Vagueness Has No Function in Law

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth? Contemporary Western legal theorists are apt to dismiss this enigma on the grounds that there is no right answer—even within the Islamic legal system. The vagueness of “face” infects the law that all mosques must face toward Mecca. A judge should just use his discretion to settle the case. However, the Islamic system has no room for this kind of discretion. Islamic law is a divine-command theory. An act is illegal exactly when God forbids it. Since God is never undecided, every legal question has a determinate answer. The judge’s aim is to discover what God’s judgment is. Islamic law is blind to borderline cases. This insensitivity impairs an Islamic judge’s ability to identify and handle an important species of defective question. Instead of dismissing borderline cases or settling them by fiat, the Moslems vainly attempt to discover an answer to a question that, on conceptual grounds, resists all inquiry. A good theory of vagueness should account for this Western advantage over Islam. Supervaluationism meets this requirement by picturing borderline propositions as being neither true nor false. If there is no fact of the matter as to which way faces Mecca, then there is nothing to discover. Once we recognize there is nothing to know, we switch from “What is the answer?” to “What should count as the answer?” The change of perspective lets us exchange the tools of discovery in favor of the tools of invention. And once we acknowledge that there is a role for stipulation and imaginative interpolation, we can appreciate how certain features of law are adaptations to indeterminacy. Knowing how law ought to work sheds light on how it does work.