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Objectivity and the Rule of Law

What is objectivity? What is the rule of law? Are the operations of legal systems
objective? If so, in what ways and to what degrees are they objective? Does any-
thing of importance depend on the objectivity of law? These are some of the
principal questions addressed by Matthew H. Kramer in this lucid and wide-
ranging study that introduces readers to vital areas of philosophical enquiry.
As Kramer shows, objectivity and the rule of law are complicated phenomena,
each comprising a number of distinct but overlapping dimensions. Although the
connections between objectivity and the rule of law are intimate, they are also
densely multifaceted.
Matthew H. Kramer is Professor of Legal and Political Philosophy at Cambridge
University; Fellow of Churchill College, Cambridge; and Director of the Cam-
bridge Forum for Legal and Political Philosophy. He is the author of ten previous
books, most recently The Quality of Freedom and Where Law and Morality Meet,
and he is the Legal Philosophy Editor for the Routledge Encyclopedia of Philosophy
(online edition).
Cambridge Introduction to Philosophy and Law
Series Editor: William Edmundson

This introductory series of books provides concise studies of the philosophical
foundations of law, on perennial topics in the philosophy of law, and of impor-
tant and opposing schools of thought. The series is aimed principally at students
in philosophy, law, and political science.
Objectivity and the Rule of Law




MATTHEW H. KRAMER
Cambridge University
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521854160

© Matthew H. Kramer 2007


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2007

eBook (EBL)
ISBN-13 978-0-511-28939-2
ISBN-10 0-511-28939-1 eBook (EBL)

hardback
ISBN-13 978-0-521-85416-0
hardback
ISBN-10 0-521-85416-4

paperback
ISBN-13 978-0-521-67010-4
paperback
ISBN-10 0-521-67010-1

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
To my four brothers: Steven, AJ, Mark, and David
Contents




page xi
Preface
1 Dimensions of Objectivity 1
2 Elements of the Rule of Law 101
3 Objectivity and Law™s Moral Authority 187

233
Bibliographic Notes
237
References
241
Index




ix
Preface




While I have endeavored in this book to make an original contribution
to the debates surrounding the matters which I discuss, I have likewise
striven to provide an accessible overview of those matters. Though I have
not altogether eschewed the technical terminology of philosophy “ since
that terminology is often crucial for the distillation of complex ideas
and for the avoidance of cumbersome prose “ I have sought to explain
each technical term or phrase whenever it ¬rst appears (and occasionally
also thereafter). Similarly, although I have not dispensed with footnotes
completely, I have kept them to a minimum. The ideas presented in this
book are sometimes complicated, but I have done my best to articulate
them clearly for a wide audience.
As will become apparent in my opening chapter, objectivity is a mul-
tifaceted phenomenon. In connection with law, and also in connection
with most other domains of human thought and activity, the notion
of objectivity gets invoked in quite a few distinct senses. Nonetheless,
despite the complex variegatedness of that notion, it partakes of a certain

xi
xii Preface


overarching unity. Speci¬cally, each of the dimensions of objectivity is
de¬ned in opposition to a corresponding dimension of subjectivity. Legal
objectivity, in its manifold aspects, is what marks the divide between the
rule of law and the rule of men.
Because of the constraints on the length of each volume in the Intro-
ductions to Philosophy and Law series, I have had to forbear from explor-
ing several important topics that would need to be pondered in any full
treatment of the objectivity of law. Among the matters left uninvesti-
gated is the fact that most legal systems involve multiple tiers of decision-
making; the determinations reached by some of¬cials are subordinate to
those reached by higher-ranking of¬cials. That hierarchical structure of
adjudicative and administrative authority gives rise to some challenging
problems for any analysis that ascribes objectivity to the workings of a
legal system. Those problems have not been broached within the con¬nes
of the present volume, but I will be addressing them in some of my future
writings. (A few of those problems are addressed in the fourth chapter of
Kramer 2004a.) Two other important issues omitted from the scope of this
book are the fact that many transgressions of legal requirements go unde-
tected and the fact that the perpetrators of many detected transgressions
go unidenti¬ed and unapprehended. Had I had suf¬cient space, I would
have treated those issues “ concerning the limits on the ability of legal-
governmental of¬cials to give effect to the mandates of their regime “ in
the course of my opening chapter™s re¬‚ections on the discretion exercised
by of¬cials in their responses to detected illegalities. (In Kramer 2001 ,
65“73, I have grappled with some of the theoretical dif¬culties posed by
the occurrence of undescried violations of legal requirements. Several of
those dif¬culties and a number of related problems are illuminatingly
discussed in Reiff 2005.)
Still, notwithstanding that the restrictions on the length of this book
have obliged me to pass over the topics just mentioned and some other
pertinent topics, the present volume provides a compendium of the main
elements of the two phenomena encapsulated in its title. It probes many,
though inevitably not all, of the intricacies in those elements. In so doing,
it aims to reveal the intimacy of the connections between objectivity
and the rule of law; and, more broadly, it aims to reveal the depth and
fascination of the philosophical cruxes to which those connections give
rise.
Preface xiii


This book was written during the ¬rst year of my Leverhulme Trust
Major Research Fellowship. I am very grateful indeed to the Leverhulme
Trust for its support of my work. I owe thanks to many people who
have supplied extremely helpful comments: Richard Bellamy, Boaz Ben-
Amitai, Brian Bix, Gerard Bradley, Alex Brown, Ian Carter, Sean Coyle,
Daniel Elstein, John Finnis, Stephen Guest, Kenneth Himma, Brian Leiter,
George Letsas, Peter Lipton, Mark McBride, Saladin Meckled-Garcia, Riz
Mokal, Michael Otsuka, Stephen Perry, Connie Rosati, Gideon Rosen,
Steve Smith, and Emmanuel Voyiakis. Richard Bellamy kindly invited me
to present an early version of Chapter 1 as a seminar paper at University
College London in November 2005. Laura Donohue and Amalia Kessler
kindly invited me to deliver a later version of a portion of Chapter 1 as a
paper at Stanford University Law School in October 2006, and Joan Berry
and Debra Satz kindly invited me to outline the whole of Chapter 1 for
the Stanford University Philosophy Department on the same occasion.
Special thanks for very valuable comments are due to William Edmund-
son “ the series editor “ and to the anonymous readers of my original
proposal, whose perceptive observations were especially valuable in the
early stages of my writing.

Cambridge, England
June 2006
CHAPTER


1
Dimensions of Objectivity




1.1. Brief Preliminary Remarks

No satisfactory account of the relationships between objectivity and the
rule of law can begin with the assumption that the nature of objectivity
and the nature of the rule of law are transparent and that the only things
to be clari¬ed are the relationships between them. What will become
apparent in my opening two chapters is that both objectivity and the rule
of law are complicatedly multifaceted. To ponder rewardingly how each
of them bears on the other, we need to explore the distinct varieties of
each of them.
This ¬rst chapter will disentangle multiple aspects or dimensions of
objectivity, and the next chapter will then differentiate between the rule
of law as a morally neutral mode of governance and the Rule of Law
as a moral ideal. The ¬nal chapter will mull over some of the relation-
ships between the sundry aspects of objectivity and the moral authority
of law. (All three chapters will broach numerous relationships between

1
2 Objectivity and the Rule of Law


objectivity and the rule of law or the Rule of Law.) My discussions will
aim to provide a general overview, rather than an exhaustive account,
of some major issues that have preoccupied legal and moral and politi-
cal philosophers. Though such an overview will inevitably prescind from
countless complexities that would receive attention in any comprehensive
treatment of the topic, it should suf¬ce to highlight the most important
distinctions by reference to which those complexities are to be fathomed.



1.2. Types of Objectivity

Both in ordinary discourse and in philosophical disputation, people tend
to invoke the notion of objectivity in a number of diverse forms. To furnish
a map of the terrain, this chapter will recount six chief conceptions of
objectivity along with a few ancillary conceptions. Although most of the
principal facets of objectivity overlap, and although each of them is fully
compatible with the others, none of them is completely reducible to any
of the others. Three of them are ontological in their orientation, two are
epistemic, and one is semantic. That is, three of them bear on the nature
and existence of things; two of them bear on the ways in which rational
agents form beliefs about those things; and one of them bears on the
relationships between those things and the statements that express the
agents™ beliefs. An adequate explication of the notion of objectivity has
to take account of these differences, and likewise has to take account of
crucial divisions within some of the distinct aspects of objectivity.

Types of Objectivity

Genus of Objectivity Species of Objectivity
Ontological Mind-Independence
Determinate Correctness
Uniform Applicability
Epistemic Transindividual Discernibility
Impartiality
Semantic Truth-Aptitude


The several dimensions of objectivity to be expounded here are of
great importance well beyond the domain of law. Some of them, indeed,
Dimensions of Objectivity 3


have been investigated much more searchingly in other areas of philoso-
phy than in the philosophy of law, and a couple of the ancillary dimensions
(shunted toward the end of the chapter) are only of extremely limited
applicability to the substance of legal norms. Nevertheless, each of the six
cardinal aspects of objectivity is not only central to many areas of intel-
lectual endeavor but is also of particular prominence in legal thought and
discourse. While we shall be considering a wide range of ways in which
any ¬eld or enquiry or judgment or requirement might be objective, we
shall be doing so precisely in order to ascertain the ways in which law is
objective. Moreover, we need to discover the respects in which law does
not partake of objectivity as well as the respects in which it does.


1.2.1. Objectivity qua Mind-Independence

Every variety of objectivity is opposed to a corresponding variety of sub-
jectivity. Nowhere is that opposition more evident than in connection
with objectivity as mind-independence. This ¬rst conception of objectiv-
ity is perhaps more commonly invoked than any other, both in everyday
discourse and in philosophical argumentation. When this conception
informs somebody™s remarks, a proclamation of the objectivity of some
phenomenon is an assertion that the existence and character of that phe-
nomenon are independent of what anyone might think. Within a domain
to which such a proclamation applies generally, the facts concerning any
particular entity or occurrence do not hinge on anybody™s beliefs or per-
ceptions.
For a proper grasp of this ¬rst type of objectivity, we need to take
note of some salient distinctions. One such distinction lies between (i)
the views of separate individuals and (ii) the shared views of individu-
als who collaborate in a community or in some other sort of collective
enterprise.1 Sometimes when theorists af¬rm the mind-independence of
certain matters, they are simply indicating that the facts of those matters
transcend the beliefs or attitudes of any given individual. They mean to

1 Of course, the shared views to which I refer will often not be merely shared. Frequently, a key
reason for the holding of those views by each participant is his knowledge that virtually every
other participant holds them and expects him to hold them. That complicated interlocking of
outlooks among the participants in a collaborative endeavor is not something on which this
chapter needs to dwell.
4 Objectivity and the Rule of Law


allow that those facts are derivative of the beliefs and attitudes shared by
individuals who interact as a group (such as the judges and other legal
of¬cials who together conduct the operations of a legal system). These
theorists contend that, although no one individual™s views are decisive
in ordaining what is actually the case about the matters in question, the
understandings which individuals share in their interactions as a group
are indeed so decisive. Let us designate as “weak mind-independence”
the type of objectivity on which these theorists insist when they ascribe a
dispositive fact-constituting role to collectivities while denying any such
role to separate individuals. That mild species of objectivity is obviously
to be contrasted with strong mind-independence, which obtains when-
ever the existence or nature of some phenomenon is ordained neither by
the views of any separate individual(s) nor by the common views and
convictions that unite individuals as a group. Insofar as strong mind-
independence prevails within a domain, a consensus on the bearings of
any particular state of affairs in that domain is neither necessary nor suf-
¬cient for the actual bearings of the speci¬ed state of affairs. How things
are is independent of how they are thought to be.
Before we turn to a second major division between types of mind-
independence, a brief clari¬catory comment is advisable. When some
phenomenon is weakly mind-independent, its existence or nature is
ordained by the beliefs and attitudes (and resultant patterns of conduct)
that are shared among the members of a group. However, the beliefs
and attitudes need not be shared among all the members of a group. In
any large-scale association or community, very few beliefs and convic-
tions will be shared by absolutely everyone. What is typically present in
a state of weak mind-independence “ a state that is equally well charac-
terized as “weak mind-dependence” “ is not some chimerical situation
of unanimity, but instead a situation of convergence among most of a
group™s members. Consider, for example, the loosely knit group of com-
petent users of the English language in Canada. If most of those users
regard the employment of “ain™t” as improper in any formal speaking
or writing (except when the term is deliberately wielded for comical
effect), and if most of them accordingly eschew the employment of that
slang term in formal contexts, then Canadian English includes a weakly
mind-independent rule proscribing the employment of “ain™t” in for-
mal discourse. Probably, some competent users of the English language
Dimensions of Objectivity 5


in Canada do not eschew “ain™t” in formal contexts. Such a fact, if it is
a fact, is perfectly compatible with the existence of the aforementioned
rule. Indeed, the exact difference between the status of some entity X as a
weakly mind-independent phenomenon and the status of some entity Y
as a strongly mind-dependent phenomenon is that the existence or nature
of X (unlike the existence or nature of Y) is not ordained by the outlook
of any particular individual. Instead, it is ordained by outlooks and con-
duct that prevail among most of the members of some group. Typically,
convergence among a preponderance of a group™s members “ which falls
short of convergence among all those members “ will be suf¬cient to
ground the existence or to establish the nature of some weakly mind-
independent phenomenon. Note furthermore that, when there is very
little convergence among a group™s members on some particular issue,
and when the lack of convergence precludes the existence of some weakly
mind-independent entity X (such as a linguistic norm that proscribes
“ain™t” in formal contexts), the weakly mind-independent character of X
is evidenced by the very inexistence of such an entity. Precisely because
X is weakly mind-independent rather than strongly mind-independent,
the meagerness of the convergence among the outlooks of the group™s
members is something that matters to X ™s existence.
Now, before we can come to grips with the question whether
legal requirements are strongly mind-independent or weakly mind-
independent (or neither), we need to attend to another major
dichotomy: the dichotomy between existential mind-independence and
observational mind-independence.2 Something is existentially mind-
independent if and only if its occurrence or continued existence does not
presuppose the existence of some mind(s) and the occurrence of mental
activity. Not only are all natural objects mind-independent in this sense,
but so too are countless artefacts such as pens and houses. Although those
artefacts would never have materialized as such in the absence of minds
and mental activity “ that is, although in their origins they were exis-
tentially mind-dependent “ their continued existence does not similarly
presuppose the presence of minds and the occurrence of mental activity.
A house would persist for a certain time as the material object that it is,

2 For some good, crisp statements of this distinction “ which has been drawn in various terms
´
by many writers “ see Moore 1992, 2443“44; Svavarsdottir 2001 , 162.
6 Objectivity and the Rule of Law


even if every being with a mind were somehow straightaway whisked out
of existence.
Something is observationally mind-independent if and only if its
nature (comprising its form and substance and its very existence) does
not depend on how any observer takes that nature to be. Whereas every-
thing that is existentially mind-independent is also observationally mind-
independent, not everything that is observationally mind-independent
is existentially mind-independent. Consider, for example, an intentional
action. The occurrence of any such action presupposes the existence of
a mind in which there arises the intention that animates the occurrence,
yet the nature of the action does not hinge on what any observer(s) “
including the person who has performed the action “ might believe it to
be. Even if every observer thinks that the action is of some type X, it may
in fact be of some contrary type Y.

Types of Mind-Independence

Existential Observational
Weak The occurrence or continued The nature of something is not
existence of something is not dependent on what it is taken
dependent on the mental to be by any particular
activity of any particular individual.
individual.
Strong The occurrence or continued The nature of something is not
existence of something is not dependent on what it is taken

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