LINEBURG


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norm can be highly speci¬c. A law prohibiting anyone with red hair and
brown eyes from watering rhododendrons on Thursdays, for example, is
expressive of a universal norm in spite of its detail. Such a law contains
no named references to particulars, even though its references to types
(types of hair, eyes, ¬‚owers, and days) are quite concrete.
As has been readily avouched, my expositions of generality have until
now ignored the contrast between the generality/speci¬city dichotomy
and the universality/particularity dichotomy. There has not really been
any need to take account of that contrast, since “ for my purposes “ partic-
ularity can be regarded as an extreme form of speci¬city. In the present
context, however, the distinction between speci¬city and particularity
146 Objectivity and the Rule of Law


is worthy of attention for the very reason why it has hitherto been preter-
mitted. That is, we should take note of that distinction in order to be
attentive to the af¬nities between speci¬city and particularity. If most
named references to particular persons in laws are pernicious or invid-
ious, then so too are most highly speci¬c but unnamed references to
particular persons. From a moral-political perspective, the effects of a
reference of the latter sort will typically be as objectionable as the effects
of a reference of the former sort.
Of especially grave concern here are so-called de¬nite descriptions:
descriptions that each employ a suitable formulation (usually with the
de¬nite article “the”) to single out a particular person or entity without
naming him or her or it. Thus, “the tallest man who has ever watered
rhododendrons on a Thursday” is a description that picks out some
particular individual without naming him or any other particular entity.
Though such a description is universal, its bearings as an object of moral
assessment are pretty much the same as the bearings of a description
that does include a named reference to an individual. (Notwithstanding
that de¬nite descriptions single out particulars, many of them are not
useful guides for identifying those particulars. The example of a de¬nite
description just above is hardly a very useful guide for identifying the
man to whom it uniquely refers. Even more obviously of little value for
identi¬cation would be the de¬nite description “the largest galaxy that
has not yet been discovered by anyone.” A de¬nite description along
those lines will become inapplicable to its unique referent as soon as that
referent has been identi¬ed as a galaxy.)
Similarities among de¬nite descriptions, named references to partic-
ulars, and highly speci¬c descriptions are of course important for the rule
of law as well as for the Rule of Law. As was argued earlier, the basic func-
tioning of law will be fatally impaired by sustained and sweeping depar-
tures from the Fullerian principle of generality. That result will ensue
irrespective of whether the departures have occurred through de¬nite
descriptions or through named references to particulars or through highly
speci¬c descriptions or through some combination of these generality-
forsaking devices. If an overabundance of the norms in a legal regime are
divested of generality by being formulated with any of those devices, the
regime will have lost its functionality as a system of law. Similarities among
the effects produced by such devices are thus of great jurisprudential
Elements of the Rule of Law 147


signi¬cance. However, those similarities are especially important in the
present subsection, where we are focusing on the Rule of Law and where
we have thus moved from solely jurisprudential concerns to concerns
of political morality. Although the potential deplorableness of each one
of the generality-forsaking devices in the law is distinct in some respects
from that of each of the others, the potential deplorableness resides mainly
in what is common among those devices. We should be aware that the
evils of named references to particular persons in the formulations of legal
norms are not eliminated or even alleviated when the aims of such ref-
erences are accomplished instead through the other generality-forsaking
means. Indeed, those evils are to some degree compounded when the
other generality-forsaking means have been employed.
Before we consider the special vices of the means just mentioned,
we should mull over the broader moral-political drawbacks of devia-
tions from generality in the law. At the outset, let it be emphasized that
not all such deviations are regrettable. Many of those deviations in the
form of individualized directives are necessary for the functioning of a
legal system, as has already been observed. Quite a few other departures
from generality are likewise salutary, in that they re¬‚ect morally signi¬-
cant differences among people in apposite ways. Anyone should happily
acknowledge as much. However, we are interested here in the countless
other derogations from generality that are not salutary “ the derogations
from generality that detract from the Rule of Law.
Of course, one key respect in which the undesirable deviations from
generality are objectionable is directly related to their jurisprudential sig-
ni¬cance. They impair the rule of law; that is, they impair the functionality
of any legal system in which they occur. Cumulatively, they can be fatal
to that functionality. Consequently, they endanger the realization of the
desiderata for which a legal system is indispensable “ desiderata such
as public order, the coordination of people™s activities and of a society™s
institutions, and the preservation of individual freedom. That detrimen-
tal effect is certainly one of the ills against which the Fullerian principle
of generality (as a principle of the Rule of Law) is an admonition. Even if
that pernicious effect is left aside, however, there are solid moral-political
grounds for wariness of legal norms that are individualized or highly spe-
ci¬c in their compass. Some such norms are benign, of course, but many
are not.
148 Objectivity and the Rule of Law


Individualized directives and highly speci¬c formulations, precisely
because of their peculiar limitedness, lend themselves to nefarious pur-
poses. Save where they are the vehicles for implementing general norms “
that is, save where they are judicial orders or administrative decrees that
apply general laws to particular cases and individuals “ they cut against
the aspiration of the Rule of Law toward fundamental legal equality
and fairness. They are serviceable for nepotism and other varieties of
favoritism (such as tax loopholes for people who ¬t very narrowly speci-
¬ed descriptions), and they are equally serviceable for invidious modes of
discrimination against members of despised groups. They can amount to
stratagems for circumventing adjudicative processes or other procedures
that might stand in the way of the accomplishment of legal-governmental
of¬cials™ objectives; such stratagems, which are exactly what the American
Constitution™s prohibition on bills of attainder was designed to avert, are
antithetical to the basic liberal-democratic value of due process. When
legislators or other of¬cials decline to subject themselves to the discipline
of coming up with a law that is addressed broadly (to all people within the
jurisdiction or to some sizable subset of those people), and when they opt
instead for a law that is addressed very restrictively, they lessen their own
incentives for ensuring that the legal norm in question is recognizable as
fair from many different perspectives.
Named references to particular individuals in laws can seem espe-
cially odious because they run so strongly against the ideal that peo-
ple who are similarly situated should be treated alike (in the sense of
being subject to the same requirements and endowed with the same enti-
tlements concerning the respects in which they are similarly situated).
However, de¬nite descriptions and highly speci¬c descriptions can be
disingenuous means of subverting that same ideal, even though their
terms are universal rather than particularistic. Indeed, it is the devious-
ness of such devices “ when they are put to illegitimate purposes “ that
intensi¬es their disreputability. The straightforwardness of named ref-
erences to particular individuals in the formulations of legal norms is
more conducive to public scrutiny than is the circuitousness of the other
generality-forsaking devices. Insofar as the named references are morally
dubious, their dubiousness is undisguisedly open for debate. De¬nite
descriptions and highly speci¬c descriptions are often not comparably
transparent. As has already been mentioned, de¬nite descriptions are not
Elements of the Rule of Law 149


always handy guides for the identifying of their referents; much the same
can be said, of course, about highly speci¬c descriptions. Although the
opacity of laws containing such descriptions will probably be quite easily
penetrable in most circumstances, it adds an extra degree of unsavoriness
to the other grounds for a distrust of such laws.
In at least one respect, to be sure, named references to particular
persons in the formulations of legal norms can be singularly deplorable.
When incorporated into laws that prescribe forms of harsh treatment
for the designated persons, such references can serve (and be intended
to serve) the purpose of public humiliation. In that role, the named
reference itself is a form of punishment and is thus an especially nasty way
of circumventing the normal adjudicative and administrative procedures
that determine when and how punishments are to be levied. Still, even
though the other generality-forsaking devices are not quite as blatant
and effective as named references in drawing down public opprobrium
upon certain individuals, they too can powerfully perform that function.
Except in contexts where their relative obliqueness thwarts any ready
identi¬cation of their referents, the other generality-forsaking devices “
in laws that impose disadvantages “ will provocatively call attention to
the individuals whom they are singling out. The very disingenuousness
of any such device, which is objectionable in itself, can also convey a slyly
taunting message.
At any rate, although the different generality-forsaking tactics diverge
in some respects, their principal effects are the same when they are used
improperly in the formulations of legal norms. They are in tension if not
outright con¬‚ict with some of the central values of liberal democracy,
such as equality and fairness and due process. Accordingly, the standing
laws of a system of governance “ as opposed to the orders and decrees
through which those laws are applied to particular individuals or groups “
should rarely be formulated with the generality-forsaking devices. Fuller™s
¬rst principle, understood not only as a jurisprudential tenet but also as
a precept of political morality, warns against those devices. They are
not always to be eschewed, of course, but they are to be used very spar-
ingly and cautiously. If they are used frequently in the standing laws
of a society, then they will imperil the sheer existence of the society™s
legal system and will likewise imperil some key liberal-democratic values
that may be instantiated by that system. Even when they are used only
150 Objectivity and the Rule of Law


infrequently “ and therefore even when they do not endanger the exis-
tence of a legal regime “ they can dismayingly encroach upon those
liberal-democratic values. In short, the moral-political reasons for dis-
trusting the generality-forsaking devices are even more far-reaching than
the jurisprudential reasons.


2.2.2. Public Ascertainability

As we have seen, a regime™s compliance with the Fullerian principle of
promulgation is essential for the performance of law™s guiding and coor-
dinating function. If people (including any expert assistants) are kept in
the dark about what they are legally required and permitted and autho-
rized to do, then the norms of their ostensible legal regime will not be
directing their behavior. That regime will not be operating as a genuine
regime of law.
In a nutshell, the foregoing paragraph recounts the main grounds
for the strictly jurisprudential version of Fuller™s second principle. Those
grounds will be supplemented here by considerations of political moral-
ity, as we turn to the version of the second Fullerian principle that articu-
lates a requirement of the Rule of Law. Considerations of political moral-
ity do not, of course, call for apprising every citizen of the content of
every legal norm. Such a ridiculously burdensome aspiration does not
follow from liberal-democratic values any more than from jurispruden-
tial concerns. What is required instead is precisely what is needed for the
existence of a functional legal system: the public ascertainability of the
system™s norms. Most citizens at any given juncture will be unfamiliar
with the terms of most laws, but they persistently have opportunities
to become familiar with the terms of any of those laws (probably with
the assistance of experts). Reasonable ascertainability, rather than actual
ascertainment, is the desideratum to be sought.
Moral-political considerations weighing in favor of the promulga-
tion of laws are several. In the ¬rst place, of course, the goods that are
made possible by the existence of a legal system “ public order, social
coordination, secure individual freedom, and so forth “ will be atten-
uated by signi¬cant departures from the principle of promulgation. If
the departures are sweeping and sustained, and if the very existence of a
functional legal system is consequently undermined, those goods may be
Elements of the Rule of Law 151


lost altogether. Beyond such concerns relating directly to the necessary
conditions for the functionality of a legal regime, however, some central
liberal-democratic values are at stake.
If duty-imposing laws are not promulgated, then citizens will not have
been given any fair opportunities to conform their behavior to the terms
of those laws. Unless the citizens are lucky enough to comply unknow-
ingly with the undisclosed legal mandates, they will unwittingly have
rendered themselves liable to be penalized for acting athwart the duties
established by those mandates. Without any adequate warnings, the coer-
cive might of legal-governmental institutions will have become directed
against them. From the perspective of the citizen, the wielding of that
coercive might by legal-governmental of¬cials in any such situation is
arbitrary. It is undertaken in effectuation of some legal requirement, but
the requirement could not have been known to the citizen at the time of
his transgressive conduct. His status as a moral agent “ his moral auton-
omy “ has not been properly respected. Because he is such an agent, his
society™s legal-governmental institutions should present him not just with
reasonable options but also with reasonable opportunities to learn what
the options are. When a regime does not promulgate a legal mandate,
it withholds those crucial opportunities. Hence, even if the unascertain-
able mandate itself is fair, the regime has shown disrespect for the people
whom it governs.
Another virtue of the promulgation of laws was touched upon by
Fuller (Fuller 1969, 51). When the contents of legal norms are accessi-
ble to members of the public in a society that allows ample latitude for
the expression of political sentiments, those norms are open to debate
and challenge. The ability of people to inform themselves of the terms
of various laws is invaluable not only because they can then adjust their
behavior, but also because they are then in a position to impugn those
laws on the basis of solid knowledge rather than on the basis of ignorance
and uninformed speculation. Public scrutiny of the products of legal of¬-
cials™ doings is dependent on the regularized disclosure of those products
and doings. Such scrutiny is typically salutary both ex post and ex ante.
It naturally helps to improve laws that are already on the books, but it
also tends to work its ameliorative effects beforehand. When legislators
and other legal of¬cials in a liberal democracy know that the laws which
they devise are going to be subjected to the gaze of the public at large,
152 Objectivity and the Rule of Law


they will have strong incentives to come up with laws that are not man-
ifestly unfair or dubious. Such of¬cials will have incentives to anticipate
plausible objections to their formulations of legal norms, and to defuse
or satisfy those objections by addressing the concerns from which they
would stem. The proneness of governing of¬cials to develop an arrogant
sense of their own wisdom and rectitude will therefore be somewhat
checked.
Admittedly, the openness of legal norms to public scrutiny might
be more detrimental than salutary in some contexts that are not wholly
outlandish. In a society where racist sentiments are widespread among
the citizenry, for example, the public ascertainability of laws may well
inhibit legislators and other of¬cials from adopting legal norms that run
against those repugnant sentiments. Still, even if a practice of concealing
certain laws or certain portions of laws might embolden the of¬cials to go
further in tackling the hardships of racial minorities than they otherwise
would “ an upshot that is hardly inevitable “ such a subterfuge would
also involve considerable disrespect for the moral agency of the members
of the public. Instead of engaging with citizens through exhortation and
rational persuasion, the of¬cials would be stealthily dodging the citizens™
rational faculties. A tack of that sort might be justi¬able if the good
achieved is substantial and if the likelihood of its being achieved in a more
candid fashion is nil. Nonetheless, the chicanery of such an approach is a
regrettable aspect of it. Moreover, the potential justi¬ability of a practice
of concealment in relation to some legal norms would scarcely warrant the
extension of that practice to other legal norms. (Note that nothing in this
paragraph presupposes that honesty is invariably a virtue. If somebody
passes vital state secrets to a loathsomely aggressive and tyrannical enemy,
his communication is not made morally better by being sincere and
accurate.4 What has been presupposed here is simply that frankness is
normally a virtue in the interaction between legal-governmental of¬cials
and citizens. When circumstances are such that the of¬cials have to eschew
frankness in order to accomplish some morally compelling objective, the
need for dissimulation is a matter for regret though not for remorse.)

4 For a much longer argument against the view that honesty is inherently or invariably a virtue,
see Kramer 2004a, 208“10.
Elements of the Rule of Law 153


Yet another moral-political factor militating in favor of the promul-
gation of laws is that members of the public will then be in a position
to ascertain whether the laws are being implemented in accordance with
their terms. In other words, promulgation facilitates public scrutiny not
only of the laws themselves but also of their applications. This point is of
particular importance in connection with legal mandates that are never
enforced, and in connection with laws which establish public powers that
are never exercised or private powers that are never effectuated. If citizens
are unable to learn of the existence of those mandates and those power-
conferring laws, they will not be able to know that the of¬cials are being
remiss. Laxity in giving effect to certain laws is by no means always unde-
sirable, but its desirability or undesirability is usually a proper topic for
public debate. If the laws themselves are withheld from the ken of citizens,
then only the of¬cials will be able to gauge whether their own diligence
or slackness in giving effect to those laws is appropriate. Except in rare
circumstances, judgments on a matter of that sort are not best reserved
solely for an elite coterie of of¬cials. Administrators™ and adjudicators™
views on such a matter should often carry special weight, of course, but
ordinary citizens should be able to have a say as well.
To be sure, these sundry moral-political considerations in favor of
the principle of promulgation do not support the notion that every law
should be publicly ascertainable. Fuller™s second principle, construed as
a precept of political morality, is no more an uncompromising dogma
than are any of his other principles. We have already considered one
context (of widespread and inveterate racism) in which some degree of
dissimulation might be morally optimal. Some other credible contexts “
involving concerns of national security, for example “ might similarly be
handled best through furtive approaches. The point of this discussion has
not been to suggest that the factors in favor of promulgation always over-
top any countervailing considerations; indeed, my purpose has not even
been to suggest that those factors invariably weigh to some extent in favor
of promulgation. Such blanket claims are neither necessary nor tenable.
Instead, the aim here has simply been to highlight some moral-political
values that will typically call for the public accessibility of laws. Fuller™s
principle of promulgation, in its moral-political version, encapsulates
those values.
154 Objectivity and the Rule of Law


2.2.3. Prospectivity

Like the principle of promulgation, the principle of prospectivity does not
articulate an unremittingly across-the-board requirement. As was argued
earlier, some retroactivity in law-making is unavoidable and desirable.
All the same, the potential injustices of retroactive laws are evident, and
consequently the moral-political considerations that frequently militate
against retroactivity are evident as well.
Some retroactive modi¬cations of the law might conceivably be so
predictable that everyone affected by them will have had a fair opportunity
to take account of them at the time to which they pertain (rather than only
at the time when they occur). Such a situation is not inconceivable, but
it is extremely unlikely in any actual legal system. Far more likely is that
any retroactive modi¬cation of the law will have caught unawares some
or all of the people who are affected by it. Given as much, those people
will have had no fair opportunity to bring their behavior into conformity
with the law™s new prescriptions. Nobody can go back through time
to adjust his or her behavior retroactively. Fuller commented on this
problem exclusively in connection with duty-imposing laws “ he dwelt
on “the brutal absurdity of commanding a man today to do something
yesterday” (Fuller 1969, 59) “ but the problem also arises in connection
with other laws. For example, if a signi¬cant change in the contract law
of a jurisdiction is made retroactive, and if the change was not fully
predictable at the time to which it reaches back, it will almost certainly
disadvantage some people who followed the then-prevailing procedures
for contractual formation to the letter. Their fate is as unfair (in most
circumstances) as the fate of people to whom a retroactive duty-imposing
law applies detrimentally. In each case, the addressees of the law are in
effect told today to do something yesterday. Such an upshot devalues the
capacity of each addressee to deliberate and choose as a moral agent. Legal
consequences supposedly determined by individuals™ choices are actually
determined after the fact by the countermanding decrees of of¬cials.
People™s expectations, which might be admirably reasonable at the time
when they are formed, will have been dashed.
Any frequent disruptions of legitimate expectations are not only
unfair to the individuals directly involved but are also inimical to the
ef¬cient workings of an economy. If the legal framework of an economy
Elements of the Rule of Law 155


is unreliable because of retroactive reversals, producers will typically be
less inclined to engage in venturesome undertakings, and consumers will
typically be less inclined to engage in major transactions. This point is
applicable regardless of whether an economy is predominantly capitalis-
tic or predominantly socialistic. Hence, the integrity of the status of every
sane adult as a moral agent is not the only important moral-political fac-
tor that weighs against many retroactive changes in the law. Also at stake
is the prosperity of a society as a whole. Though retroactive legal norms in
appropriate contexts can promote a society™s ¬‚ourishing, their presence
in inappropriate contexts will produce an opposite effect.
More widely, of course, an overabundance of retroactive legal norms
will tend to subvert the continued functionality of a regime of law. In
that event, the deleteriousness of such an overabundance will be felt not
only in a society™s economy but also in virtually all other aspects of the
lives of the people therein. If a legal system ceases to exist and operate
as such, then its ordering and coordinating and stabilizing effects will
have fallen by the wayside. The jurisprudential momentousness of such
an eventuality is matched by its moral-political gravity.
Quite sharp restrictions on the use of retroactive laws, then, are dic-
tated by several considerations of political morality: the salutariness of fair
notice for those who receive it and for those who are required to undergo
the discipline of providing it; the dignity of the moral agency of each
individual; the importance of upholding people™s legitimate expectations;
the pursuit of ef¬ciency in a society™s economic activities; and the general
desiderata to which the existence of a legal system is prerequisite. None
of these factors comes close to warranting the wholesale disallowance of
retroactive laws, of course. It is sometimes necessary or desirable (or both

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