The Third Theory of Legal Objectivity

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The Third Theory of Legal Objectivity1

Abstract. The question of the objectivity of law rotates around the determination of the status of the norms that constitute the major premise of the practical syllogism representing the formal scheme of the justification of judicial decisions. Those who deny the objectivity of law believe that the existence and meaning of legal norms depend on the opinion of judges and jurists considered individually. The different versions of the objectivity of law reject this sceptical conclusion. The strongest versions of objectivity accepted by the different doctrines of natural law presuppose metaphysical realism and rule out the idea that what seems correct to someone can determine what is effectively correct; the weakest versions, upheld by legal positivism, believe – at least in relation to the existence of legal social practice – that what seems correct to most members of a community determines what is effectively correct. Does a space exist between these two versions of objectivity? In this essay arguments are put forward in support of a negative answer.

Keywords. Legal objectivity; one right answer thesis; coherence; legal reasoning; conventionalism.

  1. Introductory remarks

The problem of the objectivity of law concerns the determination of the status of the norms that constitute the major premise, the normative premise, of the practical syllogism that represents the formal scheme of the justification of judicial decisions. The justification of judicial decisions implies the identification of a major normative premise (“if A, then B”) and of a minor factual premise consisting in taken as proven that a given individual was engaged in the behaviour A to which the norm indicated in the major premise links sanction B. For instance, if a legal norm establishes that motorists that exceed 50 km per hour in a built-up area must be punished with a fine of £50,000 (major premise) and if it has been proved that a person has exceeded the limit set (minor premise), then it follows that that person must pay a fine of £50,000 (conclusion).

The issue of the objectivity of law therefore revolves around the question of whether the existence and, above all, the meaning of the legal norms depends entirely on the opinion of judges and jurists considered individually (subjectivism), or whether it can be affirmed that, at least to some extent, the law is independent of the opinion of judges and jurists considered individually.

A “liberal” conception of law cannot give up the idea that legal norms are objective in some sense. Indeed, one thesis that characterizes liberal legal thought and the very idea of rule of law is the one according to which correct judicial decisions are the result of the subsumption of the specific case under a general and abstract norm promulgated by a democratically elected legislative organ. The judges are called on to decide judicial cases on the basis of reasons furnished by the legislative power. It also needs specifying that this thesis does not imply adhesion to any version of interpretative formalism: saying that legal norms circumscribe the discretion of judges does not mean one has to agree with the Enlightenment idea (taken up by legal positivism in the 19th century) that jurisdictional activity is mechanical activity.

The connection between rule of law and objectivity is already rendered explicit, for instance, by Neil MacCormick in Legal Reasoning and Legal Theory: “Judges present themselves as the impartial determiners of disputes between citizen and citizen, or of prosecutions by public authorities of citizens. They so present themselves at least because within the dominant political tradition that is what they are expected to be. They are appointed to do ‘justice according to law’, and the watchdogs of the public interest are continually alert to yap at their heels if they appear to do any other thing.2

In the most recent writings, this connection leads MacCormick to abandon the legal positivism expounded by Hart and the value-scepticism derived from Hume that were originally in the background of his theory of legal reasoning: “If the Rule of Law means a government of laws and not men, then it is impossible if the judicial infallibility thesis is true. For the governance of laws turns out to be just the governance of the people that do the legal deciding. On the alternative view, the idea of the Rule of Law will acquire a different sense. The idea will be that the persons who do the deciding are charged with upholding and implementing the law rather than making it by their opinions.”3

If norms do not impose any constraint on judges’ behaviour, then, as MacCormick puts it, the Rule of Law turns into the Rule of Men. Precisely this is the principal challenge that normative scepticism throws out to legal normativism: law is nothing but the manifestation of the discretionary and subjective choices of judges, and, therefore, all those theoretical reconstructions of the legal phenomenon that identify a limit to legal discretion in general and abstract norms would be nothing but falsifications of reality.

Here, however, I will not go into this debate in depth. My target is, rather, to analyze critically the conception of the objectivity of law worked out by Jules Coleman and Brian Leiter starting from a legal philosophy background clearly deriving from Hart. The study by Coleman and Leiter is interesting because it is one of the few attempts that contemporary legal positivism has made for the purpose of presenting a philosophically sophisticated conception of the objectivity of law, expressly presented as a confutation of the subjectivism defended by normative scepticism.

Coleman and Leiter reject both objectivity in a strong (or “Platonic”) sense, as accepted by the different natural law doctrines, which presupposes metaphysical realism and therefore rules out the possibility that what seems correct to someone can determine what is effectively correct, and minimal objectivity, according to which what seems correct to most members of a community determines what is effectively correct. They therefore defend a “modest” conception of objectivity –halfway between Platonic objectivity and minimal objectivity – according to which what is effectively correct is what seems such to those people who find themselves in the “ideal epistemic conditions.”

In the next sections I will show some structural limits connected to the conception of objectivity put forward by Coleman and Leiter. More precisely, the general goal is to show that modest objectivity does not succeed in getting over the alternative between objectivity in a strong (or Platonic) sense and objectivity in a weak sense (or conventionalism).

Lastly, I believe that the criticisms made in this essay of the conception of objectivity proposed by Coleman and Leiter identify certain difficulties that, at least to some extent, are shared by all attempts to trace out an intermediary pathway between a “metaphysical” conception of objectivity and a conventionalist conception.

2. Strong Objectivity and its Limits

Objectivity in a strong sense (“Platonism”) implies metaphysical realism.4 More precisely, this conception of objectivity is characterized by the two following theses: a) facts are independent of our epistemic access to them; b) it is possible to know these facts in an objective way.

The main objection that is made to objectivity in a strong sense consists of observing the difficulty of reconciling these two theses: if facts are independent of our epistemic access to them, how can we be certain that our cognitive practices are suited to knowing such facts? That is to say, in relationship to the objectivity of law: “… what reason is there for thinking that conventional adjudicatory practices involve reliable mechanisms for identifying legal facts?”5

The supporters of this conception of objectivity can follow two pathways in order to reply to this objection.

The first option substantially consists in foregoing thesis b) indicated above. In this way, legitimisation of the authority of law would exclusively depend on the existence of independent legal facts regardless of the concrete judges’ skill to identify them. In this way, objectivity and the one right answer thesis would be a sort of regulatory idea in a Kantian sense.6

This strategy is not particularly convincing: “The fact that there are right answers would count for very little if judges were invariably to come to the wrong conclusions about them. […] In order for coercion to be justified it must be employed to enforce answers that are generally correct, not just ones judges happen to reach.”7

In brief, we could call this perspective “metaphysical objectivism”: the fact that in the world there exist some objective norms and values does not imply that there are criteria making it possible to establish with certainty what these norms and values are and, accordingly, to settle the controversies. This form of objectivism, however, expresses a philosophical thesis which is of slight interest. As Jeremy Waldron observes, “...moral disagreement remains a continuing difficulty for realism, even if it doesn’t entail its falsity, so long as the realist fails to establish connections between the idea of objective truth and the existence of procedures for resolving disagreement.”8

The second strategy consists of defending the thesis that interpreters and judges effectively have access to the correct solutions to legal disputes. Upholding this thesis means identifying an epistemology of legal practice that is compatible with metaphysical realism on the subject of legal facts.

An attempt in this direction has for instance been made by Michael S. Moore.9 He defends a “coherentist” position about judicial justification: the justified beliefs in relation to what the law requires in a concrete case are those that show the greatest degree of consistency with one another and with the conception of law endorsed by judges.10

This perspective does not face up to the main difficulty; in short, it is not able to explain why the fact that the sum of beliefs of a judge are coherent with one another should be deemed a sufficient reason to think that law is objective in a metaphysical sense and, above all, to think that the decisions of judges mirror law as it effectively is. Evidently, assuming that the world is coherent in turn does not make it possible to overcome this difficulty. Why, in fact, should the coherence of our beliefs correspond to coherence of things in the world?

3. Conventionalism and its limits

According to minimal objectivity, it is the majority of the members of the reference group that determines what is effectively correct. Therefore it is a conventionalist version of objectivity, which is distinguished from Protagorean subjectivism (“man is the yardstick of all things”) only by the fact of shifting the “yardstick” from the single human being to the community in its entirety.

Unlike Platonic objectivity, minimal objectivity does not admit the possibility of comprehensive errors: if the truth or correctness of something depends on a conventional accord, then it is logically impossible for everyone to be wrong on the truth or correctness of something.11

This conception of objectivity is intimately linked to Hart’s practice theory of norms. In brief, Hart works out a theory of social rules whose aim is to distinguish social rules from mere habits and regulated behaviours from those that are merely regular. One of the principal criticisms that Hart makes of John Austin’s imperativism is precisely not having perceived the importance of this distinction and, as a result, having overlooked the concept of norm.

Social rules, unlike habits, in addition to regularity of convergent behaviours, also present an internal aspect: “what is necessary is a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong.’12

According to Hart, the rule of recognition, the rule of rules identifying the validity criterion of other legal norms, is a social rule. A rule of recognition exists when it is possible to identify a group of people that accepts this rule from the “internal point of view.” The latter does not necessarily imply moral acceptance of a legal system and its fundamental principles, but only a reflective critical attitude that is empirically verifiable. This empirical verification consists both in analysis of the linguistic expressions that go with legal obligations and in observation of the fact that officials, in particular judges, act in accordance with the secondary norms.

A further issue is specifying the group of people whose acceptance is relevant in relation to the existence of a rule of recognition and, consequently, of a legal system as a whole. On this point, Hart’s answer is very clear: “the assertion that a legal system exists is therefore a Janus-faced statement looking both towards obedience by ordinary citizens and to the acceptance by officials of secondary rules as critical common standards of official behaviour.”13

The practice theory of norms tells us that a rule of recognition exists when it is accepted (at least) by judges. This ontological thesis on law – that is to say, the thesis that the rule of recognition and, more in general, the law of a community coincides with the attitudes and convergent behaviours of the participants, and of judges in particular – has some implications at a methodological or meta-theoretical level: law is a fact that can be described in a non-evaluative way looking at the attitudes and convergent behaviours of the participants (neutrality thesis).

In general it can be observed that conventionalism seems incapable of accounting for that surplus of meaning that prevents us from identifying social practices with the convergent behaviours of participants: “…the practice and the scope of duties to which the practice give rise outruns the scope of convergent behaviour.”14 Nevertheless, when an attempt is made to explain what this “objectivity of practice” consists in or the surplus of meaning in relation to the convergent behaviours, there are such difficulties, and so many of them, as to induce one to “be satisfied” with an explanation of social practices in conventionalist terms. In a sense, a remarkable characteristic of conventionalism (or minimal objectivity) is that of appearing, at least at first sight, as the only reasonable reconstruction of some sectors of human experience and, at the same time, as an artificial way out.

In relation to the specific problem of the objectivity of law, it is possible to make two objections to conventionalism.

In the first place, the fact that the meaning of rules and legal principles is conventionally fixed, and therefore reflects the dominant legal culture, threatens the legitimacy of law as an arbitrator between conflicting interests and conceptions of good. In other words, what we consider objective legal facts would be nothing but the expression of the prejudices of judges who, in most cases, belong to the better-off social classes.

In truth, this objection to conventionalism does not appear insurmountable or even particularly sophisticated. Even a legal realist like Alf Ross, for instance, admits that judges are influenced, in the exercise of their profession, not so much (or, at least, not only) by belonging to a determined social class or, in general, by vested interests, as by awareness of their function, by the “cultural tradition.” As Ross puts it: “[the judge] looks on his activity as a task in the service of the community. He wishes to find a decision that shall not be the fortuitous result of mechanical manipulation of facts and paragraphs, but something which has purpose and meaning, something which is valid.”15

Secondly, the defenders of a minimal conception of objectivity are in trouble in cases of rational disagreement. According to conventionalism – one thinks precisely of Hart’s reflections on social rules – the obligation imposed by the rules is determined by the convergent behaviour of individuals. Consequently, in the absence of a convergent behaviour there is no duty. In most cases, the convergent behaviour under-determines what rule is effectively being followed (for instance: does one always have to stop when the traffic lights are red or, in an emergency, is it possible to go through nonetheless?). However, even in those cases in which there is disagreement with regard to what the law requires, one can still believe, and indeed believes, that the law effectively requires something. This evidently constitutes a problem for minimal objectivity, which affirms, as we have seen, that in the absence of convergent behaviour, there is no rule.16

However, this objection too can be countered, at least partially. Coleman himself, in a well-known essay, offers two possible answers.17

Firstly, Coleman, taking up some observations by David Lewis,18 clarifies that the obligations imposed by social rules or conventions may not to be identified by mere convergent behaviour but, rather, by the expectations induced by efforts to coordinate the behaviour. Consequently, “vested, warranted expectations may extend beyond the area of convergent practice, in which case the obligations to which a social rule gives rise might cover controversial, as well as uncontroversial, cases.”19

Secondly, he affirms that when controversies arise on the obligation imposed by a certain rule –Coleman refers particularly to Hart’s rule of recognition – it is not necessary to conclude, from a conventionalist perspective, that no obligation exists. In fact, there is (or can be) an obligation that arises from widespread acceptance of the practice of settling such controversies in a certain way, for instance resorting to principles of critical morality.

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