But when law is compared with morality, it seems to be assumed that everyone knows what the second term of the comparison embraces....

In the present case, it has seemed to me, the legal mind generally exhausts itself in thinking about law and is content to leave unexamined the thing to which law is being related and from which it is being distinguished.¹

To avoid the pitfail warned of by Lon Fuller my narrative now moves to discuss moral theory.

With the support of chapter one’s denigration of reason I hope to start building up the case in favour of moral scepticism. Once again I will use Hume’s basic moral theory as my starting point. In this chapter and the next my interest will be with the contemporary debate between ‘ object! vist’ and ‘subjectivist’ ethics, or what I will call ‘moral realism’ and ‘moral scepticism’. My goal, as I outlined in the introduction to this book, is to persuade the reader that mind-independent values do not exist and that other efforts to lend a sense of ‘objectivity’ or ‘externalness’ to normative evaluations also fail to convince. On the weight of observable evidence, values are merely projected, subjective sentiments. They may be conditioned and shaped by the norms of the particular society in which an individual happens to be — indeed these sentiments may even be completely determined by some socializing process — but nevertheless values are still, in fact, nothing more than projected sentiments. In this sense then, right and wrong, good and bad, evil and benevolence, are mere subjective sentiments; they are evaluations tied to the responses the evaluator happens to have. And this remains true even if a few such sentiments are to be found in virtually all humans.

That, at any rate, is the case I hope to make. This chapter will deal with the negative side of the argument, that moral distinctions are not based (only) on reason. If reason — either what Hume means by reason or alternatively some ‘enriched’ concept of reason — could ‘discover’ appropriate conduct in particular situations then there would appear to be a mind-independent or external-to-the-evaluator component to morality.

Accordingly the attempt to link values to subjective human sentiments would be gravely wounded. Hence in this chapter I make the negative case against a reason-based morality. Much of that case will be to the effect that ‘enriched’ notions of reason, conceptions which seek to extend reason beyond the Humean reason of chapter one, are unhelpful in terms of explanation, perhaps even obfuscating. Then in chapter three I will support the positive case that values are not real or mind-independent but rather are projected sentiments of the particular evaluator. In particular I will consider the implications of the normal meaning of moral statements, an area of great indeterminacy for a subjectivist ethics, the notion of duty, and the persuasiveness of the secondary qualities analogy. In chapter four I will continue my effort to make the positive case for moral scepticism, leaving for the following chapter a discussion of several particular issues, notably the Humean model of justice. By then I shall be almost finished the first part of this book, the building and defending of a moral theory. I shall conclude Part A with a short chapter on several of the ramifications of my moral theory before moving to Part B and legal philosophy.

Moral distinctions, determinations or characterisations of actions as good and bad, are a regular part of human life. Many issues of evaluation of conduct arise and particular positions are taken of varying content. But what is the status of morality? What is in fact happening when individuals assert one value or another? Or phrased in Humean fashion, why and how do humans make moral distinctions?

To get to Hume’s answer to this question and put that answer in perspective I start elsewhere.

Hume takes it that men and women are part of the natural, causal world and that the general principle that every event has a cause applies to the sphere of human conduct and actions. He appears to think² that he has evaded the threshold ethical dilemma posed by hard-core determinism by restricting liberty and free-will to the absence of external constraints.

Liberty is thus compatible with the operation of internal cause and effect. Calculations of someone’s motives, desires, tastes and habits, in short of his character, are based on just this regularity of experienced responses. For Hume, to transcend internal necessity would not be freedom, liberty or voluntariness but raw chance. In fact, attributing praise and blame to someone requires that actions be the necessary effects of causes, that there be internal compulsion. This approach neatly reverses the traditional emphasis that blame and praise require a free moral agent who ‘could have done otherwise’. Hume is aware of the traditional approach, of course, and implicitly makes use of it in some of his attacks on religion.³ I think, however, that Hume under-rates the strong belief ‘that there is no internal compulsion.’ Indeed, it seems to me that the feeling that one is free to do as she chooses, ultimately unconstrained by upbringing, genetics and the rest, is nearly on the level of a Humean natural belief such as those in causation or in the existence of an external, independent world. In other words, Hume shies away from saying that humans are so constructed that they naturally believe in hard core free-will — preferring to call it a “false sensation”.⁴

I had indicated in the introduction that this issue would fall outside the purview of this book. And so the substance and merits of the debate do lie outside my immediate concerns and will be ignored. I raise it ever so briefly here, as a preface to my discussion of Hume’s moral theory, for one reason. Namely, as a preliminary indication that for Hume, morality is essentially a public affair. As would be expected from one for whom the lack of internal compulsion undermines the very act of moral attribution, Hume’s explanation of morality must be in terms of its social, communal function. In other words, the moral life can only be understood in terms of how the individual should live within the group. Acceptance of internal compulsion does not lessen the need for public morality, nor undermine its coherence. So in Hume there need be no notion of right conduct in isolation from others, of some non-public morality. With that in mind I turn to the details of Hume’s negative case against a reason-based morality.

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Source: Allan James. A Sceptical Theory of Morality and Law. Peter Lang,1998. — 277 p.. 1998

But when law is compared with morality, it seems to be assumed that everyone knows what the second term of the comparison embraces....

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