LINEBURG


<< . .

 22
( 26)



. . >>

We should assume for the moment that rampant indeterminacy is indeed
incompatible with law™s moral authoritativeness. (I will shortly endeavor
to show why an assumption along those lines is sound.) Given that we have
found that the strong observational mind-dependence of legal norms
would involve rampant indeterminacy, my discussion may appear to have
vindicated the Authoritativeness Doctrine. All along, however, the truth
of the Authoritativeness Doctrine has not been under challenge in any
way. Rather, what has been in doubt is the illuminatingness of that doc-
trine. It is unilluminating chie¬‚y because it is damagingly imprecise. By
characterizing the threat to law™s moral authority as an absence of obser-
vational mind-independence, the Authoritativeness Doctrine tends to
obscure the fact that the real danger is posed by an absence of determi-
nacy (or a severe paucity of determinacy). Of course, as we have seen, an
absence of observational mind-independence entails an absence of deter-
minacy. If the contents and implications of legal norms were strongly
mind-dependent observationally, then there would be no determinately
correct answers to any substantive questions about the ways in which
those norms should be construed. Nonetheless, although strong obser-
vational mind-dependence does entail thorough indeterminacy, there is
no entailment in the other direction. Indeterminacy can be rampant even
Objectivity and Law™s Moral Authority 207


though the observational mind-independence of legal norms is strong;
and the indeterminacy is no less problematic than it would be if it were
due to the strong observational mind-dependence of laws.
Suppose that a regime has violated Fuller™s third principle of legality,
the principle of perspicuity, to such an extent as to render indeterminate
the contents and implications of all or nearly all the regime™s norms. The
formulations of those norms are unintelligibly obscure gobbledygook. Of
course, given what has been argued in Chapter 2, we can know that these
large-scale contraventions of the principle of perspicuity will deprive the
regime of its status as a legal regime. A fortiori, then, they will exclude it
from being a morally authoritative legal regime. Still, the principal point
at the moment is simply to apprehend the fundamental af¬nity between
the indeterminacy that is present in this situation and the indetermi-
nacy that would be present if legal norms were strongly mind-dependent
observationally.
In one respect, there is a difference between the two situations of
indeterminacy; however, that difference will turn out to be unimportant,
at least in connection with the moral authority of law. If legal norms
were strongly mind-dependent observationally, then the condition for
the correctness of any interpretation of a legal norm would be the sheer
fact that somebody has arrived at that interpretation. By contrast, in
a situation of indeterminacy occasioned by a regime™s comprehensive
violations of the Fullerian principle of perspicuity, there is no criterion for
the correctness of any interpretations of the regime™s norms. Conversely,
there is no criterion for the incorrectness of any such interpretations.
Purely as an exegetical matter, every construal of any of the regime™s
norms in such a situation would be no better and no worse than any
other construal. Every interpretation would be correct in the sense of not
being incorrect. In other words, the upshot of such a situation would be
the same as that of a situation marked by the strong observational mind-
dependence of legal norms. Notwithstanding that the latter state of affairs
would involve a radically subjective criterion for correctness whereas
the former state of affairs would involve no criterion for correctness
or incorrectness at all, the result in each case would be the absence of
any grounds for deeming anyone™s construals of a regime™s norms to
be incorrect. That is, the result would be the thoroughgoing exegetical
parity of all interpretations of those norms. No interpretation could ever
208 Objectivity and the Rule of Law


be disallowed as inaccurate or expositorily inferior, since there would be
no basis for any such disallowance.
At the practical level where interpretations of norms are to be assessed
and adopted, then, the indeterminacy owing to the strong observational
mind-dependence of legal norms and the indeterminacy owing to the
utter unclarity of legal norms are indistinguishably corrosive. Each type
of blanket indeterminacy consists in interpretive indiscriminateness; each
type elides the distinction between sound and unsound understandings
of norms. Exactly because of that key af¬nity between the two types of
indeterminacy, each of them is inimical to the moral authority of a legal
regime. Consequently, by concentrating solely on the matter of mind-
dependence, the Authoritativeness Doctrine obfuscates the nature of the
problem which it addresses.
The shortcomings of the Authoritativeness Doctrine become further
evident when we take account of another type of sweeping indeterminacy
that could af¬‚ict and subvert a legal system: the sweeping indeterminacy
induced by a regime™s wide-ranging violations of the ¬fth Fullerian prin-
ciple of legality, which proscribes contradictoriness (and also con¬‚ict-
ingness). As was discussed in Chapter 2, pervasive contradictions within
the normative matrix of some system of governance would rack the sys-
tem with indeterminacy. To every question whether any particular mode
of conduct is permissible or impermissible, there would be no determi-
nately correct answer. A reply af¬rming the permissibility of the speci¬ed
mode of conduct would “ as an exposition of the law “ be no worse and
no better than a reply denying the conduct™s permissibility. Similarly, to
every question whether some particular course of action is ef¬cacious
or inef¬cacious as an exercise of a certain legal power, there would be
no determinately correct answer. No worse and no better than a reply
af¬rming the ef¬cacy of the course of action as an exercise of the spec-
i¬ed power would be a reply gainsaying its ef¬cacy. Neither “yes” nor
“no” in response to any such question would be incorrect, and therefore
neither of those answers would be determinately correct.
This latest type of indeterminacy is different in one notable respect
from the other two types that have been recounted here. Each of those
other types has stemmed from the lack of any objective standards for
distinguishing between accurate and inaccurate interpretations of legal
Objectivity and Law™s Moral Authority 209


norms. When indeterminacy has been engendered by rampant contra-
dictions within the authoritative materials of a system of governance,
the content of each norm in itself is not unsettled. Within that system, a
norm that confers a liberty to do X is straightforwardly determinate in
its content and implications, as is a norm that imposes a duty to abstain
from doing X. Indeterminacy arises from the coexistence of those two
norms and from the coexistence of countless other pairs of contradictory
norms. That is, the indeterminacy pertains not to the implications of each
contradictory norm taken by itself, but to the implications of each pair
of contradictory norms taken together. Because the hypothesized system
of governance comprises a myriad of such pairs, and because the con-
tradictoriness of each pair precludes any determinately correct answer to
the question addressed by each norm within the pair, the system yields
no determinately correct outcomes. It generates no determinately correct
answers to questions about the ways in which its norms bear on any con-
crete circumstances. To every such question an af¬rmative answer is no
better and no worse than a negative answer, for each of those answers is
prescribed by a law in contradictory coexistence with a law that prescribes
the other answer.
Once again, however, the divergences between different kinds of inde-
terminacy are greatly exceeded in importance by the af¬nities between
them. Although pervasive contradictions within a legal system™s norma-
tive matrix do not result in interpretive indeterminacy, they do result in
wholesale indeterminacy at the level of outcomes. Yet that level is also
where the other types of indeterminacy wreak their devastating effects.
Exactly because interpretive indeterminacy entails indeterminacy at the
level of outcomes “ the level at which a legal system manifests itself in
the world beyond the system™s own workings “ it is subversive of the
moral authority and the very existence of a legal regime. We shall miss
this point if we follow the Authoritativeness Doctrine in focusing solely
on the indeterminacy that would ensue from the strong observational
mind-dependence of legal norms. Instead of adopting that focus, we
should concentrate on what is common to the three types of indetermi-
nacy that have been broached here. Common to them, and at the heart
of their shared perniciousness, are their effects on the “bottom line” of
concrete decision-making in the operations of an ostensible legal system.
210 Objectivity and the Rule of Law


They do not prevent the reaching of decisions, of course, but they prevent
the reaching of decisions that are genuinely and univocally justi¬able by
reference to the system™s norms.



3.6. Why Is Rampant Indeterminacy Destructive
of Moral Authority?

We now need to ponder more closely why arrant indeterminacy “ what-
ever its source “ would indeed undermine any legal regime™s moral
authoritativeness. One obvious point, of course, is that such indeter-
minacy negates the status of a legal regime as such. If there is no legal sys-
tem in existence within some territory, then patently there is no morally
authoritative legal system within that territory. Such an observation is
only the starting point of an adequate analysis, however. What should be
pinned down (or, for the most part, recalled from Chapter 2) are the exact
respects in which wholesale indeterminacy is at odds with the existence
of a legal regime. We shall then be in a position to grasp the destructive
impact of such indeterminacy on law™s moral authority.
As was emphasized throughout Chapter 2, the central function of
law is to direct and coordinate the behavior of countless individuals
and groups. The ¬rst main respect in which rampant indeterminacy
is pernicious, then, is that it tends to thwart the performance of that
cardinal function. Here we need to differentiate between the indetermi-
nacy due to strong observational mind-dependence and the other two
types of indeterminacy. Suppose for a moment that the observational
mind-dependence of legal norms were strong. Those norms™ contents
and implications would therefore be entirely determined by the inter-
pretive judgments of each person who construes them. Even so, those
judgments among various people might very well exhibit an extremely
high degree of convergence, in most contexts. (As will be recalled, objec-
tivity qua transindividual discernibility can prevail in the absence of
objectivity qua mind-independence and in the absence of objectivity
qua determinate correctness.) Moreover, the people who interpret the
norms might not be attuned at all to the norms™ strong observational
mind-dependence. They might very well take themselves to be ascertain-
ing, rather than determining, the contents and implications of the norms.
Objectivity and Law™s Moral Authority 211


Each person in most contexts would expect others similarly to view the
processes of legal interpretation as an enterprise of discovery rather than
of creation. In these circumstances, the guiding and coordinating role
of a legal system would not be going unful¬lled. Such circumstances,
furthermore, are perfectly credible (if one temporarily accepts, for the
sake of argument, the incredible notion that legal norms lack any obser-
vational mind-independence). Hence, there are no cogent grounds for
thinking that the strong observational mind-dependence of legal norms
would be likely to impair the performance of the guiding and coordinat-
ing role just mentioned. Consequently, if we train our attention solely on
the indeterminacy arising from such mind-dependence, we shall miss the
full import of indeterminacy as a general phenomenon. One of the many
shortcomings of the Authoritativeness Doctrine is that it encourages just
such a narrow focus.
Indeterminacy arising from pervasive unintelligibility and indeter-
minacy arising from profuse contradictions are much more damaging
to the paramount function of law. To be sure, because of the distinc-
tion between indeterminacy and unpredictability, there is no absolutely
inevitable inconsistency between either of those types of indeterminacy
and the ability of authoritative norms to direct people™s behavior. In par-
ticular, as was remarked in my discussion of the matter in Chapter 2,
the tendencies of governmental of¬cials to select between contradictory
norms may be suf¬ciently conspicuous and patterned to be amply pre-
dictable. In that event, the sweeping indeterminacy occasioned by con-
tradictions that permeate the normative structure of some system of
governance will not preclude the system from guiding and channeling
people™s conduct along certain paths. Still, although such a state of affairs
is manifestly possible, it is not probable. Far more likely is that the sys-
tem™s normative structure will bewilder people and leave them groping
for appropriate courses of conduct. Even more plainly at odds with the
directing function of law would be a system of governance with norms
that are all opaquely incomprehensible. People can scarcely receive guid-
ance from norms if they and the experts who advise them do not know
what any of those norms mean.
In short, the pervasive obscurity or incoherence of the norms estab-
lished by some system of governance would almost certainly frustrate the
ful¬llment of the central role of law. Accordingly, the indeterminacy bred
212 Objectivity and the Rule of Law


by the wide-ranging obscurity or incoherence would almost certainly be
fatal to the operativeness of a legal system as such. It would therefore be
fatal to the attainment of the desiderata that cannot be adequately realized
in the absence of such a system. Given that the capacity of a legal system
to secure those desiderata is a necessary condition for the system™s moral
authority, the indeterminacy just mentioned is inimical to such author-
ity. Although the indeterminacy associated with the strong observational
mind-dependence of legal norms would not in itself threaten the capacity
of law to guide people™s doings, the other types of indeterminacy under
consideration here would indeed produce such an effect. Thus, instead of
championing the Authoritativeness Doctrine, one should champion an
otherwise similar thesis “ the Authoritativeness-cum-Determinacy Doc-
trine “ that is focused on indeterminacy in all its forms rather than just
on strong mind-dependence.
A second pernicious aspect of wholesale indeterminacy is even more
important, because it extends to all three types of indeterminacy. When
legal norms are determinate in their substance and implications, they
can serve as bases for the justi¬cation of decisions that are reached by
reference to them. They can accurately be invoked as standards of con-
duct that univocally require those decisions. To be sure, the capacity of
legal norms to serve as justi¬catory touchstones does not per se suf¬ce
for their possession of any moral authority. If the substance of some
law L is iniquitous, and if the decisions required under the terms of
L are correspondingly heinous, then L is devoid of moral authority “
regardless of the fact that it obtains as a legally dispositive standard of
conduct which determinately calls for particular outcomes in any num-
ber of circumstances. Still, although the operativeness of a legal norm
as a basis for of¬cials™ decisions is by no means a suf¬cient condition
for the moral authority of the norm, it is a necessary condition. If a
legal norm is engulfed by indeterminacy and is consequently unable to
justify any outcomes legally, it will not be able to justify any outcomes
morally. If a system of governance teems with such norms, it will not
partake of any af¬rmative moral leverage. (Of course, when indetermi-
nacy is due to a contradiction between legal norms, one of the norms
in any contradictory pair might be a benevolent standard that clashes
with a malign standard. For example, a law that imposes a duty on each
person to abstain from murdering his or her fellow human beings might
Objectivity and Law™s Moral Authority 213


be contradicted by a law that bestows a liberty on each person to commit
murders. In such a case, the benevolent law BL coincides in content with
a correct principle of morality. That moral principle is, of course, able to
justify outcomes morally. However, BL itself, despite its admirable con-
tent, is not similarly possessed of moral justi¬catory power. After all, it
is contradicted by another law, which countenances murder; yet BL as a
legal norm is morally authoritative only if its legally determinative force
is not completely offset by another legal norm that calls decisively for
outcomes contradictory to those required under the terms of BL. A com-
mendable legal norm derives its moral authority “ insofar as it possesses
moral authority “ not only from its content but also from its dispositive
sway in the system of law to which it belongs. If its sway is locked in a
contradiction with the sway of another law, then its dispositiveness is lost,
and its moral authority is therefore vitiated.)
Given that no legal norm can be morally authoritative if it cannot
operate as a justi¬catory basis for of¬cials™ decisions, we need to inves-
tigate whether any such norm can operate as a justi¬catory basis if it is
encompassed by arrant indeterminacy. As should be evident, the answer
to this question “ for each of the three types of indeterminacy “ will prove
to be negative. Let us start with the indeterminacy that would ensue from
the strong observational mind-dependence of legal norms. As we have
seen, such indeterminacy would consist in the radical subjectivity of the
contents and implications of those norms. Each person™s understanding
of a law™s bearing on any particular situation would be correct (for that
person) simply by dint of being his or her understanding of the matter.
As a consequence, no law could ever serve as an independent justi¬catory
basis for any of¬cial decisions. Until an of¬cial reaches a judgment about
the application of some legal norm to any set of facts, the norm itself
would have no bearing on those facts (for that of¬cial). If the of¬cial
decides that the norm in question requires a verdict in one direction,
then ipso facto the norm would indeed require just such a verdict. If the
of¬cial decides instead that the norm requires a verdict in the opposite
direction, then the norm would indeed require an outcome in that oppo-
site direction. If contrariwise the of¬cial deems the norm to be wholly
irrelevant to the set of facts which he is pondering, then the norm would
indeed be beside the point. In short, instead of serving as the justi¬catory
basis for the of¬cial™s judgment, the content of any legal norm invoked
214 Objectivity and the Rule of Law


by the of¬cial would be a product of that judgment. The formulation of
the norm would simply be the phrasing with which the of¬cial expresses
himself; it would not convey any independent prescriptive content that
could serve to undergird his decision.
Hence, if legal norms were bereft of observational mind-indepen-
dence, the distinction between the rule of law and the rule of men
would not withstand the slightest scrutiny. Legal norms would be empty
shells whose contents would be ¬lled entirely by individuals™ opinions.
Moreover, since those opinions would almost certainly differ among
individuals “ among a few refractory individuals in clear-cut cases, and
among many more individuals in dif¬cult cases “ the legal norms would
almost inevitably get applied against people for whom the norms would
require favorable results. In any such case, a law L would require one result
from the of¬cials who implement it and a contrary result in relation to
the person(s) against whom L is implemented. Such an upshot would
re¬‚ect the weirdly disjointed existence of legal norms that would follow
from the radically subjective character of their contents. What should
be emphasized here is the destructive effect of that disjointed existence
on the moral authority of law. Since no legal norm would possess any
overarching substance that transcends the opinions of each individual,
no such norm could ever bindingly be applied against someone whose
interpretation of its terms would not authorize such an application.
In sum, the indeterminacy associated with the strong observational
mind-dependence of laws would doubly foil the moral authority of every
legal system. It would prevent legal norms from ever genuinely serving as
justi¬catory grounds for of¬cials™ adjudicative and administrative deci-
sions, since it would render the contents of those norms entirely deriva-
tive of the decisions. Given such mind-dependence, in other words, the
operations of a legal system would proceed through coercive assertions
of of¬cials™ opinions rather than through applications of norms whose
contents antecede and govern those assertions. In addition, the strong
observational mind-dependence would strip away all moral authority
from any invocation of a law against someone who dissents from the
interpretation that has led to that law™s being invoked against him.
The evils just recounted are not unique to the indeterminacy that
would be associated with the strong observational mind-dependence of
legal norms. They would likewise af¬‚ict any system of governance in
which every norm or nearly every norm is baf¬‚ingly opaque (even to
Objectivity and Law™s Moral Authority 215


experts), and any system of governance in which every norm or nearly
every norm is contradicted by an antithetical norm. In a regime with
thoroughly unintelligible norms, the objective fact of the matter would
be that those norms lack any independently meaningful contents. Because
each norm would be without any such content, its substance would have
to be ¬lled in by the creative understanding of each interpreter. Since each
norm itself (devoid of substance) would place no constraint on anyone™s
understanding, no interpretation could ever genuinely be justi¬ed by
reference to it. As a matter of exegesis, each interpretation would be
no worse and no better than any other. Consequently lacking in moral
authority would be any application of an incomprehensible norm against
somebody who disagrees with the construal of the norm that underpins
the application. Although such an application might carry independent
moral authority as the effectuation of a correct principle of morality,
it would not carry any such authority in its status as an application of
an impenetrably unclear law. Thus, without crediting in any way the
notion that laws are strongly mind-dependent observationally, we ¬nd
that the problems of justi¬cation arising from strong observational mind-
dependence are associated as well with the comprehensive opacity of a
regime™s norms. In regard to those problems, the indeterminacy ensuing
from the mind-dependence and the indeterminacy ensuing from the
opacity are at one.
Somewhat different though essentially similar is the indeterminacy
ensuing from pervasive contradictions in the normative structure of a sys-
tem of governance. Here the problems of justi¬cation do not arise from
the absence of any independent content in each norm of the system. Each
norm is endowed with a determinate content. Rather, the problems of
justi¬cation arise from the arbitrariness of any choice between each norm
and the contradictory norm with which it is paired. Though the choice
may be straightforward as a matter of morality “ a heinous law can be
in contradiction with a benign law “ it is wholly arbitrary as a matter of
applying the norms that are recognized as such within the system of gov-
ernance. Ex hypothesi, each such norm N is accompanied by a norm with
a content that negates N™s content. Each of those norms belongs to the
system as one of its purportedly dispositive standards of conduct. Thus,
there is no basis within the system itself for favoring one of those norms
over the other. Because of that indeterminacy, neither norm can gen-
uinely serve as a justi¬catory basis for any concrete decisions. Each norm
216 Objectivity and the Rule of Law


by itself calls for speci¬c outcomes in any number of situations, but each
norm as an element of a contradiction is generative of logical incoherence
that does not call for any speci¬c outcomes to the exclusion of others.
Within the sway of that incoherence, every decision is as defensible as any
other, and therefore no decision is determinately justi¬able by reference
to the norms of the system in which it is reached. Hence, by a somewhat
different route, we here encounter problems of justi¬cation essentially
similar to those associated with the other types of indeterminacy. Any
ostensible legal system with a normative structure that is permeated by
contradictions will not be able to justify any decisions determinately.
Having shifted from the Authoritativeness Doctrine™s focus on obser-
vational mind-dependence to a focus on indeterminacy (including, of
course, the indeterminacy entailed by the strong observational mind-
dependence of legal norms), we have found that blanket indeterminacy
is incompatible with the moral authority of any legal system. Indeed, it is
incompatible with the very existence of a legal system. No regime with a

<< . .

 22
( 26)



. . >>

Copyright Design by: Sunlight webdesign