice theory of rules attracted him as a tool for those purposes, because it offered a way of accounting for the normativity of law by pointing to forms of behaviour which could be described, and which did not in his view carry any moral baggage.

In saying that people use normative language to display an attitude to regularities of behaviour, the theorist did not need to do moral philosophy, and did not need to make any moral evaluations of the practice being described. The theorist did not even need to ascribe any moral evaluations to the participants in the practice, since the fact that people use normative language to display an attitude is, Hart considered, consistent with their having various moral views or none at all.

How much simpler it would be to say that normative language means the same in its moral uses and in its legal uses. While a person who says that you must stop at a red light may display various attitudes, what he or she asserts is a necessity that implies a presumptively conclusive reason to stop.

If the statement is a statement of law, the necessity is a legal necessity; if the statement is a moral statement, the necessity is a moral statement. That approach is not only simpler; it closes the gap that Hart left in his theory. According to Hart, the meaning of normative language differs in morality and in law.

He only pointed out that people display an attitude when they use such language. If it is a statement applying the law, it implies that you have reason to stop from the point of view of the law. Hart initially thought that that approach would necessarily lead to an extreme sort of natural law theory, in which every true statement of law is necessarily a true moral statement, and every valid legal obligation is necessarily a moral obligation.

People can make them without endorsing the point of view from which the reasons they are stating are valid see Raz , — He never explained the difference in meaning; its necessity only follows from a methodological preconception. Austin, John constitutionalism legal reasoning: interpretation and coherence in naturalism: in legal philosophy nature of law pragmatics vagueness. Historical introduction 2. The use of language in law 2. The use of philosophy of language in philosophy of law 3.

Historical introduction Systematic efforts to use philosophical insights about language to solve problems in philosophy of law are relatively recent. It varies in different states, but usually begins "Be It Enacted. ENGROSS: Most commonly, the process by which a bill is updated--that is, how adopted amendments and other changes are incorporated into a bill—as it makes its way through the Senate or House.

ENROLL: Most commonly, the process of changing a bill passed by both chambers into its final format for transmission to the governor. This is applicable in situations where objectionable, inflammatory or incorrect matter has been included in the journal.

In some states, the first reading is done at the time of introduction. FISCAL NOTE: A fiscal note seeks to state in dollars the estimated amount of increase or decrease in revenue or expenditures and the present and future implications of a piece of pending legislation. FLOOR: That portion of the legislative chamber reserved for members and officers of the assembly or other persons granted privileged access.

HOUSE: Generic term for a legislative body; usually the body in a bicameral legislature that has the greater number of members; shortened name for House of Representatives or House of Delegates.

See also: author, patron, sponsor. The procedure for designating the majority leader and other officers varies from state to state. MEMORIAL: The method by which the legislature addresses or petitions Congress and other governments or governmental agencies; method by which the legislature congratulates or honors groups or individuals. Process of designation varies from state to state.

PATRON: The person usually a legislator who presents a bill or resolution for consideration; may be joined by others, who are known as copatrons. See also: author, introducer, sponsor. A formal procedure required by constitution and rules that indicates a stage in enactment process.

Most often, a bill must receive three readings on three different days in each legislative body. ROLL CALL: Names of the members being called in alphabetical order and recorded; used to establish a quorum or to take a vote on an issue before the body. SPONSOR: The person usually a legislator who presents a bill or resolution for consideration; may be joined by others, who are known as cosponsor.

See also: author, introducer, patron. The term "statute" is used to designate written law, as distinguished from unwritten law. On Feb. The bill, passed by the General Assembly on the final day of the lame-duck session and signed into law by the governor, is pages. The bill presented a smorgasbord of statutes, too numerous to be listed here and patently not covering a single subject. One might rightly question whether legislators — in its committees and on the floor of the Senate and House — were able to even read let alone comprehend the legislation they approved solely during the dying moments of the lame-duck session.

For those who seek the answers to such questions and for those who may wish to determine for themselves whether the adopted statute profoundly violates the single-subject rule, Public Act is easily obtainable on the web. The single-subject rule makes sense. Indeed, as the federal congressional reconciliation debate continues, it sure would be helpful to have a bill in order to know with specificity not only the need for the expenditure of trillions of dollars, but specifically how the billions of proposed dollars would be used and how they would or would not benefit us.

He formerly served as a trial judge and a justice of the Illinois Appellate Court. Submit a letter, of no more than words, to the editor here or email letters chicagotribune. Skip to content. The Illinois Senate meets before the inauguration of a new term Jan.