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necessary and desirable) for the law to reach backward in time. All the
same, the moral-political factors that militate against the use of retroac-
tive laws are germane and weighty in many contexts. We do not need to
look at extreme examples of iniquities “ such as the Nazis™ retroactive
legalization of the carnage committed by Adolf Hitler and his follow-
ers on the Night of the Long Knives (Fuller 1969, 54“55) “ in order to
grasp the potential harmfulness of legal retroactivity. Even in much more
humdrum settings in far more commendable legal systems, after-the-fact
alterations of legal requirements or of legal authorizations are very often
at odds with a proper respect for the moral agency of the law™s addressees.
156 Objectivity and the Rule of Law


2.2.4. Perspicuity

Moral-political considerations broadly similar to those just invoked are
linchpins of Fuller™s fourth precept “ the principle of perspicuity “ when
that precept is understood as recounting a key element of the Rule of Law.
If the terms of laws are hopelessly obscure or uninformative (even when
perused by legal experts), then citizens will not be able to ascertain what
they are being authorized or required or permitted to do. If the unclarity
af¬‚icts large swaths of the law in some jurisdiction over sustained peri-
ods of time, then it will be of jurisprudential signi¬cance; it will fatally
undo the functionality of the jurisdiction™s legal system. Well before any
unclarity proliferates on that scale, however, the moral-political grounds
in favor of the principle of perspicuity will have been triggered.
On the one hand, laws sometimes have to be framed in uninforma-
tively abstract terms in order to preserve ¬‚exibility. In certain areas of
legal regulation (for example, in areas relating to advanced technology),
some statutes and judicial doctrines might be inadvisably con¬ning if they
were to be enunciated in narrowly focused language. Insofar as narrow-
ness and concreteness would indeed undesirably cramp the achievement
of the purposes of those laws, the adoption of wispily open-ended for-
mulations may well be justi¬ed. Such departures from the principle of
perspicuity are to be regarded with circumspection, but there is no rea-
son for thinking that they will never be warranted. Legislators sometimes
act most wisely in leaving administrators and adjudicators with very lit-
tle informative guidance, so as to allow them to develop more detailed
standards in the course of dealing with concrete situations and problems.
On the other hand, although a very high level of abstraction in legisla-
tion and some other sources of law is doubtless desirable in certain areas,
it almost always carries drawbacks as well as advantages. Chief among
those drawbacks, manifestly, is that the abstractly formulated laws present
a dearth of clear-cut guidance to citizens. Such a state of affairs detracts
from a legal system™s ful¬llment of its role in directing and coordinating
human behavior, and thereby detracts from the provision of citizens with
fair notice of what they are legally obligated or permitted or empowered
to do. When citizens have to await the devising of perspicuous standards
by administrators at some later juncture, they will have to rely heavily on
conjectures in the meantime. In ¬elds such as medical experimentation
Elements of the Rule of Law 157


and high-technology communications, people (including lawyers) for
quite long periods may be largely at a loss in gauging the legal conse-
quences of their own actions and other people™s actions. Note that the
problem here does not arise from indeterminacy in the law. Abstract stan-
dards can be just as determinate in their implications as are much more
concrete standards. Rather, the problem consists in uncertainty. Once
again, that is, the distinction between indeterminacy and uncertainty has
an important bearing on the matters discussed by this book. Although
laws formulated at a rare¬ed level of abstraction can yield determinate
implications for a wide array of concrete cases, the task of identifying
those implications will very likely be fraught with uncertainty and con-
troversy. Even if the unclarity in the law and the consequent uncertainty
are not nearly so severe and extensive as to threaten the existence of a
legal system, they obviously compromise the ideal of giving people fair
notice of the legal consequences that attach to various modes of conduct.
In that respect, any reliance by legislators and other lawmakers on unin-
formatively abstract formulations is in tension with a due regard for the
moral agency of the law™s addressees.
Moreover, while a very high degree of abstraction in the law is some-
times amply justi¬ed in order to accommodate the dynamic character of
certain ¬elds of human endeavor, there is no comparable justi¬cation for
outright obscurity in the terms of legal norms. To be sure, legal of¬cials
often have to draw upon a technical jural vocabulary in their formula-
tions of legal norms “ both for the sake of precision and for the sake
of succinctness. However, although that technical parlance is probably
opaque to most ordinary citizens, it is readily intelligible by lawyers and
other legal experts. As was indicated in my earlier discussion of Fuller™s
fourth principle, the point of reference for gauging the perspicuity of
laws is the legal expert™s understanding rather than the ordinary citizen™s
understanding (provided that the assistance of legal experts is affordably
available to all or most citizens). Hence, the need for some specialized
juridical jargon in the phrasing of laws is not indicative of any need for
obscurity therein. Nor is there any other basis for an acceptance of gen-
uine obscurity. If laws are drafted in terms that nonplus legal experts as
well as ordinary people, their murkiness is a shortcoming without any
concomitant advantages. Such murkiness impairs the ef¬ciency of a legal
system™s operations “ and thus impairs the realization of the goods that
158 Objectivity and the Rule of Law


are attainable through those operations “ and it clashes with the ideal of
fair notice recounted in my last paragraph. It stymies the capacity of each
citizen to become aware of the legal obligations or authorizations or per-
missions that are formulated in the impenetrable language. Pro tanto, it
accordingly stymies the capacity of each citizen to make informed choices
about the legal implications of his or her actions.
In short, the principle of perspicuity “ put forth not only as a jurispru-
dential thesis but also as a precept of political morality “ does not cat-
egorically disallow the use of wispy abstractions in the formulations of
legal norms, but does categorically disallow the use of murkily unintelli-
gible phraseology. There is never any adequate justi¬cation for the latter.
Whereas the tension between generality and clarity is sometimes to be
resolved in favor of uninformative abstractness, there is no comparable
reason for ever resolving the con¬‚ict between opacity and clarity in favor
of incomprehensible obscurity. Such obscurity, whether on a small scale
or on a jurisprudentially signi¬cant scale, is always at odds with the Rule
of Law.


2.2.5. Against Conflicts and Contradictions

More than some of the other Fullerian principles of legality, the principle
of noncon¬‚ictingness and noncontradictoriness differs importantly in its
moral-political guise from its jurisprudential counterpart. As was argued
earlier, the rule of law is consistent with a state of affairs in which every
person is under myriad pairs of con¬‚icting legal obligations, so long as
the penalties within each pair are lop-sided. However, although such a
state of affairs is consistent with the rule of law, it is incompatible with
the Rule of Law. No one should frequently ¬nd himself in situations in
which he will be liable to undergo penalties for his conduct regardless of
what the conduct may be. If somebody is legally obligated to do X and
legally obligated to abstain from doing X, his dignity as a moral agent is
compromised even if he faces a meaningful choice because of the disparity
between the threatened penalties. If a predicament of that sort confronts
him in many an aspect of his life, then his dignity as a moral agent is being
¬‚outed unacceptably. To show due esteem for that dignity, a legal system
must not only enable meaningful choices but must also permit them.
When somebody is under con¬‚icting legal duties, any possible course of
Elements of the Rule of Law 159


conduct on his part is legally impermissible. That state of inescapable
impermissibility obtains whether or not one of the two options open
to him (doing X or not doing X) is preferable to the other because the
penalties attached to it are less severe. No legal system that instantiates
the Rule of Law can allow situations of inescapable impermissibility to
occur with frequency. Intrinsic to the Rule of Law is that every person
will normally be able to act in such a way that he can avoid any violations
of the law. If instead legal impermissibility is regularly inescapable, the
prevailing legal regime is exerting a repressively far-reaching hold over
the lives of the people who are subject to its control. It too seldom leaves
them any respite from the sway of its requirements. No regime with such
an unremitting grip over its citizens can be liberal-democratic.
We should not quite conclude, however, that con¬‚icting duties will be
absent altogether whenever the Rule of Law is realized. On the one hand,
various techniques of legal interpretation can indeed eliminate con¬‚icts
from the law of a jurisdiction (Fuller 1969, 66“69; Williams 1956, 1140“41).
When confronted with legal materials that appear to impose on someone
both a duty to do X and a duty to abstain from doing X, adjudicators
and administrators will typically be inclined to do their best to construe
the materials in such a way as to resolve the con¬‚ict. For example, if the
con¬‚icting duties are respectively imposed by statutes enacted at different
times, the adjudicators or administrators may treat the relevant provi-
sions of the later statute as superseding those of the earlier. Through
such methods, legal interpreters can smooth away con¬‚icts in order to
ensure that at least one course of action open to anyone will not involve an
infraction of the law. Nobody will face the prospect of inescapable imper-
missibility. On the other hand, such an upshot is hardly preordained, and
it will not always be optimal on moral-political grounds. Within any large
legal system, there will almost certainly arise some situations in which
the ¬nessing of con¬‚icts between legal obligations is undesirable.
For instance, suppose that Jeremy has formed a contract with Susan
whereby he undertakes to be present at a certain place on a certain day
during a certain stretch of time. Suppose further that he subsequently
forms “ or has previously formed “ a contract with Melanie whereby
he undertakes not to be present at the speci¬ed place on the speci¬ed
day during the speci¬ed stretch of time. Each of his contractual partners
has spent money or made arrangements in reliance on the undertaking
160 Objectivity and the Rule of Law


received. Now, in these circumstances, the of¬cials responsible for giv-
ing effect to legal requirements could undoubtedly handle the con¬‚ict
between Jeremy™s contractual duties by holding that in fact only one of
those duties exists. They might, for example, declare that his ¬rst contract
takes priority over the second. Nonetheless, although a con¬‚ict-resolving
approach (of the sort just mentioned or of some other sort) would man-
ifestly be feasible, it would most likely be unacceptably unfair to one or
the other of the two contractual partners. In the absence of special miti-
gating factors, Jeremy should not so leniently be absolved of the burden
of dealing with the quandary in which he has placed himself. His moral
agency is not compromised by his being directed to live up to the obli-
gations which he has incurred. Inevitably, of course, he will breach one
of those two obligations. Either he will be present at the speci¬ed place
during the speci¬ed span of time, or he will not. Accordingly, regardless
of how he acts, he will be liable to incur an additional legal obligation to
remedy his breach (most likely through the payment of compensation).
In the circumstances depicted, however, such an outcome is maximally
fair to all parties concerned. Given the credible possibility of situations
of this kind, we should not construe Fuller™s ¬fth principle as a blan-
ket disallowance of con¬‚icting duties. Any such constraint would be too
rigid for the Rule of Law. In some cases, the Rule of Law “ with its
expressed values of human equality, individual dignity, and fairness “ is
promoted rather than hindered by the preservation of con¬‚icting duties in
the law.
As the example in the last paragraph suggests, the inadvisability of
eliminating all con¬‚icts between legal duties is particularly evident in
connection with duties that have been voluntarily incurred. Even in con-
nection with obligations that are imposed by statutes or administrative
regulations, however, there can conceivably arise con¬‚icts that should
not be smoothed away by interpretive maneuvers. Still, although such
innocuous con¬‚icts are certainly possible and sometimes actual, they
are exceptional. In general, the existence of con¬‚icting duties is some-
thing to be avoided rather than something to be sought or encouraged.
No liberal-democratic system of governance can condone a situation in
which the pairs of con¬‚icting duties incumbent on people are numerously
wide-ranging. As has been remarked, such a situation would spread the
interdictory sway of the system far too broadly. Not all con¬‚icts between
Elements of the Rule of Law 161


legal duties should be averted or dispelled, but no liberal-democratic
scheme of things can countenance the proliferation of such con¬‚icts.
Everything said so far in this subsection is applicable to pairs of con-
¬‚icting duties even if the penalties attached to the duties in each pair are
grossly unbalanced. Whether the penalties associated with two con¬‚ict-
ing duties are approximately equivalent or gapingly disparate, somebody
in a situation marked by those duties will be subject to penalties irrespec-
tive of how he behaves. Only exceptionally can the occurrence of such
a plight be squared with liberal-democratic values. A fortiori, then, the
prevalence of pairs of con¬‚icting duties will be irreconcilable with liberal-
democratic values if the penalties within each pair are evenly balanced.
Not only would such a state of affairs be redolent of the chief vice that has
just been highlighted “ the vice of the overextension of a legal regime™s
duty-imposing grip on its citizens “ but in addition it would imperil the
very existence of the rule of law (and thus the very existence of the Rule
of Law). As was argued in my exposition of the jurisprudential version
of Fuller™s ¬fth principle, the basic function of law as a system of author-
itative direction for channeling and coordinating human behavior will
be undermined if con¬‚icting duties that carry equivalent penalties are
pervasive rather than very uncommon. A regime will be failing to guide
the conduct of citizens with minimal ef¬cacy, if it supplies them with
equally strong reasons for doing X and for not doing X in many areas
of their lives. This point is a jurisprudential point, but it is also a preg-
nant point of political morality. After all, the Rule of Law cannot exist
without the rule of law. If the rampancy of con¬‚icting duties subverts
the functionality of a legal regime as such, it precludes the attainment of
the desiderata for which the functional existence of a regime of law is a
necessary condition (at least in any sizable society). It precludes, among
other things, the attainment of the values whose realization constitutes
the Rule of Law.
Similarly damaging would be the prevalence of contradictions within
the authoritative materials of a legal system. We should ¬rst note that,
unlike some con¬‚icts, contradictions are always detrimental to the Rule
of Law even if they are not abundant. Whereas the preservation of some
con¬‚icts between legal duties can be promotive of the Rule of Law “
because individuals are thereby impelled to assume responsibility for
their obligation-incurring actions, or because the legitimate expectations
162 Objectivity and the Rule of Law


of innocent third parties are thereby protected “ the presence of contra-
dictions in the authoritative materials of a legal system is never salutary,
even defeasibly. Of course, as has been observed, a legal system in its
adjudicative and administrative workings can never contain any genuine
contradictions. Whenever the formulated norms of such a system appear
to establish two contradictory legal positions, one and only one of those
positions is actually operative in application to any particular person
P at any given juncture; the other position at that juncture is strictly
inoperative in application to P. However, contradictions can obtain at
the level of the formulated norms themselves. When contradictions are
present at that level (the only level at which they can be present), they are
never worthy of being preserved. They give rise to out-and-out indeter-
minacy in the law, and they tend to muddle the guidance afforded by the
normative matrix of the system in which they appear. That is, they invari-
ably engender indeterminacy, and they usually engender uncertainty.
Their existence in abundance within a legal system™s normative matrix
will imperil the very sustainment of the rule of law, but they weaken
the Rule of Law even when they are present only on a much smaller
scale.
In a system of governance that conforms to the Rule of Law, the
authoritative formulations of the system™s standards will indicate straight-
forwardly what people in the jurisdiction are required or permitted or
authorized to do. No less is necessary as a means of showing proper
regard for the moral agency of the law™s addressees. Yet any such requisite
indication of legal consequences is missing when two of the authoritative
formulations of a system™s standards are in contradiction. Together, the
two contradictory laws af¬rm and deny the existence of some legal norm.
If the contradiction between those laws is isolatedly anomalous, then it
will detract from the rule of law only to a trivial extent. By contrast, it
detracts from the Rule of Law more signi¬cantly by evincing disrespect
for the capacity of each citizen to make reasoned choices. Perhaps the
manifestation of such disrespect derives from carelessness or perhaps it
derives from arrogance, but, whatever its origin, any knowing retention
of it would bespeak a cavalier attitude “ rather than a properly solici-
tous attitude “ on the part of the of¬cials involved. Of¬cials complying
with the Rule of Law will not be so insouciant about retaining in the law
something that generates bemusement and needless indeterminacy.
Elements of the Rule of Law 163


Whereas of¬cials are sometimes justi¬ed in giving effect to both of two
con¬‚icting duties, they can never give effect to two contradictory laws
simultaneously in application to any particular person P. As has been
stated, one and only one of those laws will be operative in application
to P at any given time. As a consequence, contradictory formulations
of legal norms may engender reasonable expectations that cannot all be
satis¬ed. Should Jack reasonably rely on a law which provides that he is
at liberty to do X at some time t, and should Jill reasonably rely on a
law which provides that she has a legal right against anyone else™s doing
of X at t, then the two sets of reasonable expectations cannot be jointly
satis¬ed within the con¬nes of private-law institutions if Jack in fact does
X at t. Either Jack™s expectations or Jill™s expectations will be frustrated. If
adjudicative of¬cials hold that Jill has a right against Jack™s doing of X, and
if they then lighten the compensatory award of damages against Jack in
order to take account of the reasonableness of his reliance on the liberty-
conferring law, they will not only have foiled his expectations but will also
have partly foiled her expectations. The only way to avoid the dashing of
either party™s reasonable expectations is to provide compensation to Jill
from some public fund rather than from Jack or his insurer. However,
such a “solution” will have foisted onto taxpayers the costs of coming to
grips with legal contradictions.
So long as any contradiction is retained in the authoritative materials
of a legal system, the potential for Jack-and-Jill situations “ situations in
which the nonsatisfaction of some reasonable expectations is inevitable
within private-law institutions “ will abide. Contradictions differ from
con¬‚icts in this respect, and are thus especially sharply at variance with
the Rule of Law. Whereas the reasonable expectations possibly aroused
by laws that impose con¬‚icting duties are always susceptible in principle
to being jointly met within private-law arrangements (in part through
compensation), the reasonable expectations possibly aroused by legal
formulations that contradict each other are not always susceptible to
being jointly met within such arrangements.
Hence, even when contradictions are present in a legal system™s
authoritative materials on far too small a scale to impede the realiza-
tion of the rule of law, they mar the Rule of Law. Of course, if they were
to multiply hugely, their effects would be far more serious. They would
then threaten or scotch the sustainment of the rule of law, and they would
164 Objectivity and the Rule of Law


completely undo the Rule of Law (not least because the Rule of Law
depends on the rule of law). However, Fuller™s ¬fth precept of legality,
presented as a tenet of political morality, is not aimed solely at overabun-
dant contradictions. It counsels against any contradictions at all in the
formulated norms of a legal regime. There are no reasons in favor of the
inclusion of contradictions, and there are strong moral-political reasons
for excluding them.
In most respects, then, the principle of noncon¬‚ictingness and non-
contradictoriness is less ¬‚exible than the other Fullerian precepts when
it is construed as a tenet of political morality. Unlike its jurisprudential
counterpart, it is no more accommodating toward pairs of con¬‚icting
duties with lop-sided penalties than toward pairs of con¬‚icting duties
with evenly balanced penalties. Moreover, while it allows that some con-
¬‚icts between legal duties are better preserved than eliminated, it counsels
strictly against the presence of contradictions in the authoritative mate-
rials of a legal system. On the whole, then, this principle comes closer to
laying down a categorical prohibition than do any of the other principles
of legality.


2.2.6. Compliability

As we have seen, the Fullerian principle of compliability in its jurispru-
dential version is concerned primarily if not exclusively with the guiding
and coordinating function of law. As was remarked in my earlier discus-
sion of the matter, a wide-ranging bevy of unfollowable mandates could
be consistent with the rule of law if the only function of a legal regime
were that of resolving disputes. However, because the cardinal function
of any legal regime is actually that of directing and channeling human
behavior, no such throng of unful¬llable directives would ever be recon-
cilable with the rule of law. That cardinal function would be stymied if
most of the requirements laid down by a regime could not ever be obeyed.
No minimally effective legal system would exist in such circumstances.
When we understand the principle of compliability as a tenet of the
Rule of Law rather than only of the rule of law, we can discern further
reasons for distancing ourselves from the prospect of a legal system in
which most of the duty-imposing norms establish obligations that lie
wholly beyond the capacities of all or most citizens. On the one hand, as
Elements of the Rule of Law 165


has been contended in this chapter and the preceding chapter, the of¬cials
in a legal system should not seek to ensure that every mandate of the
system is followable by everyone to whom its requirements apply. Such a
goal would be debilitatingly unrealistic, and the attainment of it would be
undesirable even if it were not a will-o™-the-wisp. Some mandates should
be applied uniformly even though not everyone is capable of abiding by
them. On the other hand, laws that cannot ever be obeyed by anyone are
without any proper place in a liberal-democratic legal system. Plainly,
such laws should not be pervasive within a legal system; what is more,
they should not exist at all. Quite apart from their deleterious effects on
the directing and coordinating function of law, the demands which they
set forth are unfairly overweening.
Suppose for example that a law requires each person daily to jump
straight into the air at least forty feet above the ground without mechan-
ical assistance or any other assistance. As a vehicle for guiding and chan-
neling people™s behavior, such a law will be pointless. No one will adjust
his or her conduct in order to try to comply with a directive that is patently
unfollowable. In addition to being pointless and indeed ridiculous, how-
ever, the law on jumping is grossly unfair and is inimical to the value
of liberty. It will render everyone liable to be subjected to penalties for
having failed to comply with the obligation which it imposes. If the penal-
ties are levied against everyone, then everyone will unjustly suffer some
hardship for not having carried out a requirement that is well beyond
everybody™s capacities. To be sure, as has been remarked in Chapter 1 ,
the notion that “ought” implies “can” “ the notion that nobody is ever

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