Golden rule reasoning, moral judgment, and law.

AuthorDuxbury, Neil

This article examines "Golden Rule reasoning"--reasoning according to the principle that we should treat others as we would have them treat us--as a basis for moral action and as a criterion for assessing the moral quality and implications of judicial decisions, legal rules, and proposals for legal reform. After distinguishing the Golden Rule from other ideas and principles with which it is sometimes associated, I embark upon a defense of the Golden Rule as a principle of fairness. The main approach to defending this principle has been to detach Golden Rule-based behavior from the desires of agents and recipients. The purpose of adopting this approach is to avoid reducing the Golden Rule to the proposition that we are entitled to impose on others preferences that we would happily have imposed on us. I examine various attempts to show that the Golden Rule requires that agents do not simply project their values and desires onto others and I argue that the most successful of these is R.M. Hare's explanation of Golden Rule reasoning in universal prescriptivist terms. Although the universal prescriptivist explanation is open to various criticisms--as becomes obvious when it is applied to particular moral problems such as euthanasia and abortion--it nevertheless provides a strong philosophical basis for claiming not only that Golden Rule reasoning need not be connected to particular tastes and preferences but also that, as a matter of moral principle, we should never tolerate double standards where cases are relevantly similar. While I accept and try to demonstrate the merits of interpreting the Golden Rule in universal prescriptivist terms, however, I conclude that a more robust interpretation of the Rule is one which is advanced by some natural law philosophers and which offers a philosophical justification for the proposition that doing to others as one would have done to oneself is necessarily a case of doing good towards others. The article ends with some reflections on the implications of this version of Golden Rule reasoning for legal policymaking, and in particular for the abortion debate.

INTRODUCTION

Sometimes, we try to transmit wisdom by formulating simple "rules" which we think others will do well to heed. These rules we occasionally refer to as "golden," to emphasize that if we start with these rules and abide by them in some particular activity, what we desire should be attained and what we do not desire avoided. Books abound offering "golden rules" of self-improvement--how to thrive at myriad tasks, pastimes, projects, and so on--and at one time or another most of us will either give or receive golden rule advice. My own favorite examples, qua recipient, are supposed golden rules of wallpaper-hanging (less paste, more speed) and freestyle swimming (choose the path of most resistance).

Such examples typify golden rules: they are efforts to provide general guidance, efforts which are often lacking in subtlety and easily contradicted, rules only insofar as they are rules of thumb. Whether formulating or being told of golden rules, we usually recognize them, or are foolish if we do not recognize them, for what they are: pieces of advice which, though very likely memorable and possibly valuable, are not indispensable or capable of taking the place of endeavor and engagement. To apply this characterization to the golden rule most familiar to lawyers would be somewhat uncharitable. That ordinary words in statutes should be given their ordinary meanings (and technical words their technical meanings) unless absurdity would result is not described as a "golden rule" for nothing: if it were unreasonable to presume that courts will take words to have the meanings attributed to them in normal usage, it would be impossible for lawyers and others confidently to advise and act on the statutes that concern them. Yet, as every lawyer knows, this golden rule is not the only legitimate criterion for interpreting statutes and, in any event, where serious doubt as to the appropriate construction of a statute exists, courts are in effect making a judgment rather than determining which rule, or combination of rules, does the legislation the most justice. (1) Law's golden rule, like other purported golden rules, has value; that a rule's value makes its designation as "golden" comprehensible, however, does not mean that the designation must be accurate. Golden rules are invariably fakes.

But there is one Golden Rule, complete with capital letters, which is commonly considered the genuine article. This is the prescription--sometimes phrased as a proscription--to do unto others as we would have them do unto us. Just when this stipulation was first described as a Golden Rule is unclear, (2) though references to the basic moral sentiment can be traced back long before Christianity. (3) It is perhaps rash to claim that the Rule is "It]he only standard of duty common to all people." (4) But it is certainly recognized in all cultures, and numerous studies show that it has been endorsed in all of the major and most minor religions. (5) Although there will be reason in this study to refer occasionally to particular religious formulations of the Golden Rule, there is no need (and anyway I lack the competence) to examine it as a feature of different traditions and faiths.

Nor is there much to be gained from simply identifying instances where the Rule features in law. Dig deep enough, and such instances can certainly be found. Courts have appealed to the Golden Rule, among other things, as a benchmark of good advocacy and legal probity, (6) a principle of judicial (and interjurisdictional) as comity, (7) a means of determining whether a claimant deserves an equitable remedy, (8) as a rationale for limiting certain forms of speech and expression, (9) for the judicial review of legislative action, (10) and as the basis for principles of equitable fair dealing, (11) restitution for unjust enrichment, (12) general trusteeship, (13) proprietary estoppel, (14) specific performance (compelling the defendant to do to the claimant as he would have had the claimant do to him had their positions been reversed), (15) and the duty of care in negligence. (16) Various writers have argued that the Rule provides a rationale not only for laws of armed conflict (such as those concerning the treatment of prisoners of war) and for nations respecting mutual treaty agreements and one another's rights to independence, but also for humanitarian intervention and other forms of rescue. (17) Some judges have likened the Rule to an equitable principle, (18) and for a while it was a key part of the definition of contractual good faith in the Louisiana Civil Code. (19)

But the significance of these manifestations of the Golden Rule in law is easily overestimated. Few of the arguments add up to very much, which may be why we find hardly any of them advanced in superior courts or by eminent judges. Perhaps the most obvious deduction to be made from these various pronouncements is that, with a little imagination, most legal rules and doctrines can be connected to the Golden Rule. The main study to date of the Golden Rule as a legal principle hardly considers instances where the Rule has explicitly been adopted as such; rather, it follows in the path of many other analyses of the Rule and examines it primarily as a principle of moral action. (20) This makes perfect sense, because the significance of Golden Rule reasoning to law rests not so much in how the Rule has been used, but in some of the conclusions lawyers and judges would have to contend with were they to take the Rule seriously as a moral principle providing reasons for action.

After offering some preliminary remarks about and setting aside some potential misinterpretations of the Golden Rule, I shall show how moral and political philosophers have recognized that basic formulations of it need to be qualified or elaborated if those formulations are to make moral sense. Although different philosophers provide different qualifications and elaborations, and although their various attempts at refinement are inevitably subject to criticisms, some of the resulting arguments in support of the Golden Rule as a moral principle are remarkably robust. Only when we have considered these arguments will it make any sense to consider some legal implications of Golden Rule reasoning. What we will discover--this is no doubt predictable--is that positions taken in law and positions supported by Golden Rule reasoning sometimes oppose one another. We would expect, in such instances, that if the Golden Rule is rationally defensible, then the legal positions which it opposes are unsupportable. To reach this conclusion would, I think, be simplistic. The fact that Golden Rule reasoning demonstrates certain actions to be morally objectionable or unobjectionable is not in itself a sufficient reason for criminalizing or legalizing those actions. In due course we will see, for example, that such reasoning has been employed in an effort to demonstrate that euthanasia is sometimes morally permissible. But even if Golden Rule reasoning does demonstrate as much, it does not necessarily follow that euthanasia should be legalized, for there may be prudential reasons against legalization--fears, for example, about how decriminalizing the practice might increase the likelihood of abuse or mistakes, or how it might alter our principles concerning how to treat the aged and the seriously ill. (21) My argument is not that the Golden Rule is an unassailable moral principle which the law ought always to follow--a law which we cannot defend by Golden Rule reasoning is not necessarily something that ought not to be law--but that, appropriately interpreted, the Rule provides us with a standard according to which we might usefully test our intuitions regarding the moral quality and implications of particular legal principles and initiatives.

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