Moral and Legal Reasoning

Moral and Legal Reasoning

By Gregory Bassham

King’s College (Pa.)

Some of the most important decisions we face in life involve ethical or moral questions.[1] As individuals, we all face life-shaping ethical choices such as: What kind of person do I want to be? What values should I live by? How should I treat others? and What should my priorities in life be? As a society, we also confront fundamental and inescapable moral choices: When, if ever, is war morally justifiable? Should the death penalty be legal? Should all citizens have the same basic rights? When is it legitimate for government to restrict individual liberty? What is a just society?

Law also raises issues of fundamental importance: Does the U.S. Constitution guarantee a right to abortion? Does the death penalty violate the Eighth Amendment’s prohibition of “cruel and unusual punishments”? Should preferential treatment in employment and university admissions decisions be legal? Do bans on gay marriage violate the Constitution’s guarantee of “equal protection of the laws”? Does the CIA’s rough handling (some would say torture) of suspected terrorists constitute a “war crime” under international law?

Because law and morality play such crucial roles in human affairs, it’s important to be able to think critically about them. In this chapter we examine both moral and legal reasoning. First we’ll look at moral reasoning and ask how moral arguments should be evaluated. Then we’ll examine legal reasoning and consider how lawyers and judges do, and should, reason to legal conclusions.

Moral Reasoning

Moral Statements and Moral Arguments

In this section we will study ethics, a branch of philosophy that seeks to clarify moral concepts and answer questions about what is right or wrong, or morally good or bad. Our main focus will be on moral arguments. A moral argument is an argument that includes at least one moral statement. A moral statement is a claim that asserts that something is good or bad, right or wrong, or has some other ethical quality (e.g., being just, admirable, or blameworthy). Moral statements are normative statements, that is, statements that claim that something has or lacks a certain value, or should or should not be done. Not all normative statements are moral statements. If I say, for example, that Paris is a more beautiful city than London, I am not saying anything about the comparative moral qualities of the two cities. Here are some examples of normative statements:

  1. Michaelangelo was a greater artist than Leonardo da Vinci.
  2. That cheesecake was divine!
  3. You shouldn’t eat your salad with a dessert fork.
  4. A sentence should not end with a preposition.
  5. Prague would be a great place to host the next Olympics.
  6. Always keep your promises.
  7. Affirmative action is unjust.

Each of these statements asserts that something has or lacks a certain value, or ought or ought not to be done. Each asserts that something is good or bad. However, only statements 6 and 7 claim that something is morally good or bad. Thus, only these normative statements are moral statements.

The opposite of a normative statement is a non-normative (or factual) statement. A non-normative statement is an assertion that states an alleged fact or describes something, without claiming that it is good or bad, or ought or ought not to be done. In other words, a non-normative statement asserts a fact rather than a value; it asserts what “is,” not what “ought” to be. Examples of non-normative statements include:

  1. Sacramento is the capital of California.
  2. The Titanic sank in 1912.
  3. Too much soda can make you obese.
  4. Tattoo parlors are illegal in some states.
  5. Buddhists believe that compassion is a fundamental value.
  6. Mercy killing is a common practice in some countries.
  7. Rachel lied about her age to the Army recruiter.

To determine whether a statement is or is not a normative statement, one should ask: is it necessary to make any kind of value judgment in order to determine whether the statement is true? If the answer is “yes,” then the statement is a normative statement. If the answer is “no,” then the statement is not a normative statement.

EXERCISE 16.1

I. For each of the following, indicate whether it is or is not a normative statement.

1. Lemons are sour.

2. Your garden is beautiful.

3. Never wear shorts to a job interview.

4. Snack on fruit instead of chips or cookies.

5. You have a cool bike!

6. I’d rather have my teeth drilled rather than sit through another assembly.

7. Beth is the duly elected President of the Student Council.

8. Darn, my tire is flat.

9. Jeremy is a heck of a gamer.

10. If you want a secure retirement, you should begin to save now.

11. Never let ‘em see you sweat.

12. Jenny was absolutely fearless.

13. Grisham’s latest novel is a real page-turner.

14. This presentation may not be rebroadcast or otherwise transmitted without the express written consent of Major League Baseball.

15. I will not stand for this type of behavior!

II. For each of the following, say whether it is or is not a moral statement.

  1. Treat others as you would like to be treated.
  2. Matt McConaghey is the sexiest man alive!
  3. Shrek is a better movie than Jackass.
  4. President Clinton committed impeachable offenses.
  5. Pete’s dog is vicious.
  6. The sunset was beautiful.
  7. Cherry bombs are illegal in many states.
  8. Cherry bombs should be illegal.
  9. Never wear a tie with a knit shirt.
  10. I promise to pay you $5.
  11. Carol committed first-degree murder.
  12. Ian cheated on his girlfriend.
  13. For best performance, change your mower’s air filter regularly.
  14. What were you smoking when you thought up this brilliant stunt?
  15. George W. Bush is our worst president—ever!

In this section we shall focus on moral arguments, i.e., arguments that include at least one moral statement. Moral statements can appear in moral arguments as premises, conclusions, or as both premises and conclusions. Here is a moral argument in which a moral statement occurs only as premise:

  1. Club rules specify that only persons of “exemplary moral character” are eligible to serve as Chief Mugwump. (non-normative statement)
  2. Snodgrass has twice been convicted of cruelty to animals. (non-normative statement)
  3. Anyone who has twice been convicted of cruelty to animals does not have an exemplary moral character. (moral statement)
  4. Therefore, Snodgrass is not eligible to serve as Chief Mugwump. (non-normative statement)

Here is an argument in which moral statements occur both in the premises and in the conclusion:

  1. Judy cheated on her ethics test. (non-normative statement)
  2. Anyone who cheats on an ethics test is ethically challenged. (moral statement)
  3. So, Judy is ethically challenged. (moral statement)

And here is a moral argument in which a moral statement occurs only as a conclusion:

  1. Mel is a convicted felon. (non-normative statement)
  2. So, Mel should be deprived of his right to vote. (moral statement)

Moral arguments of this third sort—that is, arguments in which moral statements appear only as conclusions—raise an issue known as the “is-ought problem.” The problem is this: If an argument’s premises talk only about facts (what is the case), and an argument’s conclusion talks about values (what ought to be the case), it seems like the premises and the conclusion are talking about quite different things. And if the premises and the conclusion are talking about quite different things, how can the conclusion follow logically from the premises? How, in other words, can you logically infer an “ought” from an “is”?

The standard answer to this question is: you can’t. Whenever an arguer reasons from an “is” to an “ought,” he is either arguing illogically or he is implicitly assuming another “ought”-statement as a link between the premises and the conclusion. In the example about Mel, for instance, the normative conclusion (“Mel should be deprived of his right to vote”) does not follow logically from the non-normative premise (“Mel is a convicted felon”). However, the conclusion does follow logically if the arguer is implicitly assuming another moral statement, namely, that all convicted felons should be deprived of the right to vote. When we add this unstated but assumed premise to the argument, the conclusion does follow validly from the premises:

1. Mel is a convicted felon. (non-normative “is” premise)

[1* All convicted felons should be deprived of the right to vote.] (implicit “ought” premise)

  1. So, Mel should be deprived of his right to vote. (normative “ought” conclusion)

In filling in unstated “ought” premises in arguments that move from non-normative premises to normative conclusions, keep in mind the two rules discussed in Chapter 7:

  1. Faithfully interpret the arguer’s intentions. Remember that a missing premise is a genuine part of an argument only if it was implicitly understood to be part of the argument by the arguer himself. So always try to fill in a missing step in an argument in a way that the arguer himself would recognize as expressing his own thought.
  1. Be charitable. Sometimes it’s hard to say what unstated value assumption an arguer may have in mind. In such cases, the principle of charity requires that we interpret the argument as generously as possible. To do this, we should search for a way of completing the argument that (1) is a plausible way of interpreting the arguer’s uncertain intent and (2) makes the argument as good and well-reasoned as it can be.

EXERCISE 16.2

I. Assume the following moral arguments are deductive. Fill in the missing premises that are needed to make the arguments deductively valid. Then note, for each step in the argument, whether it is or is not a moral statement.

  1. Abortion involves the intentional killing of a human being. So, abortion is wrong.
  2. Homosexual sex is wrong because it’s unnatural.
  3. Human cloning is unethical and must remain illegal. Cloning creates a substantial risk of birth defects.
  4. Torture is a violation of human dignity, and as such may never be employed.
  5. Bans on so-called assault weapons must be strongly resisted. Everyone has a right to self-defense.
  6. The use of animals in medical and scientific experimentation is of vital importance and must continue. Animal experimentation has resulted in treatments that have saved countless human lives. Potentially, it may save many more.
  7. Closing the factory and moving the jobs overseas would increase our company’s annual net profits by 20-30%. So, we should close the factory and move the jobs overseas.
  1. I would love it if that bikini model hanging out with those bikers asked me to go skinny-dipping. Therefore, I should ask her to go skinny-dipping.

Evaluating Moral Arguments

Evaluating moral arguments involves the same basic steps as evaluating other arguments. These steps are:

Basic Steps in Evaluating Moral Arguments

  1. Read through the argument carefully and identify its main conclusion (it may only be implied). Then go back through the argument to identify major premises and subconclusions offered in support of the main conclusion. Paraphrase as needed to clarify meaning.
  2. Fill in any key missing premises or conclusions, including any implicit “ought” statements.
  3. Evaluate the truth of the premises, conducting research where needed. (For research tips, see Chapter 12.) Are all the premises true? If not, are enough of them true to support the conclusion?
  4. Evaluate the reasoning. Is the argument deductive or inductive? If deductive, is the argument valid? If inductive, is the argument strong? Does the arguer commit any logical fallacies that weaken or undermine the argument? Are any of the arguer’s claims inconsistent with others he makes? Does the arguer omit any crucial countervailing evidence that points to a contrary conclusion?
  5. Come to an overall evaluation of the argument. Does the argument provide good reasons to accept the conclusion? If not, where exactly does the argument go wrong?

Moral Theories and the Evaluation of Moral Premises

Although moral arguments are evaluated much like any other argument, there are sometimes special difficulties in evaluating moral premises. With factual premises we often know whether they are true, know how to find out if they are true, or at least can imagine a way to find out if they are true (e.g., by taking a rocket ship to Mars to determine whether there is life beneath the polar ice caps). Many people think that moral premises are different from factual premises in this respect. As we saw in Chapter 1, there are lots of disagreements about ethics and often there doesn’t seem to be any rational way to resolve those disagreements. Some people claim that such disagreements show that moral statements can’t be true or false, or that morality is just a matter of social convention or personal opinion. Others argue that while ethical issues are often thorny and complex, there are objective and rationally defensible answers to moral questions. If so, how can we discover what those objective and rationally defensible answers are? To help you think through such questions, let’s look at some leading ethical theories.

Subjectivism Subjectivism, as we saw in Chapter 1, is the claim that morality is a matter of individual opinion, that whatever a person believes is right or wrong is right or wrong for that person. If subjectivism is true, then evaluating moral premises becomes a piece of cake. No matter how crazy, self-contradictory, or implausible a moral claim may seem to you, it’s always true for the person who asserts it. Consequently, no real evaluation or critical analysis of moral assertions is necessary or possible if subjectivism is true. All moral beliefs are infallibly correct.

At first glance, subjectivism can seem a plausible view of ethics because some judgments clearly are “just a matter of opinion.” If I say “Soy milk is good” and you say “Yuck, tastes like chalk to me,” we’re each saying something true. As the saying goes, there’s no disputing about taste. The same is often true of judgments about how things subjectively feel (“It’s cold in here.” “Really? Feels pretty toasty to me.”) and sometimes, arguably, about judgments of art, fashion, or beauty (“Lindsay is hot!” “Man, you need glasses.”).

On reflection, however, moral judgments seem to be quite different from judgments of personal taste or subjective feeling. For one thing, it makes no sense to argue about matters of personal taste (“You’re wrong! Soy milk does taste good!”). But we do think it makes sense to argue about what’s morally right or wrong. Moreover, when push comes to shove it’s very hard to believe that all moral beliefs are true. If your instructor gave you an “F” on your next paper because, he says, only students who write in fluent Klingon deserve passing grades, you’d be hopping mad and would no doubt argue (quite possibly in Howard Sternese) that the instructor was unfair.

Relativism As we saw in Chapter 1, cultural moral relativism is the view that whatever most members of a culture believe is morally right and good is morally right and good for them. In other words, morality is simply a matter of social convention. It follows from cultural moral relativism that there are no moral absolutes or universal moral values. If, say, abortion is widely accepted in Culture A and widely condemned in Culture B, abortion is morally acceptable in Culture A and morally wrong in Culture B. Values are “relative” because they depend on majority opinion, which varies both from culture to culture and within cultures as moral attitudes change over time. If relativism is true, it will usually be a simple matter to evaluate moral premises. If most people in the arguer’s culture would agree with the premise, the premise is true. Otherwise, it is false.

Relativism is a simple ethical theory, but it faces, as we have seen, a number of serious criticisms. Relativism implies, for instance, that it is never right to criticize majority values. Because the majority is always right, anyone who criticizes majority values is, by definition, wrong. Thus, there is no “right to your own opinion” if relativism is true. Total conformity to majority opinion is required.

Relativism also implies that it is mistaken to criticize other cultures’ values, even those that intuitively seem to us to be terribly wrong or even abhorrent. Thus, if most members of Culture A believe that child sacrifice is morally right, anyone who criticizes that practice is wrong. Unquestioning acceptance of other cultures’ moral norms and practices is required.

All these problems (as well as others discussed in Chapter 1) stem from relativism’s root assumption that morality is simply a matter of majority opinion. In a nutshell: If enough people believe that something is right, then it is right. To see how odd this notion is, consider the following thought experiment.

Imagine (although this is surely false) that in Nazi Germany public opinion was very evenly divided on the morality of Hitler’s “final solution”—the extermination of European Jews. Suppose, in fact, that exactly one more person in Germany opposed the final solution than supported it. According to relativism, it follows that killing the Jews was wrong in Germany at that time. But now suppose there are two Nazi soldiers[2] who strongly support Hitler’s genocidal policy—but only when they are falling-down drunk. It’s Oktoberfest and the soldiers get thoroughly plastered. Now, a majority of Germans favor killing the Jews. It follows, according to relativism, that killing the Jews is now morally right in Germany. The next morning the two soldiers are sober and no longer support Hitler’s policy. Killing the Jews, therefore, is now wrong. Killing the Jews is right . . . it’s wrong . . . it’s right . . . it’s wrong . . . all depending on whether two Nazi soldiers are drunk or not! Surely ethics can’t be as arbitrary as that! Right and wrong, in short, cannot simply be a matter of majority opinion.