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Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CALIFORNIA LAW REVIEW 491 (1994).


"'[I]ndefiniteness' is not a quantitative concept."

The void for vagueness doctrine is traditionally understood as concerned with the capacity of legal rules to control conduct. The doctrine underwrites the clarity of the law's distinction between acceptable and forbidden behavior, so as both to guide the actions of citizens and to restrict the discretion of government officials. In the words of a recent Supreme Court decision, the doctrine, "[a]s generally stated .... requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

The traditional account of void for vagueness doctrine thus focuses on the nature of legal rules. It invites us to perceive the question of vagueness as a continuous variable, as "a matter of degree," so that one can speak of a rule as having more or less "definiteness" and therefore as exercising more or less control over government caprice and citizen conduct. For this reason an unconstitutionally vague statute can be rewritten so as to be clearer or more precise. Hence vagueness analysis is said to "address itself to the form of regulation, without reference to the ultimate amenability to regulation of its subject."

I do not mean to deny that this traditional image of vagueness doctrine is often valid and appropriate. But I wish in this Essay to call attention to a significant class of cases in which this image is inaccurate and misleading. In these cases courts do not use vagueness doctrine to focus on the isolated properties of legal rules, but rather to analyze the relationship between legal rules and forms of social order. My hypothesis is that different kinds of legal rules presuppose and instantiate different forms of social order, and that vagueness doctrine is frequently employed to distinguish among the forms of social order that may appropriately be enforced by law in particular circumstances. Thus an unconstitutionally vague statute sometimes cannot simply be rewritten to be clearer or more precise; it must instead be refashioned to reflect entirely alternative models of social life.

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