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on any signi¬cant scale. What that principle requires is simply that such
acquaintance can be gained by any member of the public who desires it.
Laws must be ascertainable, even though most people very seldom devote
much time or energy to ascertaining them.
Devices for making the contents of laws accessible to citizens vary
from one legal system to another, and also vary within any single legal
system over time. Of greatest importance, in any legal system beyond
the tiniest and most primitive, is the presentation of laws in authorita-
tive written formulations. Those formulations, which can be available
not only in traditional publications (and on stone tablets) but also more
recently in electronic repositories, are the principal objects of attention
for most people who endeavor to apprise themselves of the legal conse-
quences that attach to various courses of conduct. Whether such people
study the authoritative formulations directly or learn of their contents
through intermediate expositions, the existence of those written formula-
tions is what enables each person to acquire knowledge of the law™s general
demands and permissions and authorizations. It is therefore what enables
the law to affect everyone™s practical reasoning. It is also what enables legal
of¬cials themselves to become and remain apprised of the manifold laws
which they are responsible for administering. In any society beyond the
tiniest and most primitive, the existence of authoritative written formu-
lations is indispensable for the functionality of a legal system. (Of course,
what has just been said does not imply that every law in an advanced
legal system will be associated with an authoritative written formula-
tion. As jurisprudential philosophers have long recognized, some laws
in virtually any legal system are not encapsulated in canonical written
renderings. Examples in the English-speaking part of the world include
some customary norms with the status of laws and some common-law
rules. The immanence of customary norms in people™s activities is itself
a suitable means of promulgation that offsets the absence of canonical
written expressions, and the variations among judges™ formulations of
some common-law rules are unconfusingly minor in application to most
circumstances. Moreover, those customary norms and common-law
rules exist alongside many other laws for which there are authoritative
written formulations. Hence, when one recognizes the existence of some
laws that are not covered by such formulations, one is scarcely thereby
retreating from the view that canonical written statements of legal norms
Elements of the Rule of Law 117


are generally crucial for a regime™s compliance with the principle of
promulgation.)
My terse reference in the preceding paragraph to intermediate expo-
sitions of the contents of laws should alert us to another crucial element
in any effective ful¬llment of the principle of promulgation: the presence
of legal experts in a society. As sources of advice and assistance, specialists
in sundry areas of a society™s law help to ensure that the authoritative for-
mulations of legal norms are meaningfully accessible. Were citizens left to
their own devices in discerning the contents of the laws that are applicable
to their doings, the practical signi¬cance of the ascertainability of those
laws would be virtually nil for many people. Especially in an advanced
legal system, but even in quite a crude legal system, the availability of
advice and assistance from lawyers (and other legal experts) is something
without which the system™s norms would remain largely opaque. Chap-
ter 1 ™s discussion of impartiality touched upon the vital role of lawyers in
drawing the attention of adjudicators and administrators to the sundry
relevant details of any matter on which some authoritative decision is to
be rendered. Here we see that lawyers are central to the operations of a
legal system at earlier stages as well. They are the vehicles through which
the complicated norms of such a system can become familiar to citizens
and can thus become live factors in the citizens™ practical reasoning.
Any number of more detailed measures for the promulgation of legal
norms may be essential in some societies and not in others. At a time
before the authoritative written formulations of such norms became read-
ily available in electronic repositories, the widespread distribution of texts
containing those formulations was indispensable for the public ascertain-
ability of the norms. In the present era, when virtually all legal experts and
many ordinary citizens in Western liberal democracies enjoy electronic
access to a huge variety of legal materials, the distribution of printed
texts containing those materials is plainly of less importance. Neverthe-
less, even in the Western liberal democracies, there are still some people
who are unable to afford the costs of electronic access to legal materials.
In connection with those people, the availability of printed texts is still
crucial for the satisfaction of the principle of promulgation.
In much of the world beyond the Western liberal democracies, many
people have little or no electronic access to authoritative formulations
of the laws of their societies. In some non-Western countries, indeed,
118 Objectivity and the Rule of Law


illiteracy is rampant. (Even in the Western liberal democracies, illiteracy
is quite a pressing problem.) For people who cannot read, neither elec-
tronic repositories of legal materials nor printed texts will be of direct
value. These dif¬culties would seldom be greatly alleviated through the
production of recordings in which the authoritative formulations of legal
norms would be read aloud. Even if such recordings were to be provided
free of charge to destitute people who have never attained literacy, very
slim indeed (in most cases) is the likelihood that those people could
absorb and retain much of what is being recited. Such people will have to
rely almost entirely on the advice and assistance of more knowledgeable
parties, including legal of¬cials. Given that they will almost certainly not
be able to purchase the advice and assistance out of their own meager
funds, some charitable or governmental arrangements for the delivery of
legal services will typically be necessary.
At any rate, as has been emphasized, what is essential for the existence
of a legal system is not the perfect ful¬llment of the principle of pro-
mulgation (or of any other Fullerian principle); what is essential, rather,
is the adequate ful¬llment of that principle. Even when we take account
of the fact that the principle of promulgation requires only ascertain-
ability rather than actual ascertainment, we should recognize that lim-
ited departures from perfection will be far from fatal. A legal system can
straightforwardly exist even if not all of its laws are ascertainable by every-
one. A small number of its laws might be inaccessible to most people,
and virtually all of its laws might be inaccessible to people who are too
impoverished and ignorant and socially isolated to gain any knowledge
of them. Deviations of these sorts from the principle of promulgation
are fully compatible with the robust existence of a legal system as such,
and indeed they occur in every actual legal system. A regime of law can
perform its central guiding role with ample ef¬cacy even though some
of its demands and authorizations may be unknowable (and not merely
unknown) by some people within its jurisdiction.


2.1.3. Prospectivity

The idea of a legal system without any prospective norms is as bewilder-
ingly absurd as the idea of a legal system without any general norms or
without any means of promulgating its laws. Compliance with Fuller™s
Elements of the Rule of Law 119


third principle of legality is essential not just for the ef¬cient functioning
of a legal regime but also for the very existence of such a regime. If all
the ostensible laws in some society were retroactive, then at any given
juncture there would not yet be any laws that determine the legal con-
sequences of conduct undertaken at that juncture. Such laws would not
materialize until later, if at all. Those putative laws, whenever they might
eventually appear, would be wholly inef¬cacious in guiding the conduct
of people at the time to which the putative laws pertain. An ersatz legal
system operating entirely through such pseudo-laws would not be a legal
system at all. Indeed, such a system would be completely nonfunctional,
since the absence of any prospective norms would entail the absence of
any norms that authorize and obligate the apparent legal of¬cials to carry
out their supposed responsibilities. Not only would citizens at any given
juncture be unable to ¬nd any legal guidance on the basis of which they
might act, but, in addition, the ostensible of¬cials at any given juncture
would have no basis for their status as of¬cials at that juncture. None
of the norms of the system could be given effect, then. At any time t
when those norms might be implemented, no one (ex hypothesi) would
yet be of¬cially authorized to implement them at t. In short, the notion
of a functional legal regime with only retroactive norms is forbiddingly
incoherent. In any functional regime, all or most of the laws must be
prospective rather than purely retrospective. Plainly, all or most of the
laws that authorize certain people to act as legal of¬cials will have to be
prospective if the authoritative functions of a legal regime are to be per-
formed. Similarly, all or most of the other laws in a society will have to
be prospective if the society™s legal system is to impinge in any signi¬cant
fashion on the choices and behavior of the people who are subject to its
sway.
Perfect compliance is no more to be expected with the principle of
prospectivity than with any of Fuller™s other principles. Indeed, as Fuller
himself incisively observed (Fuller 1969, 53“54, 56“57), departures from
this third principle of legality can be salutary in quite a few credible
circumstances. For example, such departures can sometimes be advisable
as devices for rectifying any untoward consequences that have ensued
from previous muddles in the creation or administration of laws; in
some contexts, the best way of coming to grips with those untoward
consequences might be to eliminate them retroactively. Moreover, the
120 Objectivity and the Rule of Law


introduction of retroactively effective laws is both unavoidable and (on
balance) desirable in the relatively small number of private-law cases that
hinge on questions to which there are no determinately correct answers. In
any such case, in the absence of a settlement between the parties, either the
defendant or the plaintiff will ultimately prevail. Any judge hearing such
a case is obligated to reach a decision, whatever the decision may prove to
be. Yet, up to the point when the case has been heard and resolved, there
is no determinately correct answer to the question whether the defendant
should win or the plaintiff should win. Accordingly, if the defendant loses
and is therefore ordered to pay compensation to the plaintiff, the new
legal norm introduced by the precedential force of that decision will have
been applied retroactively against the defendant. Conduct that was not
determinately unlawful at the time of its occurrence has retroactively been
deemed unlawful. Contrariwise, if the plaintiff loses and is thus denied
any compensation, the new legal norm introduced by the precedential
force of that decision will have been applied retrospectively against him
in favor of the defendant. A type of conduct that was not determinately
lawful at the time of its occurrence has retroactively been deemed lawful.
This feature of unavoidable retroactivity is not similarly present in the
small number of criminal-law cases that hinge on questions to which there
are no determinately correct answers. In any benignly liberal-democratic
system of law, a background norm “ a rule of closure “ prescribes that no
one is to incur criminal penalties for conduct that was not determinately
unlawful at the time of its occurrence. Hence, when a court decides that a
thitherto indeterminate question about the culpability or permissibility
of a certain kind of conduct should be resolved through the classi¬cation
of such conduct as criminally culpable, the norm articulated by that
decision will be applied only prospectively. Within a liberal-democratic
scheme of things, the defendant in the case immediately before the court
will be acquitted.
In any private-law litigation that revolves around indeterminate legal
questions, by contrast, the prospect of retroactive detriments cannot be
dodged. If a private-law defendant™s conduct is retrospectively deemed to
be determinately lawful, then the plaintiff will have suffered a detriment
through that retrospective determination of the conduct™s status. Con-
versely, if a private-law defendant™s conduct is retrospectively deemed
to be determinately unlawful, then the defendant will have suffered a
Elements of the Rule of Law 121


detriment. Were a court to remove that hardship from the defendant
by decreeing that the norm articulated in the decision will apply only
prospectively and not to the case at hand, the plaintiff in the case would
suffer a detriment. As far as that particular plaintiff is concerned, the court
would in effect be retroactively classifying the particular defendant™s con-
duct as determinately lawful. After all, at least in Anglo-American law,
no general background rule prescribes that a defendant will never incur
any compensatory obligations for conduct that was not determinately
unlawful at the time of its occurrence. In the absence of such a back-
ground rule, a decision against the retroactive burdening of the defendant
would amount to the retroactive disadvantaging of the plaintiff. (Note
that the absence of the speci¬ed background rule in Anglo-American law
is hardly an inexplicable anomaly. If the courts were regularly disposed
to decline to issue compensatory orders against defendants in cases of
the sort just envisaged, they would markedly impair the incentives for
potential plaintiffs to pursue lawsuits in such cases. Indeterminacies in
the law would less frequently give rise to litigation and would thus tend to
remain unresolved. Indeed, since the courts would probably quite often
fail to heed the distinction between indeterminacy and uncertainty “ a
distinction highlighted in my opening chapter™s discussion of objectiv-
ity qua determinate correctness “ they would probably be inclined not
to issue compensatory orders in some cases that hinge on questions to
which there are determinately correct answers. The incentive-impairing
effects of their stance would thus be especially problematic. For these
reasons, Anglo-American judges are justi¬ed in being disposed to apply
newly determined legal norms to the detriment of defendants in the
private-law cases immediately before them.)
My discussion of private-law litigation in the last few paragraphs
has concentrated on some legal norms that are not purely retrospective.
Indeed, those norms are principally prospective. Retroactive applications
of such norms are not as glaringly at odds with Fuller™s third principle as
are laws that are introduced purely for the purpose of altering people™s
legal positions retroactively. All the same, the main claims advanced in the
opening paragraph of this subsection on prospectivity are still pertinent.
Just as there cannot exist a functional legal regime with nothing other
than purely retroactive laws, so too there cannot exist such a regime with
nothing other than retroactive applications of seemingly prospective laws.
122 Objectivity and the Rule of Law


If a regime operated solely through successions of such applications,
then its purportedly prospective laws would not really be prospective
at all. Those laws would be continuously undone and superseded by
retroactive applications of other purportedly prospective laws, which
would in turn be continuously undone and superseded. The general role
of law in guiding and directing human conduct would thus be negated.
Even in a system where most rather than all of the applications of the
prevailing norms are retroactive, the general role just mentioned would be
undermined. In any functional legal system, then, most of the applications
of legal norms “ as well as most of the legal norms themselves, of course “
have to be nonretrospective. We should recognize as much while also
recognizing that some departures from the principle of prospectivity are
salutary.
As has been argued, indeed “ and as Fuller himself observed “ depar-
tures from the principle of prospectivity are sometimes not only salutary
but also unavoidable, at least in any legal system with procedures for
private-law adjudication that yield proper incentives for litigation. Given
as much, we can perceive the stark untenability of the thesis that Fuller™s
eight precepts form an archetype of perfection. Such a thesis obscures
the actual character of those precepts. Instead of laying down a standard
of perfection, the principle of prospectivity is like the other Fullerian
precepts in proceeding along the two tracks mentioned earlier. That is, it
delineates a necessary threshold condition for the existence of any legal
system, and it ¬xes upon a property whose greater and greater presence
(up to some high level well above the threshold) will increase the straight-
forwardness of the status of a legal system as such. A bit of re¬‚ection on the
principle of prospectivity helps to sharpen one™s understanding of Fuller™s
whole theoretical framework. Any characterization of that framework as
an archetype is misconceived.


2.1.4. Perspicuity

Unless the mandates and other norms of a legal system are formulated
in reasonably lucid language, the system will largely or completely fail
to perform the basic function of law as a means of channeling people™s
behavior along certain paths and away from other paths. One of the
hallmarks of the rule of law is that it conveys to people a clear sense of what
is demanded of them (and what is permitted and what is authorized).
Elements of the Rule of Law 123


That cardinal aspect of the rule of law will be stymied if statutes and
administrative regulations and judicial opinions and other expressions of
legal norms are not drafted perspicuously. People do not receive adequate
guidance from the workings of a legal system if its directives are darkly
incomprehensible or nonsensical or muddled.
Of course, the clarity of legal language is not to be gauged principally
by reference to an ordinary person™s understanding and knowledge. Legal
language, the parlance of a specialized profession, abounds with terms
and phrases that are unfamiliar to people who lack juridical expertise.
Some of those terms and phrases get incorporated into the law™s pub-
lic pronouncements (statutes, regulations, and the like). Hence, if we
were to take the ordinary person™s comprehension as the touchstone for
the lucidity of legal directives, we would signi¬cantly overestimate the
unclarity of the law in virtually every society. Instead, the chief touch-
stone for the understandability of the formulations of legal norms is the
competent legal expert™s comprehension. If such an expert would regard
the wording of some statute or regulation as clear and precise, then the
statute or regulation is squarely in compliance with Fuller™s fourth prin-
ciple of legality “ even if most people without legal training would ¬nd
the wording pretty formidable.
One of the paramount reasons for my intermittent emphasis on the
centrality of lawyers and other legal experts in the operations of any legal
system is precisely that those operations are often quite technical. As
such, they tend to involve a technical argot. The widespread availability of
assistance from experts is thus vital for the proper functioning of a legal
regime. Without the availability of such assistance, many of the law™s
directives would not be meaningful sources of guidance for ordinary
citizens “ even if the citizens knew where to locate the formulations
of those directives and endeavored to locate them. However, given that
the advice and help of legal experts are indeed generally available, the
intelligibility of the language in the formulations of legal norms should
not be gauged as if citizens had to fend entirely for themselves. Since
formulations opaque to the layman may well be transparently clear to the
specialist, and since most laymen typically have ample opportunities to
consult specialists, the perspective of the latter rather than the perspective
of the former should be our benchmark when we judge whether the
wording in various legal materials is in conformity with the Fullerian
principle of perspicuity.
124 Objectivity and the Rule of Law


Even when the formulations of legal norms are assessed from the
perspective of a competent expert, of course, any actual legal system
will almost certainly contain some formulations that are insuf¬ciently
clear to furnish any informative guidance. Instances of murkiness and
imprecision are virtually inevitable. As has already been suggested, one
important reason for the presence of some unclarity in every legal regime
is the tension between the fourth and the ¬rst of Fuller™s principles: the
principle of perspicuity versus the principle of generality. In a number
of circumstances, the aims of the of¬cials who run a legal-governmental
system can most effectively be realized (with suitable ¬‚exibility) through
the adoption of broadly abstract standards rather than through the devis-
ing of more detailed and precise rules. Now, keeping in mind my opening
chapter™s distinction between indeterminacy and uncertainty “ and the
related distinction between indeterminacy and indemonstrability “ we
should not hastily assume that the abstract standards will give rise to
large-scale indeterminacy in the law. However, such standards may well
give rise quite often to uncertainty and disagreement over their concrete
implications. Their abstractness can make them unclear, even in the eyes
of legal experts. Fuller himself was well aware of this tension between
the requirement of generality and the requirement of clarity (Fuller 1969,
64“65).
Unclarity is to some degree unavoidable in any legal system, then.
Within appropriate bounds, it need not detract from the ef¬ciency of a
legal system™s workings, and it can even enhance those workings. To say
as much is not to say anything at odds with the principle of perspicuity;
that principle is not a counsel of perfection, and was certainly not pro-
pounded as an element of an archetype. Nevertheless, when unclarity
occurs in inapposite contexts, or when its intensity goes beyond certain
limits (which, of course, cannot be speci¬ed precisely), it does detract
from the ef¬cient operations of a legal regime. Indeed, if the unclarity
is both severe and wide-ranging, it can undermine the very existence “
rather than merely the ef¬ciency “ of a functional legal system. Not all
departures from the requirement of perspicuity are undesirable, and a
fortiori not all such departures are fatal to a legal system™s existence, but
a minimum level of compliance with that requirement is indispensable.
The minimum level, like the minimum level for each of the other Fullerian
precepts, is quite high.
Elements of the Rule of Law 125


2.1.5. Against Conflicts and Contradictions

The ¬fth principle of legality is more complicated than Fuller grasped. He
characterized it as a principle of noncontradictoriness, but in most of his
discussion he concentrated instead on con¬‚icts. Nonetheless, despite his
inapt terminology, his ¬fth principle should undoubtedly be construed
as an admonition both against con¬‚icts and against contradictions in
the law. So construed, the ¬fth principle is structurally similar to the
other Fullerian precepts. That is, it articulates a necessary condition for
the existence of any viable legal system, and it indicates a property “ the
property of logical tidiness “ whose greater or lesser realization (above
some threshold level, and up to some much higher level) will render a
legal system a more straightforward or less straightforward specimen of
the rule of law.
Let us begin with the distinction between contradictions and con¬‚icts
(Kramer 1998, 17“19; 1999a, 52“53; 2001 , 73“74). A con¬‚ict exists in the
law whenever someone is legally obligated to do X and legally obligated to
abstain from doing X.1 Con¬‚icts between legal duties can and sometimes
do occur, but the con¬‚icting duties can never be jointly ful¬lled. One
and only one of any pair of con¬‚icting duties will ever be ful¬lled, at any
given juncture. All the same, the coexistence of con¬‚icting duties is per-
fectly possible. No logical improprieties are involved in their coexistence,
though of course some moral improprieties may well be (since a person
who is under con¬‚icting legal duties will face the prospect of penalties
irrespective of how he or she behaves).
Contradictions are different. What is in contradiction with a duty to
do X is not a duty to abstain from doing X, but a liberty to abstain from
doing X. Unlike con¬‚icting duties, a duty and a liberty that contradict
each other can never genuinely coexist. It can never be the case that
someone is both genuinely under a duty to do X and genuinely at liberty
to abstain from doing X; at any given time, one and only one of those
states of affairs is actual. In other words, someone is under a legal duty-
to-do-X if and only if he is not legally at liberty to abstain from doing X.
1 Throughout this discussion, for stylistic reasons, I use the phrase “to abstain from doing X”
as if it were interchangeable with “not to do X.” As understood here, that is, an abstention
from doing X does not necessarily involve a refusal to take advantage of an opportunity to do

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