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ciples will have yielded a uniquely correct answer to every problem that
comes to be addressed by a legal system. In his efforts to show that moral
and political values do all mesh in ways that overcome incommensura-
bility and value-pluralism, Dworkin has to resort to some far-fetched
lines of argument (Williams 2001 , 13“14). The matter deserves much
more attention than can be bestowed on it here, of course, but we are
well advised to conclude “ pace Dworkin “ that any functional systems
of law, including systems that have taken on board the correct princi-
ples of morality among their norms, will be confronted by situations
that occasion legal questions to which there are no determinately correct
answers.
This conclusion is reinforced by a recognition of the ineliminable
vagueness of many legal concepts (Endicott 2000, 63“72, 159“67). Though
we shall brie¬‚y return to the topic of vagueness in Section 1.2.6, a full-scale
treatment of the matter is beyond the scope of this book; a laconic sketch
of one mundane instance of the problem will suf¬ce for my present pur-
poses. Suppose that six months would be an unreasonably long period
of time for the marking of an examination, and that three days would
be a reasonably short period of time for such a task. Yet, if a period
of six months is unreasonably long, then so is a period of six months
minus one second. Any basis for deeming the former to be unreason-
able in length would apply as well to the latter. Conversely, if a span of
three days is reasonably short, then a span of three days plus one second
Dimensions of Objectivity 37


is likewise reasonable. Any reasonableness/unreasonableness distinction
between those lengths of time would be without foundation. In this con-
text, much the same can be said about such a distinction between any
span of length L and a span of L-plus-one-second or a span of L-minus-
one-second. Whatever may be the numerical value of the “L” variable,
a reasonableness/unreasonableness distinction between L and L-plus-
one-second or between L and L-minus-one-second would be untenably
arbitrary. Given as much, however, someone who ventures to pin down
the distinction between the reasonably short and the unreasonably long
will proceed inde¬nitely in contemplating the addition of seconds to the
length of three days, and will likewise proceed inde¬nitely “ until reach-
ing zero “ in contemplating the subtraction of seconds from the length of
six months. There is no point at which we can stop and draw a nonarbi-
trary line marking the end of the reasonableness of the former length or
marking the beginning of the unreasonableness of the latter length. We
therefore seem impelled toward the verdict that a period of six months
(or even longer) is reasonably brief, and that a period of three days (or
even shorter) is unreasonably protracted.
To resolve this paradox, which has been known since ancient times
and which bears mutatis mutandis on many dichotomies rather than only
on the reasonable/unreasonable distinction (Sainsbury 1988, 25“48), we
should acknowledge that each such dichotomy is associated with a gray
area of borderline cases. Within that gray area “ the boundaries of which
are themselves vague “ there is no determinate answer to the question
whether any particular borderline phenomenon falls on one side or the
other of the relevant dichotomy. Now, among the vague concepts that
give rise to such gray areas are many of the major concepts that ¬gure
in legal systems. Those juridical concepts differ among one another in
the extent of their vagueness (and in the degree of its practical impor-
tance), but each of them can generate questions to which there are no
determinately correct answers. The potential for some such questions is
ineliminable, since any means of closing off vagueness in one or more of
its manifestations will rely on concepts that are themselves not imper-
vious to lines of reasoning broadly parallel to the argument sketched in
my preceding paragraph. Although vagueness within a legal system can
usually be reduced, and although it can always be shifted from one focal
point to another, it can never be overcome completely.
38 Objectivity and the Rule of Law


Indeterminacy does exist in legal systems, then, albeit on a far more
limited scale than is imagined by the Critical Legal Scholars. It extends to
legal norms even at the level at which they obtain as abstract standards;
a fortiori, it extends to those norms at the level at which they actually
get invoked and effectuated by legal of¬cials. Still, the precise extent of
the indeterminacy “ and the speci¬c types of problems that give rise to
it “ will of course vary from legal system to legal system. Objectivity qua
determinacy is a scalar property, rather than an all-or-nothing property,
of each legal system as a whole.


1.2.3. Objectivity qua Uniform Applicability

Another prominent aspect or dimension of objectivity is that of uniform
applicability, which overlaps with some of objectivity™s other aspects or
dimensions. If laws are uniformly applicable to people within a jurisdic-
tion, they apply alike to everyone there. The uniform applicability of legal
norms is to be understood in contrast with several kinds of differentiated
applicability. In the ¬rst place, it consists in categorical imperativeness;
that is, it consists in the mandatoriness of legal requirements for everyone
irrespective of his or her preferences and inclinations. A legal prohibi-
tion on acts of murder, for example, applies with equal force to people
naturally inclined toward paci¬sm and people naturally inclined toward
violent sadism. Although compliance with such a prohibition will be
effortless for the former people and frustratingly irksome for the latter,
the former are just as strictly forbidden to commit murders as are the lat-
ter. Similarly, the prohibition applies alike to people who are desperately
afraid of being imprisoned and people who are largely unafraid because
of their brazen indifference toward their surroundings and prospects.
Penalties await anyone who has been convicted of the crime of murder,
whether or not those penalties are perceived as daunting.
A few important quali¬cations should be appended to the propo-
sition that legal norms are categorically imperative. One caveat is that
the categorical imperativeness of a legal norm such as the prohibition on
murder does not mean that all the legal consequences of a person™s breach
of such a norm will perforce be the same as those of a breach by anybody
else. Some of the consequences, such as the immediate consequence of
incurring a liability-to-undergo-punishment, will indeed be the same
Dimensions of Objectivity 39


for everyone. Other legal consequences may well differ, however, and
the differences may be partly or wholly due to differences among peo-
ple in their propensities and desires. A person of depraved desires who
commits a murder for nefarious reasons will typically receive a heavier
sentence for the crime than will someone of a generally good charac-
ter who commits a murder for much less ignoble reasons. Many aggra-
vating or mitigating factors of this sort “ relating directly to people™s
predilections and temperaments “ may call for lesser or greater leniency
in the punitive responses to some murders than in the punitive responses
to others. These variations are perfectly consistent with the categorical
imperativeness of a legal norm that forbids murder. Such a norm partakes
of categorical imperativeness because it establishes that a certain mode
of conduct is a legal wrong regardless of whether anyone is attracted or
repelled by that mode of conduct. The requirement imposed by the norm
is a requirement for everyone; its status as a requirement does not depend
on anyone™s objectives or desires. In that key respect, a legal mandate is
categorically imperative. Its disallowance of some speci¬ed type of behav-
ior renders that type of behavior legally impermissible for everyone alike,
even though the severity of the legal consequences of acting athwart the
mandate might not be similarly uniform for everyone.
Another crucial caveat that quali¬es any attribution of categorical
imperativeness to law is centered on the heterogeneity of legal norms.
Some legal norms, such as the norm that proscribes murder, clearly do
partake of categorical imperativeness. Each such norm requires every-
one to act in a certain way or to abstain from acting in a certain way,
without regard to what anyone™s aims might be. Other legal norms, how-
ever, do not in themselves produce any such effect. The most impor-
tant distinction in this context is between duty-imposing norms and
power-conferring norms (Hart 1961 , 27“41). As jurisprudential theo-
rists have emphasized for many decades, power-conferring laws “ for
example, laws vesting people with legal powers to form contracts or to
bequeath property “ differ from duty-imposing laws in that they do not
categorically require people to adopt any particular modes of conduct.
Instead, they provide people with opportunities to achieve certain aspi-
rations. People are able to take advantage of those opportunities or to
decline to take advantage of them, in accordance with their objectives. Of
course, anyone who wishes to bring about an outcome made possible by
40 Objectivity and the Rule of Law


a power-conferring law will have to comply with the conditions or pro-
cedures prescribed for the exercise of the power in question. However,
the power-conferring law itself does not obligate anyone to endeavor to
bring about any outcome which it enables. One™s having to conform to
the prescribed conditions or procedures for the exercise of a legal power
is contingent on one™s seeking to exercise that power. (To be sure, peo-
ple are sometimes legally obligated to exercise legal powers with which
they are endowed. Such obligations are especially common in relation to
the public powers of legal-governmental of¬cials. Nonetheless, any such
obligations are established by duty-imposing norms that accompany the
power-conferring norms under which the of¬cials hold their powers.
The power-conferring norms themselves do not render mandatory the
performance of any particular action or function.)
A further caveat concerning the categorical imperativeness of law is
that, although categorical imperativeness is one species of uniform appli-
cability, those two properties are by no means simply equivalent. For
instance, although power-conferring laws are not categorically impera-
tive, they typically are uniformly applicable (at least in Western liberal
democracies) in that typically they apply alike to everyone within a juris-
diction. Normally, any such law lays down procedures that have to be
followed by everyone who wishes to exercise the power(s) which the law
bestows. Speci¬cations of such procedures are not categorical impera-
tives “ because they do not require anyone to act in the prescribed ways
unless he or she desires certain outcomes “ but they are conditional
imperatives that obtain as such for everyone within a jurisdiction.
Conversely, just as a lack of categorical imperativeness does not entail
a lack of uniform applicability in other respects, so too a lack of uni-
form applicability in other respects does not entail a lack of categorical
imperativeness. Suppose for example that the laws of some deeply racist
nation in Africa include mandates which forbid Caucasian people to mur-
der anyone but which do not impose any cognate prohibition on black
people; instead, black people are forbidden to slay other black people but
are permitted to slay Caucasians. In two major respects, the mandates in
question are not uniformly applicable. They differentiate among people,
on the basis of skin color, both with regard to the limitations imposed
on what anybody can permissibly do and with regard to the protec-
tion afforded against the misconduct of others. Notwithstanding, those
Dimensions of Objectivity 41


mandates are categorically imperative. The requirements established
thereunder do not differentiate among people at all on the basis of their
desires and aims. A person™s attitude toward the act of committing a mur-
der or toward the prospect of being punished is irrelevant to the question
whether the person is legally forbidden or permitted to carry out such an
act. Every Caucasian person in the jurisdiction is legally prohibited from
murdering anyone, and every black person in the jurisdiction is legally
prohibited from murdering any black person. Thus, although the imag-
ined mandates are far from uniformly applicable in some conspicuous
respects, they are uniformly applicable in the sense of being categorically
imperative.

1.2.3.1. Uniformity versus Individualization

As is apparent from the last couple of paragraphs, uniform applicability
goes well beyond categorical imperativeness. It stands in contrast with
countless kinds of disparate applicability, indeed. Some of those types of
disparate applicability (such as racial or religious discrimination) are per-
nicious in most contexts, whereas other types “ which are especially often
broached in discussions of legal objectivity “ are somewhat more equivo-
cal in their moral bearings.11 Perhaps most notable among these is differ-
entiation on the basis of abilities or intelligence. Within Anglo-American
law, such differentiation is quite frequently eschewed. For instance, the
standard of negligence in Anglo-American tort law is generally de¬ned
by reference to the level of care that would be taken by a reasonable per-
son, and is applied to people who lack the intelligence or the physical
dexterity to exercise such a degree of care. Jurists frequently designate
that standard as “objective,” and thereby distinguish it from an approach
that would take the peculiar shortcomings of individual defendants into
account. Admittedly, some exceptions are made for young children and
for lunatics and for people with severe physical handicaps. Nevertheless,
the normal practice in Anglo-American tort law is to hold people legally
answerable for the harmful effects of their negligence irrespective of any-
one™s ability or inability to satisfy the standard of reasonable care. A num-
ber of other areas of Anglo-American law are broadly similar in favoring

11 For a nuanced discussion of some of these matters, with a focus principally on criminal law,
see Greenawalt 1992, 100“19.
42 Objectivity and the Rule of Law


objectivity-qua-uniform-applicability over any accommodatingly sub-
jective way of proceeding that would cater to individual weaknesses.
Whether any areas of the law should maintain a posture of uniform
applicability by disregarding individuals™ physical and mental de¬cien-
cies is a moot question. On the one hand, a practice of differentiating
among people by adverting to such de¬ciencies would not be glaringly
invidious in the manner of racial or religious or ethnic bigotry. Applying
a more lenient standard of legal wrongdoing to people whose physical
or mental inadequacies prevent them from abiding by a more demand-
ing standard is fairer to such people in some palpable respects. Even
though the principle that “ought” implies “can” is not always correct as
a moral precept (Kramer 2004a, 249“94; 2005), it is often correct. There
is something unpleasant about marshaling the coercive force of legal-
governmental institutions against somebody for having brought about
an untoward event which he or she was incapable of avoiding in the
circumstances. On the other hand, there are several considerations that
militate in favor of the current position in Anglo-American tort law (and
in other relevantly similar areas of the law).
One such consideration centers on the very issue of fairness. Although
an award of damages against a hapless defendant is undoubtedly quite a
harsh burden for that person, a failure to award compensation to an inno-
cent victim of the defendant™s substandard conduct is “ ceteris paribus “
even more harshly unfair. Perhaps an alternative to the private-law system
of compensation would be appropriate in such a situation. Perhaps, for
example, the compensation for the victim should come from a publicly
maintained fund. It is not overwhelmingly obvious, however, why tax-
payers should bear the burden of remedying the injurious consequences
of somebody™s slipshod conduct. A critic of private-law compensation
might respond by invoking familiar arguments about the ostensible com-
passionateness of spreading the costs of mishaps among large numbers
of people. Such arguments, however, are more than offset by lines of
reasoning about the disadvantages of impairing the ¬nancial incentives
for people to refrain from participating in activities which they are inca-
pable of performing safely. At any rate, even less appealing than a public
compensatory fund would be a system in which the victims of others™
carelessness have to rely on ¬rst-party insurance (that is, insurance poli-
cies purchased by potential victims to indemnify them for any harm
Dimensions of Objectivity 43


suffered as a result of other people™s actions). Any sustainable scheme
of ¬rst-party insurance that is not itself heavily funded through pub-
lic subventions will be marked by either of two undesirable features:
either people who suffer more frequently from the remissness of oth-
ers will have to pay higher premiums for their coverage, or else all the
purchasers of the insurance will be paying higher premiums to defray
the costs of the remissness-induced accidents. Thus, imperfect though
a system of private-law compensation admittedly is, it is probably less
unattractive as a mechanism for remedying the effects of negligence than
any arrangements that might be substituted for it. Given as much, and
given the unfairness to innocent victims if they receive no redress for
the damage which they incur through the maladroitness of their fellows,
the reluctance of jurists within Anglo-American tort law to indulge the
shortcomings of dim-witted people is well-founded.
Another consideration that supports such reluctance has been ¬‚eet-
ingly broached above. Many of the accidents caused by anybody™s char-
acteristic clumsiness or oa¬shness are quite easily avoidable through the
forgoing of certain activities. For example, if someone is physically not
able to drive a car in an acceptably safe manner “ maybe because of poor
eyesight or maybe because of a lack of physical dexterity “ she commits
an error of judgment by driving at all. If her substandard driving eventu-
ates in a mishap, then the attribution of negligence to her is a censorious
re¬‚ection on her initial judgment as much as on the inept bit of driving
that immediately preceded the collision. Because she could have averted
the harmful incident by refraining from driving, she will be in a weak
position to request leniency when she has declined to avail herself of
that option. (Of course, in the unlikely event that her driving has been
prompted by the occurrence of a dire emergency, this particular point
against indulgence will lack its usual force. In such circumstances, her
bad driving might be deemed nonnegligent.)
Another factor in support of the current position within Anglo-
American tort law is that a practice of differentiating among people by
reference to their physical and mental inadequacies could be a slippery
slope. After all, an inveterately malign disposition is likewise an inade-
quacy or inability. Somebody unfortunate enough to be possessed of such
a disposition is unable to conform to ordinary standards of decency and
sociability. Quite unconscionable, however, is the notion that tort-law
44 Objectivity and the Rule of Law


proceedings or even criminal-law proceedings should treat such a person
in a notably favorable fashion by exonerating him whenever his wrong-
doing is due to his ingrained disposition. To be sure, the provenance of
his depraved character “ its origin in a troubled childhood, for example “
might be taken into account by a criminal-justice system at the stage of
sentencing. Still, the idea that he should be absolved of all penalties sim-
ply because of his profoundly evil temperament is ridiculous. Yet, if the
longstanding unintelligence or physical clumsiness of a defendant in a
negligence case were to be treated as a ground for deeming her slipshod
conduct to have satis¬ed the standard of reasonable care, there might be
no strong reason for refusing to treat a defendant™s perdurably evil out-
look in a broadly parallel manner. Any inept defendant in a negligence
case would be shielding herself by highlighting her inability to live up
to an ordinary requirement of reasonableness. Correspondingly, then, a
deeply depraved defendant who is sued for committing an intentional
tort might shield himself by highlighting his inability to abstain from
forming and pursuing the evil intention on which he has acted. Such a
defendant would argue that he should not have to pay damages for giving
effect to intentions of which the formation has lain wholly beyond his
control; he should not have to pay damages for acting on intentions that
¬‚ow irresistibly from his inveterate character, just as a maladroit defen-
dant should not have to pay damages for instances of slapdash conduct
which she was incapable of improving upon. If we wish to reject the con-
clusion reached by this nefarious intentional wrongdoer about his own
situation, we ought pari passu to reject the chief premise of his argument.
That is, we should reject the thesis that the standard of reasonable care
in tort law is to be adjusted downward for people whose obtuseness or
physical uncoordination prevents them from satisfying that standard at
its normal level.
An additional reason for querying the thesis just mentioned is that,
although special treatment for people with paltry mental or physical
endowments would not be repellently invidious, it would very likely
stigmatize such people. They would be classi¬ed not as full adults who
are to be answerable for their conduct on a par with everyone else, but
as degraded specimens of humanity to whom condescending indulgence
is to be extended by the courts. Though some or all of them might feel
that the demeaningness of such treatment would be outweighed by the
bene¬ts of escaping the imposition of compensatory obligations, the
Dimensions of Objectivity 45


demeaningness would be a genuine drawback both for them and for the
society in which they interact with everyone else. So long as the normal
standard of reasonable care is itself set at an appropriate level by the
courts, a person™s being held to that standard is one of the indicia of her
dignity as a full member of her society.
Also militating in favor of the uniform applicability of the test for
negligence within Anglo-American tort law is the lowering of the admin-
istrative costs in the implementation of that test. If judges and other
legal of¬cials had to investigate the physical or mental shortcomings of
defendants in order to gauge how stringent the test for negligence should
be in application to each individual, the costs of administering the doc-
trine of negligence would signi¬cantly rise. Moreover, such an increase
in administrative costs would be accompanied by an increase in the like-
lihood of fraud on the part of defendants. Admittedly, these concerns
about greater costs and more frequent dishonesty are not in themselves
dispositive. In combination with the factors discussed in the last several
paragraphs, however, they are enough to warrant the retention of the
unaccommodating objectivity of the negligence standard. Though dif-
ferential applicability on the basis of physical and mental inadequacies is
doubtless desirable in many criminal cases at the stage of sentencing and
maybe at earlier stages, it would be more detrimental than bene¬cial if it
were introduced into the law of negligence.


1.2.3.2. Uniform Applicability versus Neutrality

Before we move on from this topic, we should note that these remarks
on the objectivity-qua-uniform-applicability of the test for negligence
in Anglo-American tort law can alert us to an important distinction.
Uniform applicability, at least as explicated throughout this subsection,
is not equivalent to neutrality. A situation of uniform applicability is a
situation in which everyone is judged by reference to the same criteria.
When everyone™s conduct is so judged, some people will clearly tend
to fare better than others. Uniform applicability will generate disparate
outcomes. For instance, a criterion of reasonable care that is applied to
thick-witted people and percipient people alike will naturally tend to
favor the latter.
Neutrality is quite different. It consists not in uniform applicability
but in uniformity of impact. If some law L were thoroughly neutral, it
46 Objectivity and the Rule of Law


would leave all bene¬ts and burdens distributed exactly as they would be
if L did not exist. Obviously, then, no law is thoroughly neutral “ unless
it is purely nominal and of no practical effect whatsoever. In regard to
any law that is not purely nominal, the most that can be attained is
neutrality in this or that particular respect. A revenue-neutral change in
the law of taxation, for example, will yield the same amount of revenue
for the government as was received before the occurrence of the change.
While keeping the total revenue unmodi¬ed, however, it will alter the
distribution of the burdens of taxation among various taxpayers.

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