Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.
- What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
- Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?
- Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
- What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
- Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?
- Alexander Miller, An Introduction to Contemporary Metaethics (2003). This is a sophisticated introductory text that outlines classic and contemporary positions in metaethical debates.
- A.J. Ayer, On the Analysis of Moral Judgments in Freedom and Morality and Other Essays (1984).
- Simon Blackburn, Essays in Quasi-Realism (1993).
- Allan Gibbard, Wise Choices, Apt Feelings (1990).
- G.E. Moore, Principia Ethica (1903).
"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.
Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:
Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.
I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.
Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).
A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.
It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.
Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.
For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.
But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force.
Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain! Bibliography