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dependent on the mental to be by the members of any
functioning of any members of group individually or
any group individually or collectively.
collectively.


When pondering the mind-independence of laws, then, we should
be attuned to both the strong/weak distinction and the existential/
observational distinction. A bit of re¬‚ection on the matter should reveal
that, if the existential status of laws is our focus, some laws (most gen-
eral legal norms) are weakly mind-independent while some other laws
(most individualized directives) are not even weakly mind-independent.
That most general legal norms are at least weakly mind-independent
is quite evident. The existence of those norms does not stand or fall
on the basis of each individual™s mental activity; it is not the case that
Dimensions of Objectivity 7


multitudinous different sets of general legal norms emerge and vanish as
multitudinous different individuals undergo birth and death, or that no
legal norms at all exist for anyone who does not give them any thought.
Whereas someone™s beliefs and fantasies and attitudes and convictions
are existentially dependent on the mind of the particular individual who
harbors them, the existence of any general legal norm differs in not
being radically subjective. (There can be exceptions in rather unusual
circumstances. In a monarchical regime, the of¬cials might adhere to
a practice whereby some general laws go out of existence whenever the
reigning king™s mental activity permanently ceases. Such an arrangement
would be peculiar, but it would plainly be possible. Still, in a legal sys-
tem that is to endure beyond a single person™s lifetime, the incidence of
any such strongly mind-dependent general laws would have to be highly
circumscribed.)
When we move away from general laws and concentrate on individ-
ualized directives, we seldom ¬nd any existential mind-independence.
Typically if not always, an order addressed to a particular person “ by
a judge or some other legal of¬cial “ will not remain in effect as such
if its addressee™s mental activity permanently ceases. Any result sought
through the issuance of the individualized order will typically have to
be achieved through some other means (perhaps through the issuance
of a directive to some alternative individual or set of individuals who
will act in lieu of the original addressee). To the utmost, then, an indi-
vidually addressed legal requirement is existentially mind-dependent; its
continued existence as a legal requirement presupposes the occurrence
of mental activity in a particular person™s mind.
By contrast, the continuation of the sway of general legal norms will
almost always transcend the mental functioning of any given individ-
ual. Even so, the existential mind-independence of such norms is weak
rather than strong. They cannot persist in the absence of all minds and
mental activity. They abide as legal norms only so long as certain people
(most notably, judges and other legal of¬cials) collectively maintain cer-
tain attitudes and beliefs concerning them. Unless legal of¬cials converge
in being disposed to treat the prevailing laws as authoritative standards
by reference to which the juridical consequences of people™s conduct can
be gauged, those laws will cease to exist. To be sure, some of the gen-
eral mandates within a legal system “ such as ordinances that prohibit
8 Objectivity and the Rule of Law


jaywalking “ can continue to exist as laws even though they are invariably
unenforced. The requirements imposed by such mandates are inoper-
ative practically, but they remain legal obligations. However, the very
reason why inoperative legal duties continue to exist as legal duties is that
myriad other legal obligations are quite regularly given effect through
the activities of legal of¬cials, who converge in being disposed to treat
those obligations as binding requirements. Only because those manifold
other legal requirements are regularly given effect does a legal regime exist
as a functional system. In the absence of the regularized effectuation of
most mandates and other norms within a system of law, the system and
its sundry norms will have gone by the wayside. In sum, the continued
existence of laws (including inoperative laws) as laws will depend on the
decisions and endeavors of legal of¬cials. Yet, because those decisions and
endeavors inevitably involve the beliefs and attitudes and dispositions of
conscious agents, the continued existence of laws as laws is not strongly
mind-independent. The existential mind-independence of general legal
norms is only weak.
In what manner are legal norms observationally mind-independent?
Are they strongly so or only weakly so? We can know straightaway, in
regard to their observational status, that general legal norms are at least
weakly mind-independent. After all, as has already been remarked, every-
thing that is existentially mind-independent is also observationally mind-
independent. The mental states and events presupposed by the existence
of a legal system are those shared by many of¬cials interacting with one
another. What those mental states and events are is manifestly inde-
pendent of what any particular individual thinks that they are. Matters
become more intricate, however, when we turn from inquiring whether
legal norms are observationally mind-independent to inquiring whether
their observational mind-independence is strong or weak. A number
of legal philosophers, such as Andrei Marmor, have had no doubt that
the observational mind-independence of laws is merely weak. Marmor
¬rst notes that, when a concept pertains to something that is strongly
mind-independent, “it should be possible to envisage a whole community
of speakers misidentifying [the concept™s] real reference, or extension.”
He then declares: “With respect to concepts constituted by conventional
practices [such as the operations of a legal system], however, such compre-
hensive mistakes about their reference is implausible. If a given concept is
Dimensions of Objectivity 9


constituted by social conventions, it is impossible for the pertinent com-
munity to misidentify its reference.” He emphatically proclaims: “There
is nothing more we can discover about the content of the [norms of our
social practices] than what we already know.”3 Actually, however, things
are more complicated than Marmor suggests. His comments are not com-
pletely wrong, but they are simplistic. (In the following discussion of the
strong observational mind-independence of laws, incidentally, there is
no need for me to distinguish between general norms and individualized
directives. In each case, the observational mind-independence is always
strong.)
On any particular point of law, the whole community of legal of¬cials
in some jurisdiction can indeed be mistaken. Legal of¬cials can collec-
tively be in error about the attitudes and beliefs (concerning some point of
law) which they themselves share. They can collectively be in error about
the substance and implications of those shared beliefs and attitudes, and
can therefore collectively be in error about the nature of some legal norm
which those beliefs and attitudes sustain. To assume otherwise is to fail to
differentiate between (i) their harboring of the ¬rst-order attitudes and
beliefs and (ii) their second-order understanding of the contents of those
¬rst-order mental states. The fact that the of¬cials share certain attitudes
and beliefs in regard to the existence and content of some legal norm is
what establishes the existence and ¬xes the content of that norm; but the
fact that they share those attitudes and beliefs does not exclude the possi-
bility that they themselves will collectively misunderstand what has been
established and ¬xed by that fact. A gap of misapprehension is always pos-
sible between people™s ¬rst-order beliefs and their second-order beliefs
about those beliefs.
Indeed, Marmor™s elision of the ¬rst-order/second-order distinction
will land his analysis in incoherence when it is applied to many credi-
ble situations. Suppose that the courts in some jurisdiction declare that
their previous interpretation of a particular law was incorrect. They now
maintain that that law should have been understood and applied (and
will henceforth be understood and applied) in some alternative way.
If the members of the judiciary are collectively infallible at the current
3 Marmor 2001 , 138, emphasis in original. A complicated variant of Marmor™s position underlies
the famous discussion in Locke 1975 [1689], book IV, chapter IV. Quite close to Marmor™s
position, but somewhat milder, is the brief discussion in Greenawalt 1992, 48.
10 Objectivity and the Rule of Law


juncture when they pronounce on this matter of legal interpretation, then
we have to conclude that they were fallible at the earlier juncture when
they espoused the now-disowned reading of the particular law. Con-
versely, if they were collectively infallible at that earlier juncture, then
they are currently mistaken when they deem themselves to have been in
error. However Marmor might try to analyze such a situation, he will
be led to the conclusion that legal of¬cials have collectively erred about
a matter of legal interpretation. His insistence on the of¬cials™ collective
infallibility will have undermined itself.
The observational mind-independence of legal norms is therefore
strong rather than weak. Nevertheless, Marmor is not ¬‚atly incorrect. If
the legal of¬cials in a jurisdiction do collectively err in their understanding
of the substance and implications of some legal norm(s) which their own
shared beliefs and attitudes have brought into being, and if they do not
correct their misunderstanding, that misunderstanding will thenceforth
be determinative of the particular point(s) of law to which it pertains.
It will in effect have replaced the erstwhile legal norm(s) with some new
legal norm(s). Such an upshot will be especially plain in any areas of
a jurisdiction™s law covered by Anglo-American doctrines of precedent,
but it will ensue in other areas of the law as well. The new legal norm(s)
might be only slightly different from the previous one(s) “ the differences
might lie solely in a few narrow implications of the norm(s) “ but there will
indeed be some differences, brought about by the legal of¬cials™ mistaken
construal of the substance and implications of the superseded norm(s).
Subsequent judgments by the of¬cials in accordance with the new legal
standard(s) will not themselves be erroneous, since they will tally with
the law as it exists in the aftermath of the of¬cials™ collective misstep. The
of¬cials go astray in perceiving the new standard(s) as identical to the
former standard(s), but, once their error has brought the new standard(s)
into being, they do not thereafter go astray by treating the new standard(s)
as binding. (There can be limited exceptions to this general point. If the
of¬cials in some legal system adhere to a norm requiring them to undo
any mistaken judgment whenever they come to recognize their mistake
within a certain period of time, and if they comply with that norm in
most circumstances to which it is applicable, then their nonconformity
with it in some such set of circumstances would temporarily vitiate the
new legal standard that has been engendered by their original misstep.
Dimensions of Objectivity 11


However, the additional error of nonconformity “ if left uncorrected “
will itself quickly be absorbed into the workings of the legal system,
along with the original misstep, as something that is binding on the
of¬cials.)
Of course, a new legal norm engendered by the of¬cials™ collective
misunderstanding of a preexistent legal norm may itself become subject
to misapplication in the future. If it does indeed undergo distortion in
that manner, it will have been displaced by some further legal norm that
is the product of the distortion. The process through which a collective
error on the part of of¬cials will have led to the supersession of some legal
standard(s) by some other legal standard(s) is a process that can recur
inde¬nitely. Legal change can occur by many routes, but a succession of
errors is one of them.
Thus, although Marmor is incorrect in contending that the obser-
vational mind-independence of legal norms is weak rather than strong,
his remarks can serve to alert us to the fact that the existential mind-
independence of those norms is never strong. Legal of¬cials can col-
lectively be wrong about the implications of the laws which their own
shared beliefs and attitudes sustain, but their errors (unless subsequently
corrected) quickly enter into the contents of those laws and thereby
become some of the prevailing standards. Moreover, we should note
that “ in the remarks quoted above “ Marmor does not initially assert
that community-wide mistakes about the referential extensions of con-
ventional concepts are impossible. He initially asserts merely that they
are implausible. Such an assertion is overstated, but it is not entirely mis-
guided. There is some merit to the thesis that our epistemic access to
the products of our own practices is more intimate than our epistemic
access to the phenomena of the natural world. Though that thesis should
never obscure the possibility of disaccord between people™s ¬rst-order
beliefs and their second-order beliefs about the contents and implica-
tions of those ¬rst-order beliefs, it aptly suggests that we can sometimes
feel greater con¬dence in our grasp of our own ideas than in our grasp of
entities which we have not fashioned. Within limits that prevent it from
hardening into a dogma about the incorrigibility of our apprehension of
our own practices, a tenet about relative levels of con¬dence is pertinent.
That tenet is particularly cogent in connection with very narrowly and
precisely delimited conventions such as the rules of chess, but it also has
12 Objectivity and the Rule of Law


some force in connection with more diffuse conventions such as those
that make up a large legal system.
In short, when we ponder whether the general norms of a legal system
are objective in the sense of being mind-independent, we should arrive at
a complex conclusion. Such norms are both existentially and observation-
ally mind-independent, but their existential mind-independence is weak,
whereas their observational mind-independence is strong. The weakness
of the existential mind-independence minimizes any gaps between per-
ception and actuality that have arisen because of the strong observational
mind-independence. It does so not by averting errors on the part of legal
of¬cials collectively, but by ensuring that any of their uncorrected errors
will quickly be incorporated into the law of the relevant jurisdiction. In
other words, any gaps between the of¬cials™ collective perceptions and
the actualities of the law are quite rapidly removed through the recur-
rent reshaping of the actualities in accordance with the perceptions. Fur-
thermore, because legal of¬cials are intimately familiar with their own
practices and the products of those practices, the gaps between what is
collectively perceived and what is actual should be relatively uncommon.
Before we leave this discussion, one potential objection should be
allayed. My comments on objectivity qua existential mind-independence
have presupposed that legal systems and the norms within them are con-
ventional in character. Those comments might thus seem additionally
to presuppose that legal positivism is correct as a theory of law. Some
readers may feel disquiet. They may argue that, whether or not posi-
tivism is true, an account of legal objectivity should not take its truth as
given. They would complain that my own account has not been neutral
in the debates between legal positivists and natural-law theorists. Any
such query would be misdirected. Although legal positivists do insist on
the conventionality of law, so does every minimally credible natural-law
theory. Legal positivists and most natural-law theorists disagree not over
the question whether law is conventional, but over the question whether
law is exclusively conventional. Many natural-law theorists maintain that
the norms of every legal system encompass basic moral principles whose
status as legal norms does not depend on the conventional practices of
of¬cials. A number of natural-law theorists further submit that some
of the norms classi¬ed as laws by the of¬cials within certain legal sys-
tems are not genuinely laws; appallingly heinous norms are excluded
Dimensions of Objectivity 13


from such a status, or so we are told. Natural-law theorists are at odds
with positivists on these points, but not on the question whether most
of the laws in any legal system are conventional in origin. Everyone or
virtually everyone recognizes that the answer to that latter question is
af¬rmative.4 Hence, in application to all the legal norms that would be
classi¬ed as such by jurisprudential positivists and natural-law theorists
alike “ and therefore in application to the vast majority of legal norms
that would be classi¬ed as such by jurisprudential positivists and the vast
majority of legal norms that would be classi¬ed as such by natural-law
theorists “ my account of the existential mind-independence of such
norms is neutral between positivism and natural-law doctrines. More-
over, the account can easily be ampli¬ed to accommodate the distinctive
contentions of natural-law theorists. Such theorists should accept the
account and add to it the claim that the existential mind-independence,
as well as the observational mind-independence, of some general legal
norms is strong rather than weak. More speci¬cally, strong rather than
weak is the existential mind-independence of the basic moral princi-
ples that are characterized by natural-law theorists as legal norms irre-
spective of any conventional practices. (Of course, the natural-law theo-
rists would not contend that the status of those moral principles as laws
of some particular jurisdiction is strongly mind-independent existentially.
No legal system can endure if the minds of all the people within it have
permanently ceased to function; hence, the natural-law theorists would
accept that moral principles qua laws of some particular jurisdiction are
only weakly mind-independent existentially. However, they would ascribe
strong existential mind-independence “ rather than weak existential

4 Ronald Dworkin, perhaps in a moment of polemical hyperbole, comes close to denying that the
answer to the latter question is af¬rmative. See Dworkin 1986, 136“39. For a critical rejoinder
to Dworkin, see Kramer 1999a, 146“51. Whatever may be the merits of Dworkin™s position
with speci¬c reference to American constitutional law, it is wildly implausible as a general
jurisprudential thesis applicable to all the main components of every legal system. At any rate,
even if I were to accept Dworkin™s view that a legal system operates not through conventions
but through arrays of independent moral convictions that converge with one another, I would
not need to modify anything said here about the weak existential mind-independence of
legal norms. Dworkin clearly accepts that law is only weakly mind-independent existentially.
What would need to be modi¬ed is simply my suggestion that law™s weak existential mind-
independence consists in its conventionality. A follower of Dworkin would insist that the weak
existential mind-independence consists instead in law™s nature as a product of overlapping
medleys of moral convictions harbored by of¬cials and citizens.
14 Objectivity and the Rule of Law


mind-independence “ to those principles qua laws tout court. Even in
the absence of any minds and consequently even in the absence of any
legal systems, those principles will timelessly abide as laws that would
belong to every such system if there were any. So, at least, the natural-law
theorists believe.)


1.2.2. Objectivity qua Determinate Correctness

When the objectivity of law is at issue, the dimension of objectivity that
is perhaps most commonly at the center of attention is that of determi-
nate correctness. Philosophers and ordinary people who mull over these
matters are often especially interested in ascertaining whether the legal
consequences of people™s actions, in any particular jurisdiction, are deter-
minately settled by the terms of the prevailing legal norms. The extent
to which there are determinately correct answers to legal questions is
inversely proportional to the extent of the leeway left to legal of¬cials
in arriving at concrete decisions. That leeway is effectively eliminated in
connection with any legal question to which there is a uniquely correct
answer (although any legal of¬cial will still of course have to exercise his
or her judgment in seeking to descry what the uniquely correct answer is,
and although any such of¬cial will typically have some latitude in ponder-
ing how to give effect to the correct answer). Even when there is more than
one correct answer to a legal question, the range of the correct answers
may be small. If so, then the leeway left to legal of¬cials is severely limited.
More generally, as has just been suggested, the extent of that leeway is
directly proportional to the breadth of the aforementioned range.
When none of the possible answers to some legal question would
be incorrect, every answer is correct in the sense of not being incorrect.
In such circumstances, the leeway of legal of¬cials is unrestricted; every
answer to the particular legal question is as good (or as bad) as any other
answer. Indeterminacy, which is the negation of legal objectivity qua
determinate correctness, prevails in such a situation. Either the regnant
norms of the legal system do not address at all the matter covered by the
particular legal question, or “ for whatever reason “ they are completely
open-ended in their handling of that matter. In either case, there is no
objective answer to the speci¬ed legal question. Every answer is correct (in
the sense of not being incorrect), but no answer is determinately correct.
Dimensions of Objectivity 15


Claims about the existence of objective answers to legal questions can
be unsustainable even when the indeterminacy surrounding those ques-
tions is expansive rather than thoroughgoing. Indeterminacy is a scalar
property; that is, it obtains in varying degrees. A given legal matter can
be utterly indeterminate “ if every answer to a question about that matter
is genuinely no better than any other answer “ but usually the indeter-
minacy surrounding a problematic legal question is less than exhaustive.
Though multiple contrary answers to such a question will each be cor-
rect, many other answers are incorrect. Suppose, for example, that the
question whether some speci¬ed set of actions can appropriately be clas-
si¬ed as an instance of the crime of murder is an indeterminate matter.
An af¬rmative answer is no better or worse than a negative answer, for
the balance between the applicability and the inapplicability of the legal
prohibition on murder is even. All the same, some answers to the ques-
tion will patently be wrong. For example, should anyone reply that the
speci¬ed set of actions can appropriately be classi¬ed as an instance of
the crime of murder if and only if the actions took place on a Tuesday,
his or her answer would manifestly be incorrect. Nonetheless, although
the reply focused on Tuesdays and any similarly misguided replies can
be rejected as erroneous, there is no basis for deciding with minimal
determinacy between an af¬rmative answer and a negative answer to the
question whether a murder has been committed. In such circumstances,
neither of those answers to that question is objectively correct. Objectivity
qua determinate correctness is missing, even though the indeterminacy
engendered by the question is less than exhaustive. The degree of inde-
terminacy is suf¬ciently large “ encompassing both “yes” and “no” “ to
undermine an ascription of objective correctness to any answer.


1.2.2.1. Indeterminacy Overestimated

An obvious inquiry poses itself, then. To what extent can law partake
of objectivity qua determinate correctness? That is, to what extent can
legal norms ordain the legal consequences of people™s conduct? To what
extent can there be determinately correct answers to legal questions? Some
writers have responded to this inquiry (or set of inquiries) with skepti-
cal pessimism. Such pessimism has most conspicuously surfaced from
time to time in the United States, where some of the Legal Realists in the
16 Objectivity and the Rule of Law


1920s and 1930s and most of the Critical Legal Scholars in the 1970s and
1980s notoriously trumpeted the notion that laws do not ever genuinely
constrain the discretion of legal of¬cials. Deeply skeptical about the very
coherence and meaningfulness of legal norms, they insisted on the pres-
ence of rampant indeterminacy in any system of law. Although some
theorists very loosely associated with Legal Realism were philosophically
sophisticated, the members of that movement who wrote about legal
indeterminacy were not; even more shallow and philosophically naive
were many of the proclamations of indeterminacy that later emanated
from the Critical Legal Scholars. Each of those schools of thought sparked
controversy and won followers for a short period, but each of them rather
quickly buckled under the weight of its own dogmatism and hyperbole.
To be sure, the best writings in each of those movements (especially in
Legal Realism) were salutarily piquant, and they have left an imprint on
subsequent jurisprudential thinking. Nonetheless, the sterile and philo-
sophically uninformed skepticism that tarnished each of those schools of
thought is something that has fortunately receded.

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