The Need for Standards

It is a different matter whether or not society’s general rules and standards need to be as exceptionless and inflexible as Hume seems to imagine. Of course the requirement for some standards and rules seems to me, as I shall discuss in Part B, beyond dispute.⁴⁴ And recall that for the moral sceptic like Hume none of these rules can have its origin in higher, transcendent postulates or objective givens or mind­independent relations.

In Part B of this book 1 shall be shifting the focus and discussing legal theory. That discussion will, as one would expect, proceed from the areasonable, sceptical foundations laid in this first part of the book. Reason calculates means to ends it does not ‘discover’ ends themselves. Passions, inclinations, sentiments, desires all have a core motivational role⁴⁵ and these are seen to vary amongst people. From this it follows that what the non-Humean might call each person’s ‘private reason’ or ‘individual rational judgement’ or even ‘critical morality’ will lead to a variety of opinions of what is best, nearly as many opinions as people in all likelihood. It is this radical subjectivity about the fruits of ‘natural reason’s’ deciding what is best that pushes the Humean to see moral standards in conventional terms.⁴⁶ The standards are not primarily the product of reason (at least not of what 1 mean by reason of the broad or narrow variety divorced from passions) but once established these standards do set the framework within which social regulation, and thus causal reason’s calculations, operates. However, in a complex, larger society informal standards are not enough.

So, in the absence of ‘rational’, ‘objective’ standards the Humean sceptic sees an inner core of informal standards which owe something to reciprocity and convention and which have been projected out and become ‘objectified’. Around this inner core is a formal layer of positive rules and laws but both layers are more properly conceived of as ‘established’ rather than ‘right’. A side­effect of this, as I shall remark in the next chapter but one, is that what happens to be established is of great weight. The sceptic like me does not consider the issue of whether a rule ought to be followed to be solely an investigation into the merits of the rule. There can be no evaluation of ‘intrinsic’ merits and so any evaluation, beyond looking at consequences, will involve subjective preferences — mine and those that happen to prevail in society. Attention therefore shifts to the likely consequences of not following a rule and it is usually compelling to comply with a rule simply because it works; it gets the job of social co-ordination done. Thus Hume can argue that “... a former decision [i.e. a judicial precedent], though given itself without any sufficient reason, justly becomes a sufficient reason for a new decision.”⁴⁸ Clearly the surrounding context and current practices are of primary importance to the sceptic. In a sense, evaluation is contextual — context plays the primary role of shaping principles that can have no transcendent anchors.

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