Matthew Kramer

“On The Moral Status of the Rule

of Law”
INDEX
• Introduction

• Reasons Rather than Probabilities

• Simmonds and the Rule of Law

A. Simmond’s First Major Retort: The First Strand

B. Simmond’s First Major Retort: The Second Strand

C. A Further Retort

• Conclusion
Introduction
 A system of governance operates through general norms,
and all or most of the norms partake of the following
properties –

They are promulgated to the people who are requires

to comply with them.
Fuller’s Eight
Desiderata
They are prospective rather than retrospective.

They are understandable rather than hopelessly

unintelligible.
 They do not contradict one another and do not impose
duties that conflict.

They do not impose requirements that cannot possibly

be fulfilled.
Fuller’s Eight
Desiderata
They persist over substantial periods of time,
instead of being changed with disorientating frequency.

They are generally given effect in accordance with their

terms, so that there is congruence between the norms as
formulated and the norms as implemented.
 Set of formal
Gives law
requirements for
distinctive form
law

Set of Derives from

procedures for method of social
law-making organization
Fuller’s
Eight
Desiderata
 Only Substantial
Fulfilment
Required

Degree
Never Perfectly
Determines
Satisfied
Morality

Fuller’s
Eight
Desiderata
The Kramer-Simmonds debate revolved around the desiderata and their moral desirability and

how an evil regime might use it to forward its own agenda.

 Evaluates
whether society No Inherent
can be said to Moral Value
have law

Substantial
Fulfillment
State of Affairs means
Matthew Reasonable
Degree
Kramer:
Rule of
Law

(Like Fuller, Kramer appreciates that unwavering adherence is not possible nor is it

desirable)
 Reasons Rather than
Probabilities
Primates in general but particularly humans, are masters of deception.
We use our minds and our behaviours and our actions continually to try
to trick people into believing what's not true.
- Sigmund Freud
1. • Purely Instrumental Value: means of pursuing an end.

2. • As serviceable for good as for evil.

• Officials may pretend to be governance in accordance

3. with the Rule of Law.

• Officials in a wicked regime could have sufficient

4. prudential reasons for complying with the rule of law in
pursuit of their iniquitous ends.
Question:

If the officials who operate a morally deplorable system of governance are motivated by purely

prudential considerations relating to the consolidation of their own power and the exploitation

of the citizenry, will they have solid reasons for abiding by rule-of-law requirements?
 Clear-cut
Direction

Advantages

Incentives
Coordinating
for
Officials
Obedience
Answer:

By engaging in extra-legal brutality, officials will have weakened citizens' punishment-centred

incentives for compliance with the law. In other words, he reasons that officials who adhere to

Fuller's eight criteria will have given their citizens greater reasons to comply with their laws.

Every legal regime has its own very selfish prudential reasons to comply with the rule of law to

extract maximum compliance from the populace.

“Whether the requirements imposed and the objectives pursued by officials are products of moral

concern or of exploitative selfishness, the officials can most effectively achieve their ends through

the operations of a legal system.”

 Shotgun
Example

Hypothetical Critic’s Argument:

Responses
It treats a possibility as if it were an established actuality.

Gambler
Example
The Shotgun Example

Question:

If someone were motivated by unalloyed prudential concerns, would there be strong reasons in

highly credible circumstances for him to fire a gun directly at somebody else?

Reasoning:

There will clearly be numerous credible contexts in which somebody driven solely by self-interested

considerations will have strong prudential reasons for shooting some other person, at least if there

is little or no chance of his undergoing sanctions for his homicidal conduct. Acting on it is another

question altogether involving putative facts of human psychology, which we are not concerned with.
Answer:

If we ignore the prospect of a person's being punished for committing such a misdeed—a prospect

that has no bearing on the moral character of the misdeed itself—the answer to this conditional

question is plainly "yes”.

“The tendency of an instance of homicide to further the selfish aims of an evil person who perpetrates it, is

immediately obvious, whereas the corresponding tendency of the rule of law to further the selfish aims of

nefarious officials who operate a legal regime is not nearly as evident on first glance.”
The Gambler Example

Question: If somebody prone to gambling were motivated exclusively by selfish promptings,

and if his chances of winning at cards were as high as he himself believes, would there be

strong reasons for him to follow his card-playing propensity?

Reasoning: If someone with a decent chance of faring well at cards is driven wholly by

prudential concerns, there will be many credible contexts in which he will have solid reasons

for gambling at the card table. To be sure, perhaps nobody ever actually acts on the basis of

those prudential reasons.

Answer:

The answer to the conditional question is “yes”. Anyone with good prospects of success will

still have solid prudential reasons for indulging in such betting.

Conclusion:

If the hypothetical critic were correct in taking exception to Kramer’s account of the rule of law,

then it would also be true that firing guns at people and gambling at cards, and countless

other dubious activities are intrinsically moral. He failed to distinguish adequately between two

sets of actual motivations.

A Question of Degree?

Question:

Is the difference between the moral status of wicked officials' cleaving to the rule of law and the

moral status of gun-shooting or card playing exploits is at most a matter of degree?

Answer:

Although a grimly exploitative regime will not be meticulously unwavering in its fulfilment of the

principles of legality, its officials will have solid prudential reasons for abiding by those

principles to quite a substantial degree. If they act in accordance with those reasons, then the

level of their compliance with rule-of-law requirements will be sufficient to endow their system

of governance with the character of a legal system.

 Two sets of actual motivations

Motivations for
Motivations for Governing in
Governing accordance with the
Rule of Law
When repressive officials driven to govern by non-prudential objectives have opted to

adhere to the rule of law, their actual motivations for doing so can very credibly reside in

the direction-providing, incentive-promoting and coordination-facilitating advantages of the

rule of law; advantages that would be just as noteworthy in the eyes of the officials if their

motivations for governing were instead entirely prudential.

They need not look upon the rule of law as per se expressive of their objectives or

indeed of any non-prudential aspirations. They might instead very credibly regard it as

valuable only instrumentally. In adopting such a view, they will be embracing the rule of

law on the basis of the same considerations that would militate in favour of their

embracing it even if their underlying concerns were utterly selfish.

An Example to Test Morality: Classroom Attendance
I need to reach class
before 8:35 am

Why?

My batch mates might get Kaushik Sir might not give

disturbed by the interruption me attendance if I’m late

Moral Immoral
Simmonds and the Rule of Law
 Simmond’s First Major Retort: The First Strand

• Simmonds conjures up a scenario in which some Taliban-like despots have

imposed a stifling religious orthodoxy on the society over which they exercise

power.

• He contends that a grimly repressive regime can hold sway on a large scale for

a long period without abiding by rule-of-law precepts to any significant extent.

Simmonds is arguing that the officials in the Taliban-like regime will not have

weighty prudential reasons for adhering to rule-of-law precepts assiduously.

Kramer’s First Response:

• Taliban-like rulers are driven by heinous non-prudential concerns of religious purity.

• Even such officials will have instrumental reasons for abiding by rule-of-law requirements

which might constitute their actual motivations for upholding the rule of law.

• If we concentrate on the direct reasons for governing through the rule of law, and if we

are careful to distinguish them from the ultimate motivations for governing, Kramer’s

critique of the moral status of the rule of law will work with Simmonds's example of the

Taliban-like despots.
Kramer’s Second Response:

• It is not clear in what sense the example's religious zealots have formed a governing regime. They

are not regulating most aspects of life in their society in any way, and they are not providing an

infrastructure that facilitates any basic governmental functions.

• Instead, they are much more like bandits who are endeavouring to enforce their will in one quite

narrow area of life while leaving everything else ungoverned.

• The fact that militants do not run a legal regime is due to their not running any regime at all. The

fact that they do not govern in accordance with the rule of law is due to their not governing.
Kramer’s Third Response:

• The fanatics' policy of unregulated brutality will lead people to know that the only way to be safe

is to avoid doing anything that might annoy the regime's supporters, or arouse their suspicion.

• In such a case, they might still cooperate with the fanatics out of fear, but they will no longer

be inclined to cooperate in an enthusiastic manner bred of sympathy.

• If an atheist who might refrain from giving expression to his views would not very much lower his

chances of being subjected to ferocious treatment, he may well wonder why he should refrain.
If the lone objective of the despots is to stanch the propagation of atheism, they are most apt

to succeed if their ruthless pursuit of that objective is channelled through the rule of law.
 Simmond’s First Major Retort: The Second Strand
• He contends that the religious fanatics will have no reasons to refrain from punishing people for

engaging in various atheistic practices or utterances that do not infringe the prohibitory norms.

• On the contrary, he contends, they will have strong reasons for disregarding the terms of such

norms by cracking down on any manifestations of atheism irrespective of whether the

manifestations violate those terms.

By ordering or permitting ad hoc official violence against the perpetrators of such obnoxious

activities, the regime would not only discourage the particular activities in question, but

would also discourage the expenditure of intellectual effort in dreaming up further innovative

forms of atheistic practice aimed at escaping the existing.

The reasons for an evil regime to not stick to ‘rule of law’ shall be

• They will have to make a lot of legislations.

• The regime will be ridiculed.

• The regime will appear to be worried about the dissenters.

• The frequent changes will be required in the law.

• The efforts taken by the regime would be ineffective.

The ‘rule of law’ is serviceable only to good regimes according to Simmonds.

The First Situation:

the citizens governed by a repressive regime are punished for violating the regime's promulgated

norms, but they also suffer on a very frequent but irregular basis, random acts of violence

perpetrated by officials of the regime.

The Second Situation:

the citizens are punished for violating the regime's promulgated norms, but, with equal frequency,

they are also punished for activities obnoxious to the ruling powers, although not prohibited in any

published and prospective.

Even if unregulated official violence is so widespread that citizens can all expect to be its victims

from time to time, it is difficult to see how this would undermine their motives for complying with

the rules.

“The fact that you will beat me if I break the rules gives me a good reason for complying with

them even if you frequently beat me at random: after all, the beating in consequence of breaking

the rules will be an additional beating that I could have avoided by compliance.”
1.

punishment-centred incentives for ∝ the probability of his being penalised

anybody's conformity with legal norms for nonconformity

punishment-centred incentives for

anybody's conformity with legal norms

∝ 1
______________________________
probability of his being penalised
despite his conformity
Evil Regime Good Regime
Ratio for chances of Ratio for chances of
getting punished getting punished

Obedience : Obedience :
Disobedience Disobedience

3:2 19:1

No Incentive for Incentive for

Adherence Adherence
The punishment based incentives in an evil regime are likely to be affected when the people in

evil regimes realize that they’re going to be punished anyway. So despite the compliance the

incentive to follow the law will go down.

The fall in the compliance to laws of the evil regime is not desired by them. Hence, the evil

regimes will stick to the ‘rule of law’ and prefer no extra judicial beatings.
 2.

Established Regularized Ascertainable Constitutes a

Patterns Operations Operations regime of law

Discernible by citizens At least after those Not prohibited in Penalties become

who acquaint themselves operations have any published and manifestations of

with the regime's punitive been running for prospective rule. implicit norms.

measures. some time.

Therefore, officials' acts of imposing the penalties would in effect be the means by which

those norms are promulgated. Therefore, even when punishing people for engaging in

ostensibly permissible activities, then, the regime would be operating in accordance

with the Fullerian purpose of subjecting human conduct to governance of the norms.
 A Further Retort
• Simmonds tells us to contemplate an imaginary society called "New Monia“ – A very small

and simple society in which the means of settling disputes are highly limited.

• Because of the absence of police forces and prisons, and because of the dense

multifacetedness of people's relationships with one another, the dominant manner of dealing

with disputes is to press the parties toward compromise and reconciliation.

• Each party will be expected to concede some ground on that specific point in order to

sustain and improve his overall ties with the other party.
Clear, published, prospective rules that are meticulously enforced by officials serve

liberty. No matter how narrowly the content of the rules may constrain one’s freedom, the

very fact that they are ascertainable rules, and are reliably enforced, is likely to give

him certain areas of entitlement within which he will be free from interference.

In the world of New Monian compromise, by contrast, one would never be wholly

free to behave in a manner that his fellows consider unacceptable or obnoxious.

In ‘rule of law’ the range of options with a citizen might be limited but those options are

determined by general rules. That makes citizens free from the arbitrary power of others.

They are governed by rules.

He pondered a scenario in which two neighbours annoy each other by using their respective

premises in irritating ways. Unable to reach a compromise, they wind up in court where each

sues the other. The court will seek to decide who is and is not acting within their rights.
Rules necessarily impose some limits on the powers of some officials and some limits on

duties of citizens, otherwise the system would fail to work. Hence, liberty is intrinsically

linked with idea of ‘rule of law’.

Leonard Michael
plants a erects a high
hideous fence
shrub

Michael, It blocks the

owner of an sunlight and
adjacent plot, shrub dies
is displeased

Michael files Leonard files

a suit a suit

Court rules in Court rules

Leonard’s in Leonard’s
favor favor
There are countless areas of damnum absque injuria within the law. Leonard is akin to other

people in being frequently doomed to failure if he seeks to avail himself of the protective force

of the law against somebody else's interference with his idiosyncratic pursuits. Simmonds

has exaggerated the connection between the rule of law and individual freedom.
The rule of law will typically be administered by an elaborate governmental apparatus,

which can monitor and regulate people's conduct with stifling efficiency. If officials use

that apparatus for the squelching of dissent and the exploitation of the citizenry, they may well

limit the freedom of most people to a greater degree than would be true in New Monia.
Conclusion
₡ Therefore, for Kramer there is no direct link between the Rule of Law and a morally good state of affairs.

₡ He also argues that there is no indirect link which bestows moral importance on the Rule of Law.

₡ He further argues that though the Rule of Law might be a necessary, though not a sufficient, condition

for good governance, it is also a necessary though not a sufficient condition for effective evil governance.

₡ Since conceptually it is no more linked with a good state of affairs than a bad one, Kramer thinks it makes

no sense to append any sort of morality to it.