Notes

Introduction

¹ Treatise, pp.xvii - xviii.

² As a partial exception to this, I do briefly criticise Hume’s compatibilist solution. Vide chapter six, note 41 infra.

³ I agree with Stroud (chapter I, pp.9-16) that Hume never really questions the Newtonian, atomistic picture of the mind in terms of impressions and ideas. He accepts it as the best theory going and then adds to it. In general, though, Hume does make it clear that the general observations he offers about human nature are to be distinguished from the explanation he details. “1 shall only premise, that we must distinguish exactly betwixt the phenomenon itself, and the causes, which I shall assign for it; and must not imagine from any uncertainty in the latter, that the former is also uncertain. The phenomenon may be real, tho’ my explication be chimerical.” (Treatise, p.60). Stroud points out and analyses those areas where Hume’s uncritical reliance on the theory of ideas leads him into trouble while recognising that Hume was not a slavish follower of the theory. (Vide particularly pp.37, 46 and chapter X, Stroud).

⁴ Stroud, p.232.

⁵ Treatise, p.64.

Chapter One

My discussion of Hume’s conception of reason in this chapter has been particularly influenced by Mackie(2), Kemp Smith, Stroud, Ardal, McDowell, Harman, Macleod and Nagel. In my narrative in this and future chapters I refer to desires, propensities, preferences, passions, and sentiments. Were it necessary, one might distinguish these on the basis that ‘desires’ are episodic whereas ‘propensities’ are dispositional; ‘desires’ are solely conscious wants whereas ‘preferences’ and ‘passions’ are unconscious or conscious wants; and ‘sentiments’ is the wholly inclusive term.

¹ From the subtitle to the Treatise.

² Vide Treatise, pp.73-74. Vide too pp.80, 124.

³ Vide Book I iv 1 for Hume’s argument about the possibility of demonstrative knowledge. This is the so-called epistemic leak argument, that even demonstrative reason must degenerate into only probable knowledge. The familiar technique Hume uses is to shift the emphasis away from the object of demonstration to the exercise of demonstrative reason by human agents and then to point out that as people do err there can never be certainty. For a telling critique of this epistemic leak argument vide Karlsson. Cf. too other passages in the Treatise, for example pp.90, 146.

⁴ Cf. Flew, particularly pp.52-68, for an analysis of Hume’s “demonstration of the impossibility of deducing propositions of the form ‘All X’s have been, are and will be O’ from propositions of the form ‘All so far observed, or otherwise known X’s are or have been O’.” (p.53)

⁵ The ‘atomistic’ theory of ideas is clearly present in parts of his argument. He asks what impression can ever produce the idea of causation. There is no single impression of causation nor is it demonstrably certain that a thing must even have a cause. The necessity of causation which we feel arises solely from experience and a constant conjunction of cause and effect. This argument, beginning in Section 2 and running throughout Part iii of Book I is certainly connected to the theory of ideas, to an image of mental activity as of a series of pictures (either impressions or ideas) flashed before the mind. Its weaknesses, including its overly mechanistic picture of the mind, are most apparent in Hume’s discussions of memory (section 5) and belief (section 7). In the latter, the theory of ideas forces Hume to say that believing differs from conceiving only in its greater force and vivacity and in the former, that memory is merely a stronger and more vivacious series of perceptions than imagination.

⁶ Treatise, p.91.

⁷ ‘Conceive’ is used in the sense in which the conceivable is the logically possible. “We can at least conceive a change in the course of nature.” (Treatise, p.89) A small caveat is necessary though. Within certain frameworks, like the assumption of uniformity, the ability to conceive does not entail possibility. (Cf. Treatise, p.89). I can conceive of giant ants but they are impossible given the laws of physics — their legs could not support them. It depends on what is imagined to stay the same, the laws of physics, human nature, nothing at all. The answer to the question, ‘Is the contradictory conceivable?’, varies with the ground rules. Still, in matters of first principles like establishing the uniformity of nature, Hume’s argument stands. Cf. Stroud, pp. 47-50.

⁸ Treatise., p. 134 (italics in original). Cf. p.88 “Perhaps ‘twill appear in the end, that the necessary connexion depends on the inference, instead of the inference’s depending on the necessary connexion.”

⁹ Similar arguments were used by Hume concerning the continued and distinct existence of bodies and concerning personal identity.

¹⁰ Enquiries, p.36. Vide too p.110 (“A wise man, therefore, proportions his belief to the evidence.”)

¹¹ Treatise, p.183 (italics in original). Vide too Enquiries, pp. 149-165 (“Of the Academical or Sceptical Philosophy”).

¹² The term treasonable’ is my own and is to be taken in the sense of ‘not based on reason’ or ‘not caused by reason’. The term ‘unreasonable’, which Hume himself uses at times (vide for example Treatise, p.416), is unsatisfactory because it suggests disapproval, something which is not reasonable. But the adjectival description I seek is of something which could not be reasonable, not being that kind of thing.

¹³ Treatise, p.187.

¹⁴ I leave for others the task of criticising Humean psychology and offering more modem alternatives. Doubtless Hume’s model was too simplistic, mechanistic and perhaps optimistic. (Vide for instance note 5 supra.) But it is Hume’s general approach that I am interested in.

This attack actually begins in Book II iii 3 of the Treatise and then is picked up and finished in Book III.

Vide Mackie (2), pp.54-55 or Brown, inter alia, for a defence of this second premiss. It would seem to me rather uncontroversial, though, that moral determinations alone may and sometimes do spur actions. Cf. though Harrison (1).

Treatise, p.413 (italics in original).

Treatise, p.415.

Ibid.

Ibid., p.414.

Vide Stroud, pp. 155-170 and Mackie (2), chapter III but cf. Shaw (1) and (2). Cf. Enquiries, p.293.

Stroud, p.169.

Nagel, who disagrees strongly with my and Hume’s views, also takes great advantage of the technique. Vide Nagel (2), pp.143, 162 inter alia.

Treatise, p.416.

As stated in note 12 supra my preferred term treasonable’, means ‘not based on or caused by reason of either the narrow or broad sort’. Hume is somewhat loose and careless in his language at times. Cf. Hume’s use of ‘society’ in the discussion of justice in Treatise, Book III ii 2, discussed in chapter five, infra.

Mackie, at Mackie (2), pp.44-50, notices a third way reason can oppose passion involving the suppression of a true belief (‘excess drinking is unhealthy’) and the joining together of long-term (‘I want to be healthy’) and short-term (‘I want to drink now’) desires. But as Mackie admits, this third case does not prove reason, on its own, can oppose passion or initiate action let alone direct one’s whole life. It merely shows the capacity of passion to suppress unwanted information. Nor, I might add, is it evident that all wants always do disappear in the face of a reason-based belief that satisfaction is impossible.

Treatise, p.416 (italics in the original).

Ibid., p.417.

Hume himself is not always careful to distinguish between the senses of reason which he is discussing. Moreover, the use he makes of the term ’reason’ ranges from ‘a comparison of ideas’ (Book I iii 2 & 3), to probable or causal reasoning (I iii 6), to ‘a species of sensation’ (I iii 8), to ‘the adapting of means to ends’ (I iii 16), to ‘a wonderful and unintelligible instinct’ (I iii 16), to ‘the discovery of truth and falsehood’ (III i 1), to the comparer of ideas and inferor of matters of fact (III i 1). Reason as vulgarly understood also encompasses the calm passions such as the desire for one’s long-term good. One could possibly even argue that reason for Hume is linked to the procedures and methods leading to acceptable grounds for belief, two such criteria being coherence and consistency. Of course these last two depend on the uniformity of nature (there being nothing to recommend either in a world without necessity, without even some sort of quantum probability, but rather a world of chance events and patternless nature). Consistency is only logical where nature is uniform. And this uniformity of nature is itself strictly a natural belief and not finally ‘reasonable’.

³¹ Shaw (2), p.25 (italics in original).

³² I am grateful to Dr. Sherwin Klein for his advice and suggestions on this point.

³³ The analysis that follows owes a debt to someone whose work I have read somewhere but now have forgotten where and cannot find. To whomever that is I apologise for not citing your work here.

³⁴ Vide Treatise, Book II iii 3, particularly p.415.

³⁵ There is, however, a sense in which Hume’s emphasis on the truth of a means­end belief is well-founded. This arises if one distinguishes between two types of beliefs. The belief that:

a) this A will lead to that G;

& b) acts of type A generally lead to goals of type G.

If the belief is type a), then that belief need not be true for the action to be reasonable (and as regards these type a) beliefs Hume’s emphasis on truth would be too restrictive). However, if the belief is type b), then that belief seemingly does have to be true (and in this sense Hume would be supportable). In fact, the connection between the truth of a means-end belief and the reasonableness of an action is even further strengthened by the realisation that type a) beliefs must rest on type b) beliefs.

³⁶ It is to be noted that the adjective ‘reasonable’, as a term of endorsement, can simply refer to preponderant preferences, to what is generally regarded as appropriate. For example in later chapters I shall argue that Hume, in discussing moral values, is not really concerned with what values are right or good, but, to the minimal extent he deals with that issue, he answers in terms of general tendencies.

³⁷ I have so far used the terms ‘justification’ and ‘evaluation’ more or less interchangeably, but a more careful distinction may be helpful. To justify means ‘to show to be right’ and this can, to some, suggest that there is a most correct response. To evaluate means ‘to show to be good or bad’ and this seems to imply that the process is a matter of degree and thus that differing desires might be equally good or equally bad. It seems to me that a ‘justified desire’ can be taken to mean either a) that there is no conflicting, equally justified or right desire or b) that incompatible desires and actions can also be justified or right. The choice appears linked to one’s view of the status of moral evaluations. Humeans tend towards b) and would say that a) is perhaps indefensibly rationalistic and reliant on an objectivist moral theory. However, as a linguistic reform 1 will from now on talk predominantly in terms of ‘evaluating’ desires and defer consideration of the substantive issues involved until chapters two and three.

³⁸ Cf. the doctrine of the ‘reasonable man’ in tort law. The reasonable man is described as one whose cognitive capacities are working normally and naturally, so that he believes the things it is normal and natural to believe. Thus liability is restricted to the consequences of those actions which could have been foreseen by the reasonable man. But this fictitious creation, the reasonable man, is constructed with one particular set of values (e.g. extreme risk aversity). This set of values is not deduced or discovered as right behaviour by reason; it is the product of public policy and judges’ biases, admittedly shaped by experience. The reasonable man doctrine, though, obfuscates the fact that standards of approval involve mere preferred outcomes by retaining the language of reason.

Discussion in this chapter is with respect to Nagel (1). In chapter two I consider Nagel (2).

Nagel (1), p.14.

Ibid.

It is, quite understandably, part of the Nagelian approach to frame the issue in terms of reasons. To do so, however, seems in a sense to pre-judge what is in question.

Harman, p.71 (italics mine). However the converse of this, it seems to me, is that Nagel simply cannot explain why not everyone does what, on his hypothesis, they have reason to do (assuming the case where there are no competing reasons). All Nagel can say of such people is that their behaviour is not objectively rational, that they are disassociated from themselves. To go beyond that would be to enter Hume’s naturalistic, causal world. Such a deficiency may be thought to lessen the appeal of the Nagelian position. I discuss this point below.

Vide in particular chapters V and VIII of Nagel (1).

Nagel (1), p.29-30 (italics in original).

Vide note 45 supra.

Vide note 45 supra.

Prima facie Nagel would be loathe to admit i), ii), iii) and iv) as each would be inconsistent with other elements of his position.

In fact, unlike Hume himself, a modem Humean could well accept that motivating desires, preferences and proclivities need not always be felt consciously. The spur to action need not be a passion if that requires conscious awareness. Cf. Shaw (2).

I discuss justice specifically in chapter five infra.

McDowell, pp.23-24.

I do not take a position on this as I do not believe it can be used in the way Nagel wishes. Vide this page et seq. in the main text. However it seems to me not implausible to argue that a conception of personal identity logically requires a conception of time.

A causal reason which is able to point out when desires are founded on false suppositions or when means are insufficient for designed ends. Vide note 25 supra.

Vide chapters two and three infra.

McDowell, p.19.

Although clearly Nagel is making a weaker claim than one who says ’this is the way a human must see the world’, for Nagel clarifies his claim by adding ‘or else he is irrational and disassociated from himself.’

Vide note 31 supra.

McDowell, p.18. Vide chapter three infra for my discussion of projectivism and the mind’s propensity to spread itself upon objects.

This is Harman’s example, p.72. How does a ‘rational’ concern for others distinguish the two situations?

Nagel attempts to avoid this conclusion in Nagel(2), chapter IX. But consistency seems to require it to my mind. I discuss aspects of utilitarianism in chapters two and nine infra. Cf. Mackie (3), chapters XIII and XIV.

⁶¹ For example, both, as I will say, advocate that the moral standpoint involves the taking up of something describable as the impartial vantage, be that objective (Nagel) or inter-subjective (Hume).

⁶² One of the platforms on which Nagel rests his theory is a “presumption that things exist in an external world” and a similar “presumption that there are real values and reasons” (Nagel (2), p.143). Such presumptions imply the making of a conscious choice. Hume’s position is different. For example he notes that even animals seem to ‘believe in’ an external world (vide Treatise 1 iii 16). Again, for Hume it is simply a natural belief having to do with the contingent, but actual, way our minds work.

⁶³ Vide chapter nine, sections c), d) and e) infra for a discussion of the ‘naturalistic fallacy’ and the extent to which Hume might be considered a natural law adherent.

⁶⁴ Treatise, p. 183.

⁶⁵ The ‘Kantian’ position, to be sure, also requires a story about freedom, as a pre-condition to morality proper. But Hume thinks this unintelligible.

⁶⁶ Of course, Hume’s own general method, particularly as set out in Book 1, part ii, is too simplified and perhaps mechanistic. For example, it ignores the role, in modem scientific theory, played by idealised models and unobservables. That is not to say, though, that the framing and functioning of such idealised models cannot be explained in Humean empirical terms. All that is needed are observed regularities in the external, causal world — experienced regularities imposed from without, as it were.

Chapter Two

¹ Fuller (2), pp.3-4.

² Vide Treatise II iii 1 and 2; Enquiries 1, VIII. Vide too Stroud, chapter VII and chapter six, note 41 infra.

³ Vide, for instance. Enquiries, pp.96-103.

⁴ Treatise, p.408.

⁵ Henceforth when 1 use the unmodified term ‘reason’ it will, unless otherwise specified, refer to Humean reason of either the broad or narrow sort or some combination.

⁶ For a thoroughly excellent review of Hume’s arguments in Book III i 1 vide Mackie (2), chapter IV. Vide particularly pages 55-63.

⁷ Vide chapter nine, sections c), d) and e) infra for a full discussion of the is/ought dilemma. 1 will argue that Hume’s position is not that the moral ‘ought’ cannot flow from any ‘is’, but rather that no such move is ever based on reason (broad or narrow).

⁸ Treatise, p.469 (italics in original). Cf. Mackie (2), p.62 where Mackie argues that “the apparent exceptions [to Hume’s is/ought Law] rely on clusters of linguistic rules which, as clusters, implicitly incorporate categorical imperatives.” Again, I leave my full treatment of this issue until chapter nine infra.

⁹ Vide Mackie (2), p.53. Cf. the Harrison (2) review of Mackie (2), especially page 71, where Harrison too disagrees with Mackie’s claims about false beliefs being able to move us to act. Indeed Harrison says he cannot understand Mackie’s point.

¹⁰ Ibid, (numbers inserted by me and not in the original).

Vide chapter one supra for my distinction between desires, propensities and preferences. In short, a desire passes through the consciousness, a preference need not. Nor need a propensity, although I have further limited propensities to the dispositional rather than the episodic. However these are my refinements, not necessarily anyone else’s.

In fact neither I, nor Mackie, accept the intuitionist position as correct in substance.

I fully accept and adopt Mackie’s two arguments against the objectivity and mind-independence of values and thus against intuitionism, as set out in chapter one of Mackie (1). In brief, and with much simplification, those arguments are as follows: The argument from relativity starts from the empirical fact that there are many varying moral standards between societies and eras, and even many differences within a society. Such relativity in the first-order content of moral codes undermines the notion that morality involves the apprehension of moral truths. If it is suggested that what is objective are those general values that have been accepted in all societies, then the mooted objective values — if any such universal values could be found — would be very general indeed. The argument from queerness demands an explanation of what these objective, mind-independent values are. They are not part of the natural, causal world; nor are these non-natural entities some sort of demonstrative, logical relations. What then are they and how do humans become aware of them? The notion of an intrinsically prescriptive entity, outside the normal empirical realm, seems implausible and false. For Mackie’s arguments in detail vide Mackie (1), in particular pp.36­42.

Vide chapter one, note 31 supra and the accompanying and immediately following text.

Different positions can be taken by intuitionists on whether this moral sense is a part of reason or not and thus properly within the realm of the rational. If it is felt not to be, this alone would not affect the rest of the intuitionist argument that such a belief can produce action. But there would then be a concession that reason does not discover moral relations but rather that some other special mental faculty does the discovering. Presumably then it would be this other special faculty that moved action without the need for an appetitive desire. Nothing in my narrative turns on the distinction however. Nagel (2). 1 have discussed and rejected the Nagel (1) argument that reason alone can motivate action in chapter one supra. In what follows I consider the Nagel (2) arguments which involve focusing on the domain of morality and then concentrating on what Nagel calls objectivity.

Nagel (2), chapter VIII (particularly pp.139 and 144). I concentrate, in what follows, exclusively on chapters VIII and IX of Nagel (2).

Nagel (2), p.142 (the appropriate subject being human conduct). Nagel’s form of objectivity seems to me to be a type of endorsement, one which claims a status higher than the mere contingent.

Ibid.

Ibid., p.144.

This is the obverse of traditional ethics which move from human reason to appropriate conduct. Vide chapter one, section b) supra.

Nagel (2), p. 138.

Ibid., p. 139.

Ibid. Ibid.

Ibid., p. 154.

Ibid., p. 140.

Ibid., p. 144.

Of course the process involved in ‘stepping outside of oneself and achieving the impartial, objective standpoint is a complicated and difficult one.

Nagel (2), p. 142.

Nagel advises that the process take place as follows:

We first form a conception of the world as centerless — as containing ourselves and other beings with particular points of view. But the question we then try to answer is not ‘What can we see that the world contains, considered from this impersonal standpoint?’ but ‘What is there reason to do or want, considered from this impersonal standpoint?’ (p. 140).

Such a Nagelian reason, ex hypothesi, would also be able to evaluate ends, not merely means.

Vide Nagel (2), p. 144.

This is Mackie’s term in Mackie (1) for the third argument Nagel considers beginning at p. 147. Vide note 13 supra.

This is the second argument Nagel considers against his position. It begins at p.146.

Again, this is Mackie’s terminology. Nagel considers this argument first from p. 144. Again vide note 13 supra.

Nagel (2). p.l 52.

Ibid., p.l56.

Ibid., chapter IX.

Nagel (2), p. 154-155.

At least not in Nagel’s terms because he is careful not to couch his objectivity in terms of majorities. (Cf. Dworkin who is also careful to avoid this.) A strict utilitarianism which measured ‘objective rightness’ solely in terms of head counting still would not settle the issue of whether the responses to and evaluations of the finger lover’s preference were objective in Nagel’s sense, and linked to reason, or merely subjective, areasonable feelings, as Hume goes on to assert.

Nagel (2), p. 153. Query whether this admission is a step back from the Nagel (1) position as discussed in chapter one.

Nagel (2), p. 144. One of Nagel’s favourite replies is to point to pain (vide for example pp. 144, 157, and 166-167) which he says is objectively bad not because it has some mysterious causal property but because “there is reason for anyone capable of viewing the world objectively to want it to stop.’’ (p.144) This is a variation on the same technique of his I attacked above. (Vide the text found at note 40 supra) Hume, and almost all the rest of us, would agree that pain is bad. But how can the badness be detached from the contingent responses of humans, however widespread the response, and made ’objective’? This latter step is glossed over by Nagel. For Hume, pleasure and pain certainly have value; one is good and the other bad. But neither has any connection to reason or non-causal objectivity.

And I venture to say that even in Nagel’s normative realm, where he says there are ‘real’ objective values, the process he describes to find these values is still a subjective one. However I make no claims about this as, from my point of view, such speculations are too metaphysical to be pursued with any confidence.

⁴⁵ Whereas intuitionists would make this second claim as well.

⁴⁶ However, any falling away from this strong form of utilitarianism, such as Nagel permits, must involve subjective preferences. Of course the choice to adopt a utilitarian model is itself subjective. But once chosen, there does seem to be an impersonal, non-subjective flavour to full-blooded utilitarianism.

⁴⁷ Cf. Treatise, III ii 2 and Enquiries 2, III. Vide too Mackie (2), p. 153.

⁴⁸ The utilitarian calculus of counting preferences has obvious and indisputable practical limitations. As such it may not be accurate to suggest it can actually provide a standard. But it certainly provides a procedure for determining a standard — the actual standard reached depending on the breadth of the survey of others one decides or has time or is able to consider.

⁴⁹ I recognise that utilitarians, including Bentham, often wish to allow for the individual’s strength of feeling of pleasure or pain in making a calculation and that ‘greatest average happiness’ may thus be a preferable measure to ‘greatest happiness of the greatest number.’ Such a shift does not affect the substance of my analysis. I use the latter merely for convenience.

⁵⁰ This, no doubt, is one reason why Hume himself moved towards more utilitarian explanations in the Enquiries. (Vide note 47 supra). Utility need not disturb the essential claim about the subjectivity of values. However the problem with utility, at least from the perspective of the Treatise, is not in its adding of subjective responses. Rather, it is firstly in utility’s treatment of pleasure and pain as the only 'givens’. Hume is clear that inherent proclivities like vengeance or benevolence can and often do outweigh the seeking of pleasure and pain. Secondly, Hume in the Treatise rejects usefulness as the explanation, or sole explanation, for the virtues. Vide chapters four and five infra.

Chapter Three

¹ And no argument, as 1 conceded in the last chapter, can provide that conclusive proof. Quite simply, why must ‘what-the-case-is’ about valuing in fact correspond to the assumptions underlying normal discourse?

² Nagel (1), p.6.

³ Vide Enquiries, pp.282-284 where Hume says, in effect, that following justice rather than free-riding is simply more appealing to him and anyone else like him, whatever the cost, and that no further answer can really be given. Vide too chapter six, note 20 infra and cf. MacCormick, p.90.

⁴ He lays much of the groundwork, however, in Book 11 where he considers the passions and the principle of sympathy.

⁵ Treatise, p.470.

⁶ Vide Treatise, p.470.

⁷ Ibid., p.471 (The first set of italics is mine: the rest are in the original).

⁸ 1 agree with Mackie on this point. Vide Mackie (2), pp.65-66.

⁹ Vide Treatise, p.472.

¹⁰ 1 leave the interesting question of whether animals can be virtuous. By way of indication, it seems to me consistent with Hume to say that animals are capable of his natural virtues but not of his artificial virtues (vide chapter four,

section c) infra).

Vide Treatise, p.471.

Ibid., p.472 (italics in original).

Ibid, pATS.

For an excellent study of Hume’s four psychological categories, which he calls indirect passions, vide Ardal, particularly chapters one, two and six. Very briefly, the indirect passions of pride, humility, love and hatred are, like all passions, simple impressions which are direct, indefinable and unanalysable. As such, Hume’s concern is to give a causal explanation of these passions — definition and analysis being for him impossible. Hume’s causal explanation then distinguishes passions on the basis of how they arise. Primary passions do not arise from pleasure or pain but from instinct. They can be violent or calm. Secondary passions do arise from pleasure or pain. If the passion arises immediately from pleasure or pain it is a direct passion. Direct passions can also be violent or calm. If the passion arises from pleasure or pain, not immediately, but in conjunction with other independent sources — for Hume a complicated double association between oneself and the object related to oneself and pleasure and pride (vide Ardal, p.26) — then it is an indirect passion. Indirect passions can also be violent or calm. The violence or calmness of a passion is a distinction based on emotional intensity. This distinction is not to be confused with the motivational strength or weakness of the passion. Again, vide Ardal for a full and excellent account of Hume’s discussion.

Vide Treatise, p.472 and note 12 supra. Vide too Ardal, chapter six. In requiring an impartial vantage, “without reference to our particular interest” (Treatise, p.472), Hume has this much in common with Nagel.

Treatise, p.473.

Ibid., p.476.

Ibid., p.475 (italics in original).

Mackie (2), p.76.

Vide Klein (1) and (2) who argues that received or reputable opinions (‘endoxa’) can serve a regulative function and that these regulative endoxa are objective but not (at least not necessarily) mind-independent. In my view, however, such constraints are merely inter-subjective and anyway contingent. Vide chapter eight, section c) infra.

Vide for example Ardal, chapter nine and Mackie (2), chapter V, inter alia.

It seems to me that I cannot ignore the issue of the meaning of moral utterances quite the way Hume did. Some explanation is called for to account for the discrepancy between ordinary meaning and the tenets of a sentiment-centred moral theory. However my main focus is not with meaning and I will be relatively brief, concentrating on what I see as the crux of the dispute as it bears on moral scepticism.

Vide in particular Mackie (1), chapter one and Mackie (2), chapter V. Indeed, these are the first words of Mackie (1), stated in no uncertain terms. Treatise, p.470.

Even this claim is too restrictive. Hume would certainly not have classified Descartes, Hutcheson, Price or Reid as amongst the vulgar. Nor would I so classify Nagel. Moral scepticism about objective, absolute or mind­independent values subverts many philosophical as well as vulgar systems of morality.

Mackie (1), p.33.

Mackie (2), p.71.

Vide chapters four and five infra for my discussion of sympathy and the building of a system of more or less shared sentiments.

Mackie (1), p.33. Vide note 27 supra.

Mackie (2), p.72.

Failure to make this distinction will tend to lead to a simplistic reading of Hume as propounding a crude, descriptivist theory of the meaning of ethical propositions.

The evaluation is a feeling, a sentiment or emotion. It is not a judgement or reflection that one has an emotion.

The terminology can be very confusing. On the level of what is really happening when people evaluate, Hume could be called a non-cognitivist but I prefer ‘anti-cognitivist’ (vide chapter four, note 6 infra). For clarity, and to emphasise the distinction between questions of fact and questions of meaning, I have decided to restrict the term ‘non-cognitivism’ so that it describes one type of theory about the meaning of moral language and thought. There are no necessary, logical or, as I have contended, convincing grounds for moving from a substantive anti-cognitivism to a non-cognitive theory of meaning. For the role of reason in moral evaluating vide chapters one and two supra. Mackie (2), p.70.

Ardal, chapter nine. Vide particularly pp.198 and 212. Ardal’s terminology is different from mine. For theories of meaning, his terms ‘emotivism’ and ‘subjectivism’ are broadly equivalent to my terms ‘non-cognitivism’ and ‘naturalist-descriptivism’ respectively.

Ardal, p.212.

Ibid.

Hume was certainly careless and loose on occasion with his language. For example, vide chapter five, the start of section b) infra where I note the ambiguities and indeterminacies of Hume’s use of the term ‘society’.

Treatise, p.470. Vide note 5 supra.

Ibid., p.471 (italics in original). Vide note 7 supra.

Ibid., p.468-469.

Ibid., p.469 (italics mine).

Of course moral language has other, less used, purposes which Hume may well have also noted. Such language can be used to influence others’ actions even where the speaker has no such feeling (or false belief) herself. It can also be used to describe generally accepted conditions under which such moral statements are appropriate. However, usually such language is used as a statement of what the speaker believes are ‘real’, ‘true’ qualities or features in the world.

Ardal, p.208.

Mackie (2), p.72.

Treatise, p. 167.

Mackie (2), p.72.

Enquiries, p.294 (italics in original).

Vide Firth, p.201.

They are also ontologically objectivist in that they are not dependent on the experience of actual beings. (Vide Firth, pp.204-205).

Firth, p.202.

Ibid., p.203.

Cf Ardal, pp.141-147.

Firth, p.203.

Ibid., p.204 (italics in original).

Vide Firth, pp.206-209.

Firth, p.200.

Ibid., p.208.

In what follows I draw explicitly on Nagel (1) rather than Nagel (2). However both argue for similar conclusions in broadly similar ways.

It will be recalled that Nagel denies that there must always be an underived want to move one to act. Ethics can have temporal priority over motivation, he asserts. But Nagel gives no convincing explanation, to my mind, of how reason alone can move people to act; of how reason can, in effect, create desire where none existed before. Nagel’s response is to posit a purely normative realm outside the empirical causal world. Vide chapters one and two supra. Nagel (1), p. 14.

Ibid.

Treatise, p.167. Vide note 47 supra.

Vide Simon Blackburn’s “Errors and the Phenomenology of Value”, chapter one in Honderich (2). (Hereinafter cited as ‘Blackbum’).

Ibid., p. 12. (Vide too the rest of page 12).

Ibid., p. 17. The ‘lame analogy’ referred to is to secondary qualities which I discuss in section d) infra.

Ibid., p.18.

Ibid., p. 19.

In Part Two of Mackie (1).

This is Blackbum’s term. Vide, for instance, p.2.

Vide Blackburn, p.2.

This attack really starts at p.l 1. Some of Blackbum’s discussion of secondary qualities I will pick up below.

This example is the one Blackburn relies on himself. Vide p.6.

Blackburn, p.5.

Ibid., p.6.

Vide Hume’s “Of the Standard of Taste” in Essays for a somewhat analogous undertaking.

But vide the last six or seven paragraphs of this chapter’s section b) for my arguments that it can sensibly continue to be used.

Treatise, p.99.

It seems to me that Blackburn comes close to an implicit recognition of this himself. (E.g. “It is this objective feel or phenomenology...” (p.6); “... because of the absolute and external ‘feel’...” (p.7)).

Ironically, Ronald Dworkin also seems to think that people generally believe there are ‘right’, ‘true’ answers. Vide chapter seven, in particular the start of section b) infra. Of course Dworkin goes on, unlike me, to say that that means there are such answers.

Blackburn, p. 14 (italics mine).

Ibid., p.10.

Ibid., p.6 (italics mine).

Ibid., p.10.

The side-issue of the likelihood of reform of language, and the necessarily connected conversion of most people away from objectivist beliefs, 1 pursue at the end of this section b) infra. Here I merely opine that Hume himself would have been very pessimistic of the chances of change. Cf. note 88 infra. Cf. too Hume’s views on the durability of superstition. (Vide for example Enquiries. p. 110 and Kemp Smith’s introductory comments in Dialogues, p.49).

Whether Part One of Mackie (1) is such an explicit caveat and whether Mackie makes it clear that language is being used with a different meaning in Part Two is an open question.

However Blackburn admits that it is difficult to get people to accept projectivism (vide for instance Blackburn, p.18 and vide note 68 supra) and if reform is judged impossible this might also influence the choice whether to shmoralise or to moralise. However, in the different context of using religious language when the user does not believe in the truth behind the language. Mackie seems to accept that continued use of the old language inhibits change. “Those who are dissatisfied with the old creeds should change them, not try to do without credal statements. If the other term of the relation is not God in the traditional sense, then to go on using the traditional names and descriptions, the familiar religious language, carries at least a risk of misunderstanding, and, more importantly, it tempts the believer himself into oscillating between the views he is really prepared to assert and defend and the familiar suggestions and connotations of the language he continues to use.” (Mackie (4), p.4). The practical alternatives to an unaccepted religious language, though, seem much greater than to an unaccepted moral language.

An imperfect analogy would be with a particular musical score generally believed to be for violas. If independent, empirical research shows the score to be for violins cannot the same score continue to be used — while hoping to convince people it is meant for violins? And continue to be used even though the expert researcher knows that others, for now' at least, will continue to think the score is meant for violas. Another such analogy might be with small scale maps in pre-Renaissance Italy where almost everyone believes the world to be flat. Surely the ‘Round World Advocates’ can continue to use the maps.

Vide Mackie (2), p. 154-156; Mackie (3), p.239.

Goldsworthy, p.60. Goldsworthy himself also seems to think the fiction is useful. Vide pp.59-60. Cf. my Concluding Remarks infra.

Enquiries, p.279.

Vide in particular Blackburn, pp.6-13. 18. I suppose that if everyone were to ’see through’ the objectified overlay then the motive to be moral might change and become more obviously linked to self-interest.

For more on virtue vide section e) infra and chapter four, section c) infra. This is my effort to state the secondary qualities analogy succinctly and fairly. My attack on that analogy owes much to Blackburn and something to Firth. Ardal, p.207.

Treatise, p.469.

Ibid., p.227-228.

Vide Kemp Smith, chapters 1 and 11 and the headings to Parts II and III inter alia. Vide too Stroud, p.186. Kemp Smith argues that Book 1 was written after Book III.

Treatise, p.226.

Leaving open the question how mind-dependent secondary qualities in fact

are.

¹⁰² And on this question I agree with Pitson that Hume believed secondary qualities to be just as real as primary ones. Indeed Hume goes on to argue in Book I iv 4 that if secondary qualities are subjective and unreal then so too are primary qualities. 1 think that it is the fact of our natural belief in a real external world that leads Hume to say secondary qualities are as real as primary ones rather than opting for the other possible response: that primary qualities are as unreal as secondary ones.

¹⁰³ Vide Blackburn, pp.13-15. In general, I only disagree with the third of his points.

¹⁰⁴ Vide Gallie and chapter seven, section b) infra.

¹⁰⁵ Vide Firth, particularly pp.205 and 206.

¹⁰⁶ And so 1 say that Hume was correct that secondary properties are as ‘real’ as primary ones. Vide note 102 supra.

¹⁰⁷ This is what Mackie means by the “argument from relativity”. Vide Mackie (1), pp.36-38 and chapter two, note 13 supra.

¹⁰⁸ Hume could also, and does to some extent, tell us his own sentiments. These are by and large conventional with a heavy dose of irony due to their insubstantial foundations.

¹⁰⁹ Vide “Of the Standard of Taste” and “The Sceptic” in Essays and “ A Dialogue” in Enquiries, inter alia.

¹¹⁰ Vide chapter six, section a) infra for a fuller discussion of the good life-moral life debate.

¹¹¹ Vide “The Sceptic” in Essays, pp. 169-170. Vide too chapter five, note 137 infra.

¹¹² This ‘educating’ of the heart seems prima facie to cause problems for Hume. If I get an opinion that ‘I have a certain feeling 1 ought not to have’, then what exactly is that opinion? Hume cannot say simply that the opinion is a belief because beliefs alone cannot move us to act. This opinion pretty clearly does have potential motivational force. So for Hume there is a core level feeling involved. But, and here’s the seeming difficulty, feelings for Hume have no propositional content. The opinion that ‘I have a feeling I ought not to have’ seems to be either true or false. But of course the core level feeling itself — that I should change my first feeling —is not propositional. I simply have the feeling. What is propositional is what feelings most others in society happen to have (which may be the causal explanation for my getting the second feeling) and the causal beliefs and consequences surrounding the acting on either of the two feelings. ‘This is what will flow from the original feeling’ is propositional. The new feeling of disapproval for the old feeling is not. (And thus Hume concentrates on explaining the second feeling rather than saying what it is.) Vide too section c) supra.

¹¹³ On Hume’s theory if there were not fairly uniform feelings amongst people then society would probably not be possible and he, Hume, would not be writing. The cause of this broad regularity could be evolution or anything else; at one level though the order that does exist is contingent.

¹¹⁴ 1 pursue this escape in chapter six infra, from the last two paragraphs of section c) through section d).

Chapter Four

Treatise, pp.455-456.

Ibid, p.475.

Ibid, (italics in the original).

Mackie (2), p.76.

This assertion of the possibility of explanation does not require that Hume’s own explanation be correct nor even that any human explanation be adequate — the naturalist position that there are empirical, natural causes for all actions is quite consistent with an admission or realisation that for any such explanation to be complete may be beyond human capacities.

I use this term rather than ‘anti-rationalist’ because in Hume’s own sense of reason he is certainly not one who attributes no role to reason nor does he countenance the view that passions compete with and ultimately over-ride reason. ‘Non-cognitivist’, on the other hand, is too associated with a theory of meaning. (Vide chapter three, section b) supra, and in particular note 34) 1 take the term ‘anti-cognitivist’ from Bricke, p.10.

Vide chapter one, note 7 supra.

For example, it may be that the concept of personal identity necessarily involves an awareness of time or that human perceptions must be temporal and spatial. 1 have discussed Nagel’s Kantian transcendental claims briefly in chapter one, section d) supra.

This observed fact is the foundation of one of Mackie’s arguments against the objectivity of ethics and what he calls the argument from relativity. (Vide Mackie (1), pp.36-38 and vide chapter two, note 13 supra). He notes further that if one were to suggest that what are necessary and objective are those general values that have been recognised in all societies, then the mooted objective values — if one could in fact find any such universal values or standards — would be very general indeed. 1 think it is helpful in evaluating the strengths and weaknesses of this argument from relativity to frame it in syllogistic form. Hence:

A. There are many standards of ‘right’ in the world. (Observed Fact)

B. An objective ethics necessarily implies only one standard of ‘right’.

therefore Ci.(First possible conclusion) There is no objective ethics.

or therefore C2. (Second possible conclusion) Many people are mistaken in their standards of ‘right’.

Clearly this argument on its own leaves both Cj and C2 as logical possibilities. The question is ‘Which is more likely?’ and this cannot be answered from within the argument. One’s opinion will depend on further facts and arguments. Nor is the balance of likelihood necessarily the same when an ‘ethics of good’ rather than an ‘ethics of right’ is being evaluated. Substituting ‘good’ for ‘right’ in the major and minor premisses may lessen the observed diversity asserted in A even to the point of increasing the possibility of some few features being uniformly (if contingently) recognised. Cf. chapter nine, section d) infra.

This is so whether or not Hume himself would wish to push for the more stringent ‘contradiction’-based test of contingency and necessity.

Indeed it is such empirical evidence of the contingency of moral evaluation that gives persuasive force to much of Hume’s writing. For example vide “ A Dialogue” in Enquiries pp.324-343, or “The Sceptic”, “Of the Standard of

Taste” and “Of Suicide” in Essays. Note too the sub-title of the Treatise.

Vide for example Nagel (I), pp. 4-6 and Nagel (2), pp. 140-141.

By this I mean that a system of public morality clearly does exist, not that one cannot choose to be amoral — one can so choose in my view.

Mackie (2), p.72. Vide chapter three, note 31 supra.

Vide my discussion of justification and evaluation in chapter one, section c) supra, particularly note 37. It should be evident by now though, that rational justification of the inclinations themselves is, for the Humean, not possible.

Pace Nagel at Nagel (1), p.ll. For why sympathy could not be a passion itself if Hume is to offer a coherent explanation of morality vide the end of this section infra. But compare note 23.

Cf. Ardal’s account of Adam Smith's position pp.133-147. Vide too Mackie (2), pp.130-132.

Stroud’s metaphor is of tightened strings that communicate movement from one to the other. Vide Stroud, p. 196. One of Hume’s metaphors is of mirrors reflecting emotions. Vide Treatise, p.365.

Hume tried to explain sympathy in terms of the Theory of Ideas whereby an idea (say, of your feeling of fear) is enlivened into an impression (say, of my own feeling of fear) due to the lively idea or impression we all — including me — have of ourselves and due to resemblance. Vide Book Hill and II ii 4. Vide too Mackie (2), p.121 and Ardal, pp.43-46 but cf. Stroud, p.198. However, as 1 have emphasised already, Hume’s explanations based on the Theory of Ideas can be rejected while retaining, and accepting, the fact that such a principle as sympathy does exist.

Treatise, p.316.

Ibid., p.317.

Vide Treatise, p.371. Vide too Ardal, pp.48-54.

Treatise, p.576 (italics in original). A typical difficulty with Hume shows itself here — his loose and ambiguous use of language {Cf. The start of chapter five, section b) infra). Occasionally Hume, as here, uses ‘sympathy’ to mean an emotion like pity. There is also Hume’s distinctive use of‘sympathy’ in Book I regarding the relation parts play to the whole. Vide Ardal, chapter three for a full discussion of Humean sympathy, including this difficulty of varying senses of ‘sympathy’. Nevertheless it is to a principle of communication of sentiment that Hume generally refers in discussing sympathy and it is this sense and principle that is fundamental to his moral theory and that is based on visible effects.

Ardal at times seems to disagree. Cf. Ardal, p.45.

On the mechanical nature of Hume’s model of the transfer of feelings vide in particular Ardal, p. 46. Note however that a rejection of Hume’s simple Theory' of Ideas mechanisms does not force one to say that sympathy involves consciously imagining oneself in another’s place. For Hume it does not involve that. For an in-depth treatment of Hume’s principle of sympathy as well as its opposite principle of comparison, where comparison produces a feeling roughly opposite to the one in the compared to person, the reader is again referred to Ardal.

This requirement of the relation of resemblance is as contingent, for the Humean, as the principle of sympathy itself. Why should I care more for the fawn than the lizard? The answer for Hume involves his association of ideas principle. But this again seems too mechanical an explanation. Nevertheless, the influence of the relation of resemblance and the biased nature of sympathy clearly exist. And as we shall see, were sympathy not biased in this way there would be no difficulty in adopting an impartial perspective — indeed, no reason to try. Vide chapter five, section e) infra.

Vide Treatise, III ii 1 and vide the beginning of chapter five infra. Any such attempt to explain all moral sentiments as instinctive would, quite evidently, be of little interest and pretty clearly false.

Or more exactly, I could not feel something similar, something of the same general influence or quality. This is all Hume requires of sympathy; he does not need identity of feeling. What cannot be the case for Hume is that your fear produces the special feeling of sympathy in me. It must produce some variant, weak or strong, of fear in me.

But note that the feeling produced by sympathy is not approval; it is an attenuated copy of what others appear to be feeling. This replicated feeling may cause the experiencer to feel approval. But it may on the other hand be outweighed by other, separate feelings which lead rather to disapproval.

Approval and disapproval are for Hume passions, unanalysable and indefinable. They are states of feeling, areasonable sentiments.

And some types of virtue, what Hume calls artificial virtues, require a complex explanation for that non-instinctive approval.

A brief initial discussion of virtue and vice was given in chapter three, section a) supra.

Treatise, p.591.

Ibid., p.589 (italics in original).

Ibid., p.591.

Note that even category b) relies on the principle of sympathy. “It has also a considerable dependence on the principle of sympathy so often insisted on. We approve of a person, who is possess’d of qualities immediately agreeable to those, with whom he has any commerce; tho’ perhaps we ourselves never reap’d any pleasure from them... To account for this we must have recourse to the foregoing principles.” (Treatise, p.590 (italics in original)) Vide too Ardal, chapter seven, particularly pp. 154-156.

Of course the same quality or characteristic of mind can meet any or all of these tests. It can be useful and pleasing, to me and others.

And conversely vice is a ‘badness at’ something.

Thus Hume is content to include, inter alia, wit as a virtue. Vide Treatise, p.590.

As Hume carefully explains in Book III i 2 (‘Moral Distinctions derived from a Moral Sense"), the sense of nature and natural is ambiguous. It can be used as the opposite of the miraculous, or of the rare and unusual, or of that which is due to human artifice. Vide chapter eight, note 48 infra.

Treatise, p.473.

Ibid.

So although it is “absurd to imagine, that in every particular instance, these sentiments [of virtue] are produc’d by an original quality and primary constitution” (Treatise, p.473 (italics in original)), Hume hints that “our sense of some virtues is artificial, and that of others natural.” (Treatise, p.475). Ibid., p.484.

The ‘artificial’ label is not meant by Hume to carry any negative or pejorative

connotations but is merely a descriptive term indicating causal origin.

Chapter Five

¹ Treatise, p.478.

² I return to the question of why Hume considers the rules of property to be the core of justice in section d) infra. It is worth remarking here, though, that there is no core justice or justness that is, for Hume, distinct from the evolved rules of justice. That is because justice can only be understood as distinct from the rules of justice if moral realism be correct or if justice be a natural, rather than an artificial, virtue.

³ Vide Treatise, pp.478-480.

⁴ This follows from Hume’s rejection of reason-based ethics. Since reason alone cannot discover ‘right’ conduct and cannot spur action, its impotence means that motives for action are feeling-based. How then can this feeling, to act in accord with morality, be a primary, temporally first feeling?

⁵ Treatise, p.479 (italics in original).

⁶ Ibid., p.493 (italics in original). Hume is very careful to qualify this state of nature as admittedly “a mere philosophical fiction, which never had, and never cou’d have any reality.” (Treatise, p.493).

⁷ Vide Treatise, p.480.

⁸ Vide Treatise, pp.481-482.

⁹ Vide Treatise, pp.480-481.

¹⁰ Vide Treatise, pp.482-483.

¹¹ Ibid., p.483.

¹² Vide, as a small sample, Stroud, Mackie (2), Ardal, Postema and Kramer.

¹³ This contrasts with Hobbes’ much more pessimistic view of the basic selfishness of human nature. Against such opinions Hume comments, “1 am sensible, that, generally speaking, the representations of this quality [selfishness] have been carried much too far; and that the descriptions, which certain philosophers delight so much to form of mankind in this particular, are as wide of nature as any accounts of monsters, which we meet with in fables and romances.” (Treatise, pp.486-487)

¹⁴ In other words, family, friends and benefactors receive more self-less consideration than others do. The more distant the other person is from me, the less natural benevolence I have for him. This is the causal result of the biased nature of sympathy. The operation of limited benevolence can be pictured, metaphorically, in terms of a series of ever larger concentric circles. The further from the centre the less the natural benevolence. It has been suggested to me that this view of human nature is not dissimilar to the Confucian view.

¹⁵ Vide Treatise, p.487.

¹⁶ Ibid, (italics in original).

¹⁷ Vide Treatise, p.494.

¹⁸ Mackie (2), p.84.

¹⁹ Under the rubric of golden age Hume imagines a world lacking both 2) and 1). (Vide Treatise, pp.493-494). But for ease of reference and to keep the two features separate I follow Mackie in distinguishing a golden age (lacking 2)) from a utopia (lacking 1)).

²⁰ Vide Treatise, p.495. Vide too p.493.

Vide Treatise, p.493 and note 6 supra. I return to ponder the point of this confessedly ahistorical story infra, in section d).

Ibid., p.495 (italics in original).

Ibid., p.496.

Hume treats rules about promises (Book 111 ii 5) as coming after rules about stable possessions. But regardless, explanation of a first-ever agreement or contract cannot be in terms of people having agreed. The conditionality of expectations, having regressed to a first-ever contract, must be satisfied in other terms than a promise or agreement. “For even promises themselves... arise from human conventions.” (Treatise, p.490).

It might help in grasping the nature of this dilemma to refer to a diagram of the archetypal prisoners’ dilemma where the first co-ordinate in each bracket represents the jail sentence P, can expect and the second co-ordinate that which P? can expect:

P? stays silent P2 confesses

Thus while the best outcome for each corresponds to the other’s worst outcome, the crux of the dilemma is that Pi’s self-interest points to confessing whether or not P2 confesses and P2⁵s self-interest does the same. Whatever the other does, self-interest points to confession. And this remains true even though both remaining silent is a better outcome than both confessing (which seems the inevitable result of individual calculations of self-interest). Until a practice is in place which at least generally vouchsafes others’ conduct, self­interest will lead to the worst cumulative outcome. Of course it can be disputed whether the outcomes in a hypothetical state of nature would actually create a prisoners’ dilemma situation such as this or merely a co­ordination problem. There cannot be any empirical answer to that question; the state of nature is a fictional construct. My analysis will apply in either event. For a fascinating discussion of the prisoners’ dilemma from the perspective of an evolutionary theorist vide Dawkins, chapter 12.

Treatise, p.490 (italics in original).

Ibid.

Vide Mackie (2), pp. 88-90.

The reader who wishes to pursue the mechanics of conventionalist solutions to co-ordination problems, and to a lesser extent to partial conflict problems, is referred to Lewis’s excellent book.

Kramer, p.139.

Ibid., p.148.

Ibid., p.149.

Treatise, p.490 (italics in original). Vide note 26 supra.

Vide Kramer, p. 145. Kramer is non-committal on whether the experiences of family life combined with reason might be able to overcome self-interest. 1 return to the role of reason infra.

Kramer, p. 143.

Ibid., p. 147 (italics mine).

Ibid., p.149.

Ibid., pp. 148-149.

Ibid., p. 150.

Ibid., p. 141.

Ibid, p.150.

Perhaps Kramer could say that only the justicial convention, not any linguistic convention, requires a shared language. It is far from obvious, though, why this should be so.

Treatise p.490. Vide too Enquiries, p.306-307.

Again, it is unclear whether Kramer accepts this possibility, but if he does then reasons need to be given why verbal sounds can ‘convene ’ around particular meanings (in the absence of, ex hypothesi, a shared language or explicit agreement) and yet the allocation of basic goods cannot so 'convene ’ without language.

Vide note 36 supra (italics mine).

Kramer, p. 145 (italics in original).

Treatise, p.489 (second italics mine).

Ibid., p.492 (italics mine).

Vide Kramer, p.140. “Hume’s tack was to explore not only why people adopt conventions that originate justice, but likewise how they go about doing so.” Vide notes 47 and 48 supra.

Vide for example Kramer, p. 148. Here Kramer emphasises “enlightened” self­seeking in the convention building exercise.

Lewis, p.36.

Kramer, p.148.

Treatise, p.498 (italics in original).

Vide Treatise, p.499. Hume notes the weakening of the immediately reciprocal nature of justice as society grows. It becomes easier to be a free­rider in effect. For my discussion of the free-rider problem vide chapter six, section b) infra.

Ibid.

Ibid, (italics in the original).

Mackie (2), p.85.

For Hume all moral evaluations, both of artificial and of natural virtues, are in part the effect of sympathy. Of course what is sympathized with differs. Natural virtues might be characteristics that immediately please or are useful (to the possessor or others), but justice and other artificial virtues are characteristics limited to those that are useful to society. Vide chapter four, section c) supra. On the natural virtues specifically vide Book III iii. On the need for benevolence vide the end of section d) infra.

Thus Hume says “Tho’ the rules of justice be artificial, they are not arbitrary. Nor is the expression improper to call them Laws of Nature”. (Treatise, p. 484, italics in original) And later he says “this progress of the sentiments be natural’'. (Treatise, p.500, italics in original) And yet later again “Tho’ justice be artificial, the sense of its morality is natural”. (Treatise, p.619). Vide too pp.533 and 579-580.

Vide Treatise, pp.500-501 and 533-534.

Ibid., pp.499-500 (italics in original).

Ibid., p.493.

Ibid. Vide note 6 supra. Vide too p. 501 where Hume talks of “the state of nature, or that imaginary state, which preceded society” (second italics mine).

Nozick, p.7 (italics mine).

And of course Hume (and 1) would reject Nozick’s implicit objectivist moral foundations due to which humans mysteriously (because Nozick never explains their origin) ‘have’ certain natural rights, even in the state of nature. For my Humean position on rights vide chapter nine infra.

Nozick, p.9.

Cf. Haakonssen, p.41.

I do not, for the purpose of attempting to offer a plausible purpose to Hume’s narrative, limit myself to rules of stable possession but consider a general system of rules constraining conduct. Vide infra, from the main text found at note 76 to the end of this section d), on why Hume started with property. Hume the historian would have been well aware of the part played by force in history.

Vide for example Nozick, pp. 18-22.

In this particular instance the transcendental claim being advanced would be that rule-constrained conduct requires certain human capacities (z.e. RCC —> C). The fact that there are many observed instances in which such rules break down even for us humans, that such capacities are not sufficient (i.e. not [C — > RCC] because we find C and not-RCC), is nevertheless logically compatible with RCC —> C. Such transcendental claims cannot be disproved by empirical evidence. 1 have attempted to argue against a Nagelian version of such claims in chapter one supra.

And, perhaps more importantly, sentiments of disapproval towards transgressions of the rules.

These sentiments need not be universally present in all people. Vide too section f) infra and chapter nine, section d) infra. Of course given certain predominant sentiments some systems of rules can be better— i.e. can achieve consequences that do more to satisfy those sentiments — than others.

And here one may well agree with Mackie’s view (vide the main text found at note 120 infra) that the tendency to objectify, to spread out on to the world and see as real, one’s own sentiments also supports and maintains the system. Treatise, p.489.

An optimism, most ironically, that would be shared with the many Marxists of various hues, none of whom would go on to concur in Hume’s traditionalist and ‘contextualist’ political views. (Vide Dees where Hume’s politics are described as contextualist).

These are facts in all known human societies. Marxist or Utopian claims that the limits to benevolence would disappear in appropriate material and social conditions cannot be described as factual claims when there is no way to verify, or disprove, those claims.

I would like to thank Mark Fisher for the insights and ideas in this paragraph which helped to lead me back from a frustrating blind alley.

Hume thinks avidity, the effect of limited benevolence and the scarcity of goods, is the most anti-social passion because it “is insatiable, perpetual, universal and directly destructive of society” (Treatise, p.492). Envy and revenge, by contrast, “operate only by intervals”. (Treatise, p.491).

One that Postema himself rejects at p.103 but attempts to salvage at pp.104­105.

Postema, p.102.

Treatise, p.489. Again at p.490 Hume says “this convention concern[s]

abstinence from the possessions of others”. Vide too pp.491-498.

The emphasis here is to recall once again Hume’s consistency in seeking a natural explanation in causal terms, not a justification. Thus Humean discussions of justice deal with the establishment and maintenance of any system of property rights, not issues of‘fair’ distribution or redistribution. Vide Stroud, pp.202-203. The closest Hume comes to the topic of redistribution is his rejection, on solely practical grounds, of substantive absolute equality in the Enquiries, pp. 193-195.

Vide questions (A) and (B) in the last paragraph of section c) supra.

Again, it is as impossible to steal without statutes and rules as it is to murder without them. Crimes against property then, as much as those against persons, pre-suppose an established society.

The alleged correspondence is not 1-1 for, quite obviously, people would make wrong moral evaluations at times even if moral objectivism were true.

Recall that a virtue is artificial where the disposition could not be classified as natural or instinctive.

That is, there are no objective, mind-independent moral relations and qualities — primary or secondary — and no logical connection between humans and particular values and so morality is to be comprehended “as a solution to a social problem of partial conflict which is not solved, but rather made more acute, by human instincts and the ordinary human situation.” (Mackie (2), p.150).

The implicit moral realism of legal theories of interpretation that use such language of ‘finding’ and ‘discovering’ will be discussed in chapters seven and eight infra.

I.e. the view that nothing has any value because it cannot be linked to an external reality like God or intuited real values or logical relations.

Vide Treatise, I iv 7 (in particular pp.268-269).

And limited, self-referential benevolence.

Supervening on which are then such contributing factors as education, indoctrination, emotional tendencies and manipulation.

Hume points, for example, to the content of rules of property such as Occupation, Prescription, Accession and Succession. Vide Treatise, pp.505­513.

Meaning that the value is often as much from having some standard as from what the specifics happen to be.

Pace Dworkin’s views which I discuss in chapter seven, section b) infra.

Vide chapter six, sections c) and d) and chapter nine, section g) infra where I consider the paradox of subjectivism.

Vide for example Treatise, pp. 318 and 322. Vide too chapter four, section b) supra.

Vide chapter four, section b) supra.

Vide Ardal, particularly chapter six.

And this biased nature of sympathy can certainly be accepted without accepting Hume’s associationist account of the bias, viz., that the lively impression or idea one has of himself is communicated in part to any idea of the feelings of one associated with him, thereby converting the latter idea into an impression. As the latter being is associated to the sympathizer by resemblance or contiguity, and these do not operate evenly, the bias arises. Family and friends are more closely associated than, say, foreigners or animals.

Vide Book II i 11.

Vide Treatise, pp.574-575.

Ibid., p.614.

Or hatred or humility in the case of vice. Recall the connection between the indirect passions and pleasure and pain.

Treatise, p.614 (italics mine). At pp.581-582 it is described as “... some steady and general points of view” (italics in original).

Ardal, pp. 120-121 (italics mine).

This paragraph and the next are predominantly a brief synopsis of chapters five and six of Ardal.

Vide Treatise, p.583.

Thus Hume says this differentiation is a “vulgar and specious division” (Treatise, p.276) which, as a generalisation, merely helps in bringing order and understanding. The division between what passion is calm and what violent is in no way exact — the calm can at times be violent and vice versa. (Vide Ardal, p.94).

This appears to undermine Hume’s technique of appealing to introspection. Vide chapter three, note 79 supra and the text accompanying and immediately following that note. For an alternate interpretation of what Hume’s calm passions could be vide Shaw (1) and (2). Shaw suggests that calm passions be thought of as subconscious desires that motivate. Having acted on the urging of a calm passion one could, in principle at least, ‘pull’ the motivating desire up to the conscious level.

Those who believe that it is dangerous to maintain that reason is inert and can never alone move action are referred to my Concluding Remarks infra, where 1 consider the likely consequences of a widespread adoption of second-order moral scepticism.

Ardal, p.95 (italics mine).

Ibid., p.l 19 (italics mine). I take Ardal’s use of ‘motive’ in the sense of being a thing that happens to be desired. Thus, saying the motive is utility or convenience does not imply that it is reason that moves action.

Mackie discusses these at pp. 123-125, Mackie (2).

Vide Brown, in particular from p. 24.

Ibid., p.24.

Ibid.

Treatise, p.582. Vide to p.583.

Vide Mackie (2), especially chapters Vll and IX.

Mackie argues that even Hume’s natural virtues are partly the result of conventional forces and in a sense artificial. It is the approval component that is artificial and so “[a]lthough we may have some instinctive tendencies to develop these dispositions and to act in these ways, and also to react favourably to some instances of these dispositions and actions (namely those that are close to us), the precise way in which we approve of them (namely interpersonally and impartially) must, like the rules of justice, be understood as a system which flourishes because as a system it serves a social function, helping human beings who are made pretty competitive both by their genetic make-up and by their situation to live together fairly peacefully and with a certain amount of mutual aid and co-operation”. (Mackie (2), p.l23 (italics in original)). Vide too the rest of chapter VII.

Vide Ardal, p.l 19.

Vide notes 113 and 114 supra. Note again that causal reason’s role does not go so far as to move action without a desire.

Vide Mackie (2), p. 122. Obviously it is the value, not some projected feeling, that is thought of as categorical, as ‘out there’. Most people do not think of moral evaluations — e.g. sexism is wrong — as projected feelings.

In terms of some mooted historical development of such a viewpoint, Mackie is at times too rationalistic, too suggestive of a deliberate plan for me. (Vide Mackie (2), p. 122) A Humean historical reconstruction should again, I think, be more like the one I sketched above in section b) as regards justice.

This consideration may, of course, influence one’s calculation of the wisdom of ‘exposing the fiction of objective values’. Vide chapter three, note 92 supra, and the main text found at that note, plus the Concluding Remarks infra.

Vide Treatise, p.583. Vide too p.585.

Vide chapter three, section b) supra. Vide too Ardal, pp.144-147.

In my opinion Hume does not advocate adopting an ideal observer perspective as Firth thinks. Not only does Hume think the disinterested vantage unattainable (notice that Hume talks of “general points of view”), in many instances, in particular as regards the natural virtues, he thinks a degree of partiality is widely approved of and indeed desirable.

Vide Mackie (3), chapter 13 and Mackie (1). pp.92-102, for an in-depth analysis of the stages of universalization. Vide too Mackie (3), chapter 14.

Which is the point G.B. Shaw humorously made in subverting the Golden Rule: ‘Do not do unto others as you would have them do unto you. Their tastes may not be the same.’ (This and the example are taken from Mackie (1), pp.89 and 94).

By ‘peeling off I mean the elimination of all values, tastes and sentiments that would affect evaluation. However, a Humean would consider that the absence of all passions would also make action impossible.

Prejudices can be felt directly, by introspection. As well, partialities, or the appearance of partialities, can be inferred by causal reason from the relations between people and the observed usual favouritism holding between such relations.

This is true in the Treatise. Hume’s explanation arguably shifts towards utility in the Enquiries.

Some recent experiments suggest that even the human mind’s ability and success at reasoning may have been affected by the reciprocal nature of primitive society. Vide The Economist, July 10th, 1992, pp.75-76. Vide too Gigerenzer and Hug’s “Domain-specific reasoning: Social contracts, cheating, and perspective change” in Cognition. 43 (1992) 127-171.

I will discuss the issue of ‘free-riders’ in the next chapter.

Vide “The Sceptic” in Essays, particularly pp.169-170. Hume there says that "... where one is born of so perverse a frame of mind, of so callous and insensible a disposition, as to have no relish for virtue and humanity, no sympathy with his fellow-creatures, no desire of esteem and applause; such a one must be allowed entirely incurable, nor is there any remedy in philosophy... He feels no remorse to control his vicious inclinations... For my part, 1 know not how 1 should address myself to such a one, or by what arguments I should endeavour to reform him. Should 1 tell him of the inward satisfaction... he might still reply, that these were, perhaps, pleasures to such as were susceptible of them; but that, for his part, he finds himself of a quite different turn and disposition... nor could I do any thing but lament this person’s unhappy condition.”

¹³⁸ This idea was suggested to me by Bricke’s paper.

Chapter Six

¹ All that the moral sceptic can say, and remain consistent, is her own moral sentiments and the observed majority moral sentiments that prevail. This is exactly what Hume does. Vide for example note 18 infra and chapter five, note 137 supra.

² This subject was broached in chapter three, section e) supra.

³ Vide Nagel (2), pp. 195-197.

⁴ There is a confusing ambiguity surrounding the good versus moral contrast. It is unclear whether ‘good for X’ is or is not to include ‘morally good for X’. In (3)-(5), where ‘the good’ and ‘the moral’ are made definitionally independent (i.e. where each can be understood without, and in addition to, the other), it remains true that the benefits leading to happiness and living well may, and sometimes do, include the satisfaction of having followed morality. In other words, despite being logically independent, there will in fact be overlaps between ‘the good’ and ‘the moral’. The point is though, for (3)-(5), that ‘the good’ need not correspond to ‘the moral’ and thus the two can be contrasted. To speak then of‘morally good’ outside (I) and (2) must refer either to where good and moral happen to align or simply to the moral itself (good being there an obfuscation).

⁵ Vide Nagel (2), p. 197.

⁶ Nagel, in chapter X of Nagel (2), also interestingly slots various well-known philosophers into the five alternatives.

⁷ For further arguments vide Nagel (2), p. 197.

⁸ Vide chapter three, section d) supra.

⁹ Those who would suggest that Hume is fairly described as a moral realist must, besides accounting for the argument in Treatise II iii 3 (vide too Bricke, pp.7-14) and the essay “The Sceptic,” inter alia, take Hume’s “A Dialogue” in the Enquiries in a narrow and literal sense and not as an essay on the variability and relativity of all human standards (vide for example pp.33O and 343).

¹⁰ Moral realists could also admit that morality is in part dependent upon human beings but this requires of them some such additional argument as the analogy to secondary qualities which I have rejected.

¹¹ Vide “A Dialogue” in Enquiries, pp.324-343. Vide too chapter nine, sections d) and g) infra.

¹² Vide Bricke’s critique of those who read Hume as describing a process of the socialization of reason. What is socialized in the escape to Humean justice are the passions, not reason. Vide too chapter five, note 138 supra.

¹³ In this idiosyncratic sense, of empirical truths and of causal reason noting uniformities, the Humean could accept the existence of ‘moral truths’. It would be a question of fact then whether, at any given time, any values held universally. But this is not what is meant by moral realists who ascribe a ‘higher’ role to reason and an element of the non-contingent to moral truths.

¹⁴ Hume’s areasonable theory of action and the limited role he ascribes to reason in resolving what is good forecloses the converse. Moral realists though, because of their moral theory, face great temptations to incorporate moral standards and virtues into the good.

Vide chapter three, section e) supra.

For example, vide Treatise III ii 2 (particularly pages 486-487) and much of Book II. Vide too “Of the Dignity or Meanness of Human Nature” in Essays, pp. 84-85. Only in the strictly motivational sense of the need for a conception of self would Hume say people are completely selfish. This is a key difference of emphasis from Bentham.

I do not endorse this view. An obvious difficulty with such a fictional perspective is that considerations of well-being, thus understood, cannot motivate real people, none of whom, ex hypothesi, hold this perspective. This disagreement is related to my rejection of any motivational theory which melds desire and reason into ‘informed desires’. (Vide for example Griffin, in particular part one).

Interpretations of Treatise III ii 2-7 in the context of the free-rider debate, including Postema’s and Stroud’s, can be seen as leaning Hume towards (4). However, while extolling virtue Hume also repeatedly notes that the choice ultimately is relative to one’s underlying dispositions. (Vide infra and “The Sceptic” in Essays, particularly p.169 and to a lesser extent p. 161). And of course Hume readily admits his own happy temperament. (Vide for example his autobiography “My Own Life” in Essays, in particular p. xxxiv.) In my opinion plausible cases can be made for slotting Hume into any one of the last three alternatives.

Enquiries, pp.282-3 (italics in original).

Ibid, (all italics mine).

On whether Hume’s view of human nature leans more towards an individualistic or communal conception compare the views of Stroud (pp. 204-5, 207, 211, 218, inter alia) and Postema (pp.92-99, 120, 123, 140-42, inter alia).

Stroud makes a similar point about Hume at pp.205, 208, 210 and 214. Vide too Postema, pp. 137-8. Hume’s tendency to pose an all-or-nothing choice is evident in Treatise, III ii 2, in particular pp.497-498.

Treatise, p.497.

Postema, p.135, fn. 38.

Ibid, (italics mine)

Treatise, p.536. Vide too pp.417, 437, 583.

Vide Stroud, p.215.

Vide Enquiries, pp.283-284. These arguments occur just before and after the long quotation which began this section. Vide note 20 supra.

Vide Treatise, p.497, 532, 551 and Enquiries, p.304 inter alia. Hume’s version of rule-utility is doubtlessly strict. He seems to condone violations only where the rules themselves threaten society. (Vide Postema, pp.105­107). Cf. note 32 infra.

Vide Stroud, p.206. Vide too Postema, p.136.

Vide Mackie (2), pp.90-93. The following paragraph is my liberal interpretation of Mackie.

Mackie argues that rule utilitarian theories are paradoxical “for the natural way to take a rule is to think of it as guiding choices in the particular cases that fall under it, and if a real choice were open in the particular case it is hard to see why a utilitarian would not choose the most beneficial single act.” (Mackie (2). p.92) Mackie’s position, however, seems to dismiss the possibility that certain choices can undermine, and can be seen by the chooser to undermine, the rules and hence leave one worse off overall.

³³ Mackie’s own example is of the election campaign in which electing candidate X has more utility than electing any of the others, indeed more utility than if all X’s supporters chose to do something other than vote. Now the best result would be a victory by X by one vote, with all the rest of X’s supporters out increasing utility in some other way. This, though, is not possible to arrange and so X’s supporters must spend their time voting. The optimal result is unattainable. Vide Mackie (2), pp.91-92.

³⁴ Mackie (2), p.93.

³⁵ Ibid., p.86.

³⁶ It seems to me that Postema (vide pp. 134-143) may also conflate the two issues.

³⁷ This criticism also undermines Postema’s formulation (pp. 140-142) of Hume’s case that any knave’s strategy, to be successful, must not leave him or her cut off from the community. Free-riding need not be a ‘systematic’ pursuit. As Hume himself comments, “[T]he heart of man is made to reconcile contradictions.” (“Of the Parties of Great Britain” in Essays, p.71) And again, “But what is man but a heap of contradictions.” (“Of Polygamy and Divorces” in Essays, p. 188).

³⁸ That foundation for obligation could be provided by any type of moral realism or perhaps even by a social contract analysis. It should be clear by now that I find unconvincing all these attempts.

³⁹ Pace Postema, p. 138.

⁴⁰ Of course to qualify as free-riders such people will also have to be those who are not moved to justice by benevolence, loyalty, generosity, public spirit, etc.

⁴¹ By ‘condemn’ I mean ‘assign blame for’. Such Humean blame would be a method of social dissuasion. Assigning blame for having socially undesirable inclinations would promote deterrence and further moral education by helping to repress and prevent these inclinations in future. On occasion the prospect of such blame might even be a motive contributing towards the re-direction of individuals’ existing, undesirable inclinations. But Humean blame would not necessarily connote an acceptance of free-will and the possibility of choosing one’s core inclinations, which possibility Hume himself, at least in those contemplative moments of philosophical reflection in his study, would have great difficulty accepting.

This is not to say that I accept the Humean compatibilist solution. I do not. My view is that coherent or incoherent, more is generally meant by free-will than the voluntariness or freedom from external compulsion which Hume seems to think it signifies. Still, I am following Hume when I note the difficulty in making a case against determinism. To respond by accepting the case for determinism but pointing out that despite such reasoning humans continue to feel, believe and behave as though they had free-will would be, in my opinion, typically within the Humean spirit (vide the catechism in section d) infra). But as I said in the introduction to this book, any in-depth discussion of determinism is far beyond the purview of this work. Here, it is enough to note that Humean condemnation is in terms of the consequences to society.

Vide the main text at note 20 supra.

I.e., in terms of likely consequences. One might also attempt to manipulate and indoctrinate people with different sentiments and preferences.

The only alternative to general rules seems to me to be arbitrariness of some sort. As for whether the moral sentiments associated with rules constraining conduct do more harm than good and, relatedly for the moral sceptic, whether these moral overtones ought to be exposed as the fiction they are vide chapter three, note 92 supra and the main text found there. Vide too the Concluding Remarks infra.

“All morality depends upon our sentiments.” (Treatise, p.517)

Of course public utility — more specifically the experienced consequences to society in the light of prevailing, contingent sentiments — also plays some role in determining such standards but less perhaps than might be thought according to Hume. (Vide Treatise, p. 504, fn. 1 but cf. Mackie (2), pp.95-96 and Postema, pp. 124-125).

I return in chapter seven to the issue of whether, even from within a system of created standards and rules, there can be one right, true or correct answer. Enquiries, p.308.

1 pursue this answer in chapter nine, section g) infra.

Treatise, p.215.

Stroud expresses this beautifully in the last two pages of his book.

Stroud, p.250.

Ibid.

So that were humans constructed with an innate disposition to seek and expect constant conjunctions and regularities there would still be no a priori guarantee of finding them. As Mackie notes, “In so far as our reliance on such principles is epistemically justified, it is so a posteriori, by the degree of success we have had in interpreting the world with their help.” (Mackie (4), p.85 (italics in original)).

The whole of the Introduction to the Treatise is an encomium to the experimental method. Vide in particular pp. xvi-xix.

This is taken from the Treatise’s full title which is A Treatise of Human Nature: Being an Attempt to introduce the experimental Method of Reasoning into Moral Subjects.

1 should stress that the demand for natural, causal explanations is not equivalent to saying that causation can be completely intelligible, that causes can be more than provisionally accepted, or that causal explanatory frameworks are only appropriate where they can be directly tested.

Essays, “Of Suicide”, p.583.

“I place my chief confidence in experience...”. (Treatise, p.99).

Indeed in the Introduction to the Treatise Hume himself places the science of man at the centre of all science.

1 strongly agree with Bricke, in particular pp.7-13, that it requires a distortingly idiosyncratic reading of Hume, especially of Treatise II iii 3, to place him in the ‘enriched reason’ camp. Vide too notes 9 and 10 supra. Treatise, p.413.

Ibid., pp.414-415.

Ibid., p.415.

⁶⁵ Bricke, p.9. I'ide too Shaw (2), particularly pp.21-25.

⁶⁶ Hume of course recognises the loose sense in which the term ‘reason’ is popularly used. (I'ide for example Treatise, p.536 or 583). As a matter of linguistic usage this makes no difference provided ‘theory is not built on the back of definition’. (I take this phrase from Hart (2), p.41.)

⁶⁷ Enquiries, p.294.

⁶⁸ From Hume’s letter of 17 September, 1739 to Hutcheson in which Hume states: “What affected me most in your Remarks [about Book III of the Treatise] is your observing that there (sic) wants a certain Warmth in the cause of Virtue...”. Tide The Letters of David Hume, volume one, p.32 (ed. J.Y.T. Grieg). Clarendon Press, 1969 (reprint of 1932).

Chapter Seven

¹ There may or may not have been a retreat by Dworkin, from Dworkin (1) to Dworkin (3), on whether there must always be ‘one right answer’ to questions of interpretation. This is hard to say because Dworkin is ambivalent. However Dworkin’s present position does not concern me here. I wish to illustrate my position by contrasting it with his Dworkin (1) ‘one right answer’ thesis, whether or not he has now abandoned it.

² This assumes, of course, that interpretive questions have no subjective elements. I return to this matter infra.

³ Dworkin concedes that there is ‘weak’ discretion in the sense that some human has actually to exercise judgement and as a human he or she might err and yet the decision will be deemed under law to be final and authoritative. (Eide Dworkin (1), p.32, 68-71.) This, though, is not discretion so much as a recognition of human failings.

⁴ Vide Dworkin (1), pp.84-86. Vide too chapter nine, section f) where 1 discuss Bills of Rights.

⁵ Vide Dworkin (1), pp.81-130 and 279-290. “Judicial decisions enforce existing political rights”. (Dworkin (1), p.87, italics mine.)

⁶ Of course when they err they will in effect be legislating.

⁷ Dworkin (1), pp.116-117.

⁸ Mackie (3), p. 133.

⁹ Dworkin’s original position was that the Herculean decision-making process was only needed in ‘Hard Cases’, those cases where “ no settled rule disposes of the case” (Dworkin (1), p.81) or perhaps where “reasonable lawyers and judges... disagree” (Ibid.) However Dworkin appears to have acceded to the criticism that the Hard Case — Easy Case distinction is untenable and thus that his theory must apply to Easy Cases as well. (Vide Dworkin (3), p.266 or 354; vide too Fish, p.101). For my particular purposes this issue ofDworkinian exegetical analysis is not directly of interest and I take no position on it.

¹⁰ According to Dworkin, “The difference between legal principles and legal rules is a logical distinction.... Rules are applicable in an all-or-nothing fashion.... Principles have a dimension that rules do not — the dimension of weight or importance.” (Dworkin (1), pp.24-26)

¹¹ For indications that he does vide Dworkin (1), pp.123, 129-30, inter alia.

¹² Vide Mackie (3), pp. 135-139.

¹³ Ibid., p. 136. This divergence also raises practical questions of how to test judges’ own descriptions of judicial practice. Clearly taking judgements at face value is inadequate.

Vide Dworkin (1), pp.123-130.

Vide Dworkin (1), pp.124, 126 inter alia.

Dworkin (1), p.126.

Ibid.

Mackie (3), p. 132.

On natural law doctrine generally vide Finnis, particularly chapter 12; Harris, chapter 2; Postema pp.40-46; Lloyd, chapter 3; Bayles; and Haakonssen inter alia.

Mackie (3), p. 132 (italics in original).

Vide for example Dworkin (3), pp.14, 45, 78-86, 266-275 inter alia.

Dworkin (1), pp.326-327 (italics mine). Vide too Dworkin (1), pp.341-343; Dworkin (3), p.219; and Wacks, p.120 et seq.

This opinion is not a novel one on my part. Vide, for example, Mackie (3) at p.132 (“I have resisted the temptation to entitle this paper ‘Taking Rights Seriously and Playing Fast and Loose with the Law’.”) and again at p.144 where the phrase “playing fast and loose with the law” is repeated and a definition given in a footnote. (‘“Fast and loose: A cheating game played with a stick and a belt or string, so arranged that a spectator would think he could make the latter fast by placing a stick through its intricate folds, whereas the operator could detach it at once.’”) Or vide Bayles, p.364 (“Unfortunately, because Dworkin almost never acknowledges when he has changed positions...”) Or again vide Fish, p.91 (“Rather than avoiding the Scylla of legal realism (‘making it up wholesale’) and the Charybdis of strict constructionism (‘finding the law just “there”’), [Dworkin] commits himself to both.”) as well as all of chapter five. And finally vide Lee, p. 193 (“I am unaware of any admission by Dworkin that any case whose results conflict with his political preferences could be rightly decided. What a remarkable coincidence.” (italics in original)).

And this, perhaps, explains Dworkin’s ambivalence about the first query I posed (vide the main text immediately following note 17 supra).

And of course I have argued against the persuasiveness of moral objectivism in Part A of this book.

Vide Dworkin (3) pp.82-86. I discuss Dworkin’s distinction between

external and internal scepticism infra, in section b).

Vide for example Dworkin (1), pp.105-130 and Dworkin (2), part two, particularly chapter six. Notice that Dworkin does not (although Hume might) merely advise judges to choose the answer that seems right to them. Such ‘be-true-to-yourself advice is compatible with extreme relativity and no answer being better than another.

Vide Dworkin (1), pp.286-287.

Ibid., p. 117.

Vide Dworkin (1), pp.81-130; Dworkin (2), pp. 146-166; and almost all of Dworkin (3) for Dworkin’s elaboration of the “interpretive enterprise”. His own summary is at Dworkin (3), pp.410-411.

Vide Griffith.

Dworkin is speaking of public, not private, morality although I would think consistency would require a similar view of personal morality.

Dworkin (2), p.161. Vide too Dworkin (2), p.40 and indeed all of chapter two

of that book.

Ibid., pp.160 and 161. Vide too Dworkin (1), p.106.

Vide chapter one, note 12 for a definition and explanation of this term.

Vide Dworkin (1), pp.48-58 and 281-282 inter alia.

Vide the main text following note 68 infra.

Vide in particular Dworkin (3), pp.76-86.

Ibid., p.78 (italics in original).

Ibid.

Ibid.

Ibid., p.79. Internal scepticism is global if it be contended there are never right answers within some enterprise.

Ibid., p.78 (italics in original).

Vide, for example, Dworkin (3), pp. 84 and 86.

Ibid., p.84.

Ibid., p.83.

For a very brief but excellent article about the relation between internal and external scepticism vide Mackie (3), chapter XI, “Bootstraps Enterprises.” Vide Mackie (3), p.148 (“...it is so hard to find a plausible global internal view.”)

Dworkin (3), p.78 (italics in original).

Ibid., p.79.

Ibid., p.80.

My arguments are set out in full in chapter three supra. In effect, I say that just because a framework pre-supposes there to be right answers to moral questions, that pre-supposition alone is not conclusive of whether, in fact, there are such right answers.

Vide, in particular, Dworkin (3), pp.80-83.

1 have removed Dworkin’s argument from the first person voice because I feel that in that form it encourages confusion due to its proximity to the issue of the belief of the speaker. Again, the belief of the speaker is irrelevant to the actual status of the evaluation. Alternatively put, I feel that Dworkin’s use of the first person voice in presenting the argument excludes, in advance and without argument, the external vantage. Therefore I have shifted his argument into the third person voice.

Vide Dworkin (3), pp.80-81.

Ibid., p.81.

Ibid. Notice how much of Dworkin’s substantive argument relies on the meaning of moral terms.

Ibid., pp.81-82.

Ibid., p.82.

Ibid.

Pace Dworkin (3), p.83.

Mackie (3), p. 147.

Dworkin (3), p.82.

Dworkin (3), p.80.

Ibid., p.81.

Ib id.

Vide section a) supra or, for example, Dworkin (3), p.86.

Vide Dworkin (1), pp.103, 126, 128-129, 134-136, 226; Dworkin (2), pp.152-153; Dworkin (3), pp.70-72, 90-113; inter alia.

Phang (1), p.393 (italics in original). In Dworkin himself vide, for example, Dworkin (2), pp.152-153 and 163.

Vide chapter four, note 9 and chapter two, note 13 supra.

Vide chapter three, section b) supra.

And in questions of legal interpretation it may depend upon the certainty of the settled standards.

Vide Gallie, p. 169. “Further, I shall try to show that there are disputes, centred on the concepts which I have just mentioned, which are perfectly genuine: which, although not resolvable by argument of any kind, are nevertheless sustained by perfectly respectable arguments and evidence.” (italics mine). Query: Could Dworkin agree with this statement? Vide too p.177 (“For who is to say [which] is better”?).

Ibid., p. 191 (italics mine).

Vide Gallie, p. 193. Vide too the Concluding Remarks to this book infra.

Vide Gallie, p. 195.

Vide Mackie (3), pp.149-151 for a more detailed discussion of this point.

Even on my second assumption above, that Hercules is operating within some system or other of historically contingent man-made rules and principles, where the ‘settled’ law of that system confines to varying extents the weight given to moral considerations, it remains true that Hercules will at least sometimes have to decide between moral evaluations. (Note the view of Jeremy Waldron that “[T]he form of [Dworkin’s] position is widely regarded as an extreme version of Kantianism — what is right and just is determined in the first instance by moral reasoning...” in Waldron (4), p. 1543, italics in the original.) This ultimate influence of moral deliberation is perhaps most obvious when Hercules is formulating the background political morality that ‘best’ accounts for and explains the jurisdiction’s ‘settled’ law.

Vide Mackie (3), p.50.

As I have noted above, the theory’s practicality is an independent issue. Dworkin’s theory could be coherent but impractical. Indeed that is perhaps the common criticism. My criticism, however, is that his theory is no more coherent or acceptable than moral objectivism.

I take this term, with deliberate irony, from Dworkin (3) where “law as integrity” is used throughout. Vide in particular chapters six and seven and the epilogue, pp.410-411.

Answering the question I posed in the fourth paragraph of section a) supra. This follows, according to Dworkin, because all cases will be determined by pre-existing law. Retrospective judicial legislating, the necessary consequence of conceding judges do occasionally have strong discretion, involves an indeterminacy absent were Dworkin’s theory sound. Vide for example Dworkin (1), pp.30, 44, 81, 84.

One is tempted to apply Dworkin’s own label, “the semantic sting” (vide Dworkin (3), p.45 et seq.), to such arguments.

This paragraph owes much to the detailed critique in Mackie (3), pp.141-144.

I return to this theme infra and in chapter nine.

Vide Bayles, pp.349, 375, 376 inter alia.

And so why not adopt the lawyer’s perspective or the policeman’s perspective or any of the other participants’ perspectives?

This is implicit in Hart (1).

Vide section b) supra.

⁹¹ Descriptive theories of law generally fall within the ambit of what is termed ‘legal positivism’. For my endorsement of one version of legal positivism, which I trace to H.L.A. Hart, vide my article “Positively Fabulous: Why it is Good to be a Legal Positivist” in the July, 1997 issue of The Canadian Journal of Law and Jurisprudence. Vide too chapter eight infra.

⁹² Cf. the ridiculous option of a judge withdrawing as spoofed in Fuller (1).

Chapter Eight

⁹³ Vide chapter five supra.

⁹⁴ Vide Simpson’s article “The Common Law and Legal Theory” (pp.77-99 in Simpson) at pp.84-86 and 93.

⁹⁵ Hume discusses the need for civil government (to cure the natural emphasis on the short-term which undermines the justicial convention) and the artificial virtue of allegiance in Treatise III ii 7-10. He is adamant, though, that society — or at least primitive society — could exist without formal government. Vide Treatise, pp.539-541 inter alia.

⁹⁶ In this sense I agree with Postema. (“Justice is, for Hume,... inseparable from law”. (Postema, p.84, italics in original)).

⁹⁷ Treatise, p.532.

⁹⁸ Vide Postema, pp. 105-109 for a brief but excellent review of Hume’s position.

⁹⁹ The associated question of whether following the rules always corresponds with individual self-interest I have already discussed under the rubric of the free-rider problem in chapter six, section b) supra.

¹⁰⁰ Because he is deliberately seeking to provide a description and analysis of a legal system, albeit one which he explicitly admits will not be completely comprehensive, Hart calls his book The Concept of Law. In Hart (2) he abjures attempts to answer questions such as ‘What is law?’ as being misguided.

¹⁰¹ Vide Hart (1), pp. 19, 21 et seq.

¹⁰² Vide Hart (1), p.89. Vide too p.41.

¹⁰³ And thus amain virtue of this test or ‘rule of recognition’ will be that it overcomes uncertainty about what is, and what is not, a valid legal rule. Vide Hart (1), pp.90, 92-96, 98-107, 144-150.

¹⁰⁴ Or as Dworkin puts it, its pedigree. Vide Dworkin (1), p.17. However Hart does admit that moral content can be explicitly made a criterion of the rule of recognition in some systems. Vide Hart (1), p. 199.

¹⁰⁵ On this Dworkin is correct although Hart never suggests otherwise. In fact Hart explicitly agrees. Vide Hart (1), pp.200-201 and 149-150. Vide too Mackie (3), p.135 and my “Positively Fabulous: Why it is Good to be a Legal Positivist”, op.cit., chapter seven, note 91.

¹⁰⁶ Pace Dworkin and his ‘Semantic Sting’ thesis in Dworkin (3), pp.45-46 et seq. (particularly chapter two). Vide the postscript to Hart (1).

¹⁰⁷ MacCormick (2), p.545. The use of this quotation is not meant to imply that MacCormick is a sceptic.

¹⁰⁸ This of course is exactly what Bills of Rights do. Vide chapter nine, section 1) infra.

¹⁰⁹ Vide Hart (1), p.199 and his postscript to the second edition. Vide too Bayles, pp.354, 360-361.

¹¹⁰ Vide chapter seven, section c) supra.

Pace Dworkin. Vide, for example, Lord Denning’s dissent in Miller v. Jackson [1977] QB 966 at p. 976. Vide too Lee, pp.22-29.

Simpson mentions and describes just some such institutional constraints on lawyers and judges which, he argues, helped to foster the cohesion of the historical common law. Vide pp.95-99 in his well-known article, op. cit., note 2 supra.

Hart (1), p.149.

I discuss rights in detail in chapter nine infra.

Mackie (3), p.144.

Instances which Dworkin would call ‘Hard Cases’.

Vide Hart (1), pp.149-150, 200 and Hart (3), p. 161. With minor exceptions for some American courts.

I examine the desirability of justiciable Bills of Rights and full-blooded American-style judicial review in the next chapter.

And so in some jurisdictions it is essential that a sympathetic ‘test case’ is chosen to take to court.

Vide for example Dworkin (1), pp.22-28 and 90-100.

However a more optimistic ‘you-can-trust-the-judges’ attitude is often held, unsurprisingly, by judges themselves. Vide for example Denning at p.334: “[Our judges] are representative of all that is best in our people.” Vide too the general views of the Supreme Court of Canada judge, Madame Justice McLachlin, in “The Charter: A New Role for the Judiciary?” (1991) 29 Alberta Law Review 540-559.

For a fuller elaboration of this argument vide my “Positively Fabulous: Why it is Good to be a Legal Positivist,” op.cit., chapter seven, note 91.

Vide Hart (1), chapter IX, part 3.

Where a ‘valid rule’ is taken to mean, broadly, a ‘rule whose origin, source or pedigree meets the requirements of that society’s rule of recognition.’

These two consequences broadly follow, with modifications, Hart. Vide Hart (4), p.71 and Hart(l), ch. IX.

Although I admit that whether a rule exists or not can itself be uncertain in some circumstances. Rules are still, though, generally more determinate than moral principles. Vide MacCormick (2), p.545.

Goldsworthy, p.58 (italics in original). Vide too Mackie (1), pp.42-43. Vide too chapter five supra.

1 use ‘wicked legal system’ loosely and in contrast to ‘a more or less acceptable legal system’ or ‘a largely benevolent legal system’, but of course the distinction is a matter of degree; the former applies where the settled laws, on some person’s or persons’ evaluation, have become too iniquitous. However 1 use this short-hand notion only to help with my defence of separating law and morality (and hence to refute Dworkin) and without any intention of suggesting there exists a non-relativistic conception of wickedness.

Vide Hart (3), pp.146-153. Vide too Hart (1), pp.203-207.

Bentham makes this point about how the logic of claims for non-legal rights can be either radical or conservative. Vide Bentham (2) and (3).

Vide Dworkin (1), pp.326-327, 341-343.

Vide Bayles, pp.375-380, for a careful review of the difficulties facing Dworkin in attempting to reject legal positivism and yet to admit the potential conflict of law and morality in a wicked system. Vide too Hart (3),

p. 150.

Vide chapter seven, note 22 supra.

Vide Dworkin (3), pp.103-104.

It has been suggested to me that this ‘checks and balances’ approach to balance is comparable to the Aristotelian approach to balance.

I do not mean to imply that the conscious desire to sustain and maintain society is the motive behind individual acceptance of morality. Vide chapter five supra.

Hume makes this point and elaborates it in Treatise III ii 7-10.

In theory, as Bentham saw, there is no reason why rules cannot seek to modify behaviour through rewards and inducements rather than sanctions and punishments (vide Bentham (1), chapters 1-XII1). In practice, though, this is rare.

As Hume notes the term ‘nature’ is ambiguous. Vide Treatise, p.474. Vide too chapter four, note 40 supra. I do not here mean ‘natural law’ where what is natural is being opposed to what is uncommon or what is miraculous so that ‘natural law’ is being used to describe what usually happens or what, barring supernatural intervention, always happens. Vide chapter nine, sections c), d) and e) infra on the is/ought problem and the extent to which Hume is this sort of natural law adherent.

David Hume, History of England, from the Invasion of Julius Caesar to the Revolution in 1688. (Liberty Classics, 1983) Volume IV, p.355 (hereinafter cited as History).

Vide chapter five supra.

Vide Treatise III ii 3 and 4.

For a good overview of these two alternatives vide Postema, chapters one and two. Note however that Postema seems to use the term ‘established practices’ to exclude positive rules and laws. However, as I am employing the phrase i n opposition to ‘right standards’ there are no grounds why ‘established practices’ must exclude positive law. Deliberately made rules need not be thought of as embodying ‘right’ standards.

Vide Collins, pp.100-115. Rules will not be necessary, according to this line of thought, once the economic system has been altered so that need is the crucial determinant of what goods are received, exploitation and alienation have been eliminated, and all have basically the same substantive wealth.

I.e. law in the sense of any rules governing stable possession and personal safety.

Vide Postema, p. 170-171 who notes that this conception follows Hobbes and Bentham. Vide too MacCormick (1), pp.12, 16-17, who mocks the supposed freedom, “... achieved by those who in the true community of a whole nation (or whatever) exercise the most perfect autonomy in the collective politics of democratic action.” (p.16) Given how many individuals actively dissent in all consent-based democracies this is, notes MacCormick, a “singular species of consent indeed; and a funny sort of freedom.” (p. 17)

The sceptic need not discount the possibility that someone else (e.g. an expert who has studied many other humans and thus has accumulated much causal evidence) may know better than she does what will make her happy. However this would involve no objective, true, ‘goodness-for-her’ but would rather involve a better causal prediction. I may be proved correct, for example, when I tell my young friend that her desire to be a lawyer is a mistake as most lawyers, contrary to the media image, lead unhappy lives. Some people are better reasoners in this Humean way than others. This admission, though, would not affect the sceptic’s rejection of the notion that there is some true, right behaviour for humans. Predictions would not be made independently of individual inclinations and preferences and would rest on nothing more, as 1 have already argued, than contingent uniformities. Vide chapter nine, section d) infra. A similar point could be made about temperance or continence. Experience shows that limiting immediate desire satisfactions generally leads to more happiness. Such a view, of course, does not imply the existence of mind-independent values or right actions.

¹⁴⁹ Vide Nozick, particularly the preface, chapter one and chapter five.

¹⁵⁰ Vide chapter six, sections b) and c) supra. Vide too the beginning of this chapter supra.

¹⁵¹ Vide Enquiries, pp.193-195.

¹⁵² Only perfect, absolute equality is disparaged by Hume’s arguments. These arguments say nothing against a perpetual clawing back, piecemeal, gradual, and aimed at relatively more equality of resources, provided that:

(a) the redistribution does not become so great as to eliminate incentive;

or (b) the redistribution does not require so much power as to lead to tyranny.

Nozick seems to me to think that (b) is never possible, a position with which

1 disagree.

¹⁵³ Indeed Hume is explicit. Vide Enquiries, pp.193-194.

¹⁵⁴ Vide Dees. But vide too Boswell’s report of Samuel Johnson’s remark that “Hume is a Tory by chance.... If he is anything, he is a Hobbist”. For the various sources of this remark, including its partial reprint in Kemp-Smith’s edition of the Dialogues at p.78, vide Russell.

¹⁵⁵ Vide for example Unger. For a general introduction to Unger vide Phang (2) or Fish, chapter 18. For further reading vide Alan Hunt’s bibliography of the Critical Legal Studies movement at (1984) 47 Modern Law Review 369 and MacCormick (2).

¹⁵⁶ Vide for example Duncan Kennedy’s article “Legal Education as Training for Hierarchy” in Kairys and extracted in Lloyd from p. 799. Vide too Phang (2).

Chapter Nine

¹ Hume at times calls this the anatomist’s perspective in contradistinction to that of the painter. Vide, for example, the last paragraph of the Treatise, pp.620-621. As I have argued supra, this is the perspective that Hume himself generally adopts.

² One finds this conflating of different perspectives in many other areas. For example, in the interpretation of case law, distinction is rarely made between what judges say they are doing; what judges think they are doing; and what a relatively impartial observer would think they are doing.

³ Either as rights, or alternatively as duties. Vide section g) infra.

⁴ And of course the more people in society who, consciously or unconsciously, are moral realists, the more will these three possible perspectives of mine seem indistinguishable.

⁵ For the correlative nature of rights vide Hohfeld. For a good summary of Hohfeld’s analysis vide the introduction to Waldron (1). in particular pp.5-8. Vide Simpson, op. cit. chapter eight, note 2, for an analysis of the source of this requirement.

I would also include here as legal rights, in a looser sense, the case of civil liberties, as exemplified in the United Kingdom, where one can do whatever is not explicitly prohibited by rules. The principle is exactly the same — rights are creatures of identifiable legal rules. It is just that in the case of civil liberties rights are residual; they are the creatures that survive the rules and so are negative in a sense. This is the obverse of the ’standard’ case. Rather than rights being granted by rules, these negative rights comprise the cumulative scope for action that has not been taken away by rules.

In what follows I have phrased my argument in the positive — where legal rights are granted by legal rules. I do this, however, only for the sake of convenience and simplicity of style and wish to be taken as referring equally to the obverse, to those cases where legal rights flow from an absence of legal rules.

Or again, obversely, there are legal rules infringing or prohibiting the claimed right.

MacCormick makes this point at MacCormick (1), p. 144.

Vide Waldron (1), pp.9-13.

Vide Dworkin and my discussion of him in chapter seven supra.

This very recognition of the difference between non-legal and legal rights, and thus between moral and positive rules, lay at the heart of my endorsement of legal positivism in the last chapter. Vide chapter eight, section b) supra. Treatise, p.470.

Ibid., p.475 (italics in the original).

I have discussed in detail Hume’s naturalistic account of the institution of morality in terms of psychology and sociology — and suggested my own refinements — in Part A, in particular chapter five.

Such public constraints can and do become the standards of conduct of many individuals, becoming, as it were, their voice of conscience and directing their behaviour. But explanations of such personal notions of right conduct cannot, for the Humean, be divorced from the wider social and communal function of a moral system. Individual right conduct is a notion which the Humean cannot isolate from that conduct’s effects on the group.

I pursue this point about the possibility of observed uniformities forming standards of the good in section d) infra.

For a similar view vide Bentham (3) or A.V. Dicey's The Law of the Constitution (ed. E.C.S. Wade), 10th edn, 1959.

Vide, for example, Mackie (2), pp.61-63; Stroud, p. 187; and A.C. MacIntyre, “Hume on ‘Is’ And ’Ought’”, in Chappell, p. 240 et seq. MacIntyre reviews the earlier references to Hume’s famous passage (vide pp.240-241).

Treatise, p.470.

Ibid, p.469.

Vide, for example, the authors referred to in note 19 supra.

That is, there is no deductive proof for the inductive method. Appeals to experience rest on an assumption of the uniformity of nature and are viciously regressive. Vide chapter one supra.

Cf. the views of MacIntyre, Atkinson, Flew and Hunter in Chappell.

Pace Gewirth, who attempts to make the move on the basis of features of human action which he claims logically entail a supreme moral principle. I consider Gewirth’s attempt later in this section and give my arguments for why his attempt fails.

Recall that the Humean view of reason, discussed in detail in Part A of this book, is that reason, alone and without some subsumed desire, cannot motivate action. This view, as we have seen, is at the hub of objectivist/subjectivist disputes. But recall as well that Humean reason, in the broad sense, includes all causal determinations and is not limited to logical, deductive calculations. The objectivist cannot, therefore, simply dismiss Hume’s conception of reason as patently over-narrow as Bodenheimer misleadingly attempts to do. (Vide Bodenheimer, pp.203-205.)

That is why Hume has so little to say about duty. All he can say is that duty is a function of feelings of self-hatred. Vide chapter three, section c) supra. Vide too section g) infra.

MacIntyre, op. cit. at note 19, in Chappell, pp.252-253.

Treatise, p.470.

Vide MacIntyre in Chappell, pp.258-261.

Mackie (2), p.63.

Vide Lloyd, p.440. “The force of Gewirth’s logic cannot be gainsaid.” It will become clear that I disagree. But vide too Waldron (1), pp. 19-20.

Gewirth, p.12.

Vide Gewirth, pp.1-2 inter alia.

Vide Gewirth, pp.18 and 10. Cf. Nagel. And vide chapter one, note 56 supra. Gewirth, p.18 (italics mine).

Vide Gewirth, pp.11-12 and 19 inter alia.

Ibid., p.l 1. At p. 12 it is referred to as a “supreme moral principle”.

These steps are reproduced from Gewirth, pp.14-17 and the step numbering is his. I have omitted those steps not crucial to the present discussion.

I have a further, tangential criticism which is that in its original form Gewirth’s argument frequently adopts a pseudo-logical prose which I think is unnecessary and unwarranted. (Vide pp.5-10 inter alia.) E.g. “the condition of an adequate account of the Objects of rights'' (p.8, italics in original); “the condition of rationally necessary acceptability to all rational persons” (p.8, italics in original); “the condition of adequate egalitarian premises” (p.6, italics in original).

Vide Gewirth, p.14.

On this question of determinism and free-will it may be recalled that I have taken no position. (Vide the introduction to this book.) In a sense then I too have assumed that free-will is possible. There is a difference between us though. My Humean moral theory does not require free-will to be the case; it remains coherent and plausible even if determinism be true. The same cannot be said for Gewirth’s theory which pre-supposes and relies upon the existence of human free-will.

Gewirth talks of “reason[s] for acting” (Gewirth, p. 14). Recall from chapters one and two that if reason, alone, can motivate action then it is at least possible to argue that certain types of action which are seen to be ‘right’ — moral acts — can be performed regardless of an individual’s subjective preferences, desires, sentiments or inclinations. But if reason be inert, if it merely tells us means to ends, then motivating action requires some desire, want or sentiment. A moral act could only be done, in that case, where an individual happened to have a moral inclination. It will become clear that Gewirth assumes the former situation to be the case.

Gewirth, p.15 (italics mine).

Ibid.

Cf. my comments on Nagel in chapter one supra.

I do not mean that these are my only three criticisms. Indeed 1 have discussed already my view that universalizing (exemplified in Gewirth’s move from step (10) to step (13)) is not a logical requirement, however appealing it may be. (Vide chapter five, the end of section e) supra) Rather, I limit myself to these three criticisms as sufficient to refute Gewirth’s claimed derivation.

Gewirth, p.15.

So this claim of Gewirth’s is not even a hypothetical imperative, much less a categorical imperative.

Gewirth, p.15.

And indeed if it were it would be no more than an unhelpful tautology — to act at all one must be alive — in no way serving to derive a right to life.

Modifying Gewirth’s step (3) to exclude well-being in the light of my previous criticism.

Gewirth’s argument implicitly assumes that humans do have free-will, as I have noted. Purposive action is just that action whose motivating “... precepts all assume that the persons addressed by them can control their behaviour by their unforced choice with a view to achieving whatever the precepts require.” (Gewirth, p.14 (italics mine)) In other words, the fact that the vast preponderance of ‘vulgar’ opinion and even existing moralities assume or presume free-will is a good enough starting point for Gewirth.

Gewirth limits the sense of ‘good’ in step (2), as I agree he must, to an evaluation from the particular agent’s perspective.

Such a conception of action is much narrower even than Nagel’s, who only requires reason sometimes to move or prevent action. Vide chapter one, section d) supra.

The only escape is to reduce the sense of ‘good for the agent’ in b) to any want or desire or ‘thing in it for the agent’ which would allow a) and b) always to align but would also mean, as I argue below, that Gewirth effectively had to advocate a non-legal right to anything desired.

Vide chapter eight, section c) supra for my discussion of positive and negative freedom.

The claim for logically mandated non-legal rights is, after all, nothing more than a form of moral objectivism.

On both the relativity of particulars but the uniformity of some general matters vide Hume’s “A Dialogue” in Enquiries.

Vide, for example, Enquiries p.336 and chapter four, section c) supra.

Humans can be observed to disagree frequently and regularly about likely consequences, as 1 have noted. Vide chapter six, section d) supra.

By ‘non-posited’ I mean here to exclude legal standards, in my chapter seven and eight sense of ‘legal’ in which certain rules meet the test of a particular society’s rule of recognition, and also laid down precepts such as exist, say, in Christianity and Islam. Of course standards can also exist as laws or as religious commandments and interdicts. But these are not what I am now referring to.

Nor is the point at which such sentiments weaken, change or lapse at all

consistent across the species.

For the Humean, who looks for causal explanations, this should not be too surprising. Objectivist and sceptic, after all, are both products of the same culture.

Vide too the Concluding Remarks infra.

I have noted the ambiguity of the term ‘nature’ and given the reference to Hume twice already. Vide chapter eight, note 48 and chapter four, note 40 supra.

For a historical survey of the development of natural law theories in the English and American contexts vide Haakonssen.

The natural/artificial distinction, it will be recalled, lies at the heart of Hume’s moral theory. Some virtues are instinctive; others, like justice, require a complex explanation, but one still in naturalistic terms. Vide chapter five supra.

Recall my discussion of Gewirth in section c) supra for instance.

Vide chapter eight, section a) supra. As I have noted there, Hart accepts that legal rules can explicitly incorporate moral standards.

I recognise that some Bills of Rights do limit the scope of application of their enumerated rights. The Canadian Charter of Rights, for instance, has a general limitation as follows:

Sec. 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Nevertheless, such limitations sit behind broadly granted rights and are virtually no less general and amorphous than the granted rights themselves. And of course it is the rights that are emphasised. Consequently the tone and flavour of moral realism, with the concomitant hint of absolutism, is maintained. The reality that judges will have the last word, though, perhaps becomes more patent.

For my views of the relative merits of judges and legislators vide chapter eight, section b) supra.

Vide Griffith.

This should not be too surprising. The popularity of Dworkin’s theory, in my view, is not unrelated to how well it answers the demands of a legal system with a Bill of Rights. If judges are required to find ‘the’ moral answer then a theory which says there is one (but without any patent natural law associations) must have great appeal. I would say that Dworkin is not so much the archetypal American legal philosopher as the legal philosopher of jurisdictions with full-blooded Bills of Rights. For my discussion of Dworkin’s theory of interpretation vide chapters seven and eight supra.

In response to the all too frequently heard claim that Bills of Rights are democratic, I can add nothing to Waldron’s superbly argued refutation of that claim. Vide Waldron (2), pp.41-46 and all of Waldron (3).

As far as 1 am aware no functioning Bill of Rights has ever been removed. Of course other entrenched clauses in a constitution have been removed. E.g. the Prohibition Amendment to the U.S. Constitution was repealed.

Recall, though, that I reject the analogy between ethics and science. My position merely requires that observable regularities are given in a way that values are not. My position does not deny that the causal world may be filtered and interpreted. But to draw an analogy between ethics and science i s to assert, indirectly, the secondary qualities analogy. (Vide chapter three, section d) supra.) It is true that I maintain that feelings are part of the causal world. Values, however, are not, unless one is prepared — like the sceptic — to reduce values to feelings.

It will become clear, I hope, that I intend to offer my own preference and not some theory that ‘ought to be preferred’ or that is ‘most widely preferred’.

That is, it is independent of perspective (i) and perspective (ii) issues and answers. Vide the beginning of this chapter supra.

Vide chapters seven and eight supra.

The sceptic Mackie talks this way. Vide Mackie (3), chapters 8, 14 and 16. I discuss the views of Mackie on this question infra.

Mackie (3), pp.220-221.

The projectivist sceptic like me, recall, contends that subjective sentiments are projected on to the world and felt to be objective. As a result, the usual sense of moral language and thought is — erroneously — an objective one. Vide chapter three supra. Talk of ‘critical morality’ is no exception.

For my meaning of ‘good’ and ‘beneficial’ vide section d) supra.

Vide Bentham (1), especially the first six chapters.

Or perhaps some other, wider or narrower, group of beings or potential beings.

I prefer ‘consequentialism’ to ‘utilitarianism’ because of the latter’s usual association with the notion that pleasure or happiness is the good and with the view that reason is a possible mover of action. Nevertheless in a fundamental sense — that of looking to sentiments, to what people want and find agreeable, and then weighing benefits — my consequentialism is a form of utilitarianism.

Cf, however, Waldron’s comment that “Non-utilitarian theories [of rights]... often contain little more than a bare assertion that certain rights are intuitively evident or at any rate are to be taken as first principles.” Waldron (1), p. 19.

Opinions on the length of this term varying with the perception of likely consequences and their perceived effect on preferences and feelings.

Recall the analytical point about rights: Rights pre-suppose rules. Alternatively, the existence of a right is the existence of a rule.

I take Mackie’s views on this subject from chapters 8, 14 and 16 of Mackie (3).

Mackie (3), p. 107.

Ibid., p.220.

Ibid., p.201.

Ibid.

Ibid., p.186.

Ibid., p.l 14.

Vide, for example, David Lyons’ “Utility and Rights”, chapter five in Waldron (1).

Vide in particular Mackie (3), chapter 14.

Vide Mackie (3), p. 193 and chapter three, section b) supra. For another criticism of Hare’s attempt to rely on an analysis of the ordinary use of moral

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terms vide Klein (2).

Vide especially Mackie (3), pp. 191-193.

Mackie (3), p.l 18.

Ibid., pp. 198-204.

In my view a caveat is necessary here. I take the view, remember, that the Humean conventional account is meant, not as an historical explanation, but as an account of what sustains and maintains morality. Real history involves violence and force. If Mackie’s explanation be meant on the purely historical level, then I disagree with it. Vide chapter five, section d) supra.

Mackie (3), p.l 18.

Ibid., p. 116. Vide too p.221.

Mackie’s claimed fundamental right is the “right of persons progressively to choose how they shall live.” (Vide Mackie (3), pp.113-114, 116-117) Mackie (3), p.l 16 (italics in the original).

Bentham calls this the principle of sympathy and antipathy. Vide Bentham (1), chapter two.

Pace Mackie’s own professed hopes to the contrary. Vide Mackie (3), p.l 18 and note 105 supra.

Vide, for instance, Mackie (3), pp. 111 and 186.

Vide, for instance, Mackie (3), pp. 118-119 and 225-232.

Vide, for instance, Mackie (3), pp.114-116 and 223.

Thus, for example, rights may block policies intended for society’s benefit but knowing what we do of tyranny, ineptitude, fallibility, and even good intentions, certain roadblocks, limits or short-term inconveniences in the way of the exercise of power actually have good consequences. Vide too the six reasons Mackie himself lists, but does not evaluate, for why rule- consequentialism points towards rights at Mackie (3), p.l90.

Vide note 97 supra. The suggestion that most humans would have difficulty, in practice, keeping the two levels distinct and that one level might influence the other (as Mackie opines at Mackie (3), pp.110-111) is not a worry if the two levels always align. I consider this criticism on the opposing hypothesis infra.

Mackie (3), p.l90.

So too would the moral realist Thomas Nagel, or so he said in a public seminar I attended at the University of Hong Kong on March 17th, 1993.

A moral realist could, of course, say torture is objectively wrong whatever be the consequences and she simply will not participate. Cf. the comment of Waldron who says that, “A prohibition on torture is right-based only if the implications of torture for a single individual are taken to be sufficient to generate the requirement...” (Waldron (1), p. 13, italics mine). Far from that resolve not to participate being the ‘moral high ground’, though, I would say just the opposite.

This is Hobbes’ argument for the need for a sovereign, any sovereign. Vide Hobbes, chapter 18. His own particular preference was for monarchy.

I believe Fuller uses just such a widespread moral sympathy with the plight of his cave explorers, who kill and eat one of their own, in order to create a tension between law and morality. His article is effective because deep down few readers think the surviving spelunkers did anything wrong. Vide Fuller (1). Again, the recent use of a second trial, on substantially the same charges, to convict white Los Angeles police officers of beating a black man can be seen, on one analysis, as a paying of greater deference to consequences (e.g. preventing further rioting, soothing race relations) than to adherence to rules (i.e. the constitution’s prohibition against being placed in double-jeopardy).

¹²¹ And having once admitted that this is ever the case is one not then inescapably confined to the depths of rule-consequentialism, wherever one happens oneself to draw the line?

¹²² Mackie (3), p. 119.

Concluding Remarks

¹ Gallic, p.194.

² This very argument about its greater tendency to foster tolerance was advanced on behalf of moral realism by Thomas Nagel in the course of his 1993 Li Ka Shing Public Lecture which I attended and which was held on March 18th, 1993 at the University of Hong Kong.

³ I.e. that moral realism has better consequences, viz. greater tolerance, than moral scepticism.

⁴ Mackie (2), p. 154.

⁵ Ibid., p.155.

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