Recent discussions with Peter Lupu and others on God and evil led us to moral theory. I have set forth some of my moral definitions, principles, and presuppositions elsewhere. Here are three further moral principles. Peter can tell me whether or not he agrees with them.
On my view morality and legality are both 'notionally distinct' and 'extensionally distinct.' Thus I maintain both that the concept of a morally qualified action is distinct from the concept of a legally qualified action, and that there are instances of each concept that are not instances of the other. If the following three principles are defensible, then the notional and extensional distinction between morality and legality is defensible.
P1. Not everything morally impermissible should be legally impermissible.
P2. Not everything morally obligatory should be legally obligatory.
P3. Not everything morally permissible should be legally permissible.
Ad (P1). This could be put idiomatically by saying that not everything morally wrong should be illegal. I hope you will agree with me that drinking oneself into a stupor is morally wrong. It's a Friday night, you are alone, you stay in your house the entire time, but you down a quart of whiskey. I hope you will agree with me that this is morally wrong. (I could give an argument, but it belongs in a separate post.) Though morally wrong, such behavior should not be illegal. If you don't like my example, you are invited to concoct one of your liking that makes the same point.
Why should not everything morally wrong be illegal? The positive law is made by human beings and enforced by state power. But it is notorious that power tends to corrupt its possessors, and this is especially clear in the case of the agents of the state. (Ever have a run-in with a cop, a sheriff, an IRS agent who overstepped the bounds of his legitimate authority?) Given the egregious violations of individual liberty including mass murder that state agents have been known to commit, reasonable people support limited government. One way to limit government is to restrict its sanctions to behavior that impinges upon public welfare. Thus there need to be laws against drunk driving. But laws against private drunkenness (as in my example above) tend to give too much power to the state, besides being unenforceable. Laws that are unenforced, however, tend to breed disrespect for law. Laws should be few in number, rational in content, and enforced with credible sanctions. So not everything morally wrong should be illegal.
Ad (P2). If you morally must do (ought to do, are obligated to do, have a duty to do) X, should the positive law require it of you? I answer in the negative. Consider the philosophical/religious duty to worship no such 'false gods' as money, power, sexual pleasure, Lady Luck, but to worship or devote yourself only to worthy objects such as God, truth, justice, benevolence, and the like. I would argue that it is morally impermissible to worship any such thing as money, sex, etc. and morally obligatory to apportion your highest concern only to worthy objects such as truth and justice. But these views of mine, thought rationally defensible, can be opposed with a show of rationality by sincere people. A hedonist might sincerely and thoughtfully maintain that pleasure alone is the good and that there can be no grounded distinctions among pleasures, and that therefore the pursuit of sexual pleasure among consenting adults is a perfectly legitimate and morally permissible object of pursuit. I would consider it better if people devoted themselves to truth over sexual pleasure, but the abuses that would result from using state power to enforce that view of mine would be worse than the positive outcomes would be good.
For a second example, consider the moral obligation to maintain one's physical health by the usual measures including good diet and vigorous exercise. If you value individual liberty and understand what I wrote above, you will not want laws that mandate these measures. (By the way, this is why 'universal health care,' i.e., government conrol of the delivery of health services ought to be opposed: a government that controls health care will be in a position to demand 'apropriate' behaviors from people including not engaging in activities deemed risky.)
Ad (P3). If an act is morally permissible, should it also be legally permissible? No. Surely there are circumstances in which running a red light is morally permissible. Suppose at three in the morning you slowly and cautiously coast through a red light at a deserted intersection in the proverbial 'middle of nowhere.' Surely that is morally permissible. Yet it ought not be legally allowed: a well-crafted law cannot have a clause that reads, "A motorist shall not run a red light except when it is safe to do so."
For a second example consider that is it morally permissible for some 15 year olds to drive. But it ought not be legally permissible for 15 year olds to drive. The same goes for voting. There are 15 year olds more mature than some 50 year olds and more fit to cast a vote. Yet it ought not be legal for 15 year olds to vote. Finally, it seems obvious that some marijuana use by some people in some circumstances is morally permissible, but it scarcely follows that marijuana use ought to be legalized. What is harmless for some will be dangerous for many. Laws crafted for the common good cannot take into account individual differences.
I don't agree that Martial is making a haecceity claim. It is rather a quiddity claim. The quod quid est of Callistratus is to be a rich freedman, of Marcus, to be a poet of noble descent, famous in his lifetime. Moreover (addressing your second point, that each quiddity is unique), there is an unstated presumption that one quiddity beats another. So I don't fault Martial's logic, if we include the hidden premisses. Indeed, the final line does state the assumption: Callistratus is 'common', Martial is not - the bragging is not just about fame, but about gentle birth.
To your final point "fame is merely a fleeting, fickle image inside their heads." I disagree: fame is not a fleeting, fickle image inside people's heads. Or do you mean that fame is a social construct? I reply, so is wealth.
On the logical side, I do disagree with Martial's claim that any person can be wealthy. Would that were so. And it has struck me that there is an interesting distinction between 'every person can be wealthy' [it could be that for all x, x is wealthy] and 'any person can be wealthy' [for all x, x could be wealthy]. The first is prohibited by the laws of economics, the second by innate individual disposition.
Sum, fateor, semperque fui, Callistrate, pauper,
sed non obscurus nec male notus eques,
sed toto legor orbe frequens et dicitur "Hic est";
quodque cinis paucis, hoc mihi uita dedit.
At tua centenis incumbunt tecta columnis 5
et libertinas arca flagellat opes,
magnaque Niliacae seruit tibi gleba Syenes,
tondet et innumeros Gallica Parma greges.
Hoc ego tuque sumus: sed quod sum non potes esse;
tu quod es, e populo quilibet esse potest. 10
Also, both the rich and poets are famous, but their fame is not of the same nature. The rich man doesn't attain immortality the way the poet does; his name survives (perhaps) but his mind and character does not. Probably even his history doesn't. We still say "Rich as Croesus"--but who reads Herodotus and remembers who Croesus was or why his life was interesting? Whereas the Roman poets expected in some sense to survive in their fame:
parte tamen meliore mei super alta perennis
astra ferar, nomenque erit indelebile nostrum,
quaque patet domitis Romana potentia terris,
ore legar populi, perque omnia saecula fama,
siquid habent veri vatum praesagia, vivam.
Re: Martial, after Ceasar I was thinking of finally getting around to reading Livy in the original. Just this morning I was lamenting the loss of three-quarters of his work, which is blamed by scholars on the existence of a handy abridgment almost as old as the work itself. Martial owned it instead of the original, and said of it:
Pellibus exiguis artatur Livius ingens,
Quem mea non totum biblioteca capit.
"Thus translated by Professor Duff:
In vellum small huge Livy now is dressed;
My bookshelves could not hold him uncompressed."
1) I certainly agree with principles P1-P3.
2) More importantly, I agree with your statement that "morality and legality are both 'notionally distinct' and 'extensionally distinct'."
The later is fairly easy to demonstrate by examples. There are plenty of examples of L-prohibitions, obligations, and permissions ('L' stands for 'legal') that are not part of and should not be part of corresponding M-prohibitions, obligations, and permissions ('M' stands for 'moral'). The converse can also be illustrated by examples.
The former, notional distinctness, is more tricky because of the general difficulty with the individuation of concepts. But we can adopt a convenient trick and say that the notion of *morality* is to be consistent or follow from moral principles, and the same holds for the notion of *legality*. Since moral and legal principles differ, the notions differ.
3) I wish to point out, however, one issue with this view that raises certain questions. While we agree that morality and legality are both notionally and extensionally distinct, they both employ common *deontic concepts* such as 'is prohibited', 'is obligatory', 'is permissible', 'ought to' etc. Is the meaning of these concepts the same when they occur in an L-system compared to when they occur in an M-system?
Here is one of your examples:
In the American legal system it is L-prohibited to "slowly and cautiously coast through a red light at a deserted intersection in the proverbial 'middle of nowhere.'" at three in the morning. But, one might maintain, as you do, that doing so is surely M-permissible.
Here is a converse example: It is, in my opinion, M-prohibited to deceive oneself about important matters to ones well-being etc. However, doing so is L-permissible and should (?) be so.
Now other than the symbolic 'L' and 'M' that I prefixed to the deontic terms 'prohibited' and 'permissible', the role of both of these terms appears to be the same. It appears that they share the same meaning even though they express propositions that ex hypothesis belong to different systems. How are we going to explain this fact if we maintain that the moral and legal systems are notionally and extensionally distinct? After all, it is these deontic concepts that give both systems their unique role.
4) One might adopt a Wittgensteinian move and decree that there is a *family resemblance* between the legal and the moral systems. But what does that really mean? How does saying that the two systems feature a family resemblance help us explain our quandary other than being suggestive of something? The suggestiveness is already present once we notice that the two systems share these deontic concepts.
5) One might try a different track. Suppose one argues that the meaning of the deontic concepts is given by the axioms of deontic logic. Since both the legal and the moral systems employ these deontic concepts essentially, and with shared meaning, they both must satisfy the axioms of deontic logic. However, satisfying the axioms of deontic logic leaves plenty of room for them to differ both notionally and extensionally, as you desire.
6)While there may be something to the idea proposed in (5) above, I am not completely satisfied with it (let alone that I am not in the positions to verify whether a particular legal system satisfies the axioms of any deontic logic).
I think that there is something deeper that is missing here. I feel that there is a close relationship between the legal and the moral systems that is missed by the proposal in (5). In one direction, the legal system is certainly *inspired* in essential ways by the moral system. In the other, the legal system serves as the spearhead for the moral system. It deals with complicated problems a society must face and, thus, charts new territory and breaks new grounds to be explored by a moral system. The legal system is the pioneer that must and does enter territory not yet surveyed by the moral system and "feels out" the moral possibilities in this new grounds.
Both of these directions in which the relationship goes need to be further explored and I am sure many have done so.I am quite aware that the suggestions I made in this section are very imprecise. But it is the best I can offer at this time.
Thanks for raising these questions.
peter
Thanks for the rich comment. I see what you mean, but I will have to think about it.
Here is another puzzle. I agree that self-deception, though M-impermissible is and ought to be L-permissible. But now how are we to understand the 'ought' I just wrote? Is it M-obligatory that self-deception be L-permissible? I would say so. Maybe there is nothing puzzling about this after all.
I admit to not knowing much about phil of law, deontic logic or metaethics. Therefore I blog.
The 'ought' in question can be puzzling without necessarily being a puzzle. I suspect a direction for an answer may emerge from exploring the moral underpinning of the legal system.
peter
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4. Some undesirables: The skimmers, those who cannot read but only read-in. The sophists who, abusing argument, argue for the sake of argument. The ideologues, those who are out for power, not truth. The uncivil. The illogical. The politically correct. Worst of all, perhaps, are those who exemplify the anti-Socratic property: those who think they know what they don't know. If Socrates was famous for his learned ignorance, these types are marked by their ignorant unlearnededness.