The Shortcomings of Legalistic Moral Philosophy Part One – Preliminaries
In the following series I want to explore the implications and limitations of a certain picture that I think is holding moral philosophy captive - the picture of legalism. I begin the series by introducing my conception of legalism and hinting at potential reasons that make it worthwhile to discuss. I plan to write two more parts in which I provide a more in-depth discussion of the legalistic theoretical framework and the problems that arise from adopting it.
By legalism I mean the metatheoretical assumption that moral theory is best and/or for the larger part to be understood in terms which are borrowed from theory of law. For the purpose of this series I understand legalism as the combination of two ideas. A) morality consists in a set of universally applicable, action-prescribing rules; these rules determine for each agent and any morally relevant situation the morally correct action; B) they do so by assigning every action to one of the categories of the deontic triad of “obligation - permission - prohibition”. My discussion of legalism will be guided by two assumptions:
Legalism is the dominant paradigm of modern moral theories. This is probably most obvious in the case of contractualist approaches. Contractualism originally started out as a theory about the conditions of justification for political power which is usually exercised through the law. Laws determine the range of situations in which they hold and sort the possible actions in these situations into one of the categories of the deontic triad. In more recent times1, attempts to reconstruct morality as a whole within the framework of contractualism have emerged. Such attempts do not need to claim that moral authority somehow flows from political power; still, it seems obvious to me that they have to think of moral authority as somehow analogous to political power taking the shape of the law because otherwise they could not reconstruct the former in the way original contractualism reconstructs the latter.
I also believe that Kant-inspired moral philosophy is legalistic. Kant notably used the phrase “moral law”, and the Categorical Imperative asks moral agents to imagine themselves as legislators. Although this conversation with @ergo_praxis has convinced me that Kantian moral philosophy does not necessarily rely on the figure of a legislator I maintain that it is legalistic in the sense that it establishes rules that determine the deontic status of actions according to the triad.
Lastly, it seems clear to me that the various branches of Utilitarianism are united by accepting the legalistic paradigm. Details aside, the central idea is that moral theory is about determining the rules by which actions receive their moral status in the deontic triad.
Legalism is not a result-neutral explanation or elucidation of the moral practice. By that I mean that conceptualizing the moral practice in legalistic terms has direct consequences regarding which kinds of actions, decisions, deliberations, claims, objections, reasons etc. count as part of the moral practice and which do not. It also commits one to a specific view about the overall purpose and working of the moral practice. Of course this is not problematic per se but it seems to me that those who accept legalistic approaches are not aware of the fact that their position is not result-neutral regarding its object. In the opening sentence I referred to Wittgenstein’s remark about being held captive by a picture. I believe that legalism is such a picture that holds moral philosophy captive precisely because it is thought to be result-neutral when in fact it is not. It looks like legalism is the way to conceptualize what we do when we engage in moral reasoning, and the way to establish the criteria by which actions receive their status within the deontic triad. More than that, it looks like the deontic triad is the framework for moral judgment. But what if it only looks that way because we are held captive by the picture? That is to say, what if we only think we have no alternative to legalism because our conceptual framework shoves us down this road?
Apart from that, even if moral philosophers were not captives of the legalistic picture but had committed themselves to it willfully and knowingly, the fact that it is not result-neutral allows us to ask whether the resulting image of moral practice and theory is a good one or whether it eliminates important aspects of both.
Necessarily, I depict the landscape of moral theories in very brush strokes. One might criticize the readiness with which I dismiss entire families of theories, claiming that I do not do them justice. This is an objection I am willing to accept, for my aim is not to refute those theories altogether (how could I within the boundaries established by the format of a blogpost/newsletter?). All I try to achieve here is to point out that legalism struggles to accommodate for certain phenomena which I take to be of some importance for the moral practice. The overall character of the series is a tentative one: I want to draw attention to the implications of legalistic moral philosophy and to the fact that it is one perspective among others, thereby inspire to reflect on the possibilities that open up from adopting a different perspective.
‘Recent’ relative to the emergence of contractualism in the 17th century.