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present in Y. Hence, Fuller was wise to refrain from designating some spe-
ci¬c set of such safeguards as essential for every instantiation of the rule
of law or the Rule of Law. He recognized that, however deeply entrenched
a certain institution or practice might be in one liberal-democratic sys-
tem of governance, its salutary role can be played by quite a different
institution or practice in some other liberal-democratic system of gov-
ernance. For example, although the entitlement to be tried by a jury of
one™s peers in any serious criminal case is a longstanding element in the
Anglo-American incarnation of the Rule of Law, it is not an element in
the Rule of Law as embodied in some other liberal-democratic countries.
Unacceptably provincial, then, would be the inclusion of trial by jury
as a fundamental principle of legality. Fuller showed good judgment in
keeping such concrete institutional matters out of his enumeration of
fundamental principles.
Thus, Fuller™s theoretical framework compendiously summarizes all
the essential properties of the rule of law. Admittedly, it does not likewise
186 Objectivity and the Rule of Law


offer a complete conspectus of the essential elements in the ideal of the
Rule of Law, since it does not aim to expound fully the liberal-democratic
substance of that ideal (relating to economic justice or civil rights and
liberties, for example). Nonetheless, although the basic substantive char-
acteristics of the Rule of Law have been only partly explicated herein,
its formal or procedural essence is admirably captured by Fuller™s prin-
ciples of legality. This chapter™s reelaboration of his principles “ which
often goes beyond what Fuller himself wrote “ can be set alongside my
¬rst chapter™s examination of the chief dimensions of objectivity. Con-
nections between the two chapters have already been touched upon at
many junctures. Chapter 3 will look more searchingly at some of those
connections.
CHAPTER


3
Objectivity and Law™s
Moral Authority




In this ¬nal chapter, we shall ponder in greater depth how some of the
principal dimensions of objectivity bear on the rule of law and the Rule
of Law. Many of the connections between objectivity and law (law in gen-
eral or liberal-democratic law speci¬cally) are already apparent from the
foregoing two chapters, and are therefore not in need of further exposi-
tion here. For example, we have already explored at length the crucial role
of objectivity-qua-impartiality in fostering congruity between the law on
the books and the law in practice within any particular jurisdiction. Some
other aspects of the relationships between objectivity and the rule of law
or the Rule of Law, however, stand in need of additional investigation.
The analyses presented heretofore in this book will provide the requisite
framework for this closing chapter™s re¬‚ections.




187
188 Objectivity and the Rule of Law


3.1. Preliminary Remarks on the Matter of Observational
Mind-Independence

As has been argued in my opening chapter, the observational mind-
independence of legal norms is always strong rather than merely weak.
That is, the nature of every legal norm in any legal system does not
depend on what any observers (such as the system™s of¬cials) individu-
ally or collectively take that nature to be. As has also been contended, strong
observational mind-independence is a nonscalar property; it applies in an
all-or-nothing fashion rather than to varying degrees. Although strength
and weakness are usually scalar properties, the terms “strong” and “weak”
in this context are used in the technical senses speci¬ed in Section 1.2.1 .
In those senses, the terms denote nonscalar properties. Objectivity qua
observational mind-independence, then, is different from most of the
other dimensions of objectivity. For example, the impartiality of legal
of¬cials and the transindividual discernibility of legal truths vary in their
extents among different systems of law. By contrast, the strong obser-
vational mind-independence of legal norms does not vary within any
system of law or among any such systems. If a legal regime exists at all, its
norms are strongly mind-independent observationally. In that respect,
its norms are at one with those of every other legal regime.
Because the impartiality of legal of¬cials and the transindividual dis-
cernibility of legal truths are scalar, the operations of legal systems exhibit
those properties to differing degrees. In no small part, the ef¬ciency and
vibrancy of any legal system “ even a heinous legal system “ will depend
on the levels of those two types of objectivity within it. Indeed, if those
levels do not remain quite high, the very existence of a legal system will be
in jeopardy; in such a plight, some of Fuller™s principles of legality (such
as the principle of congruence and the principle of perspicuity) would
be going unful¬lled. Consequently, legal of¬cials who wish to secure the
robustness and the very continuation of their regime will need to strive
for the sustainment of those dimensions of objectivity. Their striving will
make a difference to the effectiveness of their regime and to its longevity.
Observational mind-independence is quite another matter. In regard
to this dimension of objectivity, admirably ef¬cient legal systems and dis-
mayingly inef¬cient legal systems are indistinguishable. A greater degree
of vibrancy in a legal system is not accompanied by any greater degree
Objectivity and Law™s Moral Authority 189


(or lesser degree) of observational mind-independence for the system™s
laws. Nor is there any distinction, in regard to the observational mind-
independence of laws, between a legal regime that is laudably benevolent
and a legal regime that is deplorably malign. In each case, the observa-
tional mind-independence of the regime™s laws is strong. When of¬cials
strive to ensure that their regime™s norms are benign and that its work-
ings are ef¬cient, they are not thereby doing anything that will increase
(or decrease) the observational mind-independence of those norms and
workings. So long as a legal system endures at all, its laws and operations
are strongly mind-independent observationally.
We should obviously not conclude, on the basis of what has just been
said, that there is no relationship between objectivity-qua-observational-
mind-independence and the rule of law or the Rule of Law. On the con-
trary, as is evident, both the rule of law and the Rule of Law inevitably
partake of such objectivity. Still, precisely because of the unvaryingness of
the relationship between observational mind-independence and the rule
of law or the Rule of Law, nothing of practical importance will be settled
by reference to that mind-independence. Regardless of the character of a
legal system “ regardless of whether it possesses or lacks moral authority “
its norms are endowed with strong observational mind-independence.
Even if of¬cials™ decisions are wicked or wrong-headed, the strong obser-
vational mind-independence will persist. For all the matters of practical
importance that confront a legal system, then, the strong observational
mind-independence of legal norms is a given rather than something that
has to be worried about and sought.



3.2. The Authoritativeness Doctrine

Consequently, quite unilluminating and extremely misleading is the fol-
lowing proposition:

Authoritativeness Doctrine: No legal regime can be morally authorita-
tive unless the norms in such a regime are strongly mind-independent
observationally.

A thesis of this sort is unilluminating because it does not really go
beyond the uninformative claim that a legal system can never be morally
190 Objectivity and the Rule of Law


authoritative without existing as a legal system. More precisely, it does
not really go beyond the claim that a legal system can never be morally
authoritative unless a certain basic and unavoidable feature of every legal
system is a feature thereof. We may as well be told that a legal system
cannot be morally authoritative unless its operations occur in space and
time. Furthermore, the Authoritativeness Doctrine is extremely mislead-
ing because it naturally suggests that, although the strong observational
mind-independence of laws is necessary for any legal regime™s moral
authority, such mind-independence is not similarly necessary for a legal
regime™s wickedness. Yet, given that no legal system can ever be present
without that mind-independence, and given that the existence of a legal
system is necessary for the existence of a heinous legal system, the strong
observational mind-independence of legal norms is necessary for the
heinousness of a system of law. Any legal system in the absence of such
mind-independence is impossible, and thus any evil legal system in the
absence of such mind-independence is impossible.
Now, the fact that the strong observational mind-independence of
legal norms is a necessary condition for benign legal systems and iniqui-
tous legal systems alike may not initially seem to render the Authorita-
tiveness Doctrine unilluminating. After all, I have argued elsewhere that
compliance with each of Fuller™s principles of legality is necessary for any
benevolent regime™s attainment of morally vital desiderata and also for
any evil regime™s ful¬llment of nefarious purposes on a large scale over a
long period (Kramer 1999a, 62“77; 2004a, 172“222; 2004b). My arguments
have not been uninformative and trivial, but have instead attempted to
counter the prevailing wisdom on the matter by showing at length that
the rule of law “ unlike the Rule of Law “ is not possessed of an inherent
moral status. Yet those arguments may seem quite closely parallel to the
Authoritativeness Doctrine, and may therefore seem no less vulnerable to
objections than that doctrine. Given that the features distilled in Fuller™s
principles are essential properties of every legal system, my arguments
about the rule of law may seem to be making the trivial claim that a legal
system has to be a legal system if it is to realize the good or evil purposes
that are achievable only through the existence of such a system. If in fact
my arguments are not trivially jejune, then the resemblances between
them and the Authoritativeness Doctrine may indicate that that doctrine
Objectivity and Law™s Moral Authority 191


too is much more meaty than I have contended. Such, at least, is what
the proponents of the Authoritativeness Doctrine might urge.
Let us leave aside here the fact that quite a few jurisprudential theo-
rists had failed to recognize the indispensability of the rule of law for the
realization of many wicked aims (and had therefore failed to recognize
that evil rulers bent only on reinforcing their own exploitative sway will
have strong reasons for complying with each of Fuller™s principles to a
substantial degree). Even if we pretermit that important point, there are
decisive dissimilarities between the Authoritativeness Doctrine and my
arguments about conformity with Fuller™s principles. Each of the Fulle-
rian principles encapsulates a scalar property that is to be sought and
attained by legal of¬cials to varying degrees. Although each such prop-
erty must be instantiated at least at some threshold level whenever a legal
system is functioning as such, the level of each above the relevant thresh-
old is something to be determined by the extent of the of¬cials™ striving.
Consequently, when a philosopher argues that substantial degrees of com-
pliance with the Fullerian principles are necessary for the achievement
of sundry ends “ either benevolent or malevolent “ he or she is not pro-
pounding some ridiculously boring thesis akin to the claim that those
sundry ends will never be achieved unless the operations of a legal system
(or of any system of governance) occur within space and time. That is, the
philosopher™s arguments are not focusing on a thoroughly unavoidable
property; they are not focusing on some property that is insusceptible
to being altered by anyone™s efforts. They are adverting to some scalar
properties that might or might not be present at suf¬ciently high levels
to enable the effects under consideration.
Contrariwise, when proponents of the Authoritativeness Doctrine
af¬rm that the moral authority of any legal regime hinges partly on the
strong observational mind-independence of its requirements and autho-
rizations, they are focusing on a nonscalar property. That property of
strong observational mind-independence is a given and is therefore not
an object of pursuit. Of¬cials™ endeavors cannot alter even slightly the
extent to which that property is applicable to the norms of their regime,
for it is always applicable tout court rather than to varying degrees. It is a
thoroughly unavoidable feature of any system of governance, just like the
property of being located in space and time. Accordingly, although the
192 Objectivity and the Rule of Law


Authoritativeness Doctrine is true, it is uninteresting and misleading. We
can just as well maintain that the iniquity or the inef¬ciency or the Islamic
character of a legal regime hinges partly on the strong observational mind-
independence of the regime™s requirements and authorizations. Each of
those claims would be true, and each would be uninteresting and highly
misleading. Since the norms of a legal regime (or, indeed, of any system
of governance) are always strongly mind-independent observationally,
any quality of a legal regime whatsoever will hinge partly on the strong
observational mind-independence of those norms; no quality of a legal
system can be present unless such a system itself exists, and no such system
can exist without norms that are strongly mind-independent observa-
tionally. Singling out some quality such as moral authoritativeness is
arbitrary.
Though the Authoritativeness Doctrine presents itself as an insight
into law™s moral authority, its only informative message is a regrettably
skewed reiteration of my ¬rst chapter™s conclusions about law™s observa-
tional mind-independence. In other words, instead of telling us anything
that pertains distinctively to the potential moral authority of a legal sys-
tem, that doctrine “ when shorn of its misleadingness “ repeats my open-
ing chapter™s verdict that laws inevitably partake of strong observational
mind-independence. It adds nothing helpful to that verdict.
Seemingly in disagreement with what has been said in the last few
paragraphs, many highly sophisticated legal philosophers have articu-
lated views broadly along the lines of the Authoritativeness Doctrine.
According to these philosophers, questions about the observational
mind-independence of legal norms are indeed of peculiar importance
for the potential moral authority of any legal system. Some of these
philosophers have elaborated their positions especially with reference to
the observational mind-independence of moral principles (which they
take to be among the norms of some or all legal systems), but they join
their fellow proponents of the Authoritativeness Doctrine in perceiv-
ing law™s moral authority as distinctively reliant on the observational
mind-independence of legal norms. Other eminent legal philosophers,
most forcefully Jeremy Waldron, have distanced themselves from the
Authoritativeness Doctrine but have marshaled arguments very different
from those advanced here. Instead of disparaging the Authoritativeness
Doctrine as unilluminating and tendentious (though true), they have
Objectivity and Law™s Moral Authority 193


submitted that it is false. They believe that its assertion about law™s moral
authority is important but unsustainable.1
Have all these philosophers gone astray? Insofar as any of them
regard themselves as locked in a genuinely interesting debate about the
connections between law™s moral authority and its observational mind-
independence, they are indeed laboring under a misapprehension. How-
ever, their claims and counterclaims are by no means entirely misguided.
On the contrary, they are engaged in a valuable and fruitful dispute “
but a dispute over the connections between law™s moral authority and
objectivity qua determinate correctness, rather than over the connec-
tions between law™s moral authority and objectivity qua observational
mind-independence. While seeming to quarrel about the Authoritative-
ness Doctrine, they are really quarreling about the need for a high level
of determinacy in the law if a legal system is to stand any chance of
being morally authoritative. They are disagreeing about the following
proposition:
Authoritativeness-cum-Determinacy Doctrine: No legal system can be
morally authoritative unless there are determinately correct answers to
a huge majority of the questions that arise under its norms.

In other words, instead of training attention on a property (observa-
tional mind-independence) that is constant and given, these philosophers
are actually training their attention on a scalar property (determinacy)
that is susceptible to being augmented or diminished within a system of
law by the endeavors of legal of¬cials.2
This book cannot recount in any detail the positions of the diverse par-
ticipants in the debates under discussion. To avoid getting bogged down in
matters of exposition and interpretation, my remarks here will paint with
quite a broad brush by concentrating on the two principal ways in which
someone might deny that legal norms are strongly mind-independent

1 For some of the major contributions to the debates that have been sketched very roughly in
this paragraph, see Coleman 1995, 46“47, 60“61 ; Coleman and Leiter 1995, 244“47; Moore
1982, 1063“71 ; 1992, 2447“91 ; Rosati 2004, 309“13; Waldron 1992.
2 For a valuable discussion of the relationships between law™s potential moral authority and
its determinacy, see Coleman and Leiter 1995, 228“41. Although my approach to the issues is
markedly different from that of Coleman and Leiter, I have pro¬ted from their analyses. Their
emphasis on the distinction between mind-dependence and most types of indeterminacy is
particularly pertinent. I shall discuss their arguments further near the end of this chapter.
194 Objectivity and the Rule of Law


observationally. As we shall see, each such denial would be unconducive
to any interesting disputes over the links between law™s potential moral
authority and its observational mind-independence. What appear to be
such disputes are really focused on links between law™s potential moral
authority and its determinacy.


3.3. Weak Observational Mind-Independence?

As has been indicated, the Authoritativeness Doctrine asserts that the
strong observational mind-independence of legal norms is necessary for
the moral authority of any system of law. One way in which somebody
might seek to impugn the strong observational mind-independence of
legal norms is to contend that that observational mind-independence is
weak rather than strong. Such is the tack pursued by Andrei Marmor, for
example, as we have beheld in Chapter 1 (Section 1.2.1 ). Now, although
I have endeavored to demonstrate that Marmor™s view of the matter is
mistaken, his view is hardly unworthy of serious consideration. It has
enticed many sophisticated philosophers, including Marmor himself. At
any rate, my present discussion is not aiming to dismiss his position or
to rebut it afresh. Rather, what we need to ascertain here is whether any
implications for the moral authority of legal regimes would be at stake
in a choice between Marmor™s position and my own “ that is, in a choice
between an insistence on the weak observational mind-independence of
laws and an insistence on their strong observational mind-independence.
Modi¬ed to ¬t with Marmor™s perspective, the Authoritativeness Doc-
trine would become the following proposition:

Weak Authoritativeness Doctrine: The weak observational mind-
independence of legal norms is necessary for the moral authority of
any system of law.

Obviously, the modi¬ed version of the Authoritativeness Doctrine lays
down a condition for law™s moral authority that is in some sense less
robust than the condition laid down by my own version (which has been
stated in the preceding paragraph). However, the question here is not
whether the two renderings of that doctrine are equivalent, but whether
the contrast between them makes any difference to law™s potential moral
Objectivity and Law™s Moral Authority 195


authority. A negative answer to that latter question is warranted, for,
although the contrast between the two renderings is of philosophical
importance, it is not of practical signi¬cance. Its implications for the
status of any particular legal regime “ as morally authoritative or not “
are nil.
What does have a crucial bearing on the matter of moral author-
ity is the point that is common to my version and Marmor™s version of
the Authoritativeness Doctrine. Both Marmor and I reject the notion
that legal norms are strongly mind-dependent observationally. In other
words, both of us reject the notion that the content and implications of
each legal norm are perforce what they are taken to be by any observer
(namely, by any of¬cial or citizen who re¬‚ects on the nature of the
norm). That shared rejection of strong observational mind-dependence
can be conveyed by yet another rendering of the Authoritativeness
Doctrine:

Hybrid Authoritativeness Doctrine: No legal system can be morally
authoritative unless its mandates and other norms are observationally
mind-independent either strongly or weakly.

Were legal norms devoid of observational mind-independence, every-
one™s views about their contents and implications would be determina-
tive of what those contents and implications are. Such views would be
analogous to people™s opinions concerning the tastiness of cauli¬‚ower, or
to a judgment by somebody that he is currently experiencing pain in his
left foot. No such weirdly fractionated state of affairs could form the basis
for a morally authoritative system of law. Unlike an experience of pain
in one™s left foot, the contents and implications of legal norms are not
radically subjective. Those norms could not satisfactorily perform some
of their roles “ especially their role in setting authoritative standards for
human interaction that serve as justi¬catory bases for decisions whereby
of¬cials resolve disputes or authorize the imposition of penalties “ if their
contents and implications were determined by each person™s beliefs about
them. Whether or not some particular legal norm is uniformly applica-
ble in all the ways discussed in Section 1.2.3, the strong observational
mind-dependence of its content and implications would effectively undo
its capacity to function as a legal norm. Thoroughly undermined would
be its capacity to function authoritatively.
196 Objectivity and the Rule of Law


We shall presently consider further the proposition that the contents
and implications of legal norms are strongly mind-dependent observa-
tionally. In particular, we shall explore exactly why the falsity of that
proposition has an important bearing on the potential moral authority
of legal regimes. For the moment, we should simply note that a repudia-
tion of that proposition is common to Marmor and me. Hence, if there is
any morally/politically pregnant dissimilarity between the Weak Author-
itativeness Doctrine associated with his account of law™s observational
mind-independence and the Authoritativeness Doctrine associated with
my account, it must pertain to something other than the matter of strong
observational mind-dependence. Speci¬cally, it will have to pertain to the
difference between strong observational mind-independence and weak
observational mind-independence. Yet, unlike the matter of strong obser-
vational mind-dependence, the difference just mentioned is of purely
philosophical importance rather than of moral/political importance. It

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