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Legal Theory Lexicon: Deontology

Introduction

A prior Legal Theory Lexicon post explored utilitarianism,
an approach to normative moral theory that has had an enormous
influence on legal thought. This week, I take up one of
utilitarianism's main rivals, deonotology. Deontological moral
theories vary in myriad ways, but the focal point for deontology is the
concept of duty with its correlative notions of rights and permission.
Thus, the distinctive thesis of deontology in general might be
formulated as the claim that the rightness of action is a function of whether the action is required, prohibited, or permitted by a moral rule.

This is, of course, a simple formulation, and contemporary
philosophical theories in the deontological tradition offer more
sophisticated and nuanced formulations. This post aims to introduce the
central idea of deontological moral theory with special reference to
the interests of a first-year law student with an interest in legal
theory. Almost every first year course will include deontological
ideas. In criminal law, deontology is reflected in the notions that an
action cannot be a crime unless it is the violation of a moral duty and
in retributive theories of punishment. In torts, deontological theories
argue against the economic analysis of tort law and for the idea that
tort law is best explained by a theory of corrective justice. In
property law, deontological theories emphasize the role of property in
creating spheres of autonomy. In contracts, the deontological approach
results in the idea that contract is fundamentally explained by the
duty to keep a promise. And even in civil procedure, deontological
ideas appear in the view that litigants have a right to a "day in
court."

What Rights and Duties Do We Have?

The idea that some actions are wrong and therefore forbidden has a
strong intuitive appeal. And we can easily generate a list of action
types that are at least ceteris paribus wrongful: telling lies,
breaking promises, intentionally killing or injuring an innocent
person, stealing, and so forth. For some purposes, a simple list of
wrongs may be sufficient. But philosophers and legal theorists are
unlikely to be satisfied with a list. Why not? Because the
content of the list is likely to become controversial. Lying belongs on
the list, but what about the failure to make a full disclosure to a
stranger in an arms length commercial transaction? Battery is on the
list, but should the exception for self-defense be extended to defense
of property?

So what method or principle allows us to identify the list of
duties, rights, and permissions that would provide the content of a
fully specified deontological moral theory? One possibility is that we
would identify the list by appeal to our sense of what is right and
wrong. Let's give that sense a fancy name: call it "moral intuition."
One possible method for identifying the content of a deontological
moral theory would be to consult our moral intuitions about particular
cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then?
Even if I consult only my own intuition, I may come to see that my
intuitions about particular cases are not consistent at the level of
principle. My intuition makes an exception for lies told to instructors
as excuses for turning in late papers, but not for lies told to friends
as excuses for extreme lateness.

Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls–the method of reflective equilibrium.
We might aim to order our raw moral intuitions by positing some general
principles that would explain and unify our considered judgments about
particular cases. Once we have a set of general principles, it may turn
out that some of our considered judgments about particular cases need
to be revised. In other cases, a general principle may conflict with a
considered judgment about a particular case that we hold very firmly.
In such a case, we may wish to modify our general principles. If we
work at it, we might eventually reach a point where our revised general
principles are in agreement with our revised judgments about particular
cases. Rawls call this state "reflective equilibrium." The same
procedure might be used collectively to resolve conflicts between the
judgments of different individuals; Norman Daniels call this
interpersonal use of reflective equilibrium, "wide reflective
equilibrium."

Kant

Reflective equilibrium is one way to specify the content of a
deontological moral theory. The German philosopher Immanuel Kant
provides another. Before I proceed any further, I want to make it clear
that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative.
Kant believed that duty was the central moral idea, and he recognized
the problem of specifying duty. Kant had a particularly deep and
interesting solution to that problem which begins with the idea of a
good will: "Nothing can possibly be conceived in the world or out of it
that can be called good without qualification except a good will." And
a good will is a will that aims for the good and not merely for
the objects of desire and inclination. If we act on the basis of a
hypothetical imperative (if I want X, then I should do Y), we act on
the basis of desire and inclination–"heteronomously" in Kant's
terminology. In order to aim for the right, we must act on the basis of
a categorical imperative, that is, on the basis of a reason or
principle that does not include a desire or inclination. (In Kant's
terminology, this would be acting "autonomously.") So what would a
categorical imperative look like? Kant's answer to this question is
stunningly brilliant–one of the most awesome moves in the history of
philosophy. Kant suggested that one could act on the basis of a
categorical imperative by consulting what he saw as three equivalent
formulas:

    The Formula of the Law of Nature: "Act as if the maxim of your action were to become through your will a universal law of nature."

    The Formula of the End Itself: "Act in such a way that you
    always treat humanity, whether in your own person or in the person of
    any other, never simply as a means, but always at the same time as an
    end."

    The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."

Onora O'Neill, the great Kant scholar, has a really wonderful essay called A Simplified Account of Kant's Ethics.
If you are still reading this post and you haven't already read
O'Neill's piece, download the word file and read it now–believe me it
is worth it.

O'Neill focused on the formula of the end itself, so let me say just
a few words about the formula of the law of nature by giving an
example. Suppose you are deciding whether to tell a lie to a friend to
get out of a lunch date. You first ask yourself, "What is the maxim (or
principle) of my action?" Suppose the answer is "Lie when convenient!"
Now, you imagine that if you were to lie to your friend the principle
upon which you acted would become a universal law of nature–everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First,
if everyone were to lie whenever it was convenient, human communication
might become impossible, because no one could be trusted. The
maxim–lie whenever convenient–has a contradiction in conception,
because the lie would never be believed in the possible world in which
the maxim of your action was a universal law of nature. Second,
if one can imagine a world in which everyone lies when convenient, you
might not be willing to lie on this occasion if the result of your
action was that the maxim–lie whenever convenient–were to become a
universal law of nature as a result. You might not want others to lie
to you when they thought it was convenient–we can call this a contradiction in the will.
Of course, my analysis of this example has been very sketchy and crude,
but I hope that I have done enough to give you the general idea.

Some Objections to Deontology All of the main approaches to
moral theory are controversial, and because the debates have been
raging for centuries, the arguments are now enormously complex. So I am
going to give two very simple objections to deontology, with the
warning that the current state of play on these objections is now so
complex and ramified that you really must be a specialist to give even
a rough summary.

    The Indeterminacy Objection. The first objection is that
    the content of a deontological moral theory is underdeveloped by the
    various methods for deriving a set of duties, rights, and permissions.
    So, for example, the method of reflective equilibrium may help us to
    order our considered judgments about particular rights, duties, and
    permissions, but it might be objected that this method is unlikely to
    settle any of the major disputes about what the duties, rights, and
    permissions actually are. Different people will arrive at different
    reflective equlibria. Even a single individual may come to believe that
    a variety of equilibriums are equally plausible or that her view of the
    most stable equilibrium is unstable, changing frequently in response to
    new examples or arguments. Kant's approach is subject to the same
    objection, with many critics arguing that Kant's method does not
    produce unique answers to particular questions about duty.
    Deontological moral theorists might counter that although their methods
    may not always produce unambiguous answers that will produce universal
    assent, that this is an unrealistic criterion for an acceptable moral
    theory. Particular deontological theories may allow the zone of moral
    disagreement to be narrowed and provide illuminating insights about
    particular cases.

    The Rigor Objection. The second objection begins with the
    assumption that deontology does produce determinate answers to
    particular questions of morality, but argues that the answers are
    implausible, because they are too demanding or inflexible.
    Consequentialist critics of deontology argue that absolute rights,
    duties, and permissions can lead to consequences that would not be
    morally acceptable. One famous hypothetical, based on Kant's discussion
    of lying, imagines that you are in Germany before World War II and a
    Nazi has come to your door and inquired whether you have seen a Jew who
    has escaped. If there is an absolute moral duty to tell the truth, then
    you are not permitted to lie in response, but telling a lie may be the
    only way to save the life of an innocent person. Surely, the
    consequentialist argues, telling the lie is not only morally
    permissible, it is morally required. Deontologists can try to escape
    from examples like these in a variety of ways. For example, the
    deontologist might simply argue that there is no duty to tell the truth
    to evil doers who will use the truth for evil purposes. Or the
    deontologist might argue that this is a case which duties conflicts,
    and that some higher order principle favors the duty to protect the
    innocent person from evil over the duty to tell the truth. Or the
    deontologist might allow that duties can be overridden by consequences
    in some circumtances. Some deontologists may bite the bullet and argue
    that one is required to tell the truth, even if the consequences are
    horrific.

Conclusion In a sense, the battle between deontology and
consequentialism is one of the great battles of contemporary legal
theory. Legal theorists argue over deontological and consequentialist
theories of contract, tort, property, criminal law, procedure,
constitutional law, and many other doctrinal fields. As a law student,
you might start to look for deontological arguments in cases and class
discussion. Almost every time class discussion turns to the question,
"What should the rule be?," you will be able to construct both
consequentialist and deontological arguments for and/or against the
various possible rules. Getting the hang of normative legal theory is,
in large part, a matter of mastering a set of consequenitalist and
deontological moves.

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Bibliography

(This entry was last revised on May 10, 2009.)

Lawrence Solum

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