Let us look again at Garner v. Burr (above, section 2.2). The term “vehicle”, as properly understood for the purposes of the Road Traffic Act, is vague if there are borderline cases for its application (where it is not clear whether the term applies to an object). It may seem that nothing is more obvious than a borderline case of a “vehicle” than a chicken coop on wheels. However, we must bear in mind that (if the discussion in section 2.2 above is valid) the correct application of the concept depends on the legal principles relating to the objectives of the legislation and the need to clarify criminal responsibility. The wheeled barn is therefore a borderline case where it is not clear whether these principles require that the provision be applied to it. And the application of the concept is vague in this case if these principles do not require a choice in one way or another. Of course, the Court of Appeal concluded that a conviction was necessary – what we might say is tantamount to a decision that the term applies to the wheeled barn. The judges and the Court of Appeal disagreed on this point, but this disagreement in itself does not mean that the application of the term was definitive or vague. And the fact that appellate judges seem to think that the term is clearly applied to the chicken coop cannot tell us that the application of the term has been determined. Given these peculiarities of the law, it may seem that logicians` discussions of heaps and baldness miss the point, and that legal reasoning is exempt from all the implications that paradox may have for logic or semantics.
And because of the contextual dependence of language use in law (see Section 2.2), some have argued that legal uncertainties are not significantly related to the susceptibility of legal statements to Sorite`s reasoning (Lanius 2019, Chapter 3). But statements of law that use abstract expressions and use them differently in different contexts are certainly vague in the sense of philosophers: that is, they seem sensitive to Sorite`s argument. “Reckless driving” in the legal sense is a much more complex term than “driving with bald tires,” and driving with bald tires is a case of reckless driving solely because of evaluative and contextual considerations, which must be understood if one is to understand the law of reckless driving. Nevertheless, “reckless driving” is subject to Soriet`s reasoning: for example, these evaluative and contextual considerations lead to the conclusion that it is unwise to drive with bald tires. Despite their complexity (and their connection to profound questions of the rights of the citizen and the responsibilities and obligations that a community may legitimately impose on the citizen), these considerations do not determine a more precise criterion than one that could be expressed with such an ordinary vague expression as “bald”. These considerations therefore make it impossible to distinguish between one Sorites tyre and another. Similarly, it is obviously possible to construct Sorites series for the application of even more abstract legal norms, such as due process rights or the United States` constitutional prohibition of cruel and unusual punishment. These evaluation criteria have particular legal meanings that can only be understood in the context of a legal system and in the more specific context of a particular area of law and by reference to their elaboration and development in a common law precedent. However, even with mastering all these aspects of context, the best theory of the effect of these standards will not provide a way to distinguish between one tire from the Sorites series and the next. A theory of reckless driving in a particular jurisdictional system at a particular point in time would be a flawed theory if it led to the conclusion that the loss of a rubber molecule from a tire can mean the difference between reckless driving and reckless driving under the law. Hart`s interest in normative language was not about its meaning, but about the attitude people show when they use it.
His explanation of the difference between non-normative and normative claims (between, as he put it, “the assertion that someone was obliged to do something and the assertion that he was obliged to do it”) was simply that the latter type of assertion is used to show a distinctive attitude. Joseph Raz rejected Hart`s contention that normative terms in legal statements have a distinctive meaning. According to Raz, a normative statement such as “You have to stop at a red light” implies that you have some type of reason to act. If it is a statement that applies the law, it implies that you have reasons to stop from the point of view of the law. Raz`s theory of law, unlike Hart`s, is part of a theory of practical reason in general, and his presentation of normative statements treats them as having the same meaning in law and morality. Hart first thought that this approach would necessarily lead to an extreme type of natural law theory, in which any true legal statement is necessarily a true moral statement, and any valid legal obligation is necessarily a moral obligation. But Raz resolved Hart`s concerns by pointing out that normative statements can be made in a distanced manner.