Moral and Legal Reasoning PDF
Preview Moral and Legal Reasoning
MORAL AND LEGAL REASONING MORAL AND LEGAL REASONING Samuel Stoljar © S. J. Stoljar 1980 Softcover reprint of the hardcover 1st edition 1980 All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, without permission First published 1980 in the U.K. and all other parts of the world excluding the U.S.A. by THE MACMILLAN PRESS LTD London and Basingstoke First published in the U.S.A. 1980 by HARPER & ROW PUBLISHERS INC. BARNES & NOBLE IMPORT DIVISION British Library Cataloguing in Publication Data Stoljar, Samuel Jacob Moral and legal reasoning I. Law and ethics 2. Legal reasoning I. Title 170 B]55 ISBN 978-1-349-05097-0 ISBN 978-1-349-05095-6 (eBook) DOI 10.1007/978-1-349-05095-6 LCN 79-55525 for Margaret Stoijar Contents Preface 1x I Reasons and Rules I Practical and Theoretical Reasons I Institutional Rules and Institutional Facts 6 The Rules of Games I o Autonomous and Heteronomous Rules I4 Heteronomy and Rationality I9 2 Moral and Prudential Considerations 24 Prudential Reasoning: Means and Ends 24 Prudence, Benevolence and Morality 29 Moral Ends and Rationality 3 2 The Golden Rule Argument 3 6 The Categorical Imperative 39 Personal Commitments and Moral Judgements 44 3 A Calculus of A voidable Harm 46 Towards Rational Moral Argument 46 Reasons, Rules and Universalisability 49 Universalisability not a Sufficient Condition 54 Normativity: the Emergence of Norms 57 Social Assumptions and Moral Rules 64 Responsible Actions and Complainable Harm 67 Harm as a Basis of Morality 7 I VII Vlll CONTENTS 4 Distributive Justice and Utility 75 Problems of Distribution 75 Needs and Equality 79 Desert, Merit and Inequality 86 Distributive Schemes: Unfair Advantages 90 Private and Public Interests 95 Some Moral Dilemmas 102 Brief Retrospect 105 5 Precedents, Principles and Practices 109 Moral and Legal Precedents 109 Principles and Exceptions 115 Patterns and Practices 122 The Practice of Promise-Keeping 125 Obligations and Oughts 13 I Law and Equity 133 6 Moral and Legal Rules 136 Censure and Coercion 136 Sanctions and the Legal System 140 Statutes, Judges and Legal Logic 144 Borderline Cases and Moral Neutrality 149 The Primacy of Rights 152 Moral and Legal Theory 157 Notes 159 Index 170 Preface This book pursues a number of related themes in moral and legal philosophy, with two themes, however, more central than the others. One overall theme seeks to expose a basic closeness between moral and legal reasoning especially where such reasoning relates to the way we rationally judge our inter-personal grievances, that is, the way we rationally support or justify, distinguish or qualify, oppose or dismiss our mutual claims or complaints. Another major theme tries to establish that to argue rationally is not just to give reasons, but, more importantly, is to give reasons capable of conclud ing an argument, these being reasons which can also be said to be right or wrong not from a prudential but a distinctly moral point of view. Without a moral content, we shall concomitantly suggest, legal rules would be a fortui tous heap of imperatives without any internal purpose or direction, operating essentially ad hoc, while without a legal connection morality tends to err ·about its true centre of gravity as it misses out on what are socially the most significant situations, in particular those having to do with avoidable harm or injury, precisely the cases in which moral argument acquires its greatest rational strength instead of remaining, as it does in most other areas, merely 'open' or persuasive. I wish to thank quite a few Canberra friends patient enough to listen to earlier versions of sections of this book; and I am especially grateful to two colleagues, one philo sopher, one lawyer, who read the whole manuscript and offered helpful and encouraging comments. Canberra, October 1979 SAMUEL STOLJAR Reasons and Rules I PRACTICAL AND THEORETICAL REASONS What we do, how we act or behave in our lives with regard to ourselves or to others, is on one level certainly determined by our felt needs and wants, as instinct drives us, as inclination bids us do; but on another level is, or can be, influenced by reason or rational reflection, as when we consider what we should do, or why, or when we think about our choices as choices or about our actions in the light of their objectives or effects. Without this capacity to reason about, and in this way to direct or guide, our actions, we would have no sense of what it means to act, to act for a purpose, nor of the evidence upon which we act, nor of rules or principles that distinguish between right and wrong actions; we would only have feelings and desires, doing our things not as self-conscious or self-starting individuals but as animals or plants do. Human action would be scarcely distinguishable from bodily move ments, from such things as falling down or falling sick which are physical events but are not actions; for human actions, precisely because they are guided or guidable by reasons, also offer themselves to beingjudged as to how well or wisely we act, or how ill or foolishly. Now the reasons so guiding our actions commonly form part of rules; indeed it is now easier to say why we have rules, or what they are for or about: rules tell us, very broadly, what to do, or how to act, in order to bring about certain objects or ends, either with regard to physical things, or with regard to ourselves, or with regard to other persons especially where our actions impinge on them beneficially or detrimentally. 2 MORAL AND LEGAL REASONING Moreover, in guiding our actions, rules presuppose that as guidable human agents we are both free and rational: free because of our natural capacity to pursue and press differen tial aims, to act differently from others when we so decide; rational because the reasons incorporated in the rules provide at least some knowledge of what, for certain purposes, we simply have to do, the rules thus communicating a sort of necessity about certain actions, sometimes called practical necessity, yet without abrogating our residual freedom not to comply. The practical reasons designed to guide actions need to be distinguished from theoretical reasons. The latter give us knowledge of the world irrespective of, sometimes even in spite of, human actions or aims, hence knowledge of what is anyhow the case, of what is possible or probable, whereas practical reasons only convey the knowledge we need to achieve our self-chosen ends by our own actions. Theor etically we may have good reason to say that in many, if not all, cases it rains whenever the sky clouds over darkly; to believe in the possibility of rain would here rest on good ('reasonable') evidence, being a valid inductive or prob abilistic inference from previous facts and as such also a useful addition to our 'objective' or scientific knowledge of what usually, albeit not invariably, occurs. Practically, we may have good reason to think that taking an umbrella would be a prudent precaution if, though only if, we wish not to get wet. A practical reason is not intended to explain why rain comes when it does or anything else about scientific meteorology; a practical reason can thus by-pass theoretical or scientific explanations; it has only to be informative, but does not have to make things intelligible as well; we need no meteorol ogical knowledge to understand that an umbrella may prove helpful in the rain.1 A practical reason, moreover, must be kept distinct from a purely personal or subjective one. If asked why we do not want to get wet, we may give as our reason a dislike of personal discomfort; and if asked why we dislike this, we would, as Hume observed, very soon come to
The list of books you might like
