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normative structure suffused by any of the three types of indeterminacy
can supply genuine legal justi¬cations for any concrete decisions. In cir-
cumstances of pervasive indeterminacy, then, the question never arises
whether the legal justi¬cations provided by a regime are also morally
authoritative justi¬cations; there cannot be any morally authoritative
legal justi¬cations if there are no legal justi¬cations.



3.7. Some Apparently Competing Views

My conclusions may seem at odds with those espoused by some of the
other philosophers who have written on these topics. In light of the
apparent clashes, this discussion will close by brie¬‚y considering whether
those other philosophers have adopted any positions that really con¬‚ict
with what has been said here. We shall glance ¬rst at an essay by Brian
Leiter and Jules Coleman and then at an essay by Jeremy Waldron.


3.7.1. Coleman and Leiter on Indeterminacy

In a sophisticated and enlightening account of legal objectivity and deter-
minacy, Leiter and Coleman proclaim that “[w]e have found no deep
Objectivity and Law™s Moral Authority 217


commitment of liberalism that requires determinacy.” They summarize
the upshot of their arguments as follows: “Liberal political theory is com-
mitted to a variety of ideals that can be confused with a commitment to
determinacy. In fact, however, liberalism is not committed to determi-
nacy in the sense of uniquely warranted outcomes. The existence of inde-
terminacy in adjudication, therefore, poses no substantial threat to the
possibility of legitimate governance by law” (Coleman and Leiter 1995,
240“41). These pronouncements seem at ¬rst sight to be strikingly at
variance with my own claims about indeterminacy. In fact, however, the
inconsistencies vanish upon closer inspection.
My discussion has concentrated on situations of comprehensive inde-
terminacy. The indeterminacy associated with the strong observational
mind-dependence of legal norms would necessarily be comprehensive,
since that mind-dependence would obtain across the board if it obtained
at all. Were legal norms characterized by strong observational mind-
dependence, the necessary and suf¬cient condition for the correctness
of any particular interpretation of each such norm would be the sheer
fact that somebody subscribes to that interpretation. Such a criterion
for correctness would govern every interpretation of every legal norm
if it governed any. Hence, the indeterminacy deriving from the sway of
that criterion would engulf every decision that might ¬‚ow from any such
interpretation. That indeterminacy is a nonscalar property; it applies in
an all-or-nothing fashion. By contrast, the other two types of indeter-
minacy that have been under consideration here “ indeterminacy due
to unintelligibility and indeterminacy due to contradictions “ are scalar
properties. Each of them can be present in legal systems to many differ-
ing degrees. My discussion in this chapter has focused on situations in
which indeterminacy of either of those scalar types is all-encompassing or
nearly all-encompassing. When all or most of the norms in an ostensible
legal system are indeed in the grip of indeterminacy, the system is not a
genuine regime of law, and it does not partake of any moral authority.
A situation marked by indeterminacy on a much more modest scale
is far less problematic. Though contradictions in the normative matrix of
a legal system are always regrettable, the presence of a few contradictions
in a vast array of formulated norms will not perceptibly detract from
the moral stature of the regime which comprises that array. Much the
same can be said about opaquely incomprehensible legal norms. A few
218 Objectivity and the Rule of Law


such norms in a large legal system will not derogate from the system™s
moral authority to more than a trivial extent. Of course, insofar as the
contradictoriness or obscurity affects more and more norms within a
legal system, its impairment of the system™s moral stature will become
more and more signi¬cant. If the contradictoriness or obscurity becomes
wide-ranging, then it will threaten the very sustainability of the system
as a regime of law. Still, those severe effects will not materialize when the
contradictoriness or obscurity is more narrowly con¬ned.
Indeterminacy on a minor scale is not very problematic, whereas on
a large scale it is crippling. My discussion has concentrated on the large
scale not because rampant indeterminacy is a common problem, but
because such a focus enables us to descry the parallels among the three
kinds of indeterminacy that have been probed here. Since the indetermi-
nacy associated with the strong observational mind-dependence of legal
norms would be all-encompassing, and since the authority-subverting
effects of that indeterminacy would be due to its obtaining ubiquitously
rather than restrictedly, any illuminating comparison between it and the
other two kinds of indeterminacy has to ponder them on a sweeping scale
rather than on a modest scale. When we do consider each of those other
types of indeterminacy as an unrestricted phenomenon, we discover that
each of them is just as destructive of law™s moral authority as is the inde-
terminacy associated with the strong observational mind-dependence of
legal norms. This crucial homology among the three kinds of indetermi-
nacy is not strictly denied by the Authoritativeness Doctrine, of course,
but it tends to get pushed out of sight by that doctrine™s preoccupation
with mind-dependence. In order to highlight the aforementioned homol-
ogy and in order to show that the danger posed to law™s moral authority by
strong observational mind-dependence is only one variety of a broader
menace, my discussion has proceeded in the manner indicated.
Coleman and Leiter, by contrast, are not referring to indeterminacy as
an unrestricted phenomenon. Instead of considering a fanciful scenario
in which indeterminacy besets every decision or virtually every decision
that is to be reached by the of¬cials in a peculiar system of governance,
they are considering the realistic hypothesis that indeterminacy will beset
some of the decisions (a small proportion thereof) that are to be reached
by the of¬cials in any legal system. Though they appear to believe that
the degree of indeterminacy in an ordinary legal system is more extensive
Objectivity and Law™s Moral Authority 219


than I myself would contend, they ¬rmly reject the skepticism of the
Critical Legal Scholars. They announce, for example, that “the argu-
ments for indeterminacy, as usually presented, are often unconvincing
and typically overstate its scope” (Coleman and Leiter 1995, 218). Hence,
when Coleman and Leiter declare that indeterminacy does not jeopar-
dize the moral authority of a legal regime, they are not asserting anything
that is irreconcilable with my own claims about indeterminacy. The phe-
nomenon of indeterminacy on a modest scale is indeed compatible with
the functionality and moral authority of a legal system.
Incidentally, when one seeks to understand why indeterminacy on
a modest scale is largely untroubling, one can usefully advert to the
preceding chapter™s discussion of the legal validity of unenforced legal
mandates. As was noted there, persistently unenforced mandates such as
jaywalking ordinances can retain their legal validity because they exist
alongside the far more numerous legal mandates that are given effect
quite regularly. A broadly parallel point is applicable here. When most
but not quite all of the decisions to be reached by the of¬cials within some
morally worthy legal system are determinately justi¬able by reference to
the norms of the system, the overall justi¬catory leverage of those norms
can bestow moral bindingness on the relatively few decisions that are per-
force arbitrary. Because the system does supply determinate justi¬catory
bases for most of its decisions, and because the presence of some degree
of indeterminacy is inevitable in any regime of law, of¬cials™ decisions
in the occasional areas of indeterminacy can partake of moral author-
ity. Those arbitrary decisions are necessary for the sustainment of the
legal system™s regulatory and policing and dispute-resolving functions
in circumstances where arbitrariness is unavoidable. Those decisions ¬ll
in the areas of unsettledness left by the system™s matrix of norms, and
they thus enable the system™s morally authoritative operations to handle
matters that should not be left unaddressed. Those matters are better
handled through arbitrary decisions than not handled at all. Given that
such conundrums form only a small proportion of the problems that
confront the legal system in question, and given that no regime of law
can avoid indeterminacy altogether, the of¬cials of the system act in a
morally legitimate and authoritative manner when they deal dispositively
with those conundrums. The general authoritativeness of their regime,
which depends crucially on the fact that most of the outcomes reached
220 Objectivity and the Rule of Law


therein are determinately justi¬able by reference to the regime™s norms,
carries over to the of¬cials™ good-faith grappling with questions to which
no answers can be determinately justi¬ed in that fashion. Indetermi-
nacy which if pervasive would destroy a legal system™s moral authority is
something that can be absorbed into the system™s morally authoritative
workings when it is exceptional.
Also of some importance for squaring the position of Coleman and
Leiter with the position taken in this chapter is that their remarks about
the innocuousness of indeterminacy are focused on a species of indeter-
minacy different from the three that have been investigated here. That
fourth type of indeterminacy is in fact the type that was principally
explored in my opening chapter™s discussion of determinate correctness.
What Leiter and Coleman have in mind are situations in which deter-
minately correct answers to pivotal legal questions are altogether absent
because of incommensurability or vagueness or evenly balanced counter-
vailing considerations. Now, on the one hand, if the indeterminacy due
to any of those factors were to pervade a legal system, it would be nearly
as problematic as the other three kinds of indeterminacy that have been
highlighted in this chapter. If no questions or hardly any questions about
the legal consequences of people™s conduct within some jurisdiction were
determinately answerable, then the resultant arbitrariness would deprive
the jurisdiction™s regime of any moral authority. Were the adjudicative
and administrative rulings by the jurisdiction™s of¬cials always or almost
always arbitrary rather than just occasionally so, their regime would lack
any reserve of justi¬catory leverage that could redeem occasional arbi-
trariness. On the other hand, despite this af¬nity between the fourth type
of indeterminacy and the other types, there is an important disanalogy.
Because of that disanalogous feature, this fourth kind of indeterminacy
is less troubling than the others.
As Leiter and Coleman point out, the indeterminacy arising from
vagueness or incommensurability or evenly counterpoised considera-
tions does not exclude the existence of factors that can be invoked in
support of a decision (Coleman and Leiter 1995, 238“40). Although any
judgment within such an area of indeterminacy will be arbitrary, it need
not and should not be unreasoned. Notwithstanding that the consider-
ations which substantiate the judgment are evenly or incommensurably
offset by considerations that cut in the other direction, they are present
Objectivity and Law™s Moral Authority 221


and perhaps weighty. They are available to be invoked. Competently
conscientious legal of¬cials will indeed adduce those considerations in
explanation of their decisions. There is plenty for them to say, even though
there are equally or incommensurably pertinent things to be said on the
other side of the matter.
In this respect, the indeterminacy to which Coleman and Leiter devote
most of their attention is quite different from the other varieties of inde-
terminacy which we have examined. Most strikingly in contrast with it are
the indeterminacy arising from legal norms™ strong observational mind-
dependence and the indeterminacy arising from legal norms™ unintelli-
gible opacity. Were legal norms strongly mind-dependent observation-
ally, there would not genuinely be anything internal to those norms that
would militate in favor of their being construed in any particular ways as
opposed to others. There might typically be independent considerations
such as moral principles that would dictate in favor of certain interpreta-
tions and against others, but the legal norms themselves would not yield
or constitute any grounds for selecting among interpretations. Because
the contents of those norms would ex hypothesi be entirely derivative of
people™s perceptions of them, they could never genuinely constrain or
in¬‚uence those perceptions. To invoke a legal norm in support of some
way of construing it would be to engage in a misconceivedly circular
enterprise. Such a sorry situation is plainly more disconcerting than the
situations of indeterminacy envisaged by Coleman and Leiter. In the con-
texts which they envisage, the indeterminacy is not due to the radically
subjective hollowness of legal norms. Rather, in each such context, it is
due to the existence of counterbalanced considerations that tell respec-
tively for and against the applicability of some legal norm to some set of
facts. The content of the legal norm at issue is hardly vacuous; instead of
being misconceivedly circular, an invocation of the formulation of that
norm is an essential part of any argument for deeming the norm applica-
ble or inapplicable to the speci¬ed set of facts. In short, in the situations of
indeterminacy contemplated by Coleman and Leiter, justi¬catory argu-
mentation focused on the contents of legal norms is entirely apposite
even though no conclusive justi¬cations are available. In a world marked
by the strong observational mind-dependence of legal norms, contrari-
wise, justi¬catory argumentation focused on the contents of those norms
would be deluded or fraudulent. In an important respect, then, the
222 Objectivity and the Rule of Law


indeterminacy discussed by Leiter and Coleman is less problematic than
the indeterminacy entailed by the aforementioned mind-dependence.
We should therefore not be surprised by their relaxed attitude toward
the prospect of indeterminacy (though, again, such an attitude would be
unwarranted if it were not for the fact that the indeterminacy is quite
rare).
A similar contrast can be drawn in connection with the indetermi-
nacy that stems from the impenetrable obscurity of legal norms. Whereas
reasoned disputation focused on the contents of legal norms is genuinely
possible when indeterminacy results from vagueness or incommensu-
rability or equipollently countervailing justi¬cations, it is not similarly
possible when indeterminacy results from the incomprehensible opac-
ity of legal norms. If the formulations of those norms are meaningless
gobbledygook (even in the eyes of legal experts), then efforts to justify
adjudicative or administrative decisions by reference to the contents of
those norms are either mendacious or naively misguided. Given that
those contents are irretrievably nonexistent, invocations of them will not
genuinely go the slightest way toward explaining any decisions. Indeter-
minacy of this kind, then, is considerably more troublesome than the
type of indeterminacy on which Coleman and Leiter concentrate. We
should also note that, whereas some indeterminacy of the latter type is
inevitable, indeterminacy due to the unintelligibility of formulations of
legal norms is perfectly avoidable. Articulating such norms in reasonably
comprehensible terms “ terms comprehensible to lawyers and other legal
experts, at any rate “ is not such a formidably dif¬cult feat as to lie beyond
the wit of legal of¬cials.
Like the indeterminacy due to the unintelligibility of legal norms,
the indeterminacy due to contradictions in the authoritative materials
of a legal system is avoidable. Likewise, it too is more nettlesome than
the indeterminacy pondered by Leiter and Coleman. When a choice has
to be made between two contradictory legal norms, an invocation of
either norm in itself will not do anything to vindicate the neglect of the
other norm. Any such choice will therefore have to be based entirely on
extralegal factors. The situation is quite different from that which obtains
when the applicability of an ordinary (noncontradictory) law to some set
of facts is in dispute. In the latter situation, a disputant can pertinently
appeal to both the wording and the purpose of the legal norm in question.
Objectivity and Law™s Moral Authority 223


Even though there may be equally or incommensurably powerful consid-
erations on the other side of the controversy, a disputant who germanely
appeals to the formulation and purpose of the norm will be adverting to
factors that genuinely tell in favor of his or her interpretation. By con-
trast, when two laws are in contradiction, an invocation of the wording
and purpose of either law will not per se contribute to explaining why
the other law (with its own wording and purpose) is being set aside. A
choice between the two may be straightforward on moral grounds or
other extralegal grounds, but there will be no legal basis for selecting
one law over the other. When somebody argues for the applicability or
inapplicability of some ordinary law to a set of circumstances, and when
he points to features of the speci¬ed law that cut in one direction or
the other, he is adducing legal factors that genuinely count in favor of
his position. No such opportunities for adducing strictly legal factors “
factors of applicability and relevance “ are present when somebody is
confronted with two contradictory laws. The relevance of either of those
laws to any set of facts is as great or as meager as the relevance of the
other; each of them bears on those facts to precisely the same extent as
the other, even though the conclusions to which they point are diamet-
rically opposed. For example, if a law that forbids Joe to walk his dog
in the park will have a manifest bearing on some instance of his con-
duct, then so too will a law that permits Joe to walk his dog in the park.
Hence, when a legal of¬cial has to explain a choice between implementing
one of those laws and implementing the other, he will not get anywhere
by showing that one or the other of them is plainly applicable to some
speci¬ed set of facts. If either of them is plainly applicable, then both of
them are. (Likewise, if either of them is plainly inapplicable, then both
of them are.) Reasoned disputation concerning the selection of one con-
tradictory law over another will have to eschew legal considerations of
relevance or applicability, and will have to concentrate instead on extrale-
gal matters such as the moral merits of the two laws. In this respect, the
indeterminacy that ensues from contradictions in a legal system™s nor-
mative matrix is more vexing than the indeterminacy that ensues from
vagueness or from incommensurability or from evenly balanced arrays
of competing considerations. Although any outcome reached in the pres-
ence of the less vexing indeterminacy is ultimately arbitrary, it lends itself
to being advocated and controverted through legal argumentation. No
224 Objectivity and the Rule of Law


such argumentation is apt in the presence of indeterminacy owing to
contradictions.
In sum, Coleman™s and Leiter™s reassuring remarks about indeter-
minacy are not in tension with my more gloomy remarks. Crucially,
their remarks “ unlike mine “ pertain to indeterminacy as a marginal
phenomenon rather than as something that permeates the norms and
workings of a system of governance. What would be devastating on a
sweeping scale is not nearly so harmful on a minor scale. Moreover, the
indeterminacy on which Coleman and Leiter train their attention is less
debilitating than the kinds of indeterminacy on which my own analyses in
this chapter have chie¬‚y focused. Thus, when the dissimilarities between
their discussion and mine are carefully noted, the compatibility between
our respective pronouncements on indeterminacy becomes apparent.


3.7.2. Waldron on Disagreement and Determinacy

We should now turn to the powerful line of reasoning that lies behind
Waldron™s opposition to the Authoritativeness Doctrine. His arguments
concentrate largely on the objectivity of morality rather than on the
objectivity of law, but Waldron himself maintains that moral standards
sometimes serve as legal norms (Waldron 1992, 160). Although that claim
about moral standards would be challenged by some legal positivists “
known as “Exclusive Legal Positivists” “ I join most other theorists in
accepting it (Kramer 2004a, 17“140). Furthermore, even the Exclusive
Legal Positivists allow that moral judgments are sometimes prominently
necessary in the adjudicative and administrative activities of legal of¬cials.
Still more important, Waldron™s arguments can be extended to all legal
norms by somebody who is so inclined. Hence, if his arguments were
sound and were at odds with my own worries about indeterminacy, they
would indicate that those worries should be rethought.
A central theme in much of Waldron™s work is the salience of dis-
agreement in political and legal decision-making. His emphasis on that
theme informs his approach to the question whether the objectivity of
morality (or law) makes any difference to the moral authority of the
decisions that are reached by legal of¬cials on controversial matters.
Waldron frames most of his discussion with reference to objectivity qua
mind-independence, and therefore he can rightly be classi¬ed as a foe
Objectivity and Law™s Moral Authority 225


of the Authoritativeness Doctrine. Nonetheless, he helps to reveal that
any worthwhile version of that doctrine will really be concerned with
objectivity qua determinate correctness. For him, the issue of the moral
authority of legal of¬cials™ decisions on contentious matters is an issue
relating to the arbitrariness of such decisions. In other words, the ques-
tion which he is primarily addressing is whether the presence of determi-
nately correct answers to dif¬cult legal problems will bear on the moral
legitimacy and authoritativeness of legal of¬cials™ endeavors to deal with
those problems. His response to that question is resoundingly negative.
He submits that, once we take due account of disagreements about the
aforementioned legal problems among of¬cials and among citizens “ that
is, once we take due account of the scantiness of transindividual discerni-
bility in the juridical domain “ we should recognize that the existence of
determinately correct solutions to those problems is no safeguard against
arbitrariness. Regardless of how perceptive and well-intentioned the of¬-
cials in a legal regime may be, there is something profoundly arbitrary
in the fact that their views on highly controversial matters prevail over
other people™s views. Legal of¬cials do not enjoy any privileged epistemic
access to determinately correct resolutions of those matters, even if there
are such resolutions. At any rate, they certainly do not enjoy any special
epistemic access that can be demonstrated as such to the satisfaction of
all or most of their compatriots. Why, then, should these unelected of¬-
cials have a decisive say in shaping a society™s efforts to come to grips
with vexed issues that affect people™s vital interests? Such is the challenge
which Waldron mounts. Because his challenge can rely solely on the epis-
temic limitations of legal of¬cials (and other people), he does not need
to impugn the notion that there are determinately correct answers to
the knotty legal questions that face judges and administrators. Whether
or not there are such answers, the judges and administrators will be on
dubious ground when they stand ready to wield the coercive mecha-
nisms of governmental institutions to enforce their own beliefs about
those answers.
Waldron, in short, takes the view that the presence or absence of
indeterminacy in the law does not affect the moral authority of legal
institutions and legal decision-making. At least upon initial inspection,
then, his view is starkly contrary to my own. Before we probe that evi-
dent inconsistency more closely, we should consider why his arguments
226 Objectivity and the Rule of Law


are best construed as being focused on indeterminacy. After all, as has
been stated, Waldron himself talks mostly about mind-independence and
transindividual discernibility. Nevertheless, for three reasons, his argu-
ments are best understood along the lines suggested above.
In the ¬rst place, as we have seen, the strong observational mind-
dependence of legal norms would consist in their radical subjectivity and
their consequent indeterminacy. Until each person has settled what the
content of any particular legal norm is, that norm would have no con-
tent (for that person). Hence, given that Waldron denies the practical
importance of questions about observational mind-independence, he is
in effect denying the practical importance of questions about the pres-
ence of the indeterminacy just mentioned. Yet, if he is in effect denying
the practical importance of those questions, he is also in effect denying

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