<< . .

( 26)

. . >>

103“08; Freeman 2001 , 855“72.
76 Objectivity and the Rule of Law

some entity or event whose existence or occurrence (if any) is in the
world explored by the natural sciences. If something is such that it could
not ever exist as a component of the natural world of matter and energy,
then any statement about it is not genuinely meaningful and declarative.
Such a statement, if it is performing any role at all, must be performing
something other than an informational role. In sum, what underlies the
extreme Realist approach is a crude version of the correspondence theory
of truth coupled with a severely naturalistic ontology (that is, the doctrine
that the only entities which do or can exist are those in the physical world
investigated by the natural sciences).
A proponent of the minimalist approach to truth will forswear the
assumptions of the extreme Scandinavian Realists not by becoming
embroiled in metaphysical disputation with them, but by showing that
such disputation is utterly beside the point. Minimalism does not involve
either an endorsement or a repudiation of the metaphysical theses derided
by the Scandinavian Realists. Instead, it reveals that those theses never
have to be broached in a perfectly satisfactory vindication of the semantic
objectivity of legal discourse. It reveals as much because it indicates that
the questions to be answered about the truth or falsity of a legal state-
ment within any particular society are juristic and moral and empirical
rather than metaphysical. By collapsing the distinction between discov-
ering whether some legal statement “S” is true and discovering whether
S, the minimalist approach (along with the de¬‚ationary version of the
correspondence theory of truth) makes clear that assignments of truth-
values to legal statements do not depend on metaphysical buttressing.
Assignments of those values require juristic expertise and moral perspi-
cacity and empirical knowledge rather than philosophical acumen. Two Caveats

This discussion should close with two cautionary observations. First,
although I have looked askance at the Scandinavian Legal Realists™ sug-
gestions that legal statements are nothing more than vehicles for the
expression or evocation of emotions, no one should deny that legal state-
ments frequently do play expressive or evocative roles. Furthermore, some
formulations of general legal mandates and many formulations of indi-
vidualized legal directives are correctly construable as imperatives. My
point has certainly not been to discount those expressive and evocative
Dimensions of Objectivity 77

and imperative functions. I have sought, instead, to emphasize that one™s
recognition of those functions should be conjoined with one™s ¬rm aware-
ness that the central role of meaningful declarative statements about
the law in this or that jurisdiction is to articulate beliefs about facts.
Although that central role is very often in the service of a justi¬catory
purpose on the part of legal of¬cials who wish to present the grounds for
their actions or decisions, it is indeed a fact-reporting role. Meaningful
declarative statements about the law are not other than what they appear
to be; they are meaningful declarative statements in their substance as
well as in their grammatical form. (Note that, when I attribute to legal
statements the role of articulating beliefs about facts, I am not intro-
ducing some new mysterious type of entity known as “facts.” Facts, like
truth, are understood here along minimalist lines. If and only if unpro-
voked assaults are a legally forbidden mode of conduct in New Jersey, it
is a fact that unprovoked assaults are a legally forbidden mode of con-
duct in New Jersey. Note also that, in my present discussion, facts are
not understood as being in contrast with norms. The beliefs articulated
and facts reported by legal statements are typically normative in their
Second, some readers may worry that this subsection™s minimalist
vindication of the semantic objectivity of juridical discourse will have
opened the ¬‚oodgates to other discourses that are far less reputable.
After all, when the minimalist account of truth is brought to bear on
juridical discourse, a key element of its message is that evaluations of
legal statements as true or false are to be determined by reference to the
legal standards that prevail in a particular jurisdiction. Should not the
same be said, then, about the statements in myriad other discourses?
Should not the same be said, for example, about Scientology and Cre-
ationism and Druidism and Maoism and Nazism? That is, when people
hoodwink themselves and others with such creeds, are they somehow
entitled to insist that the standards which they formulate and sustain in
their preposterous discourses are determinative of the truth or falsity of
the sundry claims advanced in those discourses?
Such a complaint seriously misunderstands the point of this discus-
sion, not least by overlooking the fact that semantic objectivity is only
a single type of objectivity. On the one hand, let us suppose that many
of the utterances that occur in Scientological and Creationist and Maoist
and Druidistic activities are meaningful declarative statements. Let us
78 Objectivity and the Rule of Law

suppose further that some of those statements are not marred by inco-
herent paradoxicalness or vagueness-induced indeterminacy or presup-
positional failures such as radical reference failures. If so, then the dis-
courses respectively associated with those activities are each semantically
objective to a greater or a lesser extent. Each such discourse includes
statements to which truth-values can be correctly assigned. On the other
hand, our ascription of semantic objectivity to each of those discourses
is perfectly compatible with “ and indeed presupposed by “ the view
that every one or virtually every one of the aforementioned statements
to which truth-values can be assigned is false. We cannot consistently
denounce the central theses of Scientology and of the other pernicious
creeds as false unless we assume that they are semantically objective. The Internal Standards Doctrine

Once we properly keep in mind the distinctions between semantic objec-
tivity and other dimensions of objectivity such as mind-independence
and determinate correctness, we can see that an imputation of semantic
objectivity to some discourse is hardly in itself a commendation. How-
ever, the complaint posited in the penultimate paragraph above is not
focused solely on such an imputation. Rather, it is focused primarily on
the notion that the truth-values of the statements uttered in some prac-
tice are to be ascribed on the basis of the practice™s own standards. That
notion about the ascribing of the truth-values can be designated here
as the “Internal Standards Doctrine.” Insofar as that doctrine is con-
strued as objectionable, it is at odds with much of what has been said in
this discussion; but it can more generously be reconstrued as a wholly
unobjectionable corollary of what has been said.
The gravamen of the posited complaint is that, according to my min-
imalist account of the semantic objectivity of legal discourse, the partic-
ipants in any particular practice are collectively infallible judges of the
truth or falsity of the assertions that are made in the practice. Any such
criticism of my arguments is doubly mistaken. The lesser of the two major
errors in the criticism should be apparent from my discussion of observa-
tional mind-independence in Section 1.2.1 . Although the procedural and
substantive standards in any regime of law are conventional, and although
their existential mind-independence as such standards is therefore only
Dimensions of Objectivity 79

weak, the observational mind-independence of their contents and impli-
cations is strong. Those standards are engendered and sustained by the
shared beliefs and attitudes of of¬cials, but the of¬cials™ second-order
beliefs about those ¬rst-order beliefs and attitudes are not guaranteed
to be correct on any given occasion. Admittedly, we do not have any
grounds for thinking that their second-order beliefs will be frequently
and markedly inaccurate; but we certainly do not have any grounds for
thinking that those beliefs will never be inaccurate. Legal of¬cials can col-
lectively misunderstand the bearings of the norms which they themselves
have collectively fashioned as legally binding standards. Such misappre-
hensions might have precedential force, and they might be ¬nal “ in
other words, they might not be appealable to any higher authority within
the legal system in which they occur “ but they are indeed misappre-
hensions. A parallel point applies, of course, to other institutions and
activities. The people centrally involved in carrying on any institution
or activity can collectively err when construing the norms that structure
it. Hence, even if my minimalist approach to semantic objectivity were
committed to the thesis that the truth-values of statements within any
practice are determined only by reference to the practice™s own criteria, no
additional problematic commitment would follow. That is, there would
be no additional commitment to the ridiculous thesis that the partici-
pants within any practice are individually or collectively infallible when
they assign truth-values to the statements which they have made as such
Even more important in the present context is another mistake that
undermines the complaint hypothesized above. That complaint, centered
on the Internal Standards Doctrine, grossly underestimates the diversity
of the criteria for correctness that are operative in any complex practice
such as a system of law. Within the workings of any legal regime, many
of the authoritative utterances of of¬cials concern empirical matters. In
order to attach legal consequences to people™s conduct, adjudicators and
administrators have to apprise themselves of the nature of the conduct
(including its main causes and effects). In so doing, they will have to
make numerous empirical judgments that will get expressed in many
of their of¬cial statements. Some of their empirical ¬ndings will relate
to simple details of events and transactions, whereas others will relate to
more complex matters such as causal in¬‚uences that are inferred through
80 Objectivity and the Rule of Law

statistical analyses. In connection with all such ¬ndings, the truth-values
of the statements that express them are determined by the facts of the
world “ and, where applicable, by the laws of mathematics and statistics.
Legal of¬cials who engage in these empirical enquiries are subject to the
same requirements of accuracy and adequacy to which anyone in the
natural and social sciences is subject. (They are subject to those require-
ments as well, of course, when they engage in the partly empirical task of
ascertaining what the laws in their jurisdiction are.) If of¬cials blunder
in their empirical ¬ndings, and if their missteps vitiate their applications
of legal norms to the situations with which they are dealing, the verdicts
which express those applications are rendered false by the of¬cials™ unwit-
ting distortions of empirically discernible facts. Those applications are
misapplications, even though the of¬cials™ interpretations of the relevant
legal norms themselves may well be impeccable.
Each of the motley schools of charlatanry mentioned earlier is like-
wise subject to requirements of empirical accuracy and adequacy, for
each of them encompasses a throng of empirical assertions. For exam-
ple, when Nazis make claims about human biology, the truth-values of
those claims are determined by the actualities of human genetics and
anatomy and physiology rather than by the Nazis™ anserine beliefs about
those actualities. Likewise, when Creationists articulate the cosmologi-
cal tenets of their creed, the truth-values of those tenets are determined
by the actualities of the physical world rather than by anything internal
to Creationism. On the myriad occasions when Creationists or Nazis or
Maoists or other mountebanks resort to empirical assertions, the truth
or falsity of each such assertion is to be gauged by reference to the same
basic considerations that govern one™s appraisal of the truth or falsity of
any empirical assertion by an ordinary scientist. Assessed against such
a yardstick, the ludicrous theses of the aforementioned moutebanks do
not fare well.
Not only do the of¬cials in any legal system utter innumerable empir-
ical claims; in most legal systems, the of¬cials also frequently utter moral
claims. Such utterances are especially salient in any legal regime in which
the of¬cials have incorporated the correct principles of morality into the
law for dif¬cult cases. So incorporated, those principles are some of the
legally binding (as well as morally binding) standards by recourse to
which the of¬cials attach legal consequences to people™s conduct. When
Dimensions of Objectivity 81

the of¬cials in such a regime of law invoke and apply moral princi-
ples, their moral assertions are subject to exactly the same criteria for
truth and falsity that are applicable to moral assertions generally. The
fact that the of¬cials™ moral judgments are also legal judgments is some-
thing that does not alter one whit the standards of moral correctness by
which the truth-values of those judgments are determined. Moreover,
even in a legal system in which the of¬cials have not incorporated the
correct principles of morality into the law for hard cases, they will usu-
ally be inclined to engage in many moral pronouncements. They will,
for example, usually be inclined to characterize crimes deploringly not
only as legally impermissible but also as morally unacceptable. Though
such pronouncements about the moral obligatoriness of the law do not
amount to invocations of the legal bases for adjudicative and administra-
tive decisions, they are far from merely incidental to those decisions. They
are rightly classi¬able as juridical statements. Yet their truth-values, like
those of juridical statements wherein of¬cials do invoke moral precepts
as the bases for their decisions in dif¬cult cases, are determined by the
correct principles of morality rather than by the shared beliefs of the of¬-
cials. Given that this point is so easily recognized within my account of the
semantic objectivity of legal discourse, any suggestion that that account
has somehow attributed infallibility to legal of¬cials is utterly without
Moral claims, albeit often hideously misguided moral claims, are cen-
tral to each of the outlandish creeds that have been mentioned above.
Nazis and Maoists, for instance, espouse repulsive moral-political doc-
trines that have led them to call for the slaughter of millions of human
beings. Creationists and Scientologists and Druidists are far less blood-
thirsty and vile, but they too give voice to medleys of moral injunctions
for their followers and for humanity generally. The truth-values of their
moral prescriptions, like the truth-values of the rebarbative moral pre-
scriptions advanced by Nazis and Maoists, depend solely on the confor-
mity or nonconformity of those prescriptions with what morality actually
enjoins. In no way are the truth-values dependent on the criteria for cor-
rectness that are endorsed by the advocates of those benighted credos.
In sum, an ascription of semantic objectivity to some discourse is
scarcely in itself a tribute to the discourse™s intellectual solidity. Such
objectivity may be a necessary condition, but is hardly a suf¬cient
82 Objectivity and the Rule of Law

condition, for the intellectual respectability of a ¬eld of enquiry. Although
a minimalist approach to legal statements can readily establish that a host
of such statements are endowed with truth-values, and although it reveals
that their being possessed of those truth-values does not presuppose the
existence of any abstruse entities, it does not per se show that the work-
ings of legal systems are objective in any more richly ambitious sense.
It does not per se enable us to distinguish between legal discourse and
Scientology (or Creationism or the other deranged schools of thought
that have here been touched upon). To draw such distinctions, we would
have to advert to some of the other dimensions of objectivity that have
been plumbed in this chapter.

1.2.7. Objectivity: Some Further Types?

We have heretofore examined six main types of objectivity: three onto-
logical, two epistemic, and one semantic. In the philosophical literature
on objectivity, further conceptions quite frequently surface. This chapter
will present each of those remaining conceptions only cursorily. In most
cases, the brevity of the exposition is due to the subsumability of the
additional facets of objectivity under the facets that have already been
expounded. We shall begin, however, with two aspects of objectivity that
are discussed only tersely because their relevance to the substance of law
is meager. Objectivity qua Rational Requisiteness

Within several traditions in moral philosophy, especially within the very
broad Kantian tradition, the objectivity of morality has often been under-
stood as the rational compellingness of moral requirements. That is, those
requirements are viewed as objective because they cannot be violated by
any moral agent except at the cost of outright irrationality. To transgress
a moral principle is to land oneself in a logical contradiction. Such a pat-
tern of behavior is not only wrong but also incoherent. Moral obligations,
then, are objective in much the same way as the Law of Noncontradiction;
compliance with them is indispensable for the sustainment of one™s prac-
tical rationality, just as compliance with the Law of Noncontradiction is
indispensable for the sustainment of one™s rationality generally.
Dimensions of Objectivity 83

I have argued elsewhere against this assimilation of the force of moral
duties to the rational compellingness of logic (Kramer 1999b, 174“99).
Breaches of such duties are moral failings rather than logical lapses (Hills
2004). To be sure, the commission of logical errors in moral discourse
is always possible. If someone maintains that the perpetration of unpro-
voked assaults is invariably forbidden, and if she simultaneously main-
tains that the perpetration of unprovoked assaults is permissible on
Tuesdays, then she is adopting two logically inconsistent positions.
Likewise, if she asserts that Joe is morally obligated to visit some sick
friends and morally at liberty not to visit them, then she is contradicting
herself. Instances of sheer irrationality of this sort in the moral domain
are certainly possible. However, they are far from common. Most con-
traventions of moral requirements do not involve such logical missteps;
and the efforts by some philosophers to disclose subtler logical missteps
in those contraventions have been quite unavailing.
Thus, although the conception of objectivity as rational compelling-
ness is not by any means to be dismissed “ in other words, although
it speci¬es “an intelligible and adequate sense of objectivity” (Williams
1985, 206) “ it is a conception that does not illuminate the nature of
morality. Morality is objective in many senses, but not in the sense that
everyone acting athwart its demands is guilty of a self-contradiction. In
the domain of law, the relevance of objectivity qua rational compelling-
ness is even more limited. The operations of legal systems are objective
in many senses, but not in the sense that everyone who misconstrues or
transgresses a legal mandate is displaying arrant irrationality. On the one
hand, logical errors can occur in the domain of law just as they can occur
in the domain of moral deliberation. People sometimes commit out-
right paralogisms while reasoning about the law, just as they sometimes
do while reasoning about nonlegal matters. On the other hand, most
misapplications or violations of legal norms do not involve such logical
lapses. When a jurist or layperson goes astray in his understanding of the
contents and implications of legal norms, or when he elects to disregard
those norms in order to behave unlawfully, he is not usually contradicting
himself in some fashion; instead, he is exhibiting insuf¬cient sensitivity
to the balance of considerations on which his interpretation or decision
should hinge. A stumble of that sort is hardly a failure to respect the basic
laws of logic. Hence, when we ask whether the workings of a legal system
84 Objectivity and the Rule of Law

are objective, we are not asking “ or should not be asking “ whether its
mandates are such that everyone who ¬‚outs or misapprehends them is
mired in incoherence. No legal system is objective in that respect.
Admittedly, the term “irrational” in everyday discourse is often used
quite expansively (as are the terms “illogical” and “insane” and “sense-
less,” for that matter). For example, people sometimes apply that epithet
to particularly horri¬c misdeeds or to egregiously silly misjudgments or
to dismayingly mulish bouts of obstinacy. Very seldom indeed, however, is
this pattern of usage intended to suggest that the people responsible for the
misdeeds or misjudgments or obstinacy have contradicted themselves.
Rather, the term “irrational” in application to heinous misdeeds is meant
to indicate that the unrestrained savagery which has impelled those mis-
deeds is far outside the range of motivations that can be comprehended
(in a minimally empathetic manner) by any decently civilized person. In
application to stupid misjudgments, the term is meant to indicate that
the level of obtuseness evidenced by those misjudgments is far greater
than would normally be expected from anyone who possesses even mod-
erate intelligence. And in application to somebody™s severe obstinacy, the
epithet “irrational” is meant to indicate that the degree of unyieldingness
displayed by the obdurate person is so extravagant or unwarranted as to be
detrimental to the person™s own interests. That epithet is likewise tellingly
wielded against ¬elds of enquiry “ such as astrology and sorcery “ that
have been discredited by modern science. In my present discussion, the
notion of irrationality is invoked more narrowly and precisely to refer to
instances of logical incoherence. When I contend here that breaches or
misconstruals of legal requirements are very seldom irrational, I am sim-
ply contending that they very rarely consist in commitments to logically
inconsistent theses. Whether they are typically irrational in some looser
sense is not a matter on which my present discussion takes any position.
Given the conception of irrationality on which my remarks here are
centered, any investigation of this aspect of objectivity stands to bene¬t
from a distinction between irrationality and unreasonableness.17 Whereas
irrationality resides in self-contradictoriness, unreasonableness resides

17 My distinction between irrationality and unreasonableness is quite different from a distinction
drawn in similar terms by Paske 1989. Closer to my distinction is the dichotomy between simple
rationality and basic reasonableness in Greenawalt 1992, 176“79, though the ¬rst couple of
pages of Greenawalt™s discussion are puzzling.
Dimensions of Objectivity 85

in moral or intellectual blameworthiness. If some action or judgment is
unreasonable, it falls below a threshold of moral extenuability or intellec-
tual credibility. A designation of “unreasonableness” in such a situation
is singularly appropriate because the person undertaking the action or
judgment is blind or indifferent to the preponderant reasons that mili-
tate in favor of a contrary course. Inadequate sensitivity to those reasons,
stemming either from one™s unawareness of them or from one™s depreci-
ation of them, is what marks one™s conduct or outlook as unreasonable.
What makes the distinction between irrationality and unreasonable-
ness noteworthy here is that, whereas very few transgressions of moral or
legal requirements are irrational, most transgressions of moral require-
ments and many transgressions of legal requirements are unreasonable
(to a greater or a lesser degree). When a person is under a moral duty
to perform some action X and is not under an equally stringent or more
stringent moral duty to eschew X, and when no extraordinarily weighty
prudential factor militates against his performing X, there is a conclu-
sive reason for him to perform it.18 A failure to perform X is therefore
unreasonable; such a failure betrays insuf¬cient sensitivity to the con-
siderations on the basis of which he should be conducting himself. Of
course, the severity of the unreasonableness will vary in proportion to
the weightiness of the duty and to the consequent gravity of the wrong
committed through the nonperformance of the obligatory action. Any
breach of a moral duty, however, is unreasonable to some degree unless
the duty has been offset by an equally important or more important
moral obligation or by an extraordinarily weighty prudential factor. In
regard to legal duties, the situation is more complicated but broadly sim-
ilar. Even in a liberal democracy, not every legal obligation gives rise to
moral reasons for compliance therewith (Kramer 1999a, 204“09, 254“
308). Hence, not every breach of a legal obligation is unreasonable at all.

<< . .

( 26)

. . >>

Copyright Design by: Sunlight webdesign