Phillip Stratton-Lake Department of Philosophy University of Reading Reply to: Jonathan Dancy Kant, Duty, and Respect Routledge 2001

1. JD’s first point is a request for clarification. He notes a certain ambiguity in what it is I say needs explaining. He notes that sometimes I claim that it is the possibility of a normative fact - the moral must – that needs explaining. At other times I claim it is the possibility of a phenomenological fact – our experience of the moral must – that needs explaining. I have to admit that in the book I did switch from the normative to phenomenological in this way. But it is really the phenomenological fact that I start from. Like Kant, I assume that we can learn about the object of this experience, the moral must itself, by understanding our experience of it and how this experience is possible. I claim that Kant is best understood as maintaining that the Moral Law explains the possibility of this experience. Given the validity of some form of transcendental idealism, if the moral law explains the possibility of this experience it also explains the possibility of the object of this experience. But my primary interest is in explaining the possibility of the experience of the moral must, the experience of being bound to do some act in a way that is independent of our desires and concerns. As I understand him, Kant argues that it is the moral law that explains this experience. When we experience some act as necessary in the circumstances we take ourselves to stand under an absolutely universal law. The strict universality of this law must, in turn, be traced back to the moral law itself. What I wanted to emphasise is that this law is not to be taken as a very abstract ground of duty. It should, rather, be understood as having a transcendental, not a justificatory role.

2. JD, asks, how the moral law can explain the possibility of our experience of particular imperatives if the moral law is itself experienced as an imperative. It seems that my account simply begs the question at issue, or at least leaves one such experience unexplained.

The first point I would like to make in response to this is that the moral law is not intrinsically imperatival. In itself it is the mere form of law as such, which for Kant is the feature that all laws, qua laws, possess – namely, mere universality. It is for this reason that he calls it the mere form of law as such. In itself, then, the moral law is not an imperative. On Kant’s view, perfectly rational beings act from the same fundamental principle as we do; though it does not appear to them in the form it appears to us. It appears to us as an imperative because of our finitude, because we do not necessarily act in accordance with law-like maxims.

The second, and more important, point is that we do not have an experience of being bound by the moral law that is distinct from our experience of being bound to do some particular act. Kant need not be understood as claiming that we first experience the moral law as an imperative and then have a distinct experience of being required to do particular acts in particular contexts. [1] If we did, both experiences of moral necessity would have to be explained. Kant may, however, be understood as claiming that we only experience the imperatival character of the moral law in our experience of being bound to do some particular act. This experience is explained with reference to our finite nature and our taking ourselves to stand under an unconditional law which, qua unconditional, must be subsumed under the mere form of universality as such, i.e. the moral law. But the imperatival character of this law is only felt in our feeling constrained to do some specific action, and is not separable from this. Understood in this way, there is not a separate question of how we are to experience the moral law as an imperative.

3. Isn’t the Kantian explanation of the experience of moral necessity I outline refuted by particularists who deny any important role for universal principles? Many people do not think that they are subject to Kant’s moral law: JD confesses to being such a person. But such people are still able to experience moral requirements. JD notes that I do not think transcendental claims can be refuted in this way, but insists that if the ‘can’ that is at issue is non-normative, then it is falsified by particularists. Particularists do not see themselves as subsuming particular acts under strictly universal principles. If they did they wouldn’t be particularists. Isn’t it presumptuous to insist that particularists’s self-understanding is mistaken?

Well, this may sound presumptuous, but I think that transcendental principles cannot be refuted in this way. This is not because the relevant ‘can’ is normative, but because the claim that is being made is transcendental rather than psychological. I do not think I refute what Kant says in the first Critique by claiming, on the basis of introspection, that I am not aware of subsuming my intuitions under the categories. I suspect none of us are aware of doing this. If introspection could refute what Kant says in the first Critique, then no complex arguments are needed against Kant’s view. We need only note that no one has ever caught himself or herself applying the categories. We could then conclude that since these people have experience without applying the categories, the categories cannot be necessary for experience.

This is not of course to say that particularists are mistaken about the form of their moral deliberation. I am not insisting that universal moral principles must figure in one’s practical deliberation if one is to conclude that one must act in a certain way. The distinction between the transcendental and the justificatory role of moral principles enables us to claim some essential role for moral principles without insisting that they must, or should, figure in our deliberation. On the view I favour, the moral law and the more specific, intermediate moral principles function solely as transcendental conditions of some consideration necessitating some act. They do not also function as considerations that necessitate this act, or as part of some more complex consideration that necessitates this act. As such, there is no presumption that they should figure in our deliberation about what to do.

Kant may be wrong in maintaining that we need to synthesise our experience by means of the categories, but I do not think that he can be shown to be wrong by introspection. Similarly, if the moral law is to be understood as a transcendental principle, explaining the possibility of moral experience, I do not think it can be refuted by introspection.

4. JD suggests that the possibility of the moral must might be explained in some other way, a way with which the particularist would be more comfortable. One possibility JD suggests is that the possibility of fully particular laws that explain particular musts, which do not need to be explained by universal laws. This proposal accepts the assumption that the relevant sort of law is one that states what must be done, but pushes the possibility that this law could be fully particular. It could be fully particular in the sense that the thing that must be done is a particular action and the law only requires this particular action in this particular set of circumstances. According to this proposal, there is no universal claim to the effect that this type of act must always be done in this type of circumstances. Call this the ‘particular law’ account of moral necessity.

Another possibility JD suggests is ‘to try to appeal simply to the differences between different types of reasons’. The type of reasons he has in mind are those that are categorical n the sense that they independent of the agent’s purposes or concerns. The idea is that the balance of categorical reasons can explain the categorical musts they give rise to. Call this the ‘balance of reasons’ account of moral necessity.

In my book I do not offer arguments for the view that particularists cannot explain moral necessity. I simply outline a Kantian explanation of this. Whether some particularist alternative is better will depend on the details of their alternative account, and this is not the place to push this matter. I shall, however, briefly mention some problems the particular law and balance of reasons accounts of moral necessity may run into.

The main problem I have with the particular law account of moral necessity is that there does not seem to be enough of a gap between the fully particular law and the particular act it requires. What is the difference between a law that states that I must do some particular act A in a particular set of circumstances C and the fact that I must do A in C? There must be a difference if the particular must is to be explained by the particular law, but it is unclear what this difference is.

One might also wonder what conception of law is at work here. The Humean, regularity theory of laws has trouble even with laws that are instantiated only once, and whereas Armstrong’s conception of laws [2] as relations between universals allows for there to be just one instance of a law in a possible world, this falls a long way short of JD’s fully particular law. As JD understands it, a fully particular law not only might be instantiated only once, but could only be instantiated once. It would seem that any law cannot be fully particular in the way JD suggests, but would have to pick out some sort of regularity. If this is right, then a particular moral must could not be explained with reference to a fully particular law.

Finally, it is not clear to me that we make sense of a law that requires that some particular (token) act be done prior to the doing of that particular act? It seems to me that prior to the doing of the token act we can only talk of act types.

I have to say that I am more inclined to the balance of reasons account of moral necessity than I was when I wrote the book, but I still have some doubts about it. There is, I think no doubt that the balance of reasons fully explains the oughts they give rise to. The only issue, then, is whether musts are different from oughts. I think there are a number of ways in which they are different, and these are intimated in the way in which we use ‘must’ instead of ‘ought’. In particular, in thinking that I must do something I think not only that the balance of reasons favours this act, but also think of myself as unable to do anything else. As Bernard Williams has pointed out, this feature is particularly conspicuous when we apply these terms to the past. There is nothing odd about saying ‘I ought to have ¦ed, but I didn’t’. It would, however, be odd to say ‘I had to ¦, but I didn’t’.

If there is something to the idea that ‘ought’ is distinct from ‘must’, and if ‘ought’ can be understood solely in terms of the balance of reasons, then we cannot understand ‘must’ in this way. There seems to be more to the moral must (and not just the moral one) than that the balance of reasons come down a certain way, or even that they come done emphatically a certain way. A necessitating reason is not simply an undefeated reason, not even an undefeated categorical reason. I think the fact that I could save my life by jumping off the burning building is a reason for me to jump if my future life would be worth living. I also think I have this reason even if I do not, at present care about my future life, so this reason looks categorical. But although I think this undefeated reason means that I ought to jump, it is not clear to me that it implies that I must jump. I am not, therefore, wholly convinced that one can understand the moral must with the idea of an undefeated categorical reason.

It might be that a necessitating reason is one that not only favours a certain course of action but also silences (McDowell) or excludes (Raz) other competing considerations. This seems to me to be the right way to go in understanding moral necessity in terms of reasons. But however much such an account helps us to understand the nature of moral necessity, it still seems to leave us with a possibility question. How is it possible not only for some consideration to favour an action, but also to exclude other competing reasons from consideration? Why do some considerations exclude as well as favour, whereas others do not? It seems to me that the prospects for the balance of reasons account will depend on its ability to answer these questions, or at least to show why it does not have to answer them.

5. JD notes that the standard objection to particularism is to insist that moral reasons obtain if and only if certain principles obtain. This biconditional is often defended by the claim that a moral reason for X just is a feature that would make X a duty if it were the only morally relevant feature. ‘Every reason-giving feature is such that if alone it is a duty-making feature’ (7). JD thinks that there is a decisive refutation of this argument. Whether my defence of universal principles is different from this, and so not vulnerable to the same refutation, depends, on the details of my view. He claims there are two ways in which I propose the relation between the moral law, intermediate moral principles and required acts. On one interpretation my view is distinctive, but, he claims, can be objected to on other grounds. On the other interpretation my view is not distinctive, and so is vulnerable to the same objection as the standard (subjunctive conditional) view.

On the first interpretation of my view the necessity of specific acts is explained with reference to intermediate moral principles, the possibility of which is explained in turn by the moral law. On this view, the moral law does not stand in a direct enabling relation to the deontic feature of particular acts, but stands in this relation to the intermediate moral principles. These intermediate principles then stand in the same enabling relation to the relevant feature of particular acts that fall under them (7). Call this the possibility view.

On the second view, the moral law stands in a direct, enabling, relation to particular acts, and the intermediate moral principles merely determine to which acts the moral law is to be related. Here the intermediate moral principles stand in a different relation to the particular acts and the moral law than the moral law stands to the particular acts. The moral law stands in an enabling relation to the particular acts, whereas the intermediate principles stand in what might be called an act-specifying relation. On this view, JD claims, there is only one possibility question. Questions about which action is required are not possibility questions (7). Call this the mixed view. JD thinks the possibility view is distinctive, whereas the mixed view looks more like the standard defence of moral principles (7).

In the book I made a number of claims that made it look as though I sometimes advocated a mixed view. But although I sometimes state that the intermediate moral principles have an act-specifying role, I did not mean to imply by this that they did not also have an enabling role, and I do not see why I cannot regard particular moral principles as playing both roles. The sort of view I had in mind was that moral necessity gets to particular acts from the moral law via more specific moral laws, and that the specific moral laws also determine which particular acts this necessity finds its way to. By itself the moral law explains the possibility of some act being required. More specific principles are needed to explain the possibility of some particular act’s being required in some specific set of circumstances. These intermediate principles are needed not only in their act-specifying role, but also because their having this role enables them to complete the explanation of the possibility of the imperatival character of the specific acts they specify. I am not sure that the act-specifying role commits me to the subjunctive conditional claim, but I do not see why it forces me to abandon the enabling role for these intermediary principles. As I see it, the act-specifying role of these principles is part of the enabling story.

The question is, though, whether I can defend the possibility view given the way in which I understand the intermediate principles. JD claims that because Rossian principles are not absolute in the traditional sense, they are not well suited to explain practical necessity.

‘ The moral law is just the right sort of explanans, since it is, as one might put it, in the requiring business. But Rossian principles are not - and rightly not’ (8).

Given JD’s earlier criticism this is a surprising objection. For here he seems to be insisting that the imperatival character of required acts be explained by requiring principles, whereas he earlier objected to an explanation of this form as question-begging. Together these two points make it impossible for the problem of moral necessity to be solved. For, he claims, the only hope of solving it is with reference to a principle that itself necessitates, but he also objects that explaining moral necessity in this way merely relocates the problem at a higher level. If, therefore, the problem is solvable, one horn of the dilemma must be graspable.

I have tried to respond to the first by arguing that the experience of the categorical imperative is not a distinct phenomenon from the experience of the necessity of some particular act. Consequently, it does not stand in need of a separate explanation. I think one could also deny the second horn of the dilemma. I do not see why all of the conditions that explain the possibility of moral necessity must be necessitating principles. If ought implies can, then my ability to X enables X to be an act I ought to do. But although my ability makes this deontic feature of my act possible, ability is not itself deontic. Not everything that enables an ought must itself be an ought. It may also be that not everything that enables a must need be a must. As I understand him Kant’s aim is to explain moral necessity by the kind of universality that is embedded in universally valid principles, and Ross-style principles are as universally valid as more traditional (verdictive) deontic principles. The basic principles of prima facie duty specify which features give us moral reason to act in certain ways, and claims that these features give us these reasons in every possible case. The presence of such reasons does not imply that we have a moral requirement, for we may have moral reason not to do what we morally must do. So the reasons that fall under principles of prima facie duty are not in the requiring business in the sense that their presence implies a requirement. But they are in the requiring business in the very real sense that they are apt to give rise to moral requirements. It is for this reason that if undefeated they succeed in giving rise to a moral requirement. [3] Not all reasons are like this. The fact that something will be pleasant, interesting, or will enable me to live a good life, often gives me reason to pursue it, but is not such that if undefeated it will give rise to a moral must (or even a non-moral must). There is then something about moral reasons, the sort of reasons picked out by prima facie duties, that is different from other reasons. And this something seems to be that they are in the requiring business in this weaker sense.

How is it that these reasons have the distinctive feature of being apt to require? It is that they, and not others, fall under principles of prima facie duty that are strictly universal, and that inherit this strict universality by falling under the mere form of universality as such. It is through such principles, I argue, that the imperatival character of the moral law finds its way down to some specific act.

[1] I understand the ‘fact of reason’ as Allison does as a consciousness of standing under the moral law (CPrR, 31 & 48). But as Allison notes, ‘This cannot mean… that everyone is supposed to have a distinct and explicit awareness of the moral law… It is rather... of particular moral constraints’ (Kant’s Theory of Freedom, p. 233. Allison, however, seems to think that the Moral Law plays a justificatory role.

[2] His focus is on natural laws, but I do not see why it cannot be applied to moral laws.

[3] This is not quite the standard subjunctive conditional account of a moral reason, as it makes no reference to how the reason-giving feature would act if it were the only relevant consideration. All it says is how it would behave if it were undefeated.

Ethics Forums Ethics Book Reviews Kant, Duty, and Respect Jonathan Dancy, Review of Phillip Stratton-Lake, "Kant, Duty, and Respect" Jonathan Dancy, Review of Philip Stratton-Lake's "Kant, Duty, and Moral Worth"