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WRONGDOING BY RESULTS: MOORE'S EXPERIENTIAL ARGUMENT

  • John Gardner (a1)
Abstract

Michael Moore and I agree about the moral importance of how our actions turn out. We even agree about some of the arguments that establish that moral importance. In Causation and Responsibility, however, Moore foregrounds one argument that I do not find persuasive or even helpful. In fact I doubt whether it even qualifies as an argument. He calls it the “experiential argument.” In this comment I attempt to analyze Moore's “experiential argument” in some detail and thereby to bring out why it does not help. In the process I raise some problems about the rationality of the emotions, which may be where Moore and I part company. We both believe that emotions should be taken more seriously by moral philosophy. But apparently we have radically different views about what this means.

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1. Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (2009).

2. Id., ch. 2, Causation and Moral Blameworthiness.

3. Michael S. Moore, Placing Blame (1997). The essay I have in mind is ch. 5, The Independent Moral Significance of Wrongdoing, which originally appeared as Moore Michael S., The Independent Moral Significance of Wrongdoing, 5 J. Contemp. Legal Issues 1281 (1994).

4. The contrast between results and consequences is explained in G.H. von Wright, Norm and Action: A Logical Enquiry (1963), at 39. In what follows, for simplicity I lump together the results and consequences of our actions using the expression “the way our actions turn out.”

5. This is the topic of Moore, Causation, supra note 1, ch. 3, Causation and the Permissibility of Consequentialist Justification within Agent-Relative Morality and the Law.

6. Moore, Placing Blame, supra note 3, at 233–246.

7. Nagel Thomas, Moral Luck, 50 Proc. Aristotelian Soc'y 137 (1976) 137151, at 146. Moore rightly observes that much the same argument was made in Feinberg Joel, Problematic Responsibility in Law and Morals, 71 Phil. Rev. 340351 (1962).

8. Honoré Tony, Responsibility and Luck, 104 Law Q. Rev. 530 (1988) 530553, at 543.

9. John Gardner, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility: Essays for Tony Honoré on His Eightieth Birthday (Peter Cane & John Gardner eds., 2001).

10. Moore, Causation, supra note 1, at 29.

11. This is forgotten, it seems, even by Moore, who paints Nagel as if he were embracing the conclusion of his own reductio. Moore, Placing Blame, supra note 3, at 216–217; Moore, Causation, supra note 1, at 24 n.16.

12. Williams Bernard, Moral Luck, 50 Proc. Aristotelian Soc'y 115136 (1976).

13. In Williams's case, it may not have been entirely unwitting. He later said: “When I introduced the expression moral luck, I expected it to suggest an oxymoron.” On the other hand, he did not expect the birth of the expression to do quite as much philosophical damage as it did. “[T]here are some misunderstandings,” he understatedly wrote, “that I now think my formulations in Moral Luck may have encouraged.” Bernard Williams, Moral Luck: A Postscript, in Making Sense of Humanity (1995), at 241.

14. Wolf Susan, The Moral of Moral Luck, 31 Phil. Exchange 519 (2000).

15. Moore, Causation, supra note 1, at 32.

16. Id. at 30.

17. Elsewhere he distinguishes “culpability . . . in a narrower sense,” which does not vary between the two situations, from “overall blameworthiness,” which does. Moore, Placing Blame, supra note 3, at 403. I doubt whether his “narrower sense” makes sense; there is no blameworthiness or culpability except the “overall” kind.

18. I am grateful to Helen Beebee for impressing on me that the arguments could be made valid without yet being made helpful to Moore's cause.

19. Arguably, what I call “truth-warranted belief” is the same as knowledge. It is not just warranted true belief but belief that I hold on the warrant of its truth. So, arguably, Argument 3 can be simplified into the form: “We know P, so P.” That makes both its validity and its conclusoriness even more patent.

20. Remember the revolutionary brigade who deny the moral salience of how our actions turn out? They have, according to Moore, fallen into precisely such systematic moral error, often but not always because they have thought about the problem under the judgment-clouding heading of “moral luck.” Nor are they rare outliers. On the contrary, they hold what Moore once dubbed the “standard educated view,” which is “concurred in by a majority of respectable criminal law theoreticians.” Moore, Placing Blame, supra note 3, at 194.

21. I owe the example, or at least its structure, to John Tasioulas.

22. In resisting this therapeutic worldview, it is possible to lean too far the other way and to think that thoughts that I do not endorse are alien—not really me. This is where Harry Frankfurt's thinking tends to lead. See especially Frankfurt Harry, Identification and Externality, in The Identities of Persons (Rorty Amelie ed., 1977). A better-balanced view, according to which some but not all of my unendorsed thoughts would count as pathological, is found in Raz Joseph, When We Are Ourselves: The Active and the Passive, 91 Proc. Aristotelian Soc'y 211227 (1997).

23. Moore, Placing Blame, supra note 3, at 228–229. Similar remarks appear in more cryptic form in Moore, Causation, supra note 1, at 33.

24. That is, unless you count the value of my being able to report them here in order to make my point. If you insist on counting that, let me assure you that I have many other valueless truth-warranted beliefs that I will not bore you with.

25. I discuss these sometimes conflicting dimensions of emotional rationality and their relationship to moral virtue in more detail in Gardner John, The Logic of Excuses and the Rationality of Emotions, 43 J. Value Inquiry 315338 (2009). There you can also find copious citations to a large literature.

26. Moore, Placing Blame, supra note 3, at 128.

27. In Gardner, Logic, supra note 25, at 329, I contrast these two kinds of appropriateness in terms of a more general contrast, afflicting the whole of rationality, between “service reasons” and “tracker reasons.”

28. Moore, Causation, supra note 1, at 32.

29. Notably Moore, Placing Blame, supra note 3, at 127–152, 226–227.

30. Moore, Causation, supra note 1, at 30.

31. Id. at 30–31.

32. See, most recently, Gardner John, What Is Tort Law For? Part 1. The Place of Corrective Justice, 31 Law & Phil. 150 (2011), in which I stand shoulder to shoulder with Bernard Williams against anti-backward-lookers, taking particular aim at Bittner Rüdy, Is It Reasonable to Regret Things One Did?, 89 J. Phil. 262273 (1992).

33. In extracting that message, I am thinking principally of his long discussion in Moore, Placing Blame, supra note 3, ch. 3, which is his famous essay The Moral Worth of Retribution, reprinted from Responsibility, Character, and the Emotions (Ferdinand Schoemann ed., 1987).

* Early versions of this comment were presented at an author-meets-critics panel at Oxford University in May 2009 and at a HumTec International Book Symposium at RWTH–Aachen University in March 2010. Of the many points raised on those occasions that helped me to turn my rough notes into something resembling a paper, none were more generous, helpful, and penetrating than those of Michael Moore himself.

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Legal Theory
  • ISSN: 1352-3252
  • EISSN: 1469-8048
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