Concluding Remarks

A guiding precept throughout this book has been Fuller’s warning that all too frequently thinking about law leaves morality unexamined. My thinking about law in Part B, in general about interpretation, rights, and the relation to morality, and involving critiques of Dworkin and of Gewirth, has depended upon and followed on from an acceptance of a second-order moral scepticism of a notably Humean flavour.

That then is a very bare overview of this book. But as I said in the introduction, such outlines mislead. One more skilled in the art of capturing in brief the flavour, aims and tone of extended works might simply have said this was a book which rejected all transcendent, non- causal views of reason and morality and brought that sceptical frame of mind to bear on controversies in the philosophy of law. I am happy if some of that scepticism, in any of the areas discussed, has infected the reader.

In the rest of these concluding remarks I should like again to indulge myself, this time by anticipating a possible objection. One effect of accepting my substantive views, it might be urged, would be the forsaking of ‘rational’ argument and debate in favour of a “ruthless decision to cut the cackle, to damn the heretics and to exterminate the unwanted.”¹ If people be deluded in their belief in the existence of objective values, and if they come to shake off those delusions, will they not see the hopelessness of commanding others’ agreement and approval by means of peaceful persuasion and debate? Might not reliance on propaganda, indoctrination and worse, brute force, be then but a small step away? Might it not, in sum, be consequentially unwise to strip away morality’s ‘objective’ overlay?

This objection, in essence, takes the view that were moral scepticism to replace moral realism and become widely accepted the world would be a much less tolerant place than it is now.² An exultation in the irrational would surely result, it continues, which left little or no room for tolerance.

This objection however, this purely consequentialist objection be it noted, fails to persuade me. It relies on a determination of likely consequences which dubiously assumes that the sole or major motive for employing persuasion, debate and reason is the prospect of converting others, which presumes that sentiments are less easily re­directed than some purported faculty capable of discovering rightness, and which makes unwarrantedly apocalyptic predictions of people’s behaviour in a world in which values are recognised to be dependent on nothing more than sentiment.

It is true that scepticism can be charged with inducing an awareness of the central role of non-propositional feelings. That awareness will, no doubt, lead people in certain circumstances to defend their own interests against those of others through action not words. But let us be clear about this. Egregious anti-social behaviour requires action on any moral premisses or view. A complete tolerance which merged into an absolute laissez-faire would produce a society so lacking in cohesion it would probably not last long. At some point tolerance becomes mere weakness. The hate-mongering neo-Nazi no less than the psychopathic rapist, for instance, is not to be tolerated but restrained. Hence it is something short of a thorough-going libertarianism that I would prefer, and I suspect most others would prefer including moral objectivists like Nagel. Why then should the attainment of a desirable level of tolerance in society be more difficult (or even impossible) with an awareness of reason’s motivational impotence or of the absence of any real, objective values? I have been quite adamant, do not forget, that the natural, causal world is mind-independent and ‘imposed’. My version of scepticism accepts this natural belief; it is the possibility, and even reality, of other knowable realms that it doubts. In this causal realm moreover, reason’s role is large for it is reason which notes patterns and attempts to predict consequences.

The objectivist’s contention that newly self-aware sentiments would run rampant appears to make the same old error and assume reason — in the form of a conclusion about its own impotence — moves action. The discovery of impotence, that is, is being assumed to be able, by itself, to bring on intolerance. Yet if the sceptic be correct sentiments move action. And awareness of this particular consequence, that reason is inert, is anyway but one among many consequences that will be noted. No less obvious than the ultimate contingency of values will be the historical consequences of intolerance — the limits it will eventually place on one’s own scope for action, the fear, the hypocrisy and the rest. And so, not only is it untrue to say scepticism impedes argument, it is also far from clear that a weighing up of consequences evidently tilts the calculation of self-interest towards intolerance over tolerance. This is even more the case for those with a friendly disposition or love of argument. Meanwhile scepticism’s emphasis on what can be debated and argued about, viz. consequences, might well end up raising the level of argument, debate and policy-making.

The sceptic has a further reply too. It is to take the offensive. While the moral realist’s case for her own greater tolerance rests on an alleged need for reason to mediate the passions, to be there to withstand the onslaught of darker forces, that case completely ignores the effects of believing in single right, real, objective values.

Contrary to this mooted objection then, I think tolerance would flourish and prosper at least as well in a community of sceptics as it has amongst moral realists. But then that is not to set too high a test. Succumbing to the temptation to advance a consequentialist argument³ does not serve the realist very well either. It amounts to maintaining that even if moral scepticism be in all likelihood factually accurate and true we should disavow it for its undesirable effects. (In other words, moral scepticism may not be false, but it is dangerous.) This sort of extreme utilitarianism (i.e. ‘what is’ depends upon ‘what ought to be’ — which view even Bentham rejected) sits oddly beside an attachment to real, true values.

But if not by portending a breakdown of tolerance, does exposing the fiction pose some other risk? This fear cannot be lightly dismissed. The moral overlay of ‘right’ conduct and owed ‘duty’ may provide an immediate support to a system of constraints on individual conduct that calculations of long-term self-interest cannot, or rather does not. Hume seems to me certainly to be correct in thinking that having a system of constraints on action does produce much better consequences (given most people’s preferences) than not having one. We need look no farther than Bosnia or Rwanda to see that. But calculations of self-interest tend not to be distinctly long-term. Unmasking morality as merely a way of easing, however desirable that easing be, the effects of inevitable partial conflict in society may let loose a bevy of short-term calculators or increase the number of society’s free-riders. The question is whether humans who believe certain conduct has a mind-independent rightness about it are better able to constrain their conduct than those who simply see the long-term benefits of such constraints. I do not know the answer. One’s opinion seems to depend upon how optimistic about people one be. But whatever the answer to that, it seems true that the moral overlay, the fiction that values have a mind­independent rightness, is not a good thing for everyone. Those at the bottom of the social heap, for instance, tend to a get locked in because “the adding of moral overtones to [a reciprocal practice of constraints on conduct] will in general have a conservative tendency.”⁴ But equally, the moral overlay may lead the strong to postpone making too great use of their dominant position.⁵ So again, it is difficult to predict whether good consequences will align with truth (i.e. exposing the fiction).

The related question of whether an absence of apparently external constraints on action would place too great a burden on law seems easier to answer. Even if non-legal (and hence not officially sanctioned) constraints on conduct became less effective, there is little evidence that official, organised constraints and sanctions could not do the job. The Western legal tradition has produced strong and healthy legal systems, seemingly able to cope with a drop in morality’s effectiveness. That answer may not, I am aware, satisfy those who complain that ‘law is not legitimate’. However, as legitimacy is itself an evaluative notion, and as the sceptic sees all evaluation as ultimately subjective, that sceptic would expect some dissatisfaction at the outcome of all partial conflict resolution. Besides, the sceptic’s talk of no objective values and hence no mandated outcomes or distributions is no more suitable (indeed in a world where most are moral realists it is less suited) to the complaints of society’s ‘losers’ than is natural law or human rights terminology. The cry of ‘illegitimacy’ is an implicit plea for a different outcome and set of values, not a comment on the ethereal and insubstantial nature of values. As for matters of content, at least the process of legislation through negotiation and compromise, with majority opinion as the final arbiter, offers hope to sceptic and non-sceptic alike that too great social conflicts over substantive distribution might be averted.

With that indulgence granted I have finished all that time, space and inclination will allow me to treat of in this book. Doubtless there is more the sceptic can say about law and morality. Nevertheless excess is as much to be avoided in books, I suppose, as in life.