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.