Hart, "Positivism and the Separation of Law and Morals"

HLA Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71(4), Feb 1958.

"[I]n spite of all that has been learned and experienced since the Utilitarians wrote, and in spite of the defects of other parts of their doctrine, their protest against the confusion of what is and what ought to be law has a moral as well as an intellectual value."
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The “Utilitarian” distinction:

law as it is vs. law as it ought to be
law as it is vs. (true) moral principles
law as it is vs. (endorsed) moral principles
law as it is vs. law as it ought to be according to a particular standard

Bentham and Austin emphasized the Utilitarian distinction out of concern that, otherwise, we may mistakenly infer from a rule’s violation of morality that it is not a rule of law, or we may mistakenly infer from the fact that a rule is morally desirable that it is a rule of law.

Criticisms & Responses:

I. The “Realists” Criticism:

Legal rules always leave a certain set of cases unclear (e.g. does a rule forbidding “vehicles” in the park forbid skateboards, bicycles, airplanes?)—these cases are “problems of the penumbra.”

Penumbral cases cannot be settled deductively; so rational decisions regarding penumbral cases require judgment that goes beyond deductive reasoning—e.g. to reasoning about how the law should be. Theories or judges who fail to acknowledge this are guilty of “formalism” or “literalism.”

The standards we must appeal to in order to avoid formalism should themselves be considered as part of the law “in some suitably wide sense of ‘law’.”

Thus, legal rules, or their application, cannot be held apart from moral standards.

Response:

The standards we appeal to in order to avoid formalism are not necessarily moral standards.

And, furthermore, we should not lump these standards are part of the legal rule they are used to apply because (1) it’s not necessary to make sense of how we deal with penumbral cases and, (2) to do so is basically to turn all legal questions into penumbral questions. [?]

II. The Reformed Nazi’s Criticism (Radbruch):

Positivism contributed to the evils perpetrated by the Nazi regime and the failure of the German legal system to protest them. Every judge and lawyer should denounce “statutes that transgressed the fundamental principles not as merely immoral or wrong but as having no legal character.”

Response:

It’s naïve to think that positivism is at the root of insensitivity to morality and subservience to state power.

Furthermore, rejecting positivism leaves us in the position where we have to condemn someone who performed evil sanctioned by evil law by holding that she *ought* not have done what the law sanctioned and therefore she was *legally* forbid from doing what the law sanctioned—she broke the true laws even though they weren’t the existing laws at the time, and the existing laws at the time were not binding or authoritative.

This is repugnant, and we should instead own up to the fact that punishing this woman is the lesser of two evils: namely, creating retroactive/retrospective law rather than allowing a heinous though originally legal deed to go unpunished.

“The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another … If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed … *When we have the able resources of plain speech we must not present the moral criticism of institutions as propositions of a disputable philosophy*.” (emphasis added)

III. Re: the Applicability of the Utilitarian Distinction to An Entire Legal System

What provisions in a legal system are “necessary”, and in what way?

1) Those provisions that are necessary to supporting our survival (e.g. forbidding the use of free violence and minimal property rights) are “naturally” necessary.

Other purposes that people have in living in society are “too conflicting and varying” to be the basis of other naturally necessary provisions in a system of law.

2) The other essential element of a legal system regards its administration in treating like case alike.

But both of these “necessary provisions” are consistent with an immoral system of law, so do not undermine or challenge the applicability of the Utilitarian Distinction to entire legal systems.

Nagel, "War and Massacre"

Thomas Nagel, “War and Massacre,” Philosophy and Public Affairs 1(2), `972: 123-44.

Absolutism is associated with a view of oneself as a small being interacting with others in a large world. The justifications it requires are primarily interpersonal. Utilitarianism is associated with a view of oneself as a benevolent bureaucrat distributing such benefits as one can control to countless other beings, with whom one may have various relations or none. The justifications it requires are primarily administrative. The argument between the two moral attitudes may depend on the relative priority of these two conceptions.

Two categories of moral reason:
1. Utilitarian: gives primacy to what will happen (to people as a result of one’s action)
2. Absolutist: gives primacy to what one is doing (to people by acting). An “absolute” requirement is one that rules out even calculating the good/bad results of its violation (i.e. not just untrumpable)

Absolutist principle: hostile treatment of any person must be justified in terms of something about that person which makes the treatment appropriate. Hostility is a personal relation, and it must be suited to its target.

Underlying idea: whatever one does to another person intentionally must be aimed at him as a subject, with the intention that he receive it as a subject.

Principle generates two kinds of restriction, each of which has more specific applications:
1. One may treat only certain people with hostility. E.g. non-combatants are not the appropriate target of military action.
2. One may treat even the appropriate targets of hostility in certain ways. E.g. may not use weapons designed to main or disfigure or torture opponent rather than merely stop her.

Tags: war, utilitarianism, using people, treating people as ends

Doug MacLean, "A Moral Requirement for Energy Policies"

in Responsibilities to Future Generations: Environmental Ethics, ed. Ernest Partridge (Prometheus, 1980), ch. 11.

Motivating question: What is the source of the moral requirement to try to create the best world possible?

I. Starting puzzle:
"Unless we can find a satisfactory beneficence principle that applies to future generations, the identity problem blocks the first step many of us would be inclined to take to justify or explain our moral intuitions. This step is to appeal, in Feinberg's words, to 'our power now, clearly, to affect the lives of these [future] creatures for better or worse.' If anything is clear from the identity problem, it is that we do not have *that* power at all. but we do have the power to create better or worse future worlds, worlds with better-off people or worlds with worse-off people."


Considers and rejects:
1) The possibility that we are required by some non-person-affecting principle to create the best world possible (E.g. Parfit's Principle A, that it is bad to make people worse off than people--whether themselves or others--might have been.);

2) The possibility that we are required because of the affect on our ancestors' interests; and

3) The possibility that we are required independently of anybody's interests {Note: unclear on difference between arg. in (1) and in (3)}

II. Central argument:
It is in *our* interest to create a "better and more enduring world for future generations".

Distinguish:
1) "Phenomenal values": the "values of experience;" marked by replaceability of their objects; adequately captured by language of consumption and satisfaction; matter primarily for how they make us happy.
2) "Extra-phenomenal" values: objects themselves are valued; we value the experiences these objects cause only to the extent that they establish a proper connection or relationship to the objects; inadequately captured by economic vocabulary; matter primarily for how they make our lives meaningful.

Posterity is an extra-phenomenal value:
>The objects of other extra-phenomenal values typically extend beyond our involvement with them.
>This extension "can be" necessary for conceiving of these objects as having intrinsic value beyond being a source of our own happiness.
>"Our extra-phenomenal interests give us reason to make the world better, which in turn gives us reason to protect the world."

III. Significance for energy policy:
"The objection to making our energy policies reflect only the values of neutral rationality and consumers' sovereignty embodies in the policy sciences is not that we know that things will not work out well for the future. It is, rather, that using these scientific techniques does not leave room to consider measures, large or small, that express our commitment to try, in spite of all our limitations, to pass on a better world."

Tags:

Tags: obligations_to_future_generations

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Tags: environmental_ethics

Virtue Theory and Abortion

Rosalind Hursthouse, “Virtue Theory and Abortion,” Philosophy and Public Affairs 20(3), Summer 1991, 223-246.

Responds to 9 common objections to virtue theory: 7 minor, 2 “major”. The two major objections are related to a concern about the applicability and justificatory power of virtue theory in relation to particular decisions, and Hursthouse aims to ameliorate this concern by demonstrating how virtue theory should lead us to think about abortion.

Begins with a nice structural comparison of deontology (connects the concepts of ‘right action,’ ‘moral rule,’ and ‘rationality’), utilitarianism (connects the concepts of ‘right action’, ‘consequences,’ and ‘happiness’), and virtue theory (connects the concepts of ‘right action’, ‘virtuous agent’ and ‘flourishing’).

The 7 minor objections and responses:
Objection 1: Eudaimonia is a hopelessly and uniquely obscure concept.
Response: No more so than ‘rationality’ or ‘happiness’

Objection 2: VT is trivially circular, specifying right action in terms of virtuous agents in terms of right action.
Response: Right action is specified in terms of virtuous agents/virtues which are in turn specified in terms of flourishing. There may be a larger (non-trivial?) circle from there back to right action.

Objection 3: VT is about Being and not Doing.
Response: False. VT does answer the question “What should I do?”

Objection 4: VT is unprincipled and guides only by example.
Response: There is a role for principles. Every virtue generates a positive instruction (act justly, kindly, courageously, etc). Not necessary to have an example of a virtuous person.

Objection 5: VT reduces all moral concepts to virtuous agency.
Response: To the contrary, VT is anti-reductionist and relies on thick moral concepts like charity and benevolence as well as thinner ones like good, evil, harm, worthwhile, pleasant, etc.

Objection 6: Which traits count as virtues is a debatable or even relativist matter.
Response: Both VT and deontology at some point have to stick their necks out and say that some trait or rule is the right one, and those who deny it are mistaken.

Objection 7: Virtues can generate conflicting requirements.
Response: Even a deontology with just one rule can yield contrary instructions in certain circumstances (e.g. Williams’ Jim and Pedro).

Objection 8: VT has to just assert that certain actions are virtuous or not, without argument.
Response: A theory that doesn’t make it easy to apply a moral rule or concept isn’t inadequately action-guiding, but rather accurate.
Objection 9: VT has to just declare certain actions or ways of being worthwhile, without argument.
Response: A theory that requires taking a stand on what is worthwhile isn’t inadequately action-guiding, but rather accurate. The alternative would be to say that a good moral theory should make it possible for someone with no or extremely mistaken opinions on what is worthwhile to give good advice about what morally one should do.


Abortion
VT makes both women’s rights and fetal status irrelevant to the question whether it is right or wrong to have an abortion in certain circumstances.
• In exercising a moral right, one can do something cruel or callous or stupid or disloyal, etc.
• And having the correct attitude toward something such as a fetus is not a matter of its (metaphysical) status, but rather having the familiar biological facts about the fetus and the pregnancy operate in one’s practical reasoning in a virtuous way.

• The biological facts about human reproduction and our emotions in relation to them make pregnancy and terminating it morally serious. Thus to think of abortion as insignificant or purely instrumental to a trivial end is not virtuous. (Consistent with sense that grief over miscarriage is appropriate.)
• Value assumptions: 1. parenthood, motherhood, and childbearing are intrinsically valuable. 2. Else being equal, it is an “evil” when a human life is cut short.
• Some suggestion that it is at least understandable that we should treat early abortion as less serious. Unclear whether she thinks it in fact is less serious.
• In some circumstances, viewing abortion as the blessed escape from a prospect of 8 months of misery and near unbearable burden “does not manifest lack of serious respect for human life or shallow attitude toward motherhood.” This indicates something wrong with the circumstances. (VT has “built-in indexicality”.)
• Sometimes abortion is the right thing to do, but one is in the circumstances where it is the right thing to do through a failure of virtue. Hence it can be appropriate to feel guilt and regret at rightly choosing an abortion.

Theories of the Emotions: Taxonomy

I. General Theories of the Emotions: 3 kinds

1.Somatic
James
Damasio
Prinz

2. Appraisal/Cognitive
Stoics
LeDoux
Lazarus
Nussbaum
De Sousa
Solomon

3. Combo
Aristotle
Schachter & Singer
Calhoun
Stocker

Other
Ryle: nothing but beh’l disp’ns
Griffiths: against folk category
A. Rorty



II. Emotions & Morality

Williams
Wolf
Stocker
Velleman
Annas
Nussbaum
Baier


III. Emotions Related to Hope

1. Trust
Baier
Holton
O’Neill

2. Love
Solomon
Velleman
Annas
Williams

Tags: emotions, taxonomy

Informed Consent and RCTs

Truog et al, “Is Informed Consent Always Necessary for Randomized, Controlled Trials?” NEJM 340 (10), 804-807.

Informed consent is morally necessary only when it is essential for guaranteeing that patients’ right to self-determination is respected.
The right to self-determination [is respected? not disrespected?] when conditions 1-5 are met. (NB some of these conditions have more directly to do with risk minimization than respecting self-determination.)
Therefore, informed consent is not always morally necessary.

Furthermore, requiring specific informed consent sometimes prevents small but meaningful improvements in care.

“When benefits to society and to future patients can be gained without meaningfully compromising respect for patients’ autonomy and without any serious increase in risk to those involved, blind insistence on informed consent is not only unnecessary, but also harmful.”

Tags: consent, trial design

Lessons from ECMO

Robert D. Truog, “Randomized Controlled Trials: Lessons from ECMO,” Clinical Research 40 (3), 519-527, 1992.

ECMO trial’s use of randomized consent should be seen as symptom of two deeper ethical concerns about trial design:

1. ECMO was a potentially life-saving therapy. When the experimental therapy is a potentially life-saving therapy, clinical equipoise is insufficient justification for randomizing patients between the experimental therapy and standard care, because patients don’t expect physicians to weigh benefit to society (generalizable knowledge generated by RCT) against personal views about best therapy. Also, informed consent is not a sufficient waiver of the therapeutic obligation, because patients in these situations are extremely vulnerable and desparate.
2. ECMO was a rapidly developing technology. The length of an RCT means that, as the trial progresses, the experimental therapy used within the trial ceases to be state-of-the-art, and the control therapy ceases to be the best standard care. Also, by the end of the trial, the compared therapies may be obsolete.

Truog proposes a prospective observational study as an alternative to RCT, for getting data about the effectiveness of ECMO in pediatric patients.

Tags: consent, trial design

Between Consenting Adults

Onora O’Neill, “Between Consenting Adults,” Philosophy and Public Affairs 14 (3), 252-77.

Examines the moral ideals of not “using” people, and of “treating others as persons.”

Rejects three common conceptions of these ideals:
1. “The Personal Touch:” living up to these ideals is a matter of employing a certain tone and manner, or not being indifferent. Rejected as neither necessary (impersonal relation w/salesperson) nor sufficient (charming seduction).
2. “Actual Consent:” living up to these ideals is a matter of never treating people in ways they do not consent to being treated. Rejected because consent is opaque and actual consent may not track the morally significant aspects of plans, proposals, and intentions consented to.
3. “Hypothetical Consent:” living up to these ideals is a matter of never treating people in ways that a fully rational person would not consent to be treated. Rejected because it may lead to coercing people in the name of more rational selves (cf Isaiah Berlin, “Two Conceptions of Freedom”). Also, conception needs to be supplemented with an account of which aspects of action must be hypothetically consented to—which aspects are morally significant.

A related, general point: these ideals are not primarily a matter of treating people as they want or would want to be treated: “If wants or rationalized preferences are morally fundamental, consent is of derivative concern.”

Proposes (Kantian) alternative: “Possible Consent”
• Actions are done on maxims (underlying principles, not necessarily fundamental intentions)
• Two kinds of maxims involve using another (failures of respect)*:
o Maxims to which no other [sic? Another?] could possibly consent, such as maxims of coercion or deception. Doesn’t cash out the notion of possible consent.
o Maxims to pursue ends that another cannot share
• Failing to live up to the ideal of treating others as persons may require yet more positive consideration—requires taking into account “humanity in their person”; their particular capacities for rational and autonomous action. Requires endeavoring to further the ends of others (beneficence)*.

*A little unclear whether respect/beneficence are supposed to track don’t use/treat as person.

Discusses how these ideals, conceived in Kantian way, play out in the context of sexual relationships and employment.

Tags: consent, respect for persons, using people

Moral Luck (Nagel)

Thomas Nagel, “Moral Luck,” in Mortal Questions (Cambridge 1979), 24-38.

*********
“The inclusion of consequences in the conceptions of what we have done is an acknowledgment that we are parts of the world, but the paradoxical nature of moral luck which emerges from this acknowledgment shows that we are unable to operate with such a view, for it leaves us with no one to be. The same thing is revealed in the appearance that determinism obliterates responsibility.”
************

The paradoxical nature of moral luck: “A person can be morally responsible only for what he does; but what he does results from a good deal that he does not do; therefore he is not morally responsible for what he is and is not responsible for.”

In other words, an important condition for finding a person responsible for an act under a certain description is that she have control over that act (and that act being of the relevant description). But moral luck means that we lack control over considerations that should not undermine attributions of responsibility.
• Four kinds of moral luck: Constitutive luck (personality); circumstantial luck; luck in how one is antecedently determined (includes determination of the will/problem of free will); luck in how actions and projects turn out (includes decision under uncertainty & negligence).
• NB: We can say in advance how a moral verdict depends on the results of a choice, so this isn’t the claim that moral judgment depends on temporal standpoint.
• The compatibilist solution is to carve out categories of control—some absences of control undermine attributions of responsibility, and some don’t. This solution doesn’t show how the problem arises in the first place.
How the problem arises: “Something in the idea of agency is incompatible with actions being events, or people being things.”
• We work with an internal view of ourselves that includes a rough boundary between what is us/not us and what we do/what happens to us.
• We apply this internal self-conception to others when we morally assess them.
• Reactive attitudes have something to do with this self-conception and its application to others.

(note: possibly something here makes sense of why we feel guilt about hoping for bad things, even when we do nothing to bring them about.)

Tags: moral luck, freewill, agency, reactive attitudes

Freedom and Resentment

P.F. Strawson, “Freedom and Resentment,” in Freedom and Resentment and Other Essays, (London: Methuan, 1974).

Participatory vs. Objective Attitudes: not entirely mutually exclusive (e.g. attitude taken in child-rearing may straddle the two); participatory attitude involves responding to self and others with reactive attitudes; objective attitude may be “emotionally toned,” but cannot include the attitudes “which belong to involvement of participation with others in inter-personal human relationships.”

Reactive Attitudes, categories and paradigmatic examples:
• (Other)-reactive
o Personal
> Resentment
o Impersonal
> Indignation
• Self-reactive
>Sense of obligation
>Guilt

Two kinds of consideration that mollify/modify reactive attitudes:
• Considerations that invite us to view the injury as something the attitude should apply to, or as something for which the agent was not (fully) responsible
o E.g. “She didn’t mean to;” or “She couldn’t help it”
• Considerations that invite us to view the agent as someone reactive attitudes in general should apply to, or as someone who is not (fully) responsible for her behavior
o E.g. “She’s only a child;” or “She’s schizophrenic”

Why determinism wouldn’t undermine reactive attitudes:
1. It’s not (psychologically/humanly) possible for us to adopt “a thoroughgoing objectivity of attitude to others as the result of a theoretical conviction of the truth of determinism”
2. If it were possible for us to make such a “god-like choice, the rationality of making it or refusing it would be determined” by the “gains and losses to human life” that would result from the choice,” and “the truth or falsity of a general thesis of determinism would not bear on the rationality of this choice.”

A diagnosis of the free will debate: Optimists/Compatibilists and Pessimists/Incompatibilists both “misconstrue the facts in very different styles,” or “over-intellectualize:”
• Optimists try to justify moral practices (punishment, praise & blame) in purely pragmatic/consequentialist terms, and thereby lose sight of the “human attitudes of which these parctices are, in part, the expression”
• Pessimists insist that these practices are justified only if a metaphysical thesis is true
• But in fact:

“Inside the general structure or web of human attitudes and feelings of which I have been speaking, there is endless room for modification, redirection, criticism, and justification. But questions of justification are internal to the structure or relate to modifications internal to it.”

Tags: freewill, agency, reactive attitudes, emotions