Moral Commitments, Legal Validity and Duty Under Law

Abstract

An assumption commonly underlies views which hold that moral utterances are capable of being correct or incorrect, valid or invalid. It is that we must find out whether a moral assertion is correct or incorrect by referring it to an objective rational or empirical standard. But the characteristics of the standard vary from theory to theory and even within individual theories. Utilitarians, for example, agree that the standard must be found in the human experiences consequent upon action. But they cannot agree whether the experiences should be those of the members of an actual community or an ideal community, whether these experiences should be computed for each case or for the average case, or whether the experience itself should be simply pleasure or something having intrinsic value. But there is one area of morals in which we consistently reach agreement without having to resort to a common ultimate criterion of duty. Let us ignore for the purposes of this discussion those higher duties, often called virtues, such as courage, benevolence, devotion to excellence, which require special capacities and gifts not possessed by all persons; and ignore also the question of what forms our duties would take in a perfectly constituted society. Let us attend exclusively to those duties which we do now have and fulfil or transgress from day to day. Here at least it is undeniable that people who hold very different views about ultimate criteria frequently reach agreement on the nature of their duties. And a man may on occasion acknowledge the force of a moral rule even though the rule is inconsistent with the philosophical criterion he himself regards as most appropriate. How is this fact of our agreement on actual rules in the face of disagreement about criteria to be explained ? I will argue that the explanation is to be found in the logic of our use of moral rules; that although statements of obligation are not themselves logically true, our duties of compliance spring from the logical relations between such statements and our own performances, and not directly from the relations between these statements and observable features of experience. The procedure I think we follow in arguments about obligations has two main parts. The first part concerns the relation between rules and performances and depends upon the fact that statements of obligation and permission, unlike statements asserting practical advantage, are normative and therefore inherently general. If, given some purpose, the act b on one occasion is desirable under conditions a, it may be the case that, given the same purpose and conditions, the performance of b will always be desirable.