Introduction

The ultimate aim of this book is to cast some light on the phenomenon of law. I will eventually consider three of the most contentious issues in the philosophy of law, they being the question of interpretation, the nature of rights, and the desirability of separating law and morality.

However, all three of these issues of legal philosophy I will leave for the second part of this book. Instead I begin not with law but with morality. A theory of law implicitly or explicitly subsumes a moral theory because on any theory of law there is some relation between morality and law. I will start by making my theory of morality explicit.

But a moral theory itself rests on a particular view of human nature, on some general sort of explanation of the way human beings live and think and feel. Such an explanation will provide at least the bare basis of the moral theory which itself underlies a theory of law. To offer a coherent account of aspects of legal theory is then, at minimum, to be consistent with one’s underlying moral theory and treatment of human nature.

However, I have deliberately used the indefinite article ‘a’ because it is a tenet of what is to come in this book that single right answers, in all practical affairs such as law and morality, do not exist. I will offer ‘a’ coherent picture of various aspects of the phenomenon of law while recognising that there are many other pictures which could also claim to be coherent. How satisfying any one of these particular explanations might be found to be will depend not least, 1 shall assert, upon the tastes and values of the individual evaluator. How useful any one of them might be will rest on the consequences it engenders. But how correct any theory is can only be measured in terms of its internal consistency and of the accuracy of its explanatory powers and starting observations.

I will ground my discussion of law in a version of moral scepticism, one that owes much to David Hume.

Hume, the eighteenth century Scottish enlightenment philosopher, saw himself as a philosopher of man, of human nature. He put forward a general theory of human nature which was deterministic, avowedly reliant on observation and the experimental method, and quite the obverse of traditional conceptions of human life. The full title of his most complete work on morality is A Treatise of Human Nature: Being An Attempt to introduce the experimental Method of Reasoning into Moral Subjects. Hume sought to bring the Newtonian method of natural philosophy to the study of everything that is distinctively human, including moral philosophy. The questions which interested him were the ‘whys’ and ‘hows’, not questions of fundamental essences and ‘what is’ questions. Hume contentedly accepted that at some point explanation, in science as well as morals, must end; humans cannot explain everything. He aimed only at the best explanation of what we observe.

And tho’ we must endeavour to render all our principles as universal as possible, by tracing up our experiments to the utmost, and explaining all effects from the simplest and fewest causes, ‘tis still certain we cannot go beyond experience; and any hypothesis, that pretends to discover the ultimate original qualities of human nature, ought at first to be rejected as presumptuous and chimerical.... when we see, that we have arrived at the utmost extent of human reason, we sit down contented; tho’ we be perfectly satisfied in the main of our ignorance, and perceive that we can give no reason for our most general and refined principles, beside our experience of their reality.¹

And indeed his observations and writings on this science of man were diverse. He wrote on history, religion and economics as well as philosophy. His interests in philosophy, moreover, were wideranging. In this book, therefore, I am selective. My aim is to present a powerful, persuasive version of moral scepticism. To do that, my starting point is Hume’s own moral theory.

So I limit my discussion of Hume to that, which for him meant something less than the whole field of what is special about being human but something more than traditional Christian notions of right and wrong. But it is important to stress that my goal is not a commentary on Hume’s moral theory per se or an exegetical analysis of his writings but rather the construction of a viable moral scepticism. And so as my narrative progresses I shall borrow freely from Hume but at the same time I shall not hesitate to criticise what I take to be his errors, to supplement, and to ignore whole sections and constituent elements of his thought. For instance, while I will follow Hume in assuming man is causally explicable and part of the natural world, I will take no direct position on the central question of internal compulsion and whether human beings are determined in their actions. The issue of free-will versus determinism, in other words, will be largely ignored though I will assume that ethics can be discussed.² Nor will 1 involve myself in general discussions or analyses of the theory of ideas, but merely point out, where necessary, difficulties into which the theory later leads Hume.³ My interest is to build on Hume’s moral theory, not directly with his theory of knowledge, and in that moral realm Hume does not seek the genealogy of perceptions such as virtue or goodness. The data are men’s and women’s actions and behaviour and perhaps here Hume is “more in accord with the underlying spirit of his naturalistic programme than is his account of the idea of necessary connection.”⁴ At any rate I will avoid, where possible, the theory of ideas. Nor again, as a last example, will I have any occasion to consider or comment upon Hume’s brilliant writings in the philosophy of religion.

The general outline of my argument in favour of moral scepticism in this book is as follows: I say that mind-independent values either exist or they do not. Posing the debate between moral realist and moral sceptic in this way though, without more, is unfair to the variety of realist viewpoints and can seem to create a false dichotomy.

So I go on to consider the connection between humans and values. Is there some sort of logical or necessary connection as exponents such as Nagel and Gewirth allege? I argue that there is not. If not, the relation between humans and values must be merely empirical, true only because of the way humans happen to be. In other words the connection or relation is contingent. The obvious next step is to look for uniformities, universal or near-universal or widespread human characteristics, sentiments and needs, always recalling the underlying contingency of any observed uniformities.

But some realists at this point rely on the secondary qualities analogy. They point, in effect, to things like colour and argue by analogy that values have an external, objective, mind-independent component but also are interpreted, filtered and constructed by people. They attempt both to accept my initial formulation of the problem (by saying the answer is yes, mind-independent values do exist) but also to say it unduly simplifies what is happening when people evaluate. So I take the time to argue that the secondary qualities analogy is false.

Another, and common, realist response is to point to the normal meaning of moral language and thought. Do these, when conceptually analysed, not reveal a human pre-supposition that mindindependent values do in fact exist? There are various responses the moral sceptic can make here to one who relies on what people mean when they evaluate. I will consider several. Here I need only note that there is no necessary connection between what people mean when they are evaluating (even assuming that most people do believe there are external, objective values) and what is actually, in fact, happening when they are evaluating.

The last response I consider is from the non-sceptic who asserts that ‘moral rightness’ can be known objectively provided we limit ourselves to particular humans in a particular time and place. In effect this argument attempts to make epistemology independent of metaphysics.

Because the argument, in its best known form, is made by the legal philosopher Ronald Dworkin, I leave my consideration of it until the second part of this book. My response, however, is that the Dworkinian attempt is incoherent unless it assumes or presupposes the very moral realism it seeks to provide.

After considering and rejecting all these moral realist positions my original formulation of the debate between moral realist and moral sceptic, that mind-independent values either exist or they do not, will no longer appear to create a false dichotomy. Indeed one can then ask what third option there can be. The choice is between intuitionism and the moral sceptic’s world view, which limits itself to the sensory, natural, causal world and attempts to explain values accordingly. And I will argue that the better choice is the sceptic’s world view because it requires nothing new — nothing mystical, transcendental or mysterious — to be superimposed on his ordinary understanding of the world.

That then is an outline of the arguments I will consider in attempting to build a persuasive case for my particular version of moral scepticism which, in turn, will be the basis for my arguments and conclusions in the philosophy of law. However, as an outline it misleads. It suggests that the format of this book, or at least the part on moral philosophy, is one in which I consider a series of moral realist positions in turn. That is not the approach or style I have adopted. I offer a narrative in which Hume’s views figure prominently and in which the disavowal of all inflated views of human reason is a principal theme. In the course of that narrative transcendental conceptions of reason and intuitive moral senses and knowable right answers and the implications of the meaning of moral language and thought and other related matters will all be discussed. But a main thread to my narrative tying these together will be this attack on reason. Perhaps that is why my moral scepticism owes so much to Hume.

For as I read Hume he too denigrates reason and attacks the pretensions made on its behalf.

In the first part of this book then, the part which treats of moral theory, and builds up my case for moral scepticism, I start with Hume’s attack on the pretensions of human reason. I go into some detail in the analysis of reason as this sets the foundation for Hume’s sentimentalist moral theory. I then move to examine the contemporary debate between sceptical, ‘subjectivist’ ethics and its rivals in the realm of moral theories, ‘objectivism’, ‘realism’ and ‘intuitionism’. After this general look at the status of morality I turn to examine specific virtues. In particular I examine the virtue of justice, beginning with a critical review of Hume’s treatment of it. I discuss justice here, in the first part of the book, because this virtue is unique in straddling the divide between law and morality. Or put another way, justice is the most legal of all the moral virtues. It may be, indeed, that justice cannot completely be separated from law. At any rate my discussion of justice, unlike all other issues of legal philosophy, takes place in the first part of the book. Questions concerning impartiality and the principle of sympathy also arise during the discussion of justice.

At the end of this first part of the book I hope to be in a position to explore several implications of the version of moral scepticism I have by then constructed in order to clarify it further so it can serve as a partner to and a support for my views to come in the philosophy of law.

In the second part of this book I turn to legal philosophy, building on the foregoing sceptical foundations. From a consideration of the nature of the interpretation of law 1 move to the question of the possibility and desirability of the separation of law and morals. Involved in this undertaking are questions about objectivity in law, the need for rules and the nature of liberty. The book finishes with a rather lengthy chapter on rights, considering what rights can be for the Humean moral sceptic and on what they are based as well as whether there is any solid foundation for emphasising non-legal or ‘human’ rights in the contemporary world.

I hope, at that point, to have sketched a coherent picture of several contentious areas in the theory of law: one in which law appears as functionally related to morality and morality itself is limited to political morality; one which shows law to be the most obviously artificial set of constraints on human action; one which works out from human nature to political morality to legal theory; and one which tries all the while to capture the sceptical tone which pervades the many writings of David Hume — a tone which offers solutions in no terms other than contingent but actual human dispositions and, given those dispositions, the best consequences for public utility; a resigned but contentedly sceptical tone that always leads back to, and never seeks to go beyond, common-sense empiricism.

I answer this objection, by pleading guilty, and by confessing that my intention never was to penetrate into the nature of bodies, or explain the secret causes of their operations. For besides that this belongs not to my present purpose, 1 am afraid, that such an enterprise is beyond the reach of human understanding.⁵

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

Introduction

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