Murphy on the Argument for Weak Natural Law (Part Two)

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(Part One)

Welcome to this, the second part, in a brief series of posts on Mark Murphy’s argument for the weak natural law legal thesis (WNLLT). As explained in part one, the WNLLT is that human laws (acts of parliament etc.) are defective if they do not provide decisive reasons for action. As was also explained in part one, Murphy does not try to defend the WNLLT for all human laws in the first instance. Instead, he tries to defend it for mandatory legal norms first, before then moving on to other kinds of legal norm.

His basic argument for the WNLLT about mandatory legal norms is the following:

• (1) If a demand does not provide decisive reasons for action, then that demand is defective.

• (2) Mandatory legal norms are demands.

• (3) Therefore, if mandatory legal norms do not provide decisive reasons for action, they are defective.

The argument is valid, so to see whether or not it is successful we need to evaluate its premises. As you can see, premise (1) is a claim about the conditions of success for a demand and premise (2) is a claim about the nature of mandatory legal norms. Murphy tries to defend both of these claims. Let’s see what he has to say.



1. Are Mandatory Legal Norms Demands?
Let’s look at premise (2) first. The defend this premise, Murphy needs to start by fending off an obvious objection to it. The objection is that legal norms of any kind cannot be demands because in order for something to be a demand it must be said by a speaker. Since the law is not a speaker, it cannot issue demands. To put this more formally:

• (4) In order for X to make a demand, X must be a speaker.

• (5) The law (or legal system) is not a speaker.

• (6) Therefore the legal system cannot make demands.

And, as a result, all the norms that form part of the legal system cannot be classified as demands.

Murphy does not take issue with the idea that only speaker can make demands. Part of me wonders why he doesn’t do so. I’m not entirely convinced that you need to be a speaker in order to make demands, but I accept I could be wrong about that. So I’m happy to follow Murphy and only consider the merits of premise (5).

Contrary to premise (5), Murphy thinks that the law (or legal system) can be classified as a speaker. He admits that the legal system is not a paradigmatic speaker, but he thinks it shares enough features with a paradigmatic speaker in order for it to be classified as a speaker. Interestingly, this means he is adopting a non-essentialist approach to classification. In other words, it means he does not think that classifying terms refer to essential properties that are shared by all members of that class. This is interesting because, as we shall see in a moment, he might be adopting a more essentialist approach to the classification of demands. Thus, his defence of premises (1) and (2) might be in tension with one another.

Anyway, we might illustrate Murphy’s argument by reference to the following diagram. The core consists of the paradigmatic members of the class of speakers, those who possess all the features we attribute to speakers; the penumbra consists of the non-paradigmatic members of the class of speakers, those who possess nearly all the features we attribute to speakers; and the periphery consists of borderline cases who possess some of the features of paradigmatic speakers. Murphy’s claim is that the legal system falls in the penumbra and thus can be classed as a speaker.

This is to speak in the abstract, perhaps excessively so. What are the properties possessed by paradigmatic speakers? Murphy mentions four: (i) they have beliefs; (ii) they have desires; (iii) they have normative standing, i.e. they must be open to moral appraisal for what they say; and (iv) they have causal efficacy to produce speech, i.e. they are able to issue declarations and make speech acts. The most obvious example of a paradigmatic speaker is, of course, a human being.

Murphy’s claim is that it is plausible to say: (a) that the law has normative standing (it can be morally appraised); (b) that it has causal efficacy (it can issue declarations and speech acts); (c) that it has beliefs and desires, albeit ones that are distributed across the human officials who make up the legal system. Thus, although it does not have the same properties as paradigmatic speaker, the law comes pretty close and it is right to call it a speaker.

In other words:

• (7) In order for X to be classed as a speaker, it must possess all (or come close to possessing all) the following features: (i) beliefs; (ii) desires; (iii) normative standing; and (iv) causal efficacy.

• (8) The law (or legal system) comes close to possessing all four features.

• (9) Therefore, the law (or legal) system is rightly classed as being a speaker.

And therefore (5) is false.

This is only half the battle. We’ve provided reason for thinking the law is a speaker, now we must provide reason for thinking that mandatory legal norms are demands. Fortunately, the argument for this is much briefer. It starts by noting that a mandatory legal norm is best described by attributing to it all the features we would attribute to a directive speech act such as a demand. For example, when we come across a legal norm forbidding murder, it seems right to say that the legal system in issuing that norm “intends” for us not to commit murders, “wants” us to not commit murders and so forth. These are all the descriptors we would apply to someone asking us to close the door. What’s the best explanation for the similarity of these descriptors? Murphy argues that the best explanation is that they are essentially the same kind of thing.

So the argument here is as follows:

• (10) When we come across a mandatory legal norm that tells us to do Y, we describe it as “intending”, “wanting” or “desiring” us to do Y — these being descriptors typically applied to directive speech acts such as demands.

• (11) The best explanation for the coincidental use of descriptors is that mandatory legal norms are, in fact, equivalent to directive speech acts such as demands.

• (2) Therefore, mandatory speech acts are demands.

The observant among you will note that (2) does not actually follow from the combination of (10) and (11). That’s because (10) and (11) don’t speak directly to what distinguishes a demand from the other types of directive speech act. This is easily fixed. What distinguishes a demand from, say, a request, is that the former is intended to be non-optional whereas the latter is not. So if we include “intended to be non-optional” among the descriptors of mandatory norms, we do get an argument that supports (2). This is done in the diagram below.

2. Defending Premise 1
Premise one claims that providing a decisive reason for action is one of the conditions of success for making a demand. I introduced the idea that speech acts had conditions of success attached to them in part one. To repeat the example I gave at the time, to make a successful assertion, the proposition that is asserted must be true. If the proposition is false, then your assertion is defective in some way (it doesn’t fail to be an assertion, it just fails to be a proper assertion).

So why should we accept that a successful demand must provide decisive reasons for action? Murphy offers the following argument. It has two parts to it. First, it claims that providing reasons for action is condition of success for making a directive speech act. And second, it distinguishes demands from other kinds of directive speech act. As noted above, the distinction seems to be that demands are non-optional. So then we ask: what would make a non-optional directive defective? The answer, according to Murphy, is: by not providing decisive reasons for action.

That gives us the following argument:

• (12) Demands are a sub-type of directive speech act, distinguished from others on the grounds of their non-optionality.

• (13) If you direct another to do X, you necessarily imply that they have some reason to do X.

• (14) If a non-optional directive is to be non-defective, it must provide decisive reasons for action.

• (1) Therefore, if a demand does not provide decisive reasons for action, then that demand is defective.

To be fair to him, Murphy tries to offer some support for each of the premises in this argument (his version of this argument is slightly more complex). He supports the first part of (12) by referring back to Searle’s taxonomy of speech acts and noting that demands seem to fit clearly within the directive branch of this taxonomy. He supports the second part of (12) by just referring to examples and arguing that non-optionality seems, obviously, to be the distinguishing mark of the demand.

More interestingly, he offers two lines of support for (13). The first line comes from a survey of all directive speech acts. If we perform such a survey, it seems obvious that all directive are designed to present another agent with reasons for action. The second line of support comes from something called the “Paradox Test”. Murphy asks you to imagine ordering someone to bring you a book while at the same time denying that this gives them any reason to do so. Murphy claims that this is obviously absurd and self-defeating. Thus, it must be the case that directives necessarily imply reasons for action.

The Paradox Test then forms the basis of the support for (14). The idea being that denying that a demand is supposed to give decisive reason for action would be self-defeating or absurd.

With each of the premises defended, it seems like Murphy can claim that his original argument for the WNLLT is sound.


3. Summing Up
As noted at the outset, Murphy’s illocutionary act argument for the WNLLT, in the form discussed here, only covers mandatory legal norms. There are, of course, lots of other types of legal norms such a power-conferring laws or legal rights. Murphy would like for the argument to be extended to cover these other norms as well. Indeed, he tries to do this in the relevant chapter of his book.

I won’t get into the full version of the extended argument here. Roughly, the idea is as follows. Other types of legal norm can be classified as other types of speech act (for example, a “right” can be classified as a “commitment”). These other types of speech act also have conditions of success attached to them. And, as luck would have it, providing decisive reasons for action is one of the conditions of success for these other types of speech act too.

I won’t try to evaluate this extended argument here.

Pinker and Per Capita Rates of Violence

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Like many, I was recently seduced into buying a copy of Steven Pinker’s latest opus The Better Angels of our Nature: The Decline of Violence in History and Its Causes, the essential thesis of which is neatly captured in the title.

I use the term “seduced” deliberately. I had no intention of reading or buying it originally. An 800-page tome, riddled with charts, and graphs, and complex statistical techniques, that tried to prove that violence was declining over time (and explain why this was happening) didn’t seem like my kind of thing. Added to this, was the fact that I’d already watched several talks in which Pinker laid out his basic argument and, so, it didn’t seem like I’d learn anything new by reading the book.

But the lure of the dead trees version proved inexorable in the end. Positive reviews started to pile-up — most noticeably the one from Peter Singer — and recommendations from normally sceptical bloggers appeared. My will was finally broken a couple of days ago when I spent a good thirty minutes reading bits and pieces of it while standing in my local Waterstones. I figured if it could hold my attention for that long, while I shifted uncomfortably from foot-to-foot in a drafty bookstore, it was probably worth buying.

In the end, I’m glad I did. It really does make for fascinating reading. There are so many interesting tidbits and asides that, even if one doesn’t agree with the overall thesis of the book, it’s well worth having a copy to dip in and out of. I say this despite not having read the entire thing (it is 800 pages long after all), but I feel confident that the 200 or so pages that I’ve read so far augur well for the remainder of it.

Anyway, that’s enough for the book-review portion of this post. For the rest of it, I want to take a good hard look at the backbone of Pinker’s thesis, namely: his claim that violence is declining over time. While I certainly couldn’t hope to evaluate all the lines of evidence Pinker offers to support this claim in his book, I do hope to offer some meaningful comments on one aspect of his methodology. An aspect that proves crucial to much of what Pinker has to say.

The aspect in question is his measuring the historical decline in violence by reference to the per capita rate of violence, as opposed to the total or aggregate level of violence. While the former may have gone down over the course of history (this is what Pinker tries to prove), the latter certainly has not (mainly because of the massive increase in population in the recent past). The question I want to ask is this: is Pinker right to focus on the per capita rate? In other words, is he right to say that violence has declined when the per capita rate has gone down, even when the total or aggregate level has gone up?


1. Pleasantville and Adamsville
I want to start by clarifying what’s at stake in answering this question. I do this by describing to two hypothetical towns and considering the differences between them.

Pleasantville: Pleasantville is a town of 10,000 residents. Although it has had problems with criminal gangs and violent crimes in the past, it has recently been experiencing a decline in the number of murders per year. At present, approximately 100 people are murdered every year in Pleasantville.

Adamsville: Adamsville is a town with exactly four residents. Adam, his wife Eve, and their two children. Adam and Eve have one new child every year but this leads to no overall increase in the population. Why? Because every year one of the children is murdered by their sibling.

Now let’s consider the per capita and aggregate levels of violence in both towns. The per capita rate of violence (specifically, murder) in Pleasantville is 1/100 or 1%; the per capita rate of violence in Adamsville is 1/4 or 25%. The aggregate level of violence in Pleasantville is 100 murders per year; the aggregate level of violence in Adamsville is 1 murder per year.

If we compare the two towns on the basis of the per capita rate, then Adamsville is clearly more violent. But if we compare them on the basis of the aggregate level, then Pleasantville is clearly more violent. Which comparison is more appropriate? And, more importantly, why should we care?

I take it that we should care because violence is a proxy measure for something that is morally undesirable (or, rather, for something that has moral disvalue). In other words, if for any pair of states of affairs (A and B), there is less violence in A than there is in B, then B is less morally desirable than A. Although Pinker doesn’t say this explicitly, I think he would agree with my moral undesirability reading of the issue. After all, he thinks the decline in violence is something to be celebrated and carefully analysed in order that it can be accentuated. It’s difficult to make sense of such an attitude if it’s not driven by a belief that less violence means less moral disvalue.

The fact that we care about violence because it is a proxy measure for moral disvalue actually helps to clarify the question we should be asking about Pleasantville and Adamsville. Instead of asking indirectly about the rate of violence, we should ask directly about the moral desirability of each town. To be precise, we should ask: which town is morally preferable? Is it Pleasantville or is it Adamsville?

In addition to clarifying the question we need to ask, the claim about moral desirability can also help us to clarify Pinker’s basic argument. As is clear from his book, Pinker wants us to believe that it’s Pleasantville that is morally preferable to Adamsville, and he wants us to believe this because the per capita rate of violence in Pleasantville is lower than it is in Adamsville. In other words, he wants us to accept the following kind of argument:

• (1) If the per capita rate of murder is lower in Town A than it is in Town B, then Town A is morally preferable to Town B.

• (2) The per capita rate of murder is lower in Pleasantville than it is in Adamsville.

• (3) Therefore, Pleasantville is morally preferable to Adamsville.

Instead of accepting this kind of argument:

• (4) If the overall number of murders is lower in Town A than it is in Town B, then Town A is morally preferable to Town B.

• (5) The overall number of murders is lower in Adamsville than it is in Pleasantville.

• (6) Therefore, Adamsville is morally preferable to Pleasantville.

These arguments directly contradict one another. That is to say, they are counterarguments to one another. For the time being, I’ll ignore the pro-Adamsville argument and focus on the pro-Pleasantville argument that Pinker makes. A couple of words about this argument are in order here. First, although I explain it by reference to the murder rates in two hypothetical towns, this argument could stand in for the basic argument that is presented throughout Pinker’s book Better Angels. What’s interesting is that Pinker focuses nearly all his attention on defending premise (2) of the argument. This is unsurprising: Pinker is a scientist so he is well-placed to investigate an empirical claim such as that presented in premise (2). I commend him for doing so. But to focus solely on (2) is unsatisfying because it leaves the crucial normative claim in premise (1) unsupported.

Pinker is obviously not unaware of this issue, and does spend some time addressing the kinds of issues one would need to address in order to defend (1) over (4). The problem is that he is all to brief in his treatment of these issues (one paragraph on pg. 47 is all I found so far). I want to correct this by giving these issues a more fulsome treatment.


2. The Pro-Adamsville Argument
Let’s look first at the pro-Adamsville argument. Premise (4) of this argument is claiming that the overall number of murders is what counts from the moral point of view. Is there any moral theory that would allow us to endorse this claim?

Perhaps. Utilitarianism is the view that we ought to maximise the amount of good stuff in the world, and minimise the amount of bad stuff. While this blog post is not the place to work out what kinds of stuff are good and what kinds are bad, it can be safely assumed that murders most definitely fall within the “bad stuff”-category. So, working from a utilitarian principle, we might be able to provide some support for (4). As follows:

• (7) A state of affairs with a lower level of bad stuff in it is morally preferable to a state with a higher level bad stuff in it.

• (8) Murders count as being bad “stuff”.

• (9) Therefore, a state of affairs with fewer murders is morally preferable to a state of affairs with a more murders.

This could then be used to support (4).

But even if we grant that utilitarianism is correct, this argument fails. Why so? Because (7) is not an accurate representation of the utilitarian thesis. (7) only talks about the level of bad stuff in the world, it does not talk about the level of good stuff. Or, to put it more precisely, it does not talk about the aggregate level of good (a figure which would add together the good stuff and the bad stuff to get a total sum). If we revise (7) so that it speaks of the aggregate level of good, instead of the overall level of bad stuff, we get the following:

• (7*) A state of affairs with a greater aggregate level of good stuff is morally preferable to a state of affairs with a lesser aggregate level of good stuff.

The problem is, once we complete this revision, it becomes much less obvious how we can move from (7*) to (4). Why is this? Well, because (4) only focuses on the overall level of murder (which is bad), it does not consider the good stuff that might be associated with a larger number of murders. It could be that a town with a large number of murders has an even larger number of good things going on it. These good things could offset the effect of the number of murders. Indeed, this suggests an independent line of argument for (3), one that I won’t get into here.

Is there any other way to justify (4)? Possibly. I can imagine working my way from some kind of precautionary principle to (4). The precautionary principle would have to state that when making moral evaluations we should care about minimising bad stuff, not about maximising aggregate levels of good. In other words, it would have to explicitly rule out the potential offsetting power of the good stuff. We could phrase it as follows:

• (10) When it comes to the moral evaluation of states of affairs, we should focus exclusively on minimising the level of bad stuff, irrespective of the good stuff that might thereby by affected.

Call this the minimisation of bad stuff-principle (MBSP for short). Accepting that murders are bad (premise 8, above), we could indeed use this principle to support (4). The problem with doing so is threefold.

First, even if we accept that murders are bad, we would have to acknowledge that there are other bad things out there too. It could be the case that minimising the number of murders increases the number of these other bad things. Thus, we can’t escape the aggregative question simply by focusing exclusively on the bad stuff: we still need to know the aggregate level of bad stuff. Admittedly, the claim that reducing the number of murders might increase other bad things may not be very likely, but it is possible and that seems to be enough to block the inference from (10) to (4).

• (11) Reducing the number of murders might increase the number of other bad things.

Second, the MBSP could lead to absurd conclusions. In particular, it could lead to the conclusion that a world with no people in it is morally preferable to a world with 1 or more people in it. Think about it: a world with no people minimises the number of bad things that might happen more so than a world with only one person in it. I would argue that this is absurd and that a principle that allows us to reach absurd conclusions of this sort has little to recommend it. (Note: there are some who disagree with this. I have discussed their arguments before).

• (12) The MBSP leads to absurd conclusions. A principle which leads to absurd conclusions should be rejected.

Finally, while I accept that precautionary reasoning of this kind is plausible in some instances, particular when dealing with unknown potential goods (e.g. the goods associated with speculative technology), I submit that when the potential goods are known, it loses this plausibility. When it comes to assessing relative merits of our two towns (Pleasantville and Adamsville) it seems like we are dealing with potential goods that are known, not potential goods that are unknown.

• (13) The MBSP derives its plausibility from precautionary reasoning, this kind of reasoning is plausible when the potential goods associated with a state of affairs are unknown. When the potential goods are known, it loses its plausibility.

To sum up, the pro-Adamsville argument seems to have little going for it. This does not, however, mean that Pinker is home and dry. In addition to showing that the pro-Adamsville argument is implausible, he needs to show that the pro-Pleasantville argument is plausible. Can this be done?


3. The Pro-Pleasantville Argument
I’ve already suggested one way in which we could endorse the pro-Pleasantville conclusion, namely: by adopting an aggregative utilitarian principle and arguing that Pleasantville, despite its high number of murders, has a higher overall level of good than Adamsville. Note, however, that this kind of argument doesn’t endorse the per capita measurements that Pinker uses to make his case. Is there another argument that does?

Have a look at what Pinker has to say about this (pg. 47):

…[O]ne could reason that part of the bargain of being alive is that one takes a chance at dying a premature or painful death, be it from violence, accident, or disease. So the number of people in a given time and place who enjoy full lives has to be counted as a moral good, against which we calibrate the moral bad of the number who are victims of violence. Another way of expressing this frame of mind is to ask, “If I were one of the people who were alive in a particular era, what would be the chances that I would be a victim of violence? The reasoning in this second frame of mind, whether it appeals to the proportion of a population [that are victims of violence] or the risk to an individual, ends in the conclusion that in comparing the harmfulness of violence across societies, we should focus on the rate, rather than the number, of violent acts.

There are the bones of an interesting argument in this passage. Pinker is saying that when evaluating the moral desirability of a two or more societies, we should ask ourselves the question: which society would we prefer to live in? In addition to this, he’s saying that when we answer that question, we’ll focus on per capita rates of violence not on overall numbers. Why? Because what matters is our personal risk of dying, not the total number of deaths, and personal risk is captured by the per capita figure, not the total number.

To clothe this in a more moralistic garb, I might appeal directly to a constructivist or Rawlsian set of principles. The idea being as follows. When comparing the moral desirability of two states of affairs, we should ask: which state of affairs do I have most reason to endorse? Or, to put it another way, if I were placed behind a Rawlsian veil of ignorance, and I was asked to choose between two societies knowing only the total number and per capita rate of murders in that society, which one would I choose? The answer seems obvious in both instances: you would choose the society in which you had less risk of dying, i.e. the one with the lower per capita murder rate.

In formal terms:

• (14) The state of affairs that one has most reason to endorse (from behind a veil of ignorance) is the morally preferable state of affairs.

• (15) All other things being equal, one has most reason to endorse the state of affairs in which one has less risk of being killed.

• (16) One has less risk of being killed in the town with the lowest per capita rate of murder.

• (17) Therefore, if Town A has a lower per capita rate of murder than Town B, then Town A is morally preferable to Town B.

Now, (17) is equivalent to (1), so this argument really does give us grounds for endorsing the pro-Pleasantville argument. As well as this, it gives us reason to endorse Pinker’s methodology throughout Better Angels.

But is this argument above reproach? Not quite. Note how I’ve added a ceteris paribus (all other things being equal)-clause to the start of premise (14). Why did I do this? Well, I did so because I can imagine situations in which the risk of being killed is not the overriding variable in deciding which state of affairs one has most reason to endorse. For instance, I might choose to go for real sky-diving instead of virtual sky-diving, despite the fact that the real version carries a greater risk of dying than does the virtual one. I would do so if there were other goods (e.g. exhilaration, sense of achievement, bragging rights) associated with real sky-diving that I couldn’t get out of virtual sky-diving.

This suggests that the pro-Pleasantville argument might fall victim to the same kinds of problems as did the pro-Adamsville argument. But we needn’t despair too quickly. After all, one would only have more reason to endorse a state of affairs with a higher risk of dying attached to it if that risk of dying had some deep causal connection to the factor that made that state of affairs the more reasonable choice. To go back to the sky-diving example, I only have more reason to go for the real sky-diving if I think the goods of exhilaration, sense of achievement and bragging rights are deeply connected to the real activity.

When it comes to choosing which town is morally preferable, I have no reason to think that a high per capita murder rate has some deep causal connection to moral goods that (a) could not be obtained in a town with a lower per capita murder rate and (b) override the moral evil of the murder rate. Thus, it would seem like the ceteris paribus clause is met in this particular instance. And so Pinker’s methodology is, as far as I can tell, appropriate.

Murphy on the Argument for Weak Natural Law (Part One)

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Those who follow this blog regularly will know that I’ve recently been doing some posts on natural law. By and large, the posts have been focusing on natural law arguments against same sex marriage. Today, I offer yet another post on natural law, but with a different focus. This time I’ll be looking at the proposed connection between natural law and legal theory.

Some people might wonder why I call this a “proposed” connection. Surely, I hear them say, natural law and legal theory are deeply connected? After all, natural law is about the law, isn’t it? Yes and no. Natural law theory is concerned with laws, but these are not necessarily the kind of laws you might have in mind. Natural law is, primarily, concerned with ethical laws, i.e. rules that govern how we ought to behave. It is only secondarily concerned with human laws, i.e. rules set down in acts of parliament or in written constitutions. It is this secondary concern I want to look at today.

In so doing, I will use Mark Murphy’s excellent little book Natural Law in Jurisprudence and Politics as my guide. In the book, Murphy clearly distinguishes between the ethical and legal sides of natural law theory. He also presents a rather interesting argument — the illocutionary act argument — for a weak natural law theory of human law. This post and the next are dedicated to setting out this argument and evaluating some of its components.

Warning: when I say this is an interesting argument, I am being sincere, but I’m well aware that the interest is possibly only apparent to those who care about legal philosophy. If this is not something that interests you, then I you may be disappointed.



1. Strong and Weak Natural Law Theses
To understand Murphy’s argument, we need first to understand the differences between the two kinds of natural law theory. In general, natural law theory is associated with the idea that there is a higher law, one that sits above and set constraints on anything that might be created by human beings. This general idea is cashed out in more specific ways by two different branches of natural law theory. They are as follows:

Natural Law as a Moral Theory: As a moral theory, natural law is associated with two ideas: (i) there is something called human nature; and (ii) this nature means that there are certain basic goods that we all have reason to pursue. In other words, it is associated with the idea that our nature determines what it is morally acceptable/desirable for us to do. This is the version of natural law that I’ve been discussing up til now.

Natural Law as a Legal Theory: As a legal theory, natural law is associated with the idea that a human law must be backed by decisive reasons for action. In other words, it is associated with the idea that there must be compelling reason to follow the law. What this actually means for human law can be spelled out in strong or weak theses, as follows:

The Strong Thesis: If a human law fails to be backed-up by decisive reasons, then it is not properly called a “law” at all. This is captured, imperfectly, in the famous maxim: lex injusta non est lex (an unjust law is no law at all).

The Weak Thesis: If a human law fails to be backed-up by decisive reasons, then it can still be called a “law”, but it must be recognised as a defective law.

This theoretical breakdown is illustrated in the diagram below. As can be seen, there are obvious connections between the legal and moral branches of natural law theory. After all, if the moral theory is correct, then the decisive reasons for action that are needed by the legal system will be found through an investigation of human nature and the basic goods.

Although these connections are obvious, they are not necessary. That is to say: one could endorse the legal theory without having to endorse the moral theory, and vice versa. This is an important consideration to bear in mind when assessing the merits of Murphy’s argument. It is to that argument — which is called the illocutionary act argument — that we now turn our attention.


2. Illocutionary Acts
The illocutionary act argument (ILA) is offered in support of the weak natural law legal thesis (WNLLT). While the term “illocutionary act” is common in the philosophy of language, I suspect it will be alien to many. Thus, a definition would be in order. Alas, there doesn’t seem to be a clear, agreed-upon definition. So perhaps the best way to understand the concept is by considering examples. To this end, it is worth looking at the following taxonomy of illocutionary speech acts (originally developed by John Searle):

Assertives: These are speech acts that commit the speaker to the truth of the proposition being asserted.

Directives: These are speech acts that are intended to cause the hearer to perform some sort of action, e.g. requests, demands, advices.

Commissives: These are speech acts that commit the speaker to some future course of action, e.g. promises.

Expressives: These are speech acts that express the speaker’s attitudes toward certain objects, events or states of affairs, e.g. congratulations.

Declaratives: These are speech acts that create something or bring about a change in something, e.g. baptisms, marriages.

There are two important things to note here. First, there is the general idea that speech can be an act, i.e. that it can cause changes in the world. This is a remarkable idea since speech doesn’t seem to have any intrinsic causal powers. For example, my telling you to close the door does not, automatically, result in the door being closed. It is only if you understand my request and are willing to comply with it that such changes can be brought about. Thus, speech has active powers only to the extent that people can hear, understand and comply with it. And people can only do this if they have minds.

Second, there is the idea that different kinds of speech act have different conditions of success attached to them. If you wish to successfully perform an assertive speech act, you must make sure that the proposition you assert is actually true. If it is not actually true, then your assertion is defective.

This notion of conditions of success forms the backbone of Murphy’s ILA. In essence, his claim is that human laws are particular kinds of speech act, and as particular kinds of speech act, they have conditions of success attached to them. If they fail to meet these conditions of success, they are defective.


3. The Illocutionary Act Argument
All of which raises the question: what kind of speech act are human laws? In answering this question, Murphy initially limits his argument to mandatory legal norms. These are the kinds of legal norms that usually spring to mind when we are asked to consider the law. Criminal laws, for example, are mandatory in nature: you are not allowed to murder someone. Compliance with this norm is not supposed to be optional. If for some reason you do not comply with it, you will be punished.

Mandatory norms are to be contrasted with power-conferring laws such as the law relating to contract or marriage-formation. These laws allow you do things, such as create legally-enforceable promises, but they are optional in nature. Nobody is forcing you to get married or sign contracts, but if you do so, you will fall under the ambit of the law. While Murphy thinks the ILA can be extended to cover such laws, he thinks it best to make this case after developing the ILA for mandatory legal norms.

So now we are faced with a new question: what kind of speech act is a mandatory legal norm? The answer, according to Murphy, is that a mandatory legal norm is a demand. It is something that asks us to do one thing to the exclusion of other things, it is not a mere request. As such, a demand must provide decisive reasons for action. This realisation leads to the following basic version of the ILA:

• (1) If a demand does not provide decisive reasons for action, then that demand is defective.

• (2) Mandatory legal norms are demands.

• (3) Therefore, if legal norms do not provide decisive reasons for action, they are defective.

Of course, (3) is equivalent to the WNLLT, so if the the argument is sound, Murphy has made his case. To determine whether the argument is, in fact, sound we need to examine premises (1) and (2) in more detail. This is something we will do in part two.

Brooks on Retributivist Arguments against the Death Penalty (Part Two)

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(Part One)

This is the second (and final) part in a brief series of posts on Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is noteworthy for its attempt to identify an objection to the death penalty that is derived from retributive principles. This is noteworthy because retributive principles are more typically used to support the death penalty. The series of posts follows and builds upon Brook’s article.

Three things were accomplished in part one. First, the nature of the inquiry was clarified: for the sake of argument, we are assuming that death can be a just punishment in at least some circumstances. We are trying to figure out whether, despite this, there are still retributive reasons for objecting to the death penalty. On the face of it, this seems like a project that is doomed to failure: how can we hope to find an objection to something we already accept as being just? To see why this is not futile, we need to appreciate the distinction between the death penalty as a system of punishment, and the death penalty as a form of punishment in particular cases. The latter might be justified for retributive reasons, but the former might not.

The second thing that was accomplished in part one was the clarification of retributivism. Retributivism was defined as a theory of punishment that is committed to two key theses: (i) the intrinsic goodness thesis; and (ii) the proportionality thesis. The first thesis claims that punishment is, in some cases, an intrinsic good; the second thesis claims that punishment must be proportionate to the level of wrongdoing. Brooks added a third thesis to this: (iii) the distributional thesis. This thesis claimed that the purpose of retributive punishment was to correct for the unfair advantage that a wrongdoer gained through his/her act of wrongdoing. I argued that the inclusion of this thesis within the concept of retributivism was undesirable for a number of reasons, not least of which was that the “unfair advantage”-concept of wrongdoing seemed counterintuitive.

The third thing that was accomplished in part one was the dismissal of the racial bias argument against the death penalty. As we saw, the fact that the criminal justice system arbitrarily selects a sub-set of those who are actually guilty for execution is not a problem for the retributivist. All that matters from the retributivist perspective is that those who are executed are: (a) guilty of some crime; and (b) death is the proportionate punishment for that crime. Indeed, when confronted with the problem of racial bias, a retributivist is likely to call for more executions, not less.

Might they change their minds if those selected for execution were not guilty? That’s the question we’ll be considering today.


1. The Wrongful Conviction Problem
When I discuss the death penalty with people, the single most common objection I get to it is what I am calling the problem of wrongful conviction. My anecdotal experience is backed up by a recent opinion poll (Angus Reid, August 2011) in which 83% of respondents who objected to the death penalty did so on the grounds of this problem.

So what is the problem? It comes it two parts. The first part is the general problem of wrongful conviction for the retributivist. The second part is the specific problem of wrongful conviction for the retributivist defender of the death penalty. We’ll focus on the general problem for now.

The general problem can be phrased thusly: the criminal justice system has been known to wrongfully convict and punish people for their crimes. We have no reason to think that this trend of occasional wrongful conviction will not continue into the future. Retributivists only think punishment is justified when it is imposed on the guilty. Therefore, they would have to accept that at least some of the punishments dished out by the criminal justice system lack moral justification.

To put it more formally (numbering follows from part one):

• (6) It is morally illegitimate to impose a punishment on someone who does not deserve it.

• (7) The criminal justice system will, at least occasionally, wrongfully convict and punish an innocent person.

• (8) Therefore, at least some of the punishments imposed by the criminal justice system will be morally illegitimate.

Let’s pause here for a moment to see where this might be going. The idea is that premise (6) should be acceptable to a retributivist. Punishment involves causing harm to another person. In general, causing harm is morally illegitimate. It only loses this illegitimacy if some justification can be found for it. A retributivist thinks such a justification can be found in the concept of desert for culpable wrongdoing. We’ve accepted this for sake of argument. But when there is no culpable wrongdoing, even a retributivist would have to reject punishment because of the harm it causes. Indeed, you could argue that this is a necessary component of retributivism.

Premise (7) seems to be well-supported. We have historical examples of wrongful convictions to draw upon to illustrate this. Perhaps the most conspicuous and persuasive set of data can be found in the work of the Innocence Project, but there are other examples as well (I always like to talk about the Guildford Four and the Birmingham Six in this regard). For all this, the number of wrongful conviction might be quite low, and there are those who would reject the idea that there will be any and I’ll need to talk about them later on.

Premise (8) follows straightforwardly enough, but it is relatively uninteresting in itself. What we really want to know is: what follows from the fact that at least some punishments will be morally illegitimate? After all, nothing in what has been said so far touches upon the death penalty. To get to some conclusion about the propriety of the death penalty, we’ll need to add some more premises to the argument.


2. Building Upon the Problem of Wrongful Conviction
Suppose we added the following premise to the preceding argument:

• (9) We ought not to endorse any system of punishment that will, even if only on occasion, be morally illegitimate.

Then we would be forced to reached this conclusion:

• (10) We ought not to endorse the criminal justice system (from 8 and 9).

But surely this would mean we had gone too far? Are we really going to abandon the entire system of punishment because there may occasionally be wrongful convictions? Some might be inclined to reach that conclusion, but I suspect that would be for reasons not presented in this argument. So for the majority of people (10) really would be too much.

But if (10) seems like too much, why do people point to the problem of wrongful conviction when discussing the death penalty? I mean, if wrongful convictions do not pose a problem for systems of punishment in general, why think they would pose a problem for the death penalty in particular?

To answer this, we must pay close attention to the differences between the death penalty and other forms of punishment. The chief difference, and the one I assume most people will point to, is the finality of death. If we kill someone who is innocent, we cannot try to make amends or recompense them for the ill effects of their punishment. They are dead and we cannot bring them back. On the other hand, if we wrongfully imprison somebody we can at least try to make some amends or offer some compensation to them.

This suggests the following argument to me:

• (11) We can only endorse a system of punishment that is occasionally morally illegitimate if those who suffer from the ill-effects of that illegitimacy can be recompensed.

• (12) Those who suffer the ill-effects of the death penalty system cannot be recompensed.

• (13) Therefore, we cannot endorse the death penalty system of punishment (from 7, 11, and 12).

This argument prevents us from reaching the extreme conclusion of (10), but still manages to impugn the death penalty. What’s more, since the argument ultimately links back to premise (6), it works from principles that are acceptable to the retributivist.

It’s worth noting that I’ve made no reference to the “reversibility” or “non-reversibility” of particular forms of punishment in this argument. This is despite the fact that lots of people present pretty much the same argument using those terms. I’ve avoided them for the simple reason that some pro-death penalty advocates respond to those arguments by claiming that 20 years of wrongful imprisonment is no less irreversible than a death sentence. After all, you can’t give them back those 20 years. I think this is right, but that it’s irrelevant. The reason we should be more concerned about errors in the administration of the death penalty than we should be about errors in the administration of other forms of punishment is that there’s no opportunity to make amends or offer compensation to the person who was wronged in the case of the death penalty. Talk of reversibility is a needless distraction from the central moral issue.


3. Final Comments
So the problem of wrongful conviction, in its expanded form, provides one retributivist argument against the death penalty system. Is the argument ultimately persuasive? Well, that depends on how serious you think the problem of wrongful conviction really is. As it happens, some people don’t think its that serious at all.

For example, I’ve noted in some online forums, and even in some academic papers, that death penalty advocates will reject the notion that there has ever been a wrongful execution in the United States (no doubt there have been in other countries). The idea seems to be that, for all its delays and multiple appeals, the death penalty litigation system in the U.S. dramatically reduces the risk of wrongful conviction. Furthermore, improvements in forensic science are thought to reduce the risk even further. The challenge then is for anti-death penalty advocates to point to one case in which there has clearly been a wrongful execution. This challenge might be rhetorically effective, but, for all that, some risk surely remains. And maybe the risk is enough for the argument to go through.

Although my own opinions on the wrongful conviction argument are, no doubt, clear by this point, I will make one important concession to those who reject it. It is only a “in fact”-argument, not an “in principle”-argument. In other words, it only points to contingent reasons for the retributivist to reject capital punishment; it doesn’t provide any necessary reasons for rejecting it. It is possible to imagine a system in which there would never be wrongful convictions. How realistic that is, is another matter. I suspect we are long way from a perfect system, so I think the wrongful conviction argument will be with us for another while at least.

Brooks on Retributivist Arguments against the Death Penalty (Part One)

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This brief series is inspired by Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is interesting for its attempt to present a solid retributivist argument against the death penalty. And this is interesting because retributivist arguments are usually used to support the death penalty.

I say this series is “inspired” by Brooks’s article because I’m not going to directly follow everything Brooks’s has to say. He focuses his attention on arguments offered by specific theorists (McDermott and Nathanson) and considers some competing interpretations and constructions of what they say. I’m going to focus purely on the arguments I found to be most interesting, and, in addition, I’m going to speculate and expand upon on some possible responses that are not covered by Brooks.

I’m going to spread the discussion over two posts. In this post, I will present the basic retributivist argument in favour of the death penalty and I will comment on some of the different definitions of retributivism. I will then discuss the racial bias-argument against the death penalty. In the next post, I will discuss the uncertainty-argument against the death penalty. This is the argument that Brooks finds most attractive because of its appeal to retributivist principles. Finally, again in the next post, I will discuss a range of responses to the uncertainty-argument.


1. The Retributivist Argument in Favour of the Death Penalty
I’ve presented this argument in a previous post, but in order to make this post as self-contained as possible, here is the basic retributivist argument in favour of the death penalty:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) Death is the proportionate punishment for those who are guilty of some crimes.

• (3) Therefore, it is right and proper for those who are guilty of some crimes to be put to death.

Since the focus in this post is on retributivist arguments against the death penalty, we are going to assume the truth of premise (1). That is to say, we are going to assume that retributivism is a morally defensible theory of punishment. As it happens, this is not an assumption I’m generally inclined to make. But I’m willing to make it here in order to see the different conclusions that can be derived from a retributivist principle. In addition to this, we are going to assume that (2) is, on at least some occasions, true. In other words, we are going to assume that death *can* be a proportionate punishment. As against this, we are going to consider the possibility that there are, nevertheless, good retributive reasons for thinking that the death penalty system ( i.e. the legal machinery used to impose the death penalty) is illegitimate.

This raises the question of what exactly do we mean by “retributivism”. Up to now I’ve been holding that retributivism is made up of two key theses:

The Intrinsic Good Thesis: Punishment of those (and only those) who engage in culpable wrongdoing is an intrinsic good, i.e. it is good apart from any positive or negative consequences that might flow from it.

The Proportionality Thesis: Punishment is only justified when the punishment is proportional to the crime.

But Brooks’s mentions a third thesis of retributivism (although note: he doesn’t actually explicitly mention the other two, though I think something like them is implied by what he says). This thesis has to do with the purpose of retributive punishment:

The Redistribution Thesis: Punishment is designed to take away the unfair advantage gained by the person who broke the rules.

While this thesis has some attractive features — I particularly like how it links punishment to distributive justice, but why I like this is a story for another day — I have some concerns about it. These concerns may seem petty at first glance, so I need to articulate them carefully.

My chief concern with the redistribution thesis is my uncertainty over the role that the thesis plays in the justification of retributive punishment. The other two theses clearly have a role to play in justification. Together, they imply that punishment is only justified when it is (a) limited to those who are guilty and (b) proportionate. Do we add to this a further requirement that punishment is only justified if it takes away the unfair advantage? It’s not clear because Brooks’s speaks only of redistribution as being the “purpose”, not the justification for retributive punishment. This may seem like a slightly pedantic point, but I think there is a real need for clarity here since there is a whole other theory of punishment — called the “restitutionary theory” — that would seem much more comfortable with the redistribution thesis.

Also, I wonder whether the redistribution thesis “stacks the deck” against the death penalty. After all, killing someone seems a bit excessive if the goal is merely to take away the unfair advantage they gained by committing a crime. So it would seem like the death penalty automatically fails the redistribution test. I wouldn’t like to stack the deck against the death penalty here since the goal of this exercise is to discover whether there are any good retributive reasons against the death penalty: to include within the definition of retributivism a criterion that automatically excludes the death penalty would defeat this goal.

Finally, I’m not sure that “unfair advantage” is the best concept to employ when it comes to understanding criminality, particularly the kinds of criminality traditionally covered by the death penalty. For example, is it really true to say that someone who rapes and murders a child thereby gains an “unfair advantage” over those who do not? Surely not. To say that something has bestowed an “unfair advantage” is to signal a positive attitude toward that thing: it is to say that the person who has gained it has gained something that we ourselves would like to have. But then it would follow that, in order to endorse the redistribution thesis, we would have to believe that raping and murdering children is a positive thing. Since this is clearly not what we believe, it must be wrong to say that this kind of criminality bestows an unfair advantage. (It’s possible that other forms of criminality do.)

For these reasons, I’m inclined to leave the redistribution thesis out of the definition of retributivism. As it happens, I don’t think this will impinge upon the remainder of the discussion.


2. The Racial Bias Argument
A popular argument against that death penalty system holds that because the system is racially biased — i.e. because you are more likely to be executed if you are an African American — it is morally illegitimate. As it happens, I’m not sure whether this racial bias actually exists. (I imagine it does, but I’ve read studies suggesting that the race of the victim plays a greater role in determining who gets sentenced to death than does the race of the defendant.) But I don’t really care for the purposes of this blog post. As was the case with the truth of retributivism, I’m going to assume it’s true and see what follows.

The racial bias line of reasoning is particularly popular in the United States, mainly for constitutional reasons. Now, I’m no scholar of the US constitution, but I know there is an amendment — the 14th — which includes a statement about “equal protection of the law”, and I know that this amendment has been called into service in arguments against the death penalty on racial bias grounds (see McCleskey v. Kemp for an unsuccessful example of this).

But we’re not interested in these legal arguments; we’re interested in moral arguments. To be precise, we’re interested in retributivism and whether the racial bias argument can provide a retributivist reason to reject the death penalty. To investigate this we need first to figure out the reasons why racial bias is thought to make the death penalty morally illegitimate and then we need to see whether these reasons are in any way connected to retributivism.

One reason we might have a problem with the bias is that the bias might lead to erroneous legal decisions, i.e. it might result in people who are not guilty of wrongdoing being mistakenly selected for execution. We’ll leave this possibility to the side for one moment, since we’ll consider a separate argument based on this problem in a moment. This means we’ll assume that, despite the bias, it’s still only guilty people that are selected for execution. The problem is that it’s just a subsection of those people that are being selected. Stephen Nathanson uses the following analogy to make the point:

Suppose there is a highway patrol officer who rightly identifies everyone that is guilty of speeding, but only selects from those people the bearded ones for speeding ticks.

Does this seem wrong? Nathanson thinks so, and I’d be inclined to agree. To use an arbitrary criterion like the presence or absence of facial hair to pick who suffers for the legal consequences of their acts definitely seems morally circumspect. Applied to the death penalty system, the analogy works like this: to arbitrarily select only those guilty persons with a particular skin colour is morally circumspect. But is this because it is incompatible with retributivism? Consider the following:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) Death is the proportionate punishment for those who are guilty of certain crimes.

• (4) Because of racial bias, the death penalty system only selects an arbitrary subset of those who are guilty for execution.

• (5) Therefore, the death penalty system is illegitimate.

The first two premises here are just taken from the original argument. They are the bedrock of the retributive theory under examination. Premise (4) is new and states explicitly the problem of racial bias. (5) then is the conclusion that proponents of the racial bias argument would like us to reach, but does it follow from the premises? Clearly not. A retributivist thinks it is right and proper for the guilty to be punished. The mere fact that a subset of the actually guilty are arbitrarily selected for execution by the legal system is not enough reason to reject the legal use of execution. After all, the guilty are still being punished appropriately. It’s just that not all of them are.

To sum up, the problem of racial bias provides no retributivist reason for rejecting the death penalty system. Confronted with the problem, the retributivist can easily turn around and argue that it merely provides reason for executing more people. If we think the racial bias problem does provide reason for rejecting the death penalty system, this is because we are adopting a non-retributive principle for evaluating the system.

In part two, we’ll see whether a retributive argument against the death penalty system is possible.

The Craig-Law Debate: Mapped

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I don't usually do links-posts on this blog, but I thought I'd make room for an exception this time. Thrasymachus (the Polemical Medic) has done a wonderful job mapping out the Craig-Law debate that occurred on Monday 17th of October. I highly recommend taking a look. I used to think I was okay at doing argument maps, but I think I've definitely been bested.

The Craig-Law Debate - Argument Map

Enjoy!

What can Law's Evil God Challenge Do?

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Stephen Law debated William Lane Craig on Monday night. I didn’t go, though I would have liked to. I did, however, get the chance to read Law’s contributions to the debate (which he posted on his blog) as well as some other internet reviews and discussions of the event. Public debates of this sort are never particularly illuminating — if you want to be illuminated there’s no substitute for reading the primary academic literature and thinking about it for yourself — but they may serve some purpose. They may encourage people to view something from a different perspective, to take their first steps toward self-learning, and to appreciate different viewpoints.

As might be expected, there is much bias affecting the internet reviews and discussions of Monday night’s event. Still, from what I’ve read it seems that Law did relatively well in the debate, at least when compared to Craig’s former opponents. He had a strategy, he stuck to it, and didn’t get bogged down in peripheral issues (for instance, he studiously avoided any discussion of Craig’s Kalam argument). That said, there is some confusion about the precise nature of his strategy and what it was intended to do.

The strategy in question centred on the Evil God Challenge (the EGC, for short). This is something Law has written about in the past, and his output on it includes a rather good article published a couple of years back in the journal Religious Studies. The problem with Law’s use of the EGC is that the EGC is open to several interpretations. In this post, I want to review three plausible interpretations of the EGC and pass some comments on which I think is the strongest. Before getting to those three interpretations though, I want to briefly outline the main features of the EGC.


1. The Main Features of the Evil God Challenge
The EGC is, in effect, a clever inversion of the traditional evidential problem of evil. The evidential problem of evil runs something like this:

• (1) If an all-powerful, all-knowing, all-good being existed, that being would not allow gratuitous suffering to occur.

• (2) Gratuitous suffering probably does occur.

• (3) Therefore, (probably) an all-powerful, all-knowing, all-good being does not exist.

The argument is evidential in that it does not claim that there is a logical inconsistency between God and evil, but, rather, that there is strong evidence against the theistic hypothesis. There are two key elements to the argument. The first is the meaning of the term “gratuitous suffering”, which is simply “suffering that does not help to secure some greater good or prevent some greater evil”. The second is the truth or falsity of premise (2).

In responding to premise (2), theists can adopt one of two strategies: (i) they can argue that every apparently gratuitous instance of suffering does, in fact, serve some greater good (or prevent some greater evil); or (ii) they can argue that we have no way of knowing whether or not they serve some greater good. The first of these strategies can be called constructing a theodicy and the second can be called donning the skeptical theist’s hat. In responding to the theist, the proponent of the evidential argument will either: (a) argue that none of the profferred theodicies do account for observed instances of suffering (there’s so much of it, after all); or (b) point to the worrying implications of skeptical theism. No doubt theists will remain unconvinced.

This is where the EGC comes into play.

As I mentioned above, the EGC inverts the evidential problem of evil. That is to say: it presents us with an evidential problem of good. It does so by first asking us to imagine that an all-powerful, all-knowing, all-evil being exists (call it “Evil God”). It then highlights all the wonderful, joyous events that occur in the world, events that don’t seem connected to any greater evils (call them “gratuitous joys”). And finally, it suggests that these gratuitous joys provide evidence against the existence of Evil God. As follows:

• (4) If an all-powerful, all-knowing, all-evil being existed, that being would not allow gratuitous joy to occur.

• (5) Gratuitous joy probably does occur.

• (6) Therefore, (probably) an all-powerful, all-knowing, all-evil being does not exist.

Again, the argument can be responded to in one of two ways. First, the believer in Evil God can argue that every apparently gratuitous instance of joy does, in fact, serve some greater evil (call this constructing an e-theodicy). Or second, the believer in Evil God can argue that we have no way of knowing whether or not apparently gratuitous joys serve some greater evil (call this donning the skeptical e-theist’s hat). The Evil God skeptic will respond by either (a) arguing that none of the profferred e-theodicies do account for observed instances of joy (there’s so much of it, after all); or (b) pointing to the worrying implications of skepticial e-theism.

At a first pass, the EGC is simply the presentation of this inversion in as clear and detailed a manner as possible (Law’s original article certainly does this). It is then left to the theist to work out the implications of the inversion for their own belief system. But this is unsatisfactory. It would be better if we could spell out in more detail exactly how the EGC should affect the theist’s belief system. So let’s look at three possibilities.


2. The EGC as a Reductio of Theism
The first possibility is to present the EGC as a reductio of classical theism. Classical theists believe in the existence of an all-powerful, all-knowing and all-good being. The problem is that while their standard arguments (cosmological, design etc.) may establish the existence of a creator God, they do nothing to establish that the creator is all-good. Hence they must do something more to show that the creator is all-good. This brings the EGC challenge into play since it suggests that the case for an Evil God is just as strong as the case for a Good God.

This is where things get interesting. When confronted with the idea of an Evil God, most classical theists will be inclined to simply dismiss it as being absurd. But if all other arguments fail to support the existence of a Good God, and if the evidential problem of good is just as strong as the evidential problem of evil, shouldn’t they then accept that idea of a Good God is absurd too? In other words, shouldn’t they accept the following argument:

• (7) The EGC shows that the evidence in favour of the existence of a Good God is roughly equal to the evidence in favour of the existence of an Evil-God.

• (8) The case for Evil God is absurd.

• (9) Therefore, (probably) the case for Good God is equally absurd.

This seems like a reasonable enough way in which to run the EGC. The problem is that classical theists have some responses. They can argue against (7) by suggesting that the evidence is not perfectly equal (or that there are other arguments for the goodness of the creator); or they can argue that (9) does not follow from (8) because the concept of a Good God is crucially disanalogous from the concept of an Evil God; or, they can even argue that the concept of an Evil God is not absurd.

Law’s original article on the EGC considers these kinds of responses, which suggests that he too originally understood the EGC as a reductio of classical theism. (To be fair, his approach was softer: he argued that both were equally unreasonable, not equally absurd). But in clarifying his argument from Monday night, I think he gestures toward an alternative interpretation.


3. The EGC as Support for the Evidential Problem of Evil
Go back, for a moment, to my earlier presentation of the evidential problem of evil. As you recall, the key premise there was:

• (2) Gratuitous suffering probably does occur.

This premise is supported by identifying instances of suffering that seem pointless to us, applying the principle of warranted induction (i.e. what seems to be the case probably is the case), and concluding that there probably are genuinely pointless instances of suffering. Generally, classical theists do not accept this line of reasoning. While many of them will accept that there are instances of seemingly gratuitous suffering, they will reject the idea that we are warranted in jumping from a claim about what seems to be the case to a claim about what actually is the case.

Now look at the key premise in Law’s evidential problem of good:

• (5) Gratuitous joy probably does occur.

This premise is structurally equivalent to premise (2). That is to say, we would support it in exactly the same way: by first identifying instances of joy that seem (to us) not to serve any greater evil, by applying the principle of warranted induction, and by concluding that there probably are genuinely gratuitous instances of joy. But what do theists say in response to this? Do they reject the inference in the same way that they rejected the inference in the evidential problem of evil?

Law suggests that many will accept the inference in the case of the evidential problem of good. But this means that they ought to accept the inference in the original argument too. In other words, it implies that they ought to be persuaded by the evidential problem of evil. In more long-winded fashion, we say the following:

• (10) When confronted with the EGC, classical theists accept the principle of warranted induction.

• (11) The principle of warranted induction states that if a defined reference class of events in the world seems, after a reasonable search, to have a certain quality Q, then it probably does have that quality Q.

• (12) A reference class of events in the world seems, after a reasonable search, to have the quality of gratuitous suffering.

• (5*) Therefore, (classical theists ought to accept that) gratuitous suffering probably does occur.

The idea that the EGC can be used to reinforce the evidential problem of evil is an attractive one, but it is also somewhat suspicious. After all, part of the strength of the EGC was its suggestion that the evidential case for an Evil God is just as good as the evidential case for a Good God. To turn around and then use the EGC to support the evidential case against a Good God is downright odd. This is does, however, open up a pathway to a third possible interpretation of the EGC.


4. The EGC as Part of the Argument for Indifference
Paul Draper’s 1989 article “Pain and Pleasure: an Evidential Problem for Theists” suggested that the debate between theists and non-theists could be construed as a debate between those who think the universe has some morally good creator behind it (theists), and those who think it it is morally indifferent (non-theists). In other words, between those who think the Hypothesis of Indifference (HI) is, on the available evidence, more likely to be true than the Hypothesis of Theism (HT).

I think Law’s EGC could be employed as part of the evidential case for HI. How so? Well, go back to the idea of the principle of warranted induction. This principle states that we can make warranted inferences about the actual nature of a defined reference class of events by performing a reasonable survey of the members of that reference class. So we must ask: When trying to make warranted inferences about the moral character of the universe, what is the relevant reference class of events? I would argue that the relevant reference class of events is all events affecting sentient beings. Why only those events? Because under most conceptions of morality, it is only such beings that have moral significance.

What Law’s EGC does (when read in its totality) is show us that the reference class of events involving sentient beings appears to have a balanced set of moral qualities. Yes, it is true that some events have the quality of gratuitous suffering, but it is also true that a roughly equal number have the quality of gratuitous joy. In other words, the events in the relevant reference class seem to have equal amounts of the quality Q (goodness) and ~Q (badness).

But wouldn’t that imply that the universe has no discernible moral character? And isn’t this exactly what we would expect if the hypothesis of indifference were true?

I’m not entirely sure how to move from these rhetorical questions to a proper argument, but maybe something like this could work.

• (11) The principle of warranted induction states that if a defined reference class of events in the world seems, after a reasonable search, to have a certain quality Q, then it probably does have that quality Q.

• (13) The moral character of the universe should be observable in the class of events affecting sentient beings.

• (14) If HT is true, then we would expect there to be significantly more goodness than badness in the class of events affecting sentient beings.

• (15) If HI is true, then we would expect the class of events affecting sentient beings to have roughly equal amounts of goodness and badness in it.

• (16) If HI is probably true, then HT is probably false.

• (17) The EGC suggests that the reference class of events affecting sentient beings, after a reasonable search, seems to have roughly equal amounts of goodness and badness.

• (18) Therefore, the reference class of events affecting sentient beings probably does have equal amounts of goodness and badness in it (from 11 and 17).

• (19) Therefore, HI is probably true (from 15 and 18).

• (20) Therefore, HT is probably false (from 16 and 19).

I haven’t mapped this out because it’s incomplete (for instance, premises 13 and 14 don’t feature in any of the argument’s derivations so I’m wondering what they’re doing there). But if it could be completed, I think it would be the most promising and most persuasive way in which to employ the EGC. That said, it would certainly still be open to critique. For instance, (15) is particularly problematic. The claim it makes is that roughly equal amounts of goodness and badness imply indifference, but that isn’t necessarily true. After all, we would expect the same if Manicheanism were true. So how can I say HI is supported by that evidence more than Manicheanism (or even some forms of polytheism)?

To sum up, I think there are at least three different interpretations of the EGC. Each has its strengths and weaknesses. The reductio interpretation could be rhetorically effective but there are some well-known responses. The “supporting the evidential PoE-interpretation is intriguing but, ultimately, suspicious. And the indifference-interpretation is, to my mind, the most promising but also the most incomplete. More work needs to be done on the concept of moral indifference, and the expectations we would have from a morally indifferent universe, for it to become persuasive.