Illusory Moral Rules: How Law Misleads Us about Morality1

Liam Murphy, NYU

I

In her essay “Modern Moral Philosophy,” Elizabeth Anscombe describes what she calls “a law

conception of ethics.”2 A law conception of ethics conceives of morality as an order of rules that

a person is obliged or bound to follow. This makes sense, according to Anscombe, only if there

is a law-giver who is in a position to demand our obedience, along with a judge able to

determine whether we have complied. Which is all fine if you believe in divine law with God as

law-giver and judge. But for secular moderns to keep talking about moral rules that we are

bound to obey is simply confused. If we want to do ethics without God, our only option is a

virtue-centered conception of ethics, such as Aristotle’s. Modern moral philosophy has to go.

To many readers, Anscombe’s claim seems plainly too strong. Undoubtedly modern

Western moral theory is heavily influenced by Jewish and Christian conceptions of divine law.

But it doesn’t seem to be nonsensical to talk about moral rules without believing in a divine

law-giver and judge. We make no kind of conceptual mistake if we say that though there is no

God we are nonetheless morally obliged, required, or duty-bound not to inflict suffering on

innocent persons for personal gain.

That response to Anscombe seems right to me, but I’ve become convinced that her

identification and critique of a law conception of ethics nevertheless contains a very important

1 An earlier version of first three sections of this paper was presented as the 2017 Herbert Morris Lecture in Law and Philosophy at UCLA. I benefitted greatly from comments in the discussion that followed. I am grateful too for comments from audience members at Binghamton University, the University of Toronto, the Free University of Berlin, Union College, and from colleagues and students at NYU’s School of Law and Department of Philosophy. I am especially indebted to David Golove, Samuel Scheffler, and Seana Shiffrin.2 Philosophy 33 (1958): 1-19, reprinted in Ethics, Religion and Politics: The Collected Papers of G. E. M. Anscombe, Vol. 3 (Minneapolis, MN: University of Minnesota Press, 1981), 26-42.

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truth. It isn’t that talk of obligation and duty and moral rules makes sense only if there really is

a moral legislator and judge. There is no moral legislator or judge but there are, I believe, real

moral duties and rights. The problem is that it is misleading to conceive of morality as if it were

a legislated set of rules. It distorts moral thought to adopt the point of view of a legislator,

because the problem of figuring out how to live one’s own life is a very different problem from

that of figuring out what the rules of positive law should be.3

The most well-known law conception of ethics can be found in Kant, at least in the

Groundwork. His ubiquitous invocation of “the moral law” does not use a vague and inclusive

word such as the English “law,” or the German Recht, bur rather Gesetz, which means a

statutory provision. And one formulation of Kant’s categorical imperative has it that a will is in

conformity with practical reason when it legislates universal law. We call this the formula of

autonomy, as the idea is that each of us gives the law to ourselves. That particular idea, the

idea of self-legislation, Anscombe swats aside as an absurdity, declaring that the concept of

legislation requires superior power in the legislator.4 My own objection is different. Morality is

not legislated by God, nor by Kantian rational agents thinking of themselves as analogous to

God;5 but the important issue is not who legislates. The real problem lies in thinking of morality

as a kind of legislation in the first place.

3 I first started to think along these lines a decade ago under the influence of my then doctoral student, Ronit Donyets Kedar. For Donyets Kedar’s own development of her insight, see “The Unrecognized Dominance of Law in Morality: The Case of Promises," Canadian Journal of Law & Jurisprudence 24 (2011): 79-107. The second main stimulus to my thoughts in this paper is Barbara Herman’s “Thinking about Imperfect Duties” (unpublished draft, 2014, available here: http://www.law.nyu.edu/sites/default/files/upload_documents/ImperfectDutiesNYU.pdf), though our views are very different.4 “Modern Moral Philosophy,” 2.5 “On the Proverb: That May be True in Theory, but it is of No Practical Use,” (1793) Ak VIII, 279, n. See Jerome Schneewind, The Invention of Autonomy (Cambridge: Cambridge University Press, 1998), 512-13.

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This means that even if we give up on actual moral legislators, either God or human

autonomous agents, and move to an idea of hypothetical legislation, the main objection

remains.

There are suggestions of the idea of morality as hypothetical legislation in several

prominent contemporary moral and political theories. T.M. Scanlon’s methodology for moral

argument has us imagine that we are together seeking a set of principles for the general

regulation of behavior; this sounds a lot like the task of a legislator.6 Or take Jürgen Habermas’s

discourse principle, which is a general principle for the justification of all norms, be they legal or

moral: “Only those norms of action are valid to which all possibly affected persons could assent

as participants in rational discourses.”7 Though moral norms require different kinds of rational

discourse to justify them than do legal norms, it is striking that moral and legal norms are said

to require the same general kind of justification.

A much purer case of a legislative perspective can be found in Derek Parfit’s recent

argument for rule consequentialism in On What Matters. That is not surprising, since Parfit is

self-consciously presenting what he considers to be a Kantian argument.8 But it is also true that

rule consequentialism itself—the view that everyone ought to follow the rules whose universal

acceptance would make things go best—is a law conception of ethics if anything is, no matter

how it is argued for. I’ll say more about that below.

Now in this connection John Rawls is a special and important case. Rawls has us imagine

that we are choosing principles of justice from behind a veil of ignorance, which can certainly

be seen as a way of modelling morality as ideal legislation. But Rawls’s theory of justice is not a

6 What we Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998).7 Between Facts and Norms, trans. William Rehg (Cambridge, Mass.: MIT Press, 1996), 459.8 Volume One (Oxford: Oxford University Press, 2011), 375-9.

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moral theory, providing rules for individuals. Rawls did flirt with the idea of rightness as

fairness, the possibility that all of morality could be modelled this way.9 But he dropped that

idea, and his theory of justice is a set of principles for use by constitution-framers and

legislators.10 Those principles are not morally fundamental, they are shaped or constructed out

of fundamental moral considerations for use in a particular task, the task of making just law.11

So Rawls’s theory of justice is not a law conception of ethics, but a law conception of

how to make just law, which is hardly objectionable. Nonetheless, as I’ll discuss later, the law

conception of ethics does rear its head at a crucial point in Rawls’s overall framework—in his

argument for the duty of individuals to support and comply with just institutions.

The utilitarian tradition staring with Bentham provides an important contrast with this

so far broadly Kantian story. Bentham was deeply interested in legislation—but real legislation,

not hypothetical legislation.12 He did not assimilate the question of how people should act to

the question of what would be required by ideal hypothetical legislation. He didn’t actually

have much to say about how people should act, morally speaking, since he was a psychological

hedonist who thought that all of us were hard-wired to pursue our own pleasure. So Bentham,

the moralist, was concerned with actual legislation, since legislation could lead people to act in

9 A Theory of Justice, rev. ed., 1999 (Cambridge, Mass.: Harvard University Press), 95.10 This is evident from his account of the four-stage sequence for the implementation of the theory of justice: the original position, the constitutional stage, the legislative stage, and the judicial and administrative stage. See Theory, section 31. Another strand in Rawls suggests that the “basic structure” includes non-legal institutions. For discussion, see G. A. Cohen, Rescuing Justice and Equality (Cambridge, Mass.: Harvard University Press, 2008) chap. 3.11 That Rawls’s difference principle, for example, is not meant to be moral bedrock is plain from the fact that for Rawls it counts in its favor that it is easier to interpret and apply than some other possible principles (Theory, 281). Since the principles of justice are not morally fundamental, but constructed for a particular task, there is no special puzzle about why they apply only to the basic structure, and not to individual choice. This understanding is compatible with both Liam Murphy, “Institutions and the Demands of Justice,” Philosophy & Public Affairs 27 (1991): 251-91, and Seana Shiffrin, “Incentives, Motives, and Talents,” Philosophy & Public Affairs 38 (2010): 111-142.12 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1781).

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ways that make things go better. (In this respect he is the clear ancestor of economic analysts

of law.)

Mill was not a psychological hedonist, but he too was mostly concerned with the moral

evaluation of law and customary practices, since he thought it would be rare for a good

utilitarian to be able to calculate the consequences of particular actions.13 As Anscombe notes,

we have an important change in this respect in utilitarian thought in the late nineteenth

century, when Henry Sidgwick began to take utilitarianism seriously as providing a principle for

individuals deciding how to act.14 Sidgwick’s act utilitarianism is most certainly not a law

conception of ethics.15 The perspective of an ideal legislator plays no role in his thinking, and no

legislator in their right mind would suggest a legal order with the single rule: Always do what

will make things go best. Anscombe thought consequentialism (a term her article introduced) to

be an obviously ridiculous moral theory, but act consequentialism should belong with

Aristotelian virtue ethics in the rank of her praise for not being a law conception of ethics.

II

It is time to be more precise about what I mean by a law conception of ethics. I have actually

been gesturing at two ideas, one methodological and one substantive. The methodological idea

is that moral theory is best approached by putting oneself in the position of a hypothetical ideal

legislator, making moral law for people. There are different versions of this approach,

depending on how it is thought that ideal moral legislators should reason. The closer the

reasoning recommended for the moral case is to the reasoning we would hope for from actual

13 John Stuart Mill, Utilitarianism (1863), On Liberty (1859).14 “Modern Moral Philosophy,” 9.15 The Methods of Ethics (1874, 7th ed. 1907).

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legislators, the more obvious it is that we are dealing with a law conception. Thus take Richard

Brandt’s defense of rule consequentialism as the moral code (note that word) that properly

informed and motivated rational people would choose for a society in which they expected to

live.16 Since Brandt’s rational choosers are not assumed to be narrowly self-interested, it is hard

to see any daylight between this method of moral theorizing and how actual legislators would

ideally reason. Scanlon’s method for reasoning to principles for the general regulation of

behavior, by contrast, is quite far removed from what anyone would hope ordinary legislators

would do, because it bans appealing to aggregate goods and harms. The justifiability of a moral

principle “depends only on individuals’ reasons for objecting to that principle and alternatives

to it.”17 This is obviously not how we would hope actual law-makers would reason; but the aim

of producing principles for the general regulation of behavior is the same in both cases, and so

it seems accurate to characterize Scanlon’s methodology as one of hypothetical moral

legislation.18

So that’s the methodological aspect—morality as hypothetical moral legislation. The

substantive aspect of a law conception is that morality comprises rules that will allow you to

determine what conduct is morally required in any particular case. These rules won’t

necessarily be capable of mechanical application. They will generally have what HLA Hart called

open texture.19 In Hart’s example, the rule “no vehicles in the park” doesn’t obviously apply or

not apply to ambulances; to figure out whether it does requires judgment. And even beyond

16 A Theory of the Good and the Right (Oxford: Oxford University Press, 1979), 185.17 What We Owe to Each Other, 229. This restriction captures Scanlon’s idea that justification for a moral principle must be to each person.18 In On What Matters, Volume Two, chap. 22, Parfit urges Scanlon to drop the ban on aggregative reasoning; if Scanlon did that the case would be clear.19 The Concept of Law (Oxford: Oxford University Press, 1961), 124ff.

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open texture, plenty of legal rules deliberately make use of broad standards like “reasonable,”

“good faith,” and “due care”—which explicitly call for judgment. So the moral rules in a law

conception of ethics may require more or less judgment for their application. They may also,

like rules of positive law, apply to temporally extended courses of conduct, not just individual

acts. But what is characteristic of both positive law and a law conception of morality is that it is

possible to say, for any particular act or course of conduct, whether it complies with the rules

or not. Moreover, it should be possible for ordinary people to figure this out; the point of law,

after all, is to guide behavior. Act Consequentialism, as I mentioned, is not a law conception of

ethics, because the command always to choose the act that makes the world go best is not one

that can, without more, guide behavior.

So a law conception of ethics will include rules such as “do not injure,” “obey the law,”

“take reasonable care,” and “do not neglect your children.” But it will have little or no place for

morally required goals for a person’s life as a whole, goals such as alleviating suffering, or

promoting democracy, or being a good parent. Whether we have such goals cannot be

determined by looking at particular acts or discrete courses of conduct, but requires an

assessment of our lives as a whole, or at least fairly big stretches of our lives. Positive law and

law conceptions of morality generally do not make such assessments.20 Of course the border

between rules and goals is not precise, because the border between a discrete course of

conduct and a fairly big stretch of a life is not precise. There are borderline cases. Is the

20 There is an important exception here: If the law does not adjudicate compliance, let alone provide a remedy, but merely imposes a requirement, it can require a goal. For example, constitutional law and ordinary legislation can impose goals on governments and particular government officials, even though the issue of compliance is not justiciable. See Lawrence G. Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms” Harvard Law Review 91 (1978): 1212-1264. I leave that complication aside—the positive law that a law conception of ethics aims to emulate is ordinary law that applies to private subjects.

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requirement that an employer ensure a non-hostile work environment a rule or a goal?21 But I

take it that the existence of borderline cases does not mean that most cases are not clear. And I

take it also that both positive law and law conceptions of morality traffic overwhelmingly in

rules rather than goals.

That a law conception of ethics does not generally provide us with required goals marks

a fundamental and obvious difference from Aristotelian virtue ethics. Having an Aristotelian

virtue is not about conforming your behavior to rules; in fact there are no rules of conduct,

right conduct is the kind of conduct you would expect of virtuous people. Being a virtuous

person is about having certain goals, goals such as liberality or modesty. It is also about

pursuing those goals with the right motives—which marks another contrast with the law

conception of morality, since motives cannot be legislated. In all, the contrast between classical

virtue ethics and law conceptions could hardly be greater, which was Anscombe’s point.

The methodological and substantive aspects of law conceptions of ethics obviously fit

tightly together, since legislators are precisely in the business of coming up with an order of

rules that can guide behavior case by case, and not in the business of prescribing goals.

What is now plain, however, is that a pure law conception at the substantive level is

impossible. Morality can’t comprise only rules that can tell us, case by case, whether what we

propose to do is permissible or forbidden. It is essential that it also provide us with goals.

To bring this out, and put the point in historical context, it is helpful to turn to Kant’s

predecessors in the law-conception business, the early modern natural law theorists.

21 I thank Seana Shiffrin for the example.

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“Natural law,” as Gisela Striker tells us, refers “to the rules of morality conceived of as a

kind of legal system, but one that has not been enacted by any human legislator.”22 A law

conception of ethics in its very definition then. Striker argues that the origins of this way of

thinking about morality are to be found in the Hellenistic period, with the Stoics. So by the

middle ages in Europe, we have at least three influences mixed together: the Stoic idea of

natural law, Aristotelian virtue ethics, and Christianity. By the time of Grotius in the early

seventeenth century, ideas of the moral law or duty have won out over any independent idea

of virtue, and the virtuous is defined in terms of conformity with some law or duty, not the

other way around.23 Nonetheless, natural law theory did include moral duties that have their

origin in Aristotelian or Christian virtues—duties such as charity, liberality, and mercy. These

duties cannot guide conduct in the way I have described, classifying any given act or course of

conduct as permissible, forbidden, or required. So these duties are much more like required

moral goals than moral rules.

This posed a problem for Grotius. He was in the process of developing an account of

natural law and the Law of Nations that could guide conduct in colonial expansion and

international trade.24 He needed to bring to the fore duties that do govern compliance case by

case and were therefore justiciable, and push to the side duties that instead provide beneficent

goals. If you are looking for a law and morality that allows you to hold states and trading

companies to account, you want a morality of rules, not goals. What Grotius came up with was

22 “Origins of the Concept of Natural Law,” in Essays on Hellenistic Epistemology and Ethics (Cambridge: Cambridge University Press, 1996), 209.23 See Jerome Schneewind, “The Misfortunes of Virtue,” in Essays on the History of Moral Philosophy (Oxford: Oxford University Press, 2010), 179-80.24 This is a Tuckian reading; see Richard Tuck, The Rights of War and Peace, rev. ed, (Oxford: Oxford University Press, 2001).

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the distinction between perfect and imperfect duties that continues to play an important role in

moral philosophy through Pufendorf, Kant, Mill, and into the present. Grotius tells us that

natural right “properly, and strictly taken” is about liberty, property, and contact, in contrast

with imperfect right, which is “attendant of those virtues that are beneficial to others, as

Liberality, Mercy, and prudent Administration of Government.”25 In another passage he tells us

that law properly-so-called comprises property, contract, compensation for negligence, and

punishment for crime.26

So Grotius implicitly downgrades the importance of those parts of morality that are

about required goals relating to the good of others. Looked at another way, however, the new

distinction between perfect and imperfect duties provides a way for Grotius to insist that

nations can be held to account for violations of the natural law without having to abandon the

traditional natural law duties of liberality or mercy.27 Perfect duties are rules—they can guide

conduct, case by case. Imperfect duties provide us with ends. Nations and trading companies

will be held to account for violations of perfect duties only, though in conscience they are

bound to the imperfect duties as well. We see here the connection to another way of drawing

the contrast between perfect and imperfect duties, introduced by Pufendorf later in the

century: Perfect duties are eligible for coercive enforcement, whereas imperfect duties are

not.28 This makes sense, since it is only if we can say that a particular rule was broken on a

particular occasion that enforcement is even feasible.

25 The Rights of War and Peace (1625), I. I. V. (138); I.I.VIII (143)26 The Rights of War and Peace, Prolegomena to the first edition, 1747-8.27 Schneewind remarks that modern natural law theory wasn’t such a misfortune for virtue as it may seem, since the imperfect duties did a good deal of virtue’s job, “The Misfortunes of Virtue,” 185.28 Of the Law of Nature and Nations (1672).

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The distinction between perfect and imperfect duties corresponds to the distinction I

have drawn between rules and goals. I said that a morality of rules alone was impossible and

with this the modern natural lawyers agreed—you need both perfect duties and imperfect

duties. Why is that?

It is not just that the ethics of friendship and love and loyalty cannot be captured by

perfect duties or rules, though that’s true. The bigger and more interesting point is that positive

law and moral rules themselves need the support of moral goals if their very purposes are to be

realized.

This is well brought out in an unpublished paper by Barbara Herman tilted “Thinking

About Imperfect Duties.” In her (as she puts it) “modified Kantian” vision, what we are about,

or should be about, is the construction of a moral habitat in which free and equal rational

agents can flourish. That habitat will require all three of positive law, perfect moral duties, and

imperfect moral duties. The imperfect duties are necessary to prevent corrosion—that’s

Herman’s well-chosen word—of the overall habitat.

Consider the familiar list of imperfect duties: preventing violations of other duties;

concern to prevent harm generally; benefiting others; self-perfection; due care. Each

represents a goal well suited to the moral habitat project: we add material and

psychological resources to making the habitat safe and accessible; we provide one

another support and cooperation; we take ourselves on as a moral project; we bring due

care to our lawfulness.”29

29 Ms. p. 28. As I explain below, I disagree with Herman that due care is an imperfect duty.

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This all sounds right to me. Let me illustrate the danger of corrosion with the most

important case.

Grotius strikingly lists “prudent administration of government” as an imperfect duty. For

those holding high government offices, simply complying with the law and perfect moral duty is

not enough to ensure the proper working of the political order; in fact, if that is all there is, the

system is in danger of collapse. If a president or other high official does not have as their end or

goal the flourishing of the political system set up by the law, they may act in ways that corrode

social practices and attitudes—such as a culture of sincerity and respect for the rule of law—

that are necessary for the health of the system. Whether a person does have the flourishing of

the system as their end, however, cannot be evaluated case by case.

The same goes for the rest of us, the subjects of the system. Political obligation is the

obligation to support the survival and flourishing of an institutionalized political coercive order.

Leave aside for now whether this implies a duty to obey the law. Even beyond obedience to

law, subjects need to have a goal of supporting the flourishing of a legitimate political order.

This is part of what Rawls calls the natural duty of justice. Private people, while violating no law

or perfect moral duty, can do a lot of damage to the political public sphere on which democracy

depends by corroding the public’s sense of the significance of truth, the role of evidence in

establishing it, the importance of not demonizing those who disagree with you, and the

importance and possibility of a truth-based political public sphere generally.

In happier times, the same general kind of point was made by G. A. Cohen, when he

observed that from the point of view of economic justice it wasn’t enough to make the legal

and economic institutions as good as they could be. Insofar as the overall aims of justice could

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be better achieved if the population took on an ethos of justice, that must be morally required

too.30 In a sympathetic discussion of Cohen’s view, Seana Shiffrin coins the expression “the

substantive virtue theory of political philosophy.”31 Her thought is that if we set up a political

order, there will be positive law, and perhaps moral law associated with it, but the very account

we use to justify all that will also have penumbral implications for “beliefs, habits, dispositions,

attitudes, and motives” that citizens will need to have for the reliable realization of the

principles lying behind the political scheme. Here, despite the difference in terminology,

Shiffrin’s substantive virtues are, I believe, playing the same role as Herman’s imperfect duties.

So we cannot do without required goals or imperfect duties and the modern natural

lawyers never suggested that we could. Nonetheless, Grotius’s distinction did introduce a moral

hierarchy. The very terminology of “perfect” versus “imperfect” seems to be designed to

achieve this without any need for argument. Christian Thomasius, a German philosopher

writing at the turn of the 18th century, called Grotius out on this point.32 Both kinds of moral

duty were equally important, he wrote, and if anything Grotius’s imperfect duties were more

important, more perfect even, as they concerned the inner realm rather than external

behavior. So Grotius’s way of drawing the distinction has to go. Thomasius proposes

distinguishing between duties of justice (corresponding to Grotius’s perfect duties) and duties

of virtue.

While this is better, it still won’t do. On the one hand, as we have just seen, justice, at

least on the contemporary understanding of what that is, is a matter of goals as well as rules.

30 Rescuing Justice and Equality.31 “Incentives, Motives, and Talents,” 113. Cohen’s argument is made in Rescuing Justice & Equality.32 Foundations of the Law of Nature and Nations (1705). My source is Schneewind, The Invention of Autonomy, 165.

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And on the other hand, I’m inclined to avoid the word “virtue” altogether because it is so hard

to untangle it from its full-fledged Aristotelian sense. There is also the pragmatic problem that

we don’t much use the word “virtue” in our contemporary ordinary ethical discourse.

So I prefer the very simple language of morally required goals or ends, which stand

opposed to moral rules that can guide conduct case by case. This has the advantage of freeing

the discussion from any baggage that accounts of either imperfect duty or virtue would

otherwise bring. In particular, I do not think that to have a morally required goal one necessarily

must have a particular motive. In addition, as I’ll discuss further below, I do not believe that the

discretionary aspect of having a goal—the fact that right conduct is not determined case by

case—entails that having morally required goals is necessarily an undemanding business, as

some accounts of imperfect duty have it.

With terminology settled, we can now complain that Grotius simply asserts that rules

are in some sense the central case of right, whereas goals are secondary. We can understand

why he did this, as his main topic was the enforceable law and morality of international

conquest and trade. But that doesn’t mean that we should rank rules over goals. To do so is to

distort moral thinking, leading us to find rules rather than goals wherever at all possible.

III

So I arrive, finally, at my main point, and my title. I believe that once we liberate ourselves from

the pull of law conceptions of morality, we will see that a lot of what are commonly thought to

be moral rules are illusory and that the relevant parts of morality are best understood in terms

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of goals instead. I will make my case in terms of both the methodological and the substantive

aspects of the law conception of morality.

The central danger with the model of hypothetical moral legislation is that the

association with actual legislation will mislead us about the place of rules in morality. We will be

inclined to find moral rules without any warrant for doing so. Actual legislatures can make it the

case that there is a certain rule, a legal rule, because they have that power. The model of

hypothetical moral legislation suggests that moral legislators can do that too.

Consider the legislation of rules of positive law. Sometimes legal rules merely enforce

independently existing moral rules. For example, Section 18 of the South African Bill of Rights

declares that “Everyone has the right to freedom of Association.” This section enacts, as a

matter of South African law, a moral rule prohibiting the violation by government of the right to

freedom of association. Or take Article 3 of the European Convention on Human Rights, which

prohibits torture. The rules protecting freedom of association and prohibiting torture are not

purely creatures of law; they are plausibly regarded as genuine moral rules, corresponding with

natural moral rights, that have simply been picked up by the law for enforcement.

Now take, by contrast, zoning law in the City of Los Angeles. It is obvious that the zoning

rules are not enforcing independently existing moral rules. You can’t make sense of the

individual rules other than by seeing them as part of a scheme of urban planning that will be

good or bad because of its effects—does it make life in the city more efficient, beautiful, just,

affordable, and so on. Real legislators can reason as follows: it would be good if there were a

set of legal rules that required such and such behavior, because such and such behavior would

have good effects; therefore, we now enact those rules. They are entitled to reason in that way

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because they are making law. When you make law you aim to change the world by affecting

behavior. Legislators in well-functioning states have the power to affect behavior because for

the most part people generally comply with the rules they make.

The same thing cannot be said for the hypothetical moral legislator. Suppose I rightly

conclude that it would be best if we all accepted a certain moral zoning code of my own

devising. Suppose that my moral zoning code is compatible with but more restrictive than the

existing legal code. I point out to my neighbor that the modifications she is making to her

house, though legal, are prohibited by the moral zoning code.

Of course, no one approaching moral theory on the model of hypothetical legislation

would be inclined to think that there are moral rules corresponding to the ideally best moral

zoning scheme. But let’s look at why such an idea is absurd. There are two main reasons. First,

moral legislators have no reason to expect that their rules will be generally complied with,

which means that the fact that they know what the best rules for general compliance would be

is not necessarily relevant to anything.33 Second, while actual legislators end their reasoning

with a practical act, enactment of the legal rules, there is no equivalent available to the moral

legislator. What they tell us is that it would be good if there were these rules, therefore there

are these rules. It would be good if it were, therefore it is, is not generally a good form of

argument.

These may seem like obvious points. But consider again rule consequentialism. The

silliness of the idea of a moral zoning code may seem barely worth pointing out. But when the

proposed moral code is not revisionist, but simply aims to justify conventional morality, the

33 Defenses of Rule Consequentialism generally take into account the “cost” of inculcating or internalizing the ideal moral code; see, e.g., Brad Hooker, Idea Code, Real World (Oxford: Oxford University Press, 2000). This is very odd, since it is entirely unclear who is supposed to organize this process of inculcation.

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danger inherent in the law conception is very real. Rule consequentialist justifications for the

morality of property, promise, and obedience to positive law are taken seriously. For these

cases—which I will be using as my core examples—the fundamental objections just made don’t

seem so pressing. For with these central aspects of conventional morality it seems that we

don’t have to worry too much about why I should follow rules it would be best for everyone to

follow if everyone won’t follow them. And it seems that we don’t have to wonder too much

about how the theorist gets from the premise that it would be good if there were these rules to

the conclusion that there are. Those objections are muted or obscured because for these cases

there already exist, as a matter of fact, social practices of general compliance with the rules of

property, promise, and law generally. This brings out the fact that rule consequentialism and

indeed any law conception of morality in the methodological sense is inherently conservative.34

The objections may be obscured but they apply just the same. The mere fact that good

would come from the general acceptance of the rules of the social practices of promise,

property, and law is on its own no reason for an individual to comply with those rules. Law-

makers, backed by the political coercive order, rightly reason about what it would be good for

everyone to do, as they are in a position to affect that. Individuals, by contrast, are not

generally in a position to affect what everyone will do; the question for an individual is not what

everyone should do but what he should do. An argument is needed if these two questions are

to be linked.

In another classic paper from the 1950s, which makes a good partner for Anscombe’s

“Modern Moral Philosophy,” Rawls offered an argument of the right kind. His starting point in

34 Brad Hooker’s meticulous defense of rule consequentialism, Ideal Code, Real World, argues that the best way to justify the view is to show that it coheres “with our considered convictions.”

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“Two Concepts of Rules” is act utilitarianism, which, as he points out, implies that the

conventional moral rules of promising are not moral rules at all; they are simply positive rules

of a conventional social practice that it may or may not make good moral sense to comply with

in particular cases depending on whether that does any good. To get to a duty to follow the

rules of the practice, Rawls did not offer the rule-utilitarian non sequitur that since it is better if

all follow those rules, they are binding on each. His response, instead, was that the proper

object of utilitarian assessment was the overall practice, and that if somebody raised the

question of whether a good utilitarian should comply in a particular case with the rules of the

practice,

he would simply show that he didn't understand the situation in which he was acting. If

one wants to perform an action specified by a practice, the only legitimate question

concerns the nature of the practice itself ("How do I go about making a will?").35

It’s interesting that the example Rawls gives here is a legal one. Of course, if I want to

make a will, I want to make a legally valid will; so I have to follow the formal legal requirements

to the letter. But what is the moral analogy? “If one wants to perform an action specified by a

practice,” Rawls writes, “the only legitimate question concerns the nature of the practice

itself”—which we must take to mean: if I want to participate in a fully compliant way with the

practice, I must follow the rules. But the question always remains whether there are good

moral reasons to participate in a fully compliant way with any given social practice. I will return

to Rawls’s later views on that question in a moment.

35 “Two Concepts of Rules” (1955) in Collected Papers (Cambridge, Mass.: Harvard University Press, 1999) 38.

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The general points so far are these. First, the fact that general compliance with a certain

rule-structured, possible but not actual, social practice would produce value does nothing to

establish the force of the rules. Second, even if we are talking about an actually existing

practice, the fact that general compliance does good does not in itself show that the rules have

deontological force for individuals. The fact that an existing conventional normative order does

good (or could not be reasonably rejected by anyone)36 is, of course, an important fact. As

Gerald Gaus has compellingly argued, the legitimacy of informal social enforcement of what he

calls “social morality” is an important and neglected issue.37 The good consequences, or

reasonableness from each person’s point of view, of a conventional normative order are

plausible contending accounts of its legitimacy. But the legitimacy of enforcement of a

conventional normative order and the genuine moral force of its rules are two different

matters.

The argument that the rules of legitimate, beneficial, social practices have deontological

force for individuals will have to take a different form. An argument that the rules of the

practice of making and keeping promises are real moral rules, for example, will have to

establish the existence of natural promissory duties and rights, duties and rights that would

exist absent the social practices.

Now it is my view that there are no natural promissory or proprietary duties and rights.

Nor is there a sound deontological argument for a general prima facie duty to obey the law. In

all three cases, we have merely positive rules of social practices, not genuine moral rules. This

36 More discussion is obviously required to extend my critique of rule consequentialism to other, more sophisticated, law conceptions, such as Scanlon’s.37 The Order of Public Reason (Cambridge: Cambridge University Press, 2011). In Gaus’s language, the issue is the authority of social morality.

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means that it is always an open question whether I have moral reason to follow the rules of the

practices.

Those are of course big claims and merely pointing out the mistake in thinking about

morality as if it were legislation isn’t enough to sustain them. I need to argue against arguments

that have been made for genuine natural promissory and proprietary moral rules and for a

general duty to obey the law. I have attempted such a critical survey elsewhere, but obviously

cannot go over it here.38 So let me just state my view.

The social practices of making and keeping promises and respecting legal ownership,

and the existence of a well-functioning legal system, are socially beneficial. From this, as I have

been saying, it does not follow that each of us is bound by the rules of those practices as

genuine moral rules. But we are morally required to support, protect, and promote these

practices, just because they do so much good. What does that required goal entail for our

conduct?

Let’s first take the case of the legal order as a whole. We have a required goal to support

and promote just legal orders. This amounts to both more, and less, than a moral rule of

compliance with law just because it is the law. It is more than that for the reasons I discussed

earlier. It is less than that because it is obvious that not every act of noncompliance by private

subjects with any given law will harm the legal order. For people with official roles, especially

high official roles, the harm of noncompliance is far greater, so for them having the goal of

supporting the just legal order does come close to entailing an exception-less disposition to

38 I discuss promise/contract and property in “Private Law and Public Illusion,” unpublished ms. 2016, available here: http://www.law.nyu.edu/centers/lawphilosophy/colloquium/fall2016. I discuss the duty to obey the law in “The Normative Force of Law: Individual and State,” in Oxford Studies in the Philosophy of Law, vol. 3, Leslie Green & Brian Leiter, eds (Oxford: Oxford University Press, forthcoming 2018).

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comply. We could say that high officials should “make it a rule” to comply. But for the rest of

us, especially in our actual world of not fully just legal orders, a certain amount of

noncompliance is entirely compatible with having the goal of supporting and promoting just

institutional orders.

So I am committed to a required moral end of supporting just legal orders but no rule of

compliance with law. How does that relate to Rawls’s natural duty of justice? That duty, Rawls

writes

requires us to support and to comply with just institutions that exist and apply to us. It

also constrains us to further just arrangements not yet established, at least when this

can be done without too much cost to ourselves.39

This is a hybrid of perfect and imperfect duty, of rule and goal. Where just institutions exist, we

have a duty to comply with them, which includes, for Rawls, a duty to comply with the law. So

that’s a perfect duty, a rule. But we also have a duty to support just institutions—we must have

it as our goal that the just institutional orders flourish. Where just institutions do not exist, we

have only the goal, in this case the goal to bring just institutions into existence.

The goals part of this account I agree with. I believe it obvious enough, not requiring

much argument, that we all have a required goal to promote and support just institutions

because they do so much good. But the part about a rule to comply with law does require

argument, and the only argument Rawls gives is doomed because it relies entirely on the

method of hypothetical moral legislation. I said earlier that Rawls is not guilty of offering a law

conception of ethics in his theory of justice, since his theory of justice is for the design of legal

39 Theory, 99.

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institutions. But the natural duty of justice is a principle for people to follow in deciding how to

act, not in deciding how to make law. The sole argument that Rawls gives for the moral rule to

obey the law is that it would be chosen in the original position. When it comes to this principle

for individuals then, Rawls does employ the method of hypothetical moral legislation:

[T]here is every reason for the parties to secure the stability of just institutions, and the

easiest and most direct way to do this is to accept the requirement to support and

comply with them...40

So we should accept a moral rule to comply just because, were we hypothetical legislators of

moral rules, we would conclude that this rule would do more good than the alternatives. I think

the fact that this is the only argument Rawls gives for the duty to obey law strongly supports my

conviction that there is no duty to obey, only a required goal to support.

The same general story applies to promise and property. Violations of the rules of these

practices often cause actual material harm to individuals, thus possibly violating a moral rule

not to harm. I leave those cases aside, to focus on pure cases of promissory and proprietary

noncompliance. For promise, think of cases where the person to whom the promise has been

made, the promisee, has not relied in any material way on the promise. And for property,

imagine a case of theft of assets that an owner never knew she owned and never will miss. In

such cases, we face clearly the question of what reason we have to follow the rules requiring

performance of promise and respect for property.

My view once again is that those rules are merely positive rules of the practice. The

moral tie between individuals and the practices is that since these are very valuable social

40 Theory, 295.

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practices, we each are required to have the goal of protecting and promoting them. That may

mean more than complying with the rules, but it can also certainly mean less. Probably anyone

with the goal of supporting these practices will develop a disposition generally to keep promises

and respect legal property rights, unusual circumstances aside. But having that goal is also

compatible with noncompliance with the rules, since sometimes breach of promise or theft will

not tend to undermine the practices, and in fact will do no harm at all.

In short, the morality of promise, property, and obedience to law is a matter of goals,

not rules. I have explained how the methodological aspect of the law conception of ethics leads

some philosophers to the contrary conclusion. But many philosophers who would not accept

the method of hypothetical moral legislation nonetheless believe that the morality of promise,

property, and obedience to law are affairs of rules, not goals. As I say, I can’t here go over my

arguments against their arguments. But I do want now to suggest that these philosophers may

be in the grip of the appeal of the law conception of ethics in its substantive aspect.

Probably everyone agrees that we need goals as well as rules. But the ranking implicit in

Grotius’s choice of words to capture that distinction seems to live on. There seems to be a

desire to account for any given moral domain in terms of rules if at all possible, leaving to goals

only what cannot be captured in rules.

Why go for rules over goals wherever it seems possible? One clear point to make about

my three examples of promise, property, and obedience to law, is that we already live with

legal rules that overlap considerably with the moral practices. We are by definition legally

required to obey the law. Similarly, the law of contract and property comprises rules, not goals.

So one possibility is that we are confused, as follows: Since the law supports the social practices

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of promise and property by enforcing rules, it is natural enough to make the mistake of thinking

that the moral significance of the practices is that their rules are genuine moral rules. And this

line of thought can be generalized to all legal rules.41

Another possible explanation, however, of philosophers’ inclination to rank rules ahead

of goals, and to find rules rather than goals wherever possible, is that compliance with rules is

just easier than promoting goals. Living with a moral goal generally requires more judgment

and reflection than compliance with rules. As Herman writes, there “can be a great deal of

moral complexity involved in satisfying . . . imperfect duties, and that can be demanding.”42 One

reason that the law avoids goals is that it is hard to see how legal institutions could accurately

monitor compliance. But the problem is not just accuracy, it is that a legal system that tried to

monitor goals would be horribly intrusive. In an analogous way, we might say a morality of

goals is more intrusive, and in that sense more demanding, than a morality of rules.

To bring out this thought, consider the case of truth-telling. There isn’t a legal rule that

we always tell the truth. But many believe that there is a moral rule, prima facie and perhaps

with exceptions, that we tell the truth. So we can’t say for this case that we are just confused,

that we think there is a moral rule because there is a legal rule. There isn’t a legal rule. But

there is nonetheless an inclination towards a moral rule of truthfulness, just to make life

simpler. Now I agree with Bernard Williams that the correct moral account of truthfulness will

point to a required goal, requiring in turn a disposition to sincerity. Having such a disposition is

compatible with knowingly saying untrue things on occasion. To get sincerity right will involve

judgment and reflection, throughout one’s life, on sincerity’s value. This stands in stark contrast

41 For more on this argument, see Murphy, “Private Law and Public Illusion, Lecture Two: The Persistence of an Illusion.”42 “Thinking About Imperfect Duties,” ms. p. 9.

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to a rule of truthfulness, “in the traditional sense,” as Williams puts it, “of a requirement which

is relatively simple and does not leave most of the work to be done by judgement.”43

It is natural to prefer such a rule, one which guides us case by case, doing most of the

work of judgment and reflection for us. And this preference is something we rightly take into

account when we make law. A legal order that prescribed goals, even it could be accurately

enforced, would, as I say, be terribly intrusive. When we make law, then, we should generally

choose rules, rather than goals. We can do that when we make law, we can do whatever we

like. But we do not in the same way make morality, and when we try to figure out its content

we cannot assume that it will look like law, even if life would be easier if it did.

This brings me to a point that in a way motivates my entire interest in smoking out

illusory moral rules. As Herman says, “sorting out the issues that come with imperfect duties

can have a transformative effect on our understanding of moral activity in both public and

private fora”44. If I am right that promise, property and political obligation are matters of goals

rather than rules, the implications for our understanding of our positive moral responsibilities

are potentially dramatic. For the reason that I am required to have as my goal the flourishing of

the institutions of promise, property, and just political coercive orders is that those institutions

do so much good. That means that the underlying required goal is to promote a better world.

And so the reason I have to be concerned about protecting a practice of private property, for

example, is at the same time a reason to be concerned about the fact that some people have so

little property, or the fact that property is so unjustly distributed.45 This result is threatening

43 Truth and Truthfulness (Princeton: Princeton University Press, 2002), 121. 44 “Thinking About Imperfect Duties,” ms. p. 1.45 Arthur Ripstein is keenly aware of the danger, see “Possession and Use,” in Philosophical Foundations of Property Law, James Penner & Henry Smith eds (Oxford University Press, 2013), 173, 176.

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because it raises the specter of limitless moral demands in service of the end of a better world.

The illusion of moral rules of promise, property, and political obligation encourages the

comforting thought that so long as I break no rules, my responsibility for the way the world

goes is probably fairly minimal. Once we are deprived of that illusion, we must confront head-

on the question of the extent of individuals’ responsibility for the way the world goes. We need

an account of the content of the required goal to promote a better world, and of its

implications for the kinds of lives we lead.

IV

I will only be able to take some very small steps towards such an account here—by trying to

provide some more clarity about the nature of goals, as compared to rules.

Let me first note that the distinction between rules and goals cuts across another

important distinction implicit in my argument: that between natural and artificial moral

requirements. As I have said, in my view the rules of the conventional practices of promise,

property, and fidelity to law are merely positive rules of social practices and not real moral

rules. There are no promissory or property-related real moral duties and rights, and there is no

prima facie moral duty to obey the law. These practices nonetheless have great moral

significance in that they do so much good, and those good effects ground a required goal of

supporting the practices.

This position is essentially that of David Hume.46 In his terminology, promise, property,

and fidelity to law are all artificial aspects of morality; they all require appeal to the good

46 A Treatise of Human Nature (1739-40), Book III, Part II, An Enquiry Concerning the Principles of Morals (1751), Sections III and IV.

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effects of conventional social practices (artifices) before they can be understood. There are no

natural duties and rights in these domains and the conventional practices are not good in

themselves; they are good because they have good effects. In equivalent terminology, we could

say that this is a conventionalist and an instrumentalist account of these parts of morality. By

contrast, I do not favor (and nothing in Hume suggests) a conventionalist and instrumentalist

account of the reasons we have not to torture or to kill or inflict pain for fun. Some parts of

morality are natural, not artificial.

So the morality of promise, property, and fidelity to law is both artificial and a matter of

goals; the morality of not torturing, or killing or harming for the wrong reasons, is natural and a

matter of rules. But there can also be natural goals and artificial rules. For example, the

required goal of being a good parent seems to be a natural goal; it cannot plausibly be

understood as entirely instrumental to some requirement of impartial beneficence. But the

most important point here is that there must be some natural goals, or at least one, if there are

to be artificial goals. We have the required goal of supporting the practices of promise and so

on because we have a background required goal of making things better. You can’t be an

instrumentalist all the way down. Some thing or things have to just matter. (I believe it is things

rather than one thing.)

There also can be artificial moral rules. Consider again the case of the president and

compliance with law. As I said earlier, the harm presidential lawlessness can do to the overall

health of a legitimate political coercive order is so great, that it may seem that having the goal

of supporting and protecting the political order entails, for the president, adopting a rule of

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compliance. Generally speaking, though, having a goal will entail developing certain dispositions

rather than accepting rules.47

So the distinction between rules and goals is not the same as that between natural and

artificial moral requirements. The distinction between rules and goals is a matter of two axes,

one tracking the need for judgment and the other whether particular courses of conduct can be

evaluated for compliance. As I have indicated, I take the second axis to be the fundamental

one: what is crucial to a rule is that it must be possible to determine case by case whether a

person is in compliance or not. Of course, if we stretch the idea of a “case” to a person’s life as

a whole, then goals are rules too. So the second axis is really about breadth of focus in the

application of the requirement—in terms both of length of time and of how much of what a

person is doing at a particular time is taken to be relevant. If we can determine compliance

discrete act by discrete act (did she or did she not pull the trigger?) then we have a clear rule. If

we must assess whole lives (did she promote and support the legitimate legal order that

applied to her?), then we have a clear goal. Temporally extended and somewhat broadly

described courses of conduct, such as driving to work one day, are on the rule side of the

divide. But there are, as I’ve said, borderline cases, such as the requirement to provide a non-

hostile workplace.

It is compatible with a requirement being a rule that judgment is required for its

application. What some legal theorists call “standards” count as rules in this usage. An

47 The distinction between rules and goals also cuts across Thomas Nagel’s distinction between agent-relative and agent-neutral moral reasons, see The View From Nowhere (New York: Oxford University Press, 1986), chapter IX. A required goal to make the world go better is agent-neutral, applying equally to all. The required goal of being a good father is agent-relative; it applies to me, in respect of my kids, and you can’t do the work of being a good father for me. By the same token, while most moral rules (the familiar rules of deontology) are agent-relative, a rule of easy rescue, for example, would be agent-neutral.

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important case to bring this out is the duty of care, or what Herman calls the duty of non-

negligence. This obviously requires judgment for its application, but it certainly applies to

particular acts and discrete courses of conduct; we don’t assess a person’s life as a whole,

noting a few cases of negligence here and there but overall more care than carelessness, and

conclude that they have complied with a requirement of non-negligence. The clear contrast

here is with the traditional understanding of the imperfect duty of beneficence, which does not

demand beneficence case by case, but a life lived that evinces the goal of benefitting others. So

in my usage, non-negligence is a rule, beneficence a required goal.48

For another example, consider Ronald Dworkin’s idea that what the law requires of us is

what follows from the principles that best justify past legal outcomes.49 This, and the argument

of his early essay critiquing “the model of rules,”50 may suggest that my account of a law

conception of ethics fits very poorly with Dworkin’s understanding of law. But in fact Dworkin’s

principles are just standards with varying weight depending on the context, and the result of

the reasoning just described is still a verdict on what I may or may not do in a particular case.

So rules in my usage may require very considerable judgment for their application. An

obvious alternative terminological approach would be to say that the characteristic

requirements of a law conception of ethics take the form of rules, standards, and principles

(where the first requires less judgment in application than the others), but generally not goals. I

just find it simpler to work with a simple dichotomy of rules versus goals. Atiyah and Summers,

48 Herman, by contrast, counts nonnegligence as an imperfect duty, “perhaps the most important one,” ms. p. 9.49 Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986).50 “The Model of Rules I” (1967), in Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), 14-45.

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in their canonical discussion of form and substance in private law, also use “rule” in a broad

sense, within which they distinguish between “hard and fast” and “flexible” rules.51

Another reason to use a broad sense of rule, rather than defining rules as requirements

that are always on the “little need for judgment” end of the first axis, is that it suggests, what I

take to be the case, that if we are thinking of law as a means of guiding behavior the default

preference is for hard and fast rules. Flexible rules may be necessary, but they come at a cost,

either to efficiency or to the values of legality, or both.52 The ideal type of legal requirement is

the hard and fast rule.

The literature on the relative advantages of hard and fast rules versus flexible rules, or

rules versus standards, is voluminous; I do not aim to contribute to that debate here.53 What I

do need to say something about is what exactly it means, for our conduct and deliberation, to

have a required goal.

In the first place, to have a goal is not necessarily to have a certain motive. The required

goal to be a good parent (if one is a parent) does come with required motives, but the required

(artificial) goal to support the practice of making and keeping promises does not. Equally, I

believe that having the required goal of making the world a better place is compatible with a

whole range of motives. H.L.A Hart’s seminal discussion of what it is to accept a rule can be

adapted to all goals that do not come with a required motive: we may have the goal of

51 P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Oxford: Oxford University Press, 1987), 71.52 For dissent from this “accepted wisdom,” see Seana Shiffrin, “Inducing Moral Deliberation: On the Occasional Virtues of Fog,” Harvard Law Review 123 (2010): 1214-46.53 In addition to works already cited, central contributions include Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review 89 (1976): 1685-1778, Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), chap. 1, Kathleen Sullivan, “The Supreme Court, 1991 Term—Foreword: The Justices of Rules and Standards,” Harvard Law Review 106 (1992): 22-123, Louis Kaplow, “Rules versus Standards: An Economic Analysis,” Duke Law Journal 42 (1992): 557-629.

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promoting a better world because we believe it is morally required, because we see intrinsic

value in making things better, because we think, for some reason, that having such a goal will

be better for us personally, because we want to please a parent, or just to fit in around here,

and so on.54

The moral significance of having a goal is not that it is good in itself that we have a

certain conscious aim, but lies rather in the effect of having the goal on how we live. The point

is to live our lives so that we do our part in bringing about certain good ends. Very occasionally,

as in the case of the president and compliance with law, that might require us to accept a rule

that requires particular acts case by case; but in the typical case, it will require us to develop

certain dispositions. To get those dispositions right, it seems to be necessary that we do

consciously aim at the ends, even if that isn’t what ultimately matters. It is theoretically possible

to somehow acquire the right dispositions, the dispositions someone consciously aiming at the

end would have, and yet not have that aim. But even if coincidence or rigid habituation brought

such a situation about in a given person for a given time, changes in circumstances could clearly

mess things up: dispositions that previously were compatible with having the goal become

incompatible with it or inadequate. The only way to remain on track, therefore, is to have the

end as one’s conscious aim, exercising judgment in flexibly adjusting standing policies and

dispositions to changing circumstances.

What does the goal of promoting and protecting the practices of promise and property,

and rule by law, require for our dispositions? There are a number of difficult issues to explore.

One of them turns on the fact that no individual person can either ruin or save a social practice,

54 The Concept of Law, 203.

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so we have to consider the deeply puzzling problem of how to understand the moral

responsibility of individuals for what they do together with others.55 Another is the question of

how demanding a goal we are required to have. Just how far is it the responsibility of each of us

to, for example, support a legitimate constitutional order that seems to be under threat? This in

turn depends on the right way to understand the underlying required goal of beneficence, of

making things go better in the world. Does that goal trump any other goal we might have, such

as being a good parent? Must we make it our goal that in our lives as a whole we maximally

contribute to the world’s betterment? This is the floodgates problem I mentioned at the end of

section III. We could say the issue is that of how demanding the required goal of beneficence is.

There is a considerable literature on a related but different question. Since Sidgwick, act

consequentialism has been understood as the view that there is one moral rule: always choose

the act that will make the outcome best. This raises the obvious objection (one among many)56

that morality doesn’t seem to be so demanding, and prompts a search for a more moderate

rule of beneficence, one fit for humans.57 I myself have argued that beneficence is a collective

obligation, and so the right rule is that we each do as much as would be optimal if we were all

doing what we should.58 This “rule” is obviously not capable of guiding conduct.

I now believe that it was a mistake all along to look for a rule of impartial beneficence.

As Anscombe noted, this idea really only emerges with Sidgwick in the late nineteenth century.

Beneficence is a goal, or imperfect duty, not a rule. We still face the issue of demands, of

55 I here invoke Derek Parfit’s discussion of “What We Together Do,” in Reasons and Persons (Oxford: Oxford University Press, 1984), 75-82.56 Act consequentialism wrongly has it that there are no other rules, such as rules associated with liberty rights, but that is not relevant to the current point, which concerns the right way to understand morally required beneficence. 57 I here invoke Samuel Scheffler, Human Morality (New York: Oxford University Press, 1992). 58 Moral Demands in Nonideal Theory (New York: Oxford University Press, 2000).

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figuring out exactly what this collective goal demands of each of us, and what concretely that

implies for our dispositions. The result will not, to quote Williams again, be “a requirement

which is relatively simple and does not leave most of the work to be done by judgement.” But

we should never have been looking for a requirement like that in the first place.

One last point. Suppose we conclude that we should develop the dispositions to

generally keep promises, respect property, and obey the law. It is important that these be

dispositions, not beliefs in illusory moral rules. That is important because belief in a natural

morality of the market greatly distorts public political understanding of legal and economic

reform, with particular damage done to discussion of tax policy.59 So the position I am

advocating may face the further problem that it seems to imply significant psychological strain:

we should be disposed to keep promises, respect property, and obey the law, and we should

support coercive enforcement of the legal rules, but we should remain clear that neither our

own dispositions nor the coercive acts of the state line up with real moral rules. It’s not obvious

how all this fits together in a psychologically tolerable way.60

59 Belief in illusory moral rules of property and promise leads to what Thomas Nagel and I call “everyday libertarianism.” See The Myth of Ownership (New York: Oxford University Press, 2002).60 Thomas Nagel raises this kind of concern in his discussion of the “moral division of labor” between individuals and the background institutional structure, so far as social justice is concerned. See Equality and Partiality (New York: Oxford University Press, 1991).