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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.
In Grotius, Cumberland, and Locke 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 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 towards a legislative approach when making moral statements.
In the twentieth century, secular philosophers explicitly defended rule-utilitarian theories as alternatives to act-utilitarian theories that, they believed, 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 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 to their theories (including R. M. Hare and John Harsanyi). The chapter ends with a summary of the main historical claims of Part I.
John Stuart Mill and Henry Sidgwick grappled with the perspectival problem arising from Bentham’s full rejection of the theological justification for the legislative point of view. 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. When deciding whether to voice our moral opinions we must think like legislators enacting a rule. This was in tension with the idea that our public expressions of moral judgment should be spontaneous reactions to the poor choices of others. Sidgwick grasped the implications of this issue more clearly and more self-consciously than did Mill, 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. Sidgwick’s defense of an esoteric morality is the final outcome of the attempt to secularize morality as legislation.
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 type of legislative perspective under consideration is one that is moderate in its strength, realistic, at least weakly consequentialist, and applies to counterfactual cases where one is not literally legislating. The six moral commitments that one must endorse in order to use the legislative perspective in the specified sense are plausible, but they require a hybrid approach that is neither solely consequentialist nor exclusively nonconsequentialist. 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.
In the time period from Berkeley to David Hume the architect and spectator metaphors were in competition with the legislative metaphor. Shaftesbury emphasized the architect metaphor where one assumes that God, the divine architect, has so designed human beings that we know what is right without relying upon 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 impartial spectator helps us determine what is right, avoiding personal bias or acting out of self-interest. Hume’s skepticism about the existence of divinely implanted moral sense led him to explain our sense of justice through a secular version of the spectator metaphor. 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. Hume sought to demonstrate what motivates people to act on rules that would be approved from the legislative perspective without recourse to divine intervention.
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 akin to 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.
'What would happen if everyone acted that way?' This question is often used in everyday moral assessments, but it has a paradoxical quality: it draws not only on Kantian ideas of a universal moral law but also on consequentialist claims that what is right depends on the outcome. In this book, Alex Tuckness examines how the question came to be seen as paradoxical, tracing its history from the theistic approaches of the seventeenth century to the secular accounts of the present. Tuckness shows that the earlier interpretations were hybrid theories that included both consequentialist and non-consequentialist elements, and argues that contemporary uses of this approach will likewise need to combine consequentialist and non-consequentialist commitments.