Nonlegislative Justification

Abstract

If moral theorists who otherwise disagree, all approach moral theorizing as a search for a set of desirable moral principles for the general regulation of behavior, then there is a sense in which they are all, as Parfit says, climbing the same mountain. But it is the wrong mountain. Morality should not be understood as hypothetical legislation; it is a mistake to set about constructing morality as if we were making law. Real legislators evaluate possible legal rules by considering the effects they would have. They can do this because enforcement and acceptance of law ensure a high level of compliance. Moral legislators have no reason to assume any particular level of acceptance; the effects of counterfactual acceptance of a principle are not morally relevant. The argument targets rule consequentialism and Scanlon’s official version of contractualism. The paper begins in a positive mode by arguing that a nonlegislative version of Scanlon’s approach, that seeks justification for conduct of such-and-such a kind in such-and-such circumstances by comparing the reasons in favor and the reasons others have to object, is a very attractive way to think about what we owe to each other.