A Persistent Difficulty In Teaching Philosophy Of Law

This semester, I’m teaching Philosophy of Law–again. My syllabus, as always, is a new one, and reflects an altered orientation and focus from those of days past. The current edition is fairly simple: it kicks off with Lon Fuller‘s ‘The Case of the Speluncean Explorers,’ excerpts from H. L. A Hart‘s The Concept of Law, Justice Oliver Wendell Holmes‘ ‘The Path of the Law‘ and then moves on to a selection of readings from Alan Hutchinson’s edited collection Critical Legal Studies. And yet again, I’m finding that I have a very hard time explaining or making comprehensible or plausible the distinction between natural law theories of the law and legal positivism, or indeed, even making clear what those theories are.

On the face of it, this should not be too difficult: natural law theories insist on a conceptual connection between law and morality such that legal obligation is a species of moral obligation; positivists, treating law as a matter of social fact, separate law from morality, and find legal obligation grounded in posited social arrangements and their resultant expectations.

But year after year, semester after semester, I find that I cannot get this distinction across clearly. Rest assured, I do not employ the language of the paragraph above, which is quite formally stated. But no matter what language I use, what instructive examples I use–I always kick off my classes on this distinction by asking students to provide me examples of “something that is legal but would be considered immoral by some and something that is legal but would be considered moral by some”–and of course, I offer extensive exposition and encourage discussion of the texts we use, many of my students’ responses–written and oral–make it quite clear the central concepts involved in making the distinction between natural law and positivist theories of the law clear are, in point of fact, not so. (Sometimes I’m tempted–because of my formal education–to say that natural law theorists say that “no matter how you define law, you are going to have morality somewhere on the right hand side”; I can only occasionally resist this temptation.)

I do not think this is my students’ fault. I suspect this is because over the years I’ve come to suspect I don’t understand the supposedly clear-cut distinction myself, especially as I’ve come to believe that natural law theories can in fact be subsumed under positivist theories: a system of morality and the particular moral principles it entails are a kind of social fact, one that has resulted from the ongoing evolution of a particular social formation; the moral principles that we take to be true at any given instant, the ones that command our obligation and allegiance and that help preserve key social distinctions and help realize socially desired ends; natural law theories can then be understood as claiming the social fact of morality as the one that underwrites legal claims and obligations; in this light, you don’t get out of the historically contingent particulars of the social into some transcendent realm of morality. (Or you could give natural law and positivism a Nietzschean twist by claiming as Nietzsche did in The Genealogy of Morals that morality is derived from law.) As Hart had noticed in his Concept of Law, the theory of law he presented did not say anything about the content of rules; they could be amoral or moral. Understood in this light, natural law theories can be understood as both descriptive i.e., making the claim that legal systems do indeed, always strive for moral content in their  laws or prescriptive i.e., legal systems should include moral content in their rules. Where natural  law would then turn out to be false is that they would not capture crucial features of extant legal systems; they would have attempted to make their descriptions exhaustive, capturing some supposed conceptual connection, and failed in the process. This fact, and the distance it puts between a natural law vision of the law and the postivist vision would still be worth pointing out.

Thus far, I have not succeeded in making myself clear though. I’ll keep trying.

Nietzsche’s Inversion Of Natural Law In The Genealogy Of Morals

The radically constructive nature of legal and economic concepts emerges quite clearly in the brilliant second essay of The Genealogy of Morals. Here, Nietzsche sets out his view of how the concept of a contract creates persons, how the ethical subject is not found but made. For Nietzsche, the law, a set of human practices, ‘creates’ its subjects by acting upon humans to make them into beings capable of obeying the law. The inversion Nietzsche forces upon us takes from the notion of a contract as a legally enforceable promise to the notion of a promise as a morally enforceable contract.

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‘Silence’ And Shūsaku Endō’s Christianity

Shūsaku Endō‘s Silence is a remarkable religious novel, one whose close reading and discussion in a philosophy classroom pays rich dividends. This week marks the concluding sessions of my Philosophical Issues in Literature class’ discussion of Endō’s novel; I can enthusiastically recommend it–in whole or in part–for use in classes on epistemology and philosophy of religion. This is because the novel–ostensibly a historical work set in seventeenth century Japan as the systematic persecution of Christians commenced following a brief flourishing of the faith–is at heart about the nature of faith, its relationship to knowledge and belief, the nature of ‘commitment’ to religious ideals and beliefs, the possibility of voluntarism about belief, the relationship between belief and action, the relationship between organized and ‘personal’ religion, between moral sentiments and religious strictures, between geographically and nationally specific cultures and supposedly universal belief systems, and so on.

Endō’s novel also proves the truth of the wisdom contained in the claim that the doubts of the religious and the agnostic or atheist are more interesting than the certainty of the believer. In this regard, observant Christians will find the book just as provocative as atheists or agnostics might. As Charles Peirce had noted, doubt is that irritation which leads to inquiry. And that is certainly one thing that Endō’s novel does; it prompts inquiry and investigation. It creates more doubt in turn, and prompts that most useful activity of all: self-examination. (My classroom discussions with my students about the philosophical issues the novel raises and examines have often been quite rich even as I suspect that, as usual, some students are simply not keeping up with the reading and are thus unwilling and unable to participate or contribute.)

Silence is the story of Sebastião Rodrigues, a missionary who travels to Japan to ‘rescue’ a Christianity sought to be driven out from Japan, and finds himself the latest target of the campaign to do so. Rodrigues takes inspiration from Christ through his trials and travails at the hands of his Japanese tormentors–even as the events around him shake his faith like never before. The determination of his inquisitors to make him an apostate makes Rodrigues sense he will become, rather than Christ, Judas instead; he will not be the defender and promulgator of his faith, but its betrayer instead. As his greatest trial approaches, Rodrigues comes to understand that the man he had imagined the Judas to his Christ is closer to him than he had imagined, that his dislike for him, his failure to feel sympathy or empathy for him, is his greatest failing as a Christian.The novel’s provocative claim–under one interpretation–is that he becomes a better Christian by becoming Judas. And that is because in doing so, he is better able to understand someone, Christ, and something, Christian faith, that he had imagined himself, arrogantly, to understand all too well before his trials began.

Rodrigues worries that God is silent; his most powerful realization is that God speaks through man, and man alone.

Dehumanization As Prerequisite For Moral Failure

In An Enquiry Concerning the Principles of Morals (§III – Of Justice, Part I, Hackett Edition, Indianapolis, 1983, pp. 25-26), David Hume writes:

Were there a species of creatures intermingled with men, which, though rational, were possessed of such inferior strength, both of body and mind, that they were incapable of all resistance, and could never, upon the highest provocation, make us feel the effects of their resentment; the necessary consequence, I think, is that we should be bound by the laws of humanity to give gentle usage to these creatures, but should not, properly speaking, lie under any restraint of justice with regard to them, nor could they possess any right or property, exclusive of such arbitrary lords. Our intercourse with them could not be called society, which supposes a degree of equality; but absolute command on the one side, and servile obedience on the other. Whatever we covet, they must instantly resign: Our permission is the only tenure, by which they hold their possessions: Our compassion and kindness the only check, by which they curb our lawless will: And as no inconvenience ever results from the exercise of a power, so firmly established in nature, the restraints of justice and property, being totally USELESS, would never have place in so unequal a confederacy.

This is plainly the situation of men, with regard to animals; and how far these may be said to possess reason, I leave it to others to determine. The great superiority of civilized Europeans above barbarous Indians, tempted us to imagine ourselves on the same footing with regard to them, and made us throw off all restraints of justice, and even of humanity, in our treatment of them.

For the past couple of weeks my students in my Landmarks of Philosophy class have been reading and discussing Hume’s Enquiry. In the course of our classroom discussion this past Wednesday–on §V – Why Utility Pleases–one of my students said, “It seems that if our moral behavior depends on a kind of sympathy or empathy with our fellow human beings, then one way to make possible immoral behavior would be to dehumanize others so that we don’t see them as our fellow human beings at all.” In the course of the discussion that followed, I did not specifically invoke the passage cited above–instead, we spent some time discussing historical examples of this potentially and actually genocidal maneuver and examined some of the kinds of language deployed in them instead. (Slavery and the Holocaust provide ample evidence of the systematic deployment of dehumanizing rhetoric and action in inducing and sustaining racism and genocide.) But in that passage, Hume captures quite well the possibility alluded to by my student; if morality depends on recognizing our fellow humans as moral subjects, a feeling grounded in sentiment, emotion, sympathy, and empathy, then dehumanization–by language, action, systematic ‘education’–becomes a necessary prelude to overriding these feelings of ours so that the stage may be set for moral atrocity. This is a lesson that seems to have been learned well by all those who rely on humans mistreating other humans in order to implement their favored political ideologies; the modern tactic of the utter effacement of the victims of moral failure by remote warfare or by invisibility in media reports is but the latest dishonorable instance of this continuing miseducation of mankind.

Flannery O’Connor On Free Will And Integrity

In the ‘Author’s Note to the Second Edition’ in Wise Blood, Flannery O’Connor writes:

Does one’s integrity ever lie in what he is not able to do? I think that usually it does, for free will does not mean one will, but many wills conflicting in one man.

Unsurprisingly, here we find a provocative intervention in a philosophical debate by a novelist. We define integrity as “the state of being whole or undivided” or as “the quality of being honest and having strong moral principles; moral uprightness.” The latter definition related integrity to honesty and morality, and thus presumably to actions taken and choices made; we acted ‘appropriately,’ we chose ‘correctly.’ It is our integrity that makes us capable of doing so. (There is a relationship visible here between the two definitions of integrity in that the person with integrity can be seen as unitary in moral resolve, and not incoherently torn between conflicting moral impulses, unable to choose and act.) So how could integrity consist in not being able to do something? If you are unable to do something, then where is the choice, so crucial to moral action?

O’Connor suggests that this conundrum may be resolved in Nietzschean fashion: we imagine that we have one will, one moral drive of sorts, but this is a mistake. We have many drives, each rudderless, each competing with the other in some shape or fashion; the effect of a drive may be tempered, attenuated, or amplified by others. The net resultant effect, the vector sum of a kind, is the ‘personality,’ or the ‘character’ of the moral agent. We are this resultant sum. Those who think they have ‘free will’ say so not because they experience a unitary drive that directs their choices, but rather, because they experience themselves as a location for an ongoing conflict, an irreducible dissonance, on the occasions of decision-making. This psychic disturbance, this evidence of distant battles between our various drives, waged in various subterranean locations of our subconscious and unconscious is what we call ‘free will’: acting in the presence of conflict, or perceived choices.

Now we can understand what O’Connor means when she says that perhaps our integrity may lie in what we are not able to do. We–some of us perhaps, whose drives add up in particular, distinctive, idiosyncratic ways–do not strike the helpless, the old, the infirm, we do not refuse water to the thirsty, not because we want to do so, but because we cannot; the drive that would make us do so has been combated by another one–or by a combination of others, and it has been bested. The social hosannas heaped on us for our action–or inaction–may suggest to us the pleasing ‘fiction’ that we have ‘chosen correctly’ and that we have ‘acted rightly’; it perpetuates the notion of a unitary free will, which reaches into the various choices available to the agent and picks out one. And leads to further puzzles like those of self-destructive behavior.

O’Connor is not the first to suggest our selves are a dynamic multiplicity, of course, but the indication of morality as a kind of ‘inability’ is certainly noteworthy.

On The Alleged Undesirability of Inconsistency

Inconsistency in our beliefs–and thus actions–is often held to be not just a cognitive failure, a breakdown of rationality, but also a moral failure of sorts. Sometimes the inconsistent are accused of hypocrisy, of disingenuousness. We are urged to forensically examine their utterances and actions, sifting through the traces they leave, all the better to indict them of a catalog of epistemic and ethical sins. The expression of an inconsistency is also often taken to be a cover-up for a truly held belief, a masking of a sordid reality; there are the things we ‘really believe’ and then there are the things we only pretend to believe.

Perhaps we should be more tolerant of the inconsistent–especially as most of us, if not all, are guilty of it.

There is a simple apologia we can offer for this widespread inconsistency; we are creatures of limited reasoning power; we may find it too cognitively expensive to check our enterprise for consistency. We often satisfice, rather than optimize, the sanitation and hygiene we impose on our beliefs.

But there might be something even more fundamental at play. The accusations leveled against the inconsistent often presume there is a genuine, authentic self, one covered up and disguised by incompetency, for nefarious purposes. They suggest we are whole and are fractured by this tolerance of rupture within our corpus of belief. But perhaps–as many have suggested before me–we are a shifting conglomerate of sorts. We play host to many selves, many drives, many desires, all at once; if these drives and desires and instincts may conflict with each other, then why not our beliefs? Beliefs are revealed by actions, by visible exertion and the spoken word; these issue from our inner being, each bearing the impress of the turbulence that gave rise to it. Unsurprisingly, the agent who has been assigned their ownership appears singed by incoherence at the edges. But this incoherence may instead be a pleasurable medley of a kind.

I do not think there is much, if any, novelty in what I have noted above. But consistency continues to hold sway as an epistemic and moral ideal. It is still put down as a signpost, as a marker, for our aspirations. We are urged–when we have the time and the energy–to look closely and carefully under and around ourselves, and to conduct search-and-destroy missions for all and any inconsistencies.

We are too harsh on the inconsistent. In a fit of self-righteous rectitude, we indict them of too much. To be sure, some inconsistencies are harmful; for ourselves, for those impacted by our actions. The inconsistency of the powerful hypocrite is a particularly damaging one. But all too many variants of this supposedly deadly sin are not. At worst, they may only puzzle and perplex us, impatient as we are to categorize, all too neatly, our friends and family and acquaintances. But we should be more tolerant, and treat these visible faults in action and belief as spurs to a more sympathetic investigation of the human condition and the complexity of the inner life.

Freedom in the Absence of Social Convention

In reviewing Arturo Fontaine‘s La Vida Doble, “a harrowing examination of violence during the Pinochet period,” whose heroine is Lorena, “a female terrorist who is tortured, changes sides, and becomes a torturer herself”, David Gallagher writes:

But why in fact do good fathers and meek husbands and generous lovers undertake such cruel torture? Here Lorena sees the torturer as someone who becomes isolated from any sort of moral standard while granted absolute impunity for what he does, no matter how vile. In the glib manner of a French student of the Sixties, she speculates about two opposing views of what happens when social conventions have no effect. One is that you recover the innocence of the noble savage. The other—the relevant one in this case—is that you revert to a state of primal savagery. Because there are no limits, she tells the “novelist,” an inner monster springs to life, one we all potentially harbor. Once there is no possibility of punishment, “the monster we carry within us, the beast that grows fat on human flesh, is unleashed within the good father or the daughter of a good family.”

Notice that Lorena establishes a dichotomy–there are only two possible modes of behavior possible when social conventions cease to constrain us. But we might speculate too–perhaps for the benefit of a future novelist–that the absence of social conventions might result in a new kind of freedom, one in which, rather than revert to the two states described above, human beings experiment with finding new orderings of moral and ethical values. Certainly, it isn’t clear why these “two opposing views” are the only possibilities open to human beings, why our options in the face of the absence of social conventions would be so limited.

The “two opposing views” that Gallagher refers to are influential, of course, but that might be due to a lack of imagination on the part of those speculating about a convention-free world. In the absence of convention it would also seem just as likely that rather than being innocent savages or beasts, we might merely be utterly confused and bereft, content to experiment with modes of behavior and interaction that might provide some guidance for how to proceed in this newly ordered world.

The “lack of imagination” I refer to above, is an almost inevitable consequence, of course, of a deeply essentialist view of human nature, one committed to the idea that the visible human persona consists of two layers: an abiding, enduring, inner self temporarily covered by a thin epidermis of social convention. But a more existential view would suggest that when social conventions are removed, we have no way of saying what will remain. Perhaps the new being that will emerge will delight in alternating between innocence and bestiality, perhaps it will develop ever more complex characteristics, perhaps it will grow in dimensions–moral, psychological, and emotional–that we cannot yet fathom, gripped as we are by conventional modes of thought. When we think of how constraining social conventions–fundamentally and broadly understood–are, such speculation should not strike us too outlandish.