On the foundations and nature of morality.

• Author: Burns, Robert P.
• Position: Symposium: Law and Morality

INTRODUCTION

Remarks on so vast a topic as the foundations and nature of morality must be focused by the subject with which the Symposium is concerned--namely, the relationship between law and morality. Insofar as half of "law and morality" is "morality," the Symposium topic necessarily brings the foundations and the nature of morality into play. And insofar as the nature and foundations of morality have been debated against the background of more fundamental philosophical issues, the entire history of ideas is relevant to the Symposium. Present-day lawyers addressing the relationship of law and morality should have some of the humility that knowledge of this intellectual history requires. Discussion of this history should not lead to a relativistically induced silence on these subjects, but can occasion some modesty, care, and certainly, tolerance.

This Essay does not address a discrete contemporary issue or attempt to provide a theory concerning the relationship of law and morality. Instead, it offers some historical observations and important arguments relevant to the contemporary moral debate. Specifically, this Essay includes three sets of observations about morality's foundations, and three shorter remarks about its nature.

1. THREE HISTORICAL OBSERVATIONS ON THE FOUNDATIONS OF MORALITY

   There has been a tectonic shift in the dominant philosophical terms over the course of Western intellectual history. This shift, along with important changes in Western social identity, has rendered unavailable to contemporary thinkers many of the premises that have underlain morality for most of Western history. (1) Similarly, the Hebrew-Christian religious tradition--which constantly surrounded, supported, and for many, directly informed moral inquiry--no longer has a hold on important segments of contemporary society.

   The contemporary moralist inevitably stands in a historical tradition that defines the types of arguments from which he can draw and the appeals he can make. Awareness of what precedes him should therefore aid the moralist in making the most coherent and convincing case for his understanding of the relationship between law and morality.

   1. The Shift in Philosophical Terms

      The dominant selection (2) of philosophical terms has changed over the centuries. Philosophers have always sought to determine what the objects of their efforts are, to discover what it is possible and fruitful to know or think. The first of this Essay's six remarks tracks the shift in thought over the centuries about the proper starting point for philosophical and ethical inquiry. This shift has important implications for those attempting to explain morality.

      1. The Metaphysical and Teleological Terminology of the Pre-Moderns

         Until the late modern age, great philosophers generally chose an ontological or metaphysical selection of terms. For example, Plato, Aristotle, St. Augustine, St. Thomas Aquinas, Baruch Spinoza, and G.W. Leibniz all in quite different ways sought to gain knowledge of the nature of things. (3) Within the contexts of their philosophies, these thinkers sought the foundations of morality in the nature of man, his place in the cosmos, and his constitutive relationship with the divine. Acting morally meant realizing man's nature. (4) It made sense for Augustine to urge, "Become who you are," (5) because the nature of any being could be fully understood teleologically. One's true nature was understood as the actualization of a potency that exists in the nature of things.

         After the beginning of the Christian era, although the metaphysical understanding continued to reign, it was inevitable that its teleologies would be understood theologically. Man was still defined primarily by reference to the nature of things, but now with specific reference to the nature of the ultimate thing: God. As Dante Alighieri put it, faithful to the Thomistic synthesis that animated his great poem, "The glory of the One who moves all things permeates the universe but glows in one part more and in another less." (6) Dante defined the parts of the universe by how and to what degree God glowed in them.

      2. Immanuel Kant and the Shift to Epistemology

         The "Copernican revolution" effected by the critical philosophy of Immanuel Kant changed the focus of basic philosophical inquiry from the nature of things to the characteristics of the human mind. (7) The world as we experience it can be under stood philosophically, Kant argued, only when we understand the ways in which its basic structure is rooted in the conditions of the possibility of all knowledge imposed by our minds. Knowledge begins not with metaphysics or teleology but with epistemology. We do not know the things themselves; we know the world only as finite or "receptive" knowers can see it. (8) We can know only what appears to common sense and empirical science, neither of which gives access to the things themselves. We cannot know supersensible objects--objects transcending all sensory experience--including, most importantly, the human soul and God (though we inevitably think these concepts for purely practical purposes). (9)

         Even within this epistemological selection of philosophical terms, however, Kant resisted the conclusion that moral notions are merely the expression of the contingent characteristics of the human mind, characteristics that empirical science could exhaustively explain. (10) Indeed, he would balk at the theories of some schools of sociobiology. (11) Although Kant's philosophy saw our perception of the world as dependent on the contingent characteristics of our cognitional equipment, he insisted on the importance of moral concepts being rooted in something fundamental, something transcending the finite world that we can know through common sense or science. He did so out of necessity. He wanted moral concepts that could bind, that would have the power that Plato tried to identify in his Phaedo: the power to create the kind of obligation that would demand that a soldier stay and defend his position in the face of certain death, just to slow the advance of the enemy, for the benefit of the rest of the army and the city. (12) Kant realized that if moral principles were entirely contingent, they would not bind categorically. For him, it was essential that morality yield categorical imperatives, not simply instrumental hypothetical imperatives that bind only once one chooses to pursue some more or less arbitrary end.

         In ethics, Kant remained a Platonist, though without claiming to know the teleological structure of the universe. When we act ethically in Kant's world, we are still citizens in the "kingdom of ends," which are ultimate and unconditioned by our contingent modes of knowing. (13) Deeply at odds with his otherwise very modern philosophy, Kant maintained that experiencing moral obligation gives us what we might call "participant observer" (14) understanding of aspects of the intelligible world. (15) Ethics was exceptional, because in it we could overcome, though only practically, the epistemological limitations that denied us a vision of reality in the theoretical or scientific deployment of our reason. Friedrich Nietzsche would later taunt that this disconnect between Kant's more traditional moral philosophy and his otherwise distinctively modern conceptions of knowledge made Kant the "great delayer" (16) of the "onslaught of...