Objectivity and the rule of law

Objectivity and the Rule of Law
While I have endeavored in this book to make an original contribution
to the debates surrounding the matters which I discuss, I have likewise
striven to provide an accessible overview of those matters. Though I have
not altogether eschewed the technical terminology of philosophy – since
that terminology is often crucial for the distillation of complex ideas
and for the avoidance of cumbersome prose – I have sought to explain
each technical termor phrase whenever it first appears (and occasionally
also thereafter). Similarly, although I have not dispensed with footnotes
completely, I have kept them to a minimum. The ideas presented in this
book are sometimes complicated, but I have done my best to articulate
them clearly for a wide audience.
As will become apparent in my opening chapter, objectivity is a multifaceted
phenomenon. In connection with law, and also in connection
with most other domains of human thought and activity, the notion
of objectivity gets invoked in quite a few distinct senses. Nonetheless,
despite the complex variegatedness of that notion, it partakes of a certain
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overarching unity. Specifically, each of the dimensions of objectivity is
defined in opposition to a corresponding dimension of subjectivity. Legal
objectivity, in its manifold aspects, is what marks the divide between the
rule of law and the rule of men.
Because of the constraints on the length of each volume in the Introductions
to Philosophy and Lawseries, I have had to forbear fromexploring
several important topics that would need to be pondered in any full
treatment of the objectivity of law. Among the matters left uninvestigated
is the fact that most legal systems involvemultiple tiers of decisionmaking;
the determinations reached by some officials are subordinate to
those reached by higher-ranking officials. That hierarchical structure of
adjudicative and administrative authority gives rise to some challenging
problems for any analysis that ascribes objectivity to the workings of a
legal system. Those problems have not been broachedwithin the confines
of the present volume, but I will be addressing them in some ofmy future
writings. (A few of those problems are addressed in the fourth chapter of
Kramer 2004a.)Two other important issues omitted fromthe scope of this
book are the fact that many transgressions of legal requirements go undetected
and the fact that the perpetrators of many detected transgressions
go unidentified and unapprehended. Had I had sufficient space, I would
have treated those issues – concerning the limits on the ability of legalgovernmental
officials to give effect to the mandates of their regime – in
the course ofmy opening chapter’s reflections on the discretion exercised
by officials in their responses to detected illegalities. (In Kramer 2001 ,
65–73, I have grappled with some of the theoretical difficulties posed by
the occurrence of undescried violations of legal requirements. Several of
those difficulties and a number of related problems are illuminatingly
discussed in Reiff 2005.)
Still, notwithstanding that the restrictions on the length of this book
have obliged me to pass over the topics just mentioned and some other
pertinent topics, the present volume provides a compendium of the main
elements of the two phenomena encapsulated in its title. It probes many,
though inevitably not all, of the intricacies in those elements. In so doing,