Morality and central cases of rules

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CONTENTS

Page Statement ala

Acknowledgments

Abstract InËroduction

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1

Chapter I

.

Necessary And/Or Sufficient Conditions For Moral Rules 1.

q

J.

4.

5.

6.

7.

B.

o

r0.

ll.

L2.

Rules And Principles

Moral Rules And UníversalÍzability Moral ^{Rules And} PrescriptivitY Moral Rules And Sanctions

Moral Rules And OverrÍding Consideratíons Moral Rules And Their :ImPortance

Moral Rules And Their Content Moral Rules And Immunity to Change

Moral Rules And The Distictíon ^Between

ExcepËions hlhich Are Part 0f The Rule And

DeservÍng CasÈs

Ho¡nt l,Ioral Rules \^Iork Suuunary

Moral Motivation

10 18 2L 22

t1

28

30 34

Chapter ². Misunderstandings About Moral Rules I,trarnock 0n Rules

In

General

hlarnock 0n Moral Rules

tr'reyrs Criticísm

0f

l,rlarnockrs Account

1

2

3

40 47

55 57

75 87 60

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Chapter ^{3 Family} Resemblances And Central Cases

I4littgensteinrs And Later Accounts Of Farnily

Resemblances

DÍfficultÍes I^J'íth The Family Resemblance Account

108

I

2

]-26

Chapter ⁴ The Alleeed Unity Of Law And Morality 1. ^{Moral- Rules And Legal Rules}

2. Lyons And PossÍb1e Necessary Connections Between Lar¡ And Morality

3. Detmold And The Unity Of Law And Morality ConclusÍon.

Bibliography.

141 159

L73 186 r89

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STATEMENT.

This thesis contains ^no material which has been accepted for the award of any other degree or dipl-oma at ^ariy uníversity.

To the besË of ^my knowledge and belief, the thesis conÈains no material ^previously published or written by another person except where due reference is ^made in the text of ^the

thesis.

T consent to thís thesis ^{beíng made} available for loan ^and for PhoËocoPying.

-]-V-

ACKNOWLEDGEX"IEMS.

I am grateful to Mr. John Chandler' ^my

principal supervisor, and to l"fr. Michael Bradley,for their patient and persistent críticísm during uhe

preparation of this thesis. The same expression of gratiEude is extended Èo Mr. Michael Detmold of the Faculty of Law.

Particular gratitude is acknowledged to Rabbi Jeffrey A. Kahn of the Temple Shalom, Liberal Jewísh Congregation of South Australia, Inc., and to Angie for her many kindnesses, assistance and ^paËience.

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ABSTRACT

This thesis argues that, despite their ^apparent differences, ^{moral and} legal rules ^may be coristrued as a central case of rules due to the partícular similarities ^{suggested by} H.L.A. Hart.- 1 Reservations, however, a1e expressed about attempts to find any rnecessaryr connection between law and morality beyond

the maintenance of social equilibriurn.

G.J. I^larnock is central to these considerations ^since, in The Obiect of Morality2 he denied the existence of moral rules orr alternatively, maintained that if there were moral rules ^they could be regarded as irrelevant to moral consíderations.

The Introduction outlines I^Iarnockts claims concerníng the object of morality, the non-amelíorative types of ^propensity which work against it, and the countervailing ^moral principles required for its attainment. Attention is ^drav¡n to two questions arising from l^Iarnockt s ^{account v¿hich} are not sa¡isfactorily ^ans- wered. The first is how people acquire the necessary príncÍples without coercion, and Ëhe second concerns their practical applic-

ation, given that ^Lrarnock appears to discount the sort of refer- ential framework provided by uroral rules, by which they might be

exercised.

1. H.L.A. Hart, The Concept of Law, Oxford University ^Press,

l-979,

pp.168.

2.

G.J. I{arnock, The Object

of Morality,

London, ^{Methuen &}

Co.

Ltd.,

1971.

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Chapter 1 posits conditions that rnight be regarded as necessary and/or sufficíent for a rule to be considered a

moral one. It is argued that the notion of a noral rule is justified by ^a sufficient condition, and that moral rules ^have

e.

a rgle in _I moral reasoning.

ChapÈer 2 examines the discussion by l{arnock and

R.G. Frey* of rules in 1 general and moral rules in particular.

It is argued that I{arnock is místaken in his notion of what con-

stiÈutes a moral rule, and that his claim that there are ^{no moral} rules because they do not possess one characteristic allegedly

possessed by the reentraltcases of the rules of institutions ^and the law is suspect. Frey's críticisms of I^Iarnock's alleged

tnecessaryt condítion; are examined and found to be inadequate.

Chapter 3 examines Freyts suggestion that ^some notion of the centrality of certain cases of rules might be established through a lamily resemblance theory. I^trittgensteinrs family re-

semblance theory ís tested by the notion of'gamet and found to be incoherent, The theoryrs failure to give an adequate account

of ^game is taken as suffíeient evidence that it will fail also in the case of trulet.

Chapter 4 examines Hartrs alleged símilarities

between moral and 1egaI rules and it is argued that, despite differencesrthey ^may be regarded as a tcentralt case of rules.

,)

David Lyonts- acco,lnt of the possible tnecessaryt _connection between morality and law is then examíned and reservations are

1. R.G. Frey, I'foral Rules, Philosophiqal Q"gftç¡lt, Vol. ^26, No. 103,

April

L967, pp. f49-156.

2. David Press,

Lyons, Ethics and the Rule of ^Lav¡

1984,

^pp.78-109. Carnbridge University

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expressed about the Inecessityr of such connections. ^An essential aspect of M.J. Detnoldtsl ^argrrtent for the union of moraliEy and lar^r is then reviewed and argued to be unsatis- factory. The thesis concludes by suggesting that ^{attempÈs to} assert any Inecessaryr connection bet¡¡een morality and 1aw, beyond their role ín the preservation of social order ^{may be} místaken.

1. M.J. ^{Detmold, The} Unity of ^Law and Morality, ^London, Routledge arid Kegan Paul, 1984.