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likelihood of their giving effect to those laws in accordance with the terms
thereof, the impartiality promotes the morally worthy end of upholding
the citizens™ reasonable beliefs concerning the legal consequences of their
actions. More broadly, of course, the of¬cials™ adherence to an impartial
stance reinforces the vitality of their legal system. By indispensably fur-
thering a state of congruence between the law on the books and the law in
practice, their impartiality averts the dif¬culties posed by major discrep-
ancies between the two “ dif¬culties threatening the very existence of the
rule of law (and thus the existence of the Rule of Law). Of¬cial impar-
tiality enables the smooth performance of law™s guiding function, and it
therefore enables the realization of the precious desiderata for which the
functionality of a legal system is essential.
Furthermore, apart from being instrumentally serviceable in these
several respects, the of¬cials™ impartiality is of intrinsic moral value. It
helps to ensure not only that the of¬cials reach morally correct decisions,
176 Objectivity and the Rule of Law


but also that they arrive at those decisions for the morally correct reasons.
As was argued near the end of my discussion of impartiality in Chapter 1 ,
the motivational and cognitive deformations that negate impartiality are
at odds with any proper respect for the people who are adversely affected.
For example, when adjudicative or administrative of¬cials place their own
sel¬sh interests ahead of the interests of citizens who deserve to be treated
favorably, they are acting athwart the elementary constraint of human
equality. Admittedly, they might not be aware that they are so acting.
They might be so blinded by their own self-absorption that they are gen-
uinely not conscious of the ways in which they are unjustly devaluing the
concerns and projects of other people. Alternatively, they might be fully
aware of their own rapacity and might be disdainfully unperturbed by
that awareness. Whatever may be the degree of their alertness to their own
self-indulgence, their having succumbed to that discreditable propensity
is enough to taint any decisions taken on the basis of it. Even if some
of those decisions happen to be correct in their substance, the sel¬sh
promptings that underlie them will have sullied the relationship between
the governors and the governed. In such circumstances, the of¬cials will
have reached the right outcomes for the wrong reasons. Their acting on
the basis of those self-centered reasons is what renders their conduct so
objectionable (even on occasions when they have arrived at the correct
outcomes), for it establishes that the of¬cials attach importance to any
citizen™s well-being only insofar as his or her well-being is derivative of
their own. By reducing each citizen in this manner to a means for their
own sel¬sh ends, the of¬cials evince a lack of basic respect for the dignity
of each citizen as a moral agent. Thus, whether or not they recognize
how warped their perspective is, their devotion to their own interests is
violative of the parity between themselves and other human beings.
Much the same can be said about the other impartiality-subverting
factors such as prejudices and ignorance and capriciousness. When cit-
izens are treated unfavorably because of biases against them or against
some group(s) to which they belong, the denigration of them is palpable.
Again, the denigration takes place whether or not the biased of¬cials are
aware of the negativeness of their attitudes. For example, some of¬cials
might harbor demeaningly prejudiced attitudes toward women “ whom
they regard as fragile creatures in need of domesticity “ while believing
that their own outlooks on the matter are especially solicitous and noble.
Elements of the Rule of Law 177


However well-intentioned their condescension may be, it is condescen-
sion all the same and is thus a blot on the relationship between the of¬cials
and the citizens.
Indeed, even when prejudices are preferentially favorable rather than
disparaging, they blight the aforementioned relationship. Of course, the
regrettableness of such prejudices partly resides in the fact that they typ-
ically redound to the detriment of people to whom they do not apply.
When an adjudicative or administrative of¬cial treats Hispanic people in
undeservedly generous ways, for example, he is usually thereby accord-
ing less than is due to non-Hispanic people. Even when that consequence
of the preferential treatment is not in prospect, however, any favoritism
toward Hispanic people qua Hispanic people by an adjudicative or admin-
istrative of¬cial would remain objectionable.
On the one hand, to be sure, any such of¬cial may encounter a sit-
uation in which the morally optimal course of action for him is to be
exceptionally generous or lenient when bringing the law to bear on some-
body™s conduct. On the other hand, the considerations that motivate the
extralegal generosity or leniency “ on the part of a legal-governmental
of¬cial acting in his public capacity “ should never include a person™s
ethnicity. When such a factor in¬‚ects an of¬cial™s deliberations concern-
ing the appropriateness of extralegal generosity or leniency, it besmirches
those deliberations by focusing them not on a citizen™s status as a person
but on his or her status as a person of some particular genealogy. Though
a private citizen can in some contexts legitimately take into account the
ethnicity of other people when deciding how generous to be toward them
(with charitable donations, for example), there is no similar leeway for a
public of¬cial who has to ponder whether to be more complaisant toward
some citizen than is prescribed by any applicable laws. Such an of¬cial
in a liberal-democratic society properly governs in the name of every-
one, and is both legally and morally obligated to deal with everyone as
juridically on a par. (Note that nothing in this paragraph rules out the
potential legitimacy of processes by which the of¬cials in some regime
apply general laws that themselves differentiate among people on ethnic
grounds. Although the tenets of liberal-democratic governance will sel-
dom be consistent with laws that do call for any preferential treatment of
some people on grounds of ethnicity, there is no compelling reason for
us to presume that those tenets will disallow all such laws. At least within
178 Objectivity and the Rule of Law


the con¬nes of my present discussion, the potential legitimacy of some
such laws should be left an open question. In the event that a general law
does favor certain people by reference to their ethnicity, any impartial
implementation of that law by adjudicative or administrative of¬cials
will obviously involve their adverting to people™s ethnic backgrounds.
Nothing that has been said here is meant to suggest otherwise. What this
paragraph has been discussing is not the impartial implementation of
general laws that differentiate among people on the basis of ethnic af¬li-
ations, but instead the impartiality of of¬cials™ decisions to go beyond or
outside the law.)
Likewise deplorable are of¬cial determinations stemming from igno-
rance or whimsicalness. Of course, some degree of ignorance is inevitable.
No credible system of governance will have the resources to enable adju-
dicators and administrators to acquaint themselves with all relevant facts
of every situation with which they are confronted. In certain cases, more-
over, some relevant facts might remain unascertainable even if limitless
resources were to be expended on efforts to unearth them. Nonetheless,
although complete knowledge of the material facts of every situation is a
chimera, legal-governmental of¬cials cannot correctly claim to be impar-
tial unless they take all reasonable steps to apprise themselves of those
facts. Ignorance resulting from hastiness or remissness or lackadaisical
indifference is something that undermines the impartiality of of¬cials, for
it leaves their judgments dependent on their surmises and impulses rather
than on their open-minded attentiveness to germane facts. Chapter 1 , in
its discussion of impartiality, has emphasized this point. What should be
underscored here afresh are the moral-political costs of ignorance in the
decision-making processes of of¬cials.
Given that at this stage we are concentrating on regimes whose laws
conform to liberal-democratic values, one principal drawback of igno-
rance is that it decreases the chances that those benevolent laws will be
applied in accordance with their terms. Instead, insofar as of¬cials lack
any informed sense of what they are doing, they will be prone to misapply
the laws and consequently to frustrate or weaken the realization of the
purposes thereof. Furthermore, beyond retarding the realization of those
speci¬c purposes, of¬cials who are frequently mired in ignorance will
impair or even destroy the overall functionality of their regime as a legal
regime. By persistently declining to inform themselves adequately of the
Elements of the Rule of Law 179


complexities of the problems which they are addressing, the of¬cials sub-
stantially increase the probability of discrepancies between the law on the
books and the law in practice. They thereby impede the performance of
law™s guiding and coordinating role, perhaps to the point of undoing the
status of their regime as a system of law. Pro tanto, they place in jeopardy
the desiderata for which the existence of such a system is indispensable.
One major vice of remediable ignorance on the part of adjudica-
tive or administrative of¬cials, then, is that their benightedness tends
toward bad effects. It is instrumentally of disvalue, particularly when
it clouds the of¬cials™ deliberations continually rather than only occa-
sionally. As regrettable as the instrumental shortcomings of alleviable
ignorance, however, are its intrinsic shortcomings. When of¬cials do not
reasonably endeavor to become familiar with relevant facts of the mat-
ters on which they have to pass judgment, they are failing to show proper
respect for the citizens whose interests are at stake in those matters. In
any such cases, the relationship between the of¬cials and the citizens
is one of high-handedness. Whether or not the of¬cials are aware of
the unreasonableness of their disinclination to acquaint themselves with
readily discoverable facts, that disinclination is cavalier. It might not be
the product of conscious haughtiness “ it might, for example, ensue from
lazy remissness “ but it bespeaks the inadequacy of the of¬cials™ concern
to prevent their decisions from being arbitrary. That is, it bespeaks the
inadequacy of their concern to ensure that their treatment of each citi-
zen is in accordance with his or her moral standing (which, in a liberal
democracy, will be closely though not perfectly correlated with his or her
legal standing). Such indifference is overbearing, regardless of its ultimate
wellspring. It lessens the moral decency of any system of governance in
which it in¬‚ects of¬cials™ determinations.
We need not consider here separately the impartiality-confounding
factor of whimsicalness or capriciousness, since any discussion of it would
largely echo what has just been said about avoidable ignorance. Indeed,
a dominant theme runs throughout my brief exploration of the vari-
ous states of mind that are counter to impartiality. Whenever one of
those states of mind has signi¬cantly in¬‚uenced an of¬cial decision, it
has displaced the requirements of law and morality as the effectual basis
for a legal-governmental system™s authoritative interaction with some
citizen(s). It has displaced the rule of law (and therefore the Rule of
180 Objectivity and the Rule of Law


Law) with the rule of men, within the scope of the decision in question.
Such a displacement contravenes the liberal-democratic axiom of fun-
damental human equality, for it brushes aside the status of any affected
citizen as a moral agent whose conduct is regulated by general norms
that are themselves legitimate. It elevates the errant of¬cials to a position
of unwarranted dominance, by substituting the arbitrariness of their
predilections and peculiarities in lieu of those general norms. It thus
perverts the relationship between of¬cials and citizens, which “ on the
side of the adjudicative and administrative of¬cials “ should always be
mediated through benevolent general laws and moral principles rather
than through idiosyncrasies and ¬at.
To close my remarks on the virtue of impartiality in adjudicative
and administrative processes, a word of caution is advisable here. These
remarks do not entail the proposition that laws should always be effec-
tuated in accordance with their terms. On the contrary, sometimes an
impartial assessment of a situation will militate against the conclusion
that the applicable laws should be given effect. Although the morally
correct course of action for of¬cials in a liberal-democratic regime will
usually be to enforce any laws in circumstances to which they are applica-
ble, a different course of action will sometimes be morally requisite. Sup-
pose for example that a municipality™s anti-jaywalking ordinance, whose
terms are of blanket applicability, is never enforced on quiet streets and
almost never enforced on much busier streets. Suppose further that a
policeman charged with administering the municipal laws has observed
someone transgressing the anti-jaywalking ordinance on an extremely
sleepy street. At the time of the infraction, as at virtually every other time
of each day, no cars or other vehicles are proceeding along the street. In
these circumstances, the policeman is under a moral obligation to refrain
from giving effect to the ordinance. Measures of enforcement in such a
context would be morally unacceptable for a number of reasons. Those
measures would violate rather than uphold the tenet of basic human
equality, since they would single out some pedestrian for punitive treat-
ment that has not been similarly meted out to other people who have
behaved in the same fashion. Any such measures would dash, rather than
vindicate, the legitimate expectations which the pedestrian has formed
about the patterns of law-enforcement in the municipality. They would
serve no morally worthy purpose whatsoever, since the bene¬ts of an
Elements of the Rule of Law 181


anti-jaywalking ordinance in relation to busy streets are beside the point
in relation to a street on which there is virtually no traf¬c at any time
of the day. Nor would the enforcement of the ordinance in the envis-
aged situation tend to keep the law from falling into disesteem. On the
contrary, such an act of enforcement would tend to cast the law into disre-
pute by bringing its requirements to bear on somebody in an inequitable
and ridiculously pointless manner. In sum, the policeman who espies
the infraction of the ordinance is both morally permitted and morally
obligated to abstain from pursuing any measures of enforcement. (He
is also legally permitted, though probably not legally obligated, to forgo
such measures.) If the policeman adopts an impartial perspective on the
matter, he will recognize that the law should go unenforced.5
Impartiality in of¬cial decision-making, then, will sometimes even-
tuate in the condonation of unlawful conduct. Much more often in a
liberal democracy, however, an impartial stance will call for the effec-
tuation of legal norms in conformity with their prescriptions. To that
end, the of¬cials in a liberal-democratic regime will need to be possessed
of interpretive pro¬ciency. Their being endowed with such pro¬ciency
is crucial not least for the reasons recounted in Section 2.1.8; without a
healthy degree of interpretive skill, the of¬cials will not be able to operate
a functional legal system and will therefore not be able to maintain the
advantages that follow from the existence of such a system. That earlier
account can be supplemented here, for we are now in a position to see
why interpretive competence is vital not just at the level of a legal system
as a whole, but also in each particular case.
Whenever legal of¬cials interpret laws incompetently, either they
arrive at incorrect verdicts or else they arrive at correct verdicts purely
coincidentally. Incorrect verdicts will frustrate the legitimate expectations
formed by citizens and legal experts. After all, as my earlier discussion
of interpretive pro¬ciency has contended, a central feature of such pro-
¬ciency for any particular case lies in the correspondence between the
interpretation that is rendered and the interpretation that could reason-
ably have been anticipated. Hence, when interpretive processes go awry
and yield unwarranted outcomes, the affected citizens are quite right if
they feel that they have been misled. Their having been misled is itself

5 For a more extended discussion of the example of jaywalking, see Kramer 1999a, 285“87.
182 Objectivity and the Rule of Law


an evil “ even though it occurs as a result of blundering rather than
as a result of malice “ for the de¬ance of their apposite expectations has
turned their own capacities as moral agents against them. Moreover, since
a misapplication of a law created by a benignly liberal-democratic regime
will usually counteract a worthy substantive purpose underlying that law,
the misapplication will usually be substantively as well as procedurally
regrettable. That is, quite apart from the misapplication™s foiling of legit-
imate expectations, its substantive bearings considered in themselves are
likely to be dismaying. Furthermore, insofar as the misapplication and
the misinterpretation whence it derives are endowed with precedential
force, they mar the future direction of the law. Thus, even if misapplica-
tions arising from botched interpretations are too rare to pose any threat
to the functionality of the liberal-democratic system of law in which they
occur, they generally tarnish that system.
Fortuitously correct outcomes that stem from incompetent inter-
pretations of legal norms are not as markedly problematic as incorrect
outcomes. They will not dash the legitimate expectations of the citizens
who are immediately affected by them. Similarly, since they are correct
(albeit fortuitously correct) applications of benevolent legal norms, their
substantive bearings are likely to be morally sound. However, although
verdicts that are correct-by-happenstance do not carry all the disadvan-
tages of verdicts that are incorrect, the interpretive maladroitness of their
underpinnings is not without costs. Insofar as any bungled interpretation
that generates such a verdict is invested with precedential force, it casts
a distortive shadow over the future course of some area of the law. The
distortion will not inevitably be for the worse, but it very likely will be
so. What is more, even in isolation from any precedent-setting effects,
misguided interpretations serve as ¬‚awed bases for decisions that may be
impeccable in all other respects. As has been remarked, adjudicative and
administrative of¬cials should not only be rendering the right determina-
tions but should also be rendering them for the right reasons. An of¬cial
who reaches an otherwise impeccable decision by way of a confused inter-
pretive approach has in effect substituted his own muddled thoughts
for the terms of the relevant law(s) as the grounding for his decision.
Notwithstanding that his deliberations culminate in an unexceptionable
outcome, they detract from the moral authority of his regime by tending
to supplant the rule of law “ and the Rule of Law “ with the rule of men.
Elements of the Rule of Law 183


In short, both impartiality and interpretive pro¬ciency on the part of
adjudicative and administrative of¬cials are indispensable for the ¬‚our-
ishing of the Rule of Law. Any wide-ranging and persistent departures
from impartiality or any wide-ranging and persistent failures of interpre-
tive pro¬ciency will imperil the very existence of a legal system as such.
More probable are isolated departures or failures. They will not endanger
the general functionality of a system of law, but, within their limits, they
almost always debase the system™s overall moral standing. Even though
they may occasionally prove to be salutary in certain respects, they will
prove to be detrimental in other respects. They typically prove to be only
detrimental. Accordingly, Fuller™s eighth principle of legality does indeed
lend itself to being construed as a precept of political morality. It sets
forth a necessary condition for the overall decency of a regime of law, and
a usually necessary condition for the moral propriety of the handling of
each particular case by legal of¬cials. Both at the broad level and at the
narrowly focused level, it articulates a keynote of the Rule of Law.



2.3. Conclusion

This chapter has explored the jurisprudential phenomenon of the rule
of law and the moral-political ideal of the Rule of Law. Fuller™s prin-
ciples of legality have structured each half of the discussion, and have
thereby enabled me to highlight many af¬nities and some dissimilarities
between the jurisprudential phenomenon and the moral-political ideal.
The af¬nities are more numerous and conspicuous than the dissimilari-
ties, of course. In part, they stem from the sheer fact that the rule of law
is a sine qua non of the Rule of Law. Albeit the realization of the former is
not a suf¬cient condition for the realization of the latter, it is a necessary
condition. As a result, whatever threatens the former will also threaten the
latter. Important though that point is, however, it does not fully capture
the extent of the homologies between the rule of law and the Rule of Law.
Central to both the jurisprudential signi¬cance and the moral-
political signi¬cance of each of the Fullerian principles is law™s basic role
in guiding human conduct by presenting human agents with demands
and opportunities. One key reason why all of those principles are funda-
mental to the rule of law is precisely that they are vital for the performance
184 Objectivity and the Rule of Law


of law™s role. Each of them is vital for sustaining the integral connection
between the sway of law and the exercise of human agency (on the part
of those who are subject to that sway). Yet such a connection is also of
profound moral-political importance. It distinguishes legal governance
from any purely manipulative mode of governance that would treat peo-
ple as unwitting pawns by circumventing their agency. When there occur
breakdowns in the connection between legal norms and the agency of the
norms™ addressees, they impair the legitimacy of the law by indicating
that the relevant legal of¬cials do not adequately respect that agency. Even
if some of those breakdowns produce bene¬cial effects, they constitute
lapses in the law™s treatment of people as responsible moral choosers.
Of course, the fact that a regime addresses itself perspicuously to the
agency of each individual is hardly suf¬cient to establish the legitimacy of
its demands. After all, a gunman typically expresses pungently the choice
which he is offering to his victim, and a kidnapper typically articulates
vividly the choice which he is offering to the family or friends of his captive
(Kramer 1999a, 59“60). Still, as has been emphasized, my whole exposition
of the moral-political import of the Fullerian principles is premised on
the assumption that the prevailing regime of law is liberal-democratic
in its substance. Given as much, those principles distill the procedural
morality of such a regime. Combined with the benign substance of the
law, the proper ful¬llment of those principles will have clinched the law™s
legitimacy and moral authority. It will have done so by ensuring that
the benign substance of the law is meaningfully presented to citizens as
an array of requirements and opportunities with which they can become
familiar and about which they can make effectual choices. In other words,
it ensures that the operations of a liberal-democratic system of law are an
arena in which the governing of¬cials display due respect for the moral
agency of the governed. (Recall, incidentally, that the proper ful¬llment
of the Fullerian principles does not consist in the perfect ful¬llment of
each of them. Quite realistic is the role ascribed here to the conditions
that are encapsulated in those principles; that role does not belong to
some elusively utopian archetype.)
A focus on the rational agency of the law™s addressees is, then, a uni-
fying thread that ties together the two main components of this chapter™s
investigations. That focus has enabled us to discern what is necessary for
law™s functional existence and also what is necessary for law™s legitimacy
Elements of the Rule of Law 185


and moral authority. Worth noting here is that which the Fullerian the-
oretical framework omits as well as that which it includes. Fuller has
sometimes been criticized “ for instance, in Harris 1997, 150 “ on the
ground that his principles do not cover some key characteristics that are
intrinsic to the rule of law or to the juridical dimension of the Rule of Law.
Such criticism, however, is misplaced. On the one hand, certain things
not expressly comprehended in any of his principles are indeed promi-
nent features of many liberal-democratic legal systems. One example is
the strict institutional separateness of courts, and another is the vesting
of people with entitlements to appeal the objectionable rulings of lower
courts to higher courts. On the other hand, no such features are gener-
ally indispensable for law™s very existence or for its legitimacy and moral
authority. Arrangements for securing the conditions that are articulated
in Fuller™s principles (especially in his eighth principle) will vary to some
degree from one liberal-democratic legal system to the next. Features of
the sort just mentioned may be crucial to those arrangements in some
societies, but in other societies the arrangements may be different and
may nevertheless be equally well suited for effecting compliance with the
Fullerian precepts. When certain procedural or institutional safeguards
are present in some society X but not in some society Y, they might obvi-
ate in X certain alternative procedural or institutional safeguards that are

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