Glitches in the moral law?

Human law is a blunt instrument. We often replace the thing that we actually care about by a proxy for it, because it makes the law easier to formulate, follow and/or enforce. Thus, to get a driver’s license, you need to pass a multiple choice test about the rules of the road. Nobody actually cares whether you can pass the test: what we care about is whether you know the rules of the road. But the law requires passing a test, not knowledge.

When a thing is replaced by (sometimes we say “operationalized by”) a proxy in law, sometimes the law can be practically “exploited”, i.e., it is possible to literally follow the law while defeating its purpose. Someone with good test-taking skills might be able to pass a driving rules test with minimal knowledge (I definitely had a feeling like that in regard to the test I took).

A multiple-choice test is not a terrible proxy for knowledge, but not great. Night is a very good proxy for times of significant natural darkness, but eclipses show it’s not a perfect proxy. In both cases, a law based on the proxy can be exploited and will in more or less rare cases have unfortunate consequences.

But whether a law can be practically exploited or not, pretty much any law involving a proxy will have unfortunate or even ridiculous consequences in far-out scenarios. For instance, suppose some jurisdiction defines chronological age as the difference in years between today’s date and the date of birth, and then has some legal right that kicks in at age 18. Then if a six-month-old travels to another stellar system at close to the speed of light, and returns as a toddler, but 18 years have elapsed on earth, they will have that the legal rights accruing to an 18-year-old. The difference in years between today’s date and the date of birth is only a proxy for the chronological age, but it is a practically nearly perfect proxy—as long as we don’t have near-light-speed travel.

If a law involves a proxy that does not match the reality we care about in too common or too easy to engineer circumstances, then that’s a problem. On the other hand, if the mismatch happens only in circumstances that the lawmaker knows for sure won’t actually happen, that’s not an imperfection in the law.

Now suppose that God is the lawmaker. By the above observations, it does not reflect badly on a lawmaker if a law involves a proxy that fails only in circumstances that the lawmaker knows for sure won’t happen. More generally, it does not reflect badly on a lawmaker if a law has unfortunate or ridiculous consequences in cases that the lawmaker knows for sure won’t happen. Our experience with human law suggests that such cases are difficult to avoid without making the law unwieldy. And while there is no great difficulty for God in making an unwieldy law, such a law would be hard for us to follow.

In a context where a law is instituted by God (whether by command, or by desire, or by the choice of a nature for a created person), we thus should not be surprised if the law “glitches” out in far-out scenarios. Such “glitches” are no more an imperfection than it is an imperfection of a helicopter that it can’t fly on the moon. This should put a significant limitation on the use of counterexamples in ethics (and likely epistemology) in contexts where we are allowing for the possibility of a divine institution normativity (say, divine command or theistic natural law).

One way that this “glitching” can be manifested is this. The moral law does not present itself to us as just as a random sequence of rules. Rather, it is an organized body, with more or less vague reasons for the rules. For instance “Do not murder” and “Do not torture” may come under a head of “Human life is sacred.” (Compare how US federal law has “titles” like “Title 17: Copyright” and “Title 52: Voting and Elections”, and presumably there are vague value-laden principles that go with the title, such as promoting progress with copyright and giving voice to people with voting.) In far-out scenarios, the rules may end up conflicting with their reasons. Thus, to many people “Do not murder” would not seem a good way to respect to respect the sacredness of human life in far-out cases where murdering an innocent person is the only way to save the human race from extinction. But suppose that God in instituting the law on murder knew for sure that there would never occur a situation where the only way to save the human race from extinction is murder. Then there would be no imperfection in making the moral law be “Do not murder.” Indeed, this would be arguably a better law than “Do not murder unless the extinction of humanity is at stake”, because the latter law is needlessly complex if the extinction of humanity will never be at stake in a potential murder.

Thus the theistic deontologist faced with the question of whether it would be right to murder if that were the only way to save the human race can say this: The law prohibits murder even in this case. But if this case was going to have a chance of happening, then God would likely have made a different law. Thus, there are two ways of interpreting the counterfactual question of what would happen if we were in this far-out situation. We can either keep fixed the moral law, and say that the murder would be wrong, or we can keep fixed God’s love of human life, and say that in that case God would likely have made a different law and so it wouldn’t be wrong.

We should, thus, avoid counterexamples in ethics that involve situations that we don’t expect to happen, unless our target is an ethical theory (Kantianism?) that can’t make the above move.

But what about counterexamples in ethics that involve rare situations that do not make a big overall difference (unlike the case of the extinction of the human race)? We might think that for the sake of making the moral law more usable by the limited beings governed by it, God could have good reason for making laws that in some situations conflict with the reasons for the laws, as long as these situations are not of great importance to the human species. (The case of murdering to prevent the extinction of the human race would be of great importance even if it were extremely rare!)

If this is right—and I rather wish it isn’t—then the method of counterexamples is even more limited.

Divine permission ethics

There are two ways of thinking about the ethics of consent.

On the first approach, there are complex prohibitions against non-consensual treatment in a number of areas of life, with details varying depending on the area of life (e.g., the prohibitions are even more severe in sexual ethics than in medicine). Thus, this is a picture where we start with a default permission, and layer prohibitions on top of it.

On the second, we start with a default autonomy-based prohibition on one person doing anything that affects another. That, of course, ends up prohibiting pretty much everything. But then we layer exceptions on that. The first is a blanket exception for when the affected person consents in the fullest way. And then we add lots and lots more exceptions, such as when the the effect is insignificant, when one has a special right to the action, etc.

The second approach is interesting. Most ethical systems start with a default of permission, and then have prohibitions on top of that. But the second system starts with a default of prohibitions, and then has permissions on top of that.

The second approach raises this question. Given that the default prohibition on other-affecting actions is grounded in autonomy, how could anything but the other’s consent override that prohibition? I think one direction this question points is towards something I’ve never heard explored: divine permission ethics. God’s permission seems our best candidate for what could override an autonomy-based prohibition. So we might get this picture of ethics. There is a default prohibition on all other-affecting actions, followed by two exceptions: when the affected person consents and when God permits.

I still prefer the first approach.

How the law needs to be written in the heart

In ethics, we seek a theory of obligation whose predictions match our best intuitions.

Suppose that explorers on the moon find a booklet with pages of platinum that contains an elegant collection of moral precepts that match our best intuitions to an incredible degree, better than anything that has been seen before. When we apply the precepts to hard cases, we find solutions that, to people we think of as decent, seem just right, and the easy cases all work correctly. And every apparently right action either follows from the precepts, or turns out to be a sham on deeper reflection.

This would give us good reason to think the precepts of the booklet in fact do sum up obligations. But now imagine Euthyphro came along and gave us this metaethical theory:

1. What makes an action right is that it follows from the content of this booklet.

Euthyphro would be wrong. For even though (1) correctly gives a correct account of what actions are in fact right, the right action isn’t right because it’s written in the booklet. (Is it written in the booklet because it’s right? Probably: the best theory of the booklet’s composition would be that it was written by some ethical genius who wrote what was right because it was right.)

Why not? What’s wrong with (1)? It seems to me that (1) is just too extrinsic to us. There is no connection between the booklet and our actions, besides the fact that the actions required by the booklet are exactly the right ones.

What if instead the booklet were an intrinsic feature of human beings? What if ethics were literally written in the human heart, so that microscopic examination of a dissected human heart found miniature words spelling out precepts that we have very good reason to think sum up the theory of the right? Again, we should not go for a Euthyphro-style theory that equates the right with what is literally written in the heart. Yet on this theory the grounds of the right would be literally intrinsic to us—and they could be essential to us, if we wish: further examination could show that it is an essential feature of human DNA that it generates this inscription. This would give us reason to think that human beings were designed by an ethical genius, but not that the ground of the right is the writing in the heart.

The lesson is this, I think. We want the grounds of the right to be of the correct sort. Being metaphysically intrinsic to us is a necessary condition for this, but it is not sufficient. We want the grounds of the right to be “close to us”: closer than our physical hearts, as it were.

But we also don’t want the grounds of the right to be too close to us. We don’t want the right to be grounded in the actual content of our desires or beliefs. We are looking for grounds that exercise some sort of a dominion over us, but not an alien dominion.

The more I think about this, the more I see the human form—understood as an actual metaphysical component intrinsic and essential to the human being—as having the exactly right balance of standoffish dominion and closeness to provide these grounds. In other words, Natural Law provides the right metaethics.

And the line of thought I gave above can also be repeated for epistemological normativity. So we have reason to think the Natural Law provides the right metaepistemology as well.

Mathematical structures, physics and Bayesian epistemology

It seems that every mathematical structure (there are some technicalities as to how to define it) could metaphysically be the correct description of fundamental physical structure. This means that making Bayesianism be the whole story about epistemology—even for idealized agents—is a hopeless endeavor. For there is no hope for an epistemologically useful probability measure over the collection of all mathematical structures unless we rule out the vast majority of structures as having zero probability.

A natural law or divine command epistemology can solve this problem by requiring us to assign zero probability to some non-actual physical structures that are metaphysically possible but that our Creator wants us to be able to rule out a priori. In other words, our Creator can make us so that we only take epistemically seriously a small subset of the possibilia. This might help with the problem of scepticism, too.

Divine Command Metaethics

The following simple and valid argument came out of discussions with Mark Murphy (who has a forthcoming book that contains related arguments, though perhaps not this one).

According to the identity version of Divine Command Metaethics (IDCM), to be obligated to A is to be commanded to A by God (or to be willed to A by God or to be commanded to A by a loving God--details of this sort won't matter). But:

1. If p explains x's being F, and to be F is the same as to be G, then p explains x's being G.
2. My being commanded by God to follow Christ explains my being obligated to follow Christ.
3. It is not the case that my being commanded by God to follow Christ explains my being commanded by God to follow Christ.
4. Therefore, it is false that to be obligated to A is the same as to be commanded by God to A. (By 1-3)

And so IDCM is false.

The argument more generally shows that no normative-level answer to a "Why am I obligated to A?" question can provide a property identical with being obligated. Thus, sometimes at least the answer to "Why am I obligated to A?" is that Aing maximizes utility. Hence, by an exactly parallel argument, being obligated to A is not the same as having A as one's utility maximizing option.

The argument is compatible with constitution versions of DCM on which the property of being obligated to A is constituted by the property of being commanded to A. But such theorists then have the added complication of explaining what the constitution relation means here, over and beyond bidirectional entailment (after all, many non-divine-command theorists will agree that necessarily x is obligated to A iff God wills x to A).

An argument form in ethics

Consider the following argument form:

1. It would be good if A were forbidden (respectively, permitted).
2. Therefore, probably, A is forbidden (respectively, permitted).

For instance, it would be bad if one were forbidden to fail to fulfill (apparent) promises made under duress. For then people could place one under duress, and force one to promise to serve them for life, and one would be obliged to keep to that. So, probably, it is permitted to break such (apparent) promises. On the other hand, it would be good if one were obliged, ceteris paribus, to fulfill promises to self, since such promises would be a useful tool for self-mastery. Therefore, probably, one is obliged to keep such promises.

As a technical point, we probably want to boost the antecedent in (1) to say not just that A is forbidden (permitted) but that it is additionally known or at least believed to be such.

Consequentialists will be friendly to a version of the argument form, assuming that there is an inference to be made from something's being believed forbidden to its being less likely to be done.

The interesting question is whether there is anything non-consequentialists can make of this argument. I think divine command theorists can. A good legislator, makes prohibitions that are good for his subjects. So divine command theorists will accept this argument form, and this counts in favor of divine command theory.

Natural law theorists will have to accept the argument form when "good" is restricted to mean "good for the agent", because of the tight link between the right and the perfective of the agent. It takes a little bit more work for natural lawyers to accept the argument form when "good" is not restricted to the agent's own good. If the agents are people, some work can be done by the fact that flourishing in a flourishing community is one of the basic goods. But to get the argument form in all generality, one might need to add theism to natural law (and a sociological matter of fact, natural lawyers overwhelmingly seem to be theists)—for theism will give one reason to think that the natures of the existent beings are in some significant degree of harmony.

What about other non-consequentialist theories? Social contract ones will probably respect this argument form. Kantian ones? Here, things are much less clear. The historical Kant's theory is theistic or at least deistic, and Kantianism plus theism or deism does make this argument form plausible: it is likely that God would arrange things such in the Kingdom of Ends that acting well is connected with flourishing. But a non-theistic Kantianism might be unable to give us good reason to think the argument form is right. That is an argument against non-theistic Kantianism.

One worry. The argument form may suffer from some circularity. After all, as Socrates taught, it's bad to do what is forbidden, simply because it is forbidden. So in evaluating what is good in (1), one needs to avoid taking the mere fact of the action's being forbidden into account.