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which they constitute is thus in¬nitesimal in its width and depth. A circle
de¬ned mathematically is a purely abstract entity rather than something
that can genuinely be instantiated in the material world. Hence, if Fuller™s
principles of legality were relevantly analogous to mathematical de¬ni-
tions, we would have to conclude that no legal systems exist or ever can
exist in the material world.
Obviously, when the term “circle” is used in ordinary discourse, it is
typically employed more loosely. Instead of denoting a purely abstract
entity that can never exist in a material form, it typically denotes a material
thing with features that are the material counterparts of the features of
the abstract entity. Any such thing partakes of roundness to a greater or
a lesser degree. However, this evident observation does not tell in favor
of Simmonds™s position at all. In the ¬rst place, Simmonds goes astray in
presuming that the material things correctly labeled as “circles” are circles
in the strict mathematical sense to a greater or a lesser extent. Material
entities are not purely abstract entities to any degree. Simmonds is making
essentially the same error that is made by someone who thinks of in¬nity
as a very large quantity or of in¬nitesimalness as a tiny quantity. There is
a difference of kind, rather than merely a difference of degree, between a
circle in the strict mathematical sense and a circle in the everyday sense.
Hence, if Fuller™s principles were an archetype as Simmonds suggests,
they would be specifying conditions that are different in kind from those
that obtain when any actual legal system exists. Fuller himself would have
been thoroughly bemused by such a notion.
Moreover, inquiries about the archetypal status of the principles of
legality are separable from the other question to which Simmonds assigns
such importance: the question whether the property of being a legal
regime is scalar or nonscalar. Let us here glance ¬rst at the property of
being a circle. When that property is understood in the everyday sense
rather than in the strict mathematical sense, we might ask whether it
is to be classi¬ed as scalar. Perhaps every object or drawing that meets
some vaguely speci¬able threshold of roundness is a circle in the everyday
sense, and perhaps objects or drawings which far exceed that threshold
are more clearly circles (instead of being circles to greater extents) than
are objects or drawings which only narrowly exceed the threshold. If so,
Elements of the Rule of Law 107


then the property of being a circle in the quotidian sense is a nonscalar
property; like the property of being a circle in the strict mathematical
sense, and unlike the property of clarity, it obtains in an all-or-nothing
fashion. Contrariwise, perhaps round objects and drawings are circles to
greater or lesser extents in proportion to the smoothness of their round
shapes. If so, then the property of being a circle in the quotidian sense is a
scalar property. Similar questions about the scalar/nonscalar divide can
be raised about the property of being a legal system, of course. Perhaps
every system of governance that satis¬es the Fullerian principles of legality
at or beyond some threshold level is a legal regime, and any systems that
greatly exceed the threshold level “ up to some unspeci¬ably high point “
are more clearly legal regimes (instead of being legal regimes to greater
degrees) than are any systems which only narrowly meet that level. In
that event, as both H. L. A. Hart and Ronald Dworkin have contended,
the property of being a legal regime is nonscalar (Hart 1983, 354“55;
Dworkin 1965, 676“78). Alternatively, perhaps a system of governance is
a legal system to a greater or a lesser extent in proportion to the measure of
its conformity with the Fullerian principles. In that case, as Fuller himself
believed, the property of being a legal regime is a scalar property (Fuller
1969, 122“23).
Nothing in the preceding paragraph is meant to imply that the ques-
tions therein about the scalar/nonscalar division are unanswerable. On
the contrary, there is a uniquely correct answer to each of those questions.
Although the property of circularity in the everyday sense is doubtless a
scalar property “ like roundness “ the property of being a circle in the
everyday sense is nonscalar. Notwithstanding that there are some bor-
derline cases of objects or drawings that are neither determinately circles
nor determinately not circles, nearly every object or drawing either is a
circle or is not a circle. What obtains as a matter of degree is the clarity
of the status of something as a circle in the everyday sense, rather than
that status itself. In a similar vein, the property of being a legal system is
nonscalar. Above an unspeci¬able threshold of conformity with Fuller™s
principles of legality, any system of governance amounts to a legal system.
To be sure, there can exist borderline cases of territories in which the rule
of law is neither determinately present nor determinately absent, and
there can also exist territories in which the rule of law is present in some
respects and absent in other respects. There arises a situation of the latter
108 Objectivity and the Rule of Law


sort (which may well also be a borderline situation of the former sort),
for example, when a system of governance partakes of norm-guided reg-
ularity in some of its operations while partaking of chaotic irregularity
in some of its other operations. These manifest possibilities are fully con-
sistent with the fact that the property of being a legal system is nonscalar.
Whenever that property is determinately present or absent, it is deter-
minately present or absent in an all-or-nothing fashion; we should insist
as much while readily allowing that the property of being a legal system
is sometimes neither determinately present nor determinately absent. In
short, what is scalar is not the status of a system of governance as a legal
regime, but the clarity or straightforwardness of that status.
Of course, the preceding paragraph has offered mainly assertions
rather than arguments. If it were important within the con¬nes of this
book to substantiate the conclusions advocated in that paragraph, then
arguments would plainly be needed. However, my purpose here has not
been to provide any full-blown justi¬cation for those conclusions. Rather,
one of the chief purposes has been to indicate that those conclusions are
consistent with the proposition that the Fullerian principles of legality are
an archetype on a par with the mathematical de¬nition of a circle. Also
consistent with that proposition about archetypes, naturally, are contrary
conclusions about the scalar/nonscalar dichotomy in application to the
property of being a circle (in an everyday sense) and in application to
the property of being a legal system. One of the key points here is that
disagreements over the scalar or nonscalar character of the property of
being a legal regime are orthogonal to disagreements over the nature of
Fuller™s principles as an archetype. Hence, even if Simmonds were correct
in characterizing those principles as archetypal, he would not yet have
gone any way toward establishing that the property of being a legal system
is a scalar property.
In fact, however, what is most objectionable about Simmonds™s dis-
cussion is his contention that the principles of legality are collectively an
archetype. With that contention, Simmonds misrepresents those princi-
ples and fails to heed Fuller™s own warnings (Fuller 1969, 41, 45) “ warn-
ings which Simmonds himself partly quotes (Simmonds 2004, 118 n27).
A modicum of re¬‚ection should reveal that the eight principles cannot
jointly be perfectly ful¬lled, even in an ideal world. Consider, for exam-
ple, the ¬rst and fourth principles: the requirement of generality and the
Elements of the Rule of Law 109


requirement of clarity. The very notion of perfect clarity is somewhat
obscure. Yet, insofar as we can make sense of that notion, we can dis-
cern that it is in evident tension with the notion of perfect generality. If
legal norms are perfectly general, they will be so dauntingly abstract as to
be quite unclear in their implications for any particular circumstances.
Substantial departures from perfect generality will be inevitable if the
principle of clarity is to be ful¬lled perfectly or even adequately. Patently
untenable, then, is any suggestion that Fuller™s principles collectively con-
stitute an archetype of perfect legality. Unlike the conditions speci¬ed in
the mathematical de¬nition of a circle, the conditions speci¬ed in the
principles of legality do not all coherently ¬t together when they are
understood as ideals that collectively form an archetype of perfection.
Thus, as we proceed to examine Fuller™s principles of legality, we
should reject both the view that those principles are archetypal and the
view that the property of being a legal system is scalar. In lieu of those mis-
conceptions, the best way of understanding the Fullerian principles has
already been indicated. Each principle lays down a necessary condition
for the existence of any legal system. That is, the condition encapsulated
in each of Fuller™s principles is satis¬ed at least up to some threshold level
whenever the rule of law prevails in a society. Above that level, up to some
considerably higher point, any further compliance with each principle
will enhance the clarity and robustness of the status of a legal system
as such but will not be indispensable for the very applicability of that
status.


2.1.1. Governance by General Norms

Perhaps the most obvious of the eight principles of legality is the ¬rst.
No system of governance can count as a regime of law unless it operates
through general norms, for those norms are its principal laws and are
also the sources of its other laws. There can hardly be law without laws.
Two contrasts are germane here. General norms are to be differenti-
ated from situation-speci¬c directives and also from mandates addressed
to particular individuals. That is, the generality of a legal norm pertains
both to the circumstances on which the norm bears and to the people
whose conduct it regulates (Hart 1961 , 20“22). The general norms of a
legal system “ as opposed to the situation-speci¬c directives which any
110 Objectivity and the Rule of Law


such system also comprises “ each apply to an array of cognate circum-
stances rather than only to one particular event or state of affairs. For
example, a law prohibiting murder applies to that general type of con-
duct rather than solely to one particular instance of the type. It applies
to each of the particular instances, of course, but to each of them as
an instance rather than as a free-standing occurrence that has not been
subsumed under any overarching standard. Most of the legal norms that
are general in this ¬rst sense (namely, in the sense of not being purely
situation-speci¬c) are also general in the second way; that is, most such
norms are each addressed to a general class of persons rather than only to
some particular individual. Many legal norms are each addressed to the
community as a whole. A law prohibiting murder, for example, typically
regulates the conduct of everyone alike. In sum, each of the general norms
of a legal system applies to a type of conduct rather than solely to some
particular instance of conduct, and most such norms are addressed to
general categories of people rather than to designated individuals.
Of course, to say that every possible legal system must operate through
general norms is scarcely to say that any such system can operate only with
such norms. Directives that are both situation-speci¬c and addressed to
particular persons will be indispensable in any legal regime, not least
for bringing the regime™s general norms to bear on particular problems.
Of¬cials charged with effectuating those general norms will be unable to
carry out their responsibilities unless they are authorized to issue orders
to particular persons relating to particular instances of conduct. All the
same, the essential role of individualized directives in the workings of
any legal system is perfectly compatible with the essential role of general
norms.
In what ways, then, is the role of general norms essential? Let us
ponder ¬rst their generality of application and then their generality of
address. The presence of norms that are general in their application “
that is, the fact that situation-speci¬c directives are not the exclusive or
principal means of regulating people™s conduct “ is crucial not only for
the rule of law but also for the sheer functionality of any system of gov-
ernance, at least in any society more sizable than a handful of families.
If the of¬cials in any regime were to endeavor to govern a society by
dealing with every situation in isolation from every other situation, then
both the society and the regime would be chaotically uncoordinated. The
Elements of the Rule of Law 111


ostensible system of governance would in fact be a lack of governance.
Only through the operativeness of general norms that relate cognate situ-
ations to one another, can a regime suitably coordinate its own activities
and the activities of ordinary citizens. Only through such norms, more-
over, can the rule of law prevail in a society. As has been stated, those
general norms are the principal laws of the regime that establishes them,
and are the sources of the regime™s other laws. Obviously, the rule of law
can never be realized without laws. Basic features of law, such as its regu-
larity and uniform applicability, would be altogether missing if a regime
relied solely on situation-speci¬c directives for the regulation of conduct.
Given that the rule of law is integrally bound up with the idea that we
are to be governed by laws and not by men (Tamanaha 2004, 122“26), it
would be fatally undermined in any setting in which no general norms
are operative. In such a setting, after all, a regime™s of¬cials would have to
reach case-by-case determinations in a sweepingly discretionary fashion.
They would be neither restricted nor guided by any norms that tran-
scend the respective contexts of their case-by-case proceedings. Such a
higgledy-piggledy arrangement would be antithetical to the rule of law
and would indeed be inconsistent with any minimally effective system of
governance.
Squarely unmistakable is the dependence of the rule of law on the
existence of norms that are general in their application. Maybe not quite
as obvious is the dependence of the rule of law on the existence of norms
that are general in their address. Fuller himself, at any rate, did not include
the generality of address within his ¬rst principle of legality (Fuller 1969,
47). Nevertheless, pace Fuller, the requirement of generality expounded
here does indeed encompass the generality of address. To be sure, not
every legally binding directive is addressed to a general class of persons.
As has already been remarked, many of the mandates issued within any
functional legal system are orders addressed to particular individuals
rather than to any general classes of persons. Still, having perceived the
indispensability of directives that relate only to particularly designated
persons, we should hardly infer that norms addressed to general classes
of persons are not likewise indispensable. In fact, the presence of such
norms “ like the presence of norms that are general in their application to
types of conduct “ is essential not only for the rule of law but also for any
tenable scheme of governance. If a regime sought to address a different set
112 Objectivity and the Rule of Law


of norms to every individual or even to every family, its operations would
be hopelessly unworkable (save perhaps in a minute and extremely prim-
itive society consisting of no more than a handful of families). In a society
with millions of people, the very task of formulating the multitudinous
different sets of norms would be wildly beyond the capacity of any cred-
ible scheme of governance. Even more ludicrously unmanageable would
be the task of administering the myriad packages of norms. To gauge the
permissibility or impermissibility of each person™s conduct, the of¬cials
responsible for policing would have to know the identity of everyone and
the contents of the individualized set of norms to which each person is
subject. In other words, even if we put aside the fact that any whole-
sale eschewal of the generality of address in the framing of a regime™s
norms would be bizarrely pointless and perverse, such an approach to
law-creation and law-administration would be utterly infeasible. Norms
general in their address as well as in their application will be operative
whenever any institutions of governance are operative.
Even more plainly, such norms are unforgoable elements in the rule of
law. Any blanket eschewal of the generality of address in the formulating
of a regime™s norms would scotch many central characteristics of the rule
of law. Indeed, the same fundamental properties of law that would be
thwarted if a regime were to do without any norms that are general in
their application “ properties such as regularity and uniformity “ would
likewise be thwarted if a regime were to do without any norms that
are general in their address. If the sets of norms addressed to different
individuals are genuinely divergent, then the normative consequences of
similar actions performed by different people will vary markedly. Just as
the of¬cials in charge of administering a regime™s norms will be unable to
carry out their responsibilities in a minimally informed and coordinated
and ef¬cacious fashion, so too the members of the public in any sizable
society will be cripplingly unable to form any con¬dent expectations on
the basis of which they can interact with one another. Outside narrow
circles of families and close friends, no one will have an informed sense
of what anyone else is required or permitted or empowered to do. This
preposterous situation would be antithetical to the rule of law, which “
in its malign embodiments as well as its benign embodiments “ enables
each person to gain a reliable sense of what other people are required and
permitted and authorized to do.
Elements of the Rule of Law 113


In sum, although Fuller was certainly correct in thinking that the
generality of address for legal norms is often required by considerations of
fairness, he stumbled in thinking that such generality is not also a feature
inherent in the rule of law. Admittedly, as has been readily acknowledged
herein, many legal directives in any system of law do not partake of
such generality; no legal system can operate without orders addressed to
particular persons. At the same time, countless other legal mandates in
any system of law will indeed be addressed to general classes of persons.
No legal regime would be functional in the absence of such mandates
and other legal norms that are general in their address.


2.1.2. Public Ascertainability

No legal system can guide and direct human behavior if the contents of its
norms remain wholly undisclosed to the people within the jurisdiction
of the system. As an operative mechanism for regulating human conduct,
rather than as a collection of abstract formulations with no effects in the
world, a regime of law has to render its mandates and other norms ascer-
tainable by the people to whose conduct they apply. By some means “
often by a variety of means “ a legal system must comply with Fuller™s sec-
ond principle, the principle of promulgation. In the complete absence of
such compliance, an ostensible legal system would be thoroughly inef¬ca-
cious in channeling people™s behavior. The existence of the system would
make no difference to anyone™s reasoning about appropriate courses of
conduct. Indeed, so long as we construe the principle of promulgation
expansively, we should recognize that it speci¬es a necessary condition
not only for the rule of law but also for any viable mode of governance.
Within the requirement articulated by the principle of promulgation,
there is ample room for diversity in the techniques by which the norms
of legal systems are made ascertainable. At an extreme, which I have dis-
cussed elsewhere (Kramer 1999a, 45“48), the promulgation of a regime™s
norms might occur solely through the concrete decisions whereby the
norms are brought to bear on people™s conduct. In any regime of law,
the of¬cials will have to resolve disputes and penalize wrongdoing and
gauge people™s legal positions in other respects. Given that their regime is
a regime of law, the of¬cials will typically be carrying out those functions
by reference to general norms that pertain to people™s conduct. In an
114 Objectivity and the Rule of Law


ordinary setting, all or most of those norms will be directly ascertainable
by the members of the public to whom they apply; although the mem-
bers of the public might not be capable of taking advantage of their direct
access to the contents of the prevailing norms without assistance from
legal experts, and although some members of the public might seldom
or never seek to avail themselves of that access, they will retain it and can
resort to it if they so wish. In an extreme setting, however, there would
be no such direct access. Instead, the only manifestations of the contents
of the prevailing laws would be the decisions reached by adjudicative and
administrative of¬cials as they give effect to those laws. If the decisions
were to be suf¬ciently numerous and regularized, the patterns of those
decisions would serve as the indicators through which ordinary citizens
could become indirectly apprised of the general norms under which the
legal consequences of their conduct are assessed. Of¬cials™ determinations
in such circumstances would not be random events devoid of meanings.
On the contrary, they would be the intelligibly patterned expressions of
the legal mandates and other legal norms to which the people in a juris-
diction are subject. Moreover, insofar as the of¬cials™ judgments and their
rationales would have precedential force, those judgments and rationales
themselves would constitute directly ascertainable legal norms.
Obviously, the outcome-centered mode of promulgation just dis-
cussed is at an extreme of austerity. It will not be tenable as a method of
promulgation unless the decisions explicitly reached by of¬cials are suf-
¬ciently plentiful and regularized to create clearly intelligible patterns. If
the decisions are few and far between, or if a number of them are aber-
rant, they will not be adequately reliable and informative as conduits that
provide indirect access to the norms that lie behind them. Nor will an
austerely outcome-focused method of promulgation be sustainable if the
underlying norms quite frequently change. When the general norms of
a legal system are directly ascertainable by the people who are subject
to them, a reasonably substantial degree of changeableness is compatible
with the chief function of law in guiding and channeling people™s conduct;
by contrast, when those general norms are only indirectly ascertainable
through concrete applications of them, any signi¬cant degree of change-
ableness will frustrate the efforts of people to infer the contents of the
norms from the applications. Because gaining knowledge of the contents
of those norms is a far more dif¬cult task when one™s access to them is
Elements of the Rule of Law 115


indirect rather than direct, the epistemically disruptive effects of any
transformations of the norms will be greatly accentuated. Note, further-
more, that the indirect access is opened up only if the of¬cials™ law-
applying decisions are themselves publicly ascertainable. If those deci-
sions were somehow to remain undisclosed, then citizens would have
no way of becoming acquainted with the contents of the laws to which
they are subject “ in which case those putative laws would not ¬gure in
anyone™s reasoning about appropriate courses of conduct.
Because of the considerations adumbrated in the preceding para-
graph, an austerely outcome-focused method of promulgation is far from
optimal in any but the most primitive legal system. It is precarious at best
as a technique for conveying to citizens the terms of the legal norms that
regulate their behavior; in a moderately dynamic regime of law, it will very
likely prove to be almost entirely otiose. Still, the austere mode of pro-
mulgation should not be dismissed altogether as a hopelessly problematic
approach that would never be adopted to any degree in a functional legal
system. After all, in some respects, it is distinctively the approach of the
common law “ though, of course, major common-law decisions and their
patterns are themselves very often treated as general norms rather than
as mere indicators of such norms.
In common-law jurisdictions as in other jurisdictions, the austerely
outcome-focused method of promulgation is by no means the lone way
of conveying to citizens the contents of the legal norms that govern their
interaction. Statutes and administrative regulations and constitutional
provisions and indeed judicial doctrines are all directly ascertainable by
members of the public. Though speci¬c interpretations of such laws must
await the concrete applications of them by judges and various adminis-
trative of¬cials, their general terms (which are sometimes very detailed)
are accessible in advance of those applications. In what does their direct
ascertainability consist? Clearly not required is that each citizen is actu-
ally familiar with the terms of those laws. Most people at any given time
are ignorant of the vast majority of the legal norms that bear on their
behavior, and even legal experts are individually ignorant of many such
norms. If the actual acquaintance of citizens with the substance of each
of the prevailing legal norms were a necessary condition for the existence
of a legal system, then no such system would ever exist. In fact, of course,
the principle of promulgation does not envisage such actual acquaintance
116 Objectivity and the Rule of Law


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