<< . .

( 26)

. . >>

or not punished. The quite frequent absence of punitive consequences “
or, more precisely, the fact that the absence of such consequences is due to
legally permissible exercises of of¬cial discretion “ is regarded by skeptics
as suf¬cient to vindicate their view that jural of¬cials are authorized to
pretermit any of the legal consequences ordained by criminal-law man-
dates. Answers to questions about the legal consequences of people™s
conduct are therefore said to be devoid of determinate correctness. Once
we move from the contents of legal norms in the abstract to the contents
of legal norms as they are given effect in processes of implementation, we
¬nd that legal consequences are up in the air. Or so the skeptics maintain.
Before considering why this skeptical argument is unsound, we should
note that it does not perforce run together indeterminacy and unpre-
dictability (two properties whose distinctness has already been discussed
in this chapter). Skeptics are not asserting that the presence and exercise
of of¬cial discretion in the implementation of legal norms will inevitably
have made that implementation erratic. They can allow that legal of¬cials
might exercise their discretion in predictably regularized ways in most
contexts. Such predictability is hardly guaranteed, but it is perfectly pos-
sible. Nonetheless “ the skeptic would go on to argue “ the foreseeability
of the of¬cials™ handling of various matters will be due to extralegal fac-
tors such as shared psychological inclinations, rather than to the terms of
legal requirements and entitlements. Those terms do not correspond to
Dimensions of Objectivity 27

the ways in which the requirements and entitlements are actually brought
to bear on people™s conduct, even if the departures from those terms are
regularized and predictable. Most important, the aforementioned depar-
tures are all legally permissible exercises of discretion, and any decisions
by of¬cials against engaging in such departures (and thus in favor of effec-
tuating the terms of the relevant laws) would likewise have been legally
permissible. The law as it actually gets applied to people™s conduct is
therefore indeterminate, for any application could have gone either way.
Since a decision either way would have been correct, neither a decision in
favor of enforcement nor a decision against enforcement is determinately
correct. Such is the conclusion of the skeptical argument.
Though that skeptical argument does not con¬‚ate indeterminacy and
unpredictability, it rests on a simplistic understanding of legal mandates
and legal systems. Speci¬cally, it rests on a simplistic understanding of
the legal consequences that attach to people™s conduct under the man-
dates and other norms of a legal system. We are concentrating here on
criminal-law prohibitions. Skeptics advert to the fact that some people
who detectedly transgress those prohibitions are unpunished as a result
of legally permissible exercises of discretion by of¬cials such as policemen
and prosecutors. Skeptics think that the withholding of punishment is
at odds with what is ordained by the terms of the prohibitions. In fact,
however, what is ordained under those terms is more subtle than the
skeptics realize.
Integral to the terms of any criminal-law mandate is not that every
violator will have undergone some punishment, but that every violator
will have incurred a legal liability to be subjected to punishment. The
term “liability” is used here in the sense assigned to that term by the
American jurist Wesley Hohfeld. That is, it designates a susceptibility to a
change in one™s legal position (Kramer 1998, 20“21). Such a change can be
brought about through the exercise of some legal power(s) by oneself or
by somebody else. In the case at hand, the relevant powers will be held by
the legal of¬cials responsible for pursuing sanctions against malefactors.
(Those powers will typically be exercisable through a complex sequence
of steps such as an arrest, a set of pretrial proceedings, a trial, and a
process of sentencing.) If the appropriate of¬cials exercise their powers to
undertake punitive measures against some person P who has criminally
¬‚outed a legal requirement, then P will have incurred a legal duty to
28 Objectivity and the Rule of Law

submit to those measures. His legal situation will have changed “ through
the imposition of a new legal duty “ in precisely the respect to which he
makes himself liable when he breaches a legal mandate. However, the
essential effect of his breach of the mandate is not the occurrence of that
subsequent change (which depends on exercises of powers of enforcement
by appropriate of¬cials), but his incurring of a liability to undergo such
a change. That liability will have been incurred even if the subsequent
imposition of a duty never in fact takes place. If a police of¬cer or some
other relevant legal of¬cial exercises her discretion and declines to initiate
punitive proceedings, then P will not acquire a duty to submit to any
sanctions that might have ensued from such proceedings. All the same, P
through his violation of the law will have placed himself under a liability
to acquire just such a duty. His placing of himself under that liability is
what ineluctably follows from his having criminally transgressed a legal
requirement, and is something that occurs irrespective of whether he is
ever subjected to punitive measures.
By contrast, the subjection of P to punitive measures is not something
that ineluctably follows from his having criminally transgressed a legal
requirement, even if we leave aside the fact that punitive proceedings
might go awry for any number of reasons such as a lack of clinching
evidence. His subjection to punitive measures does not ineluctably fol-
low, because the norms of the legal system that govern the handling of
his liability-to-be-subjected-to-sanctions are such that they endow the
relevant of¬cials with discretion. Vested with that discretion, the of¬cials
are both legally empowered and legally permitted to choose between
pursuing and waiving the application of punitive measures against P.
If they opt to waive those measures, they will not thereby have done
anything that clashes with the terms of the norms in their legal system.
They will obviously not thereby have done anything that clashes with
the terms of the norms which confer their discretion upon them. Less
obviously, they will also not have done anything that clashes with the
terms of the mandate which P has breached. After all, as has just been
remarked, the only essential effect of a breach of that mandate by P is
his incurring of a liability-to-be-subjected-to-punishment. That liability
does indeed descend upon him in the aftermath of his breach, even though
he is not subsequently subjected to any punishment. In other words, far
from being at variance with the terms of the applicable laws, the legal
Dimensions of Objectivity 29

situation involving the of¬cials™ discretionary waiver of punitive mea-
sures against P is fully in accordance with those terms. P incurs a liability
just as is ordained under the mandate which he has violated, and the
of¬cials reach a decision (a decision to forgo punitive measures) which
they are permitted and empowered to reach under the norms that invest
them with discretion in such matters.
When a skeptic argues that legal requirements as they actually get
applied to people™s conduct are indeterminate because of the existence
of of¬cial discretion in the implementation of those requirements, he or
she is failing to heed the chief distinction highlighted in the two preced-
ing paragraphs: the distinction between a liability-to-undergo-punitive-
measures and the actual undergoing of punitive measures. Once we take
account of that distinction, we can see that the existence of of¬cial discre-
tion in the implementation of legal requirements does not unsettle the
immediate legal consequences of people™s conduct. Those consequences
will be as they are ordained by the legal directives that impose the require-
ments. That is, everyone who disobeys any of those directives will incur a
liability to be subjected to punitive measures. Such a consequence occurs
immediately regardless of the existence and exercise of discretion on the
part of the of¬cials who give effect to the directives. Thus, quite simplistic
is the notion that the legal consequences of unlawful conduct are up in
the air.
Skeptics, then, go astray by disregarding the distinction highlighted
in the last few paragraphs. Their inattentiveness to that distinction blinds
them to the ways in which the determinacy of legal directives as they exist
in abstracto is paralleled by the determinacy of such directives as they actu-
ally impinge on people™s legal positions. The sheer fact that the of¬cials
responsible for enforcing legal requirements are vested with discretion in
carrying out their task is not suf¬cient to undermine the objectivity of
the workings of their legal regime. Still, although the skeptical argument
is facile, there is plainly an element of truth in it. Everything hinges here
on the nature of the discretion with which the of¬cials are endowed.
Suppose that there is some system of governance in which the of¬cials
are empowered and permitted to do whatever they please in their imple-
mentation of the system™s dictates. Whenever a transgression of those
dictates has occurred, the of¬cials are fully empowered and permitted to
pursue or waive a procedure of punitive enforcement. Any decision either
30 Objectivity and the Rule of Law

for or against the pursuit of such a procedure, reached for any reason or
for no reason at all, will be both ef¬cacious and permissible within the
norms of the system of governance. The caprice of any of¬cial is a suf¬-
cient basis for every such decision, and no of¬cial is required to make any
effort to treat like cases alike or to differentiate between distinguishable
cases. No of¬cial has to take account of any other of¬cial™s decisions or
of his own past decisions. Now, in any system of governance along these
lines, most of the legal consequences of people™s transgressive conduct
will indeed be up in the air “ and, as my later chapters will suggest, they
will therefore probably not be genuinely legal consequences. Although
the immediate legal consequence of each instance of transgressive con-
duct (namely, the incurring of a liability-to-undergo-sanctions) will be
determinate, any further legal consequences of each such instance will
be radically unsettled. Whether a malefactor will actually be subjected to
penalties or not is a matter to be determined by the whim of any relevant
of¬cial. Under the norms of the system, before such penalties are of¬cially
sought or waived, there is no determinately correct answer to the ques-
tion whether they should be sought or waived. Even if the of¬cials in fact
exercise their thoroughgoing discretion in ways that are highly regular-
ized and coordinated, their being endowed with such blanket discretion
is suf¬cient to render indeterminate most of the legal consequences of
people™s transgressive conduct. (Note that an even stronger version of
the point made in this paragraph would be pertinent with regard to an
iniquitous system of governance in which the of¬cials are also sweep-
ingly empowered and permitted to undertake sanctions against people
who have not violated any norms of the system. I have not focused on
such a situation here, simply because it is not invoked by the skeptics to
whom I am retorting. They endeavor to substantiate their claims about
legal indeterminacy by adverting to the existence of of¬cial discretion in
the enforcement of laws that have indeed been breached.)
With reference to a system of governance like the one sketched in the
preceding paragraph, the skeptical argument is still simplistic “ because
of its elision of the distinction between the liability of a person to be
subjected to punitive measures and the actual subjection of the person
to punitive measures “ but it is largely correct. When the discretion of
of¬cials in enforcing the law is completely untrammeled, most of the
legal consequences of people™s unlawful conduct will be up in the air. The
Dimensions of Objectivity 31

workings of the system that comprises those consequences will partake
of only meager determinacy. Nonetheless, there are good grounds for
querying whether the skeptical argument has any troublesome purchase
on the legal systems of Western liberal democracies (the legal systems
about which the skeptics profess to be writing). To show that the argument
does troublingly bear on those legal systems, the skeptic will have to
establish that the of¬cial discretion operative therein is wholly or largely
untrammeled. As is evident, discretion can exist in many forms and with
varying degrees of restrictedness. If the of¬cial discretion that exists in
some or all of the legal systems of Western liberal democracies were
approximately as extensive as the of¬cial discretion recounted in my last
paragraph, then the skeptic could warrantedly claim to have thrown into
doubt the objectivity of the operations of those systems. If contrariwise
the of¬cial discretion in those legal systems is far more modest and is
hemmed in by quite stringent restrictions concerning the attainment
of consistency in the handling of myriad situations, then the skeptical
argument is undamaging. Any indeterminacy exposed by that argument
in the workings of liberal-democratic legal systems will be circumscribed
rather than pervasive.
Do we, then, have any strong reasons for presuming that of¬cials™
discretion in the implementation of legal mandates within liberal-
democratic systems of governance is virtually untrammeled? Or do we
instead have solid reasons for presuming that that discretion is much more
modest? Any informed answers to these questions would have to stem
from a wide-ranging empirical study undertaken on a scale far beyond
any study that has ever been carried out by skeptics. No such study is
possible here, of course, but we can re¬‚ect brie¬‚y on some reasons for
thinking that any survey would go against the skeptics. For one thing, it is
manifest that no legal of¬cial in a liberal-democratic regime (or in many
an autocratic regime) would be legally empowered and permitted to base
decisions about law-enforcement on sheer caprices. If there is no credible
rationale for some such decision(s) reached by an of¬cial, and if the mat-
ter is suitably brought to the attention of higher-level authorities, then
the of¬cial will very likely be upbraided or the decision(s) will very likely
be set aside. More generally, there are numerous broad legal restrictions “
within any liberal democracy “ on the sorts of considerations that can
permissibly underlie the decisions of of¬cials to pursue or waive punitive
32 Objectivity and the Rule of Law

proceedings against lawbreakers. For example, such decisions cannot per-
missibly be based on the religion or race or gender or ethnicity or political
allegiance or socioeconomic status of any lawbreaker or of any victims of
lawbreaking, except in extremely unusual circumstances. Furthermore,
past and present decisions constrain what can permissibly be decided in
the future. Requirements of consistency, such as the American constitu-
tional principle of equal protection of the laws or the hoary procedural-
justice principle that like cases are to be treated alike, impose limits on
the validity or permissibility of any law-enforcement decisions within a
context of other law-enforcement decisions. Similarly, rules about desue-
tude divest of¬cials of the legal power to enforce legal requirements that
have long gone unenforced despite the occurrence of infractions. These
restrictions on the discretion involved in the implementation of legal
mandates do not eliminate that discretion entirely, of course, but they do
cabin it much more tightly than is envisaged in skeptical pronouncements
about the operations of liberal-democratic systems of law.
In several respects, then, skeptical arguments that concentrate on the
role of of¬cial discretion in the effectuation of legal directives are glib.
Such arguments do not show (and do not purport to show) that legal
directives as they obtain in the abstract are without determinate implica-
tions for most circumstances. Moreover, by failing to distinguish between
one™s liability to be subjected to punishments and one™s actual undergoing
of punishments, the skeptics overlook the determinacy of the immediate
legal consequences of illicit conduct. In addition, by paying inadequate
attention to the curbs on of¬cials™ discretion in the effectuation of legal
directives within liberal-democratic systems of law, skeptics markedly
overestimate the extent of that discretion. In these various ways, the con-
clusions drawn by skeptics from their observations of of¬cial discretion
in law-enforcement are overblown. To be sure, more can and should
be said on these matters. (For example, a thorough investigation would
need to ponder the fact that many contraventions of legal requirements
go undetected “ and the further fact that the identities of the perpetrators
of many detected contraventions go undiscovered.) Already, however, we
have strong grounds for believing that the discretionary aspect of law-
application in Western liberal democracies cannot soundly be adduced
by the Critical Legal Scholars and other skeptics in vindication of their
hyperbolic proclamations of legal indeterminacy.
Dimensions of Objectivity 33

The preceding paragraph™s antiskeptical verdict would be reinforced
if we were to take account of the ways in which the procedural devices
of a legal system can curtail the discretion that might be left by the sys-
tem™s substantive norms. For instance, various rules of closure “ such as
the rule that the defendant should win whenever there is no determi-
nately correct answer to the pivotal point of contention in a private-law
case before a court “ can remove some of the gaps of indeterminacy that
would otherwise exist in a society™s law. Of course, not all such devices are
desirable. What is more, none of them can ever eliminate indeterminacy
completely; for example, there might be no determinately correct answer
to the question whether there is a determinately correct answer to the piv-
otal point of contention in some particular case before a court. (A crux
of this kind would involve second-order indeterminacy.) Nevertheless,
rules of closure and other procedural measures can expand the range of
situations in which there are uniquely correct outcomes to be reached by
legal decision-makers. Skeptics have concentrated on the ways in which
the administrative and adjudicative workings of a legal system reduce the
determinacy of the system™s requirements and authorizations. Were they
also to notice the ways in which those workings can augment the deter-
minacy of such a system, they would be less inclined to overstate their
skeptical ¬ndings. Indeterminacy Underestimated

If the Critical Legal Scholars have signi¬cantly exaggerated the degree
of the indeterminacy in functional legal systems, a key inquiry to be
addressed is how far one should go in rejecting their skeptical claims.
Should one follow Ronald Dworkin in maintaining that there is a uniquely
correct answer to every legal question or virtually every legal question that
might arise in some particular jurisdiction (Dworkin 1977; 1978, 279“90;
1985, 119“45; 1991 )? On the one hand, his position is by no means as
outlandish as it might initially seem. He contends that “ at least in any
legal system relevantly similar to that of the United States “ the answers
to legal questions are determined not only by the familiar materials of law
such as statutes and judicial rulings and administrative regulations and
constitutional provisions, but also by the most attractive moral principles
that are immanent in those materials. Even when the explicit formulations
34 Objectivity and the Rule of Law

in the ordinary materials of the law do not by themselves yield a uniquely
correct answer to some dif¬cult legal question, the most appealing moral
principles that underlie those materials can do so. Such principles can
close up any juridical open-endedness, for the uniquely correct moral
answer to each dif¬cult question will likewise be the uniquely correct
legal answer.
By insisting that major principles of morality are incorporated into
the law of any particular jurisdiction, Dworkin in effect submits that the
range of legally dispositive standards is much more expansive than might
be thought by somebody who concentrates only on the overt formulations
of statutes and regulations and ordinances and adjudicative doctrines and
contractual clauses and constitutional provisions. Because the repertory
of decisional bases within a legal system as understood by Dworkin is
so ample, an af¬rmation of the existence of a uniquely correct answer
to every legal question within such a system is not wildly implausible.
Furthermore, Dworkin™s point about the importance of supplementary
legal standards can be generalized. In some legal systems, the supplemen-
tary role will be ¬lled by correct principles of morality, which serve as
legally binding bases for of¬cial decision-making; but, even in a legal sys-
tem that cannot credibly be characterized as having incorporated many
correct principles of morality into its law, some supplementary stan-
dards will be operative. Those standards might be the precepts of the
conventional moral code that prevails in the society over which the legal
regime presides. Or, in a ¬‚agrantly evil legal regime, the supplementary
standards might be shameless principles centered on the exploitatively
power-hungry interests of the of¬cials who draw upon them. Moreover,
in any functional legal system “ whether benign or malign “ the of¬cials
will have recourse to countless assumptions about the typical desires and
intentions and inclinations of human beings, and also to assumptions
about the typical meanings associated with ordinary language. Although
the contents of those common-sense assumptions are not themselves
standards that are the normative bases for juridical decision-making,
they greatly strengthen the determinacy of the standards that are those
normative bases. That is, they contribute greatly to settling whether the
statutes and regulations and ordinances and judicial doctrines and other
legal standards in some jurisdiction are applicable or inapplicable to
any particular sets of circumstances. Like the moral principles or other
Dimensions of Objectivity 35

principles that have been incorporated into a jurisdiction™s law as disposi-
tive touchstones for gauging the legal consequences of people™s behavior,
the contents of the common-sense assumptions mentioned above will
help to close any gaps of indeterminacy left open by the language of
explicitly formulated legal norms. Very much the same can be said about
the technical interpretive techniques employed by judges and other legal
of¬cials to construe the bearings of complicated legal language. We should
keep these points in mind whenever we are assessing the plausibility of
Dworkin™s insistence that there is a uniquely correct answer to every legal
One additional point in Dworkin™s favor is the distinction between
indeterminacy and indemonstrability, to which we have already devoted
some scrutiny. When Dworkin insists on the existence of uniquely correct
answers to legal questions, he is hardly implying that judges and other
legal of¬cials (to say nothing of members of the general public) will invari-
ably concur on what those answers are. On the contrary, he has repeatedly
emphasized the intractability of the disagreements that surround dif¬-
cult legal cruxes. The distinction between determinate correctness and
demonstrable correctness is especially salient in his jurisprudential theo-
rizing because of his contention that correct principles of morality will be
among the legal norms in any morally authoritative regime of law. Given
that the correct principles of morality are strongly mind-independent
not only observationally but also existentially, his claims about uniquely
correct answers to knotty legal questions plainly do not entail any claims
about widely agreed-upon answers to those questions. Hence, the prepos-
terousness of claims of the latter sort should not be attributed to claims
of the former sort.
On the other hand, although Dworkin™s insistence on the existence
of a uniquely correct answer to every legal question is far from risible,
it is excessively bold. Notwithstanding all that has been said in the last
three paragraphs, there are no compelling grounds for going as far as
Dworkin. He is right to challenge the orthodox (and rather compla-
cent) view that there are no determinately correct answers to quite a few
dif¬cult legal questions, but his challenge does not altogether succeed.
Though the presence of moral principles in the law as legally binding
bases for decisions will close up many of the gaps of indeterminacy that
would otherwise yawn, the notion that those principles remove all or
36 Objectivity and the Rule of Law

virtually all such gaps is implausible. There undoubtedly remain a num-
ber of issues in connection with which the competing considerations are
either evenly balanced or incommensurably pitted against each other.
Dworkin™s position on this matter is closely bound up with his resistance
to the idea of the incommensurability of countervailing moral factors, and
with his concomitant rejection of value-pluralism in morality (the thesis
that basic moral values collide with one another in certain respects and
that they therefore sometimes have to be traded off against each other).
To be sure, his doubts about incommensurability and value-pluralism
in the domain of morality are salutary to a certain degree; people are
too ready at times to presume that the trickiness of reconciling certain
desiderata is due to the sheer impossibility of doing so. Nevertheless,
his stance is overweening insofar as it is meant to apply in a blanket
fashion. There are no solid moral reasons for thinking that moral prin-

<< . .

( 26)

. . >>

Copyright Design by: Sunlight webdesign