LINEBURG


<< . .

 14
( 26)



. . >>

X; it can equally well ensue from one™s unawareness of an opportunity or from the absence of
any such opportunity altogether.
126 Objectivity and the Rule of Law


The truth of the proposition “I am currently under a duty to do X” entails
the falsity of the proposition “I am currently at liberty to abstain from
doing X,” and vice versa.
Now, although there cannot be veritable contradictions within the
workings of a legal system, there can be apparent or ostensible contra-
dictions (Kramer 2001 , 73“78). That is, a legal system can contain for-
mulations of legal norms “ such as some unrepealed statutes or some
provisions within a single statute “ which together af¬rm both that each
person is legally obligated to do X and that each person is legally at lib-
erty to abstain from doing X. Naturally, it can never be the case that both
of the norms expressed in these inconsistent formulations are actually
given effect in relation to any particular person P at any given time. At
any juncture, in application to anybody who has abstained from doing
X, one and only one of those norms will be given effect. When P abstains
from doing X, then either he will be subjected to penalties or he will
not be. If he is subjected to penalties, then the norm endowing him
with a legal liberty-to-abstain-from-doing-X is inoperative in applica-
tion to him at that juncture. Operative instead is the contemporaneous
legal norm under which he bears a legal duty-to-do-X. Contrariwise, if
P is not subjected to penalties in the aftermath of his abstention from
doing X, then the legal norm placing him under a legal duty-to-do-X
is inoperative in application to him at that juncture (either because the
duty is unenforceable or because it is waived). Operative instead is the
contemporaneous legal norm that bestows upon him a legal liberty-
to-abstain-from-doing-X. In sum, although the norm imposing a legal
duty-to-do-X and the norm conferring a legal liberty-to-abstain-from-
doing-X can never both be operative at the same juncture in relation to
the same person, the formulations expressing those norms (such as two
unrepealed statutes) can simultaneously belong to a legal system as some
of its authoritative materials.2 Contradictions in the law™s formulations
are quite possible, then, even though genuine contradictions in the law™s
operations are not.

2 Here and elsewhere, the phrase “authoritative materials” refers to the various formulations
that are treated by juridical-governmental of¬cials as legally binding. They include statutes,
administrative regulations, constitutional provisions, executive orders, public and private
contracts, adjudicative orders, judicial doctrines, rules of civil or criminal procedure, wills,
deeds of title, and treaties.
Elements of the Rule of Law 127


As has been stated, Fuller devoted most of his remarks on the prin-
ciple of noncontradictoriness to con¬‚icts rather than to contradictions.
(One of his examples, concerning two provisions in an American food-
regulation statute “ in Fuller 1969, 67“68 “ does not in fact involve either
a con¬‚ict or a contradiction.) Nevertheless, as has likewise been main-
tained, his ¬fth principle should be understood as an insistence on non-
con¬‚ictingness and noncontradictoriness. If either con¬‚icts or contra-
dictions abound within the authoritative materials of some system of
governance, then its very existence as a legal system is at stake. Hence, a
principle which requires that con¬‚icts and contradictions be kept below
some level (a level that cannot be precisely speci¬ed) is enunciating a
necessary condition for the status of a legal regime as such.
Should con¬‚icts pervade the norms of some system of governance,
the paramount function of law in guiding people™s conduct might well be
frustrated within the particular jurisdiction. In such a pass, the system™s
status as a legal system will have come undone. Crucial in this context are
the penalties attached to the various duties that are in con¬‚icting pairs.
If the penalty that will be incurred for a breach of a person™s duty-to-do-
X is markedly heavier or lighter than the penalty that will be incurred
for a breach of her duty-to-abstain-from-doing-X, then there will be
strong incentives for the person to comply with one duty as opposed to
the other. If there is a similarly gaping disparity between the penalties
attached respectively to the two duties in virtually every other con¬‚ict-
ing pair, then the rampant numerousness of the con¬‚icting pairs is not
incompatible with the ful¬llment of law™s guiding role. In that event, the
system of governance comprising the myriad con¬‚icting duties can still be
a legal system, albeit an unappealing and peculiar legal system. If instead
the penalties attached respectively to the two duties in virtually every con-
¬‚icting pair are equivalent or approximately equivalent, then there will
be no legally created incentives (or virtually no legally created incentives)
for anyone to favor either of the two elements in each con¬‚icting pair over
the other. If the pairs of con¬‚icting duties cumulatively cover large swaths
of human behavior, then the putative system of governance that includes
those multitudinous pairs will be failing to direct people™s conduct. It is
probably not a system of governance at all, much less a legal system.
One™s conclusions about contradictions should be similar in most
though not all respects. Let us assume that the authoritative formulations
128 Objectivity and the Rule of Law


of the norms in some system of governance teem with contradictions.
Pairs of contradictory formulations in the system™s authoritative materi-
als cumulatively cover vast areas of human conduct. Within each pair of
contradictory legal positions, as has been indicated, one and only one of
those positions will be operative at any given time in application to any
particular person. A genuine contradiction can never obtain as a state
of affairs in the world. Now, if the operativeness and inoperativeness of
sundry contradictory legal positions occur in regularized patterns that are
amply predictable, the system with norms that establish those positions
might conceivably be able to operate as a system of governance. It will
hardly be a model of ef¬cient functioning, but it might attain suf¬cient
regularity to keep its society from anarchic unrule. Notwithstanding, for
reasons that should be evident from Chapter 1™s discussion of the distinc-
tion between determinacy and predictability (or between indeterminacy
and unpredictability), any system of governance along the lines hypoth-
esized here does not qualify as a legal system. The possible predictability
of its workings is not accompanied by the determinate correctness of any
answer to any of the principal questions on which its contradictory legal
norms decisively bear. If one authoritative norm of the system provides
that each person is required to do X, and if another authoritative norm
of the system provides that each person is at liberty to abstain from doing
X, then there is no determinately correct answer to the question whether
any particular person is required to do X. Since we are assuming that
contradictory norms of this sort are rife within the system, we have to
conclude that its authoritative materials do not yield any determinately
correct answers to manifold questions concerning most areas of human
behavior. Thus, even though the envisaged system of governance might
conceivably display a moderate degree of regularity in its workings “ and
even though it might therefore furnish suf¬cient guidance to citizens to
coordinate and direct their activities “ the regularity is not that of a legal
system. Rampant indeterminacy is incompatible with the existence of a
legal regime. Even in circumstances (far-fetched circumstances) in which
the indeterminacy does not subvert the functionality of an apparatus of
governance, it negates the status of that apparatus as a system of law.
In short, whenever the authoritative norms of a regime teem with
contradictions, its status as a legal regime is undermined. Exactly how
abundant the contradictions must be in order to produce such an effect
Elements of the Rule of Law 129


is of course not something that can be pinned down precisely. There is
no talismanic point of transition, immediately past which a legal system
ceases to be a legal system. All the same, although no such point can be
speci¬ed precisely, there is a qualitative difference between a system of
governance whose norms are replete with contradictions and a system
of governance whose norms contain few or no contradictions. Only the
latter is a legal system (if it satis¬es the other Fullerian principles of
legality).
Fuller™s ¬fth principle, then, is certainly in part a principle of non-
contradictoriness. No legal system can comprise norms that are in con-
tradiction with one another on a large scale. In addition, however, the
¬fth principle is a principle of noncon¬‚ictingness. As has been argued,
the pervasiveness of con¬‚icting duties can be inimical to the existence
of a legal system (and indeed, most likely, to the existence of any system
of governance). If the penalties attached respectively to the two duties in
virtually every con¬‚icting pair are quite evenly balanced, then the pres-
ence of myriad con¬‚icts in a regime™s normative matrix will thwart the
ability of the regime to guide conduct with minimal ef¬cacy. Unlike the
problem engendered by profuse contradictions, the problem engendered
by profuse con¬‚icts is not one of indeterminacy. Anybody who bears a
duty to do X and a duty to abstain from doing X is determinately required
to do X and determinately required to abstain from doing X. Rather, the
problem is one of muddled guidance. In a situation marked by throngs
of con¬‚icting duties with quite evenly balanced penalties along the lines
just mentioned, a regime will not adequately be steering people™s con-
duct away from any particular paths and toward other paths. It will not
adequately be affecting their practical reasoning. When somebody faces
the prospect of being penalized for doing X and the prospect of being
similarly penalized for not doing X, his choice between doing and not
doing X is unaffected by the existence of the regime that stands ready to
impose the penalties. Pro tanto, then, the regime is not performing the
guiding and directing function of law. If the normative structure of the
regime pullulates with a host of such con¬‚icts, then its general perfor-
mance of the directing and coordinating function of law is too meager
to warrant our classifying it as a legal regime. In sum, when Fuller™s ¬fth
precept is construed as a principle of noncon¬‚ictingness (with a focus
on evenly counterpoised penalties), as much as when it is construed as a
130 Objectivity and the Rule of Law


principle of noncontradictoriness, it lays down a necessary condition for
the existence of any system of law. Some con¬‚icts within such a system
are tolerable, but their overabundance is fatal to its continued existence
as a minimally effective mode of governance.


2.1.6. Compliability

As Fuller readily acknowledged (Fuller 1969, 70 n29), several of his pre-
cepts of legality call for the possibility of citizens™ compliance with legal
norms. People cannot ful¬ll both of two con¬‚icting duties, for example,
and they likewise cannot conform to a legal mandate that is unintelligibly
obscure. Nor can they comply, except fortuitously, with a legal mandate
that is unpromulgated or purely retrospective. Still, although his sixth
principle of legality does clearly overlap with some of the other princi-
ples, it also plays a distinctive role. Even when a legal directive is clear and
prospective and publicly ascertainable and unentangled in any logical
con¬‚icts, its demands might be such as to lie ¬‚atly beyond the capabili-
ties of all or most citizens. What Fuller™s sixth principle maintains is that
such unful¬llable mandates cannot be pervasive in any functional legal
system.
As Fuller emphasized, and as should be plain from my ¬rst chapter™s
discussion of the uniform applicability of legal norms, some departures
from the principle of compliability are virtually inevitable and are in any
event salutary. Within Anglo-American tort law, for example, the stan-
dard of reasonable care is incumbent on all adult human beings “ apart
from insane people and people with severe physical disabilities “ even
though some adult human beings are not capable of living up to that
standard. For the reasons recounted in Chapter 1 , the uniform appli-
cability of the law in this respect is generally desirable. Whereas some
considerations militate in favor of tailoring the law™s requirements to
individuals™ unameliorable weaknesses, a number of more weighty con-
siderations militate against such an approach. A move toward a more
accommodating approach in order to satisfy Fuller™s sixth principle would
be misguided.
Nonetheless, although some deviations from the principle of com-
pliability are advisable “ especially when, like the uniform applicability
of the standard of reasonable care, they adversely affect only a small
Elements of the Rule of Law 131


proportion of a society™s population “ the deviations in any functional
legal system cannot be too numerous and sweeping. To be sure, if the
only role of a legal regime were the resolution of disputes among people,
the extensive use of unfollowable mandates could be serviceable (Kramer
1999a, 46“47). So long as those mandates would differentiate among peo-
ple in ways that would enable legal decision-makers to classify disputants
as winners and losers, they would be consistent with the ful¬llment of
the posited role. Consider, for instance, a legal norm which provides that
any human adult shorter than six feet in height must grow taller in order
to reach that stature (without any surgical or prosthetic enhancement) or
else lose certain legal entitlements vis-` -vis anyone whose height is at least
a
six feet. Such a norm would be ridiculous if it were adopted as a means
of channeling people™s behavior into certain courses of action and away
from other courses of action. No fully grown adult who is shorter than
six feet in height would be able to do anything to comply with the norm™s
requirement. Only in a highly indirect fashion could that requirement
meaningfully affect people™s behavior. Over time, that is, it might impel
parents to have their children exercise vigorously and eat more heartily
in order to increase the likelihood that the children will grow taller than
six feet. Even if the silly legal mandate were eventually to produce such an
upshot, it would be ludicrously less ef¬cient and fair and straightforward
than a legal mandate directly enjoining parents to induce their children
to exercise more vigorously and eat more heartily. Still, although the silly
mandate would be ridiculous as a source of guidance for people™s conduct,
it could facilitate the dispute-resolving role of a legal system. After all, it
would differentiate among people along clear-cut lines, and its effect of
removing various legal entitlements from shorter people vis-` -vis taller
a
people could bear decisively on the outcomes of quite a few legal disputes.
Hence, if the only function of a legal regime were to pronounce on peo-
ple™s respective entitlements in concrete controversies, the law requiring
short people to grow taller would not be nearly as outlandish as it initially
appears. Were it not ¬‚agrantly invidious, it could indeed be quite sensi-
ble. Along with a host of other unfollowable directives, it could greatly
promote the ful¬llment of the aforementioned function.
In fact, however, a legal regime™s primary function is to direct the
conduct of people by presenting them with mandates and other laws to
which they are capable of adjusting their behavior. Its dispute-resolving
132 Objectivity and the Rule of Law


function is activated only when its primary function has broken down
in some respect and when the regime has consequently not succeeded
in coordinating people™s behavior (Hart 1961 , 38“41). Given as much, a
plethora of utterly unfollowable directives in the normative matrix of
some system of governance will be incompatible with the performance
of law™s cardinal role. Such a system of governance would not be a legal
system “ and would probably not be a system of governance at all, since
so many of its mandates in their stark uncompliability would not affect
anyone™s practical reasoning and decisions. If a legal regime is to operate
as a legal regime, its normative structure has to consist mainly of laws
that can be followed. If its normative structure is such that all or most of
its norms cannot possibly be heeded, then those norms are ersatz laws,
and the regime overall is a travesty of the rule of law rather than a genuine
embodiment thereof.
Like most of Fuller™s other principles of legality, then, the principle
of compliability is integrally connected to law™s paramount function. It
articulates a necessary condition for the existence of any legal system
because it captures something that is indispensable for the minimally
effective guidance of human conduct. Any arrangement that fails to pro-
vide such guidance is not an instantiation of the rule of law. No single
departure from the principle of compliability is fatal to the existence of a
legal system, of course, but wide-ranging and protracted departures are.


2.1.7. Steadiness over Time

If any further rebuttal of Simmonds™s view of the Fullerian principles as an
archetype were needed, the seventh principle “ requiring the steadiness
or constancy of legal norms through time “ could supply it. Fuller did not
preposterously suggest that a perfect legal system would be one in which
nothing ever changes. Rather, he simply sought to indicate that limits on
the pace and scale of the transformations of the sundry norms in a legal
system are essential for the system™s functionality. If changes in the law are
bewilderingly sweeping and rapid for an extended period, then the capac-
ity of the law to direct the behavior of people within its sway will founder.
Fuller aptly pointed out that the problems engendered by excessively fre-
quent and massive dislocations in the law are akin to those engendered
by an overabundance of retrospective enactments (Fuller 1969, 80). In
Elements of the Rule of Law 133


each case, the dif¬culty lies in the inability of people to orient themselves
by reference to what the law requires and permits and authorizes. When
the law™s requirements and permissions and authorizations are altered
with dizzying celerity on a large scale for more than a very short period
of time, people do not have opportunities to absorb the law into their
practical reasoning. Their conduct is thus largely or wholly unguided by
authoritative legal norms. In such circumstances, then, the basic function
of law is unrealized.
To an even greater extent than most of the other principles of legal-
ity, this seventh principle is meant to be ¬‚exible rather than absolute.
Manifestly, not every change in the law threatens the existence of the
legal system in which it occurs. Most changes in the law do not impair
the operativeness of a legal system at all, and many of them improve
and strengthen it. Fuller™s principle of constancy, understood as a gen-
eral jurisprudential thesis, is but an admonition against too much of a
(potentially) good thing. It warns against transformations of legal norms
that are disconcertingly frequent and far-reaching; it certainly does not
warn against the more modest changes that occur from time to time in
any legal regime.
Indeed, the stagnancy resulting from any wholesale eschewal of those
modest changes would bring Fuller™s seventh principle quite seriously
into tension with his eighth principle, which requires congruity between
the formulating and the implementing of legal norms. If a legal system™s
matrix of norms were somehow to go unaltered for decades or centuries,
then “ in any society that is not itself ossi¬ed in virtually all respects “ many
of the system™s mandates and authorizations would become obsolete as
a consequence of changes in technology and social interaction. Gaps
between the law on the books and the law in practice would yawn widely,
maybe to the point of reducing the legal system to a grotesquely empty
shell that has in fact been superseded by an alternative regime of law. That
alternative regime, dynamically evidenced in the decisions that constitute
the law-in-practice, would itself be gravely hampered by the simulacrum
of a legal system that exists alongside it and overlaps with it. (For example,
given that the alternative regime™s norms have ex hypothesi not displaced
the rigidly unchanging norms as the law on the books, its arrangements
for the promulgation of its demands and prescriptions and allowances
are plainly inadequate.)
134 Objectivity and the Rule of Law


Thus, although Fuller™s seventh principle lays down a necessary con-
dition for the existence of any functional legal system, we need to be
especially attentive to the con¬nedness of that principle™s injunction. On
the one hand, signi¬cant curbs on the rate and extent of changes in the law
are vital. We cannot pin down exactly how much change is too much, but
we can be sure that transformations of laws become ruinously inordinate
at some level. On the other hand, an openness to innovations within the
requisite curbs is likewise vital. If a legal system is to endure as such, it
has to avoid the overwhelming disorientation that ensues from excessive
¬‚ux; however, the ¬erce resistance of a legal system to every transform-
ing in¬‚uence would produce its own sort of disorientation, bred by a
gaping disconnection between the appearance and the actuality of legal
regulation.


2.1.8. Congruence between Formulation and Implementation

Fuller™s eighth principle of legality is in many respects a summation of
the other seven principles, but it is also a distinctive precept that covers
and raises an array of attendant problems. Any satisfactory ful¬llment of
it will involve objectivity qua impartiality on the part of legal of¬cials,
in the expansive sense delineated by Chapter 1 . Furthermore, any such
ful¬llment will involve pro¬ciency in legal interpretation. Unless legal
of¬cials can competently ascertain what statutes and other expressions
of legal norms mean, they will hardly be in a position to give effect to
those norms persistently in accordance with the terms thereof.
As has been recounted in my opening chapter, the various factors
that lead away from impartiality “ such as self-interestedness, prejudices,
ignorance, and impulsiveness “ are strongly unconducive to accurate
perceptions and correct decisions. Somebody swayed by one or more of
those factors might still arrive at a correct decision and an accurate under-
standing of some particular matter, of course, but that happy outcome
would occur despite the absence of impartiality rather than because of
that absence. In general, an outlook wanting in impartiality is cognitively
unreliable. It tends to lead away from justi¬ed perceptual and practical
responses. Speci¬cally in connection with the effectuation of legal norms,
of¬cials who lack impartiality will be inclined toward misunderstandings
Elements of the Rule of Law 135


of the legal norms themselves and of the situations to which those norms
apply. Often because of such misunderstandings, the of¬cials will likewise
be inclined toward inappropriate judgments in their handling of disputes
and other matters. Moreover, even when they have not strictly misunder-
stood the relevant laws and situations, the of¬cials who lack impartiality
will be inclined toward inappropriate judgments in order to indulge their
ignoble promptings (such as self-interestedness or bigotry). A dearth of
impartiality, then, fosters decision-making that frequently deviates from
any tight correspondence between the law as it is formulated and the law
as it is administered. Because quite a ¬rm correspondence of that kind is
indispensable for the existence of a functional legal system, impartiality
on the part of legal of¬cials “ not perforce as something that they invari-
ably maintain, but at least as something that they typically maintain “ is
itself indispensable for the rule of law. An ample degree of impartiality
in the authoritative activities of legal of¬cials is a necessary condition for
the status of a regime of law as such.
Similarly a necessary condition is the of¬cials™ possession of an ample
degree of pro¬ciency in legal interpretation. Their being endowed with
such pro¬ciency, like their being endowed with impartiality, is essential
for the sustainment of any lasting congruence between the law on the
books and the law in practice. Indeed, given the capaciousness of my
conception of impartiality, interpretive competence is best regarded as
one key element of an impartial stance. Of¬cials devoid of such com-
petence are on a par, at least for present purposes, with of¬cials whose
ignorance leaves them prone to go astray in their judgments. Their per-
ceptions of the actualities of the law in their jurisdiction are skewed by
their maladroitness in grasping what the formulations of legal norms
mean. Any congruence between their law-administering decisions and
the contents of the prevailing legal norms is fortuitous “ and therefore
almost certainly meager “ rather than a properly informed achievement

<< . .

 14
( 26)



. . >>

Copyright Design by: Sunlight webdesign