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dif¬culty, then the of¬cials are displaying the meagerness of their concern
to do justice to D.
The harms just enumerated will have occurred whether or not D is
aware of their occurrence. In many contexts, moreover, the people dis-
advantaged by of¬cials™ deviations from impartiality will possess at least
a general awareness of what has been done to them. They will sense, in
outline if not in detail, that they have been treated disdainfully. Thus, a
credible stance of impartiality adopted by legal-governmental of¬cials is
vital not only for the actual fairness and legitimacy of their proceedings
but also for the perceived fairness and legitimacy thereof. Admittedly,
the of¬cials™ strict adherence to impartiality in their judgments does
not guarantee that the people affected will accept that they have been
treated fairly. Even if we leave aside the possibility that the legal norms
applied by the judgments are themselves odious, we should recognize
that people who do not fare well at the hands of legal of¬cials will quite
often feel aggrieved irrespective of the actual reasonableness of the ways
in which their situations have been handled. Nonetheless, although the
actual impartiality of of¬cials™ law-ascertaining and law-applying endeav-
ors does not ensure that those endeavors will be perceived as impartial
and legitimate by citizens, it is the best means of cultivating such a per-
ception. In a liberal-democratic society, in which there is no totalitarian
conditioning of people™s thoughts, of¬cials will usually be most effective
in conveying an impression of impartiality if they and their proceedings
are in fact impartial. Insofar as such a state of affairs does obtain, justice
is done, and justice is seen to be done.
Whenever of¬cials stray from the ideal of impartiality, they dero-
gate from the objectivity of their legal system by overweeningly infusing
its operations with elements of their own outlooks. They skew those
operations as they let their decisions be shaped by their sel¬sh inter-
ests or their prejudices and predilections or their impulses and conjec-
tures. They thereby deviate from their responsibility to gauge the legal
Dimensions of Objectivity 67


consequences of people™s conduct by reference to the terms of the appli-
cable legal norms. They gauge those consequences instead by reference
to aspects of themselves. In so doing, they increase the likelihood of their
arriving at morally inappropriate outcomes, and they diminish the pro-
cedural fairness of their legal system™s workings. They evince disrespect
for the people who are subject to their rule, and they hazard the risk that
those people will develop a commensurate sense of disrespect for them.
Furthermore, as will become clearer in the next chapter, they impair the
very functionality of their legal system as a legal system. They thus impair
the realization of any values that can be secured by such a system.
Let us note, ¬nally, that some strands of this discussion of impartiality
bear upon the functions of legislators in a liberal democracy as much as on
the functions of judges and administrators. On the one hand, as has been
observed, the representative role of elected legislators is to some degree in
tension with any ¬rm expectation or strict requirement concerning the
absence of self-interested promptings for their decisions. Most legislators
will be sensitive to electoral pressures, and, when fundamental rights and
liberties are not at stake, their sensitivity is morally legitimate. On the
other hand, the representative role of legislators does not similarly war-
rant departures from impartiality in the direction of uninformedness or
bigotry. Arbitrariness arising from ignorance and prejudice is as objec-
tionable for legislators who are reaching decisions on matters of public
policy as for judges and administrators who are reaching decisions on
particular cases. Of course, because the legislators are addressing general
problems rather than concrete circumstances in which those problems
surface, their responsibility to apprise themselves of relevant facts is differ-
ent from that of judges and administrators. Legislators are focused on the
broad consequences that are likely to follow from various public-policy
choices “ consequences very often expressible in statistical formulations.
They are not focused more narrowly on the details of particular disputes
between speci¬able individuals. All the same, although legislators will not
normally be expected to train their attention on any of those narrowly
circumscribed details, they will be obligated and expected to acquaint
themselves with the general advantages and disadvantages of different
public-policy options. Their decisions on such options will be arbitrary
if they do not equip themselves with that general information (insofar
as it is reasonably available). To ascend to a posture of impartiality that
68 Objectivity and the Rule of Law


averts arbitrariness, legislators have to eschew guesswork. They should
strive to know what they are doing.
In so striving, the legislators will maximize the epistemic reliability
of their proceedings. That is, they will maximize the likelihood of their
arriving at the determinately correct answers to the questions which they
are addressing. Of course, unlike the problems addressed by judges and
administrators who are seeking to give effect to legal norms, the questions
confronting legislators are typically not legal questions. In other words,
those questions are not about the implications of already existent laws.
Rather, the legislators are addressing (or should be addressing) moral
issues concerning the virtues and drawbacks of laws which they propose
to bring into existence. Their chances of resolving those moral issues in
determinately correct ways will be slim indeed unless they approach their
task without prejudices and without recti¬able ignorance. The arbitrari-
ness introduced by such prejudices and ignorance would not only be
inimical to procedural fairness “ in that some people™s interests would
be discounted on the basis of bigotry or capricious speculation “ but
would also undermine the reliability of the legislators™ deliberations as a
means for coming up with correct answers to major questions of political
morality. Both from a perspective that concentrates on the legitimacy of
processes and from a perspective that concentrates on the correctness of
outcomes, we can grasp that impartiality is a regulative ideal for legislative
deliberations as well as for adjudicative and administrative deliberations.
Its requirements are not precisely the same for legislators as for adju-
dicators and administrators, but legislative responsibilities in a liberal
democracy cannot genuinely be ful¬lled without it.


1.2.6. Objectivity qua Truth-Aptitude

Having explored some ontological and epistemic conceptions of objec-
tivity, we now turn to the chief semantic conception. As was mentioned
near the outset of this chapter, semantic objectivity concerns the rela-
tionships between people™s assertions and the things about which those
assertions are propounded. Such objectivity, as expounded here, con-
sists in statements™ being endowed with truth-values (that is, values of
“true” or “false”). If meaningful declarative statements can be made
in a certain domain, and if many of those statements are each true or
Dimensions of Objectivity 69


false, then the domain is semantically objective to a greater or a lesser
extent. Contrariwise, if no meaningful declarative statements are assert-
ible in some domain, or if all such statements that can be asserted therein
are not possessed of any truth-values, then the domain lacks semantic
objectivity.
This account of semantic objectivity stands in need of some elucida-
tion before we can ponder it in connection with law. Why, speci¬cally,
does the account con¬ne itself to meaningful declarative statements?
Meaningfulness is attached as a condition in order to exclude nonsen-
sical utterances such as “Green ideas sleep furiously” or “The eyelashes
of the number seven become triangular more rarely than a nonexistent
baseball game.” Because such utterances are devoid of any intelligible
meaning, they are likewise devoid of truth-values. The possibility of such
utterances should not count against the semantic objectivity of a body of
discourse in which they might occur. Much the same can be said about
nondeclarative sentences. Such sentences, most notably imperatives (such
as “Shut the door”) and interrogatives (such as “On which day of the week
were you born?”) and interjections (such as “Hello” or “Good grief!”), do
not possess any truth-values. The evident possibility of the utterance of
such sentences in some domain of enquiry is hardly a factor that should
count against the semantic objectivity of that domain. If all or some of the
meaningful declarative statements in a body of discourse are evaluable
as true or false, then that discourse is semantically objective regardless of
how many questions might be asked and how many imperatives might
be issued within it.
In any domain of enquiry that is not arti¬cially restricted, some of the
meaningful declarative statements assertible within the domain will lack
determinate truth-values. For example, every paradoxical statement “
such as “The present statement is not true” “ will lack any coherent
truth-value, since the truth of any such statement entails its falsity, while
its falsity entails its truth. Some other examples of meaningful declarative
statements without determinate truth-values are statements involving
presuppositional failures, of which the most striking instances are state-
ments that involve radical reference failures. The assertion “There is at
present a King of France” is importantly different from the assertion “The
present King of France has run a one-mile race in under four minutes.”
Whereas the former assertion directly af¬rms the current existence of
70 Objectivity and the Rule of Law


a King of France, the latter assertion merely presupposes the current
existence of such a person. Consequently, the former statement is pos-
sessed of a determinate truth-value “ it is false “ whereas the latter state-
ment is not possessed of any such truth-value.
Of considerable interest to jurisprudential theorists is another class
of meaningful declarative statements without determinate truth-values:
a class comprising some statements that apply vague predicates (Endicott
2000). Here we return to a theme explored from a slightly different angle
near the end of Section 1.2.2. A vague predicate, such as “tall” or “short”
or “thin” or “bald” or “being a heap,” is not fully precise across the full
range of the phenomena to which it might be applied. Across that range
there is an unsettled region of borderline cases, an unsettled region whose
beginning and end are themselves only vaguely speci¬able. Within that
area of indeterminate application, we can neither correctly af¬rm nor
correctly deny that some entity partakes of the property denoted by the
vague predicate in question. For example, a certain man may be of such
a height that we can neither correctly af¬rm nor correctly deny that he
is tall. Likewise, an accumulation of grains of sand may be of such a size
that we can neither correctly af¬rm nor correctly deny that it is a heap.
(In each case, we might not know or even be capable of knowing that
we can neither correctly af¬rm nor correctly deny the relevant propo-
sition.) Juridical examples of this phenomenon are abundant. We have
indeed already encountered one such example, in my earlier discussion
of vagueness. Insofar as the legal predicate “reasonable” is vague in the
sense indicated, some possible instances of conduct are such that we can
neither correctly af¬rm nor correctly deny that they are reasonable. In
that event, a statement asserting or gainsaying the reasonableness of any
such borderline instance of conduct is not possessed of a determinate
truth-value.
Thus, when we seek to ascertain whether the statements advanced in
some discourse or practice are semantically objective, we need to keep in
mind that many statements are to be excluded from our investigation. We
are putting aside statements that are unintelligible or nondeclarative,14


14 The exclusion of nondeclarative utterances is especially important for an enquiry into the
semantic objectivity of legal discourse, since some general laws and many situation-speci¬c
legal directives are correctly construable as imperatives.
Dimensions of Objectivity 71


and we are likewise putting aside meaningful declarative statements that
lack determinate truth-values because of paradoxicalness or presupposi-
tional failures or vagueness. We are concentrating on the other meaning-
ful declarative statements (if any) that can be articulated in the discourse
or practice under examination. Can each of them be assigned a value of
truth or falsity? Anyone who aspires to answer this question with refer-
ence to any domain will plainly need to draw upon a conception of truth.
For jurisprudential purposes, and perhaps for any purposes, the best the-
ory of truth is what is often labeled as “minimalism.”15 That label covers
a number of cognate approaches to truth, but the variant favored here is
the so-called disquotational account. Under that account, the nature of
truth is given by the following equivalence schema:

The proposition “p” is true if and only if p.

Here “p” stands for any proposition, expressible through a meaningful
declarative statement. Thus, one of the countless potential instantiations
of the equivalence schema for truth is as follows:

The proposition “Abraham Lincoln was assassinated in 1865” is true if
and only if Abraham Lincoln was assassinated in 1865.

From the domain of legal propositions, potential instantiations of the
equivalence schema for truth are legion. Consider, for example, the
following:

The proposition “Murder is a legally forbidden mode of conduct
throughout the United States” is true if and only if murder is a legally
forbidden mode of conduct throughout the United States.

According to the disquotational theory, the nature of falsity is given by
the following equivalence schema:

The proposition “p” is false if and only if not-p.

Given the restrictions on the scope of my discussion, the expression
“not-p” can here be understood as “it is not the case that p.” Hence, one

15 The most prominent elaboration of the minimalist approach to truth is Horwich 1998, though
I disagree with Horwich™s sophisticated arguments on some important points. For an excellent
recent discussion of minimalism, see Holton 2000.
72 Objectivity and the Rule of Law


of the innumerable potential instantiations of the equivalence schema
for falsity is the following:
The proposition “Abraham Lincoln was assassinated in 1864” is false if
and only if it is not the case that Abraham Lincoln was assassinated in
1864.

This instantiation can equally well be formulated as follows:
The proposition “Abraham Lincoln was assassinated in 1864” is false if
and only if Abraham Lincoln was not assassinated in 1864.

From the domain of legal propositions, one of the multitudinous poten-
tial instantiations of the equivalence schema for falsity is the following:
The proposition “Whistling on public streets is a legally forbidden mode
of conduct in New Jersey” is false if and only if whistling on public streets
is not a legally forbidden mode of conduct in New Jersey.

Now, on one™s ¬rst encounter, the disquotational approach to truth
can seem so obvious and jejune as to be trivial. It can seem utterly uncon-
troversial simply because there might appear to be nothing about it that
is worth controverting. In fact, however, the approach brims with tech-
nical dif¬culties and has given rise to some protracted and illuminating
debates over its sustainability. Although the aims of its proponents are
indeed de¬‚ationary “ that is, although they rightly present its message as
“attractively demystifying” (Horwich 1998, 5) “ the disquotational the-
ory itself is hardly uncomplicated. It leads straightaway into deep waters
of philosophical logic and the philosophy of language. We cannot enter
into those technicalities here. Suf¬ce it to say that the disquotational
approach has been cogently defended by its ablest champions, and that
in any event I have dodged a lot of the arcane dif¬culties that surround
it. My circumvention of those dif¬culties is a happy consequence of the
restrictions deliberately imposed on this discussion. Some of the most
formidable and recondite problems confronting the minimalist theory
of truth concern its ability to handle the sorts of meaningful declara-
tive statements that have been put aside here: namely, paradoxical state-
ments, statements involving radical failures of reference, and statements
that apply vague predicates to borderline cases. We can skirt those prob-
lems by concentrating solely on other meaningful declarative statements.
(Two brief caveats are advisable here. First, my remarks on the absence
Dimensions of Objectivity 73


of determinate truth-values for some meaningful declarative statements
are not entirely uncontroversial. From Bertrand Russell onward, some
philosophers have presented analyses “ such as that in Horwich 1998,
78 “ which maintain that statements involving radical reference failures
are determinately false. Second, if I were to tackle the problems that are
being pretermitted here, my own defense of the minimalist account of
truth would differ on a few signi¬cant points from some of the most
prominent defenses that have been mounted by other philosophers.)
Under the minimalist account of truth, then, the semantic objectivity
of legal statements will hinge on the applicability of the disquotational
technique to them. For example, the statement “Murder is a legally for-
bidden mode of conduct throughout the United States” is true if and
only if murder is a legally forbidden mode of conduct throughout the
United States, and it is false if and only if murder is not a legally forbid-
den mode of conduct throughout the United States. Murder is in fact a
legally forbidden mode of conduct throughout the United States. We can
ascertain as much through a combination of empirical investigations and
elementary legal interpretation. Thus, the speci¬ed legal statement about
murder is true, and we can straightforwardly know that it is true. Con-
versely, the statement “Whistling on public streets is a legally forbidden
mode of conduct in New Jersey” is false because whistling is in fact not
a legally forbidden mode of conduct in New Jersey. Once again, we can
ascertain as much through a combination of empirical investigations and
elementary legal construction. Hence, the statement about whistling has
a determinate truth-value, and we can straightforwardly know what that
truth-value is. Countless other legal statements will likewise be possessed
of determinate truth-values, though in many cases the requisite methods
for ascertaining those truth-values will be much more complicated than
the methods for ascertaining the truth-values of the statements singled
out here. In short, we can conclude that “ subject to the restrictions
within which this discussion of semantic objectivity is unfolding “ legal
discourse is semantically objective.


1.2.6.1. Correspondence Theories of Truth Deflated

Correspondence theories of truth, which maintain that statements are
true if and only if they correspond to the reality of the world, are usually
74 Objectivity and the Rule of Law


put forward as rivals to minimalist theories. However, the minimalist
account is perfectly consistent with a de¬‚ationary version of the corre-
spondence account. Whether a correspondence theory can be sustained
in a noncircular form in application to any domain (such as the realm
of scienti¬c investigation) is not something on which we need to dwell.
What is clear is that a de¬‚ationary rendering of the theory is apposite
in application to the domain of legal discourse. Such a rendering, in
application to that domain, can be presented as two theses:
(1) A statement articulating the legal consequences of a pattern of conduct
is true if and only if its content follows from the legal standards “
expressed in statutes, constitutional provisions, judicial doctrines and
practices, contracts, administrative regulations, and the like “ that are
actually operative and applicable to such conduct within the relevant
jurisdiction.
(2) A statement af¬rming the existence of some legal standard is true if
and only if the conditions that would underlie or constitute such a
standard are actual.
As was to be expected, these two theses do not make any easier the task
of discerning whether any particular legal statement is true. To judge
the truth or falsity of a statement that recounts the legal consequences
of a pattern of conduct, we shall have to ¬nd out what the operative
and applicable legal standards are, and we shall have to engage in any
legal interpretation and legal reasoning that may be necessary to pin
down the implications of those standards for the conduct in question.
To judge the truth or falsity of a statement that af¬rms the existence
of some legal standard in a jurisdiction, we shall have to ¬nd out what
the conditions are for the existence of a standard of that sort, and we
shall have to ascertain whether those conditions are satis¬ed. In other
words, if we let “S” stand for a legal statement, the processes required
for verifying or discon¬rming “The statement ˜S™ is true” are the same
as those required for verifying or discon¬rming “S” itself. For example,
the processes required for verifying or discon¬rming “The statement
˜Murder is forbidden in New Jersey™ is true” are exactly the same as
those required for verifying or discon¬rming “Murder is forbidden in
New Jersey.” Quite predictably, the epistemic upshot associated with the
de¬‚ationary version of the correspondence theory of truth is the same as
that associated with the disquotational version of the minimalist theory.
Dimensions of Objectivity 75


Each theory highlights the indistinguishability of pondering whether “S”
is true and pondering whether S.


1.2.6.2. Does Anyone Doubt the Semantic Objectivity
of Legal Discourse?

Faced with the foregoing vindication of the semantic objectivity of legal
discourse, some readers may wonder whether such a vindication has really
been necessary. How could anyone doubt that meaningful declarative
statements within legal discourse are endowed with determinate truth-
values? In fact, what has been doubted by some of the zanily extreme Legal
Realists “ especially by some of the early thinkers in the Scandinavian
school of Legal Realism16 “ is the occurrence of any genuinely meaning-
ful declarative statements within legal discourse. Theorists adopting this
extreme position have contended that we need to look beyond the super¬-
cial grammar of legal statements in order to descry their real substance and
functions. We are told that, although those statements may appear to be
meaningful and declarative, they are in fact interjections (akin to “Ouch!”
and “Boo!” and “Hurray!” and “Oh no!” and “Wow!”). Their function is
to express or elicit emotions rather than to convey truths. All legal man-
dates and other legal norms are themselves construed by these theorists as
interjections or as sheer imperatives (akin to “Stay off the grass!”), whose
function is to induce attitudes of submissiveness; such theorists leave
no room for any legal mandates or other legal norms that are correctly
construable as declarative prescriptions. Now, as has already been noted,
interjections and stark imperatives are devoid of truth-values. Utterances
such as “Boo!” and “Sit down!” are never either true or false. Accordingly,
if the most zealous Scandinavian Realists™ analyses of all legal norms and
legal statements were correct, then juridical discourse would completely
lack semantic objectivity. A vindication of that objectivity has therefore
not been a pointlessly super¬‚uous enterprise “ though, admittedly, Scan-
dinavian Legal Realism has been out of favor for quite some time.
What led the most fervent Scandinavian Legal Realists astray was a
faulty assumption to which the best antidote is the minimalist account of
truth. According to that assumption, any nontautological and non-self-
contradictory statement to which a truth-value can be assigned is about
16 For some introductory-level discussions of Scandinavian Legal Realism, see Harris 1997,

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