June 20, 2021

The Shortcomings of Legalistic Moral Philosophy Part Two - What is Legalism?

In the opening post to this series I have suggested that legalism is a picture that holds us captive, that is, a theoretical framework that appears to be the only possible framework to think about morality. I have characterized legalism as being shaped by the assumptions that morality consists in a set of general rules by which actions are sorted into the deontic triad.

The first assumption has repeatedly been criticized, especially by virtue ethicists. On their view, rules cannot formulate the entirety of possible situations in which they are applicable and the respective outcome of their application beforehand. Having strong sympathies towards virtue ethics myself, I share this objection. However, in this series I will focus on the second assumption that every morally relevant action has a place in the deontic triad. Before I get into that I will say a bit more about what constitutes a legalistic conception of morality. What exactly does it mean to say that theorizing about morality is modeled upon theorizing about the law?

The law can be divided into two different spheres, depending on the kinds of issues it regulates and the way it does so. There are laws which determine the relation between the individual and the state, such as the constitution of the state (if it has one), the laws of administrative procedures, the criminal law, and so on. There are also laws which determine the relations between individuals, such as the laws that establish the mutual obligations for the parties in a contract, the rights that flow from ownership of an object, and more.1

The first sphere is characterized by an asymmetry of power: the law establishes its own relation to its subjects. This relation is asymmetric because the two ends of the relation are not on equal footing. Because the law determines its own conditions of application, the individual does not get to chose whether or not to stand in a relation to the law. The second sphere is characterized by symmetric relations. Not between the law and the individual, of course, but between the individuals themselves who are assumed to be equal in terms of their legal status: if you offer me a book and I agree to buy it for the price of 10 Euros, the law creates a symmetric relation between the two of us from which our respective claims and obligations towards each other arise. The relation is symmetric because the law considers us to be equals in two ways: we both are free to either agree or refuse to enter into the relation, and we both are free to withhold the fulfillment of our respective commitments. You may or may not offer to sell me the book and I may take the offer or not. You can, at least in principle, take my money and then refuse to hand me the book, and I can, at least in principle, take the book and refuse to give you the money.

The purpose of the law, then, is to change the situation so that it becomes wrong not to fulfill our respective commitments. Clearly it does so by putting forth its institutional power, so that both our relationship to it is asymmetric. But it does so precisely to preserve and guarantee our legal equality. It puts us in specific normative circumstances so that we are obligated to fulfill our commitments and have a claim against the other to fulfill theirs. I think it is precisely this aspect of theory of law that legalistic moral philosophy adopts. Compare the following remarks from R. Jay Wallace2:

An action can “to-be-done” or “not-to-be-done” just insofar and just because it is something that we owe it to another party to do or to refrain from doing. (p. 49)

The promissory transaction creates a nexus between the two parties to it, the promisor and the promisee; the former owes it to the latter to do what was promised, and the latter has a claim against the former that the promisor should so act. (p. 52)

Just as promisors owe it specifically to promisees to live up to the commitments they have entered into, so too might there be things that we owe to each of the other members of this maximally extended moral community, regardless of our antecedent relations to them. (p. 53)

So, Wallace takes making a promise as the paradigm case of para-legal morality and tries to generalize the situation so that the entire moral practice becomes intelligible in terms of this situation. Promisor and promisee freely and voluntarily enter into a situation which receives its specific normative character through morality so that it becomes wrong not to fulfill their commitment. And even though other moral situations are not entered into voluntarily, it is still the case that the moral relation between the two parties serves to establish them as equals who have mutually correspondent claims and obligations against one another. For this reason, I think, he is a good example to discuss legalistic moral theories. My subsequent discussion of legalism will be based on the model presented here.

In the next part, I will turn to two phenomena that I take to be important aspect of our moral practice but at the same time unlikely to fit into the deontic triad and the obligation-claim-nexus: gratitude and forgiveness.3 I will try to show how these aspects fall outside the legalistic model according to its conception I have outlined here.