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

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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
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