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Ethics, Law and the Challenge of Cognitive Science

Published online by Cambridge University Press:  06 March 2019

Matthias Mahlmann

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Many questions come to the mind if one starts thinking about morality and the law - questions about the epistemological or ontological status of morality, its content, motivating force or cognitive accessibility. They concern the content of norms, the enigma of justice and the demands of human solidarity. The universality, particularity or relativity of morality and material legal standards is as much an issue as the general relation of morality and the law.

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Articles
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German Law Journal , Volume 8 , Issue 6 , 01 June 2007 , pp. 577 - 615
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Copyright © 2007 by German Law Journal GbR 

References

1 See M. Gazzaniga, The Ethical Mind 167 (2005): “A series of studies suggesting that there is a brain-based account of moral reasoning have burst into the scientific scene. It has been found that regions of the brain normally active in emotional processing are activated with one kind of moral judgment but not another. Arguments that have raged for centuries about the nature of moral decisions and their sameness or difference are now quickly and distinctly resolved with modern brain imaging. The short form of the new results suggests that when someone is willing to act on a moral belief, it is because the emotional part of his or her brain has become active when considering the moral question at hand. Similarly, when a morally equivalent problem is presented that he or she decides not to act on, it is because the emotional part of the brain does not become active. This is a stunning development in human knowledge because it points the way forward figuring out how the brain's automatic response may predict out moral response” [emphasis in the original].Google Scholar

2 Cf. S. Pinker, The Blank Slate 241 (2002).Google Scholar

3 See further M. Mahlmann & J. Mikhail, Cognitive Science, Ethics, and Law, in Ontology and Epistemology (Z. Bankowski ed., 2005); M. Mahlmann, Rationalismus in der Praktischen Theorie (1999); J. Mikhail, Rawls’ Linguistic Analogy: A Study of the “Generative Grammar” (2000); J. Mikhail, Universal Moral Grammar: Theory, Evidence and the Future, 11 Trends in Cognitive Science 143 (2007); M. D. Hauser, Moral Minds (2006).Google Scholar

4 F. Hutcheson, Illustrations on the Moral Sense 105 (1971).Google Scholar

5 See, supra, note 3.Google Scholar

6 N. Chomsky, Aspects of the Theory of Syntax (1965); The minimalist program, (1995); S. Pinker, The Language Instinct (1994); R. Jackendoff, Patterns in the Mind: Language and Human Nature (1994); M. Baker, The Atoms of Language (2001).Google Scholar

7 See further, N. Chomsky, Language and Problems of Knowledge 152 (1988); M. Bierwisch, Recht linguistisch gesehen 42 (Grewendorf, ed., 1992); S. Stich, Moral Philosophy and Moral Representation 215 (Hechter, Nadel, & Michod, eds., 1993); J. Mikhail, C. Sorrentino, & E., Spelke, Towards a Universal Moral Grammar 1250 (Gernsbacher & Derry, eds., 1998); S. Dwyer, Moral Competence 169 (Murasugi & Stainton, eds., 1999); R. Jackendoff, The Natural Logic of Rights and Obligations 66 (Jackendoff, Bloom, & Wynn, eds., 1999); G. Harman, Explaining Value (2000); J. Mikhail, Law, Science, and Morality: A Review of Richard Posner's ‘The Problematics of Moral and Legal Theory,’ 54 Stanford Law Review 1057 (2002); M. Mahlmann, Sprache als Spiegel der praktischen Vernunft, Zeitschrift für Rechtsphilosophie 168 (2003); M. Mahlmann & J. Mikhail, Cognitive Science, Ethics, and Law 95 (Z. Bankowski ed., 2005); M. Mahlmann, The Cognitive Foundations of Law, in H. Rottleuthner, Foundations of Law 75 (2005). For a discussion of the linguistic analogy, see J. Rawls, A Theory of Justice, 45 (rev. ed. 1999) .Google Scholar

8 For modern objective idealism, see V. Hösle, Philosophie der Okologischen Krise (1991); for a recent defence of moral realism, see D. O. Brink, Moral Realism and the Foundation of Ethics (1989); R. Shafer-Landau, Moral Realism: a defence (2003).Google Scholar

9 Platon, Apology, 31 d, 41 d. The daimonion, something divine, a inner voice, advises Socrates only to refrain from doing something. There is no explicit connection to morality and there are other issues involved like admission of pupils, Platon, Theaetetus, 151a, or the nature of death, Apology, 40a – 42a. But the context is in important respects ethical – it is Socrates’ commitment to virtue, justice and his attempt to preserve them and the laws, id., 31 d – 33 a, 40 a 42 a. Xenophon, Memorabilia, Book I, I, 2, 4; Book IV, VIII, 1, 5: the „deity“ advises Socrates in various matters. The decisive question is, however, what is just and what unjust, id. Book IV, VIII, 4.Google Scholar

10 Aristotle, Nic. Eth. 1140b. Practical wisdom is one of the dianoetic virtues.Google Scholar

11 Compare T. Aquinas, Summa Theologica, I-II, q. 94,1: “(D)icendum quod synderesis dicitur lex intellectus nostri, inquantum est habitus continens praecepta legis naturalis, quae sunt prima principia operum humanorum.” (“Synderesis is said to be the law of our intellect because it is a habit containing the precepts of the natural law, which are the first principles of human actions.”).Google Scholar

12 See H. Grotius, De Jure Belli ac Pacis, I, I, X; S. Pufendorf, De Officio Hominis et Civis juxta Legem Naturalem, III, IX – XII.Google Scholar

13 R. Cudworth, A Treatise Concerning Eternal and Immutable Morality 20 (1996): “To conclude, therefore, things called naturally good and due are such things as the intellectual nature obliges to immediately, absolutely, and perpetually, and upon no condition of any voluntary action that may be done or omitted intervening”.Google Scholar

14 F. Hutcheson, An Inquiry into the Origin of our ideas of Beauty and Virtue xiv (1971).Google Scholar

15 I. Kant, Grundlegung der Metaphysik der Sitten, Akademie Ausgabe Vol. IV; Die Kritik der praktischen Vernunft, Akademie Ausgabe Vol. V.Google Scholar

16 There are of course other concepts of conscience. M. Heidegger, Sein und Zeit (1984), 270 outlines an existential ontological analysis of conscience against the classical idea, that the conscience provides concrete obligations for particular actions in particular circumstances. He denounces this idea as being “vulgar”, id. p. 269, as or being connected to a horizon of existence that understands life as naked business under rules, id. p. 294: “Diese Erwartung gründet im Auslegungshorizont des verständigen Besorgens, der das Existieren des Daseins unter die Idee eines regelbaren Geschäftsganges zwingt”. Instead, conscience is for Heidegger the call to authenticity and the witness of its possibility, id, p. 277: “Das Gewissen offenbart sich als Ruf der Sorge: der Rufer ist das Dasein, sich ängstigend in der Geworfenheit (Schon-sein-in…) um sein Sein-können. Der Angerufene ist eben dieses Dasein, aufgerufen zu seinem eigensten Seinkönnen (Sich-vorweg…)” (emphasis in the original), p. 289. Guilt is accordingly not connected to action against some norms but is primordially based on the nullity of human existence, id. p. 286. This kind of analysis does not account for any of the most basic properties of moral judgement, as developed below. For some further comments cf. M. Mahlmann, Heidegger's Political Philosophy and the Theory of the Liberal State, 14 Law and Critique 229 (2003).Google Scholar

17 R. Price, A Review of the Principal Questions in Morals (Raphael ed., 1758): in his view, this subjective account fails to be convincing, because moral judgment must be telling us, what things really are, id., p. 14.Google Scholar

18 F. Hutcheson, An Inquiry into the Origin of our Ideas of Beauty and Virtue 117 (1971); Illustrations on the moral sense, 133 (1971): “A certain incorporeal form, if one may use that name, a temper observed, a character, and affection, a state of sensitive being, known or understood, may raise liking, approbation, sympathy as naturally from the very constitution of the soul, as any bodily impression raises external sensations”. Hutcheson, id. 163, makes the distinction between “(1) the idea of external motion, known first by sense, and its tendency to the happiness or misery of some sensitive nature, often inferred by argument or reason”, “(2) apprehension or opinion of the affections in the agent, inferred by our reason”, “(3) the perception of approbation or disapprobation arising in the observer”. The approbation is held to be not an image of anything external.Google Scholar

19 „Take any action allow'd to be vicious: Wilful murder, for instance. Examine it in all lights, and see if you can find that matter of fact, or real existence, which you call vice. In which-ever way you take it, you find only certain passions, motives, volitions and thoughts. There is no other matter of fact in the case. The vice entirely escapes you, as long as you consider the object. You never find it, till you turn your reflexion into your own breast, and find a sentiment of disapprobation, which arises in you towards this action. Here is a matter of fact; but ‘tis the object of feeling, not of reason. It lies in yourself, not in the object”, D. Hume, A Treatise on Human Nature, Book III, Part I, Sect. I.Google Scholar

20 On Kant's implicit moral psychology, see M. Mahlmann, Kant's concept of practical reason and the perspectives of mentalism 85 (Z. Bankowski, ed., 2005).Google Scholar

21 On the argument from (ontological and epistemological) queerness, see J. L. Mackie, Inventing Right and Wrong 38 (1977).Google Scholar

22 Supra, note 19.Google Scholar

23 B. Russell, History of Western Philosophy 117 – 118, 834 (1999). It is an interesting question how this theoretical outlook relates to Russell's practise of political morality.Google Scholar

24 A. J. Ayer, Language, Truth and Logic, 107 (1956): ethical concepts “pseudo-concepts”.Google Scholar

25 C. L. Stevenson, Ethics and Language (1950).Google Scholar

26 R. Rorty, Human Rights, Rationality, and Sentimentality 122 (Shute & Hurley eds., 1998): “manipulating sentiment” is the right thing to do in ethical debates, for example through a “long, sad, sentimental story”, id. p. 133, not some rational foundationalism.Google Scholar

27 See M. Gazzaniga, The Ethical Mind 167 (2005). On some examples of such studies and their critical assessment, see below Fn 37.Google Scholar

28 Mackie, J. L., Ethics: Inventing Right and Wrong 15 (1977).Google Scholar

29 See Derrida, J., Force of Law, in Deconstruction and the possibility of justice 59 (Cornell, Rosenfeld & Carlson, eds., 1992).Google Scholar

30 N. Luhmann, Das Recht der Gesellschaft (1993).Google Scholar

31 Id., 496.Google Scholar

32 See J. Searle, The rediscovery of the mind 3, 73 (1992); for an alternative perspective of eliminative materialism, see P.M. Churchland, Eliminative Materialism and the prepositional attitudes, 78 Journal of Philosophy 67 (1981).Google Scholar

33 S. Nichols, Innateness and Moral Psychology (P. Carruthers et. al. eds., 2005) fails to appreciate this difference. He takes the disgust about spitting in a glass of water to be the same like moral disgust. Another example is the question discussed in moral psychology whether it is “moral” to eat a chicken with which one has had sexual intercourse before, a question e.g. J. Haidt, The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgement, 108 Psychological Review, 814 (2001) takes as relevant for moral theory. The study of moral judgement is, however, something much more well-defined than a “general study of human aversion”.Google Scholar

34 F. Hutcheson, An Inquiry Into the Origin of Our Ideas of Beauty And Virtue 117 (1971): there is an important difference between a “fruitful field”, a “commodious habitation” and a “generous friend” or a “noble character”. He rightly points out, that if that distinction would not hold, one had the “same Sentiments and Affections toward inanimate Beings” as toward “rational Agents”. This is a non-trivial, empirical observation. There is a twin-earth imaginable, where the inhabitants would not make such rather intriguing differentiations.Google Scholar

35 I. Kant, Kritik der Urteilskraft, Akademie Ausgabe Vol. V, 204.Google Scholar

36 For a similar argumentation, see J. Mikhail, Universal Moral Grammar: Theory, Evidence and the Future, 11 Trends in Cognitive Science 143 (2007).Google Scholar

37 This leads to core problems of recent studies of neuroscience and “neuroethics”. To take some examples: Blair in a series of papers developed the theses, that moral judgement is emotive, because certain people like psychopaths show a correlation between lack of moral judgement and abnormally low responsiveness to distress clues, cf. e.g. R. J. R. Blair, A Cognitive Development Approach to Morality: Investigating the Psychopath, 57 Cognition 1 (1995); R. J. R. Blair et al., Is the Psychopath ‘morally insane’? 19 Personality and individual Differences, 741 (1995). The idea is that the moral deficit derives from the affective deficit. S. Nichols, Innateness and Moral Psychology, (P. Carruthers et. al. (eds), 2005) states that harm norms prohibit actions to which we are predisposed to be emotionally averse. J. Haidt, The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgement, 108 Psychological Review, 814 (2001) argues that moral judgement and moral action are based on emotional intuitions shaped by socialisation, whereas reason provides post factum rationalizations. The argument about empathy and love as the core of moral orientations is put forward, too, id. p. 824p. If the arguments outlined here are on the right track, things are more complicated than that. This does not, by the way, rule out the possibility of the kind of social psychological influences Haidt and others investigate, like peer pressure or coherence motives. It does not even rule out the descriptive truth of statements like the following (despite the impoverished understanding of what lawyers do) that in reality, “moral reasoning is not left free to search for truth but is likely to be hired out like a lawyer by various motives, employed only to seek confirmation of preordained conclusion”, id. 822. These influences might, however, contribute not to a theory of moral judgement as such, but to a theory of the distortion of moral judgement. Greene, J. D., Sommerville, R. B., Nystrom, L. E., Darley, J.M. & Cohen, J. D., An fMRI Investigation of Emotional Engagement in Moral Judgment, 293 Science 2005 (2001), pursue a comparable course: “judgments concerning “impersonal” moral dilemmas more closely resemble judgments concerning non-moral dilemmas than they do judgments concerning “personal” moral dilemmas”, ibid. at 2107. The argument is based on cases like the following: It is accepted that there is an obligation to help a hurt man at the roadside despite his blood damaging the property of the helping person. There is in contrast no obligation accepted to help the poor by a donation. The reason for this is taken to be the personal character of the former and the impersonal character of the latter dilemma. Only direct confrontation incites emotion that is decisive for moral judgement, because only this can have evolved in the small groups of our ancestors. Greene sums up: “we ignore the plight of the world's poorest people not because we implicitly appreciate the nuanced structure of moral obligation, but because, the way our brains are wired up, needy people who are ‘up close and personal’ push our emotional buttons, whereas those who are out of sight languish out of mind”, J. D. Greene, From Neural ‘is’ to Moral ‘Ought’: What are the Moral Implications of Neuroscientific Moral Psychology, 4 Nature Reviews Neuroscience 849 (2003). Greene and Haidt combine their results and state, Greene, J. & Haidt, J., How (and Where) Does Moral Judgment Work, 6 Trends in Cognitive Science, 522 (2002): that “emotion is a significant driving force in moral judgment” and continue: “reasoning can play an important role in the production of impersonal moral judgements and in personal moral judgements in which reasoned considerations and emotional intuitions conflict”. The emerging picture seems to suggest, that moral judgements are either emotional (personal) or resembling non-moral considerations (impersonal), apparently utility calculations. M. Gazzaniga, The Ethical Brain 171 (2005) draws the following picture of moral judgement: There are emotional gut reactions, based on empathy and a post factum rationalisation by the “interpreter” of the reasons of the judgement. Cf. for further argument, Mikhail, J., Universal Moral Grammar: Theory, Evidence and the Future, 11 Trends in Cognitive Science 143 (2007).Google Scholar

38 This is how the roadside-vs.-third-world-donation-example (supra, note 37) can be explained: the different behaviour is a question of heuristics, of performance, not moral competence. This is because a vivid understanding, what a donation means, creates a moral obligation to help, as illustrated by the global wish to help e.g. after the Tsunami in eastern Asia. Apart from other problems, not considering this is one of the reasons why some studies with patients suffering from damage to the prefrontal cortex remain inconclusive, cf. e.g. Koenigs, M., Young, Y., Adolphs, R., Tranel, D., Cushman, F., Hauser, M. & Damaiso, A., Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgements, 446 nature 908 (2007).Google Scholar

39 See, supra, note 37.Google Scholar

40 Greene, J. D., Sommerville, R. B., Nystrom, L. E., Darley, J.M. & Cohen, J. D., An fMRI Investigation of Emotional Engagement in Moral Judgment, 293 Science 2005 (2001); Greene, J. & Haidt, J., How (and Where) Does Moral Judgment Work, 6 Trends in Cognitive Science 517 (2002); Heekeren, H. R., Wartenburger, I., Schmidt, H., Schwintowski, H.P. & Villringer, A., An fMRI Study of Simple Ethical Decision-Making, 14 Neuroreport 1215 (2003); Moll, J., Zahn, R., de Oliviera-Souza, R., Krueger, F. & Grafman, J. The Neural Basis of Human Moral Cognition, 6 Nat. Rev. Neuroscience 696 (2005); Koenigs, M., Young, Y., Adolphs, R., Tranel, D., Cushman, F., Hauser, M. & Damaiso, A., Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgements, 446 nature 908 (2007).Google Scholar

41 Another problem is that the lack of emotive responses to certain cases might be caused by a lack of a cognitive understanding of the wrongness of an act with the consequent lack of moral feelings (guilt, shame, remorse, etc.). Thus the affective deficit could turn out to be (partly) the result of a deficit of moral judgement and not vice versa.Google Scholar

42 The theory of vision was important in this context. The classical Aristotelian conception of vision was that sense organs naturally display the nature of the world. It was assumed that the perceptual image of the world exactly matches the world as it is. This point of view was increasingly hard to defend when first insights in the structure of vision were gained, e.g. through Kepler's work about the retina and the inversion of pictures on it. It was a mayor insight by Descartes to realise that visual perception involved representation arising in preformed ways from inborn cognitive systems stimulated from outside. In this view, visual perception is created by the mapping of sense impression by a cognitive system into a visual experience, see S. Gaukroger, Descartes 276 (1995).Google Scholar

43 P. Strawson, The Bounds of Sense 19 (2004) summarised (quite appropriately) what he took (presumably mistakenly) as a fundamental flaw in Kant's theory as follows: “It is true that Kant thought of himself as investigating the general structure of ideas and principles which is presupposed in all our empirical knowledge; but he thought of this investigation as possible only because he conceived of it also, and primarily, as an investigation into the structure and working of the cognitive capacities of beings such as ourselves. The idiom of the work is throughout a psychological idiom. Whatever necessities Kant found in our conception of experience he ascribed to the nature of our faculties”. See, supra, note 20 on the question of Kant's moral psychology.Google Scholar

44 N. Chomsky, Language and Thought 36 (1993).Google Scholar

45 On the mind-body problem and the ontology of mental entities, see N. Chomsky, On Nature and Language, (2002), 45.Google Scholar

46 J. Derrida, Force of Law 13 (1992): “Its very moment of foundation or institution (…) the operation that amounts to founding, inaugurating, justifying law (droit), making law, would consist in a coup de force, of a performative and therefore interpretative violence that in itself is neither just nor unjust and which no justice nor previous law with its founding anterior moment could guarantee or contradict or invalidate. No justificatory discourse could or should ensure the role of meta-language in relation to the performativity of institutive language or its dominant interpretation”.Google Scholar

47 R. Rorty, Human Rights, Rationality, and Sentimentality 133 (Shute & Hurley eds., 1998).Google Scholar

48 D. Hume, A Treatise on Human Nature, Book III, Part I, Sect. I.Google Scholar

49 F. Hutcheson, Illustrations on the Moral Sense 150 (1971).CrossRefGoogle Scholar

50 D. Hume, A Treatise on Human Nature, Book III, Part I, Sect. I. On his later, more differentiated views compare D. Hume, Enquiry concerning the principles of morals, Sec. I: “The final sentence, it is probable, which pronounces characters and actions amiable or odious, praise-worthy or blameable; that which stamps on them the mark of honour or infamy, approbation or censure; that which renders morality an active principle and constitutes virtue our happiness, and vice our misery: it is probable, I say, that this final sentence depends on some internal sense or feeling, which nature has made universal in the whole species. For what else can have an influence of this nature? But in order to pave the way for such a sentiment, and give a proper discernment of its object, it is often necessary, we find, that much reasoning should precede, that nice distinctions be made, just conclusions drawn, distant comparisons formed, complicated relations examined, and general facts fixed and ascertained”.Google Scholar

51 F. Hutcheson, Illustrations on the Moral Sense 120 (1971); D. Hume, A Treatise on Human Nature, Book III, Part I, Sect. I.Google Scholar

52 Reasonable is for example not used in the same sense as in the Rawlsian distinction of the reasonable as opposed to the rational. Rawls takes reasonable to consist of two aspects, first, the willingness to propose fair terms of cooperation and to abide by them provided others do and, second, the willingness to recognize the burdens of judgement, J. Rawls, Political Liberalism 48 (1993).Google Scholar

53 The questions get even more complicated if one thinks of questions like the nature of human beings – a particularly important non-moral precondition of moral judgement as the concept of humankind evidently determines moral judgement, though it does not provide normative principles itself. For some comments on human nature and a social vision, J. McGilvray, Chomsky 248 (1999).Google Scholar

54 W. Frankena, Ethics 13 (1963): “I think that moral philosophers cannot insist too much on the importance of factual knowledge and conceptual clarity for the solution of moral and social problems. The two besetting sins in our prevailing habits of ethical thinking are our ready acquiescence in unclarity and our complacence in ignorance – the very sins that Socrates died combating over two thousand years ago”. Therefore he rightly states: “It is not enough to show that people's basic ethical judgements are different, for such differences might all be due to differences and inclompletenesses in their factual beliefs” id. p. 110.Google Scholar

55 The neminem-laede formula does not follow analytically from the goodness of altruism. Altruism could be morally good, harm, however, morally neutral.Google Scholar

56 For e.g. Kant, the fostering of the happiness (Glückseligkeit) of others was the central duty of virtue apart from self-perfection: I. Kant, Metaphysik der Sitten, Akademie Ausgabe, Vol. VI, 388: “Wenn es also auf die Glückseligkeit ankommt, worauf als meinen Zweck hinzuwirken es Pflicht sein soll, so muß es die Glückseligkeit anderer Menschen sein, deren (erlaubten) Zweck ich hiemit auch zu dem meinigen mache. Was diese zu ihrer Glückseligkeit zählen mögen, bleibt ihnen selbst zu beurtheilen überlassen; nur dass mir auch zusteht manches zu weigern, was sie dazu rechnen, was ich aber nicht dafür halte, wenn sie sonst kein Recht haben es als das Ihrige zu fordern” (emphasis in the original). On the lack of self-interest in the observer: F. Hutcheson, An inquiry into the original of our ideas of beauty and virtue 111 (1971): “The Word Moral Goodness, in this Treatise, denotes our Idea of some Quality apprehended in Actions, which procures Approbation, and Love toward the Actor, from those who receive no advantage by the Action. Moral Evil, denotes our Idea of a contrary Quality, which excites Aversion, and Dislike toward the Actor, even from Persons unconcern'd in its natural tendency” (emphasis in the original).Google Scholar

57 I. Kant, Die Kritik der praktischen Vernunft, Akademie Ausgabe, Vol. V., 87.Google Scholar

58 “Cet infini, plus fort que le meurtre, nous résiste déjà dans son visage, est l'expression orginelle, est le premier mot: « tu ne commettras pas de meurtre ». L'infini paralyse le pouvoir par sa résistance infinie au meurtre, qui, dure et insurmontable, luit dans le visage d'autrui, dans la nudité totale de ses yeux, sans défense, dans la nudité de l'ouverture absolue du Transcendant. Il y a là une relation non pas avec une résistance très grande, mais avec quelque chose d'absolument Autre: la résistance de ce qui n'a pas des résistance – la résistance éthique. (…) L'épiphanie du visage est éthique “, E. Levinas, Totalite et Infini 173 (1961).Google Scholar

59 Some authors of post-modernity explicitly state something like the principle of altruism: The core of ethics is „that un-founded, non-rational, unarguable, no-excuses-given and non-calculable urge to stretch towards the other, to caress, to be for, happen what may”, Z. Baumann, Postmodern Ethics 244, 247 (1993).Google Scholar

60 J. Rawls, A Theory of Justice, 47 (rev. ed. 1999).Google Scholar

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62 J. Rawls, A Theory of Justice, 45 (rev. ed. 1999).Google Scholar

63 J. Rawls, Lectures on the History of Moral Philosophy 211 - 213 (2000).Google Scholar

64 Id., 241 discusses this problem, without solving it as the following summary illustrates, 243: “ As to whether our general and high-level convictions about practical reason are intuitions, as some say, they may of course be called that. However, as I have said, constructivism views these so-called intuitions not as convictions about an independent order of moral values, but as convictions about practical reason itself, about its principles and its ideas of reason”. The question is: what are these principles of practical reason and its ideas of reason, what is their content and origin?Google Scholar

65 J. Rawls, A Theory of Justice, 10 (rev. ed. 1999).Google Scholar

66 Id., 16: „Thus it seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstance in the choice of principles“. This is only reasonable and generally acceptable on the basis that human beings are descriptively equal (a feudalist or racist would disagree) and should be treated equally. Rawls makes no original point here, but restates a standard intuition about justice. See S. Pufendorf, De Officio Hominis et Civis juxta Legem Naturalem, I, 7.Google Scholar

67 One can for example put forward the standard argument that communication does not necessarily presuppose a minimal ethics (one can communicate with slaves) and that therefore the discourse principles of ethics presupposes the foundational principles mentioned.Google Scholar

68 R. Price, A Review of the Principal Questions in Morals 186 (Raphael ed., 1758) for a concise explanation: “When we are conscious that an action is fit to be done, or that it ought to be done, it is not conceivable that we can remain uninfluenced, or want a motive to action”.Google Scholar

69 I. Kant, Kritik der praktischen Vernunft, Akademie Ausgabe Vol. V, 78: „Achtung fürs moralische Gesetz ist also die einzige und zugleich unbezweifelte moralische Triebfeder“.Google Scholar

70 For further discussion of internalism see R. M. Hare, The Language of Morals 20, 30, 169, 197 (1952); R. M. Hare, Moral Thinking 23 (1982); D. O. Brink, Moral Realism and the Foundation of Ethics 39 (1989): G. Harman, Explaining Value, 30 (2000); an externalist view is taken by P. Foot, Virtues and Vices, 148 (1978).Google Scholar

71 D. Hume, A Treatise of Human Nature, Book III, Part I, Section I.Google Scholar

72 J. L. Mackie, Ethics: Inventing right and wrong 40 (1977): “Plato's Forms give a dramatic picture of what objective values would have to be. The Form of the Good is such that knowledge of it provides the knower with both a direction and an overriding motive; something's being good both tells the person who knows this to pursue it and makes him pursue it. An objective good would be sought by anyone who was acquainted with it, not because of any contingent fact that this person, or every person, is so constituted that he desires this end, but just because the end has to-be-pursuedness somehow built into it. Similarly, if there were objective principles of right and wrong, any wrong (possible) course of action would have not-to-be-doneness somehow built into it.”Google Scholar

73 Cf. e.g. the famous, admired and sometimes ridiculed praise of duty in I. Kant, Kritik der praktischen Vernunft, Akademie Ausgabe Vol. V, 86.Google Scholar

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79 Hart rightly observes that “obligation” is the concept that “haunts much legal thought”, H. L. A. Hart, The concept of law 85 (1997).Google Scholar

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81 There is an interesting meta-critique of Hume by Rawls that makes a point that is relevant in this context. He rightly says that Hume's critique of the Rationalists looses its force if one takes the Rationalists to propose not only objective truth in ethics but a motivational principle that truth in ethics perceives motivates. For more discussion, see J. Rawls, Lectures in the History of Moral Philosophy 80 (2000).Google Scholar

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83 For further, see the last leaflet of the group, e.g. in H. Steffahn, Die WEIßE Rose 143 (2005) and T. Mann's BBC radio address on the matter, June 27, 1943, in T. Mann, Gesammelte Werke, Vol. XI, 1075 (1990).Google Scholar

84 W. von Humboldt, Versuch die Gränzen der Wirksamkeit des Staates zu bestimmen, in Werke in fünf Bänden, Vol. I 64 (2002).Google Scholar

85 It should be noted that Kant's magnificent idea of the “Würdigkeit” (worthiness) to “Glückseligkeit” (happiness, beatitude) as the consequence of moral acting is based on the view that the world is constituted in a way that moral acting will not necessarily lead to the happiness of the agent, I . Kant, Kritik der reinen Vernunft, Akademie Ausgabe Vol. III, 525.Google Scholar

86 On the debate of dilemmas and realism see B. Williams, Ethical Consistency; Consistency and Moral Realism, in Problems of the Self (1973) and P. Foot, Moral Realism and Moral Dilemma, in Moral Dilemmas (2002).Google Scholar

87 Note that this is a familiar picture in the history of thought; see T. Aquinas, Summa Theologica, I-II, q. 91,3.Google Scholar

88 Cf. for a short overview of the literature, Mikhail, J., The Poverty of the Moral Stimulus, in Moral Psychology (W. Sinnott-Armstrong ed., forthcoming).Google Scholar

89 For an overview e.g. S. Pinker, The Blank Slate (2002).Google Scholar

90 For an overview R. Jackendoff, Patterns in the Mind (1994).Google Scholar

91 See, supra, note 88. On at least partly empirically-minded theories of moral cognition of authors like Piaget, Kohlberg or Habermas, see M. Mahlmann, Rationalismus in der Praktischen Theorie 46 (1999).Google Scholar

92 There is an increasing amount of work in this area. J. Mikhail pursues the thesis that the principle of double effect describes part of the universal moral grammar or, in technical language the I-morality. See further J. Mikhail, Rawls’ Linguistic Analogy (2000); Mikhail, J., Universal Moral Grammar: Theory, Evidence and the Future, 11 Trends in Cognitive Science 143 (2007). This is one of the first substantive theses about the content of a universal moral grammar and as such of great importance. For more discussion of this approach M. D. Hauser, Moral Minds (2006).Google Scholar

Here a different course is taken: Basic judgements about altruism and justice are analysed that are highly abstract. Concrete moral principles are taken to be the product of constructions from this abstract base. Research in the notion of double effect and justice/altruism (and any other imaginable topic) is thus not contradictory but complementary. J. Mikhail is very clear about the status of the principle of double effect: “The Principle of Double Effect is not itself a test of whether an action is right or wrong; rather its status is that of a second-order “priority rule” or “ordering principle” whose proper application is to state the only conditions under which otherwise prohibited actions are (or may be) permissible. Put differently, the principle's natural application is to serve as a principle of justification that states the necessary conditions that must hold for a presumptively wrong action to be justified” J. Mikhail, Rawls’ Linguistic Analogy 162 (2000) (emphasis in the original). This leaves the question open of what makes an action wrong (or right) in the first place. Here it is maintained, that justice and altruism are a good starting point to investigate this.Google Scholar

93 E.g. I. Kant, Grundlegung der Metaphysik der Sitten, Akademie Ausgabe Vol. IV, 463; or see further the comments before him of F. Hutcheson, An Inquiry into the Original of our Ideas of Beauty and Virtue 271 (1971) on the mysterious nature of the “occult Quality” of the moral sense: “This natural Determination to approve and admire, or hate and dislike Actions, is no doubt an occult Quality. But is it any way more mysterious that the Idea of an Action should raise Esteem, or contempt, than that motion, or tearing of Flesh should give Pleasure, or Pain; or the Act of Volition should move Flesh and Bones?“ On the limits of understanding in general in cognitive matters cf. the classic distinction of “riddles” that are solvable and “mysteries” that are not, e.g. N. Chomsky, On Nature and Language 58 (2002).Google Scholar

94 See, supra, note 79, 206.Google Scholar

95 For an attempt on such a constructivist enterprise as regards to a fully developed human rights bill, see further M. Mahlmann, Elemente einer ethischen Grundrechtstheorie (Elements of an ethical theory of Fundamental rights), forthcoming.Google Scholar

96 I. Kant, Grundlegung der Metaphysik der Sitten, Akademie Ausgabe Vol IV, 463.Google Scholar

97 Locke, J., An Essay Concerning Human Understanding, Book I, Chapter III, § 2.Google Scholar

98 I. Kant, Zum Ewigen Frieden, Akademie Ausgabe Vol. VIII, 360.Google Scholar

99 The account proposed here is thus remote from a rortian kind of contingency-based irony. See R. Rorty, Contingency, Irony, and Solidarity (1989). It is furthermore “vindicatory” in the sense B. Williams uses the term, arguing that ethics is one of the intellectual and cultural endeavours that cannot be “vindicatory.” See B. Williams, Philosophy as a Humanistic Discipline, 75 Philosophy 487 (2000): “For liberal ideas to have won an argument, the representatives of the ancien régime would have had to have shared with the nascent liberals a conception of something that the argument was about, and not just in the obvious sense that it was about the way to live or the way to order society. They would have had to agree that there was some aim, of reason or freedom or whatever, which liberal ideas served better or of which they were a better expression, and there is not much reason, with a change as radical as this, to think that that they did agree about this, at least until late in the process. The relevant ideas of freedom, reason, and so on were themselves involved in the change. If in this sense the liberals did not win an argument, then the explanations of how liberalism came to prevail – that is to say, among other things, how these came to be our ideas – are not vindicatory. “ Saying that some is morally wrong means therefore in Williams view not very much: “it conveys only the message that the earlier outlook fails by arguments the point of which is that such outlooks should fail by them. It is a good question whether a tune as thin as this is worth whistling at all”, id., 488. The alternative to an vindicatory approach is for Williams some kind of ethical existential fatalism: “We believe, for instance, that in some sense every citizen, indeed every human being – some people, more extravagantly, would say every sentient being – deserves equal consideration. Perhaps this is less a propositional belief than the schema of various arguments. But in either case it can seem, at least in its most central and unspecific form unhintergehbar: there is nothing more basic in terms of which to justify it. We know that most people in the past have not shared it; we know that there are others in the world who do not share it now. But for us, it is simply there. This does not mean that we have the thought: ‘for us, it is simply there’. It means that we have the thought: ‘it is simply there.’ (That is what it is for it to be, for us, simply there)”, id. 492 (emphasis in the original). For an attempt to transcend this account from the view of pragmatism, see H. Putnam, Ethics without Ontology 129 (2005) with reference to “situated resolution of political and ethical problems and conflicts” (emphasis in the original). If the mentalist argument is right, the Grundurteile, or foundational judgements are unhintergehbar, they are, however, as such not historically and cultural contingent (though many things in a full ethics is) and they are the bases of any “situated resolution” that will be ethically convincing.Google Scholar

100 In recent distributions there are attempts to account for moral difference by the use of a technical device of universal grammar – parameters, See S. Dwyer, Moral Competence 169 (Murasugi & Stainton, eds., 1999); M. D. Hauser, Moral Minds 44, 158, 420 (2006). Of course, such parameters could exist. But as has been stated before, there is no reason to assume that morality is like language in this respect. There is no point in arguing somebody out of a linguistic parameter. There is a point, however, in arguing about, for example, human rights. There are reasons for different moral judgements, not all clear, like knowledge of the relevant facts, ideological distortions etc, but parameters are not part of these reasons. The possibility of understanding exists and is illustrated in the current global human rights culture by any small progress in moral questions from slavery to the relations of man and woman. In consequence, there is ample empirical evidence that morality is rather like visual perception, and not operating with parameters like language at all. See further M. Mahlmann & J. Mikhail, Cognitive Science, Ethics, and Law, in Ontology and Epistemology 95, 100 (Z. Bankowski ed., 2005).Google Scholar

101 See F. Hutcheson, An Inquiry into the Origin of our ideas of Beauty and Virtue 203 (1971) emphasis in the original.Google Scholar

102 Following the parameters set by the classical texts on socio-biology, J. Wilson, Sociobiology (1975); R. Dawkins, The Selfish Gene (1976).Google Scholar

103 For example, see S. J. Gould & R. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: a Critique of the Adaptionist Programme, in Proceedings of the Royal Society B 205 581 (1979).Google Scholar

104 To take one example for a narrow adaptionist argument of this kind: Inborn moral judgements must be enhancing fitness. Inborn moral judgement decided upon fitness under conditions of small groups of hunters and gatherers. Only a morality that cares for a small group can have evolved. As this is so, human beings actually have a small group morality.Google Scholar

One can expand this kind of argument to all kind of properties discussed in evolutionary psychology: aggression, sexual behaviour, mate selection, territorial claims and so on. The proceeding is a reversal of an empirical approach that looks at the properties human beings have and than asks for an evolutionary explanation, being open that (at the moment or forever, we will see) that there is none at hand. The functionalist fallacy is to take the opposite course and to ascribe properties to an organism not because there are empirical hints that they exist, but because they have to exist due to the a priori methodological assumptions. As indicated in the text, there is for example a rather good case for a universalist morality and not a small-group-morality as the real thing to be explained in a moral theory that takes empirical data seriously. See further, M. Mahlmann, Rationalismus in der praktischen Theorie, 285 (1999).Google Scholar

105 At the moment, far reaching questions are discussed in respect to the relation of neuroscience and law: For example free will and responsibility in criminal and civil law, enhancement of cognitive functions (have witness to undergo such procedures?), tests of truth and lying, or bias, even prediction of behaviour, see further Neuroscience and the Law: Brain, Mind, and the Scales of Justice (B. Garland ed., 2004). It is an important question whether there is any hard theory of cognitive functions that really raises the normative questions discussed in this context. Is there, for example, really remotely a theory in sight that would in any significant sense predict behaviour? One should not forget that there were many equivalent claims in the past formulated with equal self-confidence like some of the current claims which failed to life up to their promise. An important concern for the law should therefore be to prevent that illusions about the reach of cognitive science will distort the administration of justice. For some comments on the importance of the theory of mind and language for general legal theory. See Mikhail, J., “Plucking the Mask of Mystery from Its Face”: Jurisprudence and H. L. A. Hart, 95 The Georgetown Law Journal 733 (2007).Google Scholar

106 Mikhail, J., Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory 54 Stanford Law Review 1057 (2002). One might argue that the economic analysis of law is very much inspired by scepticism about the rationality or even reality of moral concepts. Because morality seems to offer no clear guidance, the sober and seemingly clearer alternative of utility and effectiveness calculations is pursued.Google Scholar

107 It should be remembered in this context, that moral orientation is traditionally taken as (one of) the bases of the ascription of human dignity. See F. Hutcheson, An Inquiry into the Origin of our ideas of Beauty and Virtue 142 (1971). Also, see I. Kant, Die Kritik der praktischen Vernunft, Akademie Ausgabe, Vol. V., 87: “Der Mensch ist zwar unheilig genug, aber die Menschheit in seiner Person muß ihm heilig sein. In der ganzen Schöpfung kann alles, was man will, und worüber man etwas vermag, auch blos als Mittel gebraucht werden; nur der Mensch und mit ihm jades vernünftige Geschöpf ist Zweck an sich selbst. Er ist nämlich das Subjekt des moralischen Gesetzes, welches heilig ist, vermöge der Autonomie seiner Freiheit” (emphasis in the orginal).Google Scholar