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morally obligated to achieve anything which he is genuinely incapable of
achieving “ is unsustainably strong. If “ought” truly implied “can,” then
the uniform applicability of the negligence standard in tort law could not
be morally justi¬ed. All the same, although “can” is not always a neces-
sary condition for “ought,” it often is so. When all or most people in a
jurisdiction are made legally responsible for living up to a standard (such
as the law requiring forty-foot jumps) that cannot ever be ful¬lled by any
human being, the effect is to render them liable to undergo penalties for
partaking of human limitations.
The situation is markedly different from that in which an oa¬sh person
has to pay compensation for injuries in¬‚icted as a result of his slipshod
conduct. In that latter situation, admittedly, the oaf is held accountable
166 Objectivity and the Rule of Law


by reference to a standard of reasonable care with which he is incapable of
conforming; nonetheless, he has hardly been rendered liable to undergo
penalties simply for partaking of the limitations shared by all human
beings. Rather, he has been rendered liable to incur compensatory duties
for acting in accordance with his oa¬shness. Of course, his maladroitness
is most likely a component of his physical and mental constitution that
he cannot transcend. Nevertheless, it is not something that assimilates
him to his fellows. On the contrary, it marks him out as someone who
is unusually prone to injure them and himself through his actions. It is
thus an aspect of his physical and mental constitution that should not be
indulged by legal of¬cials, on occasions when it eventuates in harm to
other people. Penalizing him legally for not performing superhuman feats
would be morally preposterous, but perfectly sensible is the burdening of
him legally for not sustaining a level of care and pro¬ciency that is within
the reach of ordinary human beings. Because of his failure to sustain
that level, his conduct is properly regarded as slipshod. (No similarly
disapproving characterization of his conduct would be apposite if he had
simply failed to do more than is humanly possible.) Though his inability
to overcome his own clumsiness is probably suf¬cient to exclude any
moral case for criminal-law proceedings against him, it does not negate
the moral basis for his incurring of compensatory obligations “ a moral
basis outlined in my opening chapter.
The preceding two paragraphs have pondered the moral shortcom-
ings of an utterly unsatis¬able law on the assumption that that law will be
enforced against everyone who breaches it. Much more likely is that such
a law will go unenforced or that only some breaches of it will be penalized.
If it goes wholly unenforced, then the of¬cials responsible for applying it
are effectively acknowledging its moral dubiousness. If breaches of it are
selectively penalized, then the selectiveness introduces an additional ele-
ment of unfairness toward those people who do incur penalties. In sum,
a law requiring people to perform feats physically impossible for every
human being is deplorable whatever the pattern of enforcement may be.
Even when such a mandate is entirely unenforced, the retention of it as an
element of the law on the books will redound to the law™s discredit. Such a
state of affairs will also of course detract from a regime™s conformity with
Fuller™s eighth principle of legality (which calls for congruence between
the law on the books and the law in action).
Elements of the Rule of Law 167


The foregoing arguments about compliability have focused on a law “
a mandate requiring each person to jump forty feet off the ground daily “
that is ludicrously unfollowable by any human being. Furthermore, that
particular law does not serve any discernible purpose that is worthy of
pursuit. My clear-cut conclusions about unful¬llable mandates might
have to be slightly quali¬ed if we were to focus instead on a law which
is not blatantly unful¬llable and which is potentially promotive of some
commendable purpose. Suppose that a legal directive imposes a require-
ment that is beyond the capacities of everyone or virtually everyone.
Suppose further, however, that the unfollowability of the mandate is not
obvious and that the mandate™s existence as a legal norm might be salu-
tary in some respect. Fuller offered a helpful analogy when he noted that
a schoolteacher sometimes demands more from her pupils than they can
actually achieve. She does so in order to stretch their capacities, with the
aim of inducing them to improve their skills and knowledge (Fuller 1969,
71). In a limited number of contexts, the norms of a legal system could
conceivably play a similar role. To that extent, the ¬rm conclusions stated
in this subsection might have to be somewhat softened. However, any
such quali¬cations would be minor. As Fuller himself observed straight-
away, the analogy between the schoolteacher and the lawmaker can easily
lead us astray. Indeed, he introduced the analogy in order to warn against
it. He remarked that “the teacher whose pupils fail to achieve what [she]
asked of them can, without insincerity or self-contradiction, congratulate
them on what they did in fact accomplish,” and he contrasted her situa-
tion with that of a legal-governmental of¬cial who “faces the alternative of
doing serious injustice [by imposing penalties on people for not perform-
ing superhuman deeds] or of diluting respect for law by himself winking
at a departure from its demands” (Fuller 1969, 71). Fuller™s reservations
are well put. If any quali¬cation to this subsection™s broad conclusions is
needed, it will be very modest. The existence of a law requiring humanly
impossible conduct might in some unusual circumstances be morally
justi¬able “ especially if the impossibility of the obligatory conduct is not
evident “ but the circumstances will certainly be unusual.
In fact, the conclusions advanced heretofore within this subsection
are in a signi¬cant respect too narrow. So far, we have concentrated on
compliability as a virtue of legal mandates. We should now recognize that
compliability is likewise generally essential for the moral justi¬ability of
168 Objectivity and the Rule of Law


legal norms of other types. Procedures prescribed for the formation of
contracts, for example, should be within the capacities of ordinary human
beings (with the assistance of legal experts, if necessary). Of course, once
again, compliability need not encompass everyone. For instance, the fact
that some people are incapable of signing their own names will hardly
mean that the rules for forming contracts or bequeathing property should
not specify the inclusion of signatures. Indeed, this point about not having
to encompass everyone directly is especially clear with reference to such
power-conferring rules, since the procedures deriving from them can be
carried out by people of sound body and mind on behalf of people who
are physically or mentally incapacitated. Hence, although a law would
be pointless and morally indefensible if it were to prescribe contract-
forming procedures that cannot ever be followed by any human being,
a law can quite sensibly prescribe procedures that are unfollowable by
certain people on their own behalf. Indeed, some procedures of the latter
kind will have to be prescribed if any procedures are, given that even
the simplest steps will exceed the capacities of certain people. Both as a
jurisprudential thesis and as a precept of political morality, the principle
of compliability acknowledges as much. While admonishing against laws
that require or prescribe superhuman achievements, it does not itself call
for the impossible (and undesirable) feat of devising a law with which
absolutely everyone can comply.
Before moving on, we should note one other respect in which the prin-
ciple of compliability is more accommodatingly realistic than it might
at ¬rst appear. It does not militate against the imposition of strict lia-
bility in Anglo-American tort and contract law. Strict liability is legal
responsibility for remedying the harmful effects of one™s actions “ usu-
ally through the payment of compensation “ irrespective of whether those
actions were faulty (negligent, reckless, knowingly indifferent, or mali-
cious) in any way. Under a regime of strict liability, in other words, the
incidence of remedial obligations is fault-independent. In many areas of
Anglo-American tort law, remedial obligations are incurred only by peo-
ple whose conduct has been faulty; but strict liability prevails in much of
contract law and in the remaining areas of tort law. In American tort law,
for example, people who carry on certain ultrahazardous activities will
be legally responsible for repairing any harmful effects of those activities,
even if they have been impeccably careful throughout. Under English tort
Elements of the Rule of Law 169


law, similarly, a keeper of an animal that belongs to a dangerous species
will be legally responsible for remedying any harm caused by the animal,
whether or not the keeper™s conduct has been faulty. Although these and
other instances of strict liability in Anglo-American law might appear to
be at odds with the principle of compliability, there is no genuine con¬‚ict
between them.
To perceive why strict liability is compatible with the principle of com-
pliability, we need to take account of a distinction between two versions of
the “ought”-implies-“can” thesis. Everything hinges on how we construe
“can.” On the one hand, we might take “can” to mean “be able to achieve
as a matter of physical possibility,” and we might therefore take “can-
not” to mean “be unable to achieve as a matter of physical possibility.”
Alternatively, we might take “can” to mean “be able to achieve through
the scrupulous exercise of care and good will,” and we might therefore
take “cannot” to mean “be unable to achieve through the scrupulous
exercise of care and good will.” When the “ought”-implies-“can” thesis
is interpreted in the latter way “ as a claim that there is no moral basis for
anyone to be legally obligated to avert harmful occurrences which he or
she is unable to avert through the exercise of scrupulous care and good
will “ it is far too strong. So construed, it would impugn any moral justi-
¬cation for strict liability in the law. Now, although strict liability in the
law is often inapposite, it is by no means always so. If someone engages
in a distinctive type of activity that engenders peculiarly high risks of
harm to other people, or if someone voluntarily incurs an obligation to
bring about a certain state of affairs (rather than merely to endeavor to
bring about that state of affairs), there may very well be a moral basis for
holding the person legally responsible independently of any fault on his
or her part. Nothing in the Fullerian principle of compliability will have
ruled out the existence of such a moral basis. Quite the contrary.
Rather, the principle of compliability is associated with the ¬rst ver-
sion of the “ought”-implies-“can” tenet. That is, it generally admonishes
against the imposition of legal penalties on people for having failed to do
things that are starkly beyond the physical capabilities of every human
being. Given that it is physically possible for anyone to forbear from
engaging in some special activity (such as dealing with ultrahazardous
substances or keeping a dangerous animal), and given that it is likewise
physically possible for anyone to forbear from promising to bring about
170 Objectivity and the Rule of Law


a speci¬ed state of affairs, the “ought”-implies-“can” tenet that underlies
the principle of compliability is entirely consistent with the presence of
strict liability in Anglo-American tort law and contract law. Of course, the
principle of compliability does not itself insist that any particular areas of
tort law or contract law should involve strict liability. Instead, it leaves the
matter open “ open for determination by other moral-political consid-
erations. While warning that legal penalties for the nonperformance of
superhuman feats are seldom if ever morally justi¬ed, it neither disallows
nor prescribes the establishment of strict liability anywhere in the law.


2.2.7. Steadiness over Time

As my earlier discussion of Fuller™s seventh principle of legality has main-
tained, what is required under this principle is a balance between con-
stancy and adaptability. On the one hand, the efforts of legal of¬cials to
guide and coordinate people™s behavior through the operations of a legal
system will be devastatingly derailed if most of the system™s mandates and
other norms are repeatedly transformed with stupefying rapidity. On the
other hand, the absence of any changes within the normative matrix of
a legal system that presides over a moderately dynamic society “ to say
nothing of a highly dynamic society “ will itself be deeply problematic,
as it leads to far-reaching discrepancies between the law on the books
and the law in action. Accordingly, the functionality of a legal regime
depends on the forging of a via media between destructive dislocation
and preposterous ossi¬cation. Such, in a nutshell, is the jurisprudential
elaboration of Fuller™s seventh principle.
Moral-political factors in support of that principle are similarly evi-
dent. If it is not the case that most of the norms in some system of
governance are reasonably constant over time, then the major desiderata
attainable through the operations of a legal regime will go unrealized.
Not all of those desiderata will be secured by every legal system, but none
of them can be secured in any sizable society in the absence of such a
system. Among the valuable things that would be lost through the exces-
sive transiency of legal norms is a suitable degree of respect on the part
of legal of¬cials for the moral agency of citizens. If the successive arrays
of norms laid down by a regime are each so ephemeral as to leave citi-
zens frustrated and bewildered, the of¬cials in the regime are preventing
Elements of the Rule of Law 171


rather than facilitating the exercise of each citizen™s capacity to make
informed choices. That precious capacity, when given appropriate lati-
tude among reasonable options, is the cornerstone of each citizen™s legal
and moral responsibility. If citizens cannot make informed choices about
their legal obligations and opportunities (because the information avail-
able to them and to their lawyers is unreliably transitory), then their
actions, qua responses to the law rather than qua patterns of conduct
that occur independently of the law, are not susceptible to moral assess-
ment. Hence, overabundant transmutations of legal norms will have ter-
minated the basic moral relationship that obtains between citizens and
their government under the Rule of Law. Such a relationship consists
partly in each citizen™s moral responsibility “ based on his or her moral
agency and on ample leeway for the exercise of that agency “ and partly in
legal-governmental of¬cials™ esteem for the agency and responsibility of
each citizen. Of¬cials evince no such esteem when they woefully befud-
dle citizens by changing the law sweepingly and persistently. Far from
endowing the citizens with ample leeway for the informed exercise of
their moral agency in response to legal requirements and authorizations,
the of¬cials in these circumstances are thwarting any such exercise.
Many other moral-political desiderata will likewise be imperiled when
Fuller™s seventh principle is not heeded. For instance, the ef¬ciency of a
society™s economic arrangements will be in jeopardy if excessively fre-
quent and wide-ranging metamorphoses of legal norms unsettle the
security of people™s proprietary and contractual entitlements. As was
remarked in my earlier discussion of the seventh principle of legality, the
problems posed by transgressions of this principle are broadly similar to
those posed by retroactive laws. Just as people will be loath to engage in
economic ventures or in other arduous undertakings if they fear that their
efforts will retroactively be deemed illegitimate, so too they will be loath
to engage in any such endeavors if they fear that their legal entitlements
will have altered dramatically by the time those endeavors are completed.
Such a state of uncertainty will offer no solid basis for any long-term
planning or even medium-term planning. As a result, the robustness of
a society™s economy will suffer grievously.
Of course, the numerous detrimental effects of inordinate changes in
a legal system™s normative matrix should not impel us to conclude that
very few changes therein will ever be justi¬ed. As has been emphasized,
172 Objectivity and the Rule of Law


the Fullerian principle of steadiness over time does not favor petrifaction
any more than relentless ¬‚uxion. In addition to the jurisprudential con-
siderations that support the striking of a balance between stagnancy and
chronic upheavals, there are sound moral-political reasons for pursuing
such a tack. If the normative framework of a legal regime were somehow
to become static, the dire consequences would be manifold. Since the
very existence of the legal regime as such would be threatened (in ways
recounted in Section 2.1.7), the sundry goods made possible only through
the existence of such a regime would in turn be at stake. At any rate, even
if the regime were to continue to operate as a totteringly inef¬cient legal
system, its moral-political drawbacks would be egregious. Gross inef¬-
ciency is one such major drawback, of course, but a number of other
moral-political vices as well would tarnish the system.
For example, whenever antiquated laws are left on the books, they
can become traps for the unwary. Even legal experts might not be able
to avoid those traps, for they might not be suf¬ciently attuned to the
implications of laws that were brought into existence hundreds of years
ago. Hart adverted to a colorful instance of an unexpected application of
a hoary statute (Hart 1961 , 60). In 1944, Helen Duncan was prosecuted
and convicted in England under the Witchcraft Act of 1735. During the
period leading up to the D-Day landing in World War II, the British
authorities suspected that she was acquiring and revealing secret military
information for the purpose of enhancing her reputation as a clairvoy-
ant. After she was arrested during one of her s´ ances, she was eventually
e
charged with the crime of fraudulently conjuring the dead “ an offense
under the 1735 Act. Whether or not her charlatanry posed any genuine
danger to the planning of the armed forces, the important point here
is that the existence of the ancient statute provided the authorities with
a disconcertingly convenient route for dealing with her. The element of
surprise in their invocation of the statute was greatly to their advantage
and to the disadvantage of the citizen against whom they were proceed-
ing. Though Helen Duncan herself was hardly an admirable person, her
case illustrates the potential for injustices when laws are kept on the books
well past their obsolescence. (Of course, whether anything along the lines
of the Witchcraft Act should ever have been on the books is a pertinent
question.) Injustices through surprises from the past are rare in a dynamic
liberal-democratic legal system like that of England, in which most laws
Elements of the Rule of Law 173


on the books are still germane rather than obsolete. Thus, although those
injustices are each repugnant in isolation, they do not cumulatively affect
the fundamental character of the legal system in which they occur. In
a society with an illiberal regime whose regulatory structure contains a
multitude of obsolete norms, by contrast, the presence of those myriad
norms is likely to affect the whole character of the regime profoundly for
the worse. Those norms will present the regime™s of¬cials with a host of
opportunities for catching citizens unawares. Even if those opportunities
are seldom seized, their very existence “ and the common knowledge
of their existence, despite their not being separately identi¬able before-
hand by most citizens “ will tilt the relationship between the government
and the citizens sharply toward the dominance of the former. Not only
will a stagnant, antiquated normative matrix contribute very little to the
bene¬cial direction and coordination of human conduct; in addition,
it can easily play a sinister role as a source of leverage for a nefarious
government.
Hence, the principle of steadiness over time is an integral component
of the Rule of Law because it counsels against any blinkered de¬ance of
human mutability as well as against any unmitigated embrace thereof.
Steadiness is not stagnancy. Still, although the seventh principle of legality
does not countenance stagnancy, its most salient message is a warning
against the evils of immoderate rates of change in a jurisdiction™s law.
Keeping things stable in order to let people know where they stand is
scarcely a suf¬cient condition for the Rule of Law, but it is undoubtedly
a necessary condition.


2.2.8. Congruence between Formulation and Implementation

As the pivotal precept in Fuller™s exposition of the rule of law and the Rule
of Law, the principle of congruence is a ¬tting capstone for this chap-
ter™s discussions. Moral-political considerations in favor of that principle
are legion. Those considerations become evident as soon as we recall
how congruence between the formulation and the implementation of
legal norms is generally brought about. As was indicated in my account
of the jurisprudential version of Fuller™s eighth principle, a key ingredi-
ent in the ful¬llment of this principle is the sustainment of impartial-
ity on the part of adjudicative and administrative of¬cials. My earlier
174 Objectivity and the Rule of Law


account highlighted the epistemic virtues of impartiality. Impartiality is
cognitively reliable, whereas the factors that vitiate impartiality “ such as
self-interest and bigotry and ignorance and capriciousness “ tend to lead
of¬cials (and other people) away from correct understandings of the mat-
ters with which they are confronted. Though that epistemic point is still
of major importance in the present subsection, the principal emphasis
here is on the moral-political virtues of impartiality.
On top of being cognitively unreliable, the impartiality-vitiating fac-
tors are morally and politically dubious. Of¬cials motivated by sel¬shness
or prejudices or whimsicalness will not only be prone to misunderstand
the laws and situations which they encounter, but will also be likely to
deviate from what is morally obligatory or appropriate. To be sure, there
are notable exceptions to this generalization. In particular, the pertinence
of the generalization will depend to some degree on the benignity of the
law in any relevant jurisdiction. In a legal regime with many heinous laws,
promptings that divert of¬cials from the strict enforcement of those laws “
even if they are ignoble promptings “ may be morally better than a pos-
ture of steadfast dedication to such enforcement (Kramer 2004a, 191 n10).
Suppose, for example, that the adjudicative and administrative of¬cials
in a wicked regime are charged with the task of effectuating many laws
that call for harshly oppressive measures against some despised group of
people. Suppose further that some of the of¬cials are willing to accept
bribes from members of the downtrodden group in return for declin-
ing to in¬‚ict the ¬erce persecution that is prescribed under the terms of
the prevailing laws. In a context of this sort, the corruptly self-interested
departures from a stance of strict impartiality are morally superior to
any disinterested implementation of the noxious laws. Even more plainly
superior to the impartial enforcement of those laws would be decisions
by of¬cials against enforcement that are based on preferentially favorable
attitudes toward the members of the subordinated group. Such attitudes,
which of course are biases, might be essential for emboldening the of¬-
cials to hazard the wrath of their more zealous fellows (who will object to
any laxity in the enforcement of the discriminatory laws). In that event,
the biases are inclining the maverick of¬cials toward the satisfaction of the
demands of morality rather than toward the ¬‚outing of those demands.
To quite an extent, then, the moral-political tenor of adjudicative
and administrative impartiality will hinge on the substance of the law
Elements of the Rule of Law 175


in each jurisdiction. However, in the second half of this chapter we are
concentrating on the Rule of Law rather than on the rule of law. That
is, we are here focusing speci¬cally on the state of affairs that obtains
when a liberal-democratic regime of law is ¬‚ourishingly in existence. We
are not at this juncture seeking to take account of the characteristics of
any legal systems that are markedly illiberal and undemocratic. Thus,
for present purposes, this chapter can pretermit scenarios in which the
norms of certain legal regimes are so odious as to render morally suspect
any stance of impartiality in the application and enforcement of those
norms. We are con¬ning our attention here to regimes that comply with
liberal-democratic values.
Given as much, adjudicative and administrative of¬cials who strive
for impartiality will thereby increase their prospects of arriving at morally
correct determinations. Because the laws to be effectuated by the of¬cials
are themselves benign, and because the impartiality of the of¬cials™ out-
looks will enhance their ability to understand and implement those laws
correctly, their impartiality is morally valuable instrumentally; that is, it
serves as a means to the morally valuable ends that are pursued by the
aforementioned laws. It is also instrumentally valuable in another respect,
for it helps to ful¬ll people™s legitimate expectations. Since citizens and
the legal experts advising them have been able to ascertain the terms of
various laws, and since the impartiality of the of¬cials will strengthen the

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