Moral Rules and Moral Maxims - The University of Texas at Austin

Moral Rules and Moral MaximsAuthor(s): D. S. ShwayderReviewed work(s):Source: Ethics, Vol. 67, No. 4 (Jul., 1957), pp. 269-285Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2379657 .Accessed: 21/02/2013 11:18Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org..The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to Ethics.http://www.jstor.orgThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

MORAL RULES AND MORAL MAXIMS'D. S. SHWAYDERIRECENT efforts to elucidate the~ character of moral reasoning havej\..given special importance to theidea of a rule. Toulmin, Baier, and Nowell-Smithmay, among others, be mentionedin this connection, as may recentcommentators on utilitarianism likeUrmson and Rawls. These philosophersdiffer in important ways, but-at leastfor sake of argument-they all seem tohold to a theory which I call the doctrineof rules, and shall now try to paraphrase.To say that an act is (morally) rightor that (morally) one ought to do a certainact means that the act would conformto an applicable (moral) rule.2 Thestatement that the act is right is true if,in fact, the act would conform to the rule.It is not necessary that the ruleachieve explicit formulation. It may simplybe customarily recognized and generallycomplied with, as are the rules forthe use of the word "the." However,whether or not explicitly laid down, it isnecessary to be able in most cases to saywhether or not the rule applies and, ifapplicable, whether or not an act conformsto it.It is extremely important to see thatthe rule may or may not apply to a givencase. The rule does not apply itself, nordoes it carry any codicils circumscribingor otherwise governing its application.Whether or not the rule does apply is,however, something which can be decided;perhaps, indeed, by appeal to otherrules.Moral rules are of enormous variety,differing in respect of their relative force,269the extent of their application, the kindof behavior they regulate, their dependenceupon other rules, the importancethey have in the society where they apply,and other factors as well.Apart from such differences, moralrules, like all rules, betoken agreementsbetween intelligent animals. Holding tothe rule is holding to the agreement.The theory, even so schematically presented,is extremely captivating becauseuseful, serving immediately to clarify themoral use of the whole language of"right," "wrong," "ought." "Wrong"(say) is, in the first instance, used toteach rules by being applied to acts regardedas violations; the language pointsto rules, and the rules emerge out of theuse of the language. Later, when weknow the rule, we use "wrong" to statethat an act would be a violation. Thedoctrine of rules is that kind of theorywhich immediately refreshes a murky atmosphereof smudged distinctions andenables us to breathe more freely and seemore clearly.We see, for instance, how it is that culturalrelativity and morality may, indeedmust reside side by side as neighbors.Rules apply within a given society, forthe society is composed precisely of thosewho hold bv the same moral rules. But,the rule determined and the applicationrecognized, it is a matter of objective factwhether or not the rule applies to a particularact and, if so, whether the act isright or wrong. It is a matter of cold factwhether this society has or has notadopted the practice of exposing blondchildren, and a matter of cold fact wheth-This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

270 ETHICSer this is a blond child; it is, therefore, amatter of cold fact whether this childought to be exposed.This makes clear why morals must be"social." For agreements are agreementsbetween men, governing their mutualbehavior.The theory offers us some hope of sayingwhat the rationale of a moral rule is,and this turns out to be something socialin a more delimited sense.The doctrine puts us in a position toappreciate the importance of havingmoral rules and thereby clears the wayfor specifying criteria for resolving thevexed question of ascertaining the relativemerits of different rules, and so providinga test for deciding whether andhow we should modify such and suchpractices. We do this by exploiting thedistinction, as it is sometimes called,between legislator and judge; betweenthe promulgation or enactment of rulesand the utilizing of the rules to appraisebehavior as right or wrong. We can nowat last clearly appreciate the complementarycharacter of teleological and deontologicalethics, and thus gain a renewedand less haphazard appreciation of each.Not the least advantage of this theory isthat it permits us with good conscienceand little loss to allow "objective" and"subjective" to slide into the desuetudethey deserve; for we can now see in whatmanner compliance with rules is both"objective" and "subjective" and howuseless this way of putting it is.In short, we gain a fresh and broadview of nearly the whole of moral philosophy,seeing how the various keyproblems and concepts relate to one another;and the field once again appearsreasonable, even reasonably tidy.IIThe atmosphere does not, however, remainso clear and clean, for the doctrineof rules bears its own nascent obscuritieswhich grow large and soon loom allaround.A major advantage of the theory isthat it permits us to apply to problemsof moral philosophy more general andreadily grasped facts about the conceptof a rule. But this advantage carries thecollateral responsibility of distinguishingclearly between moral rules and others.This is no easy task and perhaps an impossibleone.3We speak of rules in many differentconnections. We have club rules andrules for games; formal rules such asthose of arithmetic; religious and ceremonialrules; rules of etiquette and rulesfor parliamentary procedure, laws in thelegal sense and rules of language. Indeed,it would be a mistake to suppose thatthese are all in themselves unified ideas,as Wittgenstein's illustrative examinationsof "game" and the idea of language,and Hart's examination of legal argument,show. But these different kinds ofrule must all be distinguished from moralrules, if there be such.The attempt to harden and elaboratethe peculiar character of moral rules carriesin train a series of interconnectedembarrassments for the doctrine ofrules. For, after saying that moral rulesare not like rules of this and that in theseand those ways, there seems little left ofthe rule conception of morality.I shall now briefly adumbrate some ofthe difficulties, without trying to settlethem, or even hoping that I could, forthey give me abundant reason to thinkthat morality wants something otherthan the pure doctrine of rules.The first distinguishing fact aboutmoral rules is their vast sway in severaldirections. First, particular rules do nothold just for a certain segment of society;save for certain special exceptionswhichmust be exceptions-they hold forThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

everyone. Second, the obligations engendered,if there are such, are ones, savefor special exceptions, we owe to everyonebelonging to the society. Third, almostany aspect of our behavior mightbe subject to moral regulation. Moreover,failure to comply with rules of anyother kind might involve moral dereliction,if deliberate, say. Thus deliberatebreach of the rules of a club, or the law,or a game, or etiquette may constitute abreach of the moral rules of holding tocovenants made, or acting decently.These observations connect obviouslywith our reluctance to allow for specialmoral expertise and competence and alsowith the difficulty of finding anythingcomparable to conscience bearing onother than moral rules. There are no expertsbecause morality affects everyone,and may affect any mode of behavior.Conscience is pricked only when oneknowingly does wrong, and that willnearly always count as morally wrongbehavior.It is occasionally useful to compare asociety to a large club and to suggest thatclub rules and moral rules differ only indegree. But the difference is simply notone of degree, partly for the reasons indicated-moralitywants no special competence,and breaches of club rules disturbconscience only by being alsobreaches of moral rules-but there areother reasons too, some to be noticed below.In any case, one would think thatthe proper counterpart to club rules inthe social sphere would be, if anything,rules of law. But even here we should bewareof pushing the analogy between aclub and society too far.Next, it is extremely hard to say inwhat manner moral rules betoken agreements.While moral practices wouldseem to be conventional, if anything is,it is quite impossible to say who convenedand to what end. This more thanMORAL RULES AND MORAL MAXIMS 271anything makes suspicious the contracttheory of morality. One is even temptedto say that moral rules characteristicallypresume no agreements, which would behelpful except for undercutting the wholeconcept of rule.It is a platitude to say that we do not,for the most part, agree to accept themoral practices of our society; we aresimply taught them. There is, for themost part, no question of accepting therules-of agreeing. Occasionally one doestake it upon himself to reject some practiceof his society. He must then sufferthe consequences or leave. But these consequencesare of curiously undeterminedand unspecified kind. In the first place,our would-be reformer or objector did notbargain for the particular unpleasantrieshe received; and he was committed tosuffer them-whatever they turned outto be-before acquiescing in any agreement,Moreover, one cannot alwaysleave, as recent experience shows. Inshort, one's options are cut to a minimum.But, on the other side, he may suffernothing especially unpleasant andmay even succeed in altering the moralrules of his society. This raises the embarrassingquestion of accounting for andjustifying modifications in the moralcode, the problem which so vexedHobbes's philosophy. A modificationwould seem to be the replacement of onerule with another, which we do by makingnew agreements, perhaps within astructure, accepted by all, allowing forsuch modifications. But the near impossibilityof specifying the moral rules andplacing the agreements makes this storyalmost worthless. Which rule replaceswhich and by what mechanism? Even ifwe can make sense of rules without agree-ment, by summoning accomplishedchanges of social practice, these changeswill always inevitably involve the violationof existing rules and so wrong action.This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

272 ETHICSAlterations in the moral code will, then,always be wrong, which seems curious.We are, most probably, soon forced backon a descriptive account telling of socialmobility and partition and the interactionof different groups and subgroups.We might thus get quite excellent descriptions,even explanations, of why thissociety has that rule; but it does not yetassure us of a rule.It is interesting too that, where it isrelevant to inquire after the reason foradopting rules, it is generally possible toprovide fairly specific answers. For instance,the rules governing parliamentarydiscussion can be argued on grounds ofhow far they facilitate debate and lead itto satisfactory termination. But it ishard to cite similar reasons for adoptingmoral rules. Generally we fall back onformulas involving terms like "welfare,"which are as much in question as therule. But these formulas have their pointand, as I shall try to show, it is no accidentthat we should so often return tothem in discussing moral questions andmoral philosophy.Does not everything I have been sayinghold equally for rules of law? Onedoes not, after all, agree to the law of theland, a fact no pledge of allegiance canalter. Nor is one always able to quit apolitical club, and join another, or noneat all. One does what he ought or suffersthe consequences.Yes, there are important parallels,often lost together in the concomitantgeneral assimilation of rules of law andmoral rules to something else not clearlyspecified. But there are important differencestoo. In the first place, there is nopuzzle about changing the law, for herewe may consult the action of competentauthority. Nor, indeed, is there a realproblem over consequences, for the lawprescribes specific sanctions, where theconsequences of immoral action are solittle specific as hardly to deserve the titleof "sanction." Society often has recourseto law just where the consequences ofalleged immoral behavior are so little respectedas to render the supposed rule inoperative.Many areas of law, ideallyconceived, are adjuncts to morality; andan ideal morality perhaps could dispensewith those areas of law. It may be thatthe acceptance of law in a general sensemay be as difficult to clarify as is the acceptanceof morality, for in both casesthere is little scope for "acceptance." Butthe law is, in any case, the adjunct; it ismuch more "positive" and specific andcircumscribed and systematic in its operations.Particular laws, unlike particularmoral rules, may emanate from and berescinded in due process by due authorities,where only duly constituted authoritiesdecide the law. There is nothing oddabout legislative and judicial expertiseand authority; while moral expertise andauthority are suspicious, to say the least.These facts tie up with the further factthat, while legal responsibility may beascribed by competent authority toothers on the basis of what they havedone, we exercise moral reasoning also todecide for ourselves what we ought to do.When we reason on the legality of actionscontemplated but not done, the questionconverts itself into one of interest ("CanI beat the law?") or morality ("Is itwrong to break the law here?"). Beingpurely appraisive, legal reasoning is lesscomplicated than moral reasoning. Further,the law is primarily interested todetermine whether acts are wrong or notwrong, in the legal sense. There is littleroom to declare acts "right." But sinceone must decide for himself, and oftenwants to do what is right, there is abundantscope for such moral questions. Anotherimportant difference is that legalThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

questions are usually finally decidable ina finite and specifiable number of steps.Judgment is given and, after a smallnumber of appeals and reviews, the caseis finally decided or abandoned. One is declaredguilty or responsible. But moralquestions are much more open-ended,and possibly may be pursued downthrough the ages.Clearly, one of the cruxes is sanctions.The specification of what is peculiar inmoral sanctions would, I suspect, morethan anything else serve to determine thecharacter of moral rules. Were we toknow when, in what manner, and to whatend sanctions were enjoined, we shouldknow a great deal about what constitutesbreaches of the rules, and so the characterof the rules. But, as noted, one thingpeculiar to moral rules is just the absenceof specific penalties. When webreak a club rule a fine may be assessedor membership suspended; breaking therules of a game may cause us to forfeit orto suffer specific compensating disadvantages;when we break the law we are liableto fine or incarceration. The sanctionsare all internal to the enactment ofthe rule: Unless you do such and such,you will suffer such and such penalty.But the sanctions for breach of moralityare either entirely external and unspecifiedor, in the case of a conscientiousindividual, moral reward and punishment"must lie in the action itself."It is interesting that attaching specificsanctions to moral rules, as applied tothose of responsible age, almost automaticallyconverts them into rules of lawor rules of religion, or the like. By judicialprocess or overt legislation, for example,we translate the moral sentimentsof society into public declarations, yieldingrules of law.Now, I have been speaking rather freelyof the consequences of breaking moralMORAL RULES AND MORAL MAXIMS 273rules, but suspect it is metaphorical to callthese sanctions. These consequences consultonly the vicarious and unpredictableaction of "public opinion." One sufficientlysteeled against "moral pressure"and inured to hard scowls and gossipneed not fear these consequences, or mayat worst need to put up with small inconveniences.Indeed, the self-righteous arenot only steeled, inured, and willing, butoften downright eager to suffer such consequences.The most effective penaltiesare curiously subjective-pangs of remorseand the like-and may be totallyabsent. Observe, in any case, that thesanctions, if sanctions, are not specific tothe act, but always, so to speak, generic.The same sanction, so far as we can describeit, attaches to every breach ofmorality. These are the sanctions (ifsanctions) of conscience and publicopinion.My remarks, of course, have nothingto do with how we are taught to differentiatebetween right and wrong. We generallyare taught this by being constrainedto act in certain ways by prearrangedand specific people who awardprestated and specific penalties. But,once one is free from such constraint, thesanctions are no longer present.There are additional difficulties of asimilar kind for the doctrine of moralrules, especially when it comes to seeingexactly how it is to be used to elucidatemoral conflict and our appraisals of thebehavior of agents living in other societies.But enough has been said to showthat the doctrine, if it leads anywhere, isno high road to clarity, but a twisted,narrow path.It is remarkable that moral rules, if wemay speak of them so blithely, seldomgain explicit formulation. We can nowbegin to see why that is so. The momentwe trap a moral practice in a prescrip-This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

274 ETHICStion, we are almost bound to specifysanction and clarify the application. Theresult is usually either a law of the landor a law of the church or something comparable.Because they are generally unformulated,it is hard to locate good examplesof moral rules, itself cause for suspicion.Of course, we can describe the moralpractice of societies, our own and others;and, though rarely done, it is not impossibleto transfer these statements intoexplicit rules of behavior.Moral rules, expressly formulated,would have to meet certain requirements.First, it is of the nature of a moral rulethat it might have been otherwise, in thesense in which, while one society mightadopt the practice, another might not.This is the one way in which moral rulesare arbitrary. Second, a moral rule mustbe backed, not by specific sanctions, butby "public opinion."When we look at examples often citedof moral rules we discover that these requirementsare usually not met. A commonexample is the alleged rule againstmurder. In the first place, one usually hasin mind a law rather than a moral ruleagainst murder. But, apart from that,the principle would still fail to meet thesecond requirement for being a moralrule. The proscription of murder is notpeculiar to this or that society; after all,murder is immoral (or illegal) killing.What will be peculiar to this or thatsociety is the specification of what willcount as murder. The moral reformerwould hardly suggest we abandon therule against murder, though he mightrecommend specific alterations in whatshould count as, what we should call,murder. I shall call such pronouncementsas "Do not murder" and "Keep promises"moral maxims, and shall suggestthat the moral practice of a society is tobe understood largely as the manner inwhich members apply moral maxims.Whether or not what we apply be maxims,the idea of application remains central.Baier observed that moral rules requireprinciples of differentiation andpriority and ways of determining exemptionsand exceptions. These wouldseem to me to count as principles of applicationfor moral rules. Now, one isapt, as he looks at these rules of application,to come more and more to see themas the moral rules, which even Baierseems to suggest could be the case (op.cit., pp. 132 f.).Of course, all rules which are used areapplied. But rules such as those for arithmeticcan be distinguished from and consideredapart from the rule or manner oftheir application. But other rules seem tobe nothing more than rules of application-rules of language and (as I suggest)rules of morality. However, this way ofputting it is a puzzling and misleadingresult of a too narrow devotion to thedoctrine of rules, which impels us towonder what it is we apply. We mightless misleadingly say that moral rules arerules in application. Being rules of behavior,they cannot be severed as a calculusfrom the behavior they govern.This is the last (not uniquely) distinguishingfeature of moral rules I want toremark-that they inevitably demandcollateral rules of application, or are bestregarded as rules in application. Whicheverway we put it, the manner and conditionsof "application" are heterogeneousin the extreme, not subject to simple andspecific advance summing up. And tospeak of rules at all is likely, in Hart'sphrase, to impose a "spurious unity."IIIAs stated, I shall call principles like"It is wrong to murder," or "One oughtThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

always to keep promises," moral maxims,and shall distinguish these sharplyfrom moral rules.I shall use "moral maxim" in a broaderand a narrower way. In the broader sensea maxim is a pronouncement serving toindicate what it is to be moral. Besidesexamples cited, maxims, in the broadsense, will include principles of impartiality,universality, and the like. Learningthe very language of "right" and"wrong" is conjugate with learning maxims.Functioning as they do, maximswant no moral justification, for they setthe boundaries of moral justification.They are, as we say, a priori; they are,broadly conceived, logical principles. Weestabish them by exhibiting in detailwhat morality is, i.e., in what manner weemploy what we all recognize to be thelanguage of morals."Maxim," in this broad sense, doesnot tie up a neat bundle, the principlessubsumed thereunder being multiform inthe extreme. Maxims may be used tomark purely formal relationships ("Whatis wrong is not right"); or more complicatedrelations between the concepts ofmorality (" 'Ought' implies 'Can' ";"One should be punished only when responsible");the relations of reason toaction ("Do what is right"); or the relevanceof reasoning in certain ways (principlesof impartiality); the rationale ofmorality (the principle of utility); thepoint of the language of morals (to bringone to act or to forbear); the point ofview of morality (the Categorical Imperativeand principles of equity).All of these have been construed andmisconstrued as moral rules. Like rules,they are often formulated in the languageof "right" and "wrong," "do" and"don't." But, found in maxims, thesewords do not tell us what is right andwrong, what we ought or ought not toMORAL RULES AND MORAL MAXIMS 275do; rather they signal relationships (forexample) between saying that somethingis right and saying we ought to do it.It is tempting and common enough tojustify one's awareness of maxims by anappeal to "intuition," and to docket theinformation thus garnered as synthetic apriori. These principles are, so it has beensaid, the moral ultimates, so fundamentalas to elude justification; they arewhat we cannot help but recognize inmorality; yet they say something, andare clearly not analytic. These moves allhave their point, but are still misleadingjust because they tend to misplace statementsabout morals as moral statements.There is no call to do this once we clearlysee that the concept of morality is lacedup out of many strands-reason, action,choice, desert, and the like-and it iseasy enough to get the criss-crossingswrong; to talk falsely as well as trulyabout morality. But this is still quite anotherthing than talking truly or falselyabout the rightness of particular acts, orclasses of particular acts. Within moralitymaxims function as formulas-logicalprinciples-pointing the relevance of certainconsiderations. As statements, theyalways apply to moral discourse, tomorality. There is no need to confusethese roles, to misplace maxims as deliverancesof intuition and to appeal tosynthetic a priori knowledge, if only wedo remain clear on this difference betweenmoral statements and moral formulasand recognize how we alter ourposition by converting formulas intostatements. In no case are maxims ultimatemoral axioms from which all othermoral rules may be drawn.What interests me most in this paperare maxims in a narrower sense, principlessuch as "Keep promises," whichallude to a fairly specific mode of action.It will be obvious that I have these pri-This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

276 ETHICSmarily in mind when speaking of "maxims."These really are maxims, whosechief function is to delimit an area of humanbehavior as susceptible to moralappraisal and regulation. Working in thisway, they do not prescribe or proscribeparticular actions in particular circumstances,as do moral rules. There can beno moral questions whether we ought orought not to murder, as there can be agenuine and difficult moral question overwhether this or that is a case of murder.The heart of the maxim is what Nowell-Smith calls a "gerundive word." Thesewords are designed to place instances ofa specifiable kind of behavior as morallydesirable or undesirable. The maxim,then, simply reiterates, but with somedirection: we ought (or ought not) to dothose actions of this kind which we oughttor ought not) to do.While they do not prescribe or proscribeaction, maxims do play a role inmoral discourse, serving as formulas delimitingmoral questions. For the moment,it makes little difference whetherwe are deciding upon, appraising, or simplyclassifying actions as morally right orwrong. Indeed, we might better see howmaxims fit into moral discourse by noticinghow they might be employed by acultural spectator.How is it that an anthropologistknows what to investigate when he setsout to learn something of the moral customsof a tribe? How does he formulatehis results? After all, he turns up suchenormous differences.Perhaps he asks himself such questionsas, "What counts as murder here?"; thatis, what kinds of killing are subject tomoral disapproval? Or he might inquirewhat customs regulate sexual behavior,and will then tell us that such and suchpractices are accounted promiscuous.This shows how maxims may figure in theformulation of questions and answers.The maxim says, "Do no immoral actionof a certain kind"; and the question is,"When is this kind of action immoral?"In principle, any mode of human behaviorwhich affects others living infairly close and continual proximity issubject to moral regulation. The modesof behavior generally subject to moralregulation, thus earning an interculturalmaxim, will perhaps depend upon man's"nature" as a consuming, competing, socializingcreature, with a long childhood.I suspect that these "facts" are inextricablybuilt into our conceptions of"man" and "society." For instance, it ishard to think what a human society withoutlanguage could be and, man and languagebeing what they are, hard to imaginea society without some idea of thedeceitful use of language. However thatmay be, whatever the "natural foundationof morality," certain areas of humanbehavior will invariably be subject tomoral regulation, and these may bepointed by maxims.It is important, of course, that maximsusually work in one direction only. Thus,it is wrong to murder and right to keeppromises. Maxims allude to actionswhich human beings do have some tendencyto do or not to do, with results normallyunfortunate or unpleasant toothers. Killing, damaging, or failing tokeep a promise to another would generallybe regarded as unfortunate by him;facts, I think, also built into our conceptsof "kill," "damage," "promise."Anthropologists' discoveries are occasionallysurprising for showing that in acertain society a certain kind of behavioris or is not subject to moral regulation.We cannot expect that all our maximswill apply in all societies. It is barely conceivable,for instance, that certain groupsare without the institution of promise-This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

making. The maxim "keep promises"would mean nothing to them. But weshould certainly expect that whereverpromises are made, they ought to be kept-that is a logical, a necessary factthoughwhat will count as not keeping apromise will vary. Maxims, and not thepractice, are universal and transcultural,only because maxims reiterate, in a localizedway, that what is wrong is wrong.The role of maxims in the hands ofmoral agents and appraisers is similar totheir role in the hands of a cultural spectator,but at once simpler and more interesting.Simpler, because the agent or appraiseroperates within a society andneed not bother with whether a maximdoes or does not apply. More interesting,because maxims will, for agent and appraiser,enter into the very teaching ofthe difference between right and wrongand a mastery of those concepts, into theexplicit deciding and appraising of action,and also will play roles in modifyingcurrent moral practice.Let us consider schematically howthese different tasks are discharged.Suppose we must decide upon or evaluatea line of action clearly involving amoral issue. It would be natural to formulatethe conclusion in terms of whetheror not the act would, say, involve unnecessarysuffering. Or, perhaps it is amatter of resolving a conflict, and thiswill often take the form of adjudicatingthe claims of maxims which in the caseat issue happen to compete; we mightsay that an act was not really theft, forthe agent was bound by loyalty to carrythrough with the deed.We use maxims to draw an agent's attentionto the fact that his contemplatedaction does involve moral issues, towhich he is either oblivious or callous.We might say, "But that would be dishonest,"which a moment's reflectionMORAL RULES AND MORAL MAXIMS 277shows it to be, and we thereby impressupon him that something more than aprofit is at issue, and perhaps we mightsucceed in persuading him to the side ofvirtue.Serious moral reformers often frametheir proposals within the rubrics offamiliar maxims. They might, for instance,say that capital punishment ismurder; or that euthanasia is not murderbut the relief of unnecessary pain. Moralpractices are altered by a progressivemodification of what is deemed murder,adultery, etc., i.e., as what counts as immoralkilling, sexual practice, or the like.As we shall later see, this progress willgenerally be by way of a series of precedentspointing what is to be regarded asmorally right or wrong.4Consider how we might teach a childthe difference between right and wrong,and what kind of difference this is. Witha disapproving tone of voice, attendedperhaps with a slap on the bottom, wetell the child that it is wrong to take whatis not his, at the same time saying that heshould not steal; and we add reason toour remarks by asking him how he wouldfeel if someone took his toys.This is only a possible example, but itdoes illustrate how complicated are eventhe rudiments of moral discourse. Thechild is, on one and the same occasion,frustrated in his desire to do somethingwhich is seen to arouse the disapproval ofhis tutor, and instructed in what generalconsiderations lie behind this disapproval.Moreover, so that the child should recognizedisapproval for what it is, it wouldordinarily be required that he should atsome time have felt its weight as directbodily punishment and frustrated action.The same elements will be found and recognizedin other lessons, and he soongains some skill in responding to andoperating with the essential factors ofThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

278 ETHICSwhat we should call moral situations.Thus we might inculcate morality. WhatI would most emphasize here is that wedo so by prescribing or proscribing particularactions which are there and thenbrought under a maxim. In this way weestablish precedents or paradigms, andprovide machinery for relating subsequentcases to these precedents and forestablishing moral classifications of acts.We at once give the fabric and the formof the rule. To summarize: At one and thesame time we teach the child that certainacts are right or wrong (in our society),give him a way of saying how they arewrong, and impart the general idea ofmorality-of disapproval, "other-direction,"and general welfare. It is hardto see how it could be simpler and stillsuccessful.If these schematic remarks about howwe use maxims to decide upon, describe,appraise, and inculcate moral practicesare correct, then we have a general wayof characterizing what we mean by amoral rule or practice: A moral rule issome particular group's application of amaxim. That is, a rule is a way of placingparticular acts as murder, thievery, adultery,deceit, indecency, and the like. Ifthis is all we mean by a rule, then theconcept does indeed have an importantplace in moral philosophy.IVThe manner in which we actually applymoral maxims has been left vague,for the details are difficult to fill in. Theapplication of moral maxims by agentsand appraisers is, I think, little less thanthe major part of the subject of goodmoral reasons. I shall now make a fewsmall and tentative remarks on thisquestion.Excluding the cultural spectator, it isindividuals who apply moral maxims,but only within a community and tradi-tion. And it is only by appeal to generalpractice and/or prevailing opinion thatan individual is able to decide whetheror not the application is warranted.How does one determine general practiceand prevailing opinion? Occasionally,but only occasionally, it is possible toformulate and cite a general rule ("It isindecent for women to wear trousers").When that is possible, we may reasonfrom the general rule to the particularcase, perhaps arguing by the way thatthe general rule does apply. But usuallywe do not reason from a general rule progressivelynarrowed down. Rather, wehave a presumptive case of right orwrong action which is progressively challengedand defended on the grounds ofits similarity or dissimilarity to othercases about which no moral question canarise. There must be such unquestionablecases if the disputants have even a modicumof morality in common-if there isto be anything at all common in theirapplication of moral terms.Even in this, the more common case ofreasoning from particular to particular,we may speak of moral rules, if we wish,not as principles of reason, but more ascompendious summaries of practice susceptibleto discriminations of right andwrong. The rule is, in a sense, our willingnessto cite and accept certain examplesas precedents. To speak of the rule withoutspecifying it implies that the issuecan be decided reasonably, and that certainkinds of cases illustrate the practiceand (perhaps more important) that certainothers do not. But the cases are particularcases, and cannot be delimited inadvance without unduly hamstringingright reason by imposing upon it an artificialunity. The rule is usually not anelement of the moral situation, but somethingwhose exemplifications are piecedtogether out of the elements.Yet how can we recognize relevantThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

precedents without the guidance of arule?Recall how we might have taught achild the language of "right" and"wrong." We prescribe or proscribe particularacts, at the same time filling in themoral surroundings and subsuming theactions under maxims. The particularacts proscribed or prescribed are, for thechild, ultimate precedents; his paradigms.5Of course, in order to do that, wemust be sure that the act is a clear case,else we deceive. But for the child theseultimate precedents are, at least for atime, unquestionable; to question themin isolation, having nothing to put in theirplace, would be to question the very possibilityof morality, to undercut the languageof "right" and "wrong."Paradigm cases are not enough. Weneed to establish new precedents. But todo that, even to utilize the paradigms, wemust be ready to recognize that new actsare or are not similar in morally relevantways to previous precedents. Moral reasonwill find at this task its full and properexercise. We reason by bringing newcases under maxims, by demarcatingrelevant similarities to well-establishedprecedents, which are moral precedents.Before seeing how that is done it iswell to note that once we have establishedparadigm cases, it becomes progressivelyeasier to establish new precedentsand re-establish old ones, by surroundingnew acts with moral accessories:We show, notice, or imagine disapproval;we point out the effect on theagent if others were to do the same, etc.In this way we bring ever more areas ofhuman behavior under the aegis of morality,and there are no limits to thisprocess till conflicts begin to emerge, conflictswhose very existence marks ourability to recognize relevant similarities.It is a queer thing that we can reasonfrom a precedent. For this is to reasonMORAL RULES AND MORAL MAXIMS 279from one particular to another, perhaps,as we have seen, unguided by any generalprinciple. Yet we do it-in law, in history,and in morals. Both Hart andLucas have, in their own different ways,schematized this mode of reasoning. Ishall begin by giving little more than asummary of what I take to be theirviews-in fact keeping my best eye onLucas, whose account bears more directlyon moral, in contrast to legal, reasoning.One might contend that such and suchan act ought or ought not to be done; another(or one's self) takes exception tothis opinion on the ground that in comparablecircumstances we should nothave said that a certain other comparableact ought or ought not to have beendone. He cites a contrary precedent. Thefirst party might accept the argument, orhe might counter it by showing that thecircumstances in the two cases are, infact, relevantly and materially dissimilar.The discussion might continue thisway through any number of stages, perhapsterminating in agreement, fundamentaldisagreement, or indecision. Observenow: The argument does not proceedby the first party's citing a principlefrom which he draws his opinion as itbears on the case in hand, the secondparty's then challenging the rule on thebasis of other cases which are unquestionablyright and wrong and which appearto count as exceptions to the rule.Rather: The second party argues byciting an accepted opinion about otheracts which appear to be similar to theone in hand, while the first party rebutsthe cogency of the example by showingthat the two acts differ in some importantand relevant way. In terms of Lucas'topological analogy: We have an "openset" of responses correlated with an"open set" of situations, such that if theThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

280 ETHICSresponses are sufficiently close, so too willbe the situations. It does not necessarilyhold that, if the situations are sufficientlyclose, then the responses will be the samethis latter condition marking caseswhere we can argue from some generalrule.There may in fact be in evidence nogeneral rules, narrowing down a set ofnecessary and sufficient conditions intocriteria of closeness for situations, fromwhich, at last, the verdict can be directlydrawn. But the argument may neverthelessremain reasonable and agreementeventually be reached.Now, that agreement might be reacheddepends upon each party's being able andwilling to recognize certain precedentsnot themselves subject to moral doubt,and to recognize such and such situationsas relevantly dissimilar in such and suchrespects. These conditions may be meteven though it may be impossible in principleto sum up in advance all conceivableprecedents and relevant dissimilarities.Two important questions remain.First, why does the argument start whereit does? Why is it reasonable for the firstparty to suggest that such and such oughtor ought not to be done and reasonablefor the second party to take the troubleto reply? In another way: How does theargument begin, for the first party citesno precedents? The answer to this questionties up with the fact that the burdenof proof is unequally disposed.Second, how in fact would we arguethat two situations are relevantly dissimilar?-forsuch would sometimes needto be done.Lucas observes that in the kind of argumentschematized the burden of proofis at every step on the first party, whomust demonstrate a relevant dissimilarity.But in quite another sense the burdenof proof (or disproof) is on the second party'sside. He is faced with advice or acharge which he wishes to dismiss. Forthe situation to be in the slightest bitcogent, the advice or charge must havea certain prima facie reasonableness; argument,otherwise, is a mere exercise.Granting that there must be an originalposition, why does it favor the one partyrather than the other; why does the argumentgo in this direction rather thanthat one?The situation is seen most clearly incases at law. The facts once determined,and the case remaining intact, the onusin both senses is on the side of the defendant.In the first place, the case remainsintact until specific exculpating ormitigating considerations are turned up;and it is these which must be proved. Inthe second place, the charge is against thedefendant whose actions are underreview.The difference from the moral case is,first, that the defendant is no longer in aposition to decide upon the act he did.The law is purely appraisive so far as theact under review is concerned, and thatis not so in morals. Second, this act mustbe an alleged delinquency, conformity tolaw being the normal case. What is atquestion is the alleged wrongness of theact. But in morals we must decide andappraise on both directions, not onlywhether acts are wrong, but whetherthey are right.6In any case, what disposes the onus, inthe second sense, onto the defendant is"the facts once determined." It is establishedthat he really killed her, and itonly remains to see whether there wereexculpating or mitigating considerations-whether he did it by accident, forexample.Something comparable is found inmoral argument. That we start where weThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

do, that the prima facie onus lies on thesecond party, is to be traced to the factthat the act done or contemplated wouldbe of a kind clearly subject to moral regulation.The act might, e.g., clearly involvethe infliction of pain, or be whatwould cause one to keep a promise. Onemight put the case by reciting or implicitlyappealing to a maxim: "It would be acruel thing to do," "You oughtn't breakyour promise to Henry," etc. We sawthat maxims, while truistic, still do serveto focus attention on a certain kind ofbehavior-inflicting pain, doing as promised,etc. It is just having an act of oneof these kinds in hand which is requiredto get the argument started. That is, webegin by considering an act of a kindwhich it is the general tendency of moralityto abet or frustrate. The maximplants the first fact out of which the argumentwill grow and sets the originalboundaries of relevance, a matter at onceso ephemeral and important.It is rather as in football. A man scoresfor his team if he carries the ball acrossthe goal-that is a logical fact aboutfootball. If we see the man run across thegoal, we assume he has scored, unless wehave positive and specific reason to thinkhe did not, e.g., a man on his team beingoff-side. The argument whether or not hescored will begin with the suppositionthat he did-after all, he did run acrossthe goal with the ball.It is only necessary to note that inmoral argument a prima facie case mightlie on either or both sides, two maximsmay apply. Thus, we may be faced witha choice between inflicting pain and sayingwhat we know to be false.Coming now to the second question,how it is we can argue that two situationsare relevantly dissimilar. The disputantsmay, of course, fail to agree; but also theymay come to agree, and in a rationalMORAL RULES AND MORAL MAXIMS 281way. That they should so agree presumes,of course, that their habits of reasoningand sentiments of disapprovalwere tutored in common community.But since it is the reasoning which ishabitual, it makes sense to inquire inwhat manner the reasoning proceeds.Here we discover a near-reduplication ofthe argument as previously schematized.We shall also discover that maxims, inboth wider and narrower senses, serve tokeep the argument in its course.We just saw that the argument takesits departure from acts whose possiblemoral importance is pointed by amaxim. Such an act is under scrutiny andgenerally, though not inevitably, onlyacts of the same kind can be immediatelyregarded as relevantly similar. We shallbe concerned, say, with cases of the inflictionof pain, whether or not unnecessaryinfliction of pain to be determined.A further step in sounding out themorality of the matter might be to considerwhether this act would or wouldnot be disapproved by most people, or bysuch and such people. "Disapproval" is,we saw, essential to the concept ofmorality.But, most likely, we should begin topoint out differences in the offices andcapacities of the agents (but he was a diplomat,a moron, left-handed); the generaleffects of the acts; the possible furthereffects on moral practices. We should, inshort, argue for dissimilarity by appealingto further maxims, thus importingideas such as "welfare,""impartiality,""universality," and the like, garnishingthe reasoning with a generous sprinklingof words like "involuntary" and epithetsof virtue and vice. We should, that is,be doing just what we were doing before,arguing within the rubrics of morality.What precisely will figure in the argumentwill depend upon ever so manyThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

282 ETHICSdifferent facts: On the state of our knowledge,on our present ability to modify certainmodes of behavior, on changingpractices, etc.It is pretty clear now that we justmust admit the perpetual possibility ofrevision and indecision, in principle, forsome cases, otherwise unspecified. Butwe cannot do that without admitting thepossibility of finality and decision, infact, in other cases. For the whole proceduredepends upon the reiterated establishmentof new precedents.This discussion bears on the questionwhether pronouncements to the effectthat such and such would be right orwrong, uttered as conclusions of argumentswithin contexts of decision andappraisal, are properly construed astrue-or-false statements. There can be nodoubt that we make the decision or appraisalon a factual basis and that theconclusion can be objectively right orwrong. There would, therefore, appear tobe scope for stating that the decision orappraisal is objectively right or wrong.But now we are talking about the decisionor appraisal made at a particulartime in particular circumstances, and notthe act itself, which is in principle subjectto reappraisal. Moreover, it does seem abit suspicious to docket as true-or-falsestatements pronouncements that acts aremorally right or wrong. The reason forthis appears, I think, by once more contrastingthe moral and legal cases.Legal decisions are made on the basisof facts and afterward we may statetruly or falsely that the decision was correct.But also, on the basis of the decision,we may state that the man wasguilty, i.e., declared guilty. We cannot dothat in moral cases, for precisely what welack is the necessary formal apparatusoperated by authorities whose actionbrings proceedings to a close.Here again the doctrine of rules, pro-viding a general formulation of the truthconditionsfor statements that acts areright or wrong, distorts by imposing anunwanted precision and formality.Let us now see how natural are someof those peculiarities of moral reasoningwhich were so badly accommodated bythe doctrine of rules.First, it is now no mystery that moralpractices generally escape capture as explicitlystated rules. We see that rulesare often not even wanted, the reasoningproceeding from particular case to particularcase, guided by maxims.Since almost everyone must be taughtto distinguish right from wrong, andsince each one is taught by others, theabsence of special moral competence andauthority is no surprise. Since there areno experts, there is little room for specificmoral promulgation and enforcement.Therefore there is little room for specificsanctions, although the concept of disapprovalis cardinal.Moreover, since we argue from precedentto precedent along a truistic line ofmaxims, there is room to move in all directions,by creating new precedents andby extending old ones to bear on manyareas of human behavior. Thus, havingonce been given an example of beinghonest, we may later see what it is to behonest in business, in play, in discourse,etc.Also, since the maxim of universalityis fundamental to the idea of moralityand since the same maxim is the normalpath leading from precedents involvingone person to precedents involvingothers, it is natural that we should conceiveof moral practice as governing behaviortoward an unlimited number ofpeople, relevant dissimilarities apart.Most important of all, it is now possibleto see how natural it is for moralpractices to change. In the first place, differentfactors may at different times ruleThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

out the relevance of particular precedents.In the second place, as we movefrom one precedent to another, we buildon the new and discard the old by noticingmore and more relevant dissimilarities;but we never cut all the groundaway. In most societies it is essential thatmoral practices be flexible in this way,once again showing why specific sanctionsare unwanted, being replaced by aflexible disapproval.Also, there is no logical difficulty overconflicts. First, different precedents maybear on the same case. Second, the sameact may involve behavior susceptible tomoral regulation in conflicting ways, aspointed by the citation of maxims. Butconflict is not inconsistency, but an occasionfor careful thought. We must decidewhich maxim does apply and how; whichis to decide which precedent can mostreasonably be appealed to.Finally, I would remark, the distinctionbetween judge and legislator, as appliedto moral problems, is a tenuousone. Since any decision made on the basisof precedents might create new precedents,an easy distinction between enact-ment and compliance is impossible. Sinceeveryone must decide for himself, and indoing so might thereby create new precedents,anyone might, as judge, be legislator.There is no formal division ofpower, nor can there be. Ultimately theanalogy, though occasionally useful,must break down.VMorality is not alone in demandingtechniques of reasoning of an essentiallyunsystematizable sort. Law, we haveseen, is closely similar; so too is much ofphilosophy, history, and classical politicaland sociological analysis. So too islanguage.In order to allay hardheaded disdainfor moral reasoning or suspicions that itMORAL RULES AND MORAL MAXIMS 283cannot really be as I say, it would be wellto indicate briefly the parallels betweenmoral practices and linguistic usage.They are, so to speak, mutually supportingphilosophical precedents.It is useful in both cases to speak ofrules, so long as we do not allow tacit preconceptionsabout "rule" to get the betterof us. Useful, because in both casesthe language of "right" and "wrong" isappropriate. But we are, in both cases,tempted to suppose that these rules mustbe open to advance formulation, yieldinga calculus of morality or a logical calculus,as the case may be. We are likely tothink that unless these rules do yield acalculus, we really have no rules at all,only sociological generalizations (aboutrules, of course!). Or, in the absence ofsuch rules, it is supposed that we lackreasonable procedures. In both cases weare sometimes inclined to impose rules ofa kind more to our liking, or feeling theseunreal, but still demanding rules, fall intotraps of private languages or privatemoralities. Or perhaps we surrender entirelyto the charms of anthropology and"pragmatics." And there are, I suppose,other equally unhandy escapes from anunnecessary dilemma.Now we can, in morals and language,sometimes find rules of the required stringency.But such rules are the exception.Yet still, in neither morals nor languageis it ever the case that "anything goes."In language we have words used onmore and less standard occasions in moreand less standard sentence contexts; inmorals we have more and less fixed procedures.In language we discover new occasionsfor using words in ever new sentencecontexts; in morals we devise newways of utilizing precedents. We are ableto do this in language because of ourfamiliarity with general grammar andour ability to discern similarities betweendifferent uses of the same word; in moralsThis content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

284 ETHICSwe can do it because of our increasingskill in arguing from precedents and ourability to discern similarities betweensituations. In both cases we must do it ifwe wish, in the one case, to understandand express ourselves so others will understand,and, in the other, so that wemay get along with others. In language webuild new uses on the foundation of pastones through metaphorical extension andthe like-but not all words can be metaphoricallyenlarged in all ways; in moralswe establish new precedents on the basisof old ones, but we cannot do this arbitrarily;in neither case can we set downin advance the boundaries of growth anddevelopment. Language and morals bothgrow to cover new areas of human experience,leaving a small deposit of outmodedtheory and practice spotted by a (surprisingly)few archaic words and discardedprecedents. Finally, the successful use oflanguage is conditional upon various factors;and so too is successful moral reasoning.For instance, grammatical incongruityis comparable to citing irrelevantprecedents. But more interesting: Thesuccessful use of language is contingentupon such things as the existence of objectsfor referring expressions and thepossibility of moral reasoning is contingentupon comparable factors-theremust be a moral issue in hand, etc. However,in neither case can we give antecedentlya complete catalogue of all thosefactors which might figure. That is, wecannot specify in advance all that is requiredto make a use of language successfulor a moral appraisal apt and correct.1. The ideas of this paper arose in large part outof discussions with Professor L. Linsky having todo, in particular, with the question of what makes arule a moral rule. It was much influenced by K.Baier, "The Moral Point of View" (Austr. Jr. ofPhilos., August, 1954), H. L. A. Hart, "The Ascrip-NOTESIn Hart's terms, "successful use of language"and "right" (and "wrong"), inmoral usage, are "defeasible concepts."What we show is that this is not a successfuluse of language, or that the actwas or would not have been right (orwrong). That we should be able to reasonin this way depends upon our ability torecognize a prima facie case from whichthe reasoning may start. We have seenhow the possibility of ascertaining aprima facie case in morals depends uponthe act, done or contemplated, beingclassifiable into some pigeonhole such askilling, saying what is false, hurting,helping, doing or failing to do as promised;that is, just those modes of behaviorlocated by a moral maxim. In language,the determination of a prima facie case iscontingent upon meaningful words beingused in meaningful ways. That we mightbe able to recognize that such and suchwords are being meaningfully used, andthat we should later be able to establish-if necessary, by argument-to whatend they are here and now being used,hang ultimately on the fact that languages,however much they vary, mustbe adequate to the discharging of certaintasks, such as calling, stating, ordering,etc. Similarly, that there should be suchways of classifying human actions asmorally interesting hangs ultimately onthe fact that moralities, however muchthey vary, must be adequate to the regulationof certain kinds of behavior, suchas bringing physical damage and deathto one's fellows.UNIVERSITY OF ILLINOIStion of Responsibilities and Rights" (reprinted inLogic and Language, Vol. I, ed. Flew), and, especially,by J. R. Lucas, "The Lesbian Rule" (Philos.,Vol. XXX, No. 114).2. From now on, except where explicitly indicatedto the contrary, "right," "wrong," "ought,"This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions

MORAL RULES AND MORAL MAXIMS 285and such like terms are to be thought of as "morallyright," "ought morally," etc.3. To my knowledge, Baier (op. cit.) is the onlyphilosopher who has attacked this problem, andhe had done so in a most illuminating and helpfulway. However, it is easy to disagree with him onsome points, and his argument is indecisive onothers.4. Certain so-called philosophers, like Nietzsche,have proposed moral reform of an apparently moreradical kind. They seem to propose a morality ofrapacity and murder, thus rejecting certain maxims,but also overturning our entire conception of whatis right and wrong. If we may take their words atface value then, of course, they are doing just that,overturning our very conceptions of, what we meanby, morality. Their alternative is not an alternativemorality but some other way of regulating society,such as sheer force. However, I suspect that theydo not really mean what they say; they do notreally want to turn murder into rectitude, but only(perhaps) to alter what we call murder so as toenhance the opportunities of the brave (an oldfashionedmoral term, by the way). That they mayeffectively salt their proposals with rejected maximsonly verifies the unchallengeable, if mostly vacuous,status of the maxims.5. Baier also uses this Wittgensteinian word, butI think he intends something slightly different withit (op. cit., p. 126).6. Parallelism may be restored by recasting thelegal argument as one to determine whether or notsuch and such a precedent should be established,the defense arguing positively that it should, theprosecution negatively that it should not. But evenhere the decision rests with judge and juryapparatusnot available in moral argument.This content downloaded on Thu, 21 Feb 2013 11:18:02 AMAll use subject to JSTOR Terms and Conditions