July 11, 2021

The Shortcomings of Legalistic Moral Philosophy Part Five - Closing Remarks

In the fourth part I tried to show that the moral institution of promising which legalism takes to be the paradigm case of a situation that creates a moral relationship can, in fact, not play the role as a paradigm case. My point was that promises are usually embedded in social relationships between the agents so that the talk of “obligation” and “claim” seems to be out of place. I want to finish the series by discussing some other implications a legalistic framework can have on how we think about morality.

The first one is that within such a framework morality can easily appear as a zero-sum-game. This is a consequence of the idea that the moral agents enter into a moral relation from a previously morally neutral situation like the buyer and the seller in the contract scenario. Their respective actions and moral status in the situation create an imbalance: you owe it to your friend to help them moving to their new place. The moral scale is heavier on your side and to restore the balance you have to fulfill your obligation. On this view, the situation before and after the fulfillment of the obligation is morally neutral. Nobody owes or is owed anything until someone acts in such a way that a claim/obligation-relation is created and two persons enter into a moral situation. After they have each done their part, their moral relation ceases to exist and the situation is morally neutral again. Moreover, the very purpose of moral action is to resolve the moral relation. I have two objections against this conception.

The first one draws on the fact that moral actions rarely occur in a biographical vacuum. Of course, you have claims and obligations against the stranger on the bus but they do not arise from an explicit commitment to them from either side. They exist solely because of the fact that the two of you happen to be on the same bus. In that case, the situation is as I described above. When a moral situation between the two of you occurs, you both fulfill your moral roles (for instance giving way so that the other can get off the bus), and the situation is neutral again. This does not apply in the case of active moral commitment insofar as it is embedded in a social and biographical context. Decisions and actions, such as making a promise, never occur out of the blue. There is a reason for you to make the promise, and that reason is rooted in the dynamic history of the friendship between the two of you. Neither before nor after the fulfillment of the respective moral roles the situation is neutral. You make the promise and commit yourself because of a previously existing relationship that makes certain actions right or wrong. But you also change said relationship by fulfilling (or not) your promise because you add another episode to its history. The historicity of social-moral relationships renders the metaphor of the uneven scale that has to be brought back to balance useless, because the situation never goes back to being exact the same as before.

The second objection is that, on this view, moral obligations are akin to debt - which of course is a direct consequence of the fact that obligations arise from relations that are modeled upon those between buyer and seller. A moral obligation is seen as a kind of burden which is alleviated by acting morally right. The final purpose of morality, then, is the dissolving of moral relations so that one can continue their life free from debt. I think this too narrow because it disregards the fact that being a good person is an integral part of most people’s self-conception. This might be a contestable claim but I am convinced that agents who chose to be bad persons (not by the standards of a moral system they reject but by their own) are virtually non-existent. If we accept the idea that, in general, people consider being a good person (whatever they take that to mean) as part of a life well led, the morally good is not a burden imposed on them but rather a part of their self-actualization. Fulfilling a promise one has given to a friend is usually not something one begrudgingly does in order to continue one’s life and not be disturbed by this person any longer.1 Instead, one does so because one sees being a good friend as part of the person one aspires to be and one acknowledges that being a good friend strengthens and deepens the bond one has with an esteemed person.

Seen like this, the end of moral action is not the dissolving of moral situations but rather to be the person one wants to be, to create and foster relationships with persons, causes, and aims one cares about. Or, as Christa puts it: “get all this MEANING and RICHNESS in our lives”.

This brings me to another issue I take with legalism: it presents morality as something that limits the scope of possible actions. Agents are conceived as being placed in neutral situations in which they are free to chose whatever action they can perform. You can help your friend or attend the job interview or watch your favorite show or whatever. The commitment you have undertaken through your promise narrows the scope of possible actions. This is apparent in the vocabulary of the deontic triad: if an action is obligatory, there is only one thing left for you to do. If an action is forbidden, you can do anything except this one thing. If an action is allowed, it falls into the range of things you can take into consideration. The point is that in a morally neutral situation the agent has the total range of possible actions at their disposal until they enter a moral situation in which some options are taken away from them. The function of morality is seen as essentially restrictive.2 Notably, Kant himself has rejected this consequence and tried to argue that subjecting the will to the moral law is the highest form of actualizing one’s freedom as a rational agent, thus avoiding the objection I sketched above. Some Kantians have tried to follow this path, such as Korsgaard, others, like Wallace whom I quoted in the second part, have rejected this attempt on the grounds that it requires a highly charged concept of agency and personhood. I am highly skeptical about the success of this attempt given that the restrictive notion is built into the very vocabulary that legalism employs. In any case, it is not necessary to try to tackle this problem since we have ample reason to reject legalism.

What we gain from doing so is a view of morality that presents it as positive and inspiring rather than negative and restricting. Acting morally helps us becoming ourselves rather than preventing us from giving in on our impulses. In that sense, an anti-legalistic view of morality helps us see how it brings meaning and richness in our lives. Rejecting legalism also brings richness in the domain of morality because it lifts the conceptual framework of the deontic triad. Instead of violently forcing moral situations into the vocabulary of obligation-permission-prohibition and claim/obligation-relations, we can talk about being a good friend, being reliable, kind, generous, solidary, courageous, caring, etc. We thereby preserve the complexity and richness of the way in which we consider actions, lifes, persons good in a moral sense. In fact, we shift the focus from the deontic triad to the very notion of goodness which plays only a minor part in legalistic approaches.

The phenomenology of morality is incredibly rich and complex. Legalism tries to squeeze all its richness into the framework of a handful of concepts. I have tried to show how it thereby abandons crucial aspects of the moral phenomena in question. I advocate for the preservation of the richness of moral concepts. Of course, the price we pay is that we have to give up on the idea that there is a neat formula that can be applied to any situation in order to determine its moral status. There can be no algorithm to calculate the Good. On the other hand, we can retrieve the ancient idea that the function of morality is not to pay what is owed but rather to contribute to the leading of a meaningful life as a human among humans.