Table Of ContentMORAL AND LEGAL REASONING
MORAL AND LEGAL
REASONING
Samuel Stoljar
© S. J. Stoljar 1980
Softcover reprint of the hardcover 1st edition 1980
All rights reserved. No part of this publication may be
reproduced or transmitted, in any form or by any means,
without permission
First published 1980
in the U.K.
and all other parts of the world
excluding the U.S.A. by
THE MACMILLAN PRESS LTD
London and Basingstoke
First published in the U.S.A. 1980 by
HARPER & ROW PUBLISHERS INC.
BARNES & NOBLE IMPORT DIVISION
British Library Cataloguing in Publication Data
Stoljar, Samuel Jacob
Moral and legal reasoning
I. Law and ethics 2. Legal reasoning
I. Title
170 B]55
ISBN 978-1-349-05097-0 ISBN 978-1-349-05095-6 (eBook)
DOI 10.1007/978-1-349-05095-6
LCN 79-55525
for Margaret Stoijar
Contents
Preface 1x
I Reasons and Rules I
Practical and Theoretical Reasons I
Institutional Rules and Institutional Facts 6
The Rules of Games I o
Autonomous and Heteronomous Rules I4
Heteronomy and Rationality I9
2 Moral and Prudential Considerations 24
Prudential Reasoning: Means and Ends 24
Prudence, Benevolence and Morality 29
Moral Ends and Rationality 3 2
The Golden Rule Argument 3 6
The Categorical Imperative 39
Personal Commitments and Moral Judgements 44
3 A Calculus of A voidable Harm 46
Towards Rational Moral Argument 46
Reasons, Rules and Universalisability 49
Universalisability not a Sufficient Condition 54
Normativity: the Emergence of Norms 57
Social Assumptions and Moral Rules 64
Responsible Actions and Complainable Harm 67
Harm as a Basis of Morality 7 I
VII
Vlll CONTENTS
4 Distributive Justice and Utility 75
Problems of Distribution
75
Needs and Equality 79
Desert, Merit and Inequality 86
Distributive Schemes: Unfair Advantages 90
Private and Public Interests 95
Some Moral Dilemmas 102
Brief Retrospect 105
5 Precedents, Principles and Practices 109
Moral and Legal Precedents 109
Principles and Exceptions 115
Patterns and Practices 122
The Practice of Promise-Keeping 125
Obligations and Oughts 13
I
Law and Equity 133
6 Moral and Legal Rules 136
Censure and Coercion 136
Sanctions and the Legal System 140
Statutes, Judges and Legal Logic 144
Borderline Cases and Moral Neutrality 149
The Primacy of Rights 152
Moral and Legal Theory 157
Notes 159
Index 170
Preface
This book pursues a number of related themes in moral and
legal philosophy, with two themes, however, more central
than the others. One overall theme seeks to expose a basic
closeness between moral and legal reasoning especially where
such reasoning relates to the way we rationally judge our
inter-personal grievances, that is, the way we rationally
support or justify, distinguish or qualify, oppose or dismiss
our mutual claims or complaints. Another major theme tries
to establish that to argue rationally is not just to give reasons,
but, more importantly, is to give reasons capable of conclud
ing an argument, these being reasons which can also be said to
be right or wrong not from a prudential but a distinctly
moral point of view. Without a moral content, we shall
concomitantly suggest, legal rules would be a fortui
tous heap of imperatives without any internal purpose or
direction, operating essentially ad hoc, while without a legal
connection morality tends to err ·about its true centre of
gravity as it misses out on what are socially the most
significant situations, in particular those having to do with
avoidable harm or injury, precisely the cases in which moral
argument acquires its greatest rational strength instead of
remaining, as it does in most other areas, merely 'open' or
persuasive.
I wish to thank quite a few Canberra friends patient
enough to listen to earlier versions of sections of this book;
and I am especially grateful to two colleagues, one philo
sopher, one lawyer, who read the whole manuscript and
offered helpful and encouraging comments.
Canberra, October 1979 SAMUEL STOLJAR
Reasons and Rules
I
PRACTICAL AND THEORETICAL REASONS
What we do, how we act or behave in our lives with regard
to ourselves or to others, is on one level certainly determined
by our felt needs and wants, as instinct drives us, as inclination
bids us do; but on another level is, or can be, influenced by
reason or rational reflection, as when we consider what we
should do, or why, or when we think about our choices as
choices or about our actions in the light of their objectives or
effects. Without this capacity to reason about, and in this way
to direct or guide, our actions, we would have no sense of
what it means to act, to act for a purpose, nor of the evidence
upon which we act, nor of rules or principles that distinguish
between right and wrong actions; we would only have
feelings and desires, doing our things not as self-conscious or
self-starting individuals but as animals or plants do. Human
action would be scarcely distinguishable from bodily move
ments, from such things as falling down or falling sick which
are physical events but are not actions; for human actions,
precisely because they are guided or guidable by reasons, also
offer themselves to beingjudged as to how well or wisely we
act, or how ill or foolishly.
Now the reasons so guiding our actions commonly form
part of rules; indeed it is now easier to say why we have rules,
or what they are for or about: rules tell us, very broadly, what
to do, or how to act, in order to bring about certain objects or
ends, either with regard to physical things, or with regard to
ourselves, or with regard to other persons especially where
our actions impinge on them beneficially or detrimentally.
2 MORAL AND LEGAL REASONING
Moreover, in guiding our actions, rules presuppose that as
guidable human agents we are both free and rational: free
because of our natural capacity to pursue and press differen
tial aims, to act differently from others when we so decide;
rational because the reasons incorporated in the rules provide
at least some knowledge of what, for certain purposes, we
simply have to do, the rules thus communicating a sort of
necessity about certain actions, sometimes called practical
necessity, yet without abrogating our residual freedom not to
comply.
The practical reasons designed to guide actions need to be
distinguished from theoretical reasons. The latter give us
knowledge of the world irrespective of, sometimes even in
spite of, human actions or aims, hence knowledge of what is
anyhow the case, of what is possible or probable, whereas
practical reasons only convey the knowledge we need to
achieve our self-chosen ends by our own actions. Theor
etically we may have good reason to say that in many, if not
all, cases it rains whenever the sky clouds over darkly; to
believe in the possibility of rain would here rest on good
('reasonable') evidence, being a valid inductive or prob
abilistic inference from previous facts and as such also a useful
addition to our 'objective' or scientific knowledge of what
usually, albeit not invariably, occurs. Practically, we may
have good reason to think that taking an umbrella would be a
prudent precaution if, though only if, we wish not to get wet.
A practical reason is not intended to explain why rain comes
when it does or anything else about scientific meteorology; a
practical reason can thus by-pass theoretical or scientific
explanations; it has only to be informative, but does not have
to make things intelligible as well; we need no meteorol
ogical knowledge to understand that an umbrella may prove
helpful in the rain.1 A practical reason, moreover, must be
kept distinct from a purely personal or subjective one. If
asked why we do not want to get wet, we may give as our
reason a dislike of personal discomfort; and if asked why we
dislike this, we would, as Hume observed, very soon come to
