Reynold Spector has provided us with an ambitious and thought-provoking, if somewhat idiosyncratic, essay on ethics and the law. It makes for an interesting read, and he has several insightful observations. That said, I do have some areas of disagreement. More fundamentally, his argument as a whole is on my view inconsistent and self-defeating. To keep this response concise, I will confine myself to the two key flaws in Spector’s analysis.
Hume’s Law
Spector relies heavily on “Hume’s Law” to dismiss much of moral philosophy as unhelpful, including moral philosophy that makes use of facts about human nature. (See his remarks on Michael Shermer.) This is a misapplication of Hume’s key distinction between “is” statements and “ought” statements.
Being an admirer of David Hume, I am familiar with Hume’s Law. Hume famously argued that from purely factual premises it is not possible to infer an evaluative statement. Hume was, and is, correct about this. It is a fundamental point about logic and ethics that is still too often overlooked or misunderstood. However, Hume’s Law does not mean that facts are unconnected or irrelevant to moral judgments, or that we cannot infer a moral judgment from a conjunction of facts and moral principles.
Consider the assertion: “You should not smoke.” This is an evaluative statement. What if a smoker challenges the person giving this advice by saying, “Why should I stop smoking? You’re just giving your opinion.” The person giving the advice counters with the ample facts demonstrating that smoking is hazardous to one’s health. How much damage it does to one’s body will vary from person to person, but medical science does establish that smoking damages one’s body. To these facts, the smoker can, of course, still say, “So what? Hume’s Law! Hume’s Law! These facts don’t imply I should stop.”
Technically, the smoker would be correct. The facts about the health effects of smoking do not, by themselves, imply that one should stop smoking. However, the person giving the advice is working with certain background assumptions. This person is effectively saying, “If you want to avoid damage to your body and avoid the risk of serious harm, you should not smoke.” That one should avoid damage to one’s body and the risk of serious harm is an evaluative principle relating to one’s health that is widely shared. Facts in combination with evaluative principles can yield evaluative statements.
The same analysis applies in moral situations. Facts by themselves do not yield moral judgments, but facts in combination with moral principles do yield moral judgments. Furthermore, there is a bedrock of moral norms that is widely shared: norms such as don’t kill, don’t steal, don’t inflict pain gratuitously, keep your commitments. These norms are widely shared because the human condition does not change much from culture to culture in certain key respects. So if we want to live together in peace and have a stable society that fosters cooperation and trust, then there are certain norms we should follow. Of course, there is nothing in logic to compel you to accept these fundamental moral norms, just as there is nothing in logic to compel you to accept the prudential principle that you should avoid damaging your body. You could want to mutilate yourself and live in a state of anarchy. Fine. But this does not imply that arguments that make use of these fundamental norms are invalid, provided these norms are made explicit.
There is substantial consensus about fundamental moral norms, because morality is grounded in human nature and human interests, which is what ensures that it is not (entirely) subjective. Hume himself was not a subjectivist in ethics. To the contrary, Hume argued that moral reasoning makes use of the “point of view common … with others.”
To sum up: Spector is right that Hume’s Law is fundamental and operates as a check on fallacious reasoning. However, it does not have the sweeping implications that Spector attributes to it.
Law Over Ethics
Spector then makes the bold claim that “given the failure of philosophers and ethical thinkers to give us a coherent account of ethical principles and practice,” we should look to the law for guidance. This is a bold move because conventional wisdom has it that morality should undergird the law, not vice versa.
Upon reading this part of the essay, one awaits the compelling argument that will persuade us to accept the primacy of the law. Unfortunately, such an argument never appears. Instead, Spector offers observations about various perceived virtues of the American legal system. But what supplies the standards by which we can determine whether a law is good or bad? It can’t be ethics, because Spector has already trashed ethics. It can’t be the law, because the law cannot supply its own justification. There seems to be nothing beyond Spector’s own preferences.
In the first part of his ambitious essay, Spector assures us that Hume’s Law means we cannot use facts to justify moral judgments. In the second half of his essay, however, Spector does not allow Hume’s Law to provide any sort of impediment to his own moral judgments. Consider this remarkable passage: “It is clear there is currently an excessive concentration of wealth in America. One reason for this is that executives of public companies are often rewarded with outrageous compensation. These large imbalances can be fixed by changing the rules for executive compensation and modifying the tax laws.”
Why is the concentration of wealth “excessive”? Why is the compensation of executives “outrageous”? Why do these perceived problems need to be fixed? Ironically, Spector’s comments here illustrate precisely one of the problems that Hume was concerned with. Hume was annoyed with moralists who would covertly slip moral judgments into what seemed like a series of factual assertions. Hume wanted people to understand that you cannot infer moral judgments from facts without an argument making it clear exactly which moral principles you are relying upon (and, of course, you’re also obliged to argue for those principles).
Spector says, “[t]o make changes in ethics, morals and the law, secular humanists must decide what needs to be changed.” I agree. But before embarking on that discussion, we should have a clear understanding of the process of moral reasoning and, sadly, on this score Spector fails to deliver.