Notes From Babel

Moral Values Are Premises, Not Conclusions

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God does not ponder the human race in general.  At a single glance he sees separately all of the beings of which humanity is composed, and he perceives each of them with the similarities that bring [each one] closer to all and the differences that isolate [each one] from [everyone else].

God therefore has no need of general ideas; that is to say, he never feels the necessity of enclosing a very great number of analogous objects under the same form so as to think about them more conveniently.

It is not so with man.  If the human mind undertook to examine and judge individually all the particular cases that strike it, it would soon be lost in the midst of the immensity of detail and would no longer see anything; in this extremity it has recourse to an imperfect but necessary process that both aids it in its weakness and proves its weakness.

Alexis de Tocqueville, Democracy in America, Univ. Chicago Press, 2002  (Mansfield and Winthrop, eds.) at 411 (emphasis added).  What a lovely and subtle admonition against over-extending the faculty of classification.  At the heart of libertarianism is the broad, general idea that no law is valid that circumscribes action that does either physically or economically harm another.  This premise is honest, elegant, and powerful.

But it is also an over-simplification.  At its core, libertarianism, in hopes of “purifying” the Law, prevent its subjects from incorporating into it the values of the people that could not be distilled into strictly cause-and-effect terms.  This ignores that many of the important beliefs of a community cannot be articulated in this way.  As Tocqueville said:

Dogmatic beliefs are more or less numerous according to the times.  They are born in different manners and can change form and object; but one cannot make it so that there are no dogmatic beliefs, that is, opinions men receive on trust without discussing them.  If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief.

Now it is easy to see that there is no society that can prosper without such beliefs, or rather there is none that could survive this way; for without common ideas there is no common action, and without common action men still exist, but a social body does not.  Thus in order that there be society, and all the more, that this society prosper, it is necessary that all the minds of the citizens always be brought and held together by some principal ideas; and that cannot happen unless each of them sometimes comes to draw his opinions from one and the same source unless each consents to receive a certain number of ready-made beliefs.

If I now consider man separately, I find that dogmatic beliefs are no less indispensable to him for living alone than for acting in common with those like him.

If man were forced to prove to himself all the truths he makes use of every day, he would never finish; he would exhaust himself in preliminary demonstrations without advancing; as he does not have the time because of the short span of life, nor the ability because of the limits of his mind, to act that way, he is reduced to accepting as given a host of facts and opinions that he has neither the leisure nor the power to examine and verify by himself, but that the more able have found or the crowd adopts.  It is on this first foundation that he himself builds the edifice of his own thoughts.  It is not his will that brings him to proceed in this manner; the inflexible law of his condition constrains him to do it.

Id. at 407-08.

This practical epistemology is expressed in our judicial system as the concept of judicial notice.  Generally, facts may be submitted to a court only through a rigid set of procedures to ensure authenticity and veracity.  However, some facts—those that are commonly known in the jurisdiction, and whose truth cannot reasonably be controverted—are exempt from these procedures, and a court will readily take notice of them.  As Singh v. Ashcroft, 393 F.3d 903, 906 (2004) put it:

Every case “involves the use of hundreds or thousands of non-evidence facts.” . . . . Administrative cases and the review of administrative decisions are no exception to this universal truth. An agency or an appeals court could not function if it had to depend on proof in the record of facts “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

(Citing rule 201 of the Federal Rules of Evidence.)

Certain “facts” that political man must assume are those whose truth is a premise rather than a conclusion of human reason.  This is perhaps the only way that even such fundamental concepts as causation and universal order—absolutely essential to purporting to hand down a judicial opinion—can be observed.  Were we to require an explication how one thing “caused” another, we would never leave the armchair. Thus, in the sense of taking the concept of causation as a conclusion that must logically follow a series of demonstrated and proven premises, it could not only be “reasonably questioned”—it is as unproven as a thing possibly can be.  For what does it mean to “cause” something?  We see one thing happen, then another.  The billiard ball draws nigh to another billiard ball, and suddenly the second ball moves.  We never see causation; it is simply a story we tell to satisfy our innate desire to impute interconnectedness and order on the world around us.

Thankfully, it is not as a conclusion that causation is accepted as a truth, but as a premise:  we could make no sense of our experience without simply accepting that the sudden movement of one billiard ball is “caused” by its being struck by the other, and that its velocity and trajectory are sound indicators of how similarly situated billiard balls will behave in the future.

Similarly, as far as the argument goes for purposes of political theory, moral truths can only be taken as premises.  Any justification one might give as to why any number of things are good can only devolve into an appeal to yet some other moral good.  At some level, engaging in any moral debate assumes that the participants agree on some basic moral premises.  If they are sharp and insightful thinkers and effective advocates, they might be able to demonstrate, once those shared moral premises are uncovered, how reason and intellectual consistency lead inexorably to his position, or at least to the untenability of his opponent’s position.

But political order was created not merely for litigators.  Meaningful participation in civil society requires that its members take notice of certain truths.  The enshrinement of certain of those truths in the law serves this function.  Particularly in secular society that grows more and more skeptical of both religion and tradition, there is increasingly scant commonly accepted authority to which to appeal in asserting the legitimacy of certain cultural norms.

Moral truths are not the sort that can be demonstrated by syllogism.  They are part of a cultural conversation.  Some morals eventually prove they carry their own weight, while others prove counter-productive and are discarded.  But the fact that individual citizens cannot account in strictly rational terms for the legitimacy of their moral beliefs—even, and particularly, for the strongest of them—does not suggest they should be barred from expressing those views in their laws.  James Buchan observed in The Authentic Adam Smith: His Life and Ideas, that “Adam Smith was aware that he was prone to the fault of the ancient philosopher Epicurus, which was ‘the propensity to account for all appearances from as few principles as possible’.”  Id., W. W. Norton & Co., 2006 (paperback ed. 2007) at 8.  Many philosophers commit this same error of insisting that all the complexities of human experience be first reduced to the strictures of logical reasoning before it may be regarded as legitimate.  While we as heirs of the Enlightenment should tread lightly in imposing our moral values by legal coercion, we should not believe those libertarians who suggest that it is in all cases verboten.


Written by Tim Kowal

December 17, 2009 at 11:29 pm

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  1. […] been sitting on my book shelf since my second year of law school.  Prompted a lot of blog posts: here, here, here, here, here, here, here, here, and my favorite one […]

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