Human law is a blunt instrument. We often replace the thing that we actually care about by a proxy for it, because it makes the law easier to formulate, follow and/or enforce. Thus, to get a driver’s license, you need to pass a multiple choice test about the rules of the road. Nobody actually cares whether you can pass the test: what we care about is whether you know the rules of the road. But the law requires passing a test, not knowledge.
When a thing is replaced by (sometimes we say “operationalized by”) a proxy in law, sometimes the law can be practically “exploited”, i.e., it is possible to literally follow the law while defeating its purpose. Someone with good test-taking skills might be able to pass a driving rules test with minimal knowledge (I definitely had a feeling like that in regard to the test I took).
A multiple-choice test is not a terrible proxy for knowledge, but not great. Night is a very good proxy for times of significant natural darkness, but eclipses show it’s not a perfect proxy. In both cases, a law based on the proxy can be exploited and will in more or less rare cases have unfortunate consequences.
But whether a law can be practically exploited or not, pretty much any law involving a proxy will have unfortunate or even ridiculous consequences in far-out scenarios. For instance, suppose some jurisdiction defines chronological age as the difference in years between today’s date and the date of birth, and then has some legal right that kicks in at age 18. Then if a six-month-old travels to another stellar system at close to the speed of light, and returns as a toddler, but 18 years have elapsed on earth, they will have that the legal rights accruing to an 18-year-old. The difference in years between today’s date and the date of birth is only a proxy for the chronological age, but it is a practically nearly perfect proxy—as long as we don’t have near-light-speed travel.
If a law involves a proxy that does not match the reality we care about in too common or too easy to engineer circumstances, then that’s a problem. On the other hand, if the mismatch happens only in circumstances that the lawmaker knows for sure won’t actually happen, that’s not an imperfection in the law.
Now suppose that God is the lawmaker. By the above observations, it does not reflect badly on a lawmaker if a law involves a proxy that fails only in circumstances that the lawmaker knows for sure won’t happen. More generally, it does not reflect badly on a lawmaker if a law has unfortunate or ridiculous consequences in cases that the lawmaker knows for sure won’t happen. Our experience with human law suggests that such cases are difficult to avoid without making the law unwieldy. And while there is no great difficulty for God in making an unwieldy law, such a law would be hard for us to follow.
In a context where a law is instituted by God (whether by command, or by desire, or by the choice of a nature for a created person), we thus should not be surprised if the law “glitches” out in far-out scenarios. Such “glitches” are no more an imperfection than it is an imperfection of a helicopter that it can’t fly on the moon. This should put a significant limitation on the use of counterexamples in ethics (and likely epistemology) in contexts where we are allowing for the possibility of a divine institution normativity (say, divine command or theistic natural law).
One way that this “glitching” can be manifested is this. The moral law does not present itself to us as just as a random sequence of rules. Rather, it is an organized body, with more or less vague reasons for the rules. For instance “Do not murder” and “Do not torture” may come under a head of “Human life is sacred.” (Compare how US federal law has “titles” like “Title 17: Copyright” and “Title 52: Voting and Elections”, and presumably there are vague value-laden principles that go with the title, such as promoting progress with copyright and giving voice to people with voting.) In far-out scenarios, the rules may end up conflicting with their reasons. Thus, to many people “Do not murder” would not seem a good way to respect to respect the sacredness of human life in far-out cases where murdering an innocent person is the only way to save the human race from extinction. But suppose that God in instituting the law on murder knew for sure that there would never occur a situation where the only way to save the human race from extinction is murder. Then there would be no imperfection in making the moral law be “Do not murder.” Indeed, this would be arguably a better law than “Do not murder unless the extinction of humanity is at stake”, because the latter law is needlessly complex if the extinction of humanity will never be at stake in a potential murder.
Thus the theistic deontologist faced with the question of whether it would be right to murder if that were the only way to save the human race can say this: The law prohibits murder even in this case. But if this case was going to have a chance of happening, then God would likely have made a different law. Thus, there are two ways of interpreting the counterfactual question of what would happen if we were in this far-out situation. We can either keep fixed the moral law, and say that the murder would be wrong, or we can keep fixed God’s love of human life, and say that in that case God would likely have made a different law and so it wouldn’t be wrong.
We should, thus, avoid counterexamples in ethics that involve situations that we don’t expect to happen, unless our target is an ethical theory (Kantianism?) that can’t make the above move.
But what about counterexamples in ethics that involve rare situations that do not make a big overall difference (unlike the case of the extinction of the human race)? We might think that for the sake of making the moral law more usable by the limited beings governed by it, God could have good reason for making laws that in some situations conflict with the reasons for the laws, as long as these situations are not of great importance to the human species. (The case of murdering to prevent the extinction of the human race would be of great importance even if it were extremely rare!)
If this is right—and I rather wish it isn’t—then the method of counterexamples is even more limited.
3 comments:
Here is one reason this makes me uncomfortable.
It is not rare for human beings to use fictional stories as one tool for forming the moral imagination, even when these fictional stories depict rare or even impossible events. It would be a big problem if such a use of fiction somehow by its nature tended to lead to malformed consciences. Maybe there is something wrong with the particular way that analytic philosophers of the 20th century used these stories in moral formation. But then I think we would need to spell out something about their proper use. (Would the Book of Job be a useful example to reflect on? It’s probably fiction. Job is in some pretty extreme circumstances where you might expect some natural functioning to glitch. I’m not sure.)
1. That's an interesting worry that I hadn't thought of.
2. But note that it is an art to write fiction that forms the moral imagination in a good way. One can also write fiction that deadens or malforms the moral imagination.
3. It is interesting to note that with the notable exception of the work of Lewis and Tolkien, most of the fiction that people talk about in the context of moral formation is mainstream fiction, which deals in the kinds of situations that people are all too often in.
4. Things do not _always_ glitch out in circumstances outside their proper operating environment. Space agencies doubtless put a lot of effort into figuring out what items designed for earth use also work fine in space. Some do and some don't. Some may even work better away from earth. (E.g., swords are a more effective weapon on the moon than on earth, because a puncture to a spacesuit is apt to be fatal.) Similarly, it takes serious moral insight to figure out which extreme circumstances are such that portraying them fictionally would lead to moral growth on the part of the reader. In some cases, the extremity of the circumstances could help isolate morally salient features in a way that helps with moral growth. But there is an art to doing that rightly.
Another thought. Suppose I know a moral principle Q. Then I can come up with extreme circumstances that bring out Q well: circumstances where Q doesn't glitch out. But this is because I already knew Q. In at least some cases of fiction, this is how it proceeds: the author knows (perhaps only implicitly) Q, and embodies it in the fiction. But in outlandish counterexamples, we are searching for Q, and that's different.
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