Law & Society Blog

I finally managed to update my primer on Meta Ethics in Legal Reasoning. My goal has been to present a taxonomy of meta ethical positions (based, in large part, on R.M. Hare’s delightful book Sorting out Ethics), as they apply to the process of legal reasoning. I am still not convinced that meta ethics (in its present, linguistic form) is a particularly worthwhile endeavor, but my objections are not yet at a stage where I could present them in a coherent form. That said, here are two seeds of my unease with the present mainstream of meta-ethical theory:

• Most linguistic philosophy is based on a rather naive concept of communication in which a sender transmits a packet of information to the recipient. In my view, communication happens without any direct involvement of either a sender or a recipient, that is, communication is an event that takes place entirely in a social realm constituted by communication. (In the words of Niklas Luhmann, “communication communicates.”) Minds and thoughts are not part of communication, because I can’t connect my mind to yours. Thus, the whole concept of illocutionary speech acts seems to be built on somewhat shaky foundations (unless, of course, it refers to persons, not to minds, whereby persons are nodes, that is, communicatively construed points of imputation that exist wholly in the social realm.)
• Most meta-ethical theories place an implicit premium on consensus or unity; we seek to identify a defining property of “wrongness” or, in certain discourse-theoretical variants of ethical theories, we seek to establish a consensus equilibrium in real or idealized situations of practical discourse. But why unity and why consensus? It may well be that the adequate processing of differences is a much more significant aspect of ethics than providing criteria for deciding moral questions. Hopefully, I will soon be able to present an outline of a meta-ethical/legal theory built entirely on difference as a first principle.

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