Freedom of Speech Although Judges

Christie provides a few examples of how lawyers use the superimposition of several vague terms to arrive at a workable precision. From the 1938 Restatement of Torts:

An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. (p. 896)

Differences can and do exist and even though they are difficult to articulate in words, it does not mean they should be ignored. The courts and juries are left to make distinctions among such words as “slight” negligence, negligence, “gross” negligence and recklessness. In other words, “distinctions are recognized in the law even though the distinctions cannot, in any very helpful sense, be adequately articulated” (p. 902).

Once distinctions are made in several prior cases, later cases that align with these cases can be decided in the same fashion. The judge can notify the jury members that in past cases “slight” negligence meant driving at 35 miles per hour and negligence meant driving at 60 miles per hour. The jury members thus have a criterium on which to base their determination.

Vagueness, Christie concludes, is a necessity. First, because it is too difficult to clearly articulate all situations. Second, and more important, because flexibility is necessary in law. He does have one caveat:

there are some jobs which our linguistic tools, partly even because of vagueness, cannot completely perform without the adi of other communicaiton devices. The error to be avoided here, it has been submitted, is that of assuming that because general rules cannot do it alone the job cannot be done, or is not worth doing. That would be an error of the first magnitude. (p.911) It is difficult to find fault with Christie when he discusses the problem with trying to clarify every law in specific black-and-white terms.

It would be virtually impossible to try to cover all bases. There has to be room for interpretation. Also, there has to be some flexibility. That is one of the strengths, and weaknesses (depending on the situation and who is involved) with American law. For example, trying to specifically define pornography is too difficult. The vagueness of the term has to be decided case by judgment.

However, I have other personal concerns. One of them is clearly stated by Christie. A decision should not be put aside because it can not be articulated or sides cannot agree. This, unfortunately, does happen.

Another concern is that society and the distinctions made are continually changing. A jury can look back on how 60 miles per hour was considered negligence, but have to keep in mind that cars go much faster and roads are much better. Some people live in the past and cannot accept change.

Lastly, with Christies approach people have to trust in the jury and/or judges decisions. Many of us would rather our future life not be left up to the arbitrary decision of some judge or jury members who most likely have their own personal beliefs involved in their decisions. A newspaper I read last week said that a man who killed eight puppies should have 30 years in jail, while another man plea bargained for five years in jail for rape. This vagueness is hard to handle.

If not specific word-for-word, laws have to be as narrowly defined as possible to rule out arbitrariness. Laws are valuable human institutions inasmuch as they provide predictable regularity, delimit in a clear and understandable way the boundaries of permissible behavior.


Christie, George C. (1964)..