Void For Vagueness - Theoretical Basis

Theoretical Basis

A number of arguments are presented in favor of the void for vagueness doctrine. The most basic is as expressed by Justice Sutherland: that an individual should not face punishment for violating the law, unless the nature of the prohibited conduct can be understood by a reasonable person. This concept is not unlimited, given that personal ignorance of the law is not generally considered to be a defense, under the doctrine of ignorantia juris non excusat. Nevertheless, the void for vagueness doctrine is seen as protecting an individual's right to due process, including the ability to investigate what is prohibited in a specific situation, and then to live free from fear or the chilling effect of unpredictable prosecution.

A second argument is conceived not as a personal protection, but as a limitation on the state and its ability to initiate criminal prosecutions. If penal statutes are overly vague, it is argued that the state's discretion to prosecute becomes too broad, and potentially subject to abuse through selective enforcement.

One criticism of the doctrine is that there is an inherent indeterminacy in every law, so attempting to eliminate them is folly and only leads to more problems. Another criticism might be that vague laws are actually good, that they allow the judge or jury to apply a single law in a number of situations unanticipated by the legislature.

These might be answered by responding, on the first hand, that the doctrine does not attempt to eliminate ambiguity altogether, but only so far that an average man, in an average situation, might understand the meaning. To the second criticism it might be responded that, indeed, laws should not be impossibly narrow, but in a system that presumes both liberty and innocence, such broad laws as those suggested by that criticism would be undesirable as they would catch in their net many innocent citizens.