Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.

Objectivity in Law
Veronica Rodriguez-Blanco*
University of Birmingham

Abstract
In the first part of this paper, I discuss the different kinds of objectivity; general and legal objectiv-
ity more specifically. In the second part, I endeavour to explain the two main views that have
been advanced to answer four core questions on legal objectivity. The first is whether moral and
legal values are objective. Second, what is the nature of the relationship between legal and moral
values? The third is whether, due to the specific nature of law, we should consider a domainspeci-
fic conception of objectivity for legal values. The fourth concerns whether there is a correspon-
dence between legal values and legal facts. What is the explanation of the platitudes about the
nature of law such as that law is reasongiving, normative or authoritative in character? In other
words, do legal facts have a place in our ‘disenchanted’ or naturalistic (in the scientific sense)
understanding of the world. In the final section of this paper, I evaluate naturalism and nonnatur-
alism in law and consider the future of the debate and its relevance for understanding the connec-
tion between law, morality and legal normativity.

1. Introduction
Legal positivists, interpretivists and natural law theorists have recognized the importance
of the question of whether there is a kind of objectivity specific to law. An adequate
response to this question is envisaged as being a reasonable defence against the attacks of
critical legal theorists, feminist theorists and so on. These theorists argue that the language
of ‘objectivity’ disguises the uncertain and arbitrary nature of the legal decision-making
process and renders law vulnerable to manipulation and ideological imposition. But the
debate on objectivity in law did not begin as a defence to the critics’ position. Contem-
porary interest on the topic in legal philosophy began in the 1970s; it focused on the
more general question of whether there are ‘right’ answers in law. Questions about legal
objectivity were introduced to legal philosophy by Dworkin’s legal theory (Dworkin;
Taking Rights Seriously, ‘Truth and Objectivity: You’d Better Believe it’, Law’s Empire
and Justice in Robes). Important replies followed Dworkin’s initial publications (Mackie,
‘The Third Theory of Law’) and the debate has subsequently taken different directions
and attracted increasingly sophisticated claims and accounts.
In order to disentangle the complex issues that arise out of the different conflicting
theoretical positions and to establish a clear path that will enable us to understand the key
issues, four core questions are identified. The first is whether moral and legal values are
objective. Second, what is the nature of the relationship between legal and moral values?
The third is whether, due to the specific nature of law, we should consider a domain-
specific conception of objectivity for legal values. The fourth concerns whether there is a
correspondence between legal values and legal facts. What is the explanation of the plati-
tudes about the nature of law such as that law is reason giving, normative or authoritative
in character? In other words, do legal facts have a place in our ‘disenchanted’ or naturalis-
tic (in the scientific sense) understanding of the world.

ª 2010 The Author

Journal Compilation ª 2010 Blackwell Publishing Ltd
 Objectivity in Law 241

In the first part of this study, I discuss the different kinds of objectivity, general and
legal objectivity more specifically. In the second part, I endeavour to explain the two
main views that have been advanced to answer the four aforementioned questions. The
first is the non-naturalist view that asserts that there is a specific kind of objectivity for
law. The non-naturalist positions in legal philosophy should not be confused with the
non-naturalist view famously advocated by G.E. Moore and amply discussed in the meta-
ethical literature. Rather, non-naturalism in legal philosophy is defined in negative terms
as a position in which legal and moral facts are not continuous with scientific facts. Two
positions can be identified within the non-naturalist view. First, the ‘methodological’
non-naturalist position advanced by Gerald Postema argues that objectivity is a method
and that the task, therefore, is to articulate the most plausible method to ground legal
objectivity. Second, the ‘substantivist’ non-naturalist view advances the idea that the
objectivity of law can only be grounded in substantive legal and moral arguments. Arthur
Ripstein and Ronald Dworkin advocate this position. The second view is naturalism,
which argues that there is continuity between law and science. Two positions within nat-
uralism can be identified. First, naturalized jurisprudence advanced by Brian Leiter denies
that there are moral facts and aims to show that there are legal facts minimally construed.
Second, moral and legal realism is advocated by Michael Moore and David Brink. They
aim to show both that there are robust legal and moral facts, and that moral truths are
part of the truth conditions of legal judgements. In the final section of this study, I evalu-
ate naturalism and non-naturalism in law and consider the future of the debate and its rel-
evance for understanding the connection between law, morality and legal normativity.

2. Non-naturalism and objectivity in law

The non-naturalistic view, in general, recognizes the prescriptive or normative character
of legal and moral values. However, it rejects the idea that we can locate legal and moral
values in the physical1 world. It gives priority to our common sense appearances or
responses towards legal and moral values. What are these common sense responses and
why do not they fit into the physical world? According to this view, called the ‘irreduc-
ibility of the subjective’, the ‘practical’ or ‘internal’ standpoint or the first-person perspec-
tive of the agent or subject in considering legal and moral values is privileged over the
objective, external or third-person point of view. The irreducibility thesis has one core
corollary. Legal facts cannot be reduced to scientific facts or known through scientific
methodology. One option is to conceive of a method of inquiry different from scientific
methodology yet still ensures that our judgments in morality and law are free from our
desires, wants, dispositions, character, biases and prejudices. This is the approach of
‘methodological non-naturalism’. Alternatively, the criteria of legal objectivity could be
derived from substantive moral criteria (assuming that moral facts are also irreducible).
This is the second position within non-naturalism, called ‘substantive non-naturalism’.

2.1 METHODOLOGICAL NON-NATURALISM

According to the irreducibility thesis, this scientific model of causality cannot explain
appearances or responses that are typical of legal and moral judgements. The normativity
or prescriptivity of legal and moral claims must belong to a different domain from causally
explanatory physical facts. Rational intuitionism claims that this realm and its nonphysical
(nonscientific) properties are derived from a priori, nonempirical truths. Moral truths, like
logical truths, are self-evident (Finnis, Natural Law and Natural Rights). However, this

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
242 Objectivity in Law

solution is epistemically and metaphysically problematic as it raises the question of how

through mere reflection or through the simple act of reason, how on mere thinking about
it, one is able to identify properties or facts that are nonphysical and objective. The inter-
action of the physical with the nonphysical world becomes an intractable problem
(Dworkin, ‘Truth and Objectivity: You’d Better Believe It’; Mackie, Ethics: Inventing
Rights and Wrong). This metaphysics is therefore criticized in contemporary work (Stur-
geon, ‘Ethical intuitionism and ethical naturalism’) and famously come under attack in
Rawls’s Theory of Justice (Rawls, Theory of Justice). NeoKantian metaethics, following
Rawls (Scanlon, What we Owe To Each Other and Korsgaard, Creating the Kingdom of Ends
and Sources of Normativity), takes a different turn. It aims to show that the Kantian aspira-
tion of objective moral values can be validated without its metaphysics and advances a
constructivist approach in which there is a process or method that guarantees both the
normative and the objective character of values. In legal philosophy, this process has
inspired authors such as Postema, who has advanced the model of public practical reason
as the most adequate method to achieve the objectivity of law and morality (Postema;
‘Public Practical Reasoning: An Archeology’). Postema rejects the scientific and empirical
method as the paradigm of all kinds of objectivity and asserts that the nature of objectivity
depends on the specific domain (Postema 100, ‘Objectivity Fit for Law’). Postema also
rejects metaphysical or semantic projects of legal objectivity and asserts that metaphysical
objectivity is irrelevant to objectivity in the practical domain; i.e. law and morality. Thus,
the mistake of metaphysics, he tells us, lies in insisting that there is one single kind of
objectivity for all domains.
‘Why is objectivity important in the domain of morality and law?’ asks Postema. He
asserts that legal norms guide action and that through this guidance law is able to coordi-
nate our social interaction. But what does it mean to say that law guides our actions?
According to Postema, it means that law tells what we ought to do qua judges, qua citi-
zens or qua legal participants in general. The guiding role of the law can only be fulfilled
if it is free from contingency and arbitrariness; that is, if it is free from biases, prejudices,
desires and wants. For Postema, legal reasoning is a kind of public practical reasoning and
objectivity is the method of public practical reasoning that ensures that decisions and con-
clusions in law can be reached without biases, prejudices, character, dispositions, inclina-
tions, desires and so on (Postema 117, ‘Objectivity Fit for Law’). Consensus or
agreement based on public argument is at the centre of the notion of objectivity (Postema
120, ‘Objectivity Fit for Law’). Thus, consensus is the regulatory ideal in legal objectivity
(Postema 120, ‘Objectivity Fit for Law’).
Postema rejects radical domain specificity and advocates modest domain specificity. In
the former, ‘for every domain of discourse there is a conception of objectivity tailored to it and valid
for it’ (Postema 100, ‘Objectivity Fit for Law’). In the latter, the structuring features of
objectivity run across the different domains; however, it is still possible to have specific
conceptions of objectivity that depend on the specificity of the subject matter. Postema
identifies three common structuring features, independence, correctness and invariance. Inde-
pendence means that the subject matter transcends the subjectivity of the judging subject
(Postema 105, ‘Objectivity Fit for Law’). But this characterizing feature might not be
very helpful if we do not have a clear concept of subjectivity. Postema seems aware of
this difficulty and raises the following question: if we think about independence from
something, how shall we define or determine such independence? (Postema 106, ‘Objec-
tivity Fit for Law’). However, he does not provide a satisfactory answer. He suggests that
the answer needs to be determined by the nature of the domain and its subject matter. In
this way, he relativizes the concept of independence to a specific domain. Postema

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
 Objectivity in Law 243

believes that the answer concerning independence can neither be provided by the con-
cept of objectivity nor by any metaphysical presupposition. This is an uninformative
structuring feature. One could say, for example, that, in physics, we have independence
from our beliefs; in morality, we pursue independence from our desires and character;
and, in law, we try to pursue independence from our biases and prejudices. It seems,
consequently, that the general concept of independence has been watered down to spe-
cific domain independence and therefore the contrast between radical and modest domain
specificity has almost vanished. The second structuring feature is correctness, which
means that ‘there are standards by which the judgement can be assessed, that these standards are
not met merely by the fact that one believes or holds that they are, and that the judgement meets
them’ (Postema 107, ‘Objectivity Fit for Law’). Three corollaries, according to Postema,
follow from the feature of correctness: (i) the possibility of mistake; (ii) in the case of the-
oretical knowledge, i.e. science, conclusions are reached on the basis of evidence, whereas
in the evaluative or practical domain, i.e. law and morality, conclusions are reached on
the basis of reasons (Postema 107, ‘Objectivity Fit for Law’); and (iii) the possibility of
agreements and disagreements according to evidence or reasons, depending on whether
the domain is practical or theoretical. The structuring feature of correctness is different
for theoretical and practical domains. We should point out, however, that the standards
of correctness vary across the multiple domains and therefore this characteristic makes the
boundaries between radical and modest domain-specific objectivity more difficult to
demarcate. The third structuring feature, according to Postema, is invariance across judg-
ing subjects. Postema resorts to the idea of intersubjective invariance, but once again this
intersubjective invariance depends on the nature, tasks and modes of inquiry of particular
domains (Postema 109, ‘Objectivity Fit for Law’). In my view, modest domain specificity
collapses into radical domain specificity.

2.2 SUBSTANTIVE NON-NATURALISM

We now turn to examine the second view within non-naturalism in legal philosophy
which is advocated by Arthur Ripstein and Ronald Dworkin. This view might also be
called a ‘substantivist’ conception of legal objectivity. In ethics, Frankena’s 1970’s text ‘On
Defining Moral Judgments, Principles and Codes’ identified the shift from metaethics to
substantive moral arguments. However, a more robust formulation in law is found in
Dworkin and Ripstein. Ripstein, like Dworkin, rejects the idea that causal independence
is the key feature to determine objectivity in the evaluative domain. Ripstein asserts that
there is no ontological or metaphysical issue implicit in our inquiries into practical thought
(Ripstein ‘Questionable Objectivity’), and argues that objectivity in the evaluative realm
does not involve freedom from contingency. Therefore, it is not necessarily the case that
when we disagree, one of the parties is mistaken (Ripstein 364, ‘Questionable Objectiv-
ity’). In this way, he is rejecting the view that there are genuine disagreements in morality
and law and the notion that one party in a dispute has to be right and the other wrong.
He claims that objectivity in evaluative inquiries should focus on ‘endorsement indepen-
dence’. This means that there are standards of rationality and appropriateness of reasons
according to the specific circumstances, i.e. cultural and social. What makes a legal or
moral judgement objective is that it satisfies the appropriate reasons or standards indepen-
dently of the individual’s endorsement. However, Ripstein warns us: a concept of objec-
tivity cannot a priori identify the appropriate standards, only substantive moral and legal
arguments can establish these standards (Ripstein 363, ‘Questionable Objectivity’). For
example, Ripstein argues, a judge that sentences natives for longer periods than whites for

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
244 Objectivity in Law

the same crimes in the same circumstances has not chosen an appropriate moral standard.
The moral standard should be chosen by arguing substantively, e.g., on the basis of a prin-
ciple that persons should be treated equally. If the judge’s endorsement is the only ground
of a moral standard, then it lacks objectivity. Dworkin takes the same line of argument
and asserts that only substantive moral arguments can support other moral arguments.
Dworkin rejects the metaethical enterprise that relies on arguments that are external to
substantive first-order moral propositions. Metaethics aims to answer questions concerning
the status of first-order moral propositions. Questions such as what determines the truth
conditions of first-order moral propositions, whether there are moral facts and ⁄ or moral
properties in the universe and how we know them and so on, are part of the field of
metaethical reflection. He calls these endeavours ‘Archimedean views’ as they aim to either
reject the objectivity of morality (Dworkin 112–6, ‘Truth and Objectivity: You’d Better
Believe It’) or support the objectivity of morality by relying on metaphysical or philosoph-
ical arguments (Dworkin 101–12, ‘Truth and Objectivity: You’d Better Believe It’). He
argues that these metaphysical and philosophical further claims cannot, contrary to their
pretence, be neutral concerning substantive moral claims. For Dworkin, all these meta-
physical and further philosophical claims can either be translated into substantive moral
claims or be shown to be unintelligible. Like Ripstein, Dworkin believes that objectivity
in morality and law can only be found within substantive moral and legal claims. However,
unlike Ripstein, Dworkin advocates the idea that legal disagreements are genuine theoreti-
cal disagreements (Dworkin 3–15, Law’s Empire). Thus, for example, two parties might
have a dispute over whether a judge ought to compensate a victim of psychiatric injury. If
one party ‘A’ of the dispute denies that the claimant ought to be compensated and another
party ‘B’ believes that the victim ought to be compensated, for Dworkin, both parties can-
not be right. Either ‘A’ is wrong and ‘B’ is right or vice versa. In contrast, for Ripstein,
‘A’ and ‘B’ can both simultaneously be right or wrong. Dworkin faces some problems in
attempting to justify the idea of genuine theoretical disagreement by merely claiming that
substantive first-order arguments provide sufficient stability and a common subject matter
to ground such disagreement. For example, suppose we can substantively disagree over
whether one should be compensated for psychiatric injury only in cases where the conse-
quences are foreseeable. What would guarantee that this is not just a dispute over our
biased substantive views about ‘psychiatric injury’? How should we demarcate a ‘genuine’
disagreement from a disagreement over preconceptions or biases about the notion of ‘psy-
chiatric injury’. Is it not the case that Dworkin would need to presuppose some kind of
moral realism that would guarantee that such disagreements are genuine? (V. Rodriguez-
Blanco, ‘Genuine Disagreements: A Realist Reinterpretation of Dworkin’). Not surpris-
ingly, Ripstein takes another route by affirming that ‘A’ and ‘B’ can be both right or
wrong. Following his notion of objectivity as ‘independence endorsement’, ‘A’ can choose
an appropriate moral standard such as ‘it is fair to compensate all injuries suffered by a vic-
tim as long as they are reasonably foreseeable by the defendant’, whereas ‘B’ could choose
a different but still appropriate moral standard such as ‘there are different kinds and degrees
of injuries and it is fair that compensation for damages to the victim should reflect such
differences in kind and degrees of injury’. ‘B’ will conclude that ‘physical injury’ and ‘psy-
chiatric injury’ are not equal and therefore the victim of psychiatric injury should not be
compensated. In contrast, ‘A’ will conclude that the victim of psychiatric injury should be
compensated. For Ripstein, there is no ‘genuine’ disagreement and, in the example, both
‘A’ and ‘B’ are right. If we follow Ripstein’s views, it seems that the notion of objectivity
plays no role in enabling the identification of ‘error’ or ‘mistaken views’ in legal and moral
judgements. Considering that a core function of the notion of objectivity is to demarcate

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
 Objectivity in Law 245

correct judgements from mistaken judgements, Ripstein’s view is unsatisfactory as his

notion of objectivity cannot perform one of its core functions. On the other hand, it is
unclear how Dworkin’s deflationist and substantivist conception of objectivity can perform
the aforementioned core function without presupposing either moral realism or moral
cognitivism which will inevitably involve, contra Dworkin’s views, an engagement with
metaethical reflections.
At the outset of this study, we considered four core questions to be used to guide us
through the labyrinth of the different theoretical positions. The way non-naturalists
answer these questions will now become apparent. To the first question on whether
moral and legal values are objective, both methodological and substantivist non-naturalists
assert that we are able to grasp moral and legal values independently of our biases, preju-
dices, character, personal preferences, dispositions, desires and so on. According to Poste-
ma, this can be achieved through public rational deliberation whereas Dworkin and
Ripstein assert that we can do this within substantive moral argumentation. Responses to
the second question raise the issue of the relationship between moral and legal values.
Postema does not explicitly explain the relationship between moral and legal values and
neither does Ripstein. Nevertheless, we might conclude that, for Postema, the relation-
ship between legal and moral values is determined by practical rational deliberation. Simi-
larly, we conclude that, for Ripstein, this relationship is determined by substantive legal
and moral arguments. In contrast, Dworkin has explicitly advocated the view that the
connections between moral and legal values should be through his own interpretive the-
ory (Dworkin, Law’s Empire). To the third question of whether we should consider a
domain-specific conception of objectivity for legal values, both methodological and sub-
stantivist non-naturalists assert that the objectivity of law can only be conceived in terms
of its specific domain, as it follows trivially from the irreducibility thesis that they defend.
As to the fourth question on whether legal values correspond, at least in part, to legal
facts and properties and their possible place in the ‘disenchanted’ physical world, both
methodological and substantivist non-naturalists assert that there is no correspondence
between legal values and legal (natural) properties.
Two criticisms can be levelled against both versions of non-naturalism. First, the power
or resonance of the concept of objectivity has been minimized and moral and legal objec-
tivity have been reduced to either ‘method’ or ‘substantive’ argumentation. Non-natural-
ists have changed, somehow, the concept of objectivity. There are no common
structuring features of objectivity, or the structuring features are so ambiguous that one
could legitimately suspect that we are referring to different concepts. Second, theorists
such as Dworkin (Law’s Empire) and Rosatie (‘Some Puzzles About the Objectivity in
Law’) have appealed to the importance of explaining theoretical disagreements in law. To
the extent that non-naturalists aim to preserve appearances and the phenomenology of
our responses, Ripstein, Dworkin and Postema fail to account for our response concern-
ing genuine disagreements in law together with our critical claims concerning what the
law is. For example, suppose two judges disagree on what the law is or, assuming that
Plessy was never overturned, we claim that ‘The law is Plessy, but Plessy was wrongly
decided’. Neither methodological nor substantivist non-naturalists positions give an ade-
quate account of (1). The former changes the concept of objectivity, and the claims of
correctness and error become tailored to the specific domain. Therefore, (1) is trans-
formed into (1¢) ‘Plessy is law, but it was wrongly decided, according to our standards of
publicly constructed reason’ that is, according to the standards that we the majority have
agreed upon through a process of public practical deliberation. On this view, the ideal is
consensus rather than truth or objectivity. Substantivist non-naturalism transformed (1)

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
246 Objectivity in Law

into (1¢¢) ‘Plessy is law, but it was wrongly decided, according to our current moral sub-
stantive arguments’, i.e. according to our own current moral convictions as there is noth-
ing else to look into. Both alternatives seem unsatisfactory.

3. Naturalism and Legal Objectivity

The naturalistic view argues that there is continuity between scientific and evaluative
inquiries. Two different conceptions can be identified within the naturalistic view: moral
and legal realisms and naturalized jurisprudence.

3.1. NATURALIZED JURISPRUDENCE

Naturalized jurisprudence is advocated by Leiter (Naturalising Jurisprudence), who, contrary

to the conception of moral and legal realisms, rejects the idea that moral facts figure in
the ‘better’ explanation of the world (Leiter, Naturalising Jurisprudence). According to Leit-
er, two criteria provide the test of the ‘better’ explanation: consilience and simplicity.
Consilience is about how much a theory explains. Thus, if theory A explains more facts
than theory B, then A is more consilient than B. Simplicity is a theoretical virtue as long
as it does not cause any detriment to consilience. Consequently, theory A is better than
theory B if A explains more facts with greater or comparable simplicity than B. Leiter
toys with the idea that morality can be explained in terms of evolutionary biology or
Freudian psychoanalysis and that these theories provide a satisfactory balance of the crite-
ria for a ‘better’ explanation. He concludes, after rejecting claims of supervenience and
identity between moral and physical facts together with other attempts to vindicate the
place of moral facts in our ‘better’ explanations, that moral facts, and therefore natural
moral realism, should be rejected on explanatory grounds. However, Leiter argues that
there might be legal facts that are either modestly objective, which means that X is a legal
fact if under ideal conditions lawyers and judges takes it to be a legal fact, or minimally
objective, namely that X is a legal fact if the community of lawyers and judges take it to
be a legal fact (Leiter, Naturalising Jurisprudence). Leiter favours minimal objectivity as
strong and modest objectivity involve the idea that there are reasons provided by the law
that the participants do not know. The concept of law, Leiter tells us, is normative or
reason-giving, which means that we should be able to know the reasons given by the
law. This can only be warranted, however, if we advocate minimally objective legal facts
because ‘(1) communal consensus is constitutive of legal facts and (2) such consensus is necessarily
accessible to that community’ (Leiter 271, Naturalising Jurisprudence).
We might object that there is a tension between the idea that moral facts can be
explained away by evolutionary biology and Leiter’s proposal that there are minimally
objective legal facts. Why should legal facts not follow the fate of moral facts? Why
should we not apply scientific methodology all the way down and explain away legal
using sociobiological theories? At the beginning of his book Naturalised Jurisprudence, Leit-
er provides a caveat: ‘no responsible naturalised jurisprudence can eliminate the normative aspects
of law and legal systems’ (Leiter 4, Naturalising Jurisprudence) But the question that then
arises is how to understand normative facts (legal or moral) in a naturalistic world? Leiter
points out that his naturalism is methodological, but not ontological (p. 4) and that
because of pragmatic reasons we should be guided by science. ‘The real argument for
embracing a scientific epistemology, however, is not itself epistemic but pragmatic: such epistemology,
as noted earlier, has delivered the goods’ (Leiter 275, Naturalising Jurisprudence). He argues that
science has shown that ‘it works’, and therefore that science should be our paradigm for

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
 Objectivity in Law 247

understanding and explaining the world. He explicitly points out that there is no need to
postulate putative facts given that scientific methodology is an useful guide to the true
and the real already in hand. ‘The real question about any putative facts is whether they can
answer to our best-going criteria of the knowable and the real’ (Leiter 274, Naturalising Jurispru-
dence) If this is the case, then why not search for better scientific explanations of our legal
conventions and practices, considering that sociobiological or psychological scientific the-
ories, most likely, will more successfully satisfy the criteria of simplicity and consilience
than any conventionalist theory or minimalist theory of legal facts? Let us illustrate the
criticism with an example. In legal community ‘x’ all the legal participants accept the pri-
mary rule that victims of psychiatric injury should be compensated. This rule is grounded
on another rule, a secondary rule; i.e. a rule of recognition, which is part of the communal
consensus of the community. Following Leiter, this secondary rule will probably constitute
a minimally objective legal fact. However, following the scientific methodological view
advocated by Leiter, the naturalized methodologist could provide sociobiological or psy-
chological scientific theories that will explain the way in which a communal consensus
depends on the mental states of the participants. If the provided scientific theories are
sound, minimally objective legal facts will play no explanatory role as the work will be
performed by our scientific understanding of the mental states of the participants. How-
ever, Leiter seems to deny this second level of explanation by introducing minimally
objective legal facts and he is satisfied to stop the inquiry at the level of communal consensus
as constitutive of legal facts. Nor does he advance arguments that provide a justification
for stopping our inquiry at the level of such minimal legal facts.

3.2. MORAL AND LEGAL REALISM

The second position within naturalism is the moral and legal realism advanced by David
Brink and Michael Moore. For Brink and Moore, moral realism is the best explanation of
our moral inquiry and deliberation (Brink, Moral Realism and The Foundations of Ethics;
Moore, ‘Moral Reality Revisited’). They also defend a coherentist moral epistemology,
which is, in their view, the best epistemic explanation of our metaphysical or ontological
commitments. Brink aims also to defend moral realism from traditional philosophical
attacks – such as the idea that there is a gap between ‘is’ and ‘ought’. Brink challenges this
criticism and argues that moral facts are constituted by natural facts and that the isought
gap does not undermine moral realism as it is as problematic and controversial as the isis
gap. This defence strategy has been called ‘a companions in guilt’ strategy (Mackie, Ethics:
Inventing Right and Wrong). In other words, the idea is to establish parallels between moral
and theoretical facts, moral and epistemic facts, and argue that if problems arise for moral
facts, equal difficulties arise for theoretical or epistemic facts. Consequently, Brink tells us,
the objection that there is an isis gap and an isought gap is a challenge not only to moral
realism, but also to realism about physical, biological, social and natural properties (Brink,
Moral Realism and the Foundations of Ethics). Brink and Moore extend moral realism to law
and argue that the truth of legal judgements corresponds, in part, to the truth of moral
judgements, and that the truth of moral judgements is determined by moral facts. They also
defend a naturalist theory of interpretation (Brink, ‘Legal Theory, Legal Interpretation and
Judicial Review’ and Moore, ‘A Natural Law Theory of Interpretation’). Brink rejects the
view that the meaning of a word is the set of identifying properties or descriptions which
speakers associate with it. The main problem with this view, according to Brink, is that it
cannot explain genuine disagreements in law (Brink 113, ‘Legal Theory, Legal Interpreta-
tion and Judicial Review’). He argues for an alternative view, following Putnam (Mind,

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
248 Objectivity in Law

Language and Reality), and he defends the idea that our best available relevant theories will
provide us with our best access to the real nature of whatever our words refer to (Brink
118, ‘Legal Theory, Legal Interpretation and Judicial Review’). Therefore, objectivity in
law, according to moral and legal realism, is determined by the real nature of what our
legal and moral words refer to. Patterson has criticized this view (Patterson, ‘Realist
Semantics and Legal Theory’ and ‘What Was Realism? A reply to David Brink’) and asserts
that Brink’s use of the term ‘real’ might involve the idea of ‘the way the world is’. He pro-
vides a counterexample, which shows that the idea of ‘real’ does not make much sense in
understanding the nature of law and its interpretation because law is an institutional prac-
tice rather than a natural kind detectable by scientific investigation. Patterson’s counterex-
ample is as follows. Suppose that there is a statute written in 1945 that prohibits fishing
within 50 miles of a shore. Following Brink, it is an objective legal fact that, since whales
and dolphins are not fish, dolphins and whales are not protected under the statute. How-
ever, we know from the preamble of the statute that it was passed to prevent the extinc-
tion of all forms of fish, including whales and dolphins (Patterson 1989a, ‘Realist
Semantics and Legal Theory’). Patterson concludes that the application of Brink’s semantic
realism results in an absurd outcome.
We began our inquiry with four questions. To the first question of whether moral and
legal values are objective, both kinds of naturalism respond positively. To the second
question on the nature of the relationship between legal and moral values, naturalized
jurisprudence rejects the position that there are moral facts, but asserts that there are
‘minimally objective’ legal facts. Moral and legal realists assert that legal facts correspond,
at least in part, to moral facts. For moral and legal realists there is no domain-specific
conception of legal objectivity and hence they might find it difficult to explain satisfacto-
rily the conventional or social features of law. Leiter’s naturalized jurisprudence is able to
provide a more successful explanation of the social or conventional features of law since
he defends minimal objective legal facts, but it is difficult to envisage within Leiter’s natu-
ralized jurisprudence a satisfactory explanation of the critical claims of law; i.e., the rea-
son-giving, normative or authoritative character of law.
All of these different theoretical perspectives have enriched the landscape of legal
objectivity and have shown various possible paths to understanding legal objectivity. We
have now, certainly, a better understanding of legal objectivity than 40 years ago; how-
ever, further steps towards more comprehensive explanations are needed.

Acknowledgements
I am grateful to Natalie Stoljar for her detailed comments and suggestions on previous
drafts of this study. I also thank the members of the ‘legal theory seminar’ at the Univer-
sity of Girona, especially to Jordi Ferrer, Maribel Narvaez, Jose Juan Moreso and Lorena
Ramirez for their comments on previous drafts of this study.

Short Biography
Veronica Rodriguez-Blanco is a Senior Lecturer at the University of Birmingham, School
of law, UK. She studied law and philosophy in Oxford and Cambridge and has published
articles on legal objectivity, the methodology of legal philosophy and legal normativity in
leading journals in the field of jurisprudence. She is the author of Meta-ethics, Moral Objec-
tivity and Law.

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd
 Objectivity in Law 249

Notes
* Correspondence: School of Law, University of Birmingham, Edgbaston, Birmingham, B15 2TT, UK. Email:
V.Rodriguez-Blanco@bham.ac.uk.

1
I will use the term ‘physical’ as interchangeable with the term ‘natural’. The emphasis is on the possibility of
determining the empirical conditions of such facts.

Works Cited
Brink, D. ‘Legal Theory, Legal Interpretation and Judicial Review.’ Philosophy and Public Affairs 17 (1988): 105–48.
—— Moral Realism and the Foundations of Ethics. Cambridge: Cambridge University Press, 1989.
Dworkin, R. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1978.
—— Law’s Empire. Cambridge, MA: Harvard University Press, 1981.
—— ‘Truth and Objectivity: You’d Better Believe It.’ Philosophy and Public Affairs 25(2) (1996): 87–139.
—— Justice in Robes. Cambridge, MA: Harvard University Press, 2006.
Finnis, J. Natural Law and Natural Rights. Oxford: Clarendon Press, 1981.
Frankena, W. ‘On Defining Moral Judgments, Principles and Codes.’ Perspectives on Morality. Essays by William
Frankena. Notre Dame: Notre Dame University Press, 1976.
Korsgaard, C. Creating the Kingdom of Ends. Cambridge: Cambridge University Press, 1996a.
—— Sources of Normativity. Cambridge: Cambridge University Press, 1996b.
Leiter, B. Naturalising Jurisprudence. Oxford: Oxford University Press, 2007.
Mackie, J. L. Ethics: Inventing Right and Wrong. Harmondsworth: Penguin, 1977.
—— ‘The Third Theory of Law.’ Ronald Dworkin and Contemporary Jurisprudence. Ed. M. Cohen. London: Duck-
worth, 1983, pp. 161–170.
Moore, M. ‘A Natural Law Theory of Interpretation.’ Southern California Law Review 58 (1985): 277–398.
—— ‘Moral Reality Revisited.’ Michigan Law Review 90 (1992): 2424–533.
Patterson, D. ‘Realist Semantics and Legal Theory.’ Canadian Journal of Law and Jurisprudence 2 (1989a): 175–9.
—— ‘What was Realism: A Reply to David Brink?.’ Canadian Journal of Law and Jurisprudence 2 (1989b): 193–5.
Postema, G. ‘Public Practical Reasoning: An Archeology.’ Social Philosophy and Policy 12(1) (1995): 43–86.
—— ‘Objectivity Fit for Law.’ Objectivity in Law and Morals. Ed. B. Leiter. Cambridge: Cambridge University Press,
2001, pp. 99–143.
Putnam, H. Mind, Language and Reality. Cambridge: Cambridge University Press,1975.
Rawls, J. Theory of Justice. Cambridge, MA: Harvard University Press, 1971.
Ripstein, A. ‘Questionable Objectivity.’ Nous 27 (1993): 355–72.
Rodriguez-Blanco, V. ‘Genuine Disagreements: A Realist Reinterpretation of Dworkin.’ Oxford Journal of Legal
Studies, 21 (2001) No. 4, 649–71.
Rosatie, C. ‘Some Puzzles About the Objectivity in Law.’ Law and Philosophy 23 (2004): 273–323.
Scanlon, T. M. What We Owe to Each Other. Cambridge, MA: Harvard University Press, 1998.
Sturgeon, N. ‘Ethical Intuitionism and Ethical Naturalism.’ Ethical Intuitionism. Re-Evaluations. Ed. P. Stratton-Lake.
Oxford: Clarendon Press, 2002, 184–211.

ª 2010 The Author Philosophy Compass 5/3 (2010): 240–249, 10.1111/j.1747-9991.2010.00283.x

Journal Compilation ª 2010 Blackwell Publishing Ltd