Origins of the Free Will Problem

 

 

In its modern form the problem of free will is supposed to arise from the scientific discovery (or perhaps scientific presupposition) that determinism is true. It is a tenet of modern science (at least of the Newtonian kind) that every event in nature is the result of universal laws that allow of no exceptions, and this uniformity is supposed to rule out the existence of free acts. If so, the absence of free will is an empirical discovery, because it is an empirical discovery that determinism is true. If physics had turned out differently, we would not have had a reason to deny the existence of free will. In earlier times the threat to free will came from theology in the form of God’s omniscience: if God has complete foreknowledge, then he knows everything a human agent will do; but then there is no free will. Again, this reason to deny free will issues from considerations extrinsic to the concept of free will, in certain facts about God’s nature. If theology had been different, there would not have been a reason to deny free will. We can also imagine another sort of empirical argument for denying free will, viz. that the unconscious, as conceived by Freud, is seething with passions that compel us to act as we do, so that nothing we do is free from such internal coercion. According to this argument, we are forced to act as we do by an unconscious agency that intrudes on our conscious deliberations, robbing us of our freedom. We have the illusion that we are free, as we do under the scientific and theological arguments just mentioned, but in fact we are not—and this is a scientific discovery of psychoanalysis.

            Now I am not concerned here with whether these arguments are sound, or with whether their premises are true—universal determinism, divine foreknowledge, and the all-powerful unconscious. I mention them in order to distinguish them from another type of argument against the possibility of free will, namely that it is inherent in the concept of free will that we are not free. This is what might be called an intrinsic argument against free will, one that stems from the concept itself not from ancillary considerations of an empirical or factual nature. I think this is the more important argument philosophically, but again that is not my primary concern; I wish merely to distinguish the two sorts of argument, as well as to assess the cogency of the intrinsic argument. But first I want to articulate that argument so as to bring out its structure. I also want to note how extraordinary it would be if such an argument were successful.

            There are two components to the concept of free will as we have it, singly necessary and jointly sufficient. The first is that free actions are in some way responsive to desires and other psychological states: we act as we do because of our desires (etc.). There are many ways this responsiveness relation can be characterized but let me simply say that actions are determined by desires, where this does not imply the doctrine of determinism—given the desire (etc.) the action follows.  [1] This property is enshrined in the following proposition: if two individuals are exactly alike in their psychological states, they must act in the same way. An action is not free if it violates this principle, since then it would just be random in relation to desire—as when two psychologically identical individuals with a desire for ice cream act in the one case by buying an ice cream and in the other by tying their shoelaces (say as a result of a nervous spasm). This component of the concept captures the necessary condition that an act is free only if it is in accordance with the agent’s wishes. Thus we could say that the concept of freedom includes “desire-determination”. The second component is that a free action is one that has alternatives: the agent did a certain thing but he could have done otherwise. He had a genuine choice; his particular course of action was not forced on him. He did not act under duress, being given no alternative to what he did. I went to the movies but I could have stayed home and watched TV; no one made me go to the movies against my will. I wasn’t given an offer I couldn’t refuse, either by man or nature. This also is a necessary condition of freedom—that I had alternatives. Call this the “alternatives requirement”. Then we could plausibly claim that desire-determination and the alternatives requirement are individually necessary and jointly sufficient for free action.

            Now we know how the anti-freedom argument will go: these two components are said to be inconsistent with each other. The concept of freedom is contradictory because it combines an insistence on determination with an equally strong insistence that the agent could have acted otherwise. But if the act was determined (fixed, caused by, controlled by) a desire, then it did not admit of alternatives–contrary to the second component. Let us pause to take in how remarkable that conclusion is: we are familiar with philosophical arguments that purport to show that certain concepts harbor hidden contradictions (truth, vague concepts, the concept of a set), but it is another thing to contend that a familiar concept involves a direct contradiction in its very definition, as plain as the nose on your face. Somehow human beings have fashioned a concept that is manifestly contradictory, and yet they have failed to notice this fact. Such stupidity! Such insanity! I mean, what the…  The argument is telling us that our very conceptual scheme, not something arising from an extrinsic fact of physics or theology or psychology, contains a blatant, glaring, and embarrassing logical screw-up. It’s as if we had and used the concept of a “smountain”, where something is a smountain if and only if it is both a very large heap of rocks and also a very small heap of rocks. According to the standard argument, free actions (so-called) involve both determination and the absence of determination: but nothing could ever satisfy those contradictory conditions. Therefore the will is not free and no one ever acts freely.

            As I said, this is an extraordinary result: common sense is grievously contradictory. And on a very important matter too, since moral responsibility hinges on the possibility of free will—you would have thought we would be more careful about making our concepts coherent! We condemn people to severe punishment relying on a concept that is transparently contradictory. This is appalling: but it is good that philosophy exists to expose the conceptual bankruptcy of the whole thing. And the trouble does not stem, forgivably, from an empirical discovery that casts freedom into doubt, or from arcane theology, but from the very concepts we employ every day. This must surely be cause for human shame, wringing of hands, reparations, etc. Thousands of years of obvious conceptual confusion!

            Or perhaps the argument is wrong. Some have contended that one or the other component of the concept is dispensable: desires don’t in any way determine actions, or they do but there is no need for the existence of alternatives. Others have contended that both conditions are necessary but are really compatible upon deeper analysis. I am with these contenders, these reconcilers, but I won’t enter into a detailed defense of that position here. What I will do is offer some sketchy remarks about the notion of being able to act otherwise that I hope will ease the pressure to suppose inconsistency in the concept.

            The first thing to understand is that “I could have done otherwise” does not mean that it is metaphysically possible for two agents to be exactly alike psychologically and yet act differently, still less that they could be exactly alike physically and yet act differently. I have no such thoughts when I reflect that I have alternatives. If I survey my options for what I will do this afternoon—go to the movies, stay home and watch TV, practice my golf swing—I am not contemplating all the ways I can go against my desires and other psychological states; I am enumerating my desires and wondering which one is the most important to me today. I am reviewing my possible choices. If someone forced me to select one of the options, then I would have no choice; but if no one does, then I do have a choice—I have alternatives. This is not a matter of some remarkable kind of metaphysical modality but merely an expression of the fact that it is my desires that count not something alien and inimical to them. The paradigm freedom-destroying agency is someone forcing you to do what you have no desire to do. Freedom is acting on your desires not on someone else’s desires under conditions of duress. But in addition there are many other kinds of freedom-destroyer: not just real threats but perceived threats, internal compulsions like phobias and obsessions, unconscious biases and motivations, motor dysfunctions, insanity, brain washing, hypnosis, epilepsy, cowardice, etc. All these can interfere with the agent’s considered judgment about what it would be best to do.

The concept of being able to do otherwise is a portmanteau concept, collecting together disparate conditions and causal factors. It is imprecise and context-dependent. To say that someone acted freely is to rule out any of an open-ended list of possible disruptive factors; and there will be questions of degree here—how much the agent’s freedom was compromised. But there is no suggestion that universal determinism excludes freedom or divine foreknowledge: when I think of myself as free to act in a certain way I don’t think of myself as unpredictable by God or as hovering above the web of causal laws that govern the universe. I have much humbler matters on my mind. The mistake is to interpret a practical portmanteau concept as a unitary metaphysical concept. To be free is not to escape the causal net or God’s all-seeing eye but to act as you see fit—to do what you want when you want. Neither God nor Newton can take that away from you.

            That is a familiar compatibilist line and I don’t propose to elaborate and defend it further. My main point is that the concept of freedom is not inherently contradictory because it does not imply anything contrary to desire-determination. So our conceptual scheme as it relates to human behavior is not riddled with logical error. The two components of the concept of freedom are not in tension with each other but complement each other. We misunderstood the “grammar” of “I could have done otherwise”, as Wittgenstein would say; and indeed it does have the appearance of a modal claim analogous to “the particle could have gone in a different direction”. But it occurs in its own “language game” and carries no metaphysical punch: that is, its actual meaning is given by the range of things that rule out freedom as ordinarily conceived. But this is consistent with allowing that some extrinsic considerations could rule freedom out: we might not be as free as we fondly suppose. Determinism and divine foreknowledge don’t do this, as compatibilists have long urged, but we can imagine other types of threat, as with the Freudian argument mentioned earlier. Suppose it turned out that human action is largely or wholly governed by unconscious passions that we have no control over; thus I am subject to compulsions of which I have no conscious knowledge. Then it would be plausible to maintain that my actions are not free, or not as free as I thought: I thought sending a birthday card to my father was a free act of kindness, but actually I had a hidden motive that made me select a card that would hurt him deeply; or I play tennis with him not in order to enjoy a game together but to relish (unconsciously) the opportunity of beating him. This really would undermine my freedom, because it would sharply limit the desires I can act on: in the end I am always compelled to act on patricidal desires stemming from my unresolved Oedipus complex, not from other desires I might have. It is as if my unconscious operates as an external agency bending me to its will—I am a puppet not a puppeteer. That would count as a scientific discovery that undermines free will, and it does so within the terms stipulated by the concept. Here incompatibilism would be indisputable. So it is not that the concept of freedom is necessarily immune from skeptical attack—despite being internally perfectly coherent. But the attack has to be of the right form; in particular, it must cast doubt on the idea of genuine alternatives that an attribution of freedom requires. I can undermine a specific attribution of freedom by pointing to external interference or to inner compulsion; well, I could also do this more globally, even to the point of contesting any attribution of freedom. We are not guaranteedto be free. And this is a matter of common sense not sophisticated science or theology or metaphysics. However, and fortunately, no such empirical threat actually exists, since the Freudian picture is not to be believed on empirical grounds—and even Freud didn’t contend that human acts are never free because of the malign effects of the unconscious. The same goes for the idea that we are all so massively brain-washed that none of our actions correspond to our own authentic desires: we really desire such and such, but because of propaganda we never do such and such, instead doing what we don’t really desire to do. In principle that could be so, in which case our freedom would be limited to non-existent, merely an illusion of freedom (but do we really never want to eat?). However, there is no good reason to suppose that this is the situation in which we find ourselves: we actually do have real desires that we act upon without impediment, external or internal. So we are free (maybe some people more than others).

            Potential threats to freedom can arise from various sources, some more persuasive than others. Philosophically the most interesting potential threat arises (supposedly) from the content of the concept itself, which does not depend on contingent facts of the universe. But (a) it is extremely unlikely that so deeply embedded and universal a concept could harbor the kind of contradiction some philosophers have suspected, and (b) it turns out that the alleged contradiction can be defused by paying careful attention to the actual way the concept of alternatives is employed. Still, it is somewhat surprising that the concept should be as problematic as it has proved to be—so prone to misunderstanding. It is not as if the anti-free will argument immediately strikes us as absurd; on the contrary, it is only too easy to be caught up in it and find it hard to escape its grip. The concept of free will is understandably misunderstood. The free will problem is a paradigm of philosophy because it can easily seem as if a part of common sense is riddled with confusion and error but on reflection is not—it is hard to see what lies before our eyes. Why should our concepts be so confusing, so liable to misunderstanding? What is wrong with us that we can’t gain a clear understanding of our own clear concepts?

 

  [1] This doesn’t imply the doctrine of determinism understood as the thesis that every event falls under strict laws.

                                   

 

 

Observation and Scientific Realism

 

 

Positivism, following empiricism, maintained that the real is coterminous with the observable. A scientific theory that posits unobservable entities cannot be taken at face value, but must be regarded as merely instrumentally useful or as plain false. The observable entities are real enough, but the unobservable ones are a species of fiction (no one has observed Sherlock Holmes). There is some irony in this position for a reason strangely neglected: observations are not observable. They ought therefore to be unreal according to the criterion of reality advocated by positivism. An observation is a perceptual occurrence—an impression, as Hume would say—but such occurrences are not themselves perceptible by the senses. No one can see what I experience when I make an observation. You might say that I at least can observe my observation, but that doesn’t make a dent in the underlying point: first, I don’t observe my observation—I merely know about it by introspection; second, such knowledge is private to me and not available to you—you don’t have this kind of knowledge of what I experience. Observation lacks inter-subjectivity in the sense of being a publicly observable occurrence: it is a private occurrence occurring in an individual mind. So the positivists are making something a test of reality that lacks the marks of the real by their own standards.

            Observation is a human achievement: what we can observe is constrained by the acuity of our senses, our position in space and time, and our powers of discernment. Is the sun observable? Most of the time it is not, since we can’t stare at it without damaging our eyes. Is it thereby unreal at those times? Does it become real when we don dark glasses? Does a train become unreal as we watch it vanishing into the distance? Of course not: these are just facts about the limits of the human senses. Why would the human senses, confined as they are, impose any limits on what is real? What can you observe with your ears? Sounds, certainly, but can you observe the objects that make these sounds? Not with your ears, but does that mean such objects are not real? Would anyone suppose that the nose is the arbiter of reality? Observation always seems to mean visual observation, but that too is hardly suited to qualify as the measure of reality. The fact is that human vision, like the other senses, is limited in acuity, stimulus bound, prone to illusion, subjectively shaped, modular, and species specific. Why should reality be circumscribed by what is so constituted? Vision may provide our best evidence for what is real, but it can’t be what determinessomething as real; it can’t be the definition of the real.

            And what exactly is observation anyway? The OED defines “observe” as “watch attentively”. Note the restriction to the visual sense (we can’t watch with our ears or nose), but the addition of “attentively” is also important. Observing is not simply seeing or even looking; it is doing so while attending to what one is seeing. If you are not attending, or have no power of attention, you cannot be observing. So the positivists must maintain that the test of reality is whether something can be attended to (by humans). But attention is limited, sporadic, and labile—unlike reality. Also attention is more top-down and cognitive than mere seeing: we attend to what we deem important, what we are interested in, what enthralls us. Desire drives attention not merely the perceptual stimulus. Is reality dependent on human desire? Does it care about what interests us? It is a psychological fact about an observer that he or she is watching something attentively; that has nothing to do with whether reality contains a certain type of entity. Is observation necessarily bound up with consciousness? The notion of unconscious observation does not seem oxymoronic, and psychologists have found evidence that it occurs (subliminal perception experiments). Couldn’t a person with blindsight make observations? Then the positivist would have to agree that things exist that cannot be consciously observed. How well does that sit with the empiricism animating their position? Doesn’t it show what a frail reed observation is as a foundation for existence? What if scientists all had blindsight and never consciously observed anything—would the positivist still say that reality is fixed by what they can unconsciously observe? Isn’t that just silly? Why should reality be beholden to the visual system of a certain species with limited powers of sight? Why confuse psychology with physics?

            This kind of scientific anti-realism looks completely hopeless.  [1] The point I want to make is that other types of anti-realism are not open to the kinds of objection I have just raised (though they may be implausible on other grounds). For it is glaringly obvious that the existence of unobservable entities is a discovery of science. The microscope, the telescope, and the diffraction chamber greatly expanded our knowledge of the full inventory of the world: microorganisms, remote celestial objects, and invisible atoms (and their parts) became part of accepted reality. Science has discovered that there is more to the world than the unaided human senses can reveal. Moreover, the human senses are themselves objects in the world, with built in limitations, biases, and breakdowns. The picture of the world as extending beyond the reach of the senses is an achievement of science itself. According to science, then, scientific realism is true—at least in the sense that reality is not coterminous (or coeval) with what is (directly) observable by means of the senses. We exist as limited creatures in a larger world not of our own making and containing many things not evident to our senses—things we can’t perceive simply by opening our eyes and looking. But none of this can be said about other areas in which realism and anti-realism have been debated. It is not a theme of morality that moral realism is true. It is not a theorem of mathematics that platonic realism is true. It is not a thesis of psychology that psychological realism is true. It is not a commitment of our ordinary conception of the physical world that idealism is false (Berkeley was right about this, Doctor Johnson was wrong). It isn’t that realism in these areas isn’t a fact about them; rather, realism isn’t a proposition asserted by these areas. Morality may have discovered that slavery is wrong or that animals have rights, but it is not a discovery of morality that moral truths are objectively true independently of human desire or thought. That is a discovery (if it is one) of philosophy. Likewise, the common sense view of the so-called material world is compatible with various kinds of anti-realism about it, which is why we can’t refute idealism by pointing to what common sense has established (or science). Maybe realism is by far the best interpretation of these areas, but it isn’t that they themselves assert its truth. By contrast, we can say that science itself has established that (unaided) observation does not encompass all existing entities. In this sense, realism is internal to science—but external to the other areas mentioned.

            The interest of this point is less that science has established scientific realism (in the limited sense defined)—for that seems obvious enough—but rather that other kinds of realism cannot be demonstrated in the same way. It would be bizarre to suggest that morality itself has established that moral values are objective and hence “queer”—as if subjectivism could be ruled out as morally wrong, i.e. contrary to the first-order principles of morality. It is not as if the Ten Commandments contain an extra one stating, “The other commandments are all objectively true”. The moral anti-realist may be an error theorist, but he does not have to be, given that morality asserts of itself that it is objectively true. Moral realism is a metaphysical position not a moral position. So there is no analogue of the role of observation in deciding the question: we haven’t discovered that there are unobservable moral entities in the course of our moral deliberations. There is no moral microscope that has revealed to us a world of values previously unsuspected. And similarly for other areas in which realism has been debated: no discovery within these areas will enable us to settle the question of realism versus anti-realism. This is why we speak of meta-ethics, and could equally speak of meta-psychology, meta-physics, and meta-mathematics.

            Here is another way to put the point: it might have turned out that there are no unobservable entities (it is an epistemic contingency that there are), but it couldn’t turn out that moral values are subjective (given that they are actually objective). It is an empirical fact that there are unobservable entities, but it is not an empirical fact that values are objective (given that they are). We didn’t discover empirically that moral realism is true—assuming we did discover that—but rather did so on philosophical grounds, i.e. a priori. By contrast, we did not know a priori that the world contains unobservable entities (microorganisms, atoms, distant galaxies); this we discovered by empirical means. We used science to establish that the world extends beyond the observable. But we didn’t use morality to establish that moral realism is true (for one thing, moral realism is not a moral duty); for that we resorted to philosophy. Thus, given that moral realism is true, it could not have turned out otherwise, whereas scientific realism may have turned out to be false (it is only a contingent fact that some things are not observable). There are worlds “qualitatively identical” to our world that contain no unobservable entities, but there are no worlds “qualitatively identical” to ours in which moral anti-realism is true (similarly for the other kinds of realism).  [2] This is because realism, if true, is true a priori in these areas. It is not an epistemic necessity that microorganisms exist but it is an epistemic necessity that values are objective (assuming they are). Thus scientific realism has a different epistemic status from that of other types of realism.

            There is an explanation from within science of the fact that unobservable entities exist, but there is no explanation from within morality of why values are objective (similarly for the external world, psychology, and mathematics). Some entities are simply too small to be seen given the limited acuity of the human eye, and some are too distant: these entities cannot interact with the eye psychophysically. Physics and perceptual psychology explain why we can’t observe certain things. But morality has no explanation for why moral values have objective existence—why they are not reducible to human attitudes. Nor can psychology, as an empirical science, explain why mental states are not reducible to dispositions to behavior (or some such). Nor can common sense concerning tables and chairs explain why material objects are not reducible to sense data. The question of scientific realism, understood as a dispute about the existence of unobservable entities, is not a properly philosophical question, since it can be settled by appeal to the discoveries of science. That is, we know scientifically that there are things in the world that can’t be perceived by the unaided human senses. Of course, there is plenty of room for philosophical debate about the nature of these entities (they might be ideas in the mind of God, say), but it is not a philosophical thesis that some things cannot be perceived. That is simply a scientific truth. But it is not a moral truth that moral values are objective, or a mathematical truth that abstract entities exist, or a truth of psychology that mental states are inner states irreducible to behavior, or a truth of common sense that tables and chairs are distinct from states of mind (“ideas”). Hence there is no analogue of the demonstrable inadequacy of observation to provide a test of reality that can defeat anti-realism in these other areas.

 

C

  [1] I am not saying that all types of scientific realism are completely hopeless (though I do believe that), only that the kind that equates the real with the observable is. Clearly the positivists advocated this position in order to save the principle of verifiability not because it looks intrinsically plausible. And there is no limit to human anthropocentrism. 

  [2] I am here using the apparatus developed by Saul Kripke in Naming and Necessity.

                                   

 

 

Notes on the Concept of Law

 

 

1. Consider the sentence forms “It is illegal to A” and “It is immoral to A” where A is a type of action (we could also consider “It is impolite to A” and “It is imprudent to A”). These are superficially similar, syntactically and semantically. Both have the logical form of universal quantification: “for any action x, if x is of the type A, then x is illegal/immoral”. Both contexts are intensional to some degree: certainly not truth-functional and arguably referentially opaque—it may be illegal/immoral to kill human beings, but is it illegal/immoral to kill the most dangerous species in the universe (assuming these to be co-extensive)? Both sentences have normative entailments (or corollaries): one ought not to do what is illegal or immoral. But there are also important differences. You can say “It is against the law to A” but it sounds funny to say “It is against morality to A”. You can necessitate a moral principle but not a legal one: “Necessarily stealing is immoral” is true but “Necessarily stealing is illegal” is not. We can paraphrase the legal sentence with “It has been declared illegal to A” but we can’t paraphrase the moral sentence with “It has been declared immoral to A”, since it might not have been so declared. You can pass a law but you can’t pass a moral principle. And clearly the two types of sentence are not synonyms nor even express the same facts: “law” and “morality” do not co-denote. Despite these differences, however, the two domains are tightly connected, though the connection is controversial. Laws can be wicked and immoral but morality can’t be (as opposed to a person’s moral beliefs)—so laws can be criticized morally but morality (itself) can’t be. Nevertheless, laws at least purport to be moral and can be assessed morally—they are not beyond the reach of morality (as taste in food or clothes may be). So the distinction between them is not a complete severance.

 

2. We can ask what kind of speech act is performed by uttering “It is illegal to A” as we can for “It is immoral to A”, and a familiar list presents itself. Is it a statement of fact (a “descriptive” statement), a command, an expression of emotion, a threat, a prohibition, a promise, an exhortation—or some (or all) of these? Moral utterances invite the same kind of list. In both cases these questions are separate from the question of semantics, specifically truth conditions, and are mainly beside the point (a given sentence with a fixed meaning can be used to perform an endless number of speech acts, semantics being separate from pragmatics). The question of truth conditions is the central question: are the two types of sentence true in virtue of the same kind of thing (fact, state of affairs)? And here there is a marked difference: laws hold in virtue of declarations of a certain sort, but morality does not depend on declarations. This is why a divine command theory of law is not a category mistake while it is for morality (Euthyphro could have been right about what makes something a law). According to “legal positivism” laws arise from human stipulations or decisions or agreements—legislative acts–and therefore they can come to exist at a certain time and go out of existence at a certain time (when they are repealed). But the immorality of stealing is not something linked to time and legislation in this way. We could put this point by saying that a legal system is a “social fact”—one created by a group of people who are responsible for its existence. But merely calling laws social facts doesn’t distinguish law from morality, since a moral system in a society is also a “social fact”: what distinguishes the two is that law has its origin in legislative declarations while morality does not.

 

3. Some have supposed that “good” denotes a simple unanalyzable property, but no such view has been held for “law”. That is as it should be because it is not difficult to analyze the concept of law into several components (or no more difficult than other complex concepts such as knowledge or game). Thus we can venture the following definition: a law is a legislated norm backed by sanctions. That is certainly not true of a moral precept. We need to bring in sanctions because they are so characteristic of a legal system and because without them law has no bite—people won’t obey laws without sanctions. A possible world in which there is a system of law governing a society but there are no sanctions associated with it is not a real possible world. The sanctions provide prudential motives for action (morality provides its own motivation). A prime constraint on legal legislation is that contradictory laws shall not be passed, and there is a distinct possibility that this could happen if the legislators are not careful (contradictions are not always obvious). But there is no such danger from morality, which is internally free of contradiction, not being the result of human belief or declaration (like reality in general). A legal system is a kind of propositional artifact and it can have defects and gaps in it. Hence laws can be in principle inconsistent as well as immoral. This is why there is no plausible “legal realism” like moral realism—because law is not mind-independent: it is immanent in human practice.

 

4. We should not exaggerate law’s independence from morality, distinct though these systems are. As noted, laws purport to respect moral principle and can be criticized for failing to do so. Also they arise from motives of a broadly moral nature: they are intended to serve the common good (or at any rate the good of certain preferred types of person). They are not stipulations made in a vacuum but designed to further moral aims. A dilemma has been supposed to arise here: either laws are inherently ethical or they are not. If they are, then law and morality are identical or overlapping domains; but if they are not, then law has no moral force and there is no such thing as legal obligation. It seems to me that there is a third way here: this is the idea that law constitutes a secondary morality existing alongside the primary morality. Law acts like morality without being morality, at least as morality is ordinarily conceived by philosophers. There is a rough analogy with primary and secondary qualities: the primary qualities characterize basic reality while the secondary qualities exist beside them in closer proximity to human sensibility. But both are qualities of objects; it isn’t that secondary qualities are not qualities at all. Similarly laws are moral edicts but they are not identical to more basic moral edicts. Thus we can readily convert a moral precept into a law, as when we declare stealing illegal (or slavery). It doesn’t lose its moral standing by being so converted; indeed it inherits that standing. But it now belongs in a separate cognitive system subject to different constraints and standards. We can imagine beings whose whole moral outlook is constituted by laws (indeed some humans are like this) and it would be wrong to declare them morally void. Children occupy this cognitive territory when their notion of morality is fixed entirely by the commands of parents. We really have two systems of morality in our heads, between which it is easy to get confused; it is not that law removes itself from the realm of morality and becomes completely value-free—as if it were nothing but so much social engineering. This explains why people are often so torn when they perceive certain laws to be fundamentally immoral: this is a conflict within their moral faculties not just a conflict between morality and the extra-moral. The analogy with etiquette may be helpful: are the rules of etiquette simply detached from moral rules, since they are certainly not identical to moral rules? No, because good manners are regarded as a secondary form of morality—parasitic perhaps but not devoid of moral clout. One really ought to have good manners (as socially determined) out of consideration for the feelings of others. We shouldn’t be “etiquette positivists” holding that good manners have nothing moral inherent in them, yet we shouldn’t simply identify etiquette with morality. We have a kind of secondary morality here, not an abrupt switch from the moral to the non-moral. We should picture our moral faculties as consisting of a central core of basic moral principles surrounded by a penumbra of outlying moral systems (habits, proclivities). Law, like etiquette, is an application of morality suited to certain ends, suitably supplemented and adapted. We need to be expansive and pluralist about the nature of moral obligation.

 

5. Are laws rules? This is not a helpful way to think. They are clearly not like the rules of a game precisely because the practice of law is not a game. The rules of games prescribe (and proscribe) actions that aim to achieve ends by indirect and inefficient means (see Bernard Suits), but the “rules” of law don’t tell us how to play a game using such means—we must obey the law by the most efficient means possible. Nor is it clear what the purpose of legal rules might be—ditto for so-called moral rules. We can talk this way if we like but the theoretical or conceptual payoff is minimal at best, and is likely to promote forced analogies and misleading conceptions. Breaking the law is not like breaking the rules of chess: if you commit a murder it would be strange to be told that you are going to jail for life because you broke the rule against murder; rather, you are going because you murdered someone. The law is no more rule-like than morality.

 

6. One’s reason for obeying the law can only be prudential (avoiding sanctions) or moral (the law codifies the good); there is no such thing as a specific form of legal obligation or reason for action. In the case of a law perceived to be wicked the only reason to obey it is prudential. However, since the law is a secondary form of morality it does allow for an extra layer of reasons governing our actions: for we now have two sorts of moral reason for acting. One hopes these harmonize (similarly for etiquette) but they might not and then one has a conflict within one’s overall morality. A part of you may judge that a particular law is too strict and inflexible in certain circumstances, going by your core morality, but you obey it anyway because you think that it is basically a good law not wide of the moral mark. The situation is not so different from what we find within core morality itself, because here too we have different systems that don’t always harmonize—as with deontological precepts and consequentialist principles. Arguably, we have two coexisting moralities within us, which don’t always see eye to eye; well, our attitudes to the law are similar in that our thoughts about the law are themselves morally suffused. There are many moral “oughts” not just one, and each occupies a place in our total moral outlook. So the dilemma “moral versus non-moral” as applied to the law is too simple. Legal moralism is thus to be preferred to legal positivism (construed as denying that laws carry any moral weight in themselves), though it is a mistake to try to reduce legal obligation to moral obligation (again, compare etiquette). In any case, there is no category of reasons for obeying the law beyond the moral and prudential, so nothing sui generis about legal obligation.

 

7. There can be wicked moral beliefs and practices as there can be wicked laws. In the former case wickedness is relative to correct belief: moral reality can correct erroneous moral belief. But in the latter case we can’t say this, not with any plausibility anyway: if a law is wicked we can’t say that it is wicked relative to the correct law, as if this existed independently of human legal systems. There are no ideal laws that we are trying to capture and possibly failing to capture—a legal reality outside of legal belief and stipulation. True, one legal system can be superior to another, but there are no objective laws that set the standard—laws outside of human practice. Morality is the proper source of criticism of laws not supposed ideal Platonic laws. It is the same with etiquette—it is subject to moral criticism but not criticism from some supposed ideal set of rules of etiquette (as it might be, the etiquette of the gods).

 

8. It may be useful to distinguish between laws as they exist objectively in various social institutions and laws as they are understood by people subject to them. After all, laws only get purchase on people’s conduct by way of their mental representation of them. And the law might have different functional properties in its two manifestations. People often have an imperfect understanding of the law as an objective institution while carrying around with them their subjective idea of what the law requires of them. A philosophy of law should address both topics. In particular, the authority of law really depends on how people understand it, i.e. their disposition to accede to its demands results from their own subjective representation of it. Maybe the external phenomenon doesn’t function as a moral system for people, but their internal representation may: this is where the secondary morality exists and operates. Internalized law functions as an ancillary moral system capable of providing moral reasons even if external law does not. How people think of the law does very often correspond to what they think the law ought be, and that is a moral “ought”. It is the same with rules of etiquette: what the prevailing norms objectively are in a social group is not the same as how individual people conceive of these norms (this can give rise to much social comedy). It is the latter that functions as a secondary moral system.

 

9. I started by comparing “It is illegal to A” with “It is immoral to A” noting the linguistic similarities. But there is a semantic difference that makes all the difference: the former statement makes implicit reference to certain kinds of symbolic acts while the latter does not. An action is illegal only because it has been declared to be so by some authoritative body: being illegal requires being said to be illegal. So the original statement is tacitly metalinguistic, being equivalent to “Acts of type A have been declared illegal”. But the corresponding moral statement is not metalinguistic, because morality does not depend on human stipulation or decision (or divine). But this important difference does not preclude morality from entering into the law, as if it made the laws merely a set of facts about what people have declared. Laws must proceed from moral motives (possibly misguided) and can be criticized in the light of moral considerations; they are not value-free social facts. Law is better described as a secondary moral system linked to the primary one, though not reducible to it. Imagine a society that instituted a set of laws governing prudential behavior: you must eat this and not eat that, no going out in the cold without warm clothing, no watching too much TV, etc. The aim of these laws is purely to improve the individual’s wellbeing not to govern interpersonal relations. It would be strange to say that this system of laws has nothing intrinsically to do with prudence just because some of the laws might be misguided, and strange too to maintain that the laws are the same as the precepts of ordinary prudence. The laws are something additional to, but reflective of, the underlying precepts of prudence. In time they might become a secondary system of prudence, especially given that sanctions are applied for non-compliance.    [1]

 

Colin McGinn          

 

 

    [1] I wrote up these notes after reading Nicola Lacey’s biography A Life of H.L.A. Hart (2004). I have read nothing in the literature of the philosophy of law but found myself thinking about the questions raised by my reading of this book. These notes merely record my thoughts and reactions and make no claims beyond that. They are not intended for publication.