The Shortcomings of Legalistic Moral Philosophy Part Three - Beyond the Deontic Triad
In the second part of the series I drew a more sophisticated picture of legalism. I showed how the idea of a deontic triad that determines the moral status of action is connected to the notion of morality as a nexus of interpersonal relations. These relations bring about specific normative circumstances that make it so that actions ware owed by a person and can be claimed by the other person. Now I want to take a closer look at two cases in order to discuss to what extent the deontic triad and the model of claim/obligation-relations is apt to capture the moral practice.
Suppose you are at the supermarket register, checking in your weekly groceries for a family of four, that is to say, a lot. Behind you in line there is a person who has only a single item. Since you have so many items to register, you let them go ahead, because while it does not really make a difference for you, it will save them the time it takes to process your shopping. I guess, you would expect the other person to somehow acknowledge the fact that you just offered them a kindness you were not strictly speaking required to offer. You would expect them to be grateful. On the other hand, if they did not show you gratitude for your gesture, you would probably think that this person has failed to acknowledge their moral role in the exchange that just took place. They did not do what would have been morally right or appropriate. However, it seems to me that we cannot really phrase this moral failure as a failure to fulfill an obligation to which a claim on your side corresponds. Suppose that, when the person walks past you without giving you another look, you say: “But you are supposed to thank me! I am owed your gratitude! You are obligated to be grateful!” I think, in that case you would be the one who has not understood what moral role they play in this situation. If you think you have a claim to the other person’s gratitude like you have a claim to the other person’s book that you agreed to buy, you have misunderstood a crucial aspect about the workings of gratitude in the moral practice.
This becomes even more evident in the case of forgiveness. I believe there are situations in which forgiving is the right thing to do and withholding forgiveness would be wrong and vice versa (though it is an extremely delicate matter to determine the conditions for the appropriateness of forgiving). Suppose someone behaved nastily towards you which prompts you to resent them. Over time, the other person signals that they understood that they hurt you and they do whatever they can to fix the damaged relation you two have. In that case, it would be the right thing to forgive. Suppose that, for some reason you don’t and continue to hold your grudge (which might or might not be appropriate). Suppose that the other person eventually breaks down and says: “I give up. What else do you expect me to do? I did everything. You have to forgive me now or it is you who is in the wrong here.” Again, I think, talking this way signals a failure to understand how the situation works; more strongly in the case of forgiveness than in the case of gratitude. It could be argued that, under some conditions, one can claim or demand gratitude. But if someone were to claim the forgiveness of a person they harmed, they would lose everything that made them worthy of forgiveness in the first place. Forgiveness can never be demanded, only voluntarily bestowed, acknowledging that this is the right thing to do.
I see two ways for a legalistic theory to respond. One option would be to say that the phenomena are not moral phenomena. Gratitude and forgiveness are not matters of morality but matters of custom. So, while the failure to display gratitude or a refusal to forgive might be indicative of bad manners, it is not strictly speaking a moral failure. I do not think that this stands. Not necessarily for the reason that morality and custom are hard to disentangle (because they are). The point is that thinking of gratitude and forgiveness as matters of custom does not account for the role they play in our social life. A person who repeatedly fails to display gratitude, is unforgiving to others and/or demands others to forgive them is different from a person who does not know which fork to use for which course of the meal or who wears a black belt and brown shoes to a suit or whatever. The latter person might be frowned upon but the former would be seen as not having understood how a good person would behave in the respective situations.
Another option would be to say that gratitude and forgiveness are instances of supererogation: they are morally praiseworthy and indicative of a morally good person but they are not mandatory in the way it is to fulfill a given promise. I do not think this is a way out either. A supererogatory action is more what can be asked for. It can not be claimed but it is still morally praiseworthy to perform. This also means that refraining from a supererogatory action does not subject the person in question to moral blame. One of the classical examples for supererogation is a soldier who throws himself on a grenade to save his comrades. It is morally praiseworthy to do so but refraining from it is not wrong. The idea that the comrades can be blamed for not having thrown themselves on the grenade is hideous. However, we have seen that it is different in the case of gratitude and forgiveness. They can not be claimed but it still would be wrong to refrain. So, even if legalism is capable of implementing supererogation into its framework (which I do not believe to be obvious), that does not solve the problem that gratitude and forgiveness and, presumably aspects of the moral practice that are structurally similar, can not be described in terms of mutual claim/obligation relations.
This should raise some doubts about legalism’s capacity to adequately capture what happens when we find ourselves in morally relevant situations. Legalists could argue that even though some aspects of morality cannot be put into their framework, most aspects or those who are central to the moral practice still can. In order to put this argument to test, in the next part I will take a closer look at the paradigm case of moral commitment according to legalism: promising.