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that comes about reliably.
Before we mull over the matter of interpretive pro¬ciency in some-
what greater depth, we should ponder the broader question raised by
Fuller™s eighth principle. Why is congruence between the articulation
and the implementation of legal norms a crucial condition for the rule
of law? The answer to this question, which will shed light on the nature
136 Objectivity and the Rule of Law


of interpretive competence in juridical endeavors, has been adumbrated
in the preceding subsection™s discussion of legal constancy. If the law in
practice diverges markedly from the law on the books, then a weirdly
bifurcated system of governance has supplanted any genuine legal system
that may have existed. Such a situation will be marked by an array of for-
mulated and promulgated norms that are seldom given effect, and by an
array of largely unpromulgated norms that are regularly effectuated. The
former array will not constitute a functional legal regime or even a part of
a functional legal regime. When putative laws that form an overall scheme
of governance are systematically unimplemented “ either because they
are sweepingly ignored or because they are sweepingly misconstrued “
they are not veritable laws, and the scheme of governance which they
form is a mere carcass.
Such a state of affairs is very different from that which obtains when
scattered laws such as jaywalking ordinances are seldom or never applied
in accordance with their terms. As has been noted near the outset of
Chapter 1 , the jaywalking ordinances retain their status as laws notwith-
standing the extreme rarity of the occasions (if any) on which they are
enforced. They retain that status exactly because they are elements of a
wide-ranging matrix of norms that are mostly given effect quite regu-
larly. Though in some jurisdictions the prolonged desuetude of a legal
norm can deprive it of its status as a legal norm, such an effect is purely
contingent. It is hardly preordained by the sheer nature of law. In any
jurisdiction where desuetude over a long period is not a ground for the
invalidation of a law as such, a limited number of disused laws can con-
tinue to be laws because they exist in a network with many other laws
that are not disused. By contrast, they would not remain legally valid if
all or most of the accompanying laws in the network had also fallen into
disuse over a substantial span of time. Legal validity is something con-
ferred on a norm by an operative legal system; it is a property of which
the norm partakes by dint of being classi¬able as a law under the ef¬ca-
cious system™s criteria for legal validity.3 If the system as a whole has been
pushed into obsolescence by some alternative array of norms at the level

3 Within any jurisdiction J, a norm is legally valid “ that is, it has the status of a law “ if and
only if it satis¬es the criteria by reference to which the of¬cials in J ™s legal system ¬x upon
the norms that belong to the system as its binding bases for their substantive and procedural
decisions.
Elements of the Rule of Law 137


of judicial and administrative decision-making, then the norms in the
obsolete network have ceased in effect to be legally valid (except insofar
as any of those norms are also elements in the new array). Whether or not
this upshot is overtly acknowledged in the formulations of the law on the
books, it obtains as the reality of the law in practice. Since a functional
legal regime comprises not only the law on the books but also the broadly
congruent law in practice “ as is evident in my discussion of prosecutorial
and administrative discretion in Chapter 1 “ the state of affairs envisaged
here does not amount to such a regime. Of major importance, as has
been suggested, is the difference between the unimplementedness of a
small proportion of the norms in an overall matrix and the unimple-
mentedness of all or most of those norms. In the former case, the overall
matrix can sustain the legal validity of the uneffectuated norms; in the
latter case, there is no comparable base of support for the legal validity
of the uneffectuated norms or for the operativeness of the matrix itself.
When we view the matter from the other direction and concentrate
on the law in practice that has displaced the law on the books, we ¬nd
similarly daunting impediments to the existence of a functional legal sys-
tem. In the scenario under consideration, most of the norms given effect
by the concrete decisions of of¬cials are not the norms that constitute
the law on the books. They are only the law in practice. One of the major
problems with such a situation, then, has been mentioned near the end
of the preceding subsection. That is, the law-in-practice in such circum-
stances is largely or wholly unpromulgated “ in which case its status as the
law-in-practice is undone. It cannot adequately perform the guiding and
coordinating role that is characteristic of any veritable legal regime. Let
us now suppose that the decisions of the of¬cials are suf¬ciently copious
and patterned to enable experts (and perhaps ordinary citizens as well)
to descry the norms which the of¬cials are implementing. In that event,
the situation involves a variant of the austerely outcome-focused method
of promulgation that was discussed in Section 2.1.2. For all the reasons
adduced there, any such method of promulgation will be precarious even
in the most favorable of settings. In the much less propitious setting of
a large and fairly dynamic society, such a method of promulgation “
unsupplemented by any other methods “ would be preposterous. There
would be a logical possibility of its succeeding, but there would be no
credible possibility.
138 Objectivity and the Rule of Law


Moreover, the dif¬culties explored in that earlier discussion of an
outcome-centered mode of promulgation are greatly exacerbated here.
In the present context, we are not ruminating on a situation where there
is only the law in practice and no law on the books (apart from the law-
in-practice itself in the form of discretely ascertainable decisions). In the
present context, rather, we are ruminating on one array of norms that
collectively constitute the law in practice and another array of norms
that collectively constitute the law on the books. The serious shortcom-
ings in the promulgation of the former array of norms will be hugely
intensi¬ed by the simultaneous existence of the latter array. Either the
prevailing regime™s adjudicative and administrative of¬cials are permit-
ted and authorized to effectuate the norms in the latter array (the law on
the books), or they are not. If they are not, then any outcome-centered
promulgation of the operative norms of the regime will be accompanied
by the full promulgation of norms that are truly dead letters. Even worse
problems loom if the aforementioned of¬cials are indeed permitted and
authorized to give effect to the norms that make up the law on the books.
In such a situation, the severe confusion bred by the outcome-centered
promulgation of one set of norms and the straightforward promulgation
of another set of norms will consort with arrant indeterminacy. If the
of¬cials are authorized to have recourse to one set of norms and are also
authorized to have recourse to a markedly divergent set of norms, there
will be no determinately correct answers to a wide range of legal ques-
tions. In response to each of those manifold questions, the of¬cials are
entitled to render an af¬rmative verdict but are equally entitled to render
instead a negative verdict. Each verdict would be correct, and therefore
neither is determinately correct. Hence, in addition to muddling the pro-
cesses of promulgation, the existence of the unimplemented law on the
books will have given rise to massive indeterminacy within the normative
structure of the prevailing regime. Even if there were no other grounds
for the proposition that such a regime is not a legal regime, the massive
indeterminacy itself would be a suf¬cient ground for the truth of that
proposition.
In sum, far-reaching incongruities between the law as it is articu-
lated and the law as it is administered will be fatal to the existence of a
legal system. Though there may be a logical possibility of a legal system™s
operating with such extensive incongruities, there is not any credible
Elements of the Rule of Law 139


possibility. Those incongruities will accentuate the crippling drawbacks
of an outcome-focused method of promulgation, and will generate inde-
terminacy on a large scale whenever a regime™s of¬cials are permitted
and authorized to draw upon each side of the yawning division between
the law on the books and the law in practice. For all these reasons, then,
Fuller™s eighth principle of legality distills a necessary condition for the
functionality of a system of law. Quite a number of deviations from the
terms of the law on the books are tolerable, and some of those deviations
are clearly promotive of the ends of the legal system within which they
occur; but at a certain point (an unspeci¬able point) the divergences
between the law on the books and the law in practice become so gaping
as to scotch the very existence of such a system.
Let us now return to the matter that was deferred above. What is the
nature of interpretive pro¬ciency in the operations of a legal regime? That
is, what are the interpretive approaches with which the of¬cials of such a
regime can best seek to ensure that the implemented law tallies with the
formulated law? On the one hand, not very much can usefully be said
about this matter at the high level of abstraction on which this book is
proceeding. Appropriate interpretive techniques vary from legal system
to legal system, and likewise vary over time within each such system. On
the other hand, a few general points follow from the foregoing re¬‚ections
on the rationale for Fuller™s eighth principle. Although the speci¬cs of the
interpretive methods that commend themselves to of¬cials will depend on
the particular contexts of the of¬cials™ endeavors, the fundamental objec-
tive is to square the directing and coordinating function of the law-on-the-
books with the directing and coordinating function of the law-in-practice.
Only when the guidance furnished by the law™s formulations is largely
at one with the guidance furnished by the law™s applications, do of¬cials
avoid the pitfalls recounted in the last several paragraphs. A compre-
hensive match between the formulations and the applications is hardly
required, of course, but a considerable degree of correspondence is. Given
as much, two constraints are met by any genuine legal system. First, a key
aim of the of¬cials is to interpret and apply the formulations of the norms
of their legal system in accordance with what would be expected by a dis-
passionate observer who knows those formulations and who also knows
the interpretive canons that prevail within the system. Second, naturally,
those canons themselves “ which consist of technical conventions for
140 Objectivity and the Rule of Law


dealing with specialized legal terminology and concepts, but which also
draw upon all or most of the ordinary conventions of the language in
which the formulations of the legal norms are written “ are such as to
satisfy rather than dash the expectations of a dispassionate observer who
is familiar only with the formulations and with the language (such as
English) in which they are written. This second constraint is a crucial
supplement to the ¬rst, since it rules out interpretive canons that would
license and indeed require signi¬cant aberrations from the terms of the
law on the books. The second constraint leaves ample room for varia-
tions among legal systems in the technical conventions under which the
of¬cials of those systems construe specialized juridical parlance and cat-
egories. Such technical conventions can and do differ in line with other
differences among legal regimes. Their diversity is not at all precluded
by the second constraint. What that constraint closes off, instead, are
interpretive approaches that in effect displace the law on the books with
alternative arrays of norms. That second constraint is met in any genuine
legal system, since no such system will involve any large-scale displace-
ment of the sort just mentioned.
Also implicitly if not explicitly informing the interpretive judgments
of legal of¬cials are the common-sense assumptions that were ¬‚eetingly
touched upon in Chapter 1 ™s discussion of determinate correctness. That
is, legal of¬cials will be drawing on a medley of background beliefs con-
cerning the typical desires and inclinations and projects of human beings
generally and more speci¬cally of human beings in their society. Those
assumptions will enable the of¬cials to ascribe more concrete purposes
to the legal norms which they are called upon to apply, and will further
enable them to grasp the nature of the conduct on which those norms are
being brought to bear. The attunedness of adjudicators and administra-
tors to the purposive character of the behavior undertaken by lawmakers
and by ordinary citizens will not always be overtly expressed, but it will
always ¬gure in the interpretive endeavors of these law-applying of¬cials.
Any satisfactory attempts to sustain a state of congruence between the law
on the books and the law in practice will inevitably rest partly on such
attunedness. Fuller recognized as much when he devoted most of his
exposition of his eighth principle to a discussion of juridical interpreters™
efforts to unearth the purposes and intentions of lawmakers.
An emphasis on purposes in legal interpretation is consistent with
many different elucidative techniques that vary from one legal system to
Elements of the Rule of Law 141


another. In some jurisdictions, for example, the interpretation of statutes
is often informed by certain pronouncements of the legislators who were
chie¬‚y responsible for the enactment of those statutes “ or by other leg-
islative pronouncements that have occurred outside the con¬nes of the
statutes themselves. In other jurisdictions, adjudicators and administra-
tors are not allowed to make reference to such pronouncements. They
are required to focus on the wording of the statutes and to infer legisla-
tive purposes exclusively therefrom (with the aid of the common-sense
assumptions mentioned above, of course). Variations along these lines
and along many other lines are perfectly consistent with the two con-
straints broached in the penultimate paragraph above. Whatever may be
the details of the prevailing techniques for the ascertainment of legisla-
tive intentions and the elucidation of the statutes that are the products of
those intentions, the adjudicative and administrative of¬cials in a legal
system can warrantedly attribute a general awareness of those techniques
to the system™s legislators. Consequently, the adjudicative and adminis-
trative of¬cials are on solid ground in presuming that statutes are meant
to be interpreted in accordance with the aforementioned techniques.
Legislators intend that statutes should be understood as the legislators
expect them to be understood. Much the same can be said in connection
with other types of laws such as judicial doctrines and administrative
regulations “ and even in connection with the countless private contracts
that are drafted by experts in full awareness of the regnant interpretive
approaches to such documents. When legal of¬cials resort to the estab-
lished exegetical devices of their profession within their jurisdiction, then,
they are construing laws in conformity with the general intentions of
the makers of those laws (Raz 1996, 266“67). Such a result ensues from
the of¬cials™ compliance with the two constraints broached above. Their
compliance secures congruity between the law on the books and the law
in practice, by treating the law on the books as something purposive.
This discussion should close with a caveat. Much of what has been
said here might lead some readers to infer that the ful¬llment of Fuller™s
eighth principle typically involves arduous feats of interpretation that
unlock obscure meanings. Such feats are indeed sometimes needed, but
very often the tasks of of¬cials in applying the law are much more straight-
forward. We should not join the Critical Legal Scholars and the Legal
Realists in thinking that the knotty cruxes addressed by judges in dif¬cult
appellate cases are representative of the questions that arise from day to
142 Objectivity and the Rule of Law


day in a legal system. Quite the contrary. A large majority of the decisions
that have to be taken by administrative and adjudicative of¬cials are rou-
tine to the point of being humdrum, and do not confront those of¬cials
with any perplexing interpretive puzzles. Of course, while recognizing as
much, one should accept that most of the factors which in¬‚uence of¬-
cials™ deliberations in cases centering on tricky interpretive problems are
also at work in unexcitingly quotidian cases. The constraints applicable
in dif¬cult cases are likewise applicable in the innumerable routine cir-
cumstances that are handled by legal of¬cials daily. However, because the
satisfaction of those constraints is so easily accomplished in the presence
of the routine circumstances, it there goes ahead with virtually no con-
scious re¬‚ection and deliberation on the part of the relevant of¬cials.
In such contexts, the of¬cials can preserve congruence between the law
on the books and the law in practice quite perfunctorily, without any
carefully focused processes of exegetical contemplation. They draw on
the same assumptions that underlie their responses to more problem-
atic circumstances “ assumptions such as the common-sense beliefs that
have been noted above “ but they do so in a predominantly unre¬‚ective
manner. What should be underscored here is that most of the situations
faced by the of¬cials in any functional legal system are of this boringly
straightforward kind. When coming to grips with the implications of
legal norms for various sets of facts, legal of¬cials do not usually have to
engage in agonized interpretive deliberations. They can usually carry out
their interpretive responsibilities, which form a key part of their broader
responsibility to abide by the Fullerian principle of congruence, with
barely any thought and with no hesitation. Thus, although the effecting
of correspondences between the law on the books and the law in practice
does sometimes require a considerable degree of interpretive perspicacity
on the part of legal of¬cials (especially appellate judges), it much more
often requires simply the routine performance of each of¬cial™s role.



2.2. The Rule of Law as a Moral Ideal

Heretofore, this chapter has explored the rule of law as the state of affairs
that obtains when every one of Fuller™s principles of legality is satis¬ed
above some threshold level. Whenever such a state of affairs does obtain,
Elements of the Rule of Law 143


a functional legal regime is in existence. In other words, we so far have
pondered the rule of law in complete abstraction from the benignity or
malignity of particular legal norms and legal systems. My conception of
the rule of law, as it has been expounded hitherto, belongs to the domain
of legal philosophy rather than to the domain of political philosophy. It
is a jurisprudential conception. It sets forth the individually necessary
and jointly suf¬cient conditions for the existence of a regime of law. In
so doing, it is neutral on all moral and political questions “ questions,
for example, concerning the uses to which law should be put, the appro-
priate limits on legal regulation of individuals™ lives, the legitimacy or
illegitimacy of various patterns of differentiation among people under
the terms of legal norms, the conditions under which a regime of law
is a just regime, and so forth. The rule of law, as the realization of the
necessary and suf¬cient conditions for the existence of a legal system, is
itself morally neutral. It is indispensably serviceable for the pursuit of
benevolent ends on a large scale over a sustained period, but it is also
indispensably serviceable for the pursuit of wicked ends on such a scale
over such a period (Kramer 1999a; 2004a, 143“222; 2004b).
In the second half of this chapter, we shall be shifting our scrutiny to
the rule of law as a moral-political ideal. To mark the distinction between
the jurisprudential conception of the rule of law and the moral-political
conception, I shall henceforth use upper-case letters to designate the
phenomenon encapsulated by the latter conception: “the Rule of Law.”
Although the rule of law is of course fully consistent with the Rule of
Law and is indeed a vital prerequisite of it, the latter goes beyond the
former. To apprehend the nature of the Rule of Law, we have to discern
how matters of form can become matters of substance.
My discussion will proceed afresh by reference to Fuller™s eight princi-
ples of legality. Here, however, those principles will be considered not as
speci¬cations of individually necessary and jointly suf¬cient conditions
for the existence of a legal regime, but as precepts of political morality.
Not every legal system complies with all of those principles when they
are reelaborated as precepts of political morality; not every legal system
instantiates the Rule of Law.
Reconceived as doctrines of political morality, the Fullerian princi-
ples express the values of the liberal-democratic tradition. This book is
scarcely the place for an exhaustive survey “ or even a laconically selective
144 Objectivity and the Rule of Law


survey “ of the many different strands of that tradition. Let us simply note
that the liberal-democratic tradition comprehends thinkers such as John
Locke, John Stuart Mill, Immanuel Kant, Friedrich Hayek, John Rawls,
and Robert Nozick. Those thinkers and the numerous other distinguished
proponents of liberal democracy during the past four centuries have dis-
agreed with one another over many issues, but there are some points on
which most of them concur. Central to the liberal-democratic tradition
has been an emphasis on the liberty and autonomy and dignity of the
individual, on the fundamental legal and political equality of persons, on
equality of opportunity, on the responsibility of governments to protect
the lives and basic well-being of their citizens, on the importance of rea-
soned deliberation and justi¬cation in the domain of public power, on
opportunities for adults to participate in elections and in other forms of
political activity, and on the separation of powers of government. These
values come to fruition in the Rule of Law. They are the values whose
formal dimensions are enshrined in Fuller™s principles, insofar as those
principles are presented as a compendium of the Rule of Law. As we shall
see, the shift of our focus from the rule of law to the Rule of Law brings
with it a shift “ an enrichment “ in the signi¬cance of each of the afore-
mentioned principles.


2.2.1. Governance by General Norms

When the ¬rst principle of legality is advanced as a strictly jurisprudential
thesis, it lays stress on the key role of general norms in enabling and con-
stituting the existence of any legal system. Without denying the need for
countless individualized directives in every such system, the principle of
generality “ qua jurisprudential thesis “ maintains that no legal regime
could function as such in the absence of general norms. Those norms
are the principal laws of any such regime, and most of the individual-
ized directives therein are applications of them. Without generality in its
normative structure, a system of law would not be a system of law at all.
The jurisprudential signi¬cance of generality, which has been exam-
ined at much greater length in Section 2.1.1 , is certainly not denied or
discounted when Fuller™s ¬rst principle is reunderstood as a tenet of the
Rule of Law. However, that signi¬cance is supplemented by the moral-
political import of the property of generality in legal institutions. Before
Elements of the Rule of Law 145


we investigate that import, we should brie¬‚y take account of a distinction
highlighted in other contexts by the moral philosopher Richard Hare: the
distinction between the generality/speci¬city dichotomy and the univer-
sality/particularity dichotomy (Hare 1963, 38“40; 1981 , 41 ; 1989). This
distinction has heretofore been left aside in my remarks on generality,
and it went entirely unnoticed by Fuller. For my purposes, moreover, the
contrast drawn by Hare can and should be somewhat softened. Never-
theless, a terse summary of that contrast will help to sharpen the focus
of the present discussion.
Generality, which is always a matter of degree, consists in abstraction
from the more concrete or detailed features of things. If two features
can be ranked in their generality, and if the possession of one of them
entails the possession of the other, the entailment always runs from the
more speci¬c feature to the more general feature rather than vice versa.
Thus, for example, the property of being a lion entails the property of
being an animal but not vice versa. General laws prescind from many
concrete qualities of the instances of conduct to which they apply. A law
proscribing murder, for example, will have abstracted from the speci¬c
features that earmark various types of murders (strangulations versus
shootings versus stabbings, and so forth).
Universality differs from generality. A formulated norm is universal if
and only if it contains no named references to particular entities such as
individuals or times or places. A named reference to Abraham Lincoln or
to the year 1922 or to France, for instance, would deprive a formulation of
its universality. Still, although any named reference to a particular person
or thing is inconsistent with universality, speci¬city is not; a universal

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