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the practical importance of questions about the presence of the other
kinds of indeterminacy that have been explored in this chapter. His argu-
ments about the epistemic limitations of legal of¬cials would be no less
pertinent in application to situations that might be marked by those
other kinds of indeterminacy. For example, whether or not the counter-
vailing considerations in a dif¬cult case are arrayed in such a way as to
make one outcome uniquely correct, people will almost certainly disagree
intractably in their views of how the case should be handled. As has been
stressed in my earlier chapters, the determinate correctness of this or
that outcome does not entail its demonstrable correctness. Thus, regard-
less of the type of indeterminacy that might be involved, its presence or
absence in any contentious case will not affect the very high likelihood
of signi¬cant divergences of opinion among people. If those divergences
of opinion themselves render doubtful the legitimacy and authority of
the decision-making role of legal of¬cials in hard cases, that corrosive
effect will not be averted through the existence of determinately correct
solutions. Waldron™s line of argument accordingly leads to the conclusion
that neither the sway nor the absence of indeterminacy in any of those
hard cases will bear at all on the moral character of the workings of legal
Second, Waldron himself in the closing section of his essay synop-
sizes his reasoning with explicit reference to determinate correctness. He
claims that, if the moral principles in legal decision-making are mind-
independent, “then there is a right answer to whatever questions of
Objectivity and Law™s Moral Authority 227

principle the judge puts to herself. We are apt to think of this as some sort
of comfort: the right answer is there, so the judge is constrained after all.”
He then seeks to puncture the sense of comfort which he has evoked:
That there is a right answer . . . certainly means that a judge is not making
a fool of herself when she goes out ponderously in search of it. But its
existence doesn™t drive her to pursue it, let alone determine that she will
reach it. Different judges will reach different results even when they all
take themselves to be pursuing the right answer, and nothing about the
ontology of the right answer gives any of them a reason for thinking her
own view is any more correct than any other. (Waldron 1992, 183“84)

Third, Waldron in fact goes too far in implying that the observational
mind-independence of legal norms will ensure the existence of a uniquely
correct answer to every pivotal legal question. On the contrary, if legal
norms are observationally mind-independent, and if there are occasional
questions about the contents or implications or existence of legal norms
to which there are no determinately correct answers “ as Chapter 1 has
argued “ then the absence of a determinately correct answer to each of
those infrequent questions is a mind-independent fact.3 Hence, if, as the
closing portion of his essay tends to indicate, Waldron is really concerned
to establish that the presence or absence of a determinately correct answer
to any controversial legal question is of no practical importance, then he
should be concentrating on that matter rather than on the matter of
mind-independence. To concentrate on the latter matter is to focus on a
dimension of objectivity that is sometimes associated with indeterminacy.
Consequently, a theorist who wants to make a point about the practical
unimportance of determinacy should not think that that issue can be
taken as interchangeable with the issue of the practical unimportance of
Let us now return to the incompatibility between Waldron™s position
and my own. This chapter has highlighted the destructive effects of inde-
terminacy on law™s moral authority, whereas Waldron has argued that the

3 For technical reasons that lie beyond the scope of this book, an acknowledgment of occasional
indeterminacy is not easily squared with an embrace of the minimalist account of truth that
has been championed in my ¬rst chapter. However, the complicated task of reconciling the
two is feasible. For an admirably lucid discussion of the problem and a ¬ne effort to resolve it,
see Holton 2000. (I endorse Holton™s solution in most respects, though not in a few matters
of detail.)
228 Objectivity and the Rule of Law

presence of indeterminacy is of no practical importance. To see how these
antithetical positions are partly reconcilable “ though only super¬cially
so “ we should note that Waldron trains his attention on controver-
sial cases in which legal of¬cials differ ¬ercely among themselves and
with many citizens. Only because of these vigorous disagreements does
the moral authority of the of¬cials™ decisions come into doubt. Yet the
legal questions that do elicit widespread and intense controversy are only
a very small proportion of the questions addressed by any functional
legal system. As has been remarked at several junctures in this book, the
ordinary workings of a legal system are routine. Countless decisions by
adjudicative and administrative of¬cials are utterly uncontroversial and
are therefore largely unnoticed by legal scholars who quite naturally pre-
fer to study more exciting occurrences. Deeply contentious decisions “
most of which attract far more interest from academics and journalists “
are much rarer. Some of them are of great importance, but they are
hardly representative of a legal regime™s day-to-day operations. They are
unusual rather than typical. Precisely for this reason, the presence of gen-
uine indeterminacy in some of those contentious cases does not impair
the moral authority of the legal system in which they arise. As has been
argued already in this chapter, indeterminacy in a narrow range of cases
is only minimally problematic for the functionality and moral stature of a
legal regime. That moral stature does not hinge on whether an especially
dif¬cult case is marked by indeterminacy or merely by uncertainty.
We may thus seem to have arrived at the same result as Waldron. Like
him, my discussion here has just maintained that the presence or absence
of any determinately correct answer(s) to the pivotal question(s) in a vex-
ingly controversial case does not affect the moral authority of the regime
that handles the case. That presence or absence does not make a practical
difference. However, the super¬cial resemblance between my conclusion
and Waldron™s pronouncements is overshadowed by a major dissimilar-
ity between them. According to Waldron, the practical unimportance of
indeterminacy in heatedly contested cases is attributable to the fact that
the role of legal of¬cials in deciding such cases is morally dubious irre-
spective of the existence or inexistence of determinately correct answers
to the questions raised therein. In my discussions, the practical unimpor-
tance of indeterminacy in some heatedly contested cases is attributable to
the fact that such cases are truly exceptional and are hence not a danger to
Objectivity and Law™s Moral Authority 229

the moral authority of a benign legal system™s operations. What Waldron
aims to impugn, I aim to vindicate.
Furthermore, my whole emphasis is fundamentally different from
Waldron™s. His principal concern is with the absence of transindividual
discernibility and with the consequent shakiness of any basis for non-
democratic means of resolving disagreements. Because Waldron is pre-
occupied with controversy, he addresses himself only to cases in which
the matters to be decided are hotly disputed. He does not express any view
about cases that are routine “ the vast majority of the cases in any func-
tional legal system. Speci¬cally, he does not state whether the presence
of indeterminacy in those uncontentiously humdrum cases would be
problematic. However, the drift of his argument appears to indicate that
he would not be troubled by such indeterminacy. If virtually everyone
agrees on the answer to some legal question in a benign scheme of gover-
nance, then the illegitimacy of nondemocratic procedures for resolving
that question will not become an issue; legal of¬cials will not be imposing
their favored solution in the face of widespread and intractable dissent.
Thus, although Waldron does not himself raise the matter and therefore
does not take an explicit stance on it, he seems to have no grounds for
deeming the presence of indeterminacy in uncontroversial cases to be
By contrast, my principal concerns have been twofold: the sustain-
ability of law™s function in guiding and coordinating human conduct, and
the role of legal norms as justi¬catory bases for the decisions of legal of¬-
cials. Although rampant indeterminacy due to the strong observational
mind-dependence of legal norms could be consistent with the ful¬llment
of law™s guiding function, it would be inconsistent with the role of legal
norms as justi¬catory bases for decisions. (Rampant indeterminacy of
any other type would usually be incompatible with law™s guiding func-
tion and would always be incompatible with the role of legal norms as
justi¬catory bases.) Hence, if legal norms were indeed strongly mind-
dependent observationally, the moral authority of every legal regime
would be undermined. Although citizens and of¬cials might not be aware
of the strong observational mind-dependence, and although they might
accordingly treat the contents of legal norms as independent sources of
direction and as binding grounds for decisions, their beliefs about those
contents would be illusory. Justi¬cations advanced by of¬cials in support
230 Objectivity and the Rule of Law

of their decisions within any legal system would in fact amount to ersatz
justi¬cations, however benevolent in substance the decisions and the sys-
tem might be. Those putative justi¬cations would not accurately re¬‚ect
the status of the contents of the laws which they invoke. Consequently, if
the workings of a benign legal regime are to consist in genuine interpre-
tations and justi¬cations rather than in collective delusions, legal norms
must be possessed of observational mind-independence. Such mind-
independence is prerequisite to the moral authority of law.
In sum, whereas Waldron™s line of argument supplies no reasons for
thinking that pervasive indeterminacy is of any practical signi¬cance, my
accounts of the effects of indeterminacy on law™s moral authority have
provided just such reasons. Of huge practical importance is the differ-
ence between highly cabined indeterminacy and ubiquitous indetermi-
nacy. Whereas indeterminacy that occurs in a very small proportion of
the circumstances confronting a legal system is compatible with the sys-
tem™s functionality and moral authority, rampant indeterminacy is not.
Rampant indeterminacy is always fatal to a legal regime. It will usually
be fatal to the directing function of such a regime, and it will always be
fatal to the regime™s justi¬catory role. Legal norms can hardly serve to
justify decisions, if no determinate implications follow from those norms
prior to each decision. Whether the wholesale lack of determinate impli-
cations is ascribable to the absence of any independent content in each
such norm, or whether it is instead ascribable to contradictions or other
factors, it is destructive of law™s capacity to justify concrete outcomes.
Since that capacity is a necessary (though insuf¬cient) condition for the
moral authority of any system of governance, pervasive indeterminacy is
of the utmost practical importance. Like the other ¬ve dimensions of legal
objectivity, objectivity qua determinate correctness is something without
which neither law nor morally authoritative governance can exist.

3.8. Conclusion

Although the relationships between objectivity and the rule of law (and
between objectivity and the Rule of Law) have been explored through-
out this book, the current chapter has sought to enquire more deeply
into a few of those relationships. We have concentrated especially on
Objectivity and Law™s Moral Authority 231

observational mind-independence, on determinate correctness, and “ to
a somewhat lesser extent “ on transindividual discernibility. Of course,
the chapter™s focus on those dimensions of legal objectivity has not been
meant to imply that the other dimensions thereof are less weighty or
less deserving of investigation. On the contrary, the main reason for my
paying less attention here to objectivity qua impartiality and objectivity
qua uniform applicability is that they have been probed quite extensively
in each of the preceding chapters.
As for semantic objectivity “ objectivity qua truth-aptitude “ the
paramount reason for my neglect of it here is that Chapter 1 ™s minimalist
account of truth has effectively elided the distinction between the deter-
minate correctness and the truth of meaningful declarative answers to
legal questions. On the one hand, determinate correctness and truth are
not equivalent. Determinacy is an ontological property that pertains to
the settledness of legal facts, whereas the evaluability of legal statements
as true or false is a semantic property that pertains to the relationships
between those statements and legal facts. On the other hand, my min-
imalist accounts of truth and facts (and my de¬‚ationary version of the
correspondence theory of truth) allow us to say that, if any meaningful
declarative legal statement is determinately correct, it is true. Only if no
legal statements were ever meaningful and declarative would the transi-
tion from determinate correctness to truth be untenable. However, the
notion that no legal statements are ever meaningful and declarative is
preposterous; that notion would be ¬rmly rejected even by most theo-
rists who contend that the principal role of such statements is to express
certain prescriptive attitudes. Thus, with regard to the countless legal
statements that are indeed meaningful and declarative, their determinate
correctness amounts to their truth, and their determinate incorrectness
amounts to their falsity. Accordingly, this chapter™s focus on determi-
nacy has implicitly also been a focus on the conditions under which legal
statements can be true or false.
Taken together with the previous portions of this book, then, the
present chapter has endeavored to show that every dimension of legal
objectivity is indispensable for the rule of law and the Rule of Law.
Indeed, each of the Fullerian principles of legality is inextricably bound
up with one or more of the dimensions of legal objectivity. For instance,
several of the principles “ promulgation, prospectivity, perspicuity,
232 Objectivity and the Rule of Law

noncontradictoriness, constancy “ are manifestly promotive of the
transindividual discernibility of legal requirements. Of course, at least
one type of legal objectivity (namely, the strong observational mind-
independence of legal norms) obtains willy-nilly in a blanket fashion
whenever a legal regime exists, whereas other types (such as the transin-
dividual discernibility of legal norms) are scalar properties that obtain to
varying degrees across legal regimes. That difference obviously bears on
the extent to which the attainment of a given dimension of legal objec-
tivity is a matter of deliberately focused striving, but it does not bear
on the question whether each such dimension is essential for the rule of
law and the Rule of Law. To that latter question, the answer is unequivo-
cally af¬rmative. Objectivity, in each of the six chief varieties expounded
throughout this book, is integral to every system of legal governance.
Bibliographic Notes

I here refer readers to some of the countless important works on objectivity or
the rule of law that have not hitherto been cited in this book. Although several
of the essays in Brian Leiter (ed.), Objectivity in Law and Morals (Cambridge:
Cambridge University Press, 2001 ) have indeed been cited already, the volume
as a whole should be mentioned here as an admirably stimulating point of
departure for anyone who wants to explore further the complexities of legal
objectivity. Also constituting a ¬ne point of departure is Brian Leiter, “Law
and Objectivity,” in Jules Coleman and Scott Shapiro (eds.), Oxford Handbook
of Jurisprudence & Philosophy of Law (Oxford: Oxford University Press, 2002),
969“89. My own views differ signi¬cantly from Leiter™s on a number of points,
but his limpid and vigorous prose is especially helpful for people who are
quite new to the subject. Much the same can be said about Jeremy Waldron,
“On the Objectivity of Morals,” 80 California Law Review 1361 (1992). Likewise
commendably clear is David Brink, “Legal Theory, Legal Interpretation, and
Judicial Review,” 17 Philosophy and Public Affairs 105 (1988). Less readable, but
worthy of perusal, is Nicos Stavropoulos, Objectivity in Law (Oxford: Oxford
University Press, 1996).

234 Bibliographic Notes

As is mentioned near the outset of Chapter 1 , several aspects of objectivity have
been explored more searchingly in moral philosophy than in legal philoso-
phy. Relevant works are far too numerous to be listed exhaustively. A very
good collection of essays, some of which have been cited in this book, is
Ted Honderich (ed.), Morality and Objectivity (London: Routledge & Kegan
Paul, 1985). A few other important collections are David Copp and David
Zimmerman (eds.), Morality, Reason, and Truth (Totowa, NJ: Rowman &
Allanheld, 1985); Geoffrey Sayre-McCord (ed.), Essays in Moral Realism
(Ithaca, NY: Cornell University Press, 1988); Walter Sinnott-Armstrong and
Mark Timmons (eds.), Moral Knowledge? (Oxford: Oxford University Press,
1996); and Ellen Frankel Paul, Fred Miller, and Jeffrey Paul (eds.), Moral Knowl-
edge (Cambridge: Cambridge University Press, 2001). For an interesting and
highly lucid exchange, see Gilbert Harman and Judith Jarvis Thomson, Moral
Relativism and Moral Objectivity (Oxford: Blackwell, 1996). Much of the work
of Thomas Nagel on objectivity is particularly insightful and piquant. See,
for example, his The View from Nowhere (Oxford: Oxford University Press,

Among the innumerable perceptive studies of the rule of law or the Rule of Law
that have not been cited heretofore in this book are T. R. S. Allan, Constitutional
Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press,
2001); John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press,
1980), 260“96; F. A. Hayek, The Constitution of Liberty (Chicago: University of
Chicago Press, 1960); Mark Murphy, Natural Law in Jurisprudence and Politics
(Cambridge: Cambridge University Press, 2006); John Rawls, A Theory of
Justice (Oxford: Oxford University Press, 1999) (rev. ed.), 206“13; and Joseph
Raz, “The Rule of Law and Its Virtue,” in The Authority of Law (Oxford:
Clarendon Press, 1979), 210“29. A few of the many important collections of
essays on the topic are Richard Bellamy (ed.), The Rule of Law and the Sep-
aration of Powers (Aldershot: Ashgate Publishing, 2005); David Dyzenhaus
(ed.), Recrafting the Rule of Law (Oxford: Hart Publishing, 1999); Jose Maria
Maravall and Adam Przeworski (eds.), Democracy and the Rule of Law
(Cambridge: Cambridge University Press, 2003); and Ian Shapiro (ed.), The
Rule of Law (New York: NYU Press, 1994).

From time to time in this book, I have looked askance at the Critical Legal Stud-
ies movement. For some more detailed rejoinders to the Critical Legal Schol-
ars, see Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton:
Bibliographic Notes 235

Princeton University Press, 1990); John Finnis, “On ˜The Critical Legal Studies
Movement,™” 30 American Journal of Jurisprudence 21 (1985); Kenneth Kress,
“Legal Indeterminacy,” 77 California Law Review 283 (1989); and Lawrence
Solum, “On the Indeterminacy Crisis: Critiquing Critical Dogma,” 54 Univer-
sity of Chicago Law Review 462 (1987).

Bix, Brian. 2005. “Cautions and Caveats for the Application of Wittgenstein to Legal
Theory.” In Joseph Keim Campbell, Michael O™Rourke, and David Shier (eds.),
Law and Social Justice (Cambridge, MA: MIT Press), 217“28.
Blackburn, Simon. 1993. Essays in Quasi-Realism. Oxford: Oxford University Press.
Coleman, Jules. 1995. “Truth and Objectivity in Law.” 1 Legal Theory 33“68.
Coleman, Jules, and Leiter, Brian. 1995. “Determinacy, Objectivity, and Authority.” In
Andrei Marmor (ed.), Law and Interpretation (Oxford: Clarendon Press), 203“78.
Craig, Paul. 1997. “Formal and Substantive Conceptions of the Rule of Law: An
Analytical Framework.” Public Law 467“87.
Duxbury, Neil. 1999. Random Justice. Oxford: Oxford University Press.
Dworkin, Ronald. 1965. “Philosophy, Morality and Law “ Observations Prompted by
Professor Fuller™s Novel Claim.” 113 University of Pennsylvania Law Review 668“90.
Dworkin, Ronald. 1977. “No Right Answer?” In Peter Hacker and Joseph Raz (eds.),
Law, Morality, and Society (Oxford: Clarendon Press), 58“84.
Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge, MA: Harvard University

238 References

Dworkin, Ronald. 1985. A Matter of Principle. Cambridge, MA: Harvard University
Dworkin, Ronald. 1986. Law™s Empire. London: Fontana Press.
Dworkin, Ronald. 1991 . “On Gaps in the Law.” In Paul Amselek and Neil Mac-
Cormick (eds.), Controversies about Law™s Ontology (Edinburgh: Edinburgh
University Press).
Dworkin, Ronald. 1996. “Objectivity and Truth: You™d Better Believe It.” 25 Philosophy
and Public Affairs 87“139.
Endicott, Timothy. 2000. Vagueness in Law. Oxford: Oxford University Press.
Fine, Kit. 2001 . “The Question of Realism.” 1 Philosophers™ Imprint 1 “30.
Freeman, Michael. 2001 . Lloyd™s Introduction to Jurisprudence. London: Sweet &
Fuller, Lon. 1969. The Morality of Law. New Haven, CT: Yale University Press. Revised
Green, Michael. 2003. “Dworkin™s Fallacy, or What the Philosophy of Language Can™t
Teach Us about the Law.” 89 Virginia Law Review 1897“1952.
Greenawalt, Kent. 1992. Law and Objectivity. New York: Oxford University Press.
Hare, R. M. 1963. Freedom and Reason. Oxford: Oxford University Press.
Hare, R. M. 1981 . Moral Thinking. Oxford: Clarendon Press.
Hare, R. M. 1989. “Principles.” In Essays in Ethical Theory (Oxford: Oxford University
Press), 49“65.
Harris, J. W. 1997. Legal Philosophies. London: Butterworths. Second edition.
Hart, H. L. A. 1961 . The Concept of Law. Oxford: Clarendon Press.
Hart, H. L. A. 1983. “Lon L. Fuller, The Morality of Law.” In Essays in Jurisprudence
and Philosophy (Oxford: Clarendon Press), 343“64.
Hills, Alison. 2004. “Is Ethics Rationally Required?” 47 Inquiry 1 “19.
Holton, Richard. 2000. “Minimalism and Truth-Value Gaps.” 97 Philosophical Studies
Horwich, Paul. 1998. Truth. Oxford: Oxford University Press. Second edition.
Kramer, Matthew. 1998. “Rights without Trimmings.” In Matthew H. Kramer, N. E.
Simmonds, and Hillel Steiner, A Debate over Rights (Oxford: Oxford University
Press), 7“111.
Kramer, Matthew. 1999a. In Defense of Legal Positivism. Oxford: Oxford University
Kramer, Matthew. 1999b. In the Realm of Legal and Moral Philosophy. Basingstoke:
Macmillan Press.
Kramer, Matthew. 2001 . “Getting Rights Right.” In Matthew H. Kramer (ed.), Rights,
Wrongs, and Responsibilities (Basingstoke: Palgrave Macmillan), 28“95.
References 239

Kramer, Matthew. 2004a. Where Law and Morality Meet. Oxford: Oxford University
Kramer, Matthew. 2004b. “The Big Bad Wolf: Legal Positivism and Its Detractors.”
49 American Journal of Jurisprudence 1 “10.
Kramer, Matthew. 2005. “Moral Rights and the Limits of the Ought-Implies-Can
Principle: Why Impeccable Precautions Are No Excuse.” 48 Inquiry 307“55.
Landers, Scott. 1990. “Wittgenstein, Realism, and CLS: Undermining Rule Skepti-
cism.” 9 Law and Philosophy 177“203.
Leiter, Brian. 2001 . “Introduction.” In Brian Leiter (ed.), Objectivity in Law and Morals
(Cambridge: Cambridge University Press, 2001 ), 1 “11.
Locke, John. 1975 [1689]. An Essay Concerning Human Understanding. Oxford: Claren-
don Press. Edited by Peter Nidditch.
Lucy, William. 2005. “The Possibility of Impartiality.” 25 Oxford Journal of Legal
Studies 3“31 .
Madison, James. 1961 [1788]. “Federalist Paper No. 10.” In Alexander Hamilton, James
Madison, and John Jay, The Federalist Papers (New York: New American Library),

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