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Neutrality in some particular respect(s) can be achieved through
departures from uniform applicability in some particular respect(s). For
instance, the revenue-neutrality of an alteration in the law of taxation can
come about through the augmentation of existing levies for some tax-
payers and the elimination of those levies for other taxpayers. A charge
previously applicable to all taxpayers is henceforth applicable only to
some, and at a more onerous level.
Now, although uniform applicability and neutrality are decidedly not
equivalent, any uniformly applicable laws will be neutral in some respects
while being nonneutral in sundry other respects. As has already been
observed, no law that is of any practical effect will leave everything in the
existing distribution of bene¬ts and burdens unaltered; what should now
be added, conversely, is that no law or set of laws can ever alter everything.
The ways in which a law is uniformly applicable may well be salient, and
the ways in which it is neutral may be much less interesting and important
and evident, but there are bound to be ways in which it is indeed neutral.
Hence, our attentiveness to the distinction between uniform applicability
and neutrality should hardly induce us to think that those two properties
never coincide. Inevitably, each of those properties in some form will
coincide with the other in some form. We should recognize as much, while
also recognizing the signi¬cant difference between judging everyone by
the same criteria and bringing about an equal upshot for everyone.


1.2.4. Objectivity qua Transindividual Discernibility

Having pondered some of the respects in which law is ontologically objec-
tive, we shall now turn to some epistemic aspects of objectivity. That is,
we shall now probe the relationships between legal phenomena and the
Dimensions of Objectivity 47


minds of the people (both legal of¬cials and ordinary citizens) who ascer-
tain or seek to ascertain what those phenomena are. For any domain of
enquiry, the central hallmark of its epistemic objectivity is the transindi-
vidual discernibility of the bearings of the things within it. In other words,
a domain of enquiry is epistemically objective insofar as people who com-
petently investigate the entities within the domain are able to concur on
the nature or speci¬cs of each of them. If all or nearly all competent
enquirers agree about those entities, then “ within the domain compris-
ing them “ the tastes and peculiarities of individuals are not dispositive
touchstones for what can warrantedly be af¬rmed. If any ¬eld of enquiry
is such that individuals™ tastes and peculiarities are indeed epistemically
dispositive touchstones within it, then the ¬eld is highly subjective (as
an epistemic matter); contrariwise, if a ¬eld of enquiry is such that those
tastes and peculiarities are subordinate to very widely shared perceptions
which sustain virtual unanimity on the matters to which the perceptions
pertain, then those matters are epistemically objective. In sum, the epis-
temic objectivity of any phenomena consists in the pronounced tendency
of individuals to converge in their beliefs about those phenomena.
As should be apparent, epistemic objectivity in the sense just ex-
pounded is a scalar property rather than an all-or-nothing property.
Things partake of it to varying degrees. An area of enquiry can be epistem-
ically more objective or less objective than any number of other areas of
enquiry, and the issues covered within such an area will themselves almost
certainly differ from one another in the extent to which they elicit agree-
ment. Furthermore, the epistemic objectivity of some or all of those issues
can evolve over time. Topics formerly controversial can eventually evoke
consentaneous views among people, and topics formerly agreed upon
widely can become heatedly unsettled. Thus, in its epistemic standing,
an issue can become more objective or less objective than it used to be.
What has just been said about changes over time in the epistemic
objectivity of certain areas of enquiry does not imply that the epistemic
objectivity of a matter will always hinge on the existence of a current
consensus concerning that matter. If there is widespread agreement on
appropriate methods for arriving at a consensus on the answer to some
question, and if the employment of those methods will indeed ultimately
eventuate in approximate unanimity on some answer, then the ques-
tion is currently classi¬able as epistemically objective even if the state
48 Objectivity and the Rule of Law


of approximate unanimity will not be reached for quite a while. Epis-
temic objectivity is lacking “ or is signi¬cantly diminished “ only if there
is neither broad agreement on the answer to some question nor broad
agreement on techniques by which the disagreements over that question
can in due time be resolved.
Objectivity qua transindividual discernibility does not entail objec-
tivity qua strong existential mind-independence, nor does the latter entail
the former. Similarly, objectivity qua determinate correctness does not
entail objectivity qua transindividual discernibility, nor does the latter
entail the former. These points are crucial for an understanding of the
epistemic objectivity of law. Hence, although some of them overlap with
points made in previous subsections of this chapter, we should mull over
each of them carefully.
Let us begin, then, with the lack of entailment between epistemic
objectivity “ transindividual discernibility “ and strong existential mind-
independence. On the one hand, to be sure, epistemic objectivity is per-
haps most conspicuous in some domains whose entities are strongly
mind-independent existentially as well as observationally. The physical
entities of the natural world, studied by the natural sciences, are epistem-
ically objective and are also strongly mind-independent (existentially as
well as observationally). Though experimentation and theorizing at the
frontiers of the natural sciences are inevitably attended by controversy,
the correct answers to untold other questions about natural entities are
recognized by everyone or virtually everyone who addresses those ques-
tions. Countless elementary matters concerning the size and substance of
natural objects do not provoke any disputation whatsoever, and a myriad
of scienti¬cally more sophisticated matters are likewise wholly uncontro-
versial among all the people who are competent to understand them. Even
in regard to the contentious questions at the edges of the natural sciences,
there is often very widespread agreement (among people with relevant
expertise) on the appropriate methods for coming up with ¬rm answers
to those questions. In the domains of enquiry that are the precincts of
the natural sciences, in short, the strong existential mind-independence
of the phenomena is accompanied by a very high degree of epistemic
objectivity.
On the other hand, we should not leap to the conclusion that epis-
temic objectivity presupposes strong existential mind-independence. As
Dimensions of Objectivity 49


was argued earlier, the existential mind-independence of the general man-
dates and other general norms of a legal system is only weak rather than
strong. Those mandates and other legal norms are operative as such in any
particular legal regime only because the regime™s of¬cials share certain
beliefs and attitudes that impel them to treat the aforementioned norms
as authoritative. Yet, although the existential mind-independence of gen-
eral laws is only weak, those laws and the system which they compose
are characterized by a high degree of epistemic objectivity. Under any
functional legal regime, the jural consequences of people™s conduct will
be clear-cut in a vast range of circumstances. In fact, those consequences
most of the time go unmentioned precisely because they are so obvious
to everyone who is competent to discuss them. Only in a small propor-
tion of circumstances do signi¬cant disagreements arise (among people
with relevant expertise) over the legal implications of various instances
of conduct. Admittedly, there is not frequently very widespread agree-
ment on the appropriate methods for resolving disagreements among
experts when they do occur. Disagreements among jurists on problem-
atic points of law quite often prove to be intractable. In that respect,
the epistemic objectivity of law may be more tenuous than the epistemic
objectivity of mathematics and the natural sciences. Nonetheless, the
epistemic objectivity of law in most situations is robust. Convergence
(at least among experts) is typical, and serious disaccord is exceptional.
Given as much, and given that the existential mind-independence of gen-
eral legal norms is weak rather than strong, the epistemic objectivity of
some phenomenon plainly does not per se presuppose the strong exis-
tential mind-independence of that phenomenon. Things dependent on
human minds for their occurrence or continued existence can be things
on whose bearings there is generally a consensus. Indeed, as was suggested
in Section 1.2.1 , our epistemic access to such things may in quite a few
contexts be singularly reliable. Accordingly, there should be a very high
degree of epistemic objectivity in those contexts.
Let us now brie¬‚y turn to the lack of any entailment between strong
existential mind-independence and transindividual discernibility. Some
of the questions investigated by the discipline of cosmology “ a branch
of science dealing with the origin and dynamics of the universe as a
whole “ well exemplify that lack of entailment. Although the answers
to some cosmological questions are now widely agreed upon (among
50 Objectivity and the Rule of Law


experts), and although the answers to many of the remaining questions
are pursued with great mathematical rigor, cosmologists are far from
approaching a consensus on what the answers to those remaining ques-
tions are. They have devised multiple sophisticated models, each of which
generates answers that are largely inconsistent with those generated by
the other models. Some of the models have attracted more adherents than
others, but there is not at present anything close to unanimity on any of
them; nor is there anything close to unanimity on appropriate methods
for adjudicating among them. Across many questions of cosmology, then,
the epistemic objectivity of the discipline is currently quite low. All the
same, the existential mind-independence of the facts and occurrences
to which the moot questions of cosmology pertain is paradigmatically
strong rather than weak. Those unresolved questions of cosmology there-
fore strikingly illustrate a general point. When expert enquirers plumb
phenomena whose occurrence or continued existence is completely inde-
pendent of the enquirers™ minds and everyone else™s mind, there are no
guarantees against the emergence of intractable disagreements among
them. The experts will undoubtedly converge with one another in many
of their judgments, but persistent divergences are abidingly possible and
sometimes actual.
We should next contemplate the relationship of nonentailment bet-
ween determinate correctness and transindividual discernibility. Mutatis
mutandis, the preceding paragraph has made clear that the existence of
uniquely correct answers to various questions does not entail the existence
of a consensus (even among experts) on what those answers are. After all,
to each of the unsettled questions of cosmology there is a uniquely correct
answer “ even if we might never know what the answer in each case is.
Given that there is currently nothing close to unanimity (even among
experts) on what the uniquely correct answer to each of those unsettled
questions is, we can infer quite readily that determinate correctness does
not entail epistemic objectivity. However, this point is applicable not only
to phenomena whose existential mind-independence is strong, but also to
phenomena (such as legal norms) whose existential mind-independence
is merely weak. We have seen as much in this chapter™s earlier discussion
of the distinction between determinacy and demonstrability.
Determinately correct answers to legal questions in multitudinous
easy cases are very widely agreed upon, but dif¬cult cases in appellate
Dimensions of Objectivity 51


courts are typically much more controversial. Still, especially within a
legal system where the of¬cials have incorporated the correct principles
of morality into the law to ¬ll in where the ordinary sources of law run
out, there will be determinately correct answers to the questions in some
dif¬cult cases. Suppose for example that such a legal system exists in a
society in which racial relations are at a stage similar to that reached in the
United States by the early 1950s. Suppose that the system™s highest court
must decide whether racial segregation in public schools is consistent
with constitutional provisions requiring equal protection of the laws.
Given the speci¬ed state of racial relations in the imagined society, the
legal question of the constitutionality of segregated public schools will be
intensely controversial (as it was when the U.S. Supreme Court arrived at a
unanimous but circumspect decision on the matter in 1954). Legal experts
will disagree with one another, and numerous lines of reasoning will be
advanced on each side of the question. Some of the arguments af¬rming
the constitutionality of segregation in public schools may evince racial
prejudice, but many of them will focus quite reasonably on factors such
as the proper role of courts in a liberal-democratic society. Nevertheless,
despite the vigorous disaccord among experts on the issue, there is a
uniquely correct answer to the legal question whether the sustainment
of racial segregation in public schools is consistent with constitutional
provisions requiring equal protection of the laws. Notwithstanding the
genuineness of some countervailing considerations, the uniquely correct
answer to that question is negative. For the court addressing the question,
then, only a decision that disallows the segregation is appropriate. To say
as much, however, is hardly to say that that decision will be commended by
all or nearly all legal experts at the time when it is rendered. Determinate
correctness does not entail transindividual discernibility.
Let us ¬nally turn to the absence of any entailment between transin-
dividual discernibility and determinate correctness. That absence of any
entailment sometimes manifests itself across a whole body of ostensible
knowledge. Suppose that the wise men and magicians of ancient Egypt
fully concurred with one another about the most effective incantations
and ceremonies for various occasions. They all agreed, we may assume,
that a spell or ritual of such and such a type would propitiate the gods
in such and such a context, and that a spell or ritual of some other type
would propitiate the gods in some other context. Their wisdom consisted
52 Objectivity and the Rule of Law


in a host of answers to a host of questions about the optimal means of
currying favor with the gods. In fact, however, there was no determi-
nately correct answer to any of those questions “ except an “answer” that
would brand each question itself as utterly misconceived because of the
wildly false assumptions underlying it. Whenever the Egyptians posed
one of their questions, such as an inquiry whether the gods would look
more favorably upon the sacri¬ce of a goat at a funeral than upon the
sacri¬ce of a sheep, every nondismissive reply was wrong and was there-
fore no worse and no better than every other nondismissive reply. There
was, in short, no determinately correct answer to any of the Egyptians™
questions; a wholesale rejection of each such question was the uniquely
correct response. Hence, although the Egyptian wise men and magicians
themselves converged with one another in their views of the gods™ wishes,
the epistemic objectivity of the topics covered by their body of putative
knowledge was not matched by the determinate correctness of any of
their claims. Those claims were baseless, in spite of the transindividual
discernibility of their apparent pertinence.
More often, the absence of any entailment between transindividual
discernibility and determinate correctness manifests itself not in relation
to a whole practice or a whole body of thought, but in relation to certain
theses that are advanced within some practice or some body of thought.
Consider, for instance, a legal system in which a question arises to which
there is not any determinately correct answer. (Perhaps the question is
whether a skateboard falls under the scope of a ban on any vehicles in a
public park. Or perhaps it is a loftier issue revolving around a constitu-
tional provision that guarantees equality or liberty or justice. We need not
concern ourselves here with the speci¬cs of the matter or of the case that
raises it.) Now, although there is not genuinely any determinately correct
answer to the question that has arisen, all or most of the legal of¬cials and
other legal experts who address the problem may incline toward one view.
To be sure, insofar as the legal of¬cials™ decisions on the matter carry prece-
dential force, their shared view will henceforth constitute the uniquely
correct answer to the legal question that has been posed. Their shared view
will become the binding law on that question. At the time when the of¬-
cials articulate that view authoritatively, however, there is (ex hypothesi)
not yet any determinately correct position. The transindividual discerni-
bility of a certain position does not entail its determinate correctness.
Dimensions of Objectivity 53


Although I have here emphasized that transindividual discernibility
is separable from strong existential mind-independence and from deter-
minate correctness, I obviously do not mean to suggest that those types of
objectivity will invariably or typically diverge. They will frequently coin-
cide. What these remarks have sought to highlight, rather, is simply the
persistent possibility that epistemic objectivity will not coincide in this or
that particular context with some major kinds of ontological objectivity.
Ontological objectivity pertains to how things actually are, whereas epis-
temic objectivity pertains to how things are collectively believed to be.
Thus, although there are solid reasons for expecting epistemic objectivity
and ontological objectivity to be frequently concurrent in many domains
of enquiry “ reasons centered on the evolutionary pressures that have
formed human minds to be similar to one another and to be generally
responsive to the actualities of the world “ there is never a guarantee
of such concurrence. There always abides the potential for incongruity
between how things actually are and how things are collectively believed
to be.


1.2.5. Objectivity qua Impartiality

Another epistemic variety of objectivity is impartiality,12 which consists
of disinterestedness and open-mindedness, and which can also be des-
ignated as “detachedness” or “impersonality.” It is to be contrasted with
bias and partisanship, but also with impetuousness and whimsicalness
(though sometimes not with genuine randomness). In legal contexts, this
dimension of objectivity can apply to the stage at which laws are created
and to the stage at which they are administered. Like some other aspects of
objectivity, it is a scalar property rather than an all-or-nothing property;
it is realized to varying degrees.

1.2.5.1. Impartiality Distinguished from Neutrality

This chapter has already distinguished between uniform applicability and
neutrality. A broadly similar distinction is advisable here between impar-
tiality and neutrality. Admittedly, as some commentators have observed

12 For a good recent discussion of impartiality in legal contexts, see Lucy 2005. See also Marmor
2001 , 147“52.
54 Objectivity and the Rule of Law


(Lucy 2005, 13), “impartiality” and “neutrality” are quite often used inter-
changeably in ordinary discourse. Each of those terms can denote the
detachedness of someone whose decisions are not in¬‚ected by any pecu-
liar predilections or by any direct personal stake in the matters to which
the decisions pertain. All the same, the two terms are differentiated in
ordinary discourse as readily as they are assimilated. Whereas “impar-
tiality” ordinarily denotes a property that relates to the conditions under
which decisions are made, “neutrality” frequently denotes a property that
relates to the consequences of decisions. The latter property, as has been
indicated in my earlier discussion of it, consists in the retention of the
existing distribution of bene¬ts and burdens among the people in a soci-
ety. No law and no process of law-enforcement can ever be neutral in all
respects, but every law or process of law-enforcement is neutral in some
respects (though its lack of neutrality in other respects may be far more
conspicuous and important).
Impartiality is different. Usually, when somebody asks whether the
workings of a legal system are impartial, she is not inquiring about their
effects. Instead, she is inquiring about the processes through which the
decisions of legal of¬cials are reached and implemented. A rigorously
impartial decision can be strikingly nonneutral.


1.2.5.2. Disinterestedness

Impartiality is, obviously, a lack of partiality. Among the things essential
to it is either the absence of any perceived personal stake in one™s decision
or an ability to let one™s decision be unaffected by one™s awareness that one
has a stake therein. Somebody usually has a personal stake in a decision
if he himself or a close relative or friend stands to bene¬t signi¬cantly
in the event that the decision goes in some direction(s) rather than in
some contrary direction(s). To be sure, such a stake is not present if
a person has a close relative or friend on each side of the issue under
consideration. For example, when a parent has to decide which of her
two children should be allowed to play with a certain toy, her impartiality
is not undermined by the fact that she has two close relatives who will
each stand to bene¬t signi¬cantly if her decision goes in one direction
rather than the other. Precisely because the personal stake of each of
those relatives is offset by that of the other, the parent™s impartiality is
Dimensions of Objectivity 55


unimpaired. When there is not an even balance of this sort on each side
of an issue, however, a decision-maker™s impartiality is tarnished by her
knowing that the fortunes of a close relative or friend will be signi¬cantly
affected by the upshot of her deliberations.
Impartiality is strongest when there is no personal stake on the part of
anyone who renders a judgment on some matter. However, especially in
connection with the creation of laws but even sometimes in connection
with the administration of them, the avoidance of a personal stake for
each decision-maker is not altogether possible. Consider, for example,
the legislators who have to vote on a bill that will affect the distribution
of the burdens of taxation among people with differing levels of income.
If the proposed bill will be quite sweeping in its effects, then every leg-
islator will to some degree have a personal stake in the outcome of the
vote. Much the same can be said about judges and administrators who
have to interpret central provisions of the bill or who have to arrive at
other determinations that will signi¬cantly bear on the distribution of
the burdens of taxation. If the absence of any personal stakes in these
legislative and judicial and administrative decisions were prerequisite to
the impartiality of the processes through which the decisions are reached,
then those processes could not be impartial. Every legislator or judge or
administrator will have a personal stake in the aforementioned decisions
(and in a number of other determinations that will have to be rendered
in the course of the ful¬llment of legislative or judicial or administrative
responsibilities). We should not conclude, however, that impartiality con-
cerning these matters is impossible. In regard to any decision for which the
avoidance of a direct personal stake on the part of the decision-maker(s)
is not feasible “ because every legal of¬cial will have such a stake “ each
of¬cial involved should strive for impartiality by seeking to prescind from
his personal prospects as he arrives at the decision in question. There are
no grounds for thinking that people are incapable of mentally stepping
back from their personal fortunes in order to assume a disinterested per-
spective on matters with which they have to deal. Efforts to step back
may fail in particular instances, but they are not inevitably doomed to
failure.
Nevertheless, although impartiality is possible even in circumstances
in which the personal interests of a decision-maker will be substantially
affected by a decision that has to be made, it is obviously less likely in
56 Objectivity and the Rule of Law


such circumstances. An endeavor by a decision-maker to prescind from
his personal prospects may fail in either of two respects: he might remain
prejudiced in favor of his own interests, despite his sincere attempt to
ascend to a disinterested stance; or, more subtly, he might overcompensate
for his personal stake in the matter by showing more sympathy for the

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