Second-Order Vagueness in the Law
Oxford University Press
UVA Law Faculty Affiliations
Most of the philosophical literature on vagueness starts with the identification of the term whose vagueness is at issue -- tall, short, night, day, bald, tadpole, etc. But in legal interpretation an additional problem arises, because it is not always obvious which term in a legal text, or even which legal text, is the operative one. H.L.A. Hart's idea of a rule of recognition conceptualizes the way in which some second-order rule is necessary to identify which first-order rule is applicable to some form of conduct, but it is often the case that the second-order rule itself exhibits various forms of vagueness. When that is so, vagueness appears as a distinct problem with important but often unrecognized implications.
Frederick Schauer, Second-Order Vagueness in the Law, in Geert Keil & Ralf Poscher Vagueness and Law: Philosophical and Legal Perspectives, Oxford University Press, 177-188 (2016).