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currently lead any normal person to experience the color blue, and they
might experience the color blue when looking at things that would cur-
rently lead any normal person to experience the color red. Were this
book an exploration of epistemology or metaphysics or the philosophy
of mind, we would be well advised to ponder such complications. For
the purposes of the present volume, however, the discussion in the pre-
ceding paragraph is enough. What that paragraph suf¬ces to indicate is
that, although response-centered properties are mind-dependent in one
important respect, they are mind-independent in some other impor-
tant respects. A response-centered property is mind-dependent in the
96 Objectivity and the Rule of Law


sense that its nature cannot be fully speci¬ed without reference to human
beings™ actual or potential experiences, but it is mind-independent in the
respect highlighted by my scenario of the genetic mutations. That is, it
can continue to exist as such even if no human being is any longer capable
of perceiving it or its effects.
This discussion should close with a disclaimer. Some philosophers
have argued that moral properties “ such as rightness and wrongness
and legitimacy and obligatoriness “ can be illuminatingly analogized to
response-centered properties (McDowell 1985; Pettit 2001 ; Wiggins 1998,
106“08). No such view is favored here. On the contrary, any assimilation
of moral and other normative properties to response-centered proper-
ties is fraught with insuperable dif¬culties.19 Readers should certainly not
infer that my terse remarks on response-centered properties have aimed
to suggest an af¬nity between such properties and the main features of
law. Rather, those remarks have been a short digression for the purpose
of drawing attention to some involutions in the conception of objectivity
as mind-independence. Although the distinctions delineated in my main
subsection on objectivity qua mind-independence are more important
for an understanding of law than is the distinction between illusory prop-
erties and response-centered properties, a grasp of the latter distinction
is essential for a full understanding of the phenomenon of objectivity.
Not only does that phenomenon comprise multiple dimensions, but in
addition each dimension is internally complex.

1.2.7.5. Objectivity qua Susceptibility to Reasons

Some major philosophers have contended that the de¬ning characteris-
tic of objectivity is that of susceptibility to reasons. If the claims asserted
and positions taken within some domain are susceptible to reasons “ that
is, if they are open to alteration through rational persuasion rather than
only through subrational manipulation “ then the domain in question
partakes of objectivity. A view along these lines has been articulated by
David Wiggins, among others. He writes that the objectivity of a ¬eld
of enquiry consists in “the existence of publicly accepted and rationally

19 On some of the dif¬culties, see Blackburn 1993, 159“62; Sosa 2001 . In the third chapter of my
book-in-progress Against Meta-Ethics: Moral Realism as a Moral Doctrine, I have written at
length on this matter.
Dimensions of Objectivity 97


criticizable standards of argument, or of ratiocination towards truth”
(Wiggins 1998, 101). Gerald Postema has given voice to a similar outlook
on the matter: “Objectivity makes possible, or presupposes, that expres-
sions not only can coordinate or con¬‚ict, but also can be in agreement or
disagreement, and that this agreement or disagreement can be pursued,
articulated, discussed, deliberated about in virtue of genuine joinder of
issue on the matter in question.” Postema adds: “Where objectivity resides
it is reasonable to hope that reasoning can move subjects to agreement. By
the same token, it is an important mark of objectivity that consideration
of reasons for judgments in an objective domain can move subjects from
agreement to disagreement” (Postema 2001 , 108).
The epistemic dimension of objectivity championed in these quota-
tions (and in similar pronouncements from a number of other philoso-
phers) is obviously central to a wide range of human activities and insti-
tutions. It is especially prominent in legal contexts in Western liberal
democracies, for the legal systems of those countries almost always involve
high levels of re¬‚ective argumentation. Such argumentation proceeds
through the deliberations and exchanges “ the public practical reasoning “
which many philosophers have in mind when they write about objectivity
as susceptibility to reasons. Along with universities, legal-governmental
institutions are the paramount arena within which that aspect of objec-
tivity is pursued and realized.
Despite the manifest importance of this conception of objectivity for
an understanding of law, this chapter does not need to include a separate
exposition of it. Though the idea of susceptibility to reasons is not fully
captured by any single conception of objectivity that has been explicated
hitherto, it has been covered cumulatively in my two main subsections on
epistemic dimensions of objectivity: the subsections on transindividual
discernibility and impartiality. As was remarked in my discussion of epis-
temic objectivity as transindividual discernibility, such objectivity exists
not only when there is already a consensus on some matter(s) but also
when there is agreement on the methods or pathways by which a not-yet-
existent consensus can eventually be forged. Those methods or pathways
can be highly specialized techniques of investigation in advanced sci-
ences or in other domains of enquiry, but they can likewise be more
general channels and touchstones for public deliberations. Public practi-
cal reasoning of the sort envisaged by Postema will be a nonstarter unless
98 Objectivity and the Rule of Law


people converge in implicitly or explicitly accepting various standards
for their proceedings “ standards that differentiate between relevant and
irrelevant considerations or between suf¬cient evidence and inconclu-
sive evidence or between cogent lines of argument and unpersuasive
lines of argument, for example. Of course, such standards are themselves
open to modi¬cation and ampli¬cation as people deliberate. Moreover,
except in specialized ¬elds of enquiry (including specialized areas of legal
interpretation), there will very seldom be unanimity or near-unanimity
on procedural standards. Public practical reasoning is in part an array
of debates about its own nature. Still, even in free-wheeling disputation
concerning broad matters of public policy and legal principles, the upshot
will be chaotic frustration if there is not a suf¬cient degree of convergence
among people on procedural benchmarks and substantive tenets. Ratio-
nal exchanges cannot unfold in even a minimally rewarding fashion as
rational exchanges if they are excessively unfocused. In short, objectivity
qua susceptibility to reasons is crucially dependent on objectivity qua
transindividual discernibility.
However, as Postema observes, susceptibility to reasons is not only
about convergence. In circumstances (such as those of the ancient
Egyptian wise men) where transindividual discernibility stems from the
sharing of illusions or prejudices, reasoned persuasion should be a vehi-
cle for overturning consensuses rather than for promoting or consolidat-
ing them. Even in circumstances in which the unanimity of enquirers is
based partly on correct insights but also partly on errors or bias or igno-
rance, the role of rational deliberation should be at least as disruptive of
received opinions as con¬rmatory of them. Thus, although objectivity
qua susceptibility to reasons is dependent on objectivity qua transindi-
vidual discernibility, the former goes beyond the latter. Any thorough
realization of the ideal of susceptibility-to-reasons must involve not only
transindividual discernibility but also impartiality (in the expansive sense
expounded by this chapter). Under any such thorough realization, that is,
the considerations that in¬‚uence people™s judgments are not to be ersatz
reasons grounded in prejudices or ignorance or panic or venality. All
such factors foster arbitrariness in decision-making, as they lead people
away from reliable processes of enquiry that conduce to the discovery of
the truth about this or that matter. Even when the outcomes of arbitrary
Dimensions of Objectivity 99


decisional procedures are fortuitously correct, they will not have been
reached for the right reasons. Thus, in any domain in which suscepti-
bility to reasons is both an actuality and a desideratum to be pursued,
impartiality is an ideal for which people should strive. The attainment
of that ideal can potently contribute to the formation of consensuses,
by helping to eliminate disaccord that has arisen from the sway of non-
truth-conducive factors such as prejudices and ignorance; but it can also
disrupt the existing consentaneity on any particular issue by helping to
reveal that people have concurred with one another because of shared
illusions or biases rather than because of shared insights.
In sum, given the breadth of the ideal of impartiality as recoun-
ted by this chapter, objectivity-qua-transindividual-discernibility and
objectivity-qua-impartiality together constitute objectivity-qua-suscep-
tibility-to-reasons. Although a vital element of the objectivity of any
discourse is the extent to which the participants therein can undertake
reasoned exchanges that affect the formation of their views, that element
is not in need of separate treatment within this chapter. On the one
hand, rational deliberations and remonstrations are of huge importance
in legal contexts. Public practical reasoning is the lifeblood of the law, in
liberal democracies and to some degree in any country with a functional
legal system. On the other hand, the ingredients of public practical rea-
soning can best be understood within the theoretical framework which
this chapter has already developed. An additional subsection or category
would be super¬‚uous.
Much the same can be said about a very closely related conception of
epistemic objectivity. Brian Leiter, among other philosophers, has sug-
gested that the epistemic objectivity of a ¬eld of enquiry consists in the
cognitive reliability of the procedures and mechanisms by which the
participants in the ¬eld form their beliefs about the objects of their inves-
tigations (Leiter 2001 , 1). Central to such reliability is the absence or
minimization of distortive in¬‚uences such as narrow self-interest and
´
bigotry and uninformed whims (Raz 2001 , 195“96; Svavarsdottir 2001 ,
153“54). While Leiter is clearly correct in attaching great importance to
this conception of objectivity, my account of impartiality encompasses it
and indeed is largely equatable with it. Hence, there is no need here for
a separate exposition of objectivity qua cognitive reliability.
100 Objectivity and the Rule of Law


1.3. A Pithy Conclusion

As should be evident, the six chief dimensions of objectivity that have been
probed in this chapter are characteristic of legal norms or legal systems,
though in differing ways. At least one aspect of objectivity, the strong
observational mind-independence of legal norms, is not a scalar prop-
erty. That is, it applies in an all-or-nothing fashion rather than in varying
degrees. No legal norm™s observational mind-independence is stronger
than that of any other such norm; the observational mind-independence
of every legal norm is strong tout court. Moreover, the strong observa-
tional mind-independence obtains willy-nilly rather than as a feature
that has to be sought. Other facets of objectivity, such as impartial-
ity and transindividual discernibility, are scalar properties. Nonetheless,
although those other facets of objectivity are characteristic of the work-
ings of legal systems only to varying extents, each of them is characteristic
of those workings in every legal system to quite a substantial degree. As
we shall see in my next two chapters, no legal system can exist as such if
it does not partake of every dimension of objectivity (apart from those
dimensions that have been set aside in this chapter as plainly inapplicable
to the substance of law).
To say that each of the scalar aspects of objectivity will be present in
every legal system is hardly to say that those aspects arise automatically or
magically. They, like the existence and functionality of a legal regime itself,
can be achieved only through deliberate human efforts aimed at their real-
ization. Moreover, insofar as each scalar dimension of objectivity is an
ideal, it is something that ought to be pursued. In a benign legal system,
each of those scalar dimensions is to be pursued because each is valuable
in its own right and likewise because each of them contributes indispens-
ably to the attainment of the desiderata that can be secured through the
existence and ¬‚ourishing of a regime of law. Although objectivity in one
of its facets is a property that obtains whether or not anyone consciously
tries to bring it about, it is also “ in its other facets “ a good for which
legal-governmental of¬cials should strive.
CHAPTER


2
Elements of the Rule of Law




Chapter 1 , in its subsection on objectivity qua invariance, has contended
that we cannot correctly ascribe either unchangingness or ubiquity to the
substance of law. As was remarked at the end of that subsection, however,
the formal features of law are quite different from the substance. Certain
formal features are present whenever and wherever law exists. No legal
system can operate without those essential attributes, regardless of the
time or the place.
Even in connection with the formal side of law, nevertheless, any
ascription of unchangingness and ubiquity would be more misleading
than illuminating. One of the salient themes of this chapter is that,
although the fundamental characteristics of the rule of law are always
present when a functional legal system exists, their substantive signi¬-
cance can vary considerably. On the one hand, those fundamental charac-
teristics are content-independent in that they structure every legal regime
regardless of the benignity or malignity of its norms. A legal system as
a legal system partakes of those characteristics, whether the contents of

101
102 Objectivity and the Rule of Law


its laws and the purposes pursued by its of¬cials are commendable or
deplorable. On the other hand, the substantive import of the essential
properties of law is hugely affected by the substance of each legal system
in which they are instantiated. Although those properties do not have
any inherent moral bearings, they acquire moral bearings from the char-
acter of any regime in which they exist. Accordingly, the rule of law “
which is constituted by those essential properties “ is itself a divided phe-
nomenon. As the set of conditions that obtain whenever any legal system
exists and operates, the rule of law is per se a morally neutral state of
affairs. Especially in any sizable society, the rule of law is indispensable
for the preservation of public order and the coordination of people™s
activities and the securing of individuals™ liberties; but it is likewise indis-
pensable for a government™s effective perpetration of large-scale projects
of evil over lengthy periods (Kramer 1999a). It therefore lacks any intrin-
sic moral standing. All the same, when the rule of law is operative within
a benign regime, its moral value goes beyond lending itself to worthy
uses. It does indeed promote the attainment of worthy ends by enabling
governmental of¬cials and private citizens to pursue and realize such
ends, but, within a benign regime, it also does more. Instead of merely
being instrumentally valuable, it furthermore becomes expressive of the
very ideals which it helps to foster. Its basic features take on the moral
estimableness of those ideals, for the sustainment of the rule of law in
such circumstances is a deliberate manifestation of a society™s adherence
to liberal-democratic values.
We shall, then, be encountering the rule of law in two principal incar-
nations (Craig 1997; Summers 1993; Tamanaha 2004, 91 “113). Firstly, as a
general juristic phenomenon, it amounts to nothing more and nothing
less than the fundamental conditions that have to be satis¬ed for the exis-
tence of any legal system. Secondly, whenever that juristic phenomenon
obtains speci¬cally in liberal-democratic societies “ which exhibit rich
diversity among themselves in their detailed institutions and practices “
it is a morally cherishable expression of commitments to the dignity and
equality of individuals. Yet, because the rule of law is a morally pre-
cious desideratum in some settings and not in others, any attribution of
invariance to its key features is prone to mislead. Those features are indeed
invariant in that every legal system is characterized by them, but the roles
which they play can diverge in major respects from one legal regime to
Elements of the Rule of Law 103


another. We need to keep this point clearly in mind as we endeavor to
grasp the complicated relationships between objectivity and the rule of
law. When seeking to fathom that set of relationships, we shall have to
remain alert not only to the multiplicity of the dimensions of objectivity
but also to the pregnant division within the idea of the rule of law. Because
the essential attributes of the rule of law are protean in their substantive
moral-political bearings, the connections between those attributes and
the sundry facets of objectivity are likewise importantly variable.



2.1. Of the Essence of Law

This section™s discussion of the rule of law as a general juristic phe-
nomenon “ in abstraction from the moral-political hues of particular
regimes “ will draw quite heavily on Lon Fuller™s famous exposition of
the central elements in the rule of law. Fuller, an American legal theorist,
delineated what he styled as the “eight principles of legality” (Fuller 1969,
33“94). With those eight principles, some of which overlap considerably,
he distilled the cardinal features that are present whenever a legal system
exists. If at least one of his principles is largely or wholly unful¬lled within
some society, then the society in question is devoid of any legal system.
While this section will follow the general contours of Fuller™s theo-
retical framework, it will depart from his more textured analyses at a
number of junctures. His elaboration of the eight principles of legality
is a permanently valuable contribution to legal philosophy, but some of
his arguments in support or explication of his principles are confused or
otherwise inadequate. His most far-reaching error lay in his belief that
his singling out of the fundamental characteristics of law was somehow
at odds with legal positivism™s insistence on the separability of law and
morality. Fuller contended that his eight principles constitute the “inner
morality of law” and that they therefore establish an integral connection
between the legal domain and the moral domain. I have elsewhere con-
tested at length his efforts to substantiate his antipositivist conclusions
(Kramer 1999a, 37“77). We need not concern ourselves here with the
debates over the soundness of legal positivism. We can instead bene¬t
from Fuller™s re¬‚ections in two ways, which correspond to the two ver-
sions of the rule of law. First, although some of his lines of argument are
104 Objectivity and the Rule of Law


muddled or lacking in rigor, his overall distillation of the essential prop-
erties of law is an admirable achievement. With an array of modi¬cations
in matters of detail, his account of the principles of legality will pro-
vide the structure for my own exposition of the rule of law as a general
phenomenon. Second, notwithstanding that Fuller™s insistence on the
inherently moral character of law™s essential features was misconceived,
his exploration of the ties between law and morality will often inform
my account of the rule of law as a liberal-democratic ideal. As I have
suggested elsewhere (Kramer 1999a, 62), his ruminations on the inner
morality of law are frequently astute and illuminating if they are taken
to be focused speci¬cally on the import of law within liberal-democratic
societies. This chapter will construe those ruminations in precisely that
restrictive fashion. It will thus render Fuller™s theory a valuable source of
insights not only for an investigation of the rule of law as a general mode of
governance, but also for an investigation of the rule of law as a moral ideal.
Let us proceed, then, to ponder Fuller™s eight precepts of legality.
Under those precepts, a system of governance quali¬es as a legal regime
only if

1. it operates through general norms;
2. its norms are promulgated to the people whose conduct is to be
authoritatively assessed by reference to them;
3. its norms are prospective rather than retrospective;
4. the authoritative formulations of its norms are understandable
(at least by people with juristic expertise) rather than opaquely
unintelligible;
5. its norms are logically consistent with one another, and the obligations
imposed by those norms can be jointly ful¬lled;
6. its norms do not require things that are starkly beyond the capabilities
of the people who are subject to the norms;
7. the contents of its norms, instead of being transformed sweepingly
and very frequently, remain mostly unchanged for periods of time
long enough to induce familiarity; and
8. its norms are generally effectuated in accordance with what they pre-
scribe, so that the formulations of the norms (the laws on the books)
are congruent with the ways in which they are implemented (the laws
in practice).
Elements of the Rule of Law 105


Before we probe each of these principles of legality in greater depth, a
caveat should be entered. Each principle articulates a condition that must
be substantially satis¬ed within a legal system, rather than a condition
that must be invariably or comprehensively satis¬ed. In no legal system
is each of the eight principles ever perfectly ful¬lled. Perfect compliance
with each of them is a will-o™-the-wisp and is in any event unnecessary for
the existence of a legal regime. Although conformity with the precepts of
legality is essential for the existence of any such regime, the conformity
only needs to meet or exceed a threshold level; that threshold level for
each of the precepts is quite high, but it falls some way short of perfection.
(Such a threshold level, incidentally, cannot be speci¬ed precisely. Any
attempt to offer a precise speci¬cation, for legal systems generally or for
some particular legal system, would run afoul of the problem of vagueness
that was broached at a couple of junctures in Chapter 1 .)
In short, the existence of a legal system presupposes that the satisfac-
tion of each Fullerian principle of legality is not below some threshold
level, but it only contingently involves the satisfaction of any of the Fulle-
rian principles above that level. Every vibrant legal system will conform
to those principles well above the threshold point for each of them, but
the heightened degree of conformity is a matter of the system™s vibrancy
rather than of its very existence as a regime of law. Such a degree of con-
formity will render especially clear the status of a system of governance
as a legal system, but that status can obtain (albeit less clearly) even when
a regime™s conformity is at or only slightly above the threshold level.
Some commentators such as Nigel Simmonds, disregarding Fuller™s
own remarks to the contrary, have suggested that the Fullerian precepts
of legality collectively form an archetype to which any actual legal system
approximates more or less closely. Simmonds maintains that each such
legal system will approach that archetype of perfection to a greater or a
lesser extent, just as a disk or a drawing of a round curve will approximate
to the conditions speci¬ed by the mathematical de¬nition of a circle
(Simmonds 2004, 118“19). In his view, legal systems are legal systems to
varying degrees, just as disks or drawings of round curves are circles to
varying degrees.
One should eschew Simmonds™s view of the matter, for it stems from
a simplistic understanding of mathematical de¬nitions and a distortive
understanding of the Fullerian principles of legality. When a circle is
de¬ned mathematically as a curve delimited by the complete set of points
106 Objectivity and the Rule of Law


equidistant from a common point, nothing in the material world is a cir-
cle at all. Mathematical points are each in¬nitesimal, and any line or curve

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