Tuesday, November 12, 2019

Evening Note for Tuesday, November 12

Thought for the Evening: The Internal Moralities of Law and Medicine

In the 1950s and 60s, the philosopher of law, Lon Fuller, attempted to find a middle road between natural law theory and legal positivism, or at least find a version of either that committed one to much less than the usual forms, and his book, The Morality of Law (1964), became a significant influence in the field. Technically, what Fuller presents could be considered a natural law theory (and often is), but it is an extremely minimalist one that is missing standard components usually associated with natural law theories. A natural law theorist could easily incorporate it and a legal positivist generally would have more difficulty, but Fuller's theory does not appeal to a more fundamental law than positive law, nor does it root anything directly in reason or common good. Rather, it attempts to identify the intrinsic moral conditions of law, principles of legality, without which you can have no law at all.

Fuller proposed eight principles of legality. To work as a law at all, a law must be (1) sufficiently general, (2) promulgated, (3) applicable to the future rather than the past, (4) in a basic way intelligible, (5) coherent, (6) stable, (7) such that it can be obeyed, (8) applied in a way that can be determined from its meaning. Hart criticized this as not any sort of morality at all, since it all has to do with the appropriate of means to ends, but this criticism seems never to have been widely accepted and, indeed, seems to show a common problem with legal positivism, namely, that their view is often based on a very narrow understanding of how morality works, in this case assuming that efficacy of means to ends in matters of choices is not any kind of moral question. (It may, of course, be a relatively minor one, as we find in etiquette, but many questions of morality clearly are concerned with choosing appropriate means to ends in matters directly touching on choice.)

More interesting is Hart's claim that by the same standards you could have an 'internal morality' of poisoning, but contrary to what he claims, this is not absurd at all. We would have to be considering poisoning not as a solitary act, but as a kind of practice, but if you do, to talk about its internal morality is entirely comprehensible. Indeed, fantasy stories are filled with 'guilds of assassins' and people are endlessly fascinated by the deadly games of Renaissance courts for precisely this reason. If you are poisoning not in a random act but in a practice of poisoning, there are indeed principles of poisoning structuring it. We don't take poisoning itself to be moral, of course, because poisoning, even as a practice, is not standalone, but part of a larger system with its own internal morality, one with which poisoning tends to conflict. Now, this is true of positive law, as well, that it has a larger context, despite Fuller's attempt to work around that, but this doesn't affect the question of whether law has an internal morality, and in any case, a legal positivist is of all people the one who can least afford to make this criticism of Fuller.

The relative success of Fuller's account has led some to try to see if you could come up with an internal morality of medicine; the attempt to do this has, I think, been much more unevenly successful. Part of the problem is that sometimes philosophers of medicine just use 'internal morality' to mean 'morality based on the actual phenomena of medicine', which is a somewhat broader notion than we are dealing with here. More of the reason, I think, is that there is a sense in which calling Fuller's account an internal morality of law is in English misleading: it is not an internal morality of all legal actions but of a specific one, legislation. As legislation is the principal legal action, it affects everything else, but you could also have an internal morality of ruling on law, an internal morality of enforcing law, etc. And likewise, you would really not want to talk about the internal morality of medicine, if 'medicine' here is taken to cover everything we usually to take it to cover, but the internal morality of diagnosis, the internal morality of clinical treatment, the internal morality of prescription, etc. When philosophers and practitioners focus on these kinds of typical activities, they often get accounts of the internal morality of medicine that are more substantive and fruitful than when they stay at too general a level.

Since you can have internal moralities for for law and for medicine, one could on the same principles work them out for clerical ministry, education, and the like, although I don't know anyone who has actually done this explicitly. This all, in fact, closely relates to previous posts I have done on humanitarian traditions in general.

Previous Evening Notes on Humanitarian Traditions
- Humanitarian Traditions
- Prima Facie Duties and Humanitarian Traditions
- Humanitarian Traditions and Cliental Privilege
- Perversion in the Context of Humanitarian Traditions

Various Links of Interest

* Craig Stern, A Mistake of Natural Law: Sir William Blackstone and the Anglican Way (PDF)

* Oscar Schwartz discusses Leibniz and Llull

* Marnie Hughes-Warrington, Wonder Works

* Thomas Moynihan, Enlightenment and the Discovery of Human Extinction

* David Chapman, The probability of green cheese. The subject reminds me to some extent of St. Olaf's Miraculous Thirteen.

* Liam Kofi Bright on intellectual humility.

* Bright has another post on Peter Boghossian and the correspondence theory of truth that is interesting, but I think fails completely in its intended argument; much of the post reads like Bright needs to go back and re-read Fumerton (Realism and the Correspondence Theory of Truth). While positions like it have fallen out of general favor in recent years, and Boghossian tends toward blunt and un-nuanced formulations, Boghossian's understanding of the correspondence theory is not (pace Bright) 'idiosyncratic', and such views are not uncommon (although probably not common enough to be counted as 'typical') among correspondence theorists, and never have been. The discussion of what Bright finds appealing in deflationary theories, though, is quite interesting.

* SFAudio's Public Domain PDF page for science fiction works in the public domain

* Marilynn Johnson, Must We Mean What We Wear? (I meant to put this link in the last set of links)

Currently Reading

Charlotte Yonge, The Heir of Redclyffe
Kevin Flannery, Cooperation with Evil
John Henry Newman, Discourses to Mixed Congregations
Michael Trapp, Philosophy in the Roman Empire

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