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bears crucially on the aim of coming up with a correct philosophical
account of the ontological status of legal norms and their contents, but
it does not impinge on any regime™s actual or potential moral authority.
My discussion of law™s observational mind-independence has main-
tained that legal of¬cials can collectively be in error when they seek to
apprehend the contents and implications of the laws which they them-
selves have collectively brought forth as such. If they do collectively misun-
derstand any of those contents and implications when arriving at certain
decisions, they will unwittingly have departed from the law™s prescrip-
tions instead of giving effect thereto. Unless such a collective error is
quickly corrected, it will enter into the law and thereby alter what the law
has been. An alteration of that sort might be extremely narrow, but, if the
precedential force of an erroneous decision or of its rationale is ample in
scope, the alteration might encompass a signi¬cant part of some area of
the law.
Undoubtedly, Marmor tells a different story. He asserts that legal-
governmental of¬cials cannot collectively be mistaken when they sin-
cerely expound the contents and implications of the norms in their system
of law, and he therefore leaves no room for the unwitting alterations that
have just been described. He can of course allow that the of¬cials collec-
tively might on some occasion deliberately distort the law™s requirements
or authorizations, but he explicitly denies that their honest collective
Objectivity and Law™s Moral Authority 197


efforts to ferret out the contents and implications of their regime™s laws
can land them in error. Individual of¬cials can stumble in their inter-
pretations of laws, Marmor concedes, but the of¬cials together as an
organized group cannot. Thus, he does not feel any need to explain how
the of¬cials™ collective mistakes about the meanings and applications of
legal norms can become incorporated into the law. In his eyes, there are
no such mistakes. If the of¬cials collectively believe that a certain legal
norm requires a certain conclusion, then ipso facto the norm does indeed
require that conclusion.
In sum, the distinction between Marmor™s account and mine is cen-
tered on situations in which legal of¬cials collectively interpret laws in
ways that would be branded as erroneous by my account. Under Marmor™s
account, those interpretations and the decisions based upon them would
be instances of law-application rather than instances of law-alteration.
Now, clearly, this divergence between the two accounts is philosophi-
cally signi¬cant. As has been argued in Section 1.2.1 , proper attentiveness
to the division between ¬rst-order beliefs and second-order beliefs can
reveal the untenability of Marmor™s position. However, we are addressing
ourselves here to moral/political considerations rather than to philosoph-
ical signi¬cance. Does anything of moral/political weightiness hinge on
the competing characterizations of what the of¬cials have done in the
circumstances envisaged? Will the difference between those character-
izations have any nontrivial bearing on the moral authoritativeness of
legal regimes?
A bit of re¬‚ection should indicate that the answer to each of these
questions is negative. Let us begin by noting two small but not insignif-
icant points. As was avouched in Chapter 1 ™s original discussion of this
matter, there are solid grounds for thinking that collective errors of legal
interpretation on the part of legal of¬cials will be rare. Although legal of¬-
cials are not collectively infallible, their knowledgeable familiarity with
the products of their own endeavors will help to ensure that they do not
often collectively go astray in their interpretations. In easy cases involv-
ing straightforwardly classi¬able modes of conduct “ that is, in the large
majority of the cases handled by adjudicative and administrative of¬cials
within any functional legal system “ the of¬cials will collectively keep
one another on track. Only in a subset of hard cases (which, despite their
occasional prominence, are far fewer in number than easy cases) will
198 Objectivity and the Rule of Law


the of¬cials be prone to blunder collectively when they apprehend the
contents and implications of the laws of their regime. Furthermore, even
on the infrequent occasions when the of¬cials do collectively stumble
in matters of legal interpretation, their missteps will not always be for
the worse. Since those missteps will occur in dif¬cult cases, their dash-
ing of legitimate expectations will typically be minimal; after all, such
cases center on controversial questions that normally thwart the forma-
tion of solid expectations by giving rise to many differences of opinion
and considerable uncertainty among the sundry people involved. On the
substance of the matters in relation to which the of¬cials stumble, at
least some of their misinterpretations might enhance the law instead of
detracting from it. There is no reason to assume beforehand that their
collective misconstruals of the contents and implications of legal norms
will invariably worsen the moral tenor of their regime™s law.
More important, nothing of moral/political weightiness will turn on
the question whether legal of¬cials™ collective misinterpretations are to be
classi¬ed by any jurisprudential theory as misinterpretations or not. As
has been stated, the collective misinterpretations will enter into the law
of the relevant jurisdiction unless they are quickly perceived as mistaken
and are disowned. The fact that they were inaccurate does not neces-
sarily mean that they will ever be queried and dislodged. All the same,
they might indeed at some later juncture be reversed. Perhaps their erro-
neousness will eventually be recognized, but perhaps instead “ and more
likely “ they will be regarded as objectionable on some other grounds. In
any case of the latter sort, where what is actually a misunderstanding of
some legal norm is regarded as interpretively correct but condemnable on
some other ground, the elimination of that misunderstanding from the
law will be construed by of¬cials as a deliberate change in the norm that
has been misunderstood. In other words, any collective error of inter-
pretation committed by legal of¬cials in the course of their law-applying
activities will be subject to reversal even if its nature as an interpretive
error goes forever unglimpsed. (Of course, if the legal norm that has been
misunderstood is a statute or a constitutional provision, adjudicators and
administrators will not be individually or collectively authorized to alter
the wording of the formulation of the norm. However, they can appeal
to the spirit of the norm in order to up-date the implications of its for-
mulation. Such a tack would not “ or would not perforce “ involve any
Objectivity and Law™s Moral Authority 199


recognition of the erroneousness of the way in which the norm has been
interpreted in the past.)
Suppose that Marmor were correct in his ascription of collective infal-
libility to legal of¬cials. Would the susceptibility of of¬cials™ decisions to
reversal or modi¬cation be any different from what has been described
in the preceding paragraph? For two reasons, the answer to this ques-
tion is negative; and therefore the answer to each of the questions in the
antepenultimate paragraph above is also negative, since nothing other
than this matter of the displaceability of of¬cials™ decisions could distin-
guish my own account of law™s observational mind-independence from
Marmor™s account in a way that bears on the moral authority of legal
systems.
In the ¬rst place, as has just been remarked, of¬cials™ collective deter-
minations can subsequently be dislodged even if they are never perceived
as interpretively mistaken. If legal of¬cials collectively arrive at the view
that some interpretation of a law should be modi¬ed or set aside even
though it was correct when it was originally advanced, their abandon-
ment of their past position does not involve any attribution of exegetical
incorrectness to that past position. Thus, if Marmor were right about
legal of¬cials™ collective infallibility, and if the of¬cials themselves shared
his belief on that point, they could nonetheless proceed to undo their past
understandings of the contents and implications of various legal norms.
Departures from those erstwhile understandings would not have to be
presented and justi¬ed as recti¬cations of blunders. They could be pre-
sented and justi¬ed perfectly well as adaptations to new circumstances;
the erstwhile understandings could still be perceived as correct for the
time when they prevailed, even though the of¬cials might all now accept
that that time has passed.
In the second place, even if Marmor were indeed right about of¬-
cials™ collective infallibility, the of¬cials in any particular legal regime
might not subscribe to his view of the matter. Judges and other legal of¬-
cials typically exhibit virtually no interest, and even less pro¬ciency, in
philosophical argumentation. Whether or not they are collectively infal-
lible when addressing problems of legal interpretation, their expertise in
addressing philosophical problems is decidedly imperfect. Consequently,
the likelihood of their aligning themselves with Marmor will be largely
unaffected by the truth or falsity of his claims. In any particular legal
200 Objectivity and the Rule of Law


system, the of¬cials might well be inclined to conclude that some past
interpretation of a legal norm was erroneous notwithstanding that that
interpretation was collectively upheld at the time by them or their pre-
decessors. Their inclination will withstand any arguments by Marmor
or other philosophers who endeavor to show that the of¬cials™ interpre-
tive activities cannot in fact go astray. Judges and other legal of¬cials will
blithely ignore those arguments, just as they ignore philosophical disputa-
tion generally. Although the of¬cials in some regime might ascribe infal-
libility to themselves collectively in matters of legal interpretation, their
doing so will almost certainly derive from grandiose self-importance “
or from pseudo-philosophical dogmas “ rather than from philosophical
acumen. Any such re¬‚exive ascription of collective infallibility on the part
of the of¬cials, like a contrary inclination on their part to brand some of
their past interpretations as missteps, will generally be reached indepen-
dently of the competing merits of arguments propounded by full-blown
philosophers.
Hence, even if Marmor™s arguments were cogent, they would not in
themselves provide any grounds for thinking that legal of¬cials will be
undisposed to reverse certain past rulings as collective blunders. The
philosophical point of contention between Marmor and me is separate
from the question whether legal of¬cials will believe themselves to be col-
lectively infallible or not. While the moral authority of a legal system may
depend on the readiness of the system™s of¬cials to repudiate certain past
rulings as mistakes that should be acknowledged and recti¬ed, such readi-
ness can be present irrespective of how the aforementioned philosophical
point of contention is resolved. (As has been noted in Chapter 1 , inciden-
tally, Marmor cannot coherently account for a situation wherein legal
of¬cials do collectively maintain at some time t2 that they have erred at
some earlier juncture t1 . If he insists that they were collectively infallible
at t1 , then he will in effect be avowing that they are in error about a
matter of legal interpretation at t2 . Contrariwise, if he insists that they
are collectively infallible at t2 , he will in effect be avowing that they were
in error about a matter of legal interpretation at t1 . Although the general
question whether legal of¬cials can collectively go astray in their activities
of legal interpretation is a philosophical problem, any speci¬c question
about the correctness of a certain interpretation of some law at t1 and
Objectivity and Law™s Moral Authority 201


about the consequent import of that law at t2 is a matter of legal exegesis “
a matter in regard to which the relevant of¬cials are collectively beyond
error, according to Marmor. He will therefore not be able to dodge the
paradox posed for him by the scenario of the clashing interpretations at
t1 and t2 .)
In short, as has been stated, the pregnant philosophical difference
between my own account of law™s observational mind-independence and
Marmor™s account does not impinge in any nontrivial way on the poten-
tial moral authority of legal systems. If his account were correct, and if the
Weak Authoritativeness Doctrine associated with his account were conse-
quently to be preferred to the Authoritativeness Doctrine associated with
mine, any apposite judgments about the moral authority of various legal
regimes would remain unaffected. In other words, there is no practical
difference between my Authoritativeness Doctrine “ which asserts that no
legal regime can be morally authoritative unless the observational mind-
independence of its norms is strong “ and the Hybrid Authoritativeness
Doctrine, which asserts that no legal regime can be morally authoritative
unless its norms are observationally mind-independent either strongly
or weakly. Neither my version nor the hybrid version of the Authorita-
tiveness Doctrine is helpfully illuminating, but each is true.



3.4. Strong Observational Mind-Dependence
and Indeterminacy

If we want to ¬nd any practical differences, we shall have to look again at
the proposition which Marmor and I are united in rejecting: the propo-
sition that the observational mind-dependence of legal norms is strong.
As has already been indicated, the falsity of that proposition is essential
for the moral authority of any system of law. Strong observational mind-
dependence would be inconsistent with any such authority. However,
when one examines the matter a bit more deeply, one discovers that the
real danger to the moral authority of law is posed by rampant indetermi-
nacy. Only because the strong observational mind-dependence of legal
norms would involve such indeterminacy, should we regard it as problem-
atic on moral/political grounds. By concentrating on mind-dependence
202 Objectivity and the Rule of Law


rather than on indeterminacy, the Authoritativeness Doctrine is impre-
cise and misleading. It does not pinpoint the problem to which it rightly
seeks to draw attention.
As was remarked earlier, the strong observational mind-dependence
of legal norms would consist in a crazily fractionated state of affairs where
everyone™s perceptions of the contents and implications of laws would be
dispositive of what those contents and implications are. Consider what
such a bizarrely subjectivist state of affairs could be like. If Jeff believes
that a particular legal norm entails some conclusion X in certain circum-
stances, then the norm in those circumstances does entail that conclusion
(for him). Simultaneously, if Jane believes that the norm entails a contrary
conclusion Y in the speci¬ed circumstances, then the norm in those cir-
cumstances does entail that contrary conclusion (for her). And so forth.
When the criterion for the correctness of each person™s beliefs about the
contents and implications of laws is satis¬ed simply by each person™s
harboring of those beliefs, the substance of any law can be incoherently
multifarious and fragmented. Although there might be unanimity on the
implications of this or that law in application to certain types of situa-
tions, such unanimity will be rare “ any sizable society will contain at
least a few daft mavericks “ and it is never guaranteed. It always can be
accompanied, and almost always will be accompanied, by disaccord on
countless other points of interpretation. On some of those points, indeed,
the disaccord will take the form of a huge jumble of con¬‚icting opinions.
Hence, the contents of legal norms will not exist univocally. Rather, the
content of each such norm will actually or potentially be divided against
itself, sometimes in a bewilderingly heterogeneous medley of incompat-
ible renderings.
To see that the principal problem under discussion is that of indeter-
minacy, we should ¬rst note how it differs from a lack of transindividual
discernibility, and we should then take account of its potential emergence
notwithstanding the strong observational mind-independence of legal
norms. Like determinacy and unlike observational mind-independence,
transindividual discernibility is a scalar property. The contents and impli-
cations of legal norms can be transindividually discernible to varying
degrees, just as they can be determinate to greater or lesser extents. Despite
that important similarity, however, the situation described in the last
paragraph is not equivalent to a situation in which the transindividual
Objectivity and Law™s Moral Authority 203


discernibility of the contents and implications of legal norms has disap-
peared. For one thing, although unanimity in the interpretation of any
legal norm is seldom attainable within a sizable society, a very high degree
of transindividual discernibility in the interpretation of many aspects of
most legal norms is usually present. Most cases in any functional legal
system are easy cases. What is necessary for their easiness is not that every-
one would agree on the answers to the questions which they pose, but
that the large majority of people would agree on those answers. Nothing
in the preceding paragraph is meant to suggest that the requisite degree
of convergence will generally be missing. Some matters of legal inter-
pretation in any regime are vexingly dif¬cult and controversial, but most
such matters are straightforward and even routine. Though complete uni-
formity among people™s actual or likely responses to such matters (even
routine matters) is typically unrealizable, an ample measure of unifor-
mity among those responses on most issues of legal exegesis is perfectly
realistic. When the foregoing paragraph has maintained that the strong
observational mind-dependence of legal norms™ contents would frag-
ment those contents and deprive them of their univocality, it has not
been implying that the fragmentedness would derive from widespread
disagreements among people about those contents. The fragmentedness
would be ontological rather than epistemic; that is, it would pertain to the
character of the contents™ existence rather than to the character of peo-
ple™s knowledge. Regardless of the degree of convergence or divergence
among people concerning questions of legal interpretation, the contents
of legal norms “ around which the convergence or divergence occurs “
would be radically subjective if their observational mind-dependence
were strong. Being relative to the outlook of every observer, each of those
contents would have no overarching grip even if most people concurred
in specifying what each of those contents is.
Whereas the disjointedness of a situation marked by strong obser-
vational mind-dependence is ontological, the disjointedness of a situa-
tion marked by a lack of transindividual discernibility is epistemic. We
shall return in a moment to the fact that the former type of disjoint-
edness can obtain without the latter. Let us pause brie¬‚y to note here
that the latter type of disjointedness can likewise obtain without the for-
mer. Chapter 1 ™s discussion of transindividual discernibility has, indeed,
made precisely this point. Objectivity qua transindividual discernibility
204 Objectivity and the Rule of Law


resides in the tendency of people to converge in their beliefs and con-
victions. That tendency can be absent or meager in relation to matters
whose observational mind-independence is unquestionably strong. My
earlier discussion referred to the problems of cosmology, which focus
on phenomena that are paradigmatically endowed with strong observa-
tional mind-independence. On many points, the problems of cosmol-
ogy have elicited far more disagreement than agreement. Epistemically,
then, the current state of affairs concerning many of those problems is a
state of fragmentedness. Transindividual discernibility is in short supply.
Ontologically, however, there is no fragmentedness; the nature of any
cosmological phenomenon is certainly not radically subjective.
More important for our present enquiry is that a high level of transin-
dividual discernibility can coexist with the ontological splinteredness that
ensues from strong observational mind-dependence. If the contents of
legal norms partook of such mind-dependence, they would be thoroughly
subjective regardless of whether people might converge in their identi¬-
cations of those contents or not. Hence, the inconsistency between the
strong observational mind-dependence of legal norms and the moral
authoritativeness of legal systems does not derive from epistemic con-
siderations. More speci¬cally, it does not derive from any ineluctably
negative effect of such mind-dependence on the ability of people to con-
cur with one another in their interpretations of legal norms. On the one
hand, a substantial degree of convergence among legal of¬cials and other
legal experts in most such interpretations is essential for the functional-
ity of a legal regime; without that degree of convergence, the role of law
in guiding and coordinating people™s behavior could not be performed.
Such interpretive uniformity is therefore obviously essential for the moral
authority of any legal regime. A nonfunctional system of law is hardly
a morally authoritative system. Thus, if the strong observational mind-
dependence of legal norms were incompatible with the requisite degree
of interpretive convergence, that incompatibility would itself be suf¬cient
to establish that such mind-dependence is inimical to the moral authority
of law. On the other hand, however, there is no such inevitable incom-
patibility. People™s interpretations of just about any legal norm might
well converge signi¬cantly “ at least among the legal of¬cials and other
legal experts whose opinions matter “ even if the only touchstone for the
Objectivity and Law™s Moral Authority 205


correctness of each individual™s interpretation were the sheer fact that that
individual believes it to be true. Consequently, if we wish to pin down
why the strong observational mind-dependence of legal norms would
undermine the moral authority of every legal regime, we shall have to
look elsewhere. Such mind-dependence is not equivalent to, or neces-
sarily promotive of, a dearth of transindividual discernibility. Hence, a
concentration on the absence of transindividual discernibility would not
enable us to fathom what we are seeking to fathom.
Instead, the inconsistency between the strong observational mind-
dependence of laws and the moral authoritativeness of legal systems is due
to the indeterminacy that would be entailed by such mind-dependence.
That thoroughgoing indeterminacy would be a lack of ontological objec-
tivity rather than a lack of epistemic objectivity (though of course it
might be accompanied by a dearth of epistemic objectivity). People™s
understandings of the content and implications of each legal norm might
largely tally with one another, but the content and implications them-
selves would be devoid of any univocal existence. For each person, there
would be no answer “ apart from a circularly vacuous answer “ to the
question how he or she should construe the content and implications of
any particular legal norm. Any understanding at which he or she arrives
would be correct by dint of his or her having arrived at it. In other words,
the content of each law would not serve to constrain at all the range of
ways in which somebody could correctly perceive that content. Rather,
for each person, the content would be entirely derivative of the way in
which he or she perceives it. Because the substance of every legal norm
would lack any ontological independence, no construal of the content
and implications of any law by any person would ever be better “ as a
sheer matter of interpretation “ than any other construal. No person
could ever err by expounding the content and implications of some
law in one way rather than another. If a person were to decide that some
law carries some implication X in a certain context, then ipso facto the law
in question would carry that implication in such a context (in relation
to that person). If the person were then to change his mind and decide
that the law instead carries some contrary implication Y in the speci¬ed
context, then ipso facto the law in question would carry that implication
(in relation to that person). Accordingly, the substance of every legal
206 Objectivity and the Rule of Law


norm would perpetually remain indeterminate. Because no construal of
that substance would be exegetically better than any other, no construal
would be determinately correct. When there is no such thing as an inter-
pretive misjudgment “ when no conceivable interpretive judgment is
disallowed as incorrect “ there is no such thing as a determinately correct
interpretation.
In sum, the strong observational mind-dependence of legal norms
would render the law completely indeterminate. To say as much, how-
ever, is not yet to substantiate my earlier pejorative remarks about the
Authoritativeness Doctrine. Nor have we yet seen exactly why the inde-
terminacy ensuing from the strong observational mind-dependence of
legal norms would be fatal to the moral authority of law. Let us take up
each of these two points in turn.



3.5. Other Types of Indeterminacy

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