Hume's Law and Moral Philosophy

Hume's Law and Moral Philosophy

• Hume's law, interpreted by Grice and Hare, suggests individuals have more freedom in choosing moral opinions than factual ones.
• Judgments about what "ought to be" can stem from value judgments, statutes of limitations, or other "ought" judgments, but not factual ones.
• Baker and Hacker identify the "naturalistic fallacy" as incorrectly defining 'good' using natural or non-natural predicates.
• Hare criticized attempts to derive norms or values from descriptive facts as "descriptivism."
• Wróblewski notes the "is/ought" relationship and the naturalistic fallacy's importance in practical discourse and the study of human behavior.
• The dichotomy is fundamental to Kelsen's normativism and the Pure Theory of Law.
• This dichotomy is a key defense against natural law theories that base norms on the supposed factual nature of humanity and society.

Siniscalchi's Perspective

• Siniscalchi addresses the philosophy of law and Italian moral philosophy, contrasting Hume's moral irrationalism with Moore's intuition-based link between being and having to be.
• Frankena argues the fallacy lies in defining 'good,' not deriving it from facts.
• Siniscalchi focuses on 'normal,' citing Kneale's descriptive (statistical average) and prescriptive (behavioral standard) senses.
• Kneale argues these dimensions are inseparable, a thesis Siniscalchi recalls.
• Siniscalchi notes the prescriptive implications of normality in theories like those of Nietzsche and Hitler.
• Siniscalchi identifies a shift "from the Sein of normality to the Sollen of the norm".
• Siniscalchi uses Kafka's Metamorphosis to question the normality of living as an insect for a human.
• He references Matheson’s I am Legend, where an epidemic turns people into vampires, to explore changing concepts of normality.
• Siniscalchi questions whether the habits of vampires, Kafkaesque insect men, or Nazis can be considered normal.

Normality and Normativity

• Siniscalchi references Perelman’s argumentation theory, noting the common logical error of moving from the normal to the normative.
• Siniscalchi states erroneously grounding normativity in normality can be problematic.
• Siniscalchi uses Husserl's example of a warrior to illustrate how "a warrior must be valiant" implies a valiant warrior is a good warrior, highlighting the "eidetic" normality where what normally happens is what must happen.
• This eidetic normality can lead to a "fallacy of the fallacy of the normal," where the prescriptive sense of "normal" comes from the descriptive sense without falling into the "fallacy of the normal".

Applications and Criticisms

• In legal philosophy, the open or closed door analogy illustrates the distinction between describing a state and ordering an action.
• In contrast, the concept of a warrior implies valor, making a cowardly warrior a contradiction.
• Siniscalchi applies the "fallacy of the fallacy of the normal" to law, using the "bonus pater familias" concept, where a caring father normally is also what a caring father should be.
• Siniscalchi uses analysis of Hare and Moore, literary examples from Kafka and Matheson, and Perelman's rhetoric.
• Jean-Pierre Dupuy's analysis of cognitive science and cybernetics, "Mechanization of the mind" follows a similar pattern.
• In interactions with machines, humans may adapt to the machine's communication methods, as a replacement for human flexibility.
• Siniscalchi's identified link between logic and storytelling is realized by automation procedures.

Fuller on Natural Law vs. Legal Positivism

• Lon Fuller distinguishes natural law from legal positivism, which separates what law "is" from what it "should be".
• Natural law blends "being" and "having to be," uniting schools of thought through concepts of justice from nature, man, or God.
• Natural law philosophers acknowledge state authority but prioritize their natural right's "goodness," which positive law can't fully nullify.
• Fuller suggests individuals should consider natural law because nature doesn't clearly separate being and having to be.

Law, Literature, and Interpretation

• Fuller argues that telling a story involves both what the story "is" and our interpretation of what it "should be".
• Our interpretation can't fully align with the story.
• Fuller says history encompasses both the being of history and its potential to be in our interpretation.
• History, like law or a sentence, is not static but evolves with new tellings and interpretations.
• Fuller sees this dichotomy as artificial, instead of a natural division, and that narration is the starting point.
• Fuller's natural law is procedural, not thematic or ontological, rejecting absolutes unrelated to humans.
• Fuller renames his theory Eunomics, the science of good order, focusing on the relationship between means and ends.

Purpose and Eunomics

• Fuller uses the example of a mechanical device instruction booklet to show how the effectiveness of rules depends on the reader's competence and perspective.
• Instructions written with errors may still allow a competent individual to understand them and use the device.
• A shared objective ranks the readings.
• A purpose is both a fact and a standard for judging facts.
• Legal rules' essential meaning lies in a purpose.
• Kelsen's system treats purposes as aimless, unlike natural law's relational and interactive finality.
• Fuller's Eunomics aims to harmonize individual ends within a social order.
• Fuller advocates for a rhetorical and topical legal method, moving beyond syllogistic reasoning.
• The starting point of an argument for a lawyer is influenced by their intended end.
• Fuller prompts discussion on legal interpretation and its ethical implications, referencing Dworkin's theory.
• This approach questions the foundations of legal positivism and its unsustainable distinction between law and fact.
• Fuller challenges the traditional approach to legal education, urging students to consider the changing moral foundation of law.

Critiques of Hume's Law

• Hume's theory has faced radical misinterpretations, shaped by readers' biases.
• Yalden-Thomson cites MacIntyre's criticism of the analytic philosophers' "standard interpretation" of Hume.
• According to Henze, "'Hume's Law' is not Hume's view".
• The focus is not on Hume's "true" interpretation but on how his work has generated diverse, conflicting readings.
• MacIntyre argues Hume was correcting theories that incorrectly inferred moral judgments from facts, rather than establishing a division.

Hume's Moral Theory

• Hume argues against deriving morality from reason, emphasizing instincts, habits, and passions.
• Balistreri states, passions, not reason, save us from skepticism. Morality stems from feelings towards actions and qualities.
• Hume analyzes how moral judgments as perceptions and morality is practical, influencing actions and feelings, unlike reason.
• Hayek interprets this to mean that morals influence actions and feelings, and morals cannot be derived from reason.
• Hume allows reason to inform about passion objects or identify cause-and-effect, but passions act.
• Reason can be a mediated cause of action by arousing a passion.
• For Hume, vice and virtue are perceptions, not qualities, and moral relationships enrich existing relationship categories.

Hume on "Is" and "Ought"

• Hume expresses difficulty in determining the specific relationship involved when morality intervenes.
• He recommends analyzing and justifying the shift from "is" and "is not" statements to "ought" or "ought not" statements.
• Henze suggests Hume reaffirms that active principles cannot stem from inactive ones. Passions are causally related to moral ideas, not reason.
• The issue is tracing morality's relationship, not a logical fallacy preventing derivation of "ought" from "is."
• Moral distinctions express sentiments, encapsulated in our decisions rather than derived from factual premises.
• Hume views human nature as the basis for moral decisions.
• Henze notes that "is" propositions tied to passions or feelings can justify moral judgments.

Hume's Moral Sense

• Hume claims distinguishing vice and virtue comes from sentiment, not reason, and that this feeling can be subtle.
• Pleasure and pain determine if something is virtuous or not. The origin of the moral sense stems from feeling.
• Feeling satisfaction from observing a character constitutes the sense of virtue.
• Panksepp’s affective neurosciences and Damasio’s thinking, offer new perspectives on Hume’s feeling theory.
• Panksepp links man & animal nervous systems, giving new insight to Hume’s feelings as the basis for morality theory.
• Sequeri's affective turn in metaphysics connects feeling to justice, which can reopen Hume's question about relationship to moral understanding.

Contrasting Interpretations of Hume

• Hayek interprets Humian principles as supporting unintentional human action and his own knowledge theory.
• Hayek quotes "The rules of morality are not the conclusions of our reason.”
• From this quote, Hayek develops his connection of unintended consequences of human action and the foundation of a customary legal theory.
• Positivistic or customary theories of law have emerged from Hume's reading of this passage.
• Karl Popper inverts Hume's psychological theory of induction with his theory of conjectures and refutations.
• Popper identifies Humian psychological theory as: Repetition, genesis of habits, and belief in law stemming from regular succession.
• Central point is that habit is observed after repetition. Anticipation precedes repetition.

Popper's Critique of Hume and Essentialism

• Popper argues that Hume's repetitions occur only from a certain perspective and that anticipation and assumptions precede repetition.
• Expectations precede repetition.
• Point of view is introduced.
• Popper's "Open Society" provides philosophical support for Fuller's normative position.
• Popper interprets the Greek opposition between nature and convention as critical dualism between facts and norms.
• Popper claims you can't deduce a norm or decision from a fact.
• Popper argues that defining terms is not a scientific approach.
• In fact, Popper states that it adds a regression to infinity.
• Popper criticizes Hobbes, Husserl and Moore.
• Popper notes analytical thought would have pretended to found the distinction between being and having to be.
• Moore broke with fact and question of law.

Fuller on Plato, Aristotle, and Popper

• Fuller notes how Plato and Aristotle would not have understood the distinction between being and having to be.
• Fuller grasps how Popper rejects man's nature, while accepting Eunomics (problem of good order).
• Eunomics reaches common ground with the natural theory of the ethical judgement.
• Fuller poses the question of ensuring a "good" order.

Law, Morality, and Rhetoric

• The inquiry into the relationship between law, morality, and legal reality remains open.
• Literature and rhetorical methodology attempt to reconcile irreconcilable opposites.
• Fuller proposed a narrative model to bridge facts and values.
• Fuller was in controversies with Nagel and Hart regarding law and morality separation.
• The dialogue is more like the “dialogue between the deaf”.
• An interpretation from storytelling and rhetoric is still possible for the debate.

Manderson on Hart-Fuller Debate

• Manderson uses literature to try to unite the opinions in the debate.
• Manderson reads the debate from the point of view of law and literature
• The ghost shows the phantasmic sense of legal interpretation.
• Positivism or purposivism is not an and/or. The starting point is always at stake.
• You need both positions to make sense of law, so you must acknowledge them both at once
• There is an oscillation from language and approach to another.
• According to Manderson, Derrida's position unites Henry James with Fuller recalling "the ghost of the undecidable”.
• Awareness of the phantasmic character of conscience is necessary, and the oscillation between law requested by the theories shows the ghost that hosts, at the same time, interpretation and conscience.

Affective Neuroscience and Aesthetics

• Manderson connects the ghost of Derridian law with the Hegelian spirit.
• If in law it's still necessary, and the law be interpreted, ghost is needed
• Manderson, goes from Milgram (and Putnam who quotes him),
• The extended order of Hayek, the dogmatic anthropology of Legendre, the eunomics of Fuller and the new science of Vico show consciousness and institutions are connected.
• This shows how the theory of law is always in between the unknown and human attempt to live there.
• The approach to legal issues requires a humanistic approach, i.e. Vico's theory.
• The use of rhetoric and its connection from Aristotle, Cicero, lets Vico obtain some certainties.

The Purpose of Rhetoric

• The purpose of rhetoric is the discovery of truth.
• It is the use of applicable words to be used in things and deeds that can be modified by human choice.
• Metaphors are given high value, figures and tropes are valued for thought, not just their beauty.
• Rhetoric is from its start, ethical- practical.
• For Vico, the cartesian thinking goes against rhetoric and contrary to certainty of reason.