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Published online by Cambridge University Press:  29 July 2021

Alex Tuckness
Iowa State University


The Introduction to Morality as Legislation: Rules and Consequences explains the difference between a situated perspective where a person asks which act should be performed in a particular instance and a legislative perspective where one asks what rule should apply to a whole class of people in given circumstances. The legislative perspective seems to have advantages in terms of coming to more plausible moral conclusions but does not fit neatly into either consequentialist or Kantian categories as it uses consequentialist considerations to select among possible rules while being unable to explain why the question “which rule?” is the relevant question on purely consequentialist grounds. The Introduction describes four different dimensions along which conceptions of the legislative perspective can vary and two contextual dimensions as to where it is employed: political and nonpolitical contexts and legislative and nonlegislative contexts. The Introduction clarifies the goals of the book and provides summaries of the following chapters.

Morality as Legislation
Rules and Consequences
, pp. 1 - 30
Publisher: Cambridge University Press
Print publication year: 2021

But is it not monstrous to suppose that if we have worked out the consequences and if we have perfect faith in the impartiality of our calculations, and if we know that in this instance to break [rule] R will have better results than to keep it, we should nevertheless obey the rule? Is it not to erect R into a sort of idol if we keep it when breaking it will prevent, say, some avoidable misery? Is not this a form of superstitious rule-worship (easily explicable psychologically) and not the rational thought of a philosopher?

outsmart, v. To embrace the conclusion of one’s opponent’s reductio ad absurdum argument. “They thought they had me, but I outsmarted them. I agreed that it was sometimes just to hang an innocent man.” [Satirical reference to utilitarian philosopher J. J. C. Smart.]

The Metaphor of Legislation in Ethics and Politics

In ethics, one of the most common exercises is to ask, “What would happen if everyone acted that way?” and to then consider what consequences would follow if everyone actually did. There is a potential tension between the two steps. “If” emphasizes the hypothetical, and indeed counterfactual, nature of the thought experiment. My action will not magically cause everyone in the world to act similarly in similar situations. “What would happen,” on the other hand, derives much of its significance because we care about the actual consequences that will affect the lives of actual people, not hypothetical or counterfactual consequences. If we think that our answer to this question helps determine what is right for ourselves and for others, our question can be reframed in legislative terms: “If you were legislating a code of conduct for all to follow, what code would be best?” In this book I will explore the historical reasons why this common and intuitive way of thinking about ethics came to be regarded as morally problematic and I will suggest a less paradoxical way it could be incorporated into contemporary moral deliberation in ethics and in politics.

We can say roughly that the legislative perspective is one where deliberation is aimed at rule selection: “What general rule would be best for situations like this one?” In stating it this way, I am consciously excluding some other sorts of activities and considerations that are relevant to real legislators. In a democracy, a legislator might weigh the impact on their reelection chances of voting yes or no on a piece of legislation in terms of reactions of voters, campaign contributors, and the media. They might need to consider trading their vote on the proposed legislation to gain votes for a different bill that they think is more important. I am excluding these sorts of considerations insofar as they are simply prudential questions about what is best for the legislator but I include them insofar as they relate to the public good. A legislator who believes law A would be best, but who also believes that there is little chance of A being adopted, might choose to propose law B instead, which would still be a substantial improvement over the status quo, though not the best, especially if proposing A would decrease the chances of adopting B. This sort of thinking also counts as use of the legislative perspective since it is still oriented toward an action-guiding rule. It aims at the best attainable rule.

My particular interest is in the use of this deliberative frame outside of the obvious context of actual legislators deliberating on the merits of actual laws. It can be used in quasi-legislative activities, or as a heuristic for helping resolve ethical dilemmas of individuals, or as a source of moral guidance and constraint for those who have more traditional legislative power. The following contemporary example will illustrate what I mean by the legislative point of view and the moral questions that arise when we consider using it in some contexts as opposed to others.

Ethics and the Legislator: Stepping Out of the Chamber

Imagine a thoughtful legislator sitting in the legislative chambers thinking about whether to support a proposed piece of legislation. The legislation, if passed, would give more latitude to immigration officials to grant asylum requests. In deciding whether to support the bill, they will think about the probable consequences of its adoption. If more asylum seekers are accommodated, how much better (and longer) will their lives be compared with returning them to their home countries? If the law increases the number of asylum seekers without increasing the funding for investigating and processing their cases, will the result be longer waiting times for applicants? What implications will there be for the economy of the legislator’s own country, including the welfare of its workers? If discretion increases for immigration officials, what if they use that discretion to the benefit of applicants from some countries rather than others? What if the use of discretion is affected by racial bias? What if the latitude leads to more mistakes and, as a result, dangerous criminals are accidentally let into the country? The legislator is particularly moved by the plight of asylum seekers from a specific country in the midst of a religiously motivated civil war and wishes the law made it easier for immigration officials to grant asylum in such cases, but they also know that the law would apply to applicants from all countries, not just that one.

All of these questions raise ethical issues and there are a variety of ethical frameworks the legislator might use to decide what they ought to do with regard to their vote on the proposed legislation. One approach is consequentialism, the view that consequences alone determine what is right and wrong. The legislator has a sense that some outcomes are better than others and that in at least some cases they can weigh these against each other so that they can determine whether the new legislation or the status quo is more likely to lead to better consequences. They might look at the actual frequency of crimes committed by those granted asylum compared with the rest of the population and compare that with the likely harms experienced by those denied asylum, and decide that the consequences of the proposed bill would be, on balance, an improvement. What is of particular interest is that the sort of decision the legislator is faced with (to support proposed legislation or not) gives them a particular perspective from which they think about those consequences. They must think of the consequences of a new law being adopted, not just of a particular set of worthy applicants being admitted. The new law will give discretion to people other than the legislator and they have to think about how these others will likely use the discretion rather than about how they would use the discretion if they were making the decisions about specific applicants. Those who will interpret and apply the law will be fallible and make mistakes. The new law, once known, may influence the behavior of those potentially affected by it.

Now suppose that our legislator steps out of the chamber after voting in favor of the bill. They receive a call from an important campaign contributor who wants the legislator to use their influence to help them secure a lucrative government contract. Suppose the legislator thinks consequentialism informs them regarding which action is right in this case as well. They might reason that a general practice of legislators helping donors in this way would have overall negative consequences. The government could end up with inferior value for the contract and public trust in the fairness of the system would be undermined. There would be obvious beneficial consequences for the legislator in keeping the contributor happy. Let us suppose the contributor would likely provide reasonable value to the government in return for the contract. These situation-specific benefits are vastly outweighed by the negative consequences of a political system where legislators systematically use their influence to get governmental contracts for campaign contributors or their friends and family. The legislator might, therefore, have good consequentialist reasons to say no.

Or they might not. They might instead, as a consequentialist, assess the chances that use of their influence will become publicly known and conclude that the chances are very small. They might, therefore, assume that the chances that their action will contribute to the formation of a new norm that then influences other legislators or public perceptions is also quite small. Looking only at the consequences of this one particular decision, they might think about the benefits to their reelection chances that would come with keeping the contributor happy and the important legislative causes (like helping refugees) that they think they will be able to advance if they continue to serve. If there is little reason to believe that there will be a significant causal link between their actions and those of other legislators or public perception, they might question why counterfactual consequences matter. What matters instead are the probable consequences of this specific action.

In the two scenarios above we see a legislator confronting ethical dilemmas and trying to use consequentialism to resolve them. In the first scenario, the context in which the legislator must make their decision (voting on potential legislation) structures their consequentialist thinking in a particular way that focuses on the consequences of the adoption of a publicly known rule that will be interpreted and enforced by fallible, biased people. From their view in the chamber, questions about the probable consequences of a publicly known rule are not counterfactual since the result of passing the legislation is the adoption of a new public rule.

In the second scenario the legislator leaves the chamber. Although they could take a situated perspective and look only at the morally relevant features of the specific acts they might perform, many people find it ethically appealing to use something like the legislative perspective outside the chamber. Many people’s moral intuitions resonate with something like the golden rule with its demand that our actions be consistent with reciprocity. We should not do what we would not want others to do, and imagining a general public rule that would approve of our actions is a way to think about our actions as reciprocal. Moreover, even if many people think that consequences are not the whole of ethics, few people think them irrelevant to ethical decision-making. John Rawls remarked that “All ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would simply be irrational, crazy” (Reference RawlsRawls 1971, 30). It is possible to account for many widely held moral and ethical beliefs by noting that a given rule regulating our actions would produce better consequences than alternative rules or no rule at all. If a rule would be beneficial if adopted and followed by others, that gives me a moral reason to act on it.

This line of thought, though intuitively attractive, has been found deficient, at least insofar as it is thoroughly grounded in the most well-known form of consequentialism, utilitarianism. Although the definition of utilitarianism is disputed, we can for now define it as an approach to ethics that judges the rightness of actions by the likely or actual impact of those actions on happiness (or pleasure, welfare, or satisfied preferences). Consequentialism is a broader term referring to approaches that define actions as right or wrong based on whether those actions produce good outcomes but that may have a broader or more complex account of what counts as a good outcome. A lot of ink was spilled in the twentieth century debating the merits of “act-” and “rule-” utilitarianism, and this debate tracks along with the two scenarios above. Rule-utilitarians argued that one should not apply the principle of utility (“maximize happiness”) directly to specific, situated actions. Instead, one should use the principle of utility to select rules for behavior and decide specific actions with respect to those rules. This indirect form of utilitarianism can more easily explain why the legislator should not use their influence to help a donor get a government contract. There was a small cottage industry generating hypothetical examples where act-utilitarianism seems to lead to troubling ethical conclusions, especially if one believes one’s actions can be kept secret (framing an innocent person to prevent a riot, harvesting organs from a healthy patient without their consent to save the lives of five other patients, etc.). If one looks only at the specific action, one can construct a scenario where utilitarianism seems to compel unethical action. We can add to this cases where the harms or benefits of a single act are negligible but where a general practice of many people performing that act could lead to real harms (not voting, walking on the grass of a pristine lawn, etc).Footnote 2

This rule-utilitarian line of thought was found wanting because it seemed inconsistent with its utilitarian foundations. If I care about maximizing happiness it seems I should care about the probable consequences of this action and not worry about counterfactual consequences that would occur if I were legislating a rule for everybody, given that I am not actually legislating a rule for everyone (Reference LyonsLyons 1965). Put another way, a utilitarian has no trouble explaining why an actual legislator should utilize a legislative perspective when actually legislating. If you really are enacting a public rule, think about the impact on happiness of adopting that rule. What is puzzling is why a theory committed to producing the best actual consequences would tell you to think like a legislator when you are not legislating.

The Historical Emergence of Counterfactual Use of the Legislative Perspective

This puzzle was at the center of the twentieth-century debate between “act-” and “rule-” utilitarians, a debate nurtured in part by some interpreting Mill as a rule-utilitarian (Reference UrmsonUrmson 1953). The quote from Reference SmartSmart (1956) in the epigraph summarizes in three devastating questions the basic problem: to obey the rule in cases where you could produce better consequences by breaking it seems to treat the rule idolatrously, even worshipfully, rather than rationally and philosophically, since the rule has no inherent authority of its own, it is only a pointer to what normally produces good consequences. The second epigraph shows the problem for act-utilitarians like Smart: he really is forced to say that the rule “don’t use your discretion to bring about the execution of a person you know to be innocent” should be broken in exceptional cases when doing so produces more utility than following the rule. It is such counterintuitive conclusions that have often motivated the desire to treat rules with more reverence. In this book, I will argue that Smart’s linking of rule-utilitarianism to religion is telling, probably more telling than he knew. The instability of rule-utilitarianism can be better understood if situated within a different historical frame that shows how the secular, realistic, consequentialist, and counterfactual rule-utilitarians of the twentieth century are the heirs of a theistic, realistic, weakly consequentialist stream of thought that was not thought, by its practitioners, to be counterfactual at all.

What I have called the legislative perspective descends from a particular way of thinking about what is right and about justice that was popularized by thinkers whose starting point was a divine legislator motivated by benevolence. In its original formulation, people might think about what rules would be rational from God’s perspective in order to discover the laws they were to follow, but they would not have thought of themselves as the legislators of the moral law. While they used a legislative lens to reason to their conclusions, the heuristic was a way of understanding what was independently true for others as well, rather than a decision-making strategy for themselves alone. For them, the move from the situated perspective to the legislative perspective was not hypothetical or counterfactual as they assumed the existence of an actual God promulgating actual moral laws. They also assumed a moral obligation to obey God’s law. Their focus on morality in terms of obligation to obey law is characteristic of much of modern moral philosophy (Reference AnscombeAnscombe 1958).

Since I am ultimately interested in hybrid approaches, I will use the phrase “weak consequentialism” to designate approaches that adjust the content of rules and principles to produce better consequences but that can also include nonconsequentialist commitments. The term “consequentialist” was not in use when these authors were writing so they were not participating in a defined movement of that sort. The theological character of many of their works would keep them from being classified as thoroughgoing consequentialists today by many people. They might be better classified as hybrid theorists in that their moral thinking relied upon nonconsequentialist theological commitments to frame their consequentialist reasoning. I will use the term “hybrid” in this book as a broad category for theories that include both consequentialist and nonconsequentialist elements. Many of these thinkers, for example, held to a belief that God’s moral law should be obeyed, which was not explicable in purely consequentialist terms while using consequentialist reasoning to fill out the content of the moral law. Part II of this book will argue for the viability of a modern hybrid approach that is available to people who reject the theological assumptions of the earlier approaches.

In the seventeenth and eighteenth centuries this theological tradition of morality as the will of a divine lawgiver was increasingly separated from its original biblical context and joined to the idea of a benevolent divine lawgiver. Important figures in this line of thought include Hugo Grotius, Richard Cumberland, John Locke, Francis Hutcheson, William Paley, and John Austin. Their more religiously-minded critics at the time complained that God’s holiness or justice had been lost due to an overemphasis on God’s benevolence. The excitement over scientific theories that could explain natural phenomena by means of “laws of nature” may have encouraged these authors to try to find a similar approach in ethics. If we start with the assumption that there is a moral code willed by God that defines what is right and add the assumption that the overriding goal of that God is bringing about good outcomes, one has a theological version of the rule-consequentialist position. The moral rules need not be discovered from the Bible. Instead, one can determine the correct moral action by asking what moral code a benevolent God would promulgate to human beings. One can even stipulate that God, as a benevolent legislator, must attend to the same kinds of considerations as a human legislator. The divine moral code’s content must account for the selfishness, fallibility, and other limitations of the mere mortals on whom it is imposed. In other words, the figure of the divine legislator allowed theorists to develop a weak version of rule-consequentialism that, unlike its secular counterpart, was not, from their perspective, counterfactual. In the religious version it is assumed that there is in fact a benevolent legislator who has enacted a welfare-maximizing moral code.

In the nineteenth century, John Stuart Mill and Henry Sidgwick, building on the earlier thought of David Hume and Jeremy Bentham, worked to figure out what the standing of rules could be in a thoroughly secular and utilitarian philosophical system. Their solutions came with costs that many subsequent philosophers were unwilling to pay. In the twentieth century, there was a resurgence of explicitly secular, rule-utilitarian thought that tried to use legislative reasoning to avoid some of the counterintuitive conclusions of act-utilitarianism. These philosophers were often criticized, along the lines of Smart’s quote in the epigraph, for being inconsistent utilitarians. In fact, a number of the prominent twentieth-century philosophers who are often thought of as rule-utilitarians are better characterized as adopting hybrid approaches that are, in a way, descendants of the hybrid theological approaches of earlier centuries. Hybrid approaches represent the best opportunity for continued use of the legislative perspective in cases where the agent is not literally legislating.

Different Forms of the Legislative Perspective

So far, I have been talking about the legislative perspective as if it is just one way of looking at things when, in fact, it is a family of ways. (I use the phrases “legislative perspective” and “legislative point of view” interchangeably.) In this section, I describe how conceptions of the legislative perspective can vary across four dimensions. In the next section I will describe four contexts in which the legislative perspective could be employed. The historical study will reveal differences, not just similarities. My interest in Part II is in asking how a particular version of the legislative perspective is justified. It is thus important both for framing the historical inquiry and for thinking about the contemporary relevance of the legislative point of view to specify the different forms the legislative perspective can take. Our present concern is with the sort of deliberation one engages in when thinking legislatively, that is, the sorts of considerations that are morally relevant. This is separate from the question of the contexts in which it is appropriate for a person to employ the legislative point of view, however construed. That will be addressed in the following section. What all of the variations of the legislative perspective discussed here have in common is that they are about the selection of action-guiding rules that apply to a whole set of cases. By contrast, a situated perspective (the main alternative to the legislative perspective) is interested not in identifying the rule that would be best to direct a set of cases but in identifying the action that would be best in this particular situation.

The first dimension along which the legislative perspective can vary is how realistic or idealized legislative deliberation is. By “realistic” I mean how closely does it track with the considerations a legislator would typically use in deciding whether to vote in favor of proposed legislation. Immanuel Kant wrote, “Act only in accordance with that maxim through which you can at the same time will that it become a universal law” (Kant G, 31). In another formulation he wrote, “act in accordance with the maxims of a member giving universal laws for a merely possible kingdom of ends” (Kant G, 46). While Kant was open to thinking of the moral law as, in a sense, the will of a supreme being, duty to God “is not objective, an obligation to perform certain services for another, but only subjective, for the sake of strengthening the moral incentive in our own lawgiving reason” (Kant M, 230).Footnote 3 Kant’s formulation, as commonly interpreted, is explicitly legislative and highly idealized. I need not worry about whether my opinion is the one that will prevail in the legislative chamber since I can act as if my maxim once adopted is a universal law. I legislate for an idealized kingdom of ends where people act in accord with their duty even though I know such a kingdom is “merely possible” and not actual.

By contrast, consequentialist approaches that tend toward a more realistic conception of the legislative point of view would consider it relevant that the best option on the merits might be one that few people would adopt and that this might be a relevant reason for rejecting it. It is similar to the way that a legislator might decide that it is better to support a law that has a higher probability of becoming law even though it is not the best law that could conceivably be adopted. A realistic approach would consider how fallible and sometimes self-interested people would interpret and apply the law and might reject a proposed law because of foreseen errors. Legislators, using the realistic approach, are not the ones who interpret and apply the law and must anticipate how other people with different values and judgment will interact with the law. They must also consider the likelihood that people can be brought to comply with a law and the costs involved in attempting to bring about compliance, including voluntary compliance. My interest in this book is primarily in the more realistic theories that more closely mirror the deliberation of human legislators. Part II will explore ways in which Kantian approaches can be combined with this sort of realism.

A second dimension along which use of the legislative perspective can differ is with respect to consequentialism. How does a legislator judge which law would be best? A pure consequentialist would take the expected outcomes of the various options to be the only relevant consideration. Kant insisted that legislators should not worry about the likely consequences of their laws when legislating (Kant M, 109). John Stuart Mill claimed that even Kant was a consequentialist in the end, since Kant rejects maxims by considering the consequences of the universal law (Mill CW, 1:207). Most have thought Mill was wrong about Kant, but Mill was certainly right about real legislators. One can hardly imagine them being indifferent to the likely consequences of a proposed law, especially since “consequences” is here used very broadly and could include things like the outcome of more people’s rights being protected. In this book, my primary interest is in theories that take the likely consequences of different frameworks of rules to be morally relevant to deciding whether those rules rightly influence our decision-making and our understanding of what is right and wrong. Theories need not be wholly consequentialist, but they must be at least weakly consequentialist. In Part II we will see that nonconsequentialist approaches can supply premises that realistic and consequentialist uses of the legislative perspective need.

A third dimension along which theories that use the legislative perspective vary is the degree of weight that they give to the legislative perspective. Both the textbook Kantian approach and the textbook rule-utilitarian approach are similarly strict in that the position chosen from the legislative point of view just is constitutive of what is right. Once I rationally determine the content of the universal law, I must, as a Kantian, obey it. Otherwise, I act wrongly. Once I determine the appropriate rule on utilitarian grounds, that rule is the standard of right and wrong, and I must, as a rule-utilitarian, obey it. Otherwise, I act wrongly. It is also possible to have a weaker position where deliberation from the legislative perspective has significant weight but where the situated perspective also has some moral weight. In other words, not only is there a continuum for how consequentialist we are in deciding the content of the rules (second dimension), there is also a continuum about how decisive the rules so derived are in determining what is in fact right or wrong, ranging from always to never (the third dimension). Those who opt for never have rejected the legislative point of view, but both “some” and “always” assume that the dictates of the legislative point of view meaningfully influence what is right or wrong.

Debates among proponents at different points along this continuum track with debates about how rule-like morality is. Some virtue ethicists might object to placing significant emphasis on rules. While they might agree that in identical situations the same right act should be performed, they might deny that situations are ever identical and question the ability of a rule-based approach to ethics to capture all of the morally relevant particulars of our decisions (Reference DancyDancy 2004). That ethics is primarily about rules of conduct is controversial, and many virtue ethicists have made a point of criticizing that assumption. “What if everyone did it?” might still be a helpful question to ask in order to think more clearly about the implications of an act, but it need not lead to framing our deliberation as if we were legislators. A different way of arguing for the “none” answer comes from act-consequentialism. Some act-consequentialists would hold that while rules are useful tools for improving the speed and accuracy of our decisions, we ultimately make moral decisions as situated individuals in particular situations and what matters is which decision, in that particular situation, will produce the best consequences. Thus we have extreme versions of virtue ethics and act-consequentialism on one end of this spectrum and extreme versions of Kantianism and rule-consequentialism on the other. In specifying this as a continuum rather than a dichotomy, we note the possibility that compliance with legislative rules might be a right-making feature of an action but not the only right-making feature.

The fourth dimension, and the one of particular interest, is the admissibility of counterfactual reasoning. Counterfactual reasoning, in general, is simply reasoning on the basis of suppositions that we think will not actually be true in the real world. Consequentialist counterfactual reasoning gives weight to consequences beyond their expected likelihoods. Rather than estimating the expected change in outcomes that is likely to happen when I perform an action, I might reason as if my decision has more influence over the decisions others will make than it actually has. To take the simplest case, a consequentialist legislator contemplating whether to vote for a law does not need to engage in any counterfactual reasoning. The legislator would simply try to estimate the expected consequences of the law in comparison with the status quo or other laws that could likely be enacted. By contrast, a person who is about to act secretly in a way that will never be known to others could still ask what the consequences would be if the principle on which the person was about to act were adopted as a general rule. In this second case, counterfactual consequences are considered as morally relevant reasons. One might think that this dimension is simply about whether one is a legislator or not, but that is not quite right. Whether I am in a context where my actions are causally connected to the adoption of a rule that will influence the decisions of others is about the context in which I deliberate (see the next section) rather than what sorts of considerations are relevant when I deliberate. In the counterfactual case, one generalizes to a larger group for which one does not actually have the power to legislate and asks what rule or principle would be best for that larger group. Suppose a legislator is contemplating what law to adopt for authorizing military interventions. If the legislator simply asks what law, here and now, is best to adopt, it would be a factual expression of the legislative point of view. If, instead, the legislator asks what rule would be good not just for their own country but for some larger group of countries including their own to adopt, knowing that the rule adopted in their own country will not significantly impact the rules adopted elsewhere, their deliberation is counterfactual but their context is legislative. The proposed law is directed toward the adoption of an action-guiding rule (legislative) and is counterfactual because consequences that would happen if other countries adopted the rule are considered, even though there is no causal link between the new law and changes to other countries’ laws. The factual deliberation cases are not particularly interesting because there is nothing difficult to justify. Our interest here is in the counterfactual deliberation cases, which are always open to the objection of why one should let hypothetical and counterfactual consequences influence what is right in a particular case.

Legislative and Political Contexts

We also need to specify the contexts of the legislative point of view both to identify those that are of special interest and to note contexts in which the legislative point of view may be easier and harder to justify. Here we can note two contextual dimensions: legislative versus nonlegislative and political versus apolitical. Combining these two dimensions yields four different contexts, each representing an ideal type. The first dimension specifies whether the agent is in a position to meaningfully shape a new rule (a legislative context) or not (a nonlegislative context). For all of these contextual contrasts, it is helpful to think of them as continuums rather than dichotomies. In the case of the legislative context, agents vary both in the degree to which the activity they are engaging in would be characterized as trying to change or maintain a rule and in how much influence the agent has over changing the rule. Legislative action aims at the establishment of a rule or principle while nonlegislative action aims at some other exercise of discretionary power. There are many instances in which public officials are in a position to make decisions where it is better described as the exercise of discretion in a particular case than as enacting a general rule or principle. Persons in a legislative context can also vary in the degree of control they have over the rule that will emerge. A legislator representing a very small and isolated party, for instance, may have little realistic chance of changing the content of legislation. This legislator is still in a legislative context. There are also people who are in quasi-legislative contexts. If widely accepted moral norms are general principles that are often used as the basis for allocating the reward of praise and the sanction of blame, then attempts to change, defend, or reinforce those norms are quasi-legislative activities.Footnote 4 Similarly, private persons (parents and private employers, for example) are often in situations where they are in a position to enact rules that will direct the actions of others (children and employees). They formulate rules that will cover a set of cases. Whether voting in a legislative chamber, writing a book to encourage the adoption of a new moral norm, or setting limits on how much time children in a family may use a given technology, a person is aiming at the adoption of a new rule or principle and attempting to exert causal pressure toward that end. All of these are examples of legislative contexts.

The second dimension specifies whether the rule, principle, or decision in question is political or apolitical. Introducing this dimension raises questions about what is or is not political, a perennial and perhaps “essentially contested” concept. To try to provide a definition with precise necessary and sufficient conditions is, fortunately, unnecessary for our purposes. Functionally, I will argue in Chapter 7 that the more political a decision is, the greater the weight accorded to the legislative point of view, all else being equal. What is needed is a focal case for what counts as political rather than a clear dividing line between the political and apolitical. I assume being political is on a continuum where things are more or less political rather than simply political or apolitical. Several factors push a context closer to the focal case: that it concerns the use of the state’s coercive power, that it concerns the laws or norms that regulate the public lives and basic rights of persons, and that it is performed by a person who holds public office.

Practically speaking, coercive rules that are adopted by governments are more political, all else being equal, than rules adopted by private citizens in nongovernmental contexts. A law regulating immigration is political; a rule specifying how much time the children in a family can spend playing video games is apolitical. The point of this distinction is to note that we might have two individuals, a legislator and a parent, who are both in a position to meaningfully adopt a rule that will have consequences for others but that we do not think of these as equally political. Attempts to influence the state’s ability to intervene in areas that have been thought of as private would be political.

Below is a two-by-two table (Table 0.1) illustrating the interaction between these two contextual distinctions. Not all legislative contexts are political and not all political contexts are legislative. Of particular interest is the fact that a person in an apolitical context can also be in a legislative context, and a person in a political context can also be in a nonlegislative context. The examples are focal cases and are not exhaustive of the categories.

Table 0.1
Legislative contextNonlegislative context
Political contextVoting on actual legislation.Using discretionary political power that will not set a precedent or deciding whether to comply with publicly adopted rules.
Apolitical contextSetting rules for one’s family or club.Using discretionary power in one’s family or club.

It is worth noting how these contexts interact with the factual/counterfactual dimension discussed in the previous section. The factual/counterfactual dimension is a moral choice the agent makes to think about a moral question in a particular way rather than a fact about the particular context in which one makes the decision. Two legislators faced with the same legislative question could respond differently, one using a factual legislative point of view and the other a counterfactual one, asking what rule or principle other states or provinces should adopt as a way to decide what is right to adopt in this case. Remember that, in our sense, persons in apolitical contexts can also face this same legislative dilemma. Parents deciding about the use of technology and social media by their children might do so by setting rules the children are expected to follow. In doing so they are engaging in a legislative enterprise but one that, if it is political, is only weakly so (perhaps it will affect the opportunities of their children to interact about politics with their peers). The parents, who are engaged in rule setting, are using the legislative point of view in a noncounterfactual way by simply trying to select the best rule for their particular family, and there is little that is theoretically interesting about the case for our purposes. On the other hand, parents in such a situation might think about what principles they would want parents in general to use and consider the difficulties of enforcing the rules and the accompanying penalties given children who may desire to break the rules or parents who may have different interpretations of what counts as “social media” or “screen time.” Here there is a counterfactual context since they are not actually in a position to set rules for other families and they might adopt different rules for their own family given the less-than-ideal rules of the other families with whom they interact.

In the two legislative contexts (political and apolitical), interesting philosophical questions arise in the counterfactual cases but not the factual ones. Legislating based on what principle you would want some larger group to follow makes sense if you are in a position to legislate for that group. By contrast, in the two nonlegislative contexts, any use of the legislative point of view is necessarily counterfactual and stands in need of justification. One of the contentions of the concluding chapter will be that the arguments for using a counterfactual version of the legislative point of view are stronger in political contexts than nonpolitical contexts.

My interest in this book is thus particularly in versions of the legislative perspective that are counterfactual, realistic, and weakly consequentialist in the senses noted above. They are counterfactual in the sense that the person using the legislative frame is considering the consequences of people acting on the rule that go beyond the actual causal impact of the agent’s own actions, either because one imagines a rule adopted more widely than one’s actual scope of legislative influence or because one’s actual legislative influence is negligible. Though counterfactual, these theories are also realistic in that proposed rules are evaluated using the best estimates of what would happen if such a rule were promulgated to fallible and imperfect agents who can disagree in their interpretation of the rule, question its legitimacy, and fail to act rightly even when they know the right thing to do. These theories are consequentialist at least in part; it makes a moral difference whether a proposed rule would lead to more or less of the legislator’s preferred outcomes coming into existence. The judgments that flow from such a legislative perspective need not be so stringent that they exhaust the field of morality, but they must have some moral weight that goes beyond what purely situated reasoning generates.

Goal and Objectives of the Book

The goal of this book is to explore approaches to ethics that assess actions as right or wrong, at least in part, based on their conformity with rules where the content of the rules is chosen from the legislative perspective. The emphasis will be on ethical approaches that make these moral rules closely analogous to human legislation with all the typical concerns about interpretation, enforcement, demandingness, bias, and fallibility that are the stock and trade of deliberation from the legislative perspective that seeks to improve the well-being of citizens. Part I will trace the development of this approach from the seventeenth century through the twentieth century to better understand the reasons why this approach is thought to be paradoxical. Part II will sketch reasons why we might still find this approach helpful today and suggest ways it might be defended. In doing so, the book will attempt to accomplish several objectives.

First, it will provide an alternative historical frame for understanding the contemporary debates about the relationship between rules and consequences in our ethical thinking. In a common telling, the classical version of utilitarianism is Jeremy Bentham’s act-based account. Rule-consequentialism appeared later (perhaps with Mill, perhaps in the twentieth century) to try to save utilitarianism from the disturbing moral conclusions to which it leads. The rule-based approach was then rejected by the majority of moral philosophers as inconsistent with utilitarianism. Instead, this book offers a different version of the story. It is the rule version of consequentialism that came first. What is of particular interest about authors like Hume and Bentham is their determination to keep much of the earlier consequentialist logic while decreasing the importance of God in the explanation of those beliefs. Twentieth-century rule-utilitarianism was actually a return to an earlier formulation, without the theological underpinnings.

Second, an important part of this story is the significance of the secularization of conceptions of justice. It is in the sphere of justice that act-consequentialism has often been criticized for being insufficiently emphatic about the importance of rules and practices. Secularization affected both the reasons to act justly and the structure through which we think about the content of justice. Normally, all the attention is on the former. When the story of utilitarianism has been told in a way that gives a significant part to the theological versions of the approach, the emphasis has normally been on the issues of moral motivation and moral obligation. Many, but not all, of the utilitarians operated within a framework where human behavior is motivated by the desire for pleasure and aversion to pain. Since a utility-maximizing rule may conflict with my own private utility, God provided a convenient solution to the motivational problem. One could stipulate that God will punish vice and reward virtue in the next life such that moral behavior and self-interest are necessarily aligned. An issue is whether actions that are right are therefore obligatory absent a God who commands us to do what is right. The big question that Bentham, Mill, and Sidgwick faced was how to explain moral motivation and obligation without recourse to divine sanctions or divinely imposed obligations. This was emphasized by the most influential historians writing at the turn of the previous century. Sidgwick himself emphasized this problem in his Outlines for the History of Ethics (OHE) and highlighted the problem of explaining moral motivation without God as the big outstanding question at the end of his most famous work, The Methods of Ethics (Methods). Leslie Reference StephenStephen (1900) thought the absence of divine sanctions was the only real difference between Bentham and the more theologically inclined William Paley. Albee’s valuable history of utilitarianism (Reference Albee1901) similarly focuses on the problem of why we will act morally in the absence of God.

Modern interpreters who affirm the importance of the “theological utilitarians” have also tended to focus on the issues of moral obligation and moral motivation rather than the shift to a legislative perspective and the changes to the content of our moral beliefs that come with it. James Reference CrimminsCrimmins (1990), who has been very helpful in highlighting the secular turn of Bentham and his followers from the earlier theological versions of utilitarianism, focuses on the problem of sanctions rather than the shift to a legislative perspective. The theological utilitarians were defined by T. P. Schofield in terms of their “adoption of a religious sanction for the enforcement of moral obligation: virtue would find its reward in the pleasures of heaven, and vice its punishment in the torments of hell” (Reference Schofield1987, 4). Bart Schultz says the main difference between Paley and the secular utilitarians was “his reliance on God’s command, with the prospect of heaven or hell, rather than on the visible or invisible hands of social institutions.” He continues, “It was Paley’s fame that spurred both Jeremy Bentham and William Godwin to publicly defend a secular version of utilitarianism, taking the doctrine off its conventional religious foundations” (Reference SchultzSchultz 2017, 11). The closest view to mine is found in a few pages of Schneewind’s book on Sidgwick in which he discusses William Paley. He notes Paley’s theological utilitarianism as important and also that Paley was “the forerunner of the utilitarians who were later to develop rather sophisticated versions of rule-utilitarianism” (Reference Schneewind1977, 126). He does not, however, note the connection between the two, namely that the theology helps justify the rule-based approach.Footnote 5

While the absence of divine sanctions is certainly part of the story, the present book will highlight a different aspect of the secularization of justice that has remained in the background. A secularized justice faces not only a motivational problem but also a perspectival problem. The content of justice changes depending on whether we assess actions from the situated perspective of an individual decision maker or the general perspective of the legislator of a code of justice. This is true even for theories that are otherwise the same in their commitment to consequentialism. In the theological versions, the legislative perspective was understood to be factual since they believed there was, in fact, a divine legislator issuing binding decrees. In the secular versions, individuals must make a counterfactual perspectival shift, shifting to the perspective of a legislator even though they are not legislators.

This shapes the link between ethics and rationality. In the late twentieth century, formal theory, or game theory, popularized the notion that under certain circumstances individual rationality leads to collectively suboptimal outcomes. The “prisoner’s dilemma” is the most famous example of this phenomenon. In such a scenario the cost/benefit is such that no matter which option the other person picks, one always gets a better outcome for oneself by implicating one’s confederate. The result of both confederates choosing this course is much worse for them than if they had both remained silent. “Tragedy of the commons” scenarios have a similar structure where it may be rational from an individual perspective to overfish a lake but where the collective outcome of many people doing so is quite bad for all concerned.

Interestingly, two of the more common solutions to these problems, repeated iterations and legislative intervention, were already being explored in the early modern texts. The divine legislator was a way to solve collective action problems when human legislation was unavailable or ineffective. Secularized accounts of justice often appealed to repeated interactions to solve the problem, but with a richer and more complex psychological account than the twentieth-century versions. What is of special interest is to see that the problem is not ultimately one rooted in the “selfishness” sometimes postulated in game theory. Even strong consequentialists who seek the good of all concerned may find that their actions are suboptimal if they and others think from the perspective of a situated individual rather than taking on a legislative perspective. Derek Parfit’s book Reasons and Persons was enormously influential in analyzing the ways consequentialism might be self-defeating or self-effacing. In one example he notes: “Consequentialists should claim (C9) Suppose that each of us has made the outcome as good as he can, given what the others did. Each has then acted rightly. But we together may have acted wrongly. This will be so if we together could have made the outcome better” (Reference ParfitParfit 1984, 73). Thinking in a consequentialist manner from a situated perspective can lead to suboptimal outcomes for very unselfish people. Larry Temkin argues that this may be the case with attempts to help the poor around the world (Reference TemkinTemkin 2019).

Some consequentialists argued that if thinking from a legislative perspective leads to better outcomes than thinking from a situated perspective there is no real paradox because consequentialism would then instruct us to use the legislative perspective or adopt some other decision-making procedure rather than directly employ consequentialism. Parfit calls these forms of consequentialism “self-effacing” since they direct us to believe some theory other than consequentialism in order to bring about the best consequence. The parallel to prisoner’s dilemma scenarios suggests that more argument is needed here since some forms of rationality (perhaps including consequentialism) can create situations where we can see the suboptimal outcome looming but are unable to avoid it within the constraints of the form of rationality in use. Knowing that if we all think a certain way we get suboptimal outcomes is not always sufficient reason for me not to think that way, absent a strong moral reason to shift perspectives.

Third, the book will draw upon this story to consider the proper role of this legislative approach to morality today. I will argue that it does have a number of attractive features but that in order to adopt it one needs commitments that go beyond utilitarianism and, more broadly, consequentialism.Footnote 6 I will advocate for a hybrid approach in which the legislative point of view rests on a combination of consequentialist and nonconsequentialist commitments. If one is going to justify the perspectival shift, one needs either to revert to a theological formulation or find alternative nonconsequentialist grounds for justifying the perspectival shift. Since I assume that most of my readers will find the former option problematic (Reference MackieMackie 1982), I focus instead on working out how one might make a nonconsequentialist case for the needed perspectival shift. In doing so I will return to the elements contained in the perspective of an actual legislator and show how different elements of that perspective contain attractive normative elements. One way of thinking about nonconsequentialist theories of justice, such as that of Rawls, is that they use deontological constraints such as publicity requirements that are designed to approximate a legislative point of view, albeit not one concerned with maximizing utility overall. Nonetheless, these approaches force us to imagine ourselves articulating principles that will then guide future decision-making in a legislative way.

In making this argument I do not claim (or believe) that the legislative perspective captures the whole of moral thinking, nor do I think that conclusions reached from that point of view must be decisive in every situation. In the same way that citizens are sometimes morally justified in breaking the law, so too there may be some instances where persons are justified in acting contrary to the rules that would be selected from the legislative perspective. What I will argue instead, and explain in more detail in the final chapter, is that rules generated from a legislative perspective should be given more weight than can be explained from a situated perspective alone. Someone reasoning from a situated perspective has reason to think about the value of a norm or practice and about how failure to adhere to that norm might undermine it, causing harm. Someone reasoning from a situated perspective might recognize the efficiency gains and validity gains that a rule-based decision-making procedure has over a case-by-case decision procedure. I will argue for a commitment to the legislative perspective that gives the moral rules discovered from that perspective a weight that cannot be explained if one begins reasoning from a situated perspective alone. In other words, the goal is to justify a shift to a different starting point for moral reflection.

The argument I will make is constructed so as to be ecumenical on metaphysical questions such as the disputes between, for example, moral realists and constructivists. One might adopt the legislative point of view because one thinks doing so gets one closer to truths that are antecedently there, that it is an attractive framework for constructing moral principles, or that it makes good sense of one’s moral sentiments. The sorts of reasons I will give do not depend on a particular metaphysical view.

The argument will also be ecumenical regarding the content of the beliefs adopted from the legislative point of view. People who are persuaded that the legislative point of view at least partly informs what is right may have strong disagreements about what principles would be selected from the legislative point of view. My argument is, in a sense, an argument for why we should imagine ourselves to be entering a legislative chamber, not an argument for which specific proposals will be adopted there. A legislative chamber is a place where people disagree about which rule is best. Nonetheless, it is important that we think the debate that takes place within a metaphorical legislative chamber is a debate worth having. The questions we pose have a substantive impact on the conclusions that we reach. Asking the question “which act?” leads to different answers than asking “which rule?” Similarly, asking the question “which rule is best for us?” yields different answers than the question “which rule is best for us as well as others?” Each of these shifts of question often involves counterfactual thinking and I explore the reasons why these counterfactual questions are important ones to ask.

Framing the Argument: Scope and Method

There are several definitional and methodological issues that need attention before beginning our historical account. The first has to do with consequentialism and utilitarianism. I will focus on theories that have a significant consequentialist aspect, even if they are not thoroughly consequentialist, since the thinking of actual legislators almost always includes at least some consequentialist aspect. My interest is in consequentialism more generally rather than in utilitarianism specifically, but much of the literature I will explore focuses on this issue within the framework of the meaning of utilitarianism and the debates between act- and rule-utilitarianism. The basic dilemma I study applies to most forms of consequentialism since the basic dilemma of maximizing consequences from a situated perspective versus a legislative perspective can still arise. In general, I will follow the language of the authors I study. Parfit and Hooker prefer to talk about consequentialism and so when discussing them I will use that language. Utilitarians from Bentham to Sidgwick consciously embraced the label “utilitarian” and so I will use it when discussing them. In Part II where I discuss the contemporary implications of the historical analysis, I will follow the now accepted distinction where utilitarianism is a subset of consequentialism that has a more restricted scope of what consequences count as good. As noted, the main interest there will be in consequentialist theories more broadly and in ways nonconsequentialist considerations might help motivate a shift to the legislative perspective.

A related issue is the problem of defining utilitarianism itself. Traditions evolve over time and it is misleading to impose a single definition on utilitarianism and then criticize thinkers for not adhering to a definition that is ours, not theirs (Reference RosenRosen 2003, discussed below). Moreover, as will become apparent in what follows, even among those who today study the history of utilitarianism one finds widely varying definitions. Often this is because a given writer is interested in a particular historical tradition and different writers are drawn to different facets of a multifaceted movement. William Paley provides an interesting test case. As we will see, Mill denied that he was a member of the utilitarian movement largely because he was not a sufficiently zealous advocate for progressive reform. Undeniably, the reformist mission of utilitarianism from Bentham to Sidgwick is crucial to understanding their project but it is not obvious that “conservative utilitarianism” is a logical contradiction. Others think utilitarianism is, by definition, secular. Here again Paley would not count as a utilitarian since, as we will see, God plays a crucial role in his theory. That the move toward secularism was momentous in the history of utilitarianism is both true and one of the main points of this book. That said, building secularism into the definition risks obscuring the very thing this book wants to illuminate, namely the way in which the secular progressive movement of Jeremy Bentham had roots in and was reacting against a theological perspective that shared many of the same assumptions.

This book will therefore try to acknowledge these other issues while using a definition that tracks the issue most relevant to our inquiry, one that understands utilitarianism primarily as a standard of right and wrong. When Sidgwick wrote about utilitarian ethics, what he primarily meant was that utility provided a rational standard for discerning what makes actions right and wrong. With that emphasis in mind, I will use a broad definition where utilitarianism is a theory that defines right and wrong with reference to actual, intended or likely impact on happiness (or a related notion of well-being). Utilitarian theories may assess actions directly with respect to their likely impact on happiness or indirectly, for example with respect to a rule justified by its contribution to happiness. This definition is loose with respect to the details of what is being maximized because, as noted above, the real interest is in consequentialist theories more generally and so there is little to be gained by arguing about whether satisfied preferences, or retrospectively satisfied preferences, or desirable states of consciousness, or some other goal is what “real” utilitarians seek to maximize.

A related issue is chronological scope. Wherever one starts a historical study, one enters midstream. For this project I find it most helpful to begin with three seventeenth-century thinkers: Hugo Grotius, Richard Cumberland, and John Locke. I choose Grotius because he arguably starts a new and distinctively modern way of thinking about ethics and politics. He was forced to think about the principles that should govern war, peace, and much else without assuming a mutually recognized moral authority. He consciously engaged in ethical inquiry by thinking through the likely consequences that different sorts of rules would generate when acted upon by biased, fallible people. The natural law tradition of which Grotius was a part, by the time of Locke and Cumberland, was such that one could employ a thought experiment where one asks, “would a benevolent God enact this moral code?” to answer questions about what is right and what is wrong. Whether they were the very first to do so is less important than capturing a particular view of ethical decision-making and rationality. The conjunction of three beliefs set in motion the basics of the legislative approach to morality: that right and wrong are defined by a system of rules, that those rules are chosen by God in order to increase human happiness, and that these rules can be known through the use of reason and not only through special revelation. I am less interested in discovering the date when “utilitarianism” began than in describing a particular way of thinking about ethics that was crystalizing in late seventeenth-century England in the work of Cumberland and Locke, both of whom drew upon Grotius.

A similar logic governs the choice of the other thinkers studied. My goal is not to comprehensively discuss every thinker of the last three hundred years who employed the morality-as-legislation approach but rather to focus on key moments in a tradition that runs from the seventeenth century to contemporary debates in Anglo-American philosophy and political theory about rules and consequences. For that reason, I focus on authors from that tradition, most of whom are British. A project that looked more broadly at similar phenomena in continental thought or in nonwestern cultures would be welcome but is beyond the scope of this book.

As a final methodological point, let me address the problem of anachronism. Reference RosenRosen (2003) notes a tendency in discussions of utilitarianism that is both unhelpful and that can be replicated in discussions of other topics. The error is to decide that a particular thinker, say Bentham, is the paradigm of a particular school of thought and then to criticize related thinkers who were either before or after (Hume or Mill, for example) as being “inconsistent utilitarians” because they depart from Bentham in some way or other. In doing so we are anachronistically imposing on them an understanding of utilitarianism that was not theirs. In the case at hand, if one takes the act/rule-utilitarianism distinction and applies it retrospectively to thinkers who never used the distinction one risks distorting their thought in the process. At a minimum, one may emphasize things that were not the emphasis of the original thinkers. Acknowledging this, it is nonetheless true that one of the reasons to look at these questions historically is to notice the questions people were not asking or the assumptions that were so widely shared that they didn’t need to be stated. Noting this can help us make better sense of the debates that arise later when these issues are disputed. The question “what happens to your theory of morality if God is removed?” is not anachronistic in the least. It is a question that the thinkers of this era thought about often. Their different answers (and their varying levels of enthusiasm for finding out) drive much of the story that follows. Yet it is noteworthy that from Locke to Sidgwick they focused on how the removal of God undercut an important incentive for moral behavior, the threat of future rewards and punishments. Bentham was perhaps the most optimistic that such incentives could be done away with and little of importance would be lost. My goal is to foreground something that is clearer in retrospect than it was to the original participants in the debate. While the phrase “reflective equilibrium” originated in the twentieth century, the basic idea that one could discredit a moral theory by showing that it leads to conclusions that “everyone knows are wrong” has a long history indeed. To this day, asking how a moral theory matches with our moral intuitions is a common part of ethical discourse.

I hope to show that the thinkers we will study frequently utilized a legislative perspective on morality and were thereby able to arrive at what they thought were more satisfactory moral conclusions as a result. Some of this was undoubtedly unconscious. If one begins with the assumption that there is a divine law that prohibits bearing false witness, it will make intuitive sense to think that what one does in thinking about ethics is to find a route, by reason alone, to that same law. That one arrives at the acceptable conclusion solidifies one’s confidence in the theory. Many of these thinkers were, in part, trying to come up with a rational basis for thinking about ethics that would account for enough of their existing beliefs to give them confidence in its validity while having enough critical purchase to provide meaningful guidance on the contested issues of their day. Their religious beliefs often led them to assume that morality has a law-like character without feeling the need to argue for that claim explicitly. One could imagine a God who judges people based on whether they produce the best consequences from their situated perspective, but that was not the God that they typically imagined.

Overview of the Book

Chapter 1 begins with Grotius, Cumberland, and Locke and argues that in them we see the basic elements of the theological version of morality as legislation. Grotius used a framework of evaluating the consequences of different possible rules for fallible, biased people as a way of determining what ought to be done. Cumberland provided a theory of right in which all the content of all divine laws could be traced back to one divine attribute, benevolence. Locke, while less systematically consequentialist than Cumberland, had a hedonistic theory of the good, an account of God that also emphasized benevolence, and (most interestingly) a willingness to press very hard on the legislative metaphor in order to establish the correct content of natural law when it was in dispute. Locke imagines God as a legislator using precisely the structure of rationality that a human legislator would use in contemplating which law to pass, including problems of biased and fallible execution of the law. Locke’s use is clearly counterfactual. It is probably not a coincidence that both Locke and Cumberland were strong supporters of new scientific theories that sought to understand nature by means of natural laws.

Chapter 2 examines the first important stage in the secularization of this theory culminating in the work of David Hume. During this time, two metaphors were in competition with the legislative metaphor, the architect, and the spectator. Shaftesbury emphasized what I will call the architect metaphor where one assumes that God, the divine architect, has so designed human beings that we know what is right without needing to use the legislative paradigm. Human beings are endowed with a moral sense by the divine architect. Francis Hutcheson tried to synthesize the legislator and architect metaphors while adding that of the spectator. The perspective of the unbiased spectator, or a sufficiently numerous group of spectators, helps us determine what is right. Hume is helpfully contrasted with his more theologically inclined predecessors as he rejected the legislative and architectural metaphors and secularized the spectator metaphor. Hume’s skepticism about the existence of divinely implanted moral sense led him to seek other ways of explaining our sense of justice. Hume was very aware of the basic dilemma that adhering to the rules of justice in particular cases did not always produce the most good but that it was nonetheless important that people obey the rules of justice even in those cases. We will explore what Hume thought motivated people to act on rules that would be approved from the legislative perspective without recourse to divine intervention.

Chapter 3 examines the decisive break between religious and secular utilitarianism in the thought of William Paley and Jeremy Bentham. Paley, the better known and more widely respected thinker of the two at the time, is in many ways the paradigm case of the theological version of morality as legislation. Paley, like Locke, used human legislative deliberation as a paradigm of rationality for thinking about the content of the divine law. Bentham’s project must be understood in part as motivated by a desire to reject the theological assumptions of theories like Paley’s that stood in the way of radical reform. It also encouraged a reframing of moral expression as a kind of legislative act. Bentham saw reputational sanctions as one substitute for religious motives for moral action, but this also required a perspectival shift, when making moral statements, to a more legislative perspective.

Chapter 4 explores the development of Bentham’s approach by his successors J. S. Mill and Henry Sidgwick. Both of them were grappling, explicitly now, with the perspectival problem that Bentham’s full rejection of the theological justification for the legislative point of view entailed. Mill’s intriguing suggestion that “wrong” refers to that which should be punished by law, public opinion, or private conscience, combined with his assumption that all three are open to revision on utilitarian principles, leads to the interesting conclusion that our moral statements about right and wrong are tacit legislative proposals and that in deciding whether to voice our moral opinions we must think like legislators. This was in tension with the idea that our public expressions of moral judgment should be spontaneous reactions to the poor choices of others. It is hard to see how we can do both at once. Sidgwick grasped the implications of this issue more clearly and more self-consciously than Mill did, since it meant that there was a potentially deep disjunction between what is right according to utilitarianism and what utilitarianism tells us to publicly state as right. Must we condemn an action we think is right if we don’t want to encourage people to act in similar ways in the future? Sidgwick’s defense of an esoteric morality is the final outcome of the attempt to secularize morality as legislation.

Chapter 5 looks at the twentieth-century debates about rule-consequentialism with an emphasis on the rule-utilitarian theories that dominated the debate. In the twentieth century, secular philosophers explicitly defended rule-utilitarian theories as alternatives to act-utilitarian theories that, they thought, led to implausible moral conclusions. This approach was powerfully criticized by people like David Lyons and J. J. C. Smart who thought rule-consequentialism was paradoxical because it awarded rules a weight that could not be justified on consequentialist grounds. In the mid- to late twentieth century there were philosophers who attempted to challenge the boundaries of utilitarian orthodoxy by expressly using nonconsequentialist moral premises to justify the shift to a legislative rather than a situated perspective. The focus on the failure of rule-utilitarianism in terms of strict utilitarian orthodoxy has obscured the importance of hybrid theories that draw on both consequentialist and nonconsequentialist premises. A number of thinkers who are classified as rule-utilitarians (and sometimes criticized for betraying utilitarian orthodoxy) in fact expressly acknowledged nonutilitarian aspects of their theories (including R. M. Hare and John Harsanyi). They are the heirs of the earlier hybrid approaches and provide a bridge to the contemporary use of hybrid approaches that is the focus of Part II. The chapter ends with a summary of the main historical claims of Part I. Rule-utilitarianism was not a revision of traditional utilitarianism but rather an attempt to return to the rule-based consequentialism of earlier theories without the theological foundations. Because God, in these earlier theories, did more than threaten people for disobedience, the secular versions struggled to explain why right action should be defined on the basis of rules that counterfactually would be chosen if one were legislating. The most successful ones consciously adopted a hybrid approach.

Part II of the book looks at the prospects for justifying the shift to the legislative perspective today. Chapter 6 looks at three prominent consequentialist strategies that have been employed more recently to justify different forms of the legislative perspective, as well as a fourth option that is Kantian. The first option, exemplified by Robert Goodin, Conrad Johnson, and Frederick Schauer, is to restrict legislative consequentialism’s scope to the design of rules, policies, and institutions. The second option, pursued by Katarzyna de Lazari-Radek and Peter Singer, is to follow Sidgwick and accept a disjunction between moral rules and moral right (or between decision rules and the standard of right). The third option, used by Brad Hooker, seeks to justify a consequentialist legislative perspective based on its fit with our moral judgments using something like a reflective equilibrium approach rather than having consequentialism itself be the foundation. The chapter then considers a very different fourth option where the shift to a legislative point of view depends on Kantian claims as seen in the work of Thomas Hill, Jr. and Derek Parfit. Each of these approaches, however, includes serious drawbacks. Option one cannot help us in cases where we are not legislating, the counterfactual cases that are the emphasis of this book. It also risks being ad hoc. Option two will be unappealing to many because of its esoteric morality and rejection of a publicity principle. Option three raises questions about why, if nonconsequentialist moral considerations are used in selecting rule-consequentialism as a theory, we might not incorporate those nonconsequentialist considerations into the set of reasons used in determining the content of the moral code. Option four can justify the perspectival shift to the legislative perspective, but its rejection of consequentialist reasoning (at least in its more strictly Kantian versions) makes the perspective unlike that of actual legislators and yields its own set of hard-to-accept moral conclusions.

Chapter 7 argues that the best option for defending the use of the legislative perspective is a hybrid approach that includes both consequentialist and nonconsequentialist commitments. Given that the theory in its original theistic form combined nonconsequentialist religious commitments with weak consequentialist reasoning, a successful adaptation of the legislative perspective to appeal to contemporary secular audiences will need to address both types of moral commitments. The chapter begins by reiterating the type of legislative perspective that is required: one that is moderate in its strength, realistic, at least weakly consequentialist, and applies to counterfactual cases where one is not literally legislating. I then sketch the reasons why a counterfactual use of the legislative perspective might be attractive. Next, I identify six moral commitments that one must endorse in order to use the legislative perspective in the specified sense. I argue that all six are plausible, but also note that they require a hybrid approach that is neither solely consequentialist nor solely nonconsequentialist. I describe the benefits of this hybrid approach and conclude by arguing that the nonconsequentialist reasons that justify the shift to the legislative perspective are stronger in cases where people are making decisions in political contexts, even if those contexts are not legislative contexts.


1 This book covers a four-century timespan, and norms regarding spelling, grammar, formatting, punctuation, and capitalization have changed quite a bit over the years. I have chosen to reproduce the original texts in quotations as they appear in my sources except that I have silently removed some extra spaces. All italics are from the original source unless otherwise noted. Where these differ from modern usage, they are a reminder that we are in conversation with voices from a different era but with whom we can still converse.

2 On framing the innocent see Reference RawlsRawls 1955. Early discussions of doctors killing patients to harvest their organs are found in Reference HarrisHarris 1975 and Reference HarmanHarman 1977. Though not originally conceived of as a contribution to the debate about act- and rule-utilitarianism, nonconsensual organ harvesting became a typical instance of something that is not utility maximizing as a general practice though it might be in particular instances. Harris’s survival lottery proposal arguably could be affirmed by rule-utilitarians, not just act-utilitarians. Harman’s version (page 3) is the one that became canonical.

3 Kant also wrote, “A law that binds us a priori and unconditionally by our own reason can also be expressed as proceeding from the will of a supreme lawgiver, that is, one who has only rights and no duties (hence from the divine will); but this signifies only the idea of a moral being whose will is a law for everyone, without his being thought of as the author of the law” (Kant M, 19).

4 From the legislative perspective, the person who publicly states, “X would be wrong to do Y in situation Z” is trying to persuade others to affirm the same norm and thus create a new rule that will “punish” transgressors, perhaps with public shame. If, following Mill (OL, 18:241), we agree that public opinion can be an even more powerful force restricting liberty than public laws, public moral expression by private persons becomes analogous to legislation. We find ourselves simultaneously subject to the public opinion around us and members of an enormous legislative body (the public) that has the power to change those opinions.

5 Schneewind does argue that Paley quixotically thought his rule-based approach could solve the problem of whether God’s will determines what is right or is determined by what is right (1977, 127).

6 Some of these themes were explored in a different context, specific to Locke, in Reference TucknessTuckness 2002.

Figure 0

Table 0.1

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  • Introduction
  • Alex Tuckness, Iowa State University
  • Book: Morality as Legislation
  • Online publication: 29 July 2021
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  • Introduction
  • Alex Tuckness, Iowa State University
  • Book: Morality as Legislation
  • Online publication: 29 July 2021
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  • Introduction
  • Alex Tuckness, Iowa State University
  • Book: Morality as Legislation
  • Online publication: 29 July 2021
  • Chapter DOI:
Available formats