JURISPRUDENCE OUTLINE — SPRING 2009 —BRIAN LEITER
“In law, issues about objectivity arise along a variety of dimensions. For example: 1) We expect the content of our laws to be objective in the sense of treating people the same unless they are ‘relatively’ different. 2) We expect judges to be objective in the in the sense of not being biased against one party or the other. 3) We expect legal decisions to be objective in the sense of reaching the result that the law really requires without letting bias or prejudice intervene. 4) In some areas of law, we expect the law to employ ‘objectivity’ standards of conduct (like ‘reasonable person’ standards) that do not permit actors to excuse their conduct based on their subjective perceptions at the time.
“Recently a substantial literature has emerged on the objectivity of law primarily with respect to the issues posed in (3). Indeed, it is here, in particular, that questions about the objectivity of ethics intersect with those about law.” (Leiter CP 5)
I. Is morality objective? Is law objective?
A. Semantic objectivity: an issue about the meaning of sentences we use to express propositions
i. Test: Can this set of judgments be assessed in terms of their truth or falsity?
ii. A statement is bivalent if it is either true or false.
(1) Dworkin thinks legal and ethical propositions are bivalent, which is bizarre.
(2) Cf. Brink, who thinks moral disagreement sometimes arises in the case of moral ties, incommensurable value. (Brink p. 378)
iii. A given discourse is semantically objective if its statements and judgments can be true or false.
(1) COGNITIVISM: Ethical judgments can be true or false.
(2) NON-COGNITIVISM: The grammar of the statement “slavery is unjust” misleads us. Ethical statements cannot be either true or false. The meaning of these statements lies not in their purported attempts to describe the world, but in their expression of…
a. Feelings?
b. Attitudes?
B. Metaphysical objectivity: an issue about what actually exists
i. Constitutive independence: X’s “existence and character” are constitutively independent if the existence and character are not identical with what goes on in the mind.
(1) Obviously, beliefs, feelings, and attitudes (“psychological facts”) are constituted by the human mind, so they are not independent of it in this sense. But psychological facts may have…
ii. Cognitive (epistemic) independence: X’s existence and character are cognitively independent if do not depend on any cognizing state of persons (belief, sensory perception, judgment, response, etc.)—a state in which you’re open to or receptive to a statement about the world.
(1) Test: Does X exist independently of what people think about it, i.e., is X “mind-independent”?
a. Before people knew about dinosaurs, it was nonetheless a metaphysically objective fact that dinosaurs once existed on Earth.
b. Compare: Was slavery unjust before people knew that it was unjust?
(2) METAPHYSICAL REALISM/STRONG OBJECTIVITY: The existence and character of something is entirely independent of what we believe about it. Even an epistemically ideally positioned judge could be mistaken about what is the case.
a. Most philosophers say physics is strongly objective…
b. … but some go so far as to embrace “moral realism”—to say slavery is unjust is independent of what anyone thinks about it.
c. Most realists about ethical judgments are often very optimistic about the scope of human knowledge.
d. e.g., Platonic forms
e. You could claim that law is metaphysically objective “insofar as there exists right answers as a matter of law.” (Leiter CP 5)
(i) “Often, the objectivity of ethics is implicated in the objectivity of law. The metaphysical objectivity of law, as we have seen, is a matter of its rational determinacy, i.e., it is a matter of the class of legal reasons justifying a unique outcome. If the class of legal reasons, however, includes moral reasons, then the law can be objective only if morality (and moral reasoning) is objective.” (Leiter CP 6)
1. The class of legal reasons imports moral reasons because:
(a) Sources of law (statutes and constitutions) may include moral concepts or considerations
· E.g. cruel [though not unusual] punishment, due process, liberty in Lawrence v. Texas
(b) Moral reasons may be part of the criteria for legal validity
(c) Perhaps hard cases should be decided with reference to the achieving the morally correct result
(ii) Some philosophers (M. Moore and D. Brink) assert that law is STRONGLY OBJECTIVE using the same theory of reference that Kripke and Putnam apply to necessary truths that are only discoverable a posteriori.
1. The name “water” is arbitrary but fixed; once we baptize water with the name “water” we might discover that the stuff is identical with H20. Thus, water=H20 is a necessary truth, only discoverable a posteriori.
2. Perhaps legal concepts are also arbitrary but fixed. Once we baptize negligence with the name “negligence,” certain necessary truths about negligence might follow.
(a) But is the Kripke-Putnam theory of reference correct? Maybe not.
(b) But legal concepts are not necessarily natural kinds (like water) that have essential characteristics (like being H20). If we are going to make any such claim about the essential characteristics of a legal concept, we need to be committed to moral realism.
(iii) But even if legal facts are strongly objective, “what reason is there… for thinking that ordinary adjudicative practices are epistemologically objective, i.e., involve reliable mechanisms for discovering Strongly Objective legal facts?” (Leiter CP 7)
1. Epistemic access is important if we want law to be normative, or reason-giving. Law can’t give reasons if it is undetectable. (Leiter CP 8)
(3) MODEST OBJECTIVITY: The existence and character of something depend upon beliefs, but only those beliefs made under epistemically ideal conditions. (Or perhaps, by experts ~ Mill.)
a. J.S. Mill ~ there can be experts about what is a good life for people to lead; this expert has had the experience of both kinds of life under examination and can chose which is better. “Better to be Socrates dissatisfied than a pig satisfied.” [Somebody who had the experience of both lives would prefer the Socrates life.]
b. Color depends on normal lighting conditions, lack of colorblindness, etc.; what makes something brown is perception of normal person under normal viewing conditions.
c. Law is modestly objective if:
(i) “X is a legal fact if under ideal conditions lawyers and judges take it to be a legal fact.” (Leiter CP 7)
1. Dworkin may think this, “insofar as what Hercules takes the right answer to be seems to fix what the right answer is, and Hercules is just an ideal judge, i.e., one with unlimited time, knowledge, and powers of rational and philosophical reflection.” (Leiter CP 8 footnote). “But Dworkin contests the entire way of conceptualizing objectivity involved in this characterization of this view.” (Leiter CP 8 footnote).
2. See ideal conditions for judgment according to Leiter and Coleman (Leiter CP 8)
3. Still have to worry about epistemic access to these modestly objective legal facts, especially if we want law to be normative, or reason-giving. Law can’t give reasons if it is undetectable. (Leiter CP 8)
(4) MINIMAL OBJECTIVITY: The existence or character of something depends entirely on what the community thinks. With this degree of objectivity, we introduce the idea that an individual could make a mistake about a proposition.
a. “Wearing striped shirts and plaid pants is fashionable.” à thinking this is true does not make it so.
b. Related to ethical relativism: communities all have different kinds of standards.
c. Law is minimally objective if:
(i) “X is a legal fact if the community of lawyers and judges take it to be a legal fact.” (Leiter CP 7)
(5) SUBJECTIVISM: Complete denial of objectivity. The existence or character of something depends entirely on what the individual subject believes about it.
a. “This Chinese food is tasty” — whether this is true or not depends entirely on the speaker’s beliefs about the food.
b. E.g., Protagoras (“man is the measure of all things”)
c. Could law be subjective? Not if we think that likes must be treated alike and relevant differences treated differently.
(6) But see Dworkin and McDowell, who object to conceiving of law/ethics as strongly metaphysically objective in the causal sense.
a. The idea is that the notion of metaphysical objectivity presupposes a vantage point on the way things “really” are.
(i) But “it is not clear, however, that doubts about, say, the objectivity of morality require such a vantage point: even from ‘within’ our practices questions can arise about the objectivity of morality because, for example, of the apparent diversity of moral views, or because moral facts do not appear to play a role in causal explanations of experience.” (Leiter CP 8) à See Neurath’s boat.
b. Metaphysical objectivity makes sense in the sciences, but law and ethics are different! A better approach is to say that moral judgments are objective if they are susceptible to reasons.
C. Epistemological objectivity ~ “Free[dom] [from] bias and other factors that distort cognition, that prevent the things being cognized from presenting themselves as they really (metaphysically) are… Epistemological objectivity requires that the cognitive processes and mechanisms by which beliefs about the world are formed be constituted in such a way that they at least tend toward the production of accurate representations of how things are.” (Leiter CP 3) Requires that:
1) the cognitive processes at issue reliably arrive at accurate representations, OR
2) the cognitive processes are free of factors that are known to produce inaccurate representations
i. Epistemic objectivity is not necessary for metaphysical objectivity; see Railton, who holds that one “need not require freedom from all value and bias in order to have objective inquiry” since “there may yet exist mechanisms of belief-formation that incorporate feedback from the object to the inquiring subject.” (qtd. in Leiter CP 3)
(1) Reason is that metaphysically objective things make themselves felt causally, regardless of whatever bias you might have (Leiter CP 3)
ii. You could claim that law is epistemically objective “insofar as the mechanisms for discovering right answers (e.g., adjudication, legal reasoning) are free of distorting factors that would obscure right answers.” (Leiter CP 5)
(1) Indeed, we might hope that judges are objective in that they are free from bias.
II. Moral Error Theory (Mackie) and Moral Realist Response (Brink)
A. Mackie: Ethical statements are not metaphysically objective, but they are semantically objective. Moreover, all ethical statements are systematically false.
i. Mackie, as though rebutting Dworkin, holds that ordinary statements about morality are in fact metaphysical claims:
“I conclude, then, that ordinary moral judgements include a claim to objectivity, an assumption that there are objective values in just the sense in which I am concerned to deny this. And I do not think that it is going too far to say that this assumption has been incorporated in the basic, conventional meanings of moral terms. Any analysis of the meanings of moral terms which omits this claim to objective, intrinsic, prescriptivity is to that extent incomplete; and this is true of any non-cognitive analysis, any naturalist one, and any combination of the two.” (Mackie 17)
ii. Mackie, following Kant, holds that moral statements are categorical imperatives, telling you what ought to be done independent of any antecedent desire
(1) Cf. hypothetical imperatives, which tell you that IF you have an antecedent desire, here’s how you should go about achieving it.
(2) If genocide is morally wrong, you feel compelled to avoid it.
(3) Doesn’t mean that people always act as they should—knowledge of moral judgment is required, and moral failings/obstacles can prevent you from acting appropriately.
iii. Two arguments for error theory:
(1) Argument from relativity (gloss as an argument from the existence of moral disagreement)
a. Mackie is sloppy, but here’s a generous interpretation: When it comes to moral questions, we find persistent and intractable disagreement. Then we have to ask, what is the best explanation for this disagreement? [Assumes that where there is objective truth, investigation will converge upon that truth.]
(i) The skeptic says: There is no fact of the matter. What’s really happening is people are giving expression to attitudes they acquired growing up. (See Ayer/Stevenson.) Whereas, where there is an actual fact of the matter, we shouldn’t expect the disagreement to be so persistent and intractable. The challenge to the moral realist is to explain the existence of moral disagreement despite the existence of moral truths.
b. Possible responses by moral realists:
(i) Deny the datum. There is no moral disagreement!
1. Brink: A lot of what appears to be moral disagreement is really parasitic upon disagreement about non-moral facts. (Brink p. 379)
(a) Herodotus (via Leiter): Egyptians ate their dead fathers, in fact believed they had a moral obligation to do so. A Greek was asked how much would he take to do the same thing? Wouldn’t do it for any amount of money. But it actually turns out they don’t have a moral disagreement: Greeks and Egyptians BOTH believe in the same general moral principle: that the living have obligations to the dead, which includes helping the dead make the transition to the afterlife. But Egyptians believe that the soul can’t escape if you don’t eat the body. This is a nonmoral disagreement.
(b) “The correct answers to controversial moral questions often turn on nonmoral issues about which reasonable disagreement in possible and about which no one may know the answer. Moral disagreement can turn on nonmoral disagreement over such questions as ‘What (re)distribution of goods would make the worst-off representative person in a society best-off?, ‘Would public ownership of the means of production in the United States lead to an increase or decrease in the average standard of living?’” (Brink p. 379) Leiter: Both communists and libertarians agree that goal should be to improve the wellbeing of people, but have different opinions about how to get there.
· Examples are only going to work if you accept some degree of Rawlsian justice re: worse off, best off, etc. The disagreement assumes agreement about the ends, and focuses on the complicated, non-lab-testable questions of social organization. (Brink gets this argument from Derek Parfit.)