Moral values play a great role in legal argumentation
and decision-making. To be sure, both are based on such institutional sources
as statutes, precedents, legislative history etc. Yet, even justice is
obviously relevant in legal reasoning. Another interesting fact is the
existence of the so-called legal dogmatics (Rechtswissenschaft, Rechtsdogmatik,
“science of law”, legal doctrine). The legal doctrine is a good example of a
practice of argumentation, pursuing knowledge of the law, yet in many cases
leading to a change of the law.
No wonder that
generations of Legal Realists (in
Now, cannot one claim - contrary to the Legal Realists
and quite closely to the “spirit” of Natural Law theories - that
norm-expressive statements and value-statements in the legal argumentation can
be well grounded and thus not a mere expression of feelings? Consequently,
cannot one argue that Legal Dogmatics, evaluative and yet presenting itself as
a kind of science gives us knowledge of the morally justified interpretation of
law?
The key topic in this context must be weighing and
balancing. For legal both legal rules and juristic opinions are almost always
justifiable with a recourse to weighing of various reasons. The reasons to be
weighed are mostly values and principles. But I think that any rule can be
weighed (cf. Peczenik 1989, 80 ff. and Verheij 1996, 48 ff.) against other
reasons.
For example,
statutory interpretation is an important field of legal argumentation where
weighing of reasons, including moral ones, is inevitable. Various reasons and
methods, such as literal interpretation, analogy, systemic interpretation,
historical interpretation and goal interpretation support statutory
interpretation in hard cases. The choice between the alternatives depends on
weighing and balancing of various legal arguments (Peczenik 1995, 376).
What is weighed is prima facie. A prima facie rule
thus do not determine definitive duties; the latter must result from weighing
and balancing of all morally and legally relevant values, principles and rules
in the particular case (cf. Peczenik 1995, 444 ff. and 484 ff.).
Different ways of explicating weighing are attractive
for different purposes. Let me speak about only one, in my opinion crucial from
epistemological point of view.
Thus, weighing can be conceptualized aggregation of
arguments and construction of chains of arguments. As soon as one states that
one thing weighs more than another, the question occurs “Why?” Then, one needs
another argument and another act of weighing. Briefly: x may weigh more than y
in isolation but, in a certain situation, z can occur, and reverse the order: x
weighs less than y+z. Then, x+q weigh perhaps more that y+z. In this way, the
weights can be aggregated (cf. Peczenik 1997).
To be sure, not
all reasons may be cumulated. But reasons proffered in legal argumentation
cumulate often enough to make cumulation an interesting rule of thumb: ceteris
paribus, two reasons pulling at the same direction are jointly stronger than
each of them alone.
Moreover, cumulating of reasons may be structured as a
chain of arguments. Intuitively, a chain of arguments gives us more information
than a mere cumulating would. The chain "x because of q because of r"
is stronger than cumulating "x and q and r". This idea of
cumulating-and-chain must not be confused with chain-without-cumulating. A
well-known example of the latter is hearsay evidence in legal process. Charles
says that p because John told him that p and John told him so because he has
heard it from Peter. If Charles knows nothing more but merely what he has heard
from John, and John nothing more but what he heard from Peter, the weight of
Charles’s assertion is obviously much lesser than that of Peter’s. Such a chain
weakens – not strengthens - evidence. But the justificatory chains are
different. Each reason in the chain has already a weight, and this weight is
increased when the reasons that support it are added. Ceteris paribus, the
longer the chain of thus cumulated arguments support a statement, the stronger
the weight of the statement (cf. Peczenik 1996, 150 ff.).
But this theory
should not be misunderstood. The assertion “each reason has already a weight”
does not mean that the weight is a kind of foundation that would be impossible
to doubt. Each reason has already a weight due to another chain, for example
"x because of a because of b".
Such a chain of arguments has no obvious end. To be
sure, foundationalists claim that all knowledge ultimately rests on evident
foundations, such as empirical data (cf., e.g., Chisholm 1966, 30 ff.).
However, foundationalism has been rebutted: the alleged foundations are not
certain. The main competitor of it is coherentism. Roughly speaking, whatever
is justifiable, is justifiable on the basis of the background system of beliefs
(or - in Keith Lehrer’s terminology – of acceptances and preferences (1997, 3).
The most profound problem of coherentist justification
is its circularity. If nothing is an unshakable foundation of knowledge and
everything may be doubted, I need reasons for reasons for reasons… etc. To
avoid an infinite regress, a coherentist must accept circularity. Indeed, a
coherent system of acceptances and preferences is like a network of
argumentative circles, mostly quite big ones. Metaphorically, a chain of
arguments, sooner or later, bites its own tail, and thus may be represented as
a circle. In such a chain, p1 supports p2, p2
supports p3 etc…. and pn supports p1. “Support” is only explicable as a reasonable
support: p2 follows from p1 together with another
premise, say r1. This premise
r1 is reasonable, which implies that it is a member of
another such circle.
But cannot a coherent system of acceptances and
preferences be false, “isolated from the world”? To understand coherentism, one
must keep in mind that neither skepticism in general nor this isolation
objection in particular has privileged status, compared with other beliefs. It
is merely a competitor of other beliefs. If someone says that my personally
justified, coherent system of acceptances and preferences is not “objectively”
justified, he has to win the competition with my system (cf. Lehrer 1990, 176
ff.). Consequently, if I want to argue that I am justified in accepting or
preferring x, I must appeal to my system of acceptances and preferences at that
time. And if the skeptic wants to convince me that I am wrong, the appeal to my
acceptance system at that time is again all he can make. If what the skeptic
accepts is less reasonable than the objection, he loses. The loss means that
the acceptance in question is defeated. Lehrer has taken reasonableness as a
primitive concept (id. 1990, 127).
The expression “weighs more than”, at least in
juristic contexts, works analogously to Lehrer’s expression “is more reasonable
than”. Thus, one may reformulate the concept of winning the justification game
in terms of “weighing more”: If what a person accepts/prefers weights more than
the skeptical objection, then the person wins the justification game against
the skeptic.
Back to the law. It is plausible to say that a
reasonable legal argumentation is a special case of a reasonable moral
argumentation. (This thesis is stronger than Alexy’s view that legal
argumentation is a special case of practical argumentation; cf. Alexy 1989, 212
ff.).
Both moral substantive reasons and legal authority
reasons, based on such sources of the law as statutes, precedents, preparatory
legislative materials etc., are relevant in both moral and legal reasoning.
Various sources of the law have, however, a privileged position in legal
reasoning:
Notice that this theory does imply that a good lawyer
weighs and balances his “purely” moral convictions (resulting from a moral
deliberation which do not take the law into account) and the law. This,
however, does not make him a morally bad man. Since what a good man is, is
possible to tell only when one takes into account of the role in which the
“good man” acts. If he acts as a lawyer, the law morally binds him.
To put the same
thing in different words: The fact that Peter is a lawyer is a morally relevant
reason for Peter to make a different weighing of other moral reasons than he
would make, if he were not a lawyer.
Coherentism is applicable to all knowledge, even in
natural sciences. Yet, the question remains, In what sense, if any, can (moral
and legal) evaluations give us knowledge? To say that a theoretical proposition
gives us knowledge may be thought about as the same as to say that it is true.
Can a legal interpretative statement – supported by weighing of moral arguments
- be true, even if justifiable by a set of premises containing evaluations?
One way of
answering our question involves a theory, which is cognitivist as regards prima
facie norm- and value statements and, at the same time, noncognitivist as
regards all-things-considered norm- and value statements. The former are true
if they correspond to the cultural heritage of the society. The latter may be
more or less reasonable in the light of the acceptance- and preference-system
of an individual, but they are not true in the ontological sense.
In view of such a theory, knowledge of prima facie
values is possible, whereas an well-argued belief concerning an
all-things-considered value merely expresses something essentially similar to
knowledge, not knowledge in the literal sense.
But how can I be
sure that this theory is adequate? After all, many well-known arguments can be
proffered both against noncognitivism and against the grounding of prima facie
values on cultural heritage. Of course, I cannot be sure. Rather, the theory
appears to be more reasonable than its competitors. This estimate of
reasonability is defeasible. In other words, prima facie moral and legal
statements are prima facie truth-evaluable in the light of cultural heritage
whereas all-things-considered moral and legal statements are prima facie not
truth-evaluable.
Notice an important point. The idea of prima facie,
originally introduced in the context of moral and legal theory, is used here at
an abstract philosophical level. Not only the law and morality are defeasible.
Even basic philosophical ideas are. Coherentism as I understand it, is a
general theory of defeasibility.
It is important to notice that the postulate that the
law should be as coherent as possible does not follow logically from the
epistemological coherence theory. Different values may have different weight in
different parts of the law. Yet, even a well-known anti-coherentist, Joseph Raz
(1994, 315) has admitted “that the application of each of the distinct values
ought to be consistently pursued, and this generates pockets of coherence.
In my opinion,
plurality of pockets of coherence corresponds to the plurality of social roles.
As already stated, legal argumentation is a special case of moral
argumentation. What is special is that a person performing legal argumentation
enters a particular social role, the role of a lawyer and – within it – a
particular role of a judge, attorney, constructive legal researcher (a “dogmatician”), critic of the law, etc. Each
role has moral consequences. Within each role, the lawyer must create a pocket
of coherence. Sometimes a given part of the law is to be made more and more
coherent with its moral base. Another time, various parts of the law are to be
made coherent with each other, at the expense of a (partial) separation of law
and morals. A lawyer must attempt creating a pocket of coherence, but only his
own choice of the role, explicit or implicit in his practice, determines which
one.
The reader my now ask, Why do we lawyers need all this
talk about coherence, when the author himself admits that the best law not
always is the most coherent one? The answer to this question is surprisingly
simple. Recourse to coherence is inevitable, if not at the lawyers’ level, then
at another, higher, level. For if anyone tells us that the best law in the
particular situation is not the one which is the most coherent, she must
coherently (!) argue that this is the case. Let us call such a view the Legal
Anti-Coherentist Thesis (LACT). The LACT is precisely in the same position as
Lehrer’s skeptic. Paraphrasing Lehrer, let me state the following: The LACT has
no privileged status compared with other beliefs. It is merely a competitor of
other beliefs. It has to win the competition with the view that the best law is
the most coherent one. If what the coherentist accepts is something that is
more reasonable for her to accept than the LACT, then the coherentist wins.
The ultimate
basis of all theories about blessings of incoherence must be composed of
coherent argumentation. Coherentism is self-supporting. Anti-coherentism is
self-destroying. One consequence of this observation is that the discussion of
coherence is useful not only for the traditional Legal Dogmatics but also for
more critical orientations of legal research. Whatever you criticize, you must
criticize in a reasonable, that is, coherent manner. Thus, only coherence at a
higher level of argumentation may justify incoherence at a lower level.
No living person
is a Hercules who efficiently can put all her beliefs into a coherent system.
This is only the goal of knowledge and a goal of morality, unreachable but
irresistible. A human being is often like a Sisyphus, pursuing unreachable goals
like reason, truth, justice and coherence.
Robert Alexy, Theory of Legal
Argumentation,
R.M. Chisholm, Theory of Knowledge,
Keith Lehrer, Self-Trust. A Study of
Reason, Knowledge, and Autonomy,
Keith Lehrer, Theory of Knowledge,
A. Peczenik, On Law and Reason,
A. Peczenik, Vad är rätt,
A. Peczenik, Juridiska avvägningar,
Festskrift till Strömholm,
A. Peczenik, Jumps and Logic in the
Law, Artificial Intelligence and Law, Vol. 4 (1996), No. 3-4
Joseph Raz, Ethics in the Public
Domain. Essays in the Morality of Law and Politics,
Jurisprudence (legal theory) is a strange discipline,
at the intersection of traditional legal research, some sociology and almost
all branches of philosophy, such as ontology, epistemology, moral philosophy,
philosophy of science, logic and philosophy of language. A law theorist must
know all of these. Since nobody can have a robust knowledge of this dimension,
doing research in jurisprudence is almost a mission impossible. The scholar
must pick up fragments of different disciplines and put them together to serve
new purposes. This is a high risk project, and there is not much to win. Yet,
this is my project. To use Popper’s famous words, it must remain an “unended
quest”. But there are some moments when the quest appears meaningful. This
seminar was such a moment.
The topic of the
seminar was “coherence theory of juristic knowledge”. Let me begin with a
clarification. Jan Wolenski incorporates the idea of coherence into so called
classical definition of knowledge. “According to this definition, knowledge
consists in true justified belief. More explicitly, the phrase `X knows that
A'… is equivalent to the conjunction of the three following conditions (a) X
believes that A, (b) A is true, and (c) X’s belief is (correctly) justified…
Where can coherence enter into the classical definition of knowledge? The
condition (c) is the only suitable place. Thus, we can combine the classical
theory of knowledge with a coherence theory of justification”. I agree. And I
wonder whether Aulis Aarnio is not too radical when concluding “that the legal
‘truth’ is much smoother matter than correspondence. It is coherence”. I would
rather say: Legal truth is correspondence, legal justification is coherence.
Legal justification does not rest on evident foundations. In the law, whatever
is justifiable, is justifiable on the basis of the background system of
beliefs.
Wlodek Rabinowicz raises the question of cognitivism:
“Peczenik proposes a theory for norm- and value judgments that is partly
cognitivistic and partly non-cognitivistic. Prima facie statements of this kind
are supposed to be true or false in the standard sense. They are true if they,
as he puts it, ”correspond to the cultural heritage of the society”. On the
other hand, the all-things-considered normative statements, such as “Taking
everything into consideration, I ought to do X”, lack truth value; they lack
the objectivity of the former statements. Thus, ethical cognitivism for the
prima facie is combined with non-cognitivism for the all-things-considered.
This is an interesting combination, but it raises some difficulties. In
particular, I am not sure how Alexander interprets prima facie norm- and value
judgments. Are they simply reports about our cultural heritage? That is, does
he accept some form of naturalistic analysis of the prima facie? Or does he
want to argue for a non-naturalistic form of ethical cognitivism? Does he want
to say that that prima facie statements are claims about objective values
rather than about some sociological facts, that such statements are irreducible
to factual statements?”
Now, I find
non-naturalism more plausible. Value judgments – according to their meaning –
motivate action, a mere description of facts does not. Surely, cultural
heritage – if fact - motivates us to a particular kind of action, namely to
weighing and balancing. But this motivation does not follow logically from the
description of cultural heritage. Rather: cultural heritage “triggers”
motivation. This is a causal connection, not logical necessity.
No doubt, this
position is in need of elaboration. It assumes that cultural heritage indicates
moral values but it is not identical with them. It also assumes a distinction
between what belongs to the meaning of
propositions (judgments, sentences) and what merely is their regular
cause. But it says nothing profound about what moral values are. Neither it
says anything profound about what the meaning of propositions is. In brief, one
must state clearly what this theory attempts to say and what not. It says
something about how we can find moral values, not what moral values are. Thus, the
theory is philosophically unfinished. For the excuse, see section 1 above.
This unfinished
theory does not entail any profound moral philosophy. But it seems to be
compatible with some philosophies. One
of these is preference utilitarianism. The leading preference utilitarianist,
R.M. Hare, has elaborated the following theory of two levels of moral thinking.
The critical level includes a complete knowledge of other people’s preferences
in all thinkable cases, together with weighing and balancing of these
preferences. On the basis of this knowledge, one can compute what action
maximizes the aggregate of preferences, according to the formula number of
preferences (regardless whose) multiplied by strength of respective
preferences. Only an “archangel” could perform such a task. One ought to follow
a rule that thus maximizes the fulfilment of preferences. The opposite of the
“archangel”, a “prole”, lacks ability to think “critically”. He must stay at
the intuitive level, that is merely follow his own moral intuitions and some
established moral principles. The archangel could show that some intuitions and
principles more or less correspond to the calculus of preferences. The prole
does not know it but still acts rightly. Ordinary people are neither archangels
nor proles but rather a mixture of both. They have some moral intuitions,
follow some principles and have some ability to check whether these correspond
to what other people wish (Hare, R.M. 1981. Moral Thinking.
Comparison with
Hare tells for the non-naturalist position. According to Hare, the prima facie
moral judgments that are made on the intuitive level are just as prescriptive
(=non-cognitive) as the critical all-things considered judgments. Let me
repeat: cultural heritage “triggers” uttering of prima facie judgments on the
intuitive level, but these moral judgments are something more than the
description of cultural heritage. For example, the fact that many other people
before me endorsed the principle “pacta sunt servanda” triggers my moral
judgment that promises ought to be kept, but this moral judgment is not the
same as a description of what other people endorse.
My point in this
context is that cultural heritage gives us evidence of principles that both
proles and ordinary people take into account in moral deliberation.
Moreover, this
evidence would perhaps matter even if one adopted another profound moral
theory. One alternative would be: moral is what a morally sensitive person in
our culture has a disposition to endorse. But the point is the same, namely
that we tend to disagree about what precisely such a person would endorse,
except as regards very abstract and vague prima facie values. Can we know
these, then? Indirectly, by relying on the cultural heritage, namely by reading
books showing principles and value judgments persistently coming back during
centuries.
Wlodek continues: “Second, one
wonders why all-things-considered statements are supposed to be less objective
than the prima facie ones. At least some all-things-considered normative
statements seem to be as objective as you can get in these matters. That, say,
Hitler and Stalin, all things considered, did wrong, that they committed
heinous crimes, seems to be a claim that is at least as established, given the
facts, as the claim that, say, prima facie no man should profit from his crimes
or that, say, inequality is prima facie something bad. So, where is the
difference?”
I think, there are two important differences. The first is that abstract
prima facie statements are more plausible end-points of moral justification
than particular moral judgments are. The second difference is that prima facie
statements are explicitly defeasible, justified unless outweighed by
counter-arguments, whereas all-things-considered statements are, by definition,
irreversible. These two differences together make the theory plausible. For
example, the all-things-considered statement “Things done to Bukharin in his
In brief, it is an anomaly to sincerely refuse arguing for particular all-things-considered statements. On the
other hand, it is an anomaly to totally deny
fundamental, abstract – and vague – prima facie values.
Here is a starting point of a possible moral theory. Must I have such a
theory, elaborated in detail? It would be nice, but it may be too much to
require from a law theorist.
Coherence is a complex subject. Wlodek Rabinowicz asks
an important question regarding circularity of coherentist justification: “When
one discusses coherentism, one often makes the observation that coherentist
justification is essentially circular: According to a coherentist, there are no
fundamental or basic beliefs: every belief requires other beliefs for its
justification. Therefore, if we are to avoid an infinite regress in
justification, then - as Peczenik puts it - we must accept that ‘a chain of
arguments, sooner or later, bites its own tail, and thus may be represented as
a circle’. Coherentists use to say that
such circles in argumentation need not be vicious provided that the circles are
sufficiently big. A big circle is better than a small circle. Why should it be
so? Does the size really matter? I would like to suggest that what is important
is not so much the size of a circle but rather the complexity of its structure.
Higher complexity of an appropriate kind gives extra safety, makes the circle
more robust, less vulnerable to destruction… To put it metaphorically: nets are
safer than chains.”
First of all, I
am grateful for the clarification as regards chains and nets. Indeed, nets are
safer than chains. But in my opinion, the size matters, too. Let me quote from
Robert Alexy: “a coherent set of
propositions should comprise as many and as different propositions as possible…
The idea of coherence includes the ideal of an all-embracing theory” (see
further on in Alexy’s paper). For a science fiction novel can give us a
beautiful net. A whole world has once been described in the three volumes on
Heliconia. Yet, it is all fiction. On the other hand, what if I wake each
morning and perceive myself as living in the Heliconia world, if I do not meet
psychiatrists who try to convince me that I am crazy, if I perceive myself
doing business with Heliconia figures and freezing in the Heliconia winter, if
all this goes on and the Earth becomes a distant memory? If the net is big
enough, Heliconia ceases to be a mere fiction and converts into a virtual
reality. More, if the net is big enough – embracing almost all information I
get – how could I tell the virtual reality from reality unqualified?
Yet, one must be
careful with the words “big enough”. Wlodek Rabinowicz has made the following
important point: It is not so much the absolute size that matters (there is no
difference between three volumes on Heliconia and one volume on Heliconia) as
the relative size, or embracingness: the circles or nets that don’t leave much
outside their area are better than those that do. This is a matter of coherence
of the whole system of beliefs. It doesn’t help if some part of that system is
internally coherent if it is deeply incoherent with the rest. I agree entirely.
The talk about the size of the net, or “comprehensiveness” of it, indicates
that not much is left outside of it. (By the way, this is why I find Keith
Lehrer’s theory of coherence better than other theories, but this problem is
too technical to be discussed here).
Wlodek asks: “Can Rules Be Weighed? According to
Peczenik, the process of weighing reasons is central for justification.
Ideally, every reason can and should be weighed against other reasons. Applied
to law, legal judgments are arrived to by such a process of weighing where what
is weighed are not just values and principles but also legal rules.” He
contrasts my position with Dworkin’s, characterized, as follows: “There is no
room for weighing a valid rule against other considerations. Certainly, the
interpretation of a rule might involve some process of weighing… But when a
particular interpretation has been determined, there is no room anymore for
weighing the rule against other considerations, according to Dworkin. If it is
valid, the answer it supplies must be accepted. It would be interesting to know
why Peczenik rejects this position”.
Now, I do not
reject the difference between rules and principles. But I do say that both
rules and principles are defeasible, and that the defeat is a result of
weighing. What is then the difference between rules and principles in my
re-formulation? All use of principles in legal reasoning is for weighing. A
lawyer is not supposed to just follow a principle. He is supposed to confront
with it and to weigh it against other principles relevant for the case. In this
sense, the use of principles is never a matter of routine. Principles are
always used as defeasible. In this sense, one still may talk about the everyday
defeasibility of principles. On the other hand, the use of rules varies between
routine cases and “hard” cases. In the segment of legal thinking which I would
call “routine legal thinking”, a lawyer does not weigh rules, but takes them
for granted. In another segment of legal thinking which I would call “hard-case
legal thinking”, both rules and principles are defeasible on the basis of
weighing. The everyday use of rules is not to weigh them. Weighing rules is not
an everyday defeasibility, but hard-case defeasibility. For a lawyer has a good
reason to ask questions about the weight of rules first when these are very
objectionable.
Wlodek continues:
“Is the explanation (of Peczenik’s views) that the law for him is never the end
of the matter? That even unambiquous legal rules must still be balanced by the
lawyer against other considerations such as morality or efficiency?” To answer,
let me paraphrase: The explanation is that the law for me is not always the end
of the matter. Even unambiquous legal rules must sometimes (albeit seldom)
still be balanced by the lawyer against other considerations such as morality
or efficiency.
Then, he
continues: “Or would he (Peczenik) say that a legal rule should also be
balanced against other considerations internal to the law itself?” This is a difficult question because some
considerations of morality and efficiency are internal to the law in the
following sense. First, lex iniustissima non est lex. A “legal” system worse
than Pol Pot’s would not be the law but legis corruptio. Second, a “legal”
system that is not on average efficient would neither be the law, as Kelsen and
others pointed out. But the borderlines are not precise. For example, who knows
how much morality is internal to the law itself, in the sense that without this
minimum of morality the law ceases to be law? In this connection, one may
re-read Alexy’s remarks on criteria-less criteria.
Then, Rabinowicz turns attention to Kagan who
“distinguishes between “prima facie” reasons (reasons “at first sight”) and
reasons “pro tanto” (“insofar”). Kagan suggests that certain considerations may
appear to be reasons for a decision or a judgment at first sight, so to speak,
but then turn out to be irrelevant when other aspects of the situation have
been taken into consideration… A prima
facie reason can be undercut, so to speak, by other aspects of the situation,
and then drop out of sight altogether. It is different with pro tanto reasons….
Such reasons are never undercut, even though they may be outweighed in some
cases by reasons to the contrary, if the latter are stronger… The idea of weighing reasons seems natural
for the pro tanto reasons, but it is not appropriate for the prima facie
reasons that aren’t pro tanto”.
Now, this
distinction is very useful. Let me add something. Pro-tanto is the weighing-and-coming-back
defeasibility, typical for morality. Prima-facie is the ordinary defeasibility,
occurring everywhere. And “hard-cases” legal reasoning is a very similar
segment to morality. This means that I would like to re-write everything I have
published and put clearly in what contexts I use the words “prima facie” to
designate “pro tanto”. Sorry for the reader.
Rabinowicz
continues: “a given factor may make very different contributions to the value
of the whole depending on which other factors it is combined with”. Indeed. I
have said many times that one weighing is dependent on other weighings.
(Remember that coherence is a net in which parts are inter-dependent).
But now, there
comes something much worse: “The so-called ‘ethical particularists’, such as
Jonathan Dancy, David McNaughton and John McDowell, have in fact went as far as
to question whether there are any valid moral principles that can specify pro
tanto reasons: Dancy seems to suggest that any reason can be undercut or at
least change its weight when it appears in new configurations, in combination
with other factors. I don’t think that there is a reason to go that far, but it
seems fair to say that Peczenik’s reliance on the weighing model for reasons
may be inappropriate in many contexts”. Here, I wonder what “undercutting”
means. Can a moral principle “ be undercut, so to speak, by other aspects of
the situation, and then drop out of sight altogether” (see above)? I would
rather say that this is unusual. The same moral principles come again and again
since antiquity. Their everyday defeasibility is pro tanto. But what if a
principle really drops out of sight altogether? This may happen, though I would
make analogy between this and a scientific revolution or a paradigm shift in
the much-abused Kuhn’s language. Is the weighing model inappropriate for this –
say - holiday defeasibility? Yes and no. No, because the reason for dropping
out of sight is that the principle in question becomes hopelessly outweighed.
What else can the reason be? But yes, because once the principle is outweighed
to such a degree that it drops out of sight, it will never be weighed again. Or
almost never. Defeated physical theories never come back, but defeated
moralities? Who knows?
Yet, Wlodek meant
something else here. For a particularist, any principle (and indeed, any
reason) can be fully undercut and drop out of sight altogether in a particular
situation, and not from now onwards. It is not a question of some paradigm
change, but rather a conviction that the principle in question is not relevant
in this situation. Is the weighing model inappropriate for this particularist
defeasibility? Again, yes and no. Yes, because the conviction that the
principle in question is irrelevant in this situation is in fact often intuitive,
not justified by weighing of other reasons. No, if one asks whether this
conviction can be justified. A coherentist must say that it can. Moreover, the
reason for dropping out of sight is that the principle in question becomes
hopelessly outweighed. Let me repeat: What else can the reason be?
When a
particularist insists that the principle drops out of sight intuitively, and
that this dropping out must be stated without further justification, he is a
foundationalist. The dropping out is for him obvious, precisely as the alleged
foundations of knowledge are for a foundationalist. One may call him a negative
foundationalist, since what is evident for him is the opinion that the
principle in question is not relevant.
Surely,
everything can be defeated, not only moral principles but all abstract beliefs,
even scientific ones. Is this a reason to adopt negative foundationalism and to
stop trying to justify abstract beliefs? In morality? Always? In science, too?
Even worse, are only abstract beliefs defeasible, but concrete absolutely sure?
Why? And what would the consequences be? Absolute reliance on particular
intuitions? What if my intuitions are different from yours? Shall we fight? See
also section 3 above.
Rabinowicz asks for clarification: “When Peczenik
discusses weighing, he takes up the well-known phenomenon of cumulating of
reasons… Peczenik suggests that ”cumulating of reasons may be structured as a
chain of arguments”. When we adduce q as a reason for x and r as a reason for
q, we have what he calls ”cumulating-and-chain”. As he argues, the chain of
reasons is cumulative if each reason in the chain comes with an independent
weight. It must get this weight from other supportive reasons that do not
belong to the chain in question. Alexander seems to think that this form of
cumulating reasons by chaining them is in some sense more preferable (”more
informative”) to what he calls ”mere cumulating” - when q and r are adduced as
two separate reasons for x. I must say I don’t quite understand why he takes
this view. A clarification would be helpful”.
What I mean is
that coherence theory is something else than theory of evidence. In the theory
of evidence, the probability of a cumulation of P(a), P(b),,, , P(n) is
1-[P(~a)×P(~b)×...×P(~n)], which entails that the cumulative probability is
greater than the components’. The
probability of a chain is on the other hand P(a)×P(b)×...×P(n) and must
therefore be less than probability of each component. An important observation
here is, however, that the probabilistic theory of evidence does not pay
attention to defeasibility. More precisely - when asserting that the
probability of an event a is x, one has already taken defeasibility into
account. In other words, the probability is the measure of defeasibility of the
claim. The theory of evidence excludes therefore further consideration of
defeasibility. Speaking in terms of weight, instead of probability, one may say
the same, as follows. Once the reasons are equipped with weight, regardless
from where it came, the problem of cumulation is divorced from the problem of
defeasibility.
But this is not
what I had in mind. Instead, my point is a straight application of coherentism.
In the coherence theory, assertions are defeasible. Therefore, coherence theory cannot follow the
logic of the theory of evidence. Rather, it tells us something about initial
probabilities. Chaining makes the initial probabilities higher. To say the same
in the terminology I prefer here: One reason, not supported by anything else is
unsafe. When chained to other reasons, it becomes safer. Nets are safer than
chains. (See above). And big nets are safer than small. Chaining reduces risk
of defeat. And the only way for a reason to get any weight at all is to get it
from nets.
For example,
distinguish:
1.
x is a bad man because he did not help his son who was
mobbed at work (reason 1) and x is a bad man because he left his old and ill
parents alone (reason 2); nothing is said about why.
2.
x is a bad man because he did not help his son who was
mobbed at work (reason 1) and refusal to help a close relative in need is a
morally bad thing (reason 2*).
Here, chaining seems to be a stronger combination of
reasons than cumulation. Reason 2* - to which reason 1 is chained - is a deeper
reason that supports reason 1, and makes it stronger (weightier). On the other
hand, reason 2 does not provide such a deeper support.
In this example,
the weight of a reason increases when it is chained to another reason. A mere
cumulation cannot give this result.
This is my
answer, but I am far from happy with it. A lot must be added.
Returning to coherence, I would like to comment on an
important point made by Robert Alexy: “Raz says that there is a pervasive
incommensurability among values. This is true, if one understands
commensurability as some kind of common property which allows to determine the
preferability of values in an objective way. Weighing would then have a somehow
passive nature. She who weighs only expresses what is already implicit in the
common properties of the conflicting values or principles. But that is not the
only way of conceiving weighing, and it is surely not the way weighing is
performed in legal systems. Weighing, there, has an active character. Conflicting
values or principles are related to each other by creating and fixing concrete
preference relations between them. Perhaps, one could say that they are made
commensurable by adding an evaluation. This is the way, legal systems can solve
the problems of value pluralism… The mere fact that the creation of a coherent
system presupposes evaluation, which is not already entailed in the system,
seems to show that coherence is - contrary to what has been said above - no
genuine super criterion. It appears that there must be another criterion, so
that coherence cannot be conceived as the super criterion any longer. Indeed,
another criterion exists, but this does not deprive coherence of its character
as a genuine super criterion. This other criterion is the procedure of rational
discourse”.
In my
paraphrase, this view is equivalent to the conjunction of two theses:
1. The
end-point of legal justification is not the coherence of enacted law “as it is”
but coherence of a broader – mixed - system, embracing, inter alia, the enacted
law, moral convictions represented in the society and the subjects’ (the
justifying jurist’s) own moral and other beliefs. What is incommensurable in
the narrower system of enacted law is commensurable – and justifiably weighed
and balanced – within the broader system.
2. Rational
discourse is, according to Robert, the procedure that justifies this mixed
system. She who weighs does not only express what is already implicit in the
common properties of the pre-existing – and conflicting - values or principles.
Conflicting values or principles are related to each other by creating and
fixing concrete preference relations emerging from – and justified by - the
rational discourse-procedure.
I agree with the first thesis, but what about the
second? I would rather modify this theory in the following way:
1. The
end-point of legal justification is not the coherence of enacted law “as it is”
but coherence of a broader – mixed - system, embracing, inter alia, the enacted
law, moral convictions represented in the society, the subjects’ (the
justifying jurist’s) own moral and other beliefs, and the philosophical theses,
such as Alexy’s discourse theory. What is incommensurable in the narrower
system of enacted law is commensurable – and justifiably weighed and balanced –
within the broader system.
2. Conflicting
values or principles are related to each other by creating and fixing concrete
preference relations emerging from addition of deeper, underlying reasons, and
reasons for reasons, in a coherent net. The rules of rational discourse and the
procedures – actual or hypothetical - emerging from the implementation of these
rules have no privileged position. They are just a component of the belief
system of the subject.
3. There
are many ways to fix and arrange coherent justification of this kind. Among
other things, there are many possible outcomes of rational discourse. The
individual subject intuitively, unjustifiably, picks up one of many.
4. What
is the point of a coherent value system, then? There are at least two points.
Both are very general hypotheses about contingent facts. The first is that we
humans simply have a disposition to reason, a desire (“passion”) for reason.
The second is that individuals who try to arrange their respective belief
systems as coherently as possible agree more often and in a more stable manner
with each other than such who do not try it. Practical reason promotes
consensus and peace.
Item 3 is related to what Wolenski implies when he
says that there are no criteria for picking up one model instead of another.
This is the main reason why I assume non-cognitivism as regards weighing.
I thus believe that the all-things-considered
normative statements, such as ”Taking everything into consideration, I ought to
do X”, lack truth value. But Wlodek asks the question whether this
non-cognitivist position does not remove the ground for claims to coherence.
“Suppose we discover that our system of beliefs is internally incoherent; or
suppose we acquire a new belief that does not cohere with what we have believed
before. It is here that the principle of conservatism comes in: A smaller
modification is to be preferred to a larger one. Thus, conservatism is a
principle of minimal change. Peczenik accepts this principle… but does not
explain why it should be accepted”. One explanation is: “insofar as my aim is
truth, the whole truth and nothing but the truth, giving...up [my beliefs] is a
real loss from the ex ante point of view. Since I should minimize the losses,
the principle of minimal change is vindicated. This explanation works well as
long as we restrict ourselves to belief systems, in which beliefs are supposed
to be carriers of truth-value. However, on Peczenik’s view, our
all-things-considered normative judgments are not cognitive in their nature: he
denies that they have a truth-value. How can one in such cases defend the
principle of conservatism?”
I find this objection the most difficult to answer.
Let me consider five answers, here ranked on a scale from the strongest and
most controversial to the safest and weakest.
1. The
first answer is cognitivist in the strong ontological sense. Human beings de
facto try to arrange moral beliefs according to principle of conservatism
(coherence) and thus they produce knowledge of the world. Knowledge of the
world is thus conceived as independent of ourselves (that is, independent of
our situation, theories, concepts, beliefs, etc.). In order to be a cognitivist
in this strong sense about all-things-considered moral values, we have to
embrace a kind of Platonism, namely the idea that these values are among the
facts of the world.
2. The
second answer is cognitivist in the anti-ontological sense. Human beings de
facto try to arrange moral beliefs according to principle of conservatism
(coherence) and thus they produce knowledge of all-things-considered moral
values, duties, rights etc., but the “external” ontological question, whether
these belong to the world or not, is meaningless. Thus, Ronald Dworkin
(Objectivity and Truth: You'd Better Believe It. Philosophy & Public
Affairs 25, no. 2, Spring 1996) thinks that the only plausible reading of
"It is a moral fact that genocide is wicked" simply repeats that
genocide is wicked. (This view is a strange reversal of Hägerström’s dictum
that we can speak meaningfully only about morality, not in morality. Dworkin’s
opinion seems to be that we can meaningfully speak in morality, but we cannot
meaningfully ask “external” philosophical questions about morality).
3. The
third answer is cognitivist in the formal sense. Let me mention two versions of
it, without any attempt to determine how they are related to each other. (a)
Human beings de facto try to arrange moral beliefs according to principle of
conservatism (coherence) and thus they produce (or approximate) truth in the
minimalist sense. For example, according to Giorgio Volpe (A minimalist
solution to Jörgensen’s dilemma, in press in Ratio Juris), our notion of truth
is implicitly defined by the instances of the equivalence schema "The
proposition that p is true if and only if p." Thus, saying that
all-things-considered moral sentences are capable of expressing (true or false)
propositions in the minimalist sense does not commit one to say that the
"facts" that make such propositions either true or false are similar
to the "facts" that make propositions about the structural properties
of physical things either true or false. The facts that make such propositions
either true or false may very well be reducible to, or supervene on, the emotions,
attitudes, feelings or desires of people. (Volpe’s view is based on the
“minimalist” truth theory by Paul Horwich, with roots in Frege’s and Tarski’s
writings). (b) Human beings de facto try to arrange moral beliefs according to
principle of conservatism (coherence) and thus they produce (or approximate)
truth about a formal object (model). According to Jan Wolenski, we can identify
the object of knowledge with a semantic model, that is, the set of all truths
in the language. The set is produced by the logical improvement of natural
language. “Having any consistent set of sentences we can describe its model
just by taking into account the semantical properties of words. The model which
comes from purely linguistic considerations is called the formal object”. And he continues: “Now the piece of the real
world is understood as the material object. Thus, any consistent fiction has a
formal (intentional) object, but it has no material object. On the other hand,
we assume, at least if we are realists, that any piece of knowledge has its
formal as well as the material object… If we assume that our language,
eventually improved by mathematics and science, is a proper device for
speaking, truly or not, about the world, then we automatically decide that
formal objects constructed on the basis of everyday speech are good candidates
for representing the reality. But I (Wolenski) must admit that it is rather a
confession of faith than a fully justified statement”.
4. Human
beings de facto try to arrange moral beliefs according to principle of
conservatism (coherence) and it is a correct thing to do so.
5. Human
beings de facto try to arrange moral beliefs according to principle of
conservatism (coherence). They do it because they typically possess a desire (a
“passion”) to do so. Thus, whoever arranges their moral beliefs in this way,
typically meets understanding and acceptance from others.
I am sceptical as regards answer 1, because it is
difficult to find anything in the world that corresponds to
all-things-considered moral statements. As regards answer 2, the problem is, as
follows. Dworkin concludes that we cannot climb outside of morality to judge it
from some external Archimedean (that is, ontological) tribunal. But in my
opinion, we both can and must to do precisely this. I am sceptical as regards
Dworkin’s view, because it contradicts the long philosophical tradition. Many
philosophers have been seriously engaged in ontological research, and I simply
cannot believe that all of them talked nonsense. Answers 3a and 3b evade the
ontological question, as well. No doubt, our language is such that we often
speak about moral objects in the formal sense, and claim the truth of such
sentences in the minimalist sense. But the ontological question is whether this
objectivist language deceives us or not. No formalism can help us to either ask
or answer this question.
Yet, Wolenski
writes: “The sceptic can of course always argue that our language deceives us.
We have no chance to prove that it does not. However, successes in predictions,
filling gaps in our cognition of the past, efficient explanations,
possibilities in criticism of opinions, and many other epistemic actions rather
support the view that we are able to reach the real world by selecting a
semantical model than to undermine it. Hence, I regard a combination of a
semantic account of knowledge with a coherence theory of justification as a
promising base of epistemology”. This is all right as regards truth concerning
natural objects, such as mountains, cows and chairs, but can we say the same
about values? Let us try: success in predictions, success in filling gaps in
our cognition of values of the past, efficient explanations of values,
possibilities in criticism of opinions concerning values, and many other
epistemic actions rather support the view that we are able to reach objective
values by selecting a semantical model than to undermine it. Is this OK? No, it
is not. Surely, it seems plausible, but it does not solve the mystery of
platonic values hovering somewhere in the air around chairs and cows.
As regards answer
4, I agree with Robert Alexy that the law raises the claim to correctness. The
problem is that the idea of correctness is far less clear than the idea of
truth as correspondence to the facts.
At the end of
the day, the only honest answer to Wlodek’s question seems to be the weak
answer 5, combined with secondary points inspired by the answers 3 and 4. Human
beings de facto try to arrange moral beliefs according to principle of
conservatism (coherence). They do it because they typically possess a desire (a
“passion”) to do so. Thus, whoever arranges their moral beliefs in this way,
typically meets understanding and acceptance from others who thus think that
his/her conclusions are in some sense correct. In consequence, epistemic
conservatism (coherence) assures success in predictions of future valuations,
success in filling gaps in our cognition of valuations of the past, efficient
explanations of valuations and possibilities in criticism of opinions concerning
values.
Wlodek has read
this and answered, as follows: Yes; but why do we desire to make as small
changes as possible? This doesn’t seem to be a ”bare” desire, such as the
desire I have for a cigarette, but a desire for a reason. And if the reason is
that we believe that we will lose less truth that way, then this answer is open
to a non-cognitivist only if he accepts some ”error theory” à la Mackie.
Yet, I think that
the error theory is too strong. It claims that people normally assume that
value judgments are truth evaluable but they are not. In brief: it claims that
people normally assume an error. As a conservative (in many respects!), I
hesitate to accept such a theory. I would demand stronger arguments for an
error theory. But why not to assume a more modest attitude in this respect? We
desire to make as small changes as possible. Indeed, this does not seem to be a
”bare” desire, such as the desire I have for a cigarette, but a desire for a
reason. But I do not know what this reason is. Perhaps can a reason be found in
future, perhaps not. Perhaps the passion for reason is an unexplainable fact.
Or is it the ultimate foundation to be assumed without justification? A human
being is a person demanding reasons, but we cannot give a reason why she is
like this.
It seems that we
have here a choice between two unpleasant alternatives. The first is that
all-things-considered moral judgments tell us the truth but we do not know what
this truth is about. The second is that we have a passion for reason, for a
reason, but we do not know for what a reason.
It is a limit of
what I can think in this context.
Ronald Dworkin, Objectivity and Truth: You'd Better
Believe It. Philosophy & Public Affairs 25, no. 2, Spring 1996.
Cf. R.M. Hare, Moral Thinking,
Giorgio Volpe, A minimalist solution to Jörgensen’s
dilemma, in press in Ratio Juris.