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Exclusionary Reasons, Virtuous Motivation, and Legal Authority

Published online by Cambridge University Press:  03 August 2018

Andrew Jordan
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Abstract

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 31 , Issue 2 , August 2018 , pp. 347 - 364
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2018 

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Footnotes

I would like to thank Stephanie Patridge, Scott Hershovitz, Ken Himma, and an anonymous reviewer at the Canadian Journal of Law & Jurisprudence for many helpful comments on this essay.

References

1. Indeed, others have seemed willing to follow Raz on this point. See, e.g., Herzog, Don, “The Kerr Principle, State Action, and Legal Rights” (2007) 105 Mich L Rev at 38.Google Scholar

2. Raz, Joseph, Practical Reason and Norms (Princeton University Press, 1990) at 39.Google Scholar I note that there is something of an interpretive issue here. Raz could be construed not as arguing that there are exclusionary reasons that must figure in a sound account of practical rationality, but rather as providing an account of how some subjects treat authoritative norms. I’ve framed the issue in a way that assumes Raz thinks that there are exclusionary reasons. But, the arguments that follow could be reframed as a challenge to the second interpretation—that is, as claiming that subjects ought not to treat authoritative norms in that way.

3. Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford University Press, 1979) at 17–19.CrossRefGoogle Scholar

4. The outweighing relationship need not require that all reasons are commensurable—that is, assessable in terms of a single measure of weight. So long as they are at least comparable, we can get something like outweighing off the ground. In cases where reasons aren’t even comparable, then it won’t make sense to talk about weight. For more in incommensurability and incomparability, see Ruth Chang’s “Introduction” in R Chang, ed, Incommensurability, Incomparability, and Practical Reason (Harvard University Press, 1997).

5. For an extended discussion of disabling, see Dancy, Jonathan, Ethics without Principle (Oxford University Press, 2004) at 38–43.CrossRefGoogle Scholar

6. At least she should not do so where the excluded reason favors action contrary to what is prescribed by the non-excluded reasons.

7. Raz, supra note 2 at 38.

8. For example, if my friend’s severe headache is a reason to get him an aspirin that outweighs the inconvenience of going up the stairs to fetch it, then there is a sense in which I ought not to act for the reason that going up the stairs is inconvenient.

9. Whiting makes a similar observation. Whiting, Daniel, “Against Second-Order Reasons” (2017) 51:2 Nous 398.Google Scholar

10. Arpaly, Nomy, Unprincipled Virtue (Oxford University Press, 2003).Google Scholar

11. Ibid at 84. See also Markovits, Julia, “Acting for the Right Reasons” (2010) 119 Phil Rev 201.Google Scholar

12. See Immanuel Kant, Groundwork of the Metaphysics of Morals, 4:397–98.

13. My own view, argued for elsewhere, is that this shows that cleanliness becomes a non-reason in that context. See Jordan, Andrew, “On Reasons, Evidence of Oughts, and Morally Fitting Motives” (2014) 42 Philosophia 391,Google Scholar especially 394-97, and Jordan, Andrew, “Reasons, Holism and Virtue Theory” (2013) 63 Phil Quarterly 248.Google Scholar

14. Arpaly, supra note 10 at 84. This second claim is more controversial. See, e.g., Markovits, Julia, “Acting for the Right Reasons” (2010) 119 Phil Rev 201.Google Scholar Markovits accepts the first claim, but rejects the second one. What is less controversial is that an agent would be better, qua agent, if she has deep concern. For my purposes, whether we want to say that an agent is more morally praiseworthy in acting when she has deep concern, or whether we merely want to say that she is a better agent when she has deep concern won’t affect the argument that follows. Rather, it will simply require reframing the issue. Instead of saying that exclusionary reasons create a tension in praiseworthy action, we will have to say that exclusionary reasons create a tension in an account of virtuous agency.

15. See, e.g., Hursthouse, Rosalind, On Virtue Ethics (Oxford University Press, 1999) at 139.Google Scholar And, generally, McDowell, John, Mind, Value and Reality (Harvard University Press, 1998) at 50–76.Google Scholar

16. Many virtue theorists argue that virtuous agency is effortless in a certain sort of way. See, e.g., Nicomachean Ethics 1146 (a). See also McDowell, supra note 15. Whether virtuous agency is effortless, in many cases, exclusionary reasons would make virtuous agency cognitively discordant. It is that result that I claim is implausible.

17. Contrast what we can say if the reason is disabled. Here, since the reason doesn’t have normative force, presumably a virtuous agent would not be motivated by it. The psychological discord is avoided. Admittedly, there is something of a literature on what the psychological makeup of a virtuous agent must be in the face of disabling conditions. See, e.g., Stangl, Rebecca, “A Dilemma for Particularist Virtue Ethics” (2008) 58:233 Philosophical Quarterly 665–78.Google Scholar For my take on the issue, see Andrew Jordan, “Reasons, Holism and Virtue Theory”, supra note 13 especially 260–65.

18. Raz, supra note 2 at 183.

19. Ibid at 180. Raz motivates the claim by reference to reasons for belief, “[t]here is nothing wrong with us just because our reasons for holding certain beliefs do not exhaust the reasons for that belief which are available to us.” And he suggests that reasons for belief should work like reasons for action in this respect.

20. Raz, supra note 2 at 180.

21. Ibid at 181.

22. Ibid at 182-84.

23. Ibid at 183.

24. Ibid at 180.

25. Some might be more profligate in attributing reasons than I am. I am skeptical, for instance, of the existence of reasons that are such that if they figured in the motivations of an agent would show her to be more blameworthy in some regard. So, the range of cases where there are bona fide competing reasons will be fewer than one might have thought on a more permissive account of what reasons there are. See Jordan, “Reasons, Holism and Virtue Theory”, supra note 13.

26. See, e.g., Hursthouse, supra note 15 at 46-48.

27. See, e.g., Dancy, supra note 5 at 24-25 and “Enticing Reasons” in Wallace, Pettit, Scheffler & Smith, eds, Reason and Value: Themes from the Moral Philosophy of Joseph Raz (Clarendon Press, 2006).

28. Exclusionary reasons could be coupled with first order reasons. For instance, an order may be both an exclusionary reason not to act on reasons contrary to the order and a reason to do what was ordered. Qua first order reason the order might figure into a conception of the good, because a duty of obedience could be part of such a conception. But in that capacity the order merely competes with other goods.

29. Raz, supra note 2 at 41.

30. Ibid at 41.

31. Ibid at 45.

32. Of course, there are many possible cases, and nothing said here forecloses the possibility that the exclusionary reasons theorist could formulate a case where the positing of exclusionary reasons is the best explanation of the relevant intuitions.

33. See Regan, Don, “Authority and Value: Reflections on Raz’s Morality and Freedom” (1989) 62 S Cal L Rev 995–1095.Google Scholar

34. See generally, Regan, Don, “Reasons, Authority, and the Meaning of ‘Obey’: Further Thoughts on Raz and Obedience to Law” (1990) 3 Can JL & Jur 3.Google Scholar

35. Regan, supra note 32 at 1008.

36. Emran Mian discusses other kinds of cases, including coordination cases and argues that they too can be captured in first-order terms. See “The Curious Case of Exclusionary Reasons” (2002) 15 Can JL & Jur 99, especially at 108-12.

37. See Raz, supra note 3 at 17. And Raz, supra note 2 at 39.

38. Technically there could be positive reasons to act for reasons. As those aren’t at issue here, for sake of simplicity I use the term “putative second order reasons” to refer to reasons to not act for reasons.

39. Raz, supra note 2 at 40. It is this trumping feature of exclusionary reasons that is essential to Raz’s account. Without it, Raz’s concept of exclusionary reasons loses any distinctive normative dimension.

40. Of course, this is consistent with there being exclusionary reasons. The point here is that if we can capture the relevant phenomena using only first order reasons we should, insofar as such an account has the theoretical virtue of being easier to square with the moral psychological account noted above.

41. Daniel Whiting argues that it is not possible to act for a reason for a reason. Whiting, supra note 9 at 9-11. E.g., it is not possible to act out of love for one’s wife, for the sake of preventing childhood cancer. For this reason, he thinks we should reject second order reasons. I think Whiting is likely correct about this. And this would provide an additional reason to reject second-order reasons. However, for the purposes of this paper, I assume that one can act for a reason, for a reason.

42. Scott Hershovitz has pressed this objection in private correspondence.

43. Christian Piller makes a similar point, in service of an argument against a certain conception of moral particularism. Piller, Christian, “Particularism and the Structure of Reasons” (2006) 21(2) Acta Analytica 87.Google Scholar Roughly he argues that particularists are right about reasons, but that there is a weaker notion of normative connectedness which is principled. Related points about the possibility of general conditions of normative salience which aren’t reasons have been made by Vayrynen, Pekka, “Moral Generalism: Enjoy in Moderation” (2006) 116(4) Ethics 707,Google Scholar and by me, see Andrew Jordan, “Reasons, Holism and Virtue Theory”, supra note 13.

44. Raz often talks of exclusionary reasons as though they operate only within a certain scope, within which they successfully exclude, and outside of which they do not. See Raz, supra note 3 at 22.

45. This kind of picture is especially attractive if one adopts the kind of view on which there is no distinctive kind of legal normativity. Rather, there is just the question “what is the legal practice” and the further question “what should we do given that there is this legal practice.” See, e.g., Hershovitz, “The End of Jurisprudence” (2015) 124(4) Yale LJ 1160.