Over at the Legal Profession Blog, Jeff Lipshaw considers the relationship of positivism and universal moral truth. He references an example in which Justice Kennedy, while in practice "persuades his client (by having him read King Lear) not to favor a particular child in his estate. The point is that the law would allow that result, but that result was not right."
The point, I take it, is to distinguish facts about the world--that the will would be enforced as written--with moral propositions such as: It is wrong to favor one child over another in a bequest. (Query whether that is the lesson of "Lear": competitors (i) Don't be hubristic and high-handed; (ii) you could do it, but the consequence will be bad and you will regret it). For Prof. Lipshaw this raises the worry (the connection is not quite clear to me) that the "reducto-empiricism" of young lawyers will lead them either to take a purely instrumental view of the law (becoming "red-meat litigators") or to take a constitutive view of the law and become "law and economics professors" (the horror!).
This distinction seems quite sound--as a good Humean I always worry about is-ought inferences--but I don't see that it entails anything. As I read the point, it is that Justice Kennedy (i) advised his client based on an ethical or world view that was neither limited to nor constituted by purely legal points; and (ii) that this is the right way to approach such a situation. Assuming I read it correctly, what are we to make of this claim?
Not much, I think. Presumably Justice Kennedy had solid grounds for questioning the omission of the child as heir. If not, he was just channeling his preferences, which might or might not be worthy of respect in a given situation.
Suppose the omitted child had been roped into some cult that would just take the money, for example. What should a lawyer do? As a matter of ethics, two options seem equally valid to me: (i) counsel the client against this move on the ground of equal treatment and respect for life choices of autonomous persons; (ii) write the will the way the client wants on the ground that the child has gone off the deep end and the money would go to waste. (One could also suggest (iii) adding a provision to the will instructing or encouraging the favored child to give money to the omitted child if s/he ever leaves the cult.)
If you don't buy that, consider the advice of a hypothetical lawyer who advises a client to leave more to his sons than to his daughters, on the grounds that the sons must do credit to the family name and provide for families, while the daughters will marry and be cared for by husbands. On what basis (other than pragmatic concerns about the probability that the premises were true, etc.) would Kennedy's advice be ethically sounder, and in what sense would that basis be some sort of universal truth?
More generally, it is relevant that this is part of what Liphsaw calls an "age old" debate. That phrase rightly implies that the debate has produced no real progress, except that which requires that assertions be re-cast in terms relevant to a particular time, and that inconvenient (read: unpopular) aspects of that truth be added or dropped as needs be. Thus, for example, a modern Kantian would do well to steer clear of Kant's views on adultery, masturbation, and homosexuality. Not because those assertions have been falsified--they are exactly as true now as they ever were--but because they don't sell very well and will tend to drag down whatever point Kant is invoked to make. For the same reason, originalists take well to Michael McConnell's originalist defense of Brown v. Board--they are tired of getting hammered with Brown as an example, and thus have a rhetorical need (not a substantive analytical one) to embrace it.
Nor is there any reason to believe that universality would or should be a condition for a moral code. Suppose someone could demonstrate to your satisfaction that your deeply felt beliefs were just contingent views that could be different without being less universally true. So what? If you had thought them through and they are good enough for you, why would that fact alter your behavior one whit? If universality was a crutch substituting for analysis, of course, your views might be shaken, and you might have to re-think some things.
But that would be all to the good. With no possibility for demonstrating to the general satisfaction of any heterogeneous society that one norm or another (beyond some very basic adaptive points--like "don't kill so many of your society that its existence is threatened") is some sort of universal moral truth, in reality one has to be prepared to defend one's views on the ground of one's own judgment. That implies a lot more personal accountability for the gains and losses any moral system entails--you cannot lay it off on some universal you have no choice but to follow--but an ethic of personal accountability for ethics seems to me highly desirable on pragmatic grounds.
(Which, I think, implies a defense of moral theorizing on grounds other than the probability of establishing truth: It helps discipline one's thinking about practical problems one must face, in roughly the way that weightlifting might help police officers, firefighters or soldiers do their jobs. On its own, however, it leads either to powerlifting or bodybuilding. Each has value as entertainment or aesthetics, perhaps, but no more. Put differently, returns to moral theorizing might be positive early on, for some basic propositions, but decline sharply (and possibly turn negative) past that point.)
So one might rightly be glad for reducto-empiricism. As between that and dressing up one's biases as universal truth, reducto-empiricism has the virtues of adaptability and a bit of modesty (especially in the face of evidence) regarding first principles. As Hand said, the spirit of liberty is the spirit which is not too sure that it is right. Add to that the core notion of accountability (here I'll borrow for ethics a phrase I have heard attributed to Joe Flom when a summer associate asked him what would happen to the Skadden firm when he retired: "that's up to you"), and you've got a pretty good framework for getting by in the real world, where universals are appealed to far more often than they are found. I'd much rather have new lawyers take that line than believe they have the inside track on universal truth regarding a client's will.
Jeff has called this approach pragmatic defeatism, but I think that is slightly off: It can't be defeatism if there is no victory to be won.