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Indeed, in some contexts “ even in a liberal democracy “ the ful¬llment
of a legal obligation would be unequivocally unreasonable. All the same,
many legal obligations do impose moral obligations of obedience (albeit

18 Here and elsewhere in this paragraph, “equally” should be construed as “equally or incom-
mensurably.” Note that, although a violation of a moral duty is not unreasonable if the duty
has been overtopped or equally balanced by a countervailing moral duty, the violation is still
wrong in that the person committing it will have incurred a moral obligation to remedy it in
some way. On this point, see Kramer 2004a, 249“94; 2005.
86 Objectivity and the Rule of Law


moral obligations that are susceptible to being overtopped by counter-
vailing moral duties that are even more pressing). In a liberal democracy,
most legal duties produce such an effect, and indeed most of the moral
obligations-of-obedience engendered by those legal duties are not over-
topped or equally balanced by any countervailing moral obligations or by
any hugely weighty prudential considerations. Accordingly, many viola-
tions of legal duties in a liberal democracy will be unreasonable. Even in
most illiberal countries, quite a few such violations will be unreasonable.
Thus, although objectivity qua rational compellingness is not an
aspect of the objectivity of legal systems and their mandates, there is
a connection between legal requirements and reason. Anyone can con-
travene legal mandates without being irrational “ that is, without having
become entangled in logical incoherence “ but in many cases the unlaw-
ful behavior is unreasonable. Although such behavior does not bespeak
anything as strong as a self-contradiction in a person™s thinking, it does in
many circumstances bespeak faulty moral reasoning. It bespeaks a de¬-
cient grasp of the balance of reasons that should sway a person™s actions.
Having recognized this frequent connection between unlawfulness and
unreasonableness, we can more readily accept that there is generally no
connection between unlawfulness and self-contradictoriness.


1.2.7.2. Objectivity qua Invariance

In the eyes of some philosophers, the linchpin of objectivity is invariance
(Nozick 2001 ). Invariance itself is a multifaceted property, of course.
Some of its aspects have been probed in some of my previous subsections
on dimensions of objectivity. For example, one sense in which a regime
of law can partake of invariance is that its norms are uniformly appli-
cable to everyone. So construed, the property of invariance obviously
falls under my earlier discussion of objectivity qua uniform applicability.
Another respect in which a legal system partakes of invariance is that the
contents and implications of most of its norms are widely agreed upon
(by people generally or speci¬cally by people who have expert knowledge
of the law). When people do converge with one another in their percep-
tions of the existence and contents of legal norms, the variations among
their individual outlooks are subordinated “ in their perspectives on the
law “ to the commonality of those perceptions. Insofar as the property
Dimensions of Objectivity 87


of invariance is explicated along these lines as the broad homogeneity of
the ways in which people understand the contents and implications of
laws, it obviously falls under my earlier discussion of objectivity qua
transindividual discernibility. Still another respect in which a legal system
partakes of invariance is that the observational mind-independence of
its norms is strong. Because the contents and implications of laws at
any given juncture do not necessarily tally with what people individually
or collectively believe them to be, they do not vary at that juncture in
accordance with any misunderstandings harbored by people individually
or collectively. Invariance in this sense obviously falls under my earlier
discussion of objectivity qua mind-independence.
Two other aspects of invariance are not subsumable under any of the
previous subsections of this chapter. However, those two types of invari-
ance “ unchangingness and ubiquity “ are not generally characteristic
of the substance of legal norms. If laws were invariant in the sense of
being unchanging, their existence and contents and implications would
remain always the same. Perhaps such a state of affairs obtains in some
extremely primitive regimes of law, but it manifestly does not obtain in
any legal system that exists in the modern world. Every such legal system
includes mechanisms for altering the norms which it currently comprises.
Alterations occur most conspicuously through the legislative and quasi-
legislative actions of public of¬cials, but they also occur through many
actions of private individuals (in forming contracts, for example). Risibly
far-fetched is the idea of a modern legal system without some such means
for transforming its existent norms. Hence, invariance qua unchanging-
ness is remote indeed from the substance of the mandates and other
norms produced by legal-governmental institutions. In that respect, the
substance of law differs notably from the substance of morality. Numer-
ous moral precepts, such as prohibitions on the torture of babies and on
the deliberate slaughter of unarmed civilians and on the commission of
unprovoked assaults and on the defrauding of people for fun and pro¬t,
always have been binding and always will be binding. They are time-
less. Although the extent of people™s compliance with such prohibitions
will of course vary markedly from historical era to historical era “ and
although some of those prohibitions may in fact go virtually unglimpsed
in certain eras “ the dispositive sway of those prohibitions and of other
fundamental moral precepts is temporally invariant. Whenever human
88 Objectivity and the Rule of Law


beings (or other rational beings) exist, they are bound by those precepts.
Objectivity qua changelessness encompasses much of the substance of
morality, then, whereas it does not have any similar grip on the substance
of legal norms.
Despite what has been said in the last paragraph, there is a grain of
truth “ albeit only a grain “ in the notion that temporal invariance is a
property of the substance of laws. As will be discussed in Chapter 2, the
very existence of any legal system as such is dependent on limits to the
scale and frequency of changes within the system™s laws. No ostensible
legal system can guide people™s conduct with minimal ef¬cacy if its norms
undergo transformations so often and so sweepingly as to leave people
bewildered. The extreme disorientation induced by persistent and whole-
sale changes in the prevailing norms will undermine the central function
of law in directing and channeling people™s behavior. If a system of law
is to perform that function and is therefore to exist at all as a system of
law, the rate of metamorphosis of its directives cannot be dizzyingly high.
Legal change will occur and should occur, but it has to take place within
moderately con¬ning limits if it is to count as legal change rather than as
chaos. Insofar as a thesis about the temporal invariance of the substance
of legal norms is intended simply to highlight the requisite limits on the
pace of juridical evolution, its message is quite correct; but any reference
to temporal invariance in the thesis is extraordinarily misleading, since an
insistence on the aforementioned limits is hardly tantamount to an insis-
tence on the absence of change altogether. We are best advised to eschew
such a thesis and to acknowledge straightforwardly that objectivity qua
temporal invariance is not to be predicated of the substance of law.
Much the same can be said about invariance qua ubiquity. The legal
norms of each jurisdiction are speci¬c to that jurisdiction. Though some
of the norms of international law in the modern world may be operative
in all or most national jurisdictions, the domestic law of each country is
peculiar to that country. Within many national jurisdictions, moreover,
there are other jurisdictions with their own arrays of legal norms (such as
those of the ¬fty states in the United States). Hence, given the multiplicity
and diversity of the legal systems in the world, the quality of omnipres-
ence is not generally attributable to the substance of any legal norms. Of
course, some such norms may be shared across a number of different juris-
dictions, especially when active efforts to bring about such uniformity
Dimensions of Objectivity 89


have occurred (as they have “ in certain areas of law “ among the states of
the United States and among many of the countries in Europe). Even so,
countless legal norms do not transcend jurisdictional boundaries in that
fashion, and the norms that do cut across those boundaries are far from
ubiquitous. Their presence in many jurisdictions is accompanied by their
absence from other jurisdictions. Laws of nature and laws of logic are the
same throughout the universe, but the laws devised by governmental
of¬cials for the regulation of human behavior are not.
A renowned argument by the great legal philosopher H. L. A. Hart
may seem to tell against my claim that invariance qua unchangingness
and invariance qua pervasiveness are not characteristic of the substance
of any legal norms. Hart maintained that, if we are attentive to certain
elementary features of human beings and of the world in which they live,
we shall conclude that the mandates of every sustainable legal system
must include prohibitions on serious misconduct such as murder and
unprovoked assaults and arson (Hart 1961 , 187“98). A society, especially
a sizable society, would not last for more than the briefest span of time
if it were without such legal prohibitions. It would lack even minimal
cohesion. Hart was surely correct to emphasize this point. Yet, if mandates
outlawing the sundry types of serious misconduct are to be found in
every viable system of law, my disinclination to ascribe ubiquity and
immutability to the substance of legal norms may seem dubious.
I have written at length elsewhere on the argument by Hart that
has been laconically summarized above (Kramer 1999a, 262“307). For
the purposes of the present discussion, we can simply note something
of which Hart himself was well aware. Although legal prohibitions on
serious misconduct must indeed exist in any society that is to stand a
chance of enduring, the speci¬c forms which the prohibitions take can
vary signi¬cantly from society to society and from one historical period
to another within a single society. For example, the prohibitions can be
more inclusive or less inclusive in the extent to which they embrace people
within their protective ambit. In any liberal democracy, everyone alike is
safeguarded by the laws that proscribe serious wrongdoing. In societies
with systematically subordinated groups of people, by contrast, some or
all of the laws that forbid serious misdeeds may omit those people from
the compass of their protection. As Hart wrote: “These painful facts of
human history are enough to show that, though a society to be viable
90 Objectivity and the Rule of Law


must offer some of its members a system of [safeguards against serious
misdeeds], it need not, unfortunately, offer them to all” (Hart 1961 , 196,
emphasis in original).
For another of the many respects in which basic legal interdictions
can vary dramatically, a comparison between the Biblical conception of
rape and the modern Western conception is illuminating. According to
the Torah, a man who rapes an unbetrothed virgin is required to marry
the victim and to make a payment to her father (Deuteronomy 22:28“29;
Exodus 22:16). Thus, although there was a clear recognition in ancient
Israel that rape could not be condoned and left unregulated, the Biblical
angle on the problem and on the apposite remedies for dealing with it
was profoundly different from modern Western perspectives. In the eyes
of the ancient Israelites, the person primarily wronged by an act of rape
against an unbetrothed maiden was the father of the hapless victim. For
the recti¬cation of such an act, therefore, the suitable remedies lay in a
payment to the father and in a marriage ensuring that the victim of the
rape would not be doomed to spinsterhood (a condition in which she
would remain ¬nancially dependent on her father). Attitudes toward the
crime of rape in Western countries in the twenty-¬rst century are strik-
ingly different, of course. As a consequence, the remedies for particular
instances of that crime “ consisting chie¬‚y in lengthy terms of imprison-
ment and certainly not in marriages “ are strikingly different. Instead of
being aimed at upholding the pride and ¬nancial well-being of the fathers
of victims, the legal remedies for rape in any present-day liberal democ-
racy are aimed at vindicating the dignity and humanity of the victims
themselves (and at repairing rents in the fabric of a community that have
been brought about by the rapists™ violent ¬‚outing of societal values).
Hence, although we ¬nd prohibitions on rape both in ancient Israel and
in twenty-¬rst-century Western countries, the divergences between the
prohibitions are more arresting than the similarities between them. Quite
untenable is any suggestion that the proscription of rape is temporally
invariant.
Legal mandates outlawing major misconduct can vary in a number of
other ways as well. The range of the actions forbidden can be more expan-
sive or less expansive, for example, as can the range of the people on whom
penalties are levied when such actions are performed. (In most con-
temporary societies, the penalties are in¬‚icted solely on the individuals
Dimensions of Objectivity 91


who have engaged in forbidden conduct themselves. In some other soci-
eties or in other eras, the penalties have been extended to members of the
families of such individuals.) In short, Hart™s admirably sound argument
about the indispensability of legal curbs on disruptive wrongdoing does
not lend any support to the notion that some legal norms or some arrays
of legal norms are unchanging and omnipresent. To subscribe to such a
misguided notion, as Hart himself never did, is to overlook the multi-
fariousness of the aforementioned legal curbs over time and throughout
the world. Certain formal features are present whenever and wherever
law exists “ as will be recounted in the next chapter “ but the substance
of law is always malleable.


1.2.7.3. Objectivity qua Corrigibility

Some legal philosophers, such as Nicos Stavropoulos, have submitted that
the central dimension of objectivity for jurisprudential purposes is that
of corrigibility. According to this conception of objectivity, a domain of
enquiry is objective only if there is genuinely room for mistakes within it
(Raz 2001 , 198“99; Rosati 2004, 278“79). As Stavropoulos writes, “we shall
try to test for objectivity by investigating whether the relevant domain
is such that there is space for error.” He elaborates: “We should expect
that for a domain to be objective there should be some logical space
between how we understand or judge or perceive or believe things to be
and what discriminations we make among different objects or properties
in the domain, on the one hand, and what the case is, on the other”
(Stavropoulos 2005, 316, emphasis in original).
As should be evident, this conception of objectivity as corrigibility is
subsumable under one or more of the conceptions already expounded.
Most obviously, it is subsumable under this chapter™s subsection on objec-
tivity qua mind-independence. That subsection explains how the domain
of law is characterized by exactly the sort of “logical space” to which
Stavropoulos refers: the space between how things are thought to be and
how they actually are. Although the existential mind-independence of
general legal norms is only weak, the observational mind-independence
of every legal norm is strong. Thus, within any legal regime, the of¬cials
collectively as well as the of¬cials individually can be in error about the
contents and implications of legal norms.
92 Objectivity and the Rule of Law


Another subsection of this chapter under which Stavropoulos™s con-
ception of objectivity can be partly subsumed is that on determinate
correctness. As was observed there, a question to which there are no
incorrect answers is a question to which there is no determinately correct
answer. Consequently, insofar as there are determinately correct answers
to legal questions, the domain of law contains the space for error which
Stavropoulos perceives as the hallmark of objectivity. Now, given that
there are determinately correct answers to the large majority of the legal
questions that arise in any functional system of law, there will persistently
be ample room for errors within any such system. Law patently satis¬es
Stavropoulos™s criterion for objectivity.
One other portion of this chapter into which the conception of objec-
tivity as corrigibility can to some extent be absorbed is the subsection on
impartiality. As was remarked in that subsection, arbitrariness is intro-
duced whenever legal decision-making proceeds on the basis of factors
(such as prejudices and surmises and sel¬sh interests) that are generally
unconducive to the attainment of correct outcomes. Plainly, the sin-
gling out of certain factors as unconducive to the attainment of correct
outcomes is premised on the notion that some outcomes are incorrect.
Hence, much of my discussion of impartiality presupposes that the work-
ings of a legal system are objective in Stavropoulos™s sense.
In sum, the conception of objectivity as corrigibility has already been
well covered by this chapter. While the possibility of mistakes within some
discourse is indeed crucial for the objectivity of the discourse, there is no
need to treat that possibility as a dimension of objectivity that is distinct
from all the dimensions explored heretofore. Even if it is not precisely
equatable with any single aspect of objectivity that has been investigated
in one of the earlier subsections of this chapter, its nature and implications
have been captured cumulatively by those earlier subsections.


1.2.7.4. Objectivity qua Nonillusiveness

In ordinary exchanges and in philosophical disputation, objectivity is
very frequently taken to consist in nonillusiveness. An entirely illusive
thing is a ¬gment of the mind of anybody who seems to be perceiving
it. It does not exist at all outside the putative experience of it by some
person(s); it does not exist in the external world in any way, but exists
Dimensions of Objectivity 93


only within some of the conscious states of the aforementioned person(s).
If something that appears to exist externally is objective in the sense of
not being entirely illusive, then it is not a sheer ¬gment of somebody™s
imagination. It exists in the external world in some fashion, albeit perhaps
only as something that is disposed to elicit certain experiences. (Of course,
perfectly genuine mental phenomena such as headaches and fear and
anguish and elation are devoid of any existence in the external world.
Unlike those phenomena, an illusion appears to partake of such existence.)
Illusions need not be thoroughgoing. Sometimes what is illusory is
not the very existence of something, but its being endowed with some
property. Suppose for example that a line appears to somebody to be of
the same length as another line, when in fact their lengths are different.
What is illusive in such circumstances is not the existence of either of
the lines, but each one™s ostensible property of being equivalent in length
to the other. Still, the opposition between objectivity and illusiveness
is essentially the same in regard to partial illusions as in regard to full
illusions. An objective property is some feature that is actually present in
something that is itself real, whereas an illusory property is a feature which
appears to someone to be present in something but which in actuality is
not present therein.
Unquestionably, nonillusiveness is a central facet of objectivity.
Equally clearly, however, it is a facet that has been covered at a gen-
eral level by my subsection on objectivity qua mind-independence. Still,
the present context is a good juncture at which to re¬ne the account of
mind-independence by drawing a distinction that has been pertinently
underscored in the work of philosophers such as John McDowell: the
distinction between response-centered properties and illusory proper-
ties (McDowell 1985, 113“14). Though the properties in each of those two
categories are mind-dependent, the nature of the mind-dependence is
importantly divergent between the categories.
An illusory property is profoundly mind-dependent in the manner
speci¬ed above. That is, it exists only in the mind of the person who
undergoes the experience of perceiving it. It is not present at all in the
world outside that person™s psyche. Any appearance to the contrary “
however strong it may be “ is deceptive rather than veridical. When
somebody succumbs to that appearance and consequently believes that
the illusory property is real, he or she is straightforwardly mistaken.
94 Objectivity and the Rule of Law


Response-centered properties, such as redness and sourness, are quite
different. They are genuinely present in the things of which they appear
to be features, though they exist as the capacities or dispositions of those
things to evoke certain types of experiences in human beings (and some
nonhuman animals) who are endowed with normal perceptual faculties.
A belief in the reality of a response-centered property is correct rather than
mistaken (Fine 2001 , 26). For example, when someone with normal eye-
sight looks at an apple under good visual conditions and ascertains that it
is green, he or she is entirely correct in concluding that the skin of the apple
really is green. The greenness of the apple is not a ¬gment of the person™s
imagination with no existence outside his or her mind. On the contrary,
it is a fully genuine property of the apple™s skin; the microstructural com-
position of that skin re¬‚ects light in a manner that will educe sensations
or experiences of greenness in any human being who is possessed of nor-
mal visual faculties. In McDowell™s useful phrasing, the greenness of the
apple™s skin is “there to be experienced” (McDowell 1985, 114).
Insofar as a distinction between the objective and the subjective is
drawn to correlate with a distinction between real properties and illusory
properties or between veridical experiences and deceptive experiences,
response-centered properties such as redness and saltiness should clearly
be classi¬ed as objective. Such properties are real, and one™s experiences
of them are not deceptive. However, the demarcation between the objec-
tive and the subjective can of course also be drawn in other ways. One
way of elaborating that demarcation is to differentiate between (i) any
property whose nature can be fully speci¬ed without reference to certain
actual or potential experiences in human beings and (ii) any property
whose nature can only be fully speci¬ed by reference to certain actual or
potential experiences in human beings. Insofar as the objective/subjective
dichotomy is understood along these lines, response-centered properties
are to be classi¬ed as subjective. Although they are perfectly real rather
than illusive, and although they are mind-independent in some respects,
they are not mind-independent in the respect that is central to this latest
formulation of the objective/subjective distinction.
In what ways are response-centered properties mind-independent? At
¬rst blush, they may seem both existentially and observationally mind-
dependent. A somewhat fanciful thought-experiment, however, can
Dimensions of Objectivity 95


indicate otherwise. Suppose that, as a result of very widespread genetic
mutations over a generation or two, all or nearly all human beings in
eighty years will lack the ability to perceive redness. In such circum-
stances, that color will not have ceased to be instantiated. That is, we
should not think that roses and tomatoes and rubies will no longer be
red. Instead, the continuing redness of those things will no longer be
perceptible by normal human beings. As has been noted, the property of
redness exists because the microstructural constituents of various objects™
surfaces re¬‚ect light in ways that will evoke sensations of the color red in
people who are equipped with visual faculties that are currently normal.
If pervasive genetic mutations will signi¬cantly alter the visual abilities
that are normal for human beings, it will still be true that the microstruc-
tural constituents of various objects™ surfaces re¬‚ect light in ways that can
educe sensations of the color red in any people who are endowed with
visual abilities that are normal at present. Perhaps there will not be any
such people in the aftermath of the mutations; nevertheless, if there were
any such people, the objects™ surfaces under ordinary conditions would
elicit sensations of the color red in them. Because the surfaces retain the
capacity to elicit those sensations, they continue to be red. Though their
redness will have become imperceptible to all or most human beings, it
will still exist as such.
Numerous complications could be introduced into the foregoing
thought-experiment. For example, instead of resulting in an outright
loss of the ability to perceive redness, the genetic mutations might trans-
pose certain perceptual abilities. In eighty years, all people or nearly all
people might experience the color red when looking at things that would

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