LINEBURG


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1.2.2.1.1. Unwarranted Generalizations from Appellate Cases. Why have juris-
prudential scholars intermittently fallen prey to the idea that legal systems
are riven by sweeping indeterminacy? The ¬rst and most obvious factor
behind their confusion lies in their tendency to extrapolate unwisely from
the appellate cases on which they typically concentrate in their legal ped-
agogy and research. Cases that get appealed from lower courts are usually
marked by dif¬cult issues with quite evenly balanced countervailing con-
siderations. Law students and legal theorists alike often succumb to the
temptation to think that those interestingly thorny cases “ to which they
generally devote far more attention than to boringly routine cases “ are
representative of the innumerable situations addressed by a legal system™s
workings. In fact, however, such cases are as anomalous as they are engag-
ing. What are really representative of the situations that confront a legal
system are the humdrum cases that never appear in the casebooks studied
in law schools, and the untold sets of circumstances in which the legal
consequences of people™s conduct are so clear-cut that they never give rise
to any litigation. Most of the operations of a legal system are unexcitingly
straightforward, and are therefore largely overlooked by legal academics
who train their attention on controversial appellate cases. The ¬xation of
Dimensions of Objectivity 17


those academics on such cases can foster in them a greatly exaggerated
sense of the indeterminacy that af¬‚icts a legal system.

1.2.2.1.2. Indemonstrability versus Indeterminacy. A second reason for that
exaggerated sense is the failure of many theorists to distinguish ade-
quately between determinacy and demonstrability.5 An answer to a legal
question can be determinately correct “ that is, either uniquely correct
or within a small range of answers that differ from all other answers in
being correct “ even though its correctness cannot be demonstrated to
the satisfaction of virtually every reasonable person who re¬‚ects carefully
on the matter. If some way of resolving a legal dispute is determinately
correct, it is so regardless of whether anyone discerns as much. By con-
trast, a resolution of a dispute is demonstrably correct only if its singular
appropriateness can be perceived and endorsed by virtually every sensible
person who competently ponders the arguments in favor of it. As should
be apparent, determinate correctness does not entail demonstrable cor-
rectness. The latter involves more than the former. As should likewise
be apparent, the best answers to the principal legal questions in dif¬-
cult appellate cases are very seldom demonstrably correct. Yet, because of
the lack of entailment between determinate correctness and demonstrable
correctness, the absence of the latter property does not entail the absence
of the former; there may be some determinately correct answer(s) to the
principal legal question(s) in any particular appellate case, even though
the answer(s) will very likely not be demonstrably correct.
This elementary point, which we shall explore further in a later sub-
section of this chapter, is frequently missed by writers who declare that
law is inevitably plagued by indeterminacy. Too often such writers simply
point to the intractability of the disagreements that erupt in hard cases,
and they then assert that there are no determinately correct answers to
the pivotal questions in those cases. From there, they arrive at their con-
clusion that law is racked by indeterminacy. Now, even if we put aside
the fact that these writers should not be drawing general conclusions
about law from the peculiarities of dif¬cult appellate cases, we should
resist their prior inference about the absence of determinately correct
answers in such cases. Though there might not be any determinately

5 This distinction is damagingly elided in Tamanaha 2004, 103“05.
18 Objectivity and the Rule of Law


correct answers in some of those cases, the sheer fact that legal of¬cials (or
other people) differ ¬ercely with one another about the suitable outcome
in any particular case is far from suf¬cient to establish that no outcome is
determinately appropriate. The tenacity of the disagreement does not in
itself have any bearing on the existence of a uniquely correct resolution
of the crux to which the disagreement pertains. Only an elision of the dis-
tinction between determinacy and demonstrability could impel anyone
to think otherwise. A theorist who wishes to justify claims about inde-
terminacy by adverting to the persistence of divergences among of¬cials
in hard cases will have to back up her position with pertinent arguments.
Such a theorist will have to show, for example, that there are solid reasons
for attributing the persistence of the divergences to the absence of deter-
minately correct answers rather than to the temperamental or intellectual
or ideological limitations of the people involved.
Very closely related to the division between determinate correct-
ness and demonstrable correctness is the nonequivalence of determinacy
and predictability, along with the nonequivalence of indeterminacy and
unpredictability. In many dif¬cult cases, the outcomes will be unpre-
dictable because of the knottiness of the issues in dispute and the con-
sequent discordances among people™s views of those issues. It may be
exceedingly dif¬cult to pin down beforehand exactly how judges or other
legal of¬cials will deal with heatedly controversial matters. Still, because
the unpredictability of the of¬cial decisions in such circumstances is
due to the lack of any demonstrably correct answers, and because the
lack of any demonstrably correct answers does not entail the lack of
any determinately correct answers, unpredictability and indeterminacy
are not equivalent or even coextensive. They sometimes go together, of
course, but not invariably. Much the same is true of determinacy and
predictability. As is evident from what has just been argued, determinacy
does not entail predictability. Nor is there any entailment in the other
direction. When judges or other legal-governmental of¬cials confront
some question of law to which there is no determinately correct answer,
their handling of the question may be amply predictable because of a
palpable predilection on the part of each of¬cial for a particular out-
come. (Perhaps the relevant of¬cials will predictably share a predilection
for a particular outcome, or perhaps their divergent predilections will be
well known and will render predictable their fractionated handling of the
Dimensions of Objectivity 19


matter.) Thus, just as we cannot validly draw inferences about indetermi-
nacy from unpredictability, so we cannot validly draw inferences about
determinacy from predictability.6

1.2.2.1.3. Oversimpli¬cations of Indeterminacy. A third factor behind the
overemphasis on legal indeterminacy in some quarters is a simplistic
understanding of indeterminacy itself. Some theorists appear to think
that a legal question is beset by indeterminacy if they can reveal that
there are credible points in favor of each main potential response to that
question. Having shown that a plausible case can be made for each of the
principal competing answers to the question (such as “yes” and “no”),
these theorists conclude forthwith that there is no determinately correct
answer. Whether or not such a conclusion is true in any particular case,
it is unacceptably facile when advanced on the basis of the argument just
outlined. What that line of argument neglects is that indeterminacy con-
sists in more than a clash of con¬‚icting considerations. Indeterminacy
consists in a clash of con¬‚icting considerations that are equally strong
or incommensurably strong. That is, indeterminacy obtains only when
the competing claims on each side of an issue are evenly balanced or are
insusceptible to any comparisons that would rank their strength. None
of the competing claims is better than any other, in a situation of equal
counterpoises or incommensurably strong counterpoises. The existence
of any such situation involves genuine indeterminacy, but it is far rarer
than the existence of a situation wherein countervailing considerations
(which may or may not be evenly balanced) are present. Hence, to advert
starkly to the existence of considerations on each side of an issue as a
ground for inferring the absence of any determinately correct way of
resolving that issue is to commit a ¬‚agrant non sequitur. Proclamations
of the prevalence of indeterminacy in systems of law too often rest on
non sequiturs of that sort.

1.2.2.1.4. Indeterminacy versus Uncertainty. Overlapping with some of the fac-
tors already adduced is a fourth reason for the tendency of many legal
theorists to exaggerate the extent of legal indeterminacy: their failure to

6 For an apt recognition of this latter point, see Greenawalt 1992, 39. This point is also ultimately
recognized in Tamanaha 2004, 87“90, after an initial effacement of the distinction between
indeterminacy and unpredictability.
20 Objectivity and the Rule of Law


distinguish between indeterminacy and uncertainty.7 Uncertainty is a
state of inadequate beliefs (an epistemic state), whereas indeterminacy is
a state of equipollent justi¬cations (an ontological state). When some-
body is uncertain about the correct answer to some legal question and is
furthermore uncertain whether there is any determinately correct answer
to that question, he or she is hardly in a position to deny the existence
of any such determinately correct answer. He or she should be withhold-
ing judgment on that matter, just as much as on the speci¬c content of
the correct answer. His or her beliefs are insuf¬cient for any verdict on
either of those points. Contrariwise, if someone announces that there is
no determinately correct answer to some legal question, he or she is not
giving voice to uncertainty. He or she is instead maintaining that neither
an af¬rmative reply nor a negative reply to the question is superior to the
other. (If the question is not such as to lend itself to being pertinently
answered “yes” or “no” “ for example, a question about the appropriate
level of the minimum wage “ then the denial of determinate correctness
amounts to the claim that none of the principal competing answers to
the question is superior to any others.) To substantiate one™s insistence
that each answer is no better than the rival answer(s), one has to show
that the counterpoised considerations are evenly balanced or that they are
insusceptible to being ranked. Far from being a product of uncertainty,
any such substantiation will have to be grounded on at least as much solid
argumentation as will any satisfactory effort to demonstrate that some
particular answer is better than every other. Uncertainty is no basis at all
for the substantiative arguments.
In any context where the main matters in contention are of gnarled
complexity and where there are signi¬cant justi¬catory grounds on each
side of a case, many knowledgeable observers may be inclined to feel
uncertainty not only about the correct disposition of the case but also
about the very idea that a determinately correct disposition is attainable
even in principle. Yet, as has just been indicated, any observers who do
feel considerable uncertainty about those points are not in a position to
deny that a determinately correct resolution of the case is possible. Until
their uncertainty has been overcome, they should be refraining from
either af¬rming or gainsaying the existence of a determinately correct

7 This distinction is pertinently highlighted in Dworkin 1996, 129“39.
Dimensions of Objectivity 21


answer to the question of how the case should be handled. Their verdict
should instead be a verdict of indecision. All too often, however, when
legal theorists examine dif¬cult cases and report their own uncertainty
or the uncertainty of other knowledgeable observers about the possibility
of determinately correct outcomes for those cases, they then deem the
law in those cases to be indeterminate. Such slippage from uncertainty
to declarations of indeterminacy is to be resisted. It is manifestly a non
sequitur, and it leads jurisprudential theorists to overestimate the scale
of the indeterminacy to which the legal regulation of people™s conduct
is subject. The distortive effects of that non sequitur are exacerbated, of
course, when theorists commit the further misstep of generalizing from
the law in dif¬cult cases to the law as a whole. (On some occasions, the
slippage from uncertainty to indeterminacy is an offshoot of a failure to
comprehend that the weak existential mind-independence of legal norms
is conjoined with their strong observational mind-independence. Many
writers appear to assume that, if all or most of the legal of¬cials in a
given jurisdiction are themselves uncertain about the content and very
existence of a determinately correct answer to some legal question, there
cannot be any such answer to that question. An assumption along those
lines would be well-founded if the observational mind-independence of
legal norms were like the existential mind-independence thereof in being
only weak. In fact, however, although legal norms as legal norms are
constitutively underlain by the shared ¬rst-order beliefs and attitudes
of legal of¬cials, they are endowed with contents and implications that
can exceed the of¬cials™ own second-order grasp. Think, for example, of
a constitutional provision or some other legal norm that prohibits the
in¬‚iction of severely cruel punishments. Legal of¬cials will need to re¬‚ect
on the substance of that norm in order to ascertain how it bears on various
punitive measures. In so doing, all or most of the of¬cials might feel
uncertain about the legitimacy of this or that type of punishment. All the
same, there may well be a uniquely correct answer to each question about
which they feel uncertain. Their perplexity over some of the implications
of a legal norm that exists because of their law-creating activities is not a
bar to the determinacy of those implications.)

1.2.2.1.5. Indeterminacy versus Ultimacy. Another factor behind the overes-
timation of legal indeterminacy “ the ¬fth and philosophically most
22 Objectivity and the Rule of Law


far-reaching factor to be expounded here “ is the tendency of some
jurisprudential theorists (especially the Critical Legal Scholars) to become
bedazzled by certain deep philosophical cruxes. Such theorists note, for
example, that Ludwig Wittgenstein and several other eminent modern
philosophers have highlighted some formidable obstacles in the path
of any attempt to specify the facts that constitute the following of a
rule.8 Summarized with the utmost terseness, the fundamental prob-
lem unearthed by those philosophers is that any speci¬ed set of facts will
be consistent with a limitless abundance of rules rather than only with
some rule R which the facts are supposed to instantiate or constitute.
We are hard pressed indeed to say why the speci¬ed facts instantiate or
constitute R rather than any of the countless other rules with which they
are consistent. Now, while jurisprudential theorists are plainly warranted
in regarding this problem as important and profound, they go astray
insofar as they regard it as a basis for alleging that massive indeterminacy
engulfs the workings of legal systems. Indeed, it is not a basis for any valid
inferences about indeterminacy whatsoever.
For one thing, the Wittgensteinian problem is applicable not only to
the following of rules in law but also to the following of rules in every
other domain. It is applicable, for example, to the following of rules in
mathematics and logic and ordinary language. Hence, if that problem
somehow undermined the determinate correctness of all answers to legal
questions, it would likewise undermine determinacy in the domains just
mentioned and in all other domains. Jurisprudential theorists who preen
themselves on their skepticism about the determinacy of legal regulation
should hesitate before committing themselves to the notion that the sum
of 2 plus 2 is indeterminate.
What is more important, the Wittgensteinian problem does not really
have anything to do with the determinate correctness of answers to legal
questions (or of answers to questions in other domains). The conun-
drums which it exposes are not any snags in the actual following of
rules within various activities, but snags in philosophical efforts to pro-
vide a comprehensive analysis of the following of rules. Exactly what

8 For a good recent account of some of these obstacles and their implications (or lack of
implications) for jurisprudential theorizing, see Green 2003, 1932“46. See also Landers 1990;
Schauer 1991 , 64“68; Greenawalt 1992, 71 “73; Coleman and Leiter 1995, 219“23; Endicott 2000,
22“29; Bix 2005; Patterson 2006.
Dimensions of Objectivity 23


Wittgenstein aimed to establish with his re¬‚ections on the following of
rules is a matter for intense debate among specialists in his work; how-
ever, no one or virtually no one among those specialists would maintain
that he was even remotely seeking to reveal that the following of rules in
myriad activities is untenable or illusive. He was hardly seeking to dis-
credit those activities or the apposite judgments that are reached within
them. On the contrary, his work in this area is best read as a challenge
to certain philosophical thinking about those activities and judgments.
More speci¬cally, it is a challenge to the idea that the task of philosophy
is to come up with the foundations for those activities and judgments,
which rest instead on themselves as their own foundations.
When Wittgenstein is understood in the way favored here, we can per-
ceive that his central objective was to show that the notion of following a
rule is basic. That notion, in other words, is not subject to being elucida-
tively analyzed by reference to anything deeper and more perspicuous.
A couple of brief analogies may be helpful here. Suppose that someone
were to endeavor to supply a noncircular philosophical foundation for
the Law of Noncontradiction (a law of logic under which it can never be
the case that some proposition and the negation of that proposition are
both true). Any such project would be futile and pointless, for its theses
would have to presuppose the truth of the Law of Noncontradiction at
every stage; the very coherence of those theses would depend on such a
presupposition. There is no deeper ground for the truth of the Law of
Noncontradiction than the fact that everything at odds with that law is
self-contradictory. Any other ground that might be adduced in support of
that law would inevitably rest on the ultimate ground just stated. Entirely
and unproblematically circular, that ultimate ground is the only founda-
tion which the Law of Noncontradiction has ever needed, and it is the
only foundation that could be fully adequate (since any other ostensible
foundation would itself be derivative of that ultimate ground). The Law
of Noncontradiction is basic, in that it is not susceptible to being justi¬ed
or elucidated by reference to anything more profound than itself.
Consider also, in this connection, David Hume™s critique of induc-
tion (the inferring of future regularities from past regularities).9 Exactly
what Hume aspired to achieve with his critique of induction is as much

9 For some of the issues raised by Hume™s critique, see Stroud 1977, 51 “67.
24 Objectivity and the Rule of Law


a matter of controversy among specialists as are Wittgenstein™s precise
aims in his critique of the following of rules; however, one thing surely
shown by Hume™s arguments is that any full justi¬cation of induction
will be circular. Any putative foundations for a thesis which upholds the
inferability of future regularities from past regularities will themselves
have to presuppose the truth of that thesis, and will therefore be ersatz
foundations. Like the Law of Noncontradiction, a general tenet af¬rm-
ing the propriety of induction (within limits indicated by the observed
regularities themselves) is its own ground. It is not susceptible to being
underpinned by anything deeper or more solid than itself.
We can best understand Wittgenstein as revealing that the notion of
following a rule is similar to the Law of Noncontradiction and to a general
tenet af¬rming the propriety of induction, in that it is basic. Any attempt
to explain how some speci¬ed facts instantiate or constitute some partic-
ular rule will have to presuppose what it is purporting to demonstrate.
Construed in this manner, the Wittgensteinian critique of the notion of
following a rule does imply the futility of philosophical efforts to analyze
that notion by reference to anything deeper than itself. Such a notion
is opaque to noncircular philosophical analyses. Wittgenstein™s critique
hardly implies, however, that the following of rules is itself futile or prob-
lematic in any fashion. No inferences about indeterminacy can validly
be derived from his critique. Questions about the applicability or inap-
plicability of rules in various domains will continue to be answerable in
determinately correct ways, just as will questions about the conformity or
nonconformity of various propositions with the Law of Noncontradic-
tion. The facts that constitute or instantiate any particular rule will con-
tinue to be present, even though their status as such does not lend itself
to being illuminated through further philosophical explication. Those
facts will continue to require certain decisions, and to disallow contrary
decisions, by people whose behavior is subject to the rules which the facts
constitute or instantiate. The insusceptibility of those facts to philosoph-
ical analysis does not detract one whit from their decision-prescribing
force. Far from disclosing that everything is unsettled in activities such as
the operations of a legal system, Wittgenstein™s critique leaves everything
in those activities as it is. To believe otherwise is to fail to grasp that the
unanalyzable fundamentals of some practice are indeed fundamentals of
that practice. Though their unanalyzable character thwarts philosophical
Dimensions of Objectivity 25


elucidation, it does not even slightly impair their operativeness within
the practice. That operativeness scarcely depends on our being able to
provide a noncircular philosophical account of it.

1.2.2.1.6. Executive Discretion. Whereas the last several paragraphs have
examined a philosophically momentous factor behind some jurispru-
dential theorists™ overblown claims about indeterminacy, a ¬nal factor
to be explored brie¬‚y here is peculiar to law (and to other domains with
closely similar institutional structures). Virtually any advanced system of
law will include institutional features that complicate the implementa-
tion of the system™s norms. My present discussion will concentrate on one
feature that has induced some Critical Legal Scholars and other jurispru-
dential theorists to presume that there is pervasive indeterminacy in the
workings of legal systems. Such theorists may grant that legal norms in
themselves are determinately applicable or inapplicable to any number
of situations, but they then point out that the actual implementation
or effectuation of those norms is often subject to quite a large degree
of discretion on the part of certain of¬cials (most notably the of¬cials
responsible for policing and monitoring, and the of¬cials such as prose-
cutors who are responsible for initiating and sustaining any procedures
of enforcement that are undertaken on the basis of the policing and mon-
itoring). These theorists conclude that the discretionary element in the
effectuation of legal norms is suf¬cient to support their pronouncements
about the prevalence of legal indeterminacy.10
Any legal discretion exercisable by the aforementioned of¬cials is
held by them within the sway of general principles of political moral-
ity. In any particular case, those moral principles may well require some
de¬nite course of action by the relevant of¬cials. Pro tanto, the of¬cials™
legal discretion is not accompanied by moral discretion. However, this
point about moral discretion is not enough for a successful riposte to the
Critical Legal Scholars, since their pronouncements are about legal inde-
terminacy rather than about general normative indeterminacy. Unless
the principles of political morality have been incorporated into the law
of a jurisdiction as legal requirements that will be transgressed by of¬cials
whose effectuation of the law is morally inapposite, the of¬cials™ lack of
10 For a rejoinder to arguments of this sort, see Greenawalt 1992, 53“56. My own rejoinder is
different from Greenawalt™s, but the two are complementary.
26 Objectivity and the Rule of Law


moral discretion does not in itself curtail their legal discretion. Hence, if
their being possessed of legal discretion is somehow problematic for the
objectivity of the operations of their legal system, an insistence on their
lack of moral discretion will not per se redeem that objectivity. Instead
of focusing on the moral restrictedness of the of¬cials, then, we need to
ask directly whether their legal discretion undermines the determinate
correctness of answers to legal questions within their system of law.
Let us concentrate (at a very abstract level) on the exercise of of¬-
cial discretion within the criminal-justice system of some jurisdiction.
What the skeptical jurisprudential theorists would need to show is that
the presence of such discretion renders indeterminate the occurrence of
the legal consequences that are ordained by the applicable criminal-law
mandates. Those skeptics point to the fact that, because of the exercise of
legal discretion on the part of police of¬cers or prosecutors or other legal
of¬cials, many people who detectedly commit crimes are not convicted

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