[lit-ideas] Re: Grice and Foot on the foundations of morality
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Sun, 10 Oct 2010 15:31:48 +0100 (BST)
--- On Sun, 10/10/10, Phil Enns <phil.enns@xxxxxxxxx> wrote:
> However, it seems to me a mistake to claim that the moral
> wrongness of
> slavery has nothing to do some other feature of human
> beings. Let me
> use the analogy of laws to tease out the mistake.
This analogy seems to me highly problematic for reasons indicated below:-
> In a liberal democracy, what makes an act a crime, that is
> legally
> prohibited, are laws passed by representatives of the
> citizens.
Well, this theory of democracy as "representation" is problematic in too many
ways to explore here but many are suggested in P's "The Open Society and Its
Enemies" [_TOSE&IE_ or _OS_ for short] which some commentators, like Bryan
Magee, claim contains the best defence of democracy ever written. Popper does
not defend democracy as a form of vox populi or some essentialist notion that
the machinations of the political process are in some way an expression of the
popular will. They may be 'in some way', or they may not:- what is key to
democracy is not that elected representatives express our collective will [they
rarely, if ever, do] but that we can get rid of them without violence. In other
words, Churchill was right that democracy is the worst form of government apart
from all the others we know of.
As to laws, it is hard to say that the old common law judges, unelected and of
a different class, were "representatives of the citizens" anymore than the
butcher, baker or candle-stick maker in their work; yet many fundamental laws
are the judges' common law invention:- in England, for example, murder is not
prohibited by any statute but is indicted as being 'against the common law' and
its evolving jurisprudence [as with 'malice aforethought' etc.] is a common law
invention made without public consultation.
Many other laws made through elected bodies do not command widespread
acceptance: taxes and poll-taxes, for example; or the abolition of the death
penalty; or the decriminalisation of homosexual acts; or the introduction of
laws against race or sex or disability discrimination or laws permitting
abortion up to a certain time in pregnancy. Even a law as seemingly
uncontroversial as a law against 'murder' would provoke controversy (indeed the
DPP here has suggested statutory reform recently and stirred up a controversy)
once the specifics of the law were looked at [e.g. the 'year and a day rule'
which means, for example, that a victim of GBH whose life support is switched
off after that period cannot in law have been murdered though if they had died
before that period they would have been murdered].
We may have some level of general satisfaction with many laws in their
'generality' [e.g. we agree we need a system of taxation] - but this is a
million miles away from saying we would approve of most or even any laws in all
their specifics [e.g. we think aspects of the taxation system unfair and
wasteful]:- we would not approve, but then we don't take these specific
decisions or give 'consent-through-consultation' to them. Insofar as the law is
thought to be representative of what we want, the link is much more indirect,
fallible and frequently non-existent than a theory of 'law' or 'democracy' qua
'representation' might suggest.
> Because the laws come from a representative body, the laws
> are
> understood as the universalization of a general will.
They are not "the universalization of a general will", whatever that might be;
even if some assert that they be understood this way, this assertion - for
reasons indicated - is so problematic it may be dismissed as false.
Of course, this assertion comes from an ancient and essentialist theory of why
the exercise of power is justified, but it has no essential connection with
democracy. Anyone who knows fascist/communist/totalitarian theory will know it
is typically opposed to 'democracy' as understood in the West but uses its own
idea of democracy - one in which both Hitler and Stalin no doubt could theorise
that whatever they ordered was "the universalization of a general will", one
they embodied and expressed [consider the theory behind the 'Fuerhrerprinzip'].
> The lawfulness
> of these laws comes from the fact that all citizens could
> accept
> themselves as legislators and subjects of these laws.
This strikes me as a naive and misplaced an assertion: I don't accept that I
legislated for the law permitting abortion for example (being only newly-born
at the time) and as to my accepting I am a subject of these laws, well it's
beyond my choice - if I didn't "accept", I'd still be "subject" since my lack
of acceptance affords me no defence in law.
> However, that
> Canada has the laws it has, and the U.S. the laws it has,
> is a
> consequence of the experiences of Canadians and Americans,
> so that the
> laws of Canada are different from that of the U.S.
A better expression than "experiences" here might be "different political,
social and legal histories" etc.
> The Canadian
> experience of becoming a nation was different from that of
> the U.S.
> and so there are differences in Constitutions and
> laws.
Likewise, "experience" could be better replaced with "political, social and
legal history."
>The
> lawfulness of laws - that all citizens could accept
> themselves as
> legislators and subjects of these laws - in both Canada and
> the U.S.
> are necessarily identical. The legal systems and laws
> in Canada and
> the U.S. are necessarily different.
This, on analysis, breaks down into two fairly banal propositions:-
(1) where 'laws are lawful' (itself something of a tautology) this is
"necessarily identical" (in some sense) with other cases where 'laws are
lawful' [compare: where 'ice-cream is ice-creamy' this is "necessarily
identical" with other cases where 'ice-cream is ice-creamy', although of course
the flavours are not in each case "necessarily identical" but contingently the
same or different].
(2) Given their different histories, it is only to be expected that two
countries will not have legal systems that are "necessarily identical"; and we
might even say this expectation is so well-founded that we might even say the
two legal systems are (in some sense) "necessarily different".
(1) and (2) do not offer much insight; and (2) arguably goes too far in talking
of "necessarily different" - a country might copy wholesale the law of another
with a different political, social and legal history.
Of course, I accept that in actual history wholesale copying of this kind is
never done so as to create a complete identity between legal systems, since
even where two countries have formally identical legal systems [say, two
colonies governed by the laws of the same imperial state] there will be
differences in how the laws are likely interpreted and applied. And I also
agree that understanding how and why the law is as it is involves a historical
understanding. But this does not mean that deciding whether slavery is morally
right or wrong, or its actual rightness or wrongness, is something dependent on
historical understanding in the same way.
The existence of a law may be seen as a kind of 'empirical' or 'worldly' fact
in a way that the validity of a moral claim is not. The "analogy" confuses on
this crucial difference. This confusion is reflected, I think, in the
opaqueness of Phil's conclusion, where expressions like "belongs to
experience", "in some sense, dependent", "empirical features of human beings",
"necessity and contingency" hang in the air like smoke.
> Slavery
> belongs to experience and so any moral judgment regarding
> slavery will
> be, in some sense, dependent on the worldly and empirical
> features of
> human beings. The wrongness of slavery is, therefore,
> both a result
> of necessity and contingency.
Donal
Who really should get out more
London
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