Transcript
Paul Troop
Legal rules can be certain most of the time, but there are circumstances where they will be uncertain. The legal philosopher H. L. A. Hart, who was based in Oxford, talked about the penumbra of uncertainty. Now, ‘penumbra’ is just a fancy word for half shade.
Where the light cast by the sun or a light shines on something, you’ll find that there’s an area which is definitely in the light, and there’s an area which is definitely in the shade. But between the two, there’s an area which isn’t quite in the light, and isn't quite in the shade, and that's the penumbra.
Now, legal rules are the same. There are circumstances where the rule definitely applies, and there’ll be circumstances where the rule definitely does not apply. But sometimes there's a small area-- the penumbra of uncertainty-- where it's not clear whether the rule applies or whether it doesn't.
So Hart suggested there are at least two reasons why legal rules were uncertain. The first is a problem with human language. It’s very difficult to explain everything perfectly clearly with human language, as opposed to computer language. And secondly, it’s sometimes very difficult for the rule-maker-- parliament or a judge-- to predict every possible circumstances where the rule might apply.
A famous legal example of uncertainty is whether or not a Jaffa cake is a cake or a biscuit. The issue matters very much to the producers of Jaffa cakes, because cakes are VAT-free-- VAT-exempt - so they don't need to pay tax, whereas there is tax on biscuits. Now, a Digestive is clearly a biscuit, whereas a Battenberg is clearly a cake. But Jaffa cakes fall somewhere in the penumbra of uncertainty.
They're small like a biscuit. They’re covered in chocolate like a biscuit. They're sold in packs like a biscuit. But they’re soft like a cake, and many of the ingredients are the same as cakes.
This issue was the issue in the real life case of United Biscuits in 1991. And in that case, the judge in the VAT Tribunal decided that a Jaffa cake was a cake, which was good news for the manufactures of Jaffa cakes.