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Tuesday, May 19, 2020

Continuity in Morality and Law (by Re'em Segev)

Posted on behalf of Re'em Segev as part of the Legal Discontinuities Online Symposium:

Adam Kolber invites us to consider the following argument: (1) morality is usually continuous in the following sense: a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous (see, for example, here). This argument is motivated, for example, by claims such as these regarding the overall moral status of actions and agents: if a person who employs reasonable force in self-defense should not be punished at all, a person who uses defensive force that is just slightly more than what is proportional should not suffer a serious punishment; and if no compensation is required for harm that is the result of driving in a way that is reasonable, a driver that caused similar harm while driving in a way that is just slightly unreasonable should not be required to pay millions. In this post, I defend two claims regarding the first premise of this argument: (1) this premise is incompatible with the common view; (2) this common view is implausible. Thus, Kolber's argument is safe in this regard – but it is based on a minority view. (These claims are based on this paper.)

The first premise is incompatible with the common view that there is an important difference between actions that are right (obligatory or at least permissible) and actions that are wrong – even if this difference is due to a small difference in terms of underlying factors such as the consequences of these actions. For example, the standard version of (maximizing) consequentialism holds that the action whose overall consequences are the best is obligatory, whereas an action whose overall consequences are just slightly less good is wrong. And standard deontological theories claim that this is the case sometimes (when deontological constraints and permissions do not apply or are defeated). The common view takes this stark distinction between right and wrong actions very seriously. One example is the influential objection that he standard consequentialism is overly demanding in its insistence that only the action whose consequences are the best is permissible and all other actions are wrong. The extensive debate regarding this question demonstrates that the difference between actions that are permissible and actions that are wrong is commonly considered to be very important. If this view is correct, what seems like a small difference in the moral status of the actions in the self-defense and accident cases is in fact a momentous one: the difference between justified and wrongful defense or between reasonable and unreasonable risk. If this view is correct, very different legal outcomes in these examples are indeed called for and the first premise of the continuity argument is false.

However, my second claim is that this common view is indefensible and that scalar accounts of morality are more plausible. Consider, for example, the difference between standard consequentialism and scalar consequentialism. Both ranks states of affairs from the best to the worse. They differ regarding the deontic implications of this evaluation. Standard consequentialism adds that the best action is obligatory and every other action – including a very close second best – is wrong, while scalar consequentialism does not classify actions as obligatory, permissible, or wrong. (Satisfying consequentialism is similar in this respect to maximizing consequentialism, since it too distinguishes between right and wrong actions –merely in a different way: those that are good enough and that those that are not.) It seems to me that the scalar view is more plausible: it reflects all the morally significant facts, and only these facts, by ranking actions from the best to the worse while noting the degree to which each action is better or worse than every alternative, and accordingly the force of reasons for and against every alternative action, compared to all other possible actions. In contrast, the standard distinction between right and wrong actions assigns weight to facts that are insignificant or too much weight to trivial differences. Consider, first, the distinction between the best action and actions that are very similar to it in terms of all the underlying moral factors. For example, while scalar consequentialism grades the best action as perfect (A+, or 100%) and the second best action (whose consequences are just slightly less good) as almost perfect (A, or 98%, for instance), the standard view describes the latter action as wrong (F!) – although it is almost perfect in terms of all of the underlying factors. At the other end of the spectrum, standard consequentialism classifies all actions that are not the best together – as wrong – although are often huge differences between them: the second best option may be almost perfect whereas the worse option may be awful. Indeed, the latter difference –between the second best action and the worse action – is typically much more significant than the former difference – between the best action and the second best action. Since there are typically numerous alternative actions, and there are substantial differences between many of them, the scalar version evaluates common actions – which are typically far from both the best and the worse options – much more accurately than the standard version. Consider, for example, how much money should a certain well-off person give each month to the (most deserving) poor. Assume that giving US$1000 would have the best consequences, that giving US$990 would have consequences that are almost as good, and that giving nothing would have consequences that are very bad. The standard view considers giving US$1000 as obligatory and giving both US$990 and nothing as wrong.

One objection to the scalar view is that a moral theory should include not only evaluative components but also deontic components and specifically identify what should – and what should not – be done, and in this way provide guidance to people. This objection thus considers the best action as qualitatively and not only quantitatively different than the second best action, even if they are very close in terms of the value of the underlying factors, since the best action is the one that should be performed. At the other end of the spectrum, this objection insists that some actions should be classified as wrong, for example, torturing people for fun. However, it seems to me that the scalar view reflects all the morally significant information (and provides proper guidance) in these respects too. It says, first, which action is the best and accordingly which action there is most reason to do. It does not classify this action as obligatory but this classification adds no morally significant fact. The scalar view also notes, regarding each action, if it is better, or worse, relative to every other action, and by how much. Accordingly, it entails reasons for and against each action, compared to every alternative action, and points out the force of such reasons: the reason to prefer one action over an alternative one may be (much or just slightly) stronger, or weaker, than the reason to prefer the former action to a third alternative action, for example. In contrast, the standard version adds propositions that are either redundant or mistaken, depending on how terms such as "right" and "wrong" are understood. Classifying actions based on such terms, in a way that goes beyond the information provided by the scalar view, is not only redundant but also arbitrary and misleading, since it implies that such information does exist.

A final clarification: the above controversy concerns the theoretical question of what is the accurate way of depicting the relevant part of morality – and not the practical question of what is the most useful or natural way of talking. It may well be more useful sometimes to use terms such as “duty” and “wrong” – for example, when this convinces people (who are not perfect) to act in better ways. But this is irrelevant to the present discussion. (Therefore, to the extent that the above objection is concerned with guidance in this practical sense, it is irrelevant.) Similarly, it may simply be more natural to depict certain actions as, simply, right or wrong (rather than, for example, the best or very bad), especially since often only a few options are salient (most options are not considered seriously or even noticed) and it is sometimes clear that one of the salient options is much better, or worse, than the others. In such cases, it may be less cumbersome to describe the relevant actions as "obligatory" or "wrong", rather than as better and worse, to various degrees, compared to all other alternatives. But this does too does not affect the conclusion that the latter option is the more accurate one (considering, for example, the fact that with regard to most actions that are naturally described as wrong, there are even worse alternative actions).

This post is adapted from a draft paper, Continuity in Morality and Law, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 19, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink


Perhaps the scalar view acknowledges the difference, but it claims that there is no importance to that difference. I think that the fact that an action is the best, that you cannot do better, makes it special and important by definition (especially when we discuss the agent - the person that performed the action - and his or her state).
However, I understand that the scalar view simply disagrees with me on that.

Posted by: Gaia | May 20, 2020 3:23:52 PM

Thank you for the comments!

Adam: I think that it is important to emphasize that the usefulness considerations do not support the standard view, because both this view and the scalar views are concerned with the theoretical question of what is the accurate way of describing the relevant part of morality. Therefore, the scalar view is compatible with using terms such as "right" and "wrong" if (when) this is useful. Indeed, I think that everyone can and should agree that there is a (pro tanto) reason to use these terms when this brings about good consequences on balance. I guess that is what you had in mind when you wrote that usefulness considerations support only the appearance of the standard view, but I think that it is important to bear that in mind because some of the intuitive appeal of the standard view may be due to these considerations.

Gaia: your objection is indeed the most important one, I think. (The analogous objection about the other end of the spectrum – that there is an important difference (that the scalar view does not reflect properly) between the worst action and "second worst" action – is less compelling, it seems to me.) Let's see if we can narrow the scope of the controversy. In one respect, the scalar view does recognize the difference between the best action and the second best action: only the former is the best after all. So the crux of the controversy seems to be whether the difference between the best action and the second best action (100 vs 99 for example) is more significant than the difference between the second best action and the third best action (99 vs 98) – assuming of course that all else is equal, including the degree to which each action is better than the next in line. Perhaps we can narrow the question even further: the scalar view acknowledges that there is a sense in which there is such a difference – only the best action is what there is most reason to do. Therefore, if by "what we should do", and "what we should not do", we mean just what there is most reason to do as opposed to what there is very good but not perfect, the scalar view reflects this too. Is there something that is still missing if we restrict ourselves to this sense of "should"? I'm not completely sure, but I tend to think that the answer is negative, and that to the extent that there is still some pressure to go further, this is due to practical as opposed to theoretical considerations. But I agree that this is the crux of the matter.

Posted by: Re'em Segev | May 20, 2020 1:44:59 PM

I agree with some of what you're saying, but I do think that there is a very large difference between the best possible action (the right action) and the second best possible action. I agree with you that it would be a mistake to classify the second best action and the worst action together, as the second best action is probably much closer to the best action than to the worst. However, I believe there is a very large, and important, difference between the best action and the second best action, and that difference is much larger than the difference between, say, the second best action and the third best action. The best possible action (for example, donating a 100$) is the right thing to do, and if you didn't do it - if you did something else (for example, donating 900$) you didn't do the right thing. If you could and should have done better, you did the wrong thing. That's not to say that the action is as bad as not donating at all (it will still do some good, just less good), but it is the wrong thing to do. Because of that, I don't think that morality is completely scalar.

Posted by: Gaia | May 20, 2020 11:15:27 AM

As you know,Re'em, I agree with the thrust of what you say (and maybe more than just the thrust). I think it's a challenge to certain traditional views of morality that they are not smoother, and I love how clearly you've articulated the reasons in terms of information loss, clarity of terms, and so on. The best support for the conventional approach (or at least the appearance of the conventional approach), I think, are indeed reasons of usefulness. But in terms of underlying theories, we can challenge, for example, traditional views that fail to explain why they are so bumpy.

Posted by: Adam Kolber | May 19, 2020 11:43:24 AM

Just as good illustration, hereby:

Associated Press v. United states Department of justice. The Appellant, is seeking information ( has to do with national security and privacy, indirectly at least) but, courts granted priority, to opacity, over transparency and the public interest. I quote concerning the decision of the district court:

The district court found that the government had met its burden of showing that Lindh’s privacy interest in the petition’s contents outweigh any public interest served by disclosure and, thus, that the two FOIA exemptions apply.

End of quotation:

So, we read, on one hand public interest and transparency, on the other: the privacy of Lindh, both compete with each other, but, in that particular case, the exemption to the Freedom of Information act applies, since:

Privacy v. Public interest, the former takes over. But both, are moral principles. Both recognized so. But in light of given case, functionally observed, one takes over. Not theoretically, but, in one given case.

Here to the ruling ( 8 pages, worth reading):



Posted by: El roam | May 19, 2020 9:51:54 AM

Important. But, the post, misses one magic word or description:

"Functional morality" . The latter, doesn't deal really, neither with scale, nor with standard. But rather, balancing, between competing rights or moral principles. In this regard, we deal with a sort of "Amoral" perception( as beyond, as Apolitical):

Many times, the law, doesn't define right from wrong, or, even scaling it. But rather, grants the same theoretical status to all values, and in functional terms, or, concrete terms, in light of given case, grants priority, to one value over the other ( in horizontal terms, not vertical terms). Suppose:

Transparency V. opacity. Both are good, and both are bad. Not in vertical terms, but rather in horizontal terms. In one case, opacity takes over, in other one, transparency takes over:

If privacy in civil case, then, opacity takes over. But, in criminal case, concerning one perpetrator and his right for privacy, transparency takes over. If we deal with critical issue, concerning national security, it is opacity which will take over many times. But, if we deal with corruption of certain public officer, then, transparency shall take over.

So, we have endless, integration and endless re balancing, changing constantly, in light of a given case. Then the law or courts, constantly, seeking functional implication of moral principles, residing in constant superposition.

For the rest, we wont' stay young here no more .....


Posted by: El roam | May 19, 2020 9:21:11 AM

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