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How Do Moral Judgments Underlie Positive Law?

Although most people may not have philosophical training, they are able to make correct moral judgments in a variety of situations. Professor Hadley Arkes discusses how people intuitively discern the difference between actions that can be contingently wrong and situations that are always wrong. That is why people willingly accept positive laws that are clearly based on commonsense principles. https://youtube.com/watch?v=yudahcXzYhk


The life of moral experience is suddenly becoming aware of these implications that have gone unnoticed. Now, you find that people may not be aware of the law of contradiction, but they spot an inconsistent story. They become aware of contradictions. Now, little by little, in the course of life, people may just bring things out that you hadn't noticed before. Like why the average man would be puzzled if you ask them, "Why aren't you making contracts with dogs or horses?" And if he had to explain it, he would be putting down the substance of what stood behind the proposition, all men are created equal. That is, no man is by nature the ruler of another man in the way that men must be the rulers of dogs and horses. You don't expect dogs and horses to be able to reason about contracts, tender their consent to the terms on which they are governed. And no man is by nature ruled by other men, the way that men must be by nature the ruler of animals. So much of this you find is accessible to ordinary people even though they don't have the language or the concepts the philosophers use. The ordinary person would understand that it's not always harmful to take an alcoholic drink, that the wrongness is contingent on circumstances, on excess or moderation. The same person would not say genocide taken in moderation could be harmless or inoffensive. He doesn't have the language of talking about things that are merely contingently right or wrong or things that are categorically right or wrong, things that can never be wrong, never right under any circumstances. But he has the sense of things whose wrongness will not be effaced by matter simply of degree. You could give two or three of these maxims that everybody would know, and the surprising thing is how they just pervade so much of our law. These are things that trace back to matters that ordinary people must simply take for granted in going on with the ordinary business of life as lived. Nothing esoteric. This is why Jefferson in that famous letter could say if you give the same moral problem to a plowman and a professor, and the plowman is as apt to get it right because he will not be distracted by artificial rules, call them theories.

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