Understanding Legal Argument (1): The Five Types of Argument

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I have been teaching about legal reasoning and legal argumentation for years. When I do so, I try to impress upon students that legal argument is both simple and complex.

It is simple because in every legal case there is, in essence, one basic type of argument at the core of the dispute between the parties. This argument works from a general legal rule to a conclusion about the application of that rule to a set of facts. Philosophers and logicians would say that the basic form of legal argument is a syllogism: a simple three-step argument involving a major premise (a general principle or rule), a minor premise (a claim about a particular case or scenario) and then a conclusion (an application of the general rule to the particular case). 

Here is a simple conditional syllogism:

• (1) If roses are red, then violets are blue. (Major Premise)

• (2) Roses are red. (Minor Premise)

• (3) Therefore, violets are blue. (Conclusion)

My view is that legal arguments take on a similar conditional, syllogistic form. There is a legal rule that stipulates that if certain conditions are met, then certain legal consequences will follow. This is the major premise of legal argument. Then there is a set of facts to which that rule may apply. This is the minor premise of legal argument. When you apply the rule to the facts you get a conclusion.

In abstract form, all legal arguments look like this:

• (1) If conditions A, B and C are satisfied, then legal consequences X, Y and Z follow. (Major premise: legal rule)

• (2) Conditions A, B and C are satisfied (or not). (Minor Premise: the facts of the case)

• (3) Therefore, legal consequences X, Y and Z do (or do not) follow. (Conclusion: legal judgment in the case).

To give a more concrete example, imagine a case involving a potential murder:

• (1*) If one person causes another person’s death through their actions, and they performed those actions with intent to kill or cause grievous bodily harm, and they had no lawful excuse for those actions, then they are guilty of murder and may be punished accordingly.

• (2*) Cain caused Abel’s death through his actions and in doing so he intended to kill and acted without lawful excuse.

• (3*) Therefore, Cain is guilty of murder and may be punished accordingly.

Simple, right? Unfortunately it is not. Although this basic argument is the core of all legal disputes it is not the totality of those disputes. The problem is that legal rules don’t just show up and apply themselves to particular cases. There are lots of potential legal rules that could apply to a given set of facts. And there are lots of qualifications and exceptions to legal rules. You have to argue for the rules themselves and show why a particular rule (or major premise) should apply to a particular case. In addition to this, the facts of the case don’t just establish themselves. They too need to argued for and the law adopts a formalised procedure for establishing facts, at least when a case comes to trial.

In this two-part article, I want to examine some of the complexities of legal argument. I do so first by examining the different kinds of argument you can present in favour of, or against, particular legal rules (i.e. for and against the major premise of legal argument). Understanding these kinds of arguments is the main function of legal education. People who study law at university or in professional schools spend a lot of their time examining all the different ways in which lawyers try to prove that a certain rule should apply to a given set of facts.

Several authors have presented frameworks and taxonomies that try to bring some order to the chaos of arguments for legal rules. I quite like Wilson Huhn’s framework The Five Types of Legal Argument, which not only does a good job of reducing legal argument down to five main forms, but also identifies all the different ways of arguing for or against a legal rule within those five main forms. I’ll try to explain Huhn’s framework, in an abbreviated fashion, in the remainder of this article. I should say, however, that I have modified his framework somewhat over the years and I'm not entirely clear on which bits of it are his and which bits are my own modification. Most of it is his. Some bits are mine (and most of the examples are ones that I use in my teaching and not ones that come from Huhn's book).

1. Argument from Text

For better or worse, law has become a text-based discipline. There are authoritative legal texts — constitutions, statutes, case judgments and so on — that set down legal rules. Consequently, one of the most common forms of legal argument is to identify the case-relevant legal texts and then use them to figure out the relevant rule. This is the first type of legal in Huhn’s framework and perhaps the starting point for most legal arguments.

Here’s a real example. Suppose you punch someone in the face on a night out and they accuse you of assault. You get arrested and you hire a lawyer. You ask them whether you are likely to be found guilty or not. The first thing this lawyer is going to do is to look up the rule governing assault cases like this. In Ireland, this rule is to be found in Section 2 of the Non-Fatal Offences Against the Person Act 1997:

Assault Rule: A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly: (a) directly or indirectly applies force to or causes an impact on the body of another, or (b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, (c) without the consent of the other. [Text modified slightly from the statute to make the consent condition of the offence a little clearer]

 

The lawyer will then plug this rule into an argument about your case. Depending on the facts, they may say that you are likely to be found guilty or that you acted with lawful excuse (say, self defence) and so are likely to get off.

But it’s not that straightforward. Text-based legal rules rarely are. The terms within the text need to be interpreted. Their true meaning, within the context of the case at hand, needs to be determined. Sometimes the meaning might be obvious or uncontroversial, but many times it is not. The Irish assault rule, for example, contains a number of vague or uncertain terms. What does it mean to apply force ‘directly or indirectly’? Punching someone in the face is direct force, surely, but what if you throw water in their eyes? Is that indirect force? Come to think of it, what is ‘force’ anyway?

Fortunately, the Irish statute answers some of these questions for us. Later on in Section 2 of the 1997 Act it tells us that force includes “(a) the application of heat, light, electric current, noise or any other form of energy, and (b) application of matter in solid liquid or gaseous form”. So that clears up some confusion. But other doubts remain. What does it mean to ‘recklessly’ apply force? What would a ‘lawful excuse’ be? There are answers to these questions though they are not always clear and it would require significant additional argumentation to confirm the true meaning of the rule in this case.

I won’t belabour the point. As Huhn points out in his discussion, all text-based arguments have to be supported by some kind of textual analysis, i.e. a premise that supports a particular interpretation of the rule. This means that text-based arguments tend to take the following general form:

• (1) The text setting down the legal rule states ‘If conditions A, B and C are satisfied, then legal consequences X, Y and Z follow”.

• (2) According to textual analysis T, A really means D, B really means E and C really means F.

• (3) Therefore, the relevant legal rule is ‘If condition A (meaning D), B (meaning E) and C (with meaning F) are satisfied then legal consequences X, Y and Z follow”.

How do you support a textual analysis? Huhn argues that there are three basic forms of textual analysis in law:

Plain Meaning: The text has an obvious plain meaning. Dictionary definitions support this as does publicly understood meaning. (i.e. it does not require any fancy textual analysis)

Canons of Construction: There is some specific rule of legal interpretation that can clarify the meaning of the rule. There are lots of these so-called ‘canons’ of construction. Examples include expressio unius est exclusio alterius (if you expressly mention one thing you exclude another) or ejusdem generis (when items on a non-exhaustive list are of a particular type then all other members of that list are assumed to be of the same type). You could dedicate years to studying all the different canons of construction and not wrap your head around them.

Intratextual analysis: A later part of the same text clarifies what the true meaning of the rule is. So, to repeat the previous example, a later subsection of the Non-Fatal Offences Against the Person Act 1997 clarifies what is meant by the term ‘force’. Sometimes intratextual analysis is more subtle than this, however. Sometimes it is a case of trying to make an entire legal text coherent and non-contradictory by implying a fuller meaning into an earlier part of the text.

 

How do you critique a textual analysis? Huhn argues that there are six basic forms of critique, two applying to each of the three forms of textual analysis:

• Argue that either (a) the text is ambiguous or uncertain and so does not have a plain meaning or (b) the text has a different plain meaning.

• Argue that either (a) the stated canon of construction does not apply to this type of legal text (some canons of construction apply to statutes or their derivatives and others to other kinds of legal text, e.g. contracts) or (b) there is a rival canon of construction that applies to this text and results in a different meaning.

• Argue that either (a) there is a conflicting inference to be drawn from the same text; or (b) there is a conflicting inference to be drawn from another text (which must be read with this one, e.g. a statute must be consistent with the text of a constitution since the latter is a superior source of law).

 

One of the great virtues of Huhn’s framework is his attempt to exhaustively catalogue not only the five main forms of legal argument but also the different ways in which to support or attack those arguments. We’ll see this as we discuss the four remaining types of legal argument.

2. Intent/Purpose-Based Argument

The next type of argument is the intent or purpose-based argument. This is a sub-species of textual argument where, instead of looking at the plain meaning or objective meaning of a legal rule, you focus on the intent or purpose behind the rule. This type of argument is commonly used in contractual interpretation where the court figures out the meaning of a contractual term by appealing back to the intentions of the people who wrote it. It is also used in statutory and constitutional interpretation when lawyers focus on the intent of the legislature when drafting a law or the intent of the ‘framers’ when drafting a constitutional text.

Here’s an example of an intent-based argument. There’s a famous US case called In Re Soper’s Estate. It was decided in Minnesota back in the 1930s. The facts are somewhat unusual. It involved a man called Ira Soper who was married to a woman called Adeline Westphal. They lived in Kentucky. Soper must have been unhappy because he faked his own suicide and ran off to Minnesota. While there, he assumed a new identity (John Young) and married another woman called Gertrude Whitby. Technically, since Soper/Young was not dead, his original marriage to Adeline was still valid. Furthermore, since it was an offence to be married to two women at the same time, this meant that Gertrude was not, technically speaking, his legal wife. This technicality becomes important to the case. 

Young entered into business with another man called Ferdinand Karstens. To protect their interests in the business they signed up to an insurance contract (or rather assurance contract) that ensured lump sum payments to their spouses or next of kin in the event of one of their deaths and ensured that the business would be transferred to the other partner at the same time. Since the terms of this deal could apply to either partner and either of their spouses, it was worded in an abstract way. As follows (this is slightly modified from the original):

Upon the decease of either John W. Young or Ferdinand J. Karstens, the Company shall collect the proceeds of the Insurance Policies upon the life of such deceased Depositor, and shall deliver the stock certificates of the deceased partner to the surviving partner and it shall deliver the proceeds of the insurance on the life of the deceased partner to the wife of the deceased partner if living...

 

You can probably guess the rest. 

Soper/Young really did die and his second wife Gertrude collected the insurance money. But then his original wife found out that he had faked his earlier ‘death’ and came along claiming that since she was still his wife she should receive the insurance money. The court had to figure out what the phrase ‘wife of the deceased partner’ meant in this context.

The majority judgment in the case decided that the phrase was ambiguous given the circumstances of the case. You had to look beyond the plain meaning of the text to the intentions of Soper/Young when signing the agreement to figure out what it really meant. If you did that, they argued that the meaning was clear: Gertrude (the second ‘wife’) was the intended beneficiary not Adeline. This verdict was disputed by a minority judgment which argued that it flew in the face of the plain meaning of the text. There is some logic to the minority judgment, but it is a complicated linguistic issue. Either way, the majority verdict is still a good example of an intent-based argument being used to justify a particular legal rule — in this case a contractual rule — being applied to a case.

Intent-based arguments have the following general form:

• (1) The legal text says ‘If A, B, C, then X, Y, Z’

• (2) The intention/purpose of the person/s that drafted the rule was that A means D, B means E and C means F.

• (3) Therefore, the applicable rule is ‘If A (meaning D), B (meaning E) and C (meaning F), then X, Y, Z’

To support an intent-based argument you need to introduce evidence of the intent or purpose behind the provision. Huhn suggests that there are four main ways of doing this:

Look to the text itself: sometimes texts explicitly state the intention behind them, e.g. some statutes include long titles or preambles that explicitly or implicitly state the intentions behind them.

Look at changes to the text over time: A history of amendments or revisions to a text might reveal the intent insofar as these amendments suggest a refinement of the text to better approximate the intentions of its drafters.

Look at the history behind the text: The text will have been produced in a certain historical context perhaps in response to a particular challenge or controversy. This might suggest a particular intent. For example, the meaning of the US Constitution is sometimes interpreted in light of the historical purpose of the War of Independence and the separation from the United Kingdom.

Look at commentaries on the text: Commentaries on the text at the time it was drafted or amended (e.g. parliamentary debates about a statute) might reveal intent.

 

Whenever you move beyond the strict wording of a legal text you are entering troubled waters. There is a view out there that lawyers and judges should concern themselves solely with the strict literal wording of the text. They should not add words that are not there or distort the literal meaning with their own preferences or ideas. Furthermore, the idea that some legal texts have intentions or purposes behind them is problematic since they are often drafted by groups of people that may lack a common intention or they may have been intended to provide timeless abstract principles for a society (this is a common argument made about constitutional texts - If you’re interested I have written a couple of papers about some of the philosophical problems with constitutional interpretation).

As much as people would like lawyers and judges to stick to the texts, the reality is that this practically impossible. Part of the reason for this is that we naturally seek intentions and purposes whenever we engage with the written word. It’s just part and parcel of the social and interpersonal nature of language. Furthermore, language is frequently ambiguous, vague or otherwise uncertain. You have to look beyond the text if you are going to make sense of it. Looking for intentions is a good starting point.

There are many ways to defeat intentional arguments. Huhn identifies four main forms of attack and they can work no matter what form of evidence is being introduced to support the argument:

• Show that the evidence (of whatever form) suggests a different intent or purpose behind the text.

• Show that the evidence of intent is not sufficient or is ambiguous or inconclusive.

• Show that the intent that is evidenced does not count because it did not come from a relevant authority/person (only people with legal authority count when it comes to intent/purpose).

• Argue that the people who wrote the rule could not have anticipated the current facts and so there is no intent guiding the application of the rule in this case.

 

3. Precedential Arguments

The common law system is famous for its use of case-based reasoning. Judges decide cases and in doing so they create rules that apply to those cases. Under the system of precedent, subsequent judges in subsequent cases have to follow the same rules if they think their cases are sufficiently similar to the older ones. 

It’s a little more complex than that, of course. The system of precedent recognises a hierarchy between courts. The judgments of superior courts in the same jurisdiction have to be followed but the judgments of inferior courts do not. But even if there is no strict rule stating that previous judgments have to be followed, it is common for judges to look to previous cases for guidance or reassurance when deciding present ones. This is true even when there is an authoritative legal text (such as a statute or constitution) that clearly sets out the rule governing the present case. As we just noted, those texts need to be interpreted and are often ambiguous, vague or otherwise uncertain. Consequently, judges look for guidance from previous cases that interpreted and applied the same rule. Hence, precedential arguments are a core part of the law.

Precedential arguments are a form of analogical argument.* Judges examine the facts of two cases  to determine if they are relevantly similar. If they are relevantly similar, they apply the same rule to the two cases (following the rule from the older/superior court case). If they are not relevantly similar, they might apply a different rule, perhaps one coming from another case, or one that they invent/modify to suit the circumstances.

Here is an example. In the English case of AG Reference (No 6 of 1980), two young people got into an argument in the street. They agreed to settle their dispute by fighting each other. One of them sustained bruising to the face and a bloody nose. They were charged with assault causing harm. The question before the court was whether consent could be a defence to this charge since the two people had agreed to the fight. The court held that consent could not be a defence to a charge of assault causing harm. There were some legitimate exceptions to such a charge, such as legitimately organised sporting events, or certain ceremonial/aesthetic rituals (tattooing, ear-piercing), that might otherwise involve activities that we could classify as assault, but this case did not fall within those exceptions. It was just an ad hoc street fight.

In the later English case of R v Brown, a group of men engaged in private, consensual acts of sexual sado-masochism. They were found out, arrested and charged with assault causing harm. Again, they argued that they should be exempted from this charge because they had consented to the acts. The court disagreed with them. They held that this case was like AG Reference (No 6 of 1980) (and some other similar cases) in that it did not fall within the range of legitimate exceptions to the offence of assault causing harm, and in that consent was not a defence to such a charge.

So, despite some obvious dissimilarities between the cases — one involved a public street fight; the other involved private consensual acts of sexual violence — the majority of judges thought there were relevant structural similarities between the cases that justified the application of the same rule.

Interestingly, there were subsequent cases that seemed similar to R v Brown but were distinguished from it by the courts. For example, in the case of R v Slingsby, a man sexually penetrated the vagina and rectum of his wife with his fist. He was wearing a signet ring at the time and as a result of this his wife was cut, developed septicaemia and died. He was charged with assault causing harm. The courts dismissed the charge on the grounds that this was a private, consensual sexual act that had the indirect consequence (and not the primary aim) of causing harm. This made it very different from R v Brown which involved acts whose primary intention was to cause harm (albeit as part of a sexual kink). Hence it was a legitimate exception to the rule. Similarly, in the case of R v Wilson, a man branded the buttocks of his wife with a hot knife, apparently with her consent. He was also charged with assault causing harm but this was dismissed on the grounds that tattooing and aesthetic adornment of this sort fell within the range of legitimate exceptions to the offence. Furthermore, the interests of marital privacy justified not getting involved. This, again, made the case relevantly dissimilar from R v Brown which did not involve married couples and did not involve tattooing.

You might disagree with this. You might think the cases are more similar than the judges suggest or that they are straining to find structural differences to support bigoted or intolerant views. That’s fine and that’s part of how we go about critiquing analogical arguments. Nevertheless, this sequence of cases provides a good illustration of how precedential/analogical arguments can work.

The general form of precedential arguments is as follows:

• (1) In case P, the legal rule that applied was ‘If A, B and C, then X, Y and Z’

• (2) This case is similar to case P in all important respects.

• (3) Therefore, the rule ‘If A, B and C, then X, Y and Z’ should apply to this case.

There is only one way to defend a precedential argument and that is by following the process of analogical reasoning, i.e. carefully review of the facts of each case, note the relevant similarities, and use this to justify the application of the same rule. Since no two cases are perfectly alike, this is always going to be an imperfect exercise and so analogical arguments are often open to challenge. Huhn suggests that there are six main ways to attack such arguments:

• Show that the two cases are dissimilar in some important respect.

• Show that there are two competing lines of authority and so (a) it is unclear what the relevant rule should be or (b) this case is more like the rival authority.

• Show that the cited opinion from the previous case was not a holding but, rather, obiter dictum. (In common law systems there is this idea that some portions of a previous judgment are legally binding — so-called ratio decidendi and some portions are not — so-called obiter dictum).

• Show that the cited opinion did not command the majority of the court.

• Show that the relevant authority has now been overruled or replaced by a new rule and so no longer applies.

• Show that the relevant authority was incorrectly decided and so should be overruled.

Of course, the relevance of some of these attacks will depend on the system of precedent in which one is operating and the way in which the previous case is being used.

I just want to make one final point about precedential arguments. Because of the way in which they work — building analogies between the fact patterns of two or more cases — this type of argument requires some established view of the facts of the case. You have to agree that the present case has certain features and that the previous case shared those features. If the facts are in dispute or are other than what the judge or lawyer claims them to be, this may block the application of the previous ruling. So this type of argument blends a defence of the major premise of legal argument with an implied defence of the minor premise.

4. Tradition or Custom-Based Arguments

The fourth type of argument is the argument from custom or tradition. This is an unusual one. We know, as a matter of fact, that societies follow rules even in the absence of a formal legal system. Hunter-gatherer bands, for example, have rules that members are expected to follow regarding the sharing of food and the treatment of others. These rules are rarely set down in an authoritative text. They are just habitualised within the society. It is sometimes claimed that the common law system has its origins in such traditions or customs. The early common law judges were not following precedent. There were no precedents to follow. They were, instead, recognising and adopting existing customary rules.

As law has become a more text-based discipline, with formalised procedures for creating and promulgating legal rules, the significance of customary or tradition-based rules has waned. Instead of pointing to customs, we point to texts to find the rules that govern our cases. Still, custom is an integral part of the law in certain areas. In contract law, for example, it is common to use customs within certain professions or locales to work out what the terms of a contract ought to be. Similarly, in international law, the customary behaviours of states toward one another is one of the primary sources of law. Finally, and perhaps most notoriously, there is no written constitution in the UK. There is, instead, a set of customary rules and norms that dictate how the state should be run.  These are the main source of constitutional law in the UK.

Some philosophers and political scientists would go further than this. They would argue that since it is impossible to authoritatively and comprehensively write down every rule that governs society, the law must be supported by a significant body of unwritten, tacit, traditionary and customary rules. At some point in time, judges and lawyers must appeal to these rules in order to make legal arguments.

Here is an example of a custom-based argument in contract law. The case in question is the Irish case of Carroll v Dublin Bus. This involved a bus driver who was out of work for a period of time due to illness. He returned to work and was given an ordinary bus route. He disputed this on the grounds that it was a custom/tradition within Dublin Bus that drivers returning to work after a period of illness be given a ‘light’ or ‘rehabilitation’ route before being eased back into a normal work routine. The court agreed that this was indeed a custom within Dublin Bus and so he was successful. The court decided that this custom should be implied into the terms of his employment contract.

Custom or tradition based arguments take the following form:

• (1) The tradition/custom states that ‘If A, B and C, then X, Y and Z’

• (2) Evidence shows that the habits and customs of people in a given area/profession (etc) support the traditional rule ‘If A, B and C, then X, Y, and Z’

• (3) Therefore, the rule ‘If A, B and C, then X, Y and Z’ should apply to this case.

The key to a good custom-based argument is twofold: (i) show that the written law does not cover the facts that arise in the case or is necessarily incomplete without the custom; and (ii) provide evidence to show that people really are committed to that custom. There are a few ways of doing (ii). Huhn mentions the following:

Historical analysis: Show that the historical record supports the idea that people have always followed or endorsed this rule.

Recorded Opinion/ Commentary: Show that the evidence on public opinion (or the opinions of relevant sub-groups of the public) suggest that they agree to this rule.

 

A combination of methods can be the most effective.

There are three ways to attack a custom-based argument:

• Show that the alleged tradition does not exist, i.e. the evidence for the tradition is weak or incomplete or unpersuasive.

• Show that there have been competing traditions and so (a) it’s not clear which traditional rule should apply to this case or (b) the alternative traditional rule should apply to this case.

• Show that a new tradition is emerging which displaces the old traditional rule (this is a frequent problem with tradition-based argument since society is always changing and adapting to new realities).

5. Policy-Based Arguments

The final type of argument (according to Huhn’s framework) is the policy-based argument. This is perhaps the most contentious type of argument. It involves advocating for the application of certain rules on the grounds that they are good policy, or, conversely, arguing against the application of certain rules on the grounds that they are bad policy. This type of argument is controversial because some people think that lawyers and judges should not be engaged in policy-making, but the practical reality is that policy-based arguments are widespread in law, and they are often critical in the most contentious cases.

Policy-based arguments have two key steps to them. The first is an inquiry into the likely consequences or outcomes of applying a particular rule to the facts of the case (so, again, there tends to be some initial agreement on the facts though it is not as integral to this type of argument as it is to a precedential argument). The second is the use of some evaluative or normative theory to assess those consequences or outcomes. This evaluative theory can be drawn from multiple sources: economic theory, moral theory, and religious tradition are among the most commonly used.

In my experience, it is rare for courts to use policy-based arguments to simply create entirely new legal rules. Maybe that did happen back in the day. What’s more likely to happen nowadays is that there is some dispute as to which rule (or which interpretation of a rule) should apply to a case. To resolve this dispute, courts will examine the likely outcome of applying the rule to the case. If they think the outcome is consistent with their preferred evaluative theory, they will apply it. If not, they will look for an alternative rule (or an alternative interpretation of the rule).

Here’s an example. The English case of Re A (Conjoined Twins) is remarkable for a number of reasons. The facts are well-known. A pair of conjoined twins (referred to as Jodie and Mary in the case) were born in August 2000. Jodie was the stronger of the two. Mary was only kept alive by a common artery that she shared with Jodie. If left conjoined, they would both, almost certainly, die. If separated, Jodie would live and Mary would die. The doctors wanted to separate them. The parents objected. The case was referred to the courts for guidance as to whether it was legally permissible for the doctors to proceed with the separation.

There were many issues in the case. The chief one was whether the surgeons would be guilty of murder if they performed the surgery. Though there were disagreements among the judges, they agreed that the surgeons would be intentionally killing Mary by performing the separation (they would be intentionally causing her death through their actions) but that they did have a lawful excuse for doing so. What that lawful excuse was ended up being disputed between the judges. One judge analysed the case partly in terms of self-defence, but two of them agreed that the doctors could avail of the defence of necessity. In brief, they argued that what the doctors were doing was necessary, in the circumstances, to prevent the death of both twins and save the life of Jodie (it was the lesser evil).

The problem with this, however, is that previous case law suggested that the defence of necessity was not available to a charge of murder. One of the reasons for this limitation, suggested by commentators on the law, was that if it was a defence people might be too quick to appeal to it to sanction their own murderous acts. In other words, we might have an army of would-be murderers suddenly concocting situations of necessity in order to get away with murder. One of the judges in the case, Lord Justice Brooke, argued that this predicted outcome was unlikely to occur:

If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted.

 

This is an example of a policy-based argument. Brooke LJ is considering the possible outcome of applying the defence of necessity to this case and is arguing that it is unlikely to have negative consequences (it’s not going to give an easy excuse to would-be murderers). Hence, he is willing to apply the defence to this case. (Note: there are many other policy-based arguments in the judgment — this is just one example).

Policy-based arguments have the following general form:

• (1) The supposition/working hypothesis is that rule R (taken from text, intention, precedent or tradition) applies to this case.

• (2) If rule R applies to this case, good/bad consequence/outcome/moral fit X, Y, and Z will occur. (Prediction Premise)

• (3) We should adopt a rule with good consequences/outcomes/moral fit; we should not adopt a rule with bad consequences/outcomes/moral fit (Normative Premise)

• (4) Therefore, rule R should/should not apply to this case.

The key to defending a policy-based argument is to show (a) that the predicted consequence/outcome is likely to occur and (b) that it is consistent/inconsistent with the preferred evaluative theory. There are many different evaluative theories so there are many ways of trying to defend the normative premise of this argument. Still, in broad outline, we can say that there are two basic methods of evaluation. First, there is deontological evaluation where you check to see if the proposed legal rule is consistent with another rule drawn from your preferred evaluative theory (e.g. a secular moral theory such as Kantianism or a religious moral theory). Second, there is pure consequentialist evaluation where you check to see whether the consequences of the rule are good or bad according to the criteria of your preferred evaluative theory (does it promote economic growth? limit suffering? promote welfare and well-being? reduce crime? and so on)

Because of their contentious nature, and in particular because of the widespread disagreement about preferred evaluative theories, policy-based arguments are frequently attacked. Huhn suggests that there are six main methods of attack:

• Argue that it is not the job of the law to make these policy judgments (that’s a job for the legislature or the public).

• Show that the relevant evaluative theory actually supports an alternative rule.

• Show that although the policy is good, it is not served in this case (i.e. the prediction is false).

• Show that there is a competing policy outcome that should be preferred.

• Show that the alleged desirable/undesirable consequences will not follow from the rule.

• Show that policy considerations are not sufficiently strong to outweigh other legal arguments.

6. Conclusion

So there you have it. This is a brief overview of the five main ways of defending and critically analysing the first premise in any legal argument. I've summarised all the main ideas into a handy chart/table which you can download here, if you like.

* There are some legal theorists that claim that this is wrong. But in my experience they offer highly technical analyses of case-based reasoning that are divorced from how legal practitioners actually think it works in practice. It’s simpler, and in my view more accurate, to see precedential arguments as a species of analogical argument.

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88 - The Ethics of Social Credit Systems

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Should we use technology to surveil, rate and punish/reward all citizens in a state? Do we do it anyway? In this episode I discuss these questions with Wessel Reijers, focusing in particular on the lessons we can learn from the Chinese Social Credit System. Wessel is a postdoctoral Research Associate at the European University Institute, working in the ERC project “BlockchainGov”, which looks into the legal and ethical impacts of distributed governance. His research focuses on the philosophy and ethics of technology, notably on the development of a critical hermeneutical approach to technology and the investigation of the role of emerging technologies in the shaping of citizenship in the 21st century. He completed his PhD at the Dublin City University with a Dissertation entitled “Practising Narrative Virtue Ethics of Technology in Research and Innovation”. In addition to a range of peer-reviewed articles, he recently published the book Narrative and Technology Ethics with Palgrave, which he co-authored with Mark Coeckbelbergh.

You can download the episode here or listen below.You can also subscribe on Apple Podcasts, Stitcher, Spotify and other podcasting services (the RSS feed is here).

 

Show Notes

Topics discussed in this episode include

• The Origins of the Chinese Social Credit System

• Historical Parallels to the System

• Social Credit Systems in Western Cultures

• Is China exceptional when it comes to the use of these systems?

• The impact of social credit systems on human values such as freedom and authenticity

• How the social credit system is reshaping citizenship

• The possible futures of social credit systems

Relevant Links

• Wessel's homepage

• Wessel on Twitter

• 'A Dystopian Future? The Rise of Social Credit Systems' - a written debate featuring Wessel

• 'How to Make the Perfect Citizen? Lessons from China's Model of Social Credit System' by Liav Orgad and Wessel Reijers

• Narrative and Technology Ethics by Wessel Reijers and Mark Coeckelbergh

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The Technological Mediation of Morality: Explained

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3D Ultrasound - Does this change our moral perception of the unborn child?

People have been talking about the death of privacy for at least three decades. The rise of the internet, mass surveillance and oversharing via social media have all been seen as knells summoning it to the grave. In our everyday behaviours, in our choices to use platforms that engage in routine and indiscriminate digital surveillance, we supposedly reveal a preference for digital convenience and social interaction that indicates a willingness to sacrifice our privacy. Despite this, privacy advocates claim that privacy has never been more alive than it was before. Indeed, they argue that it is precisely because privacy is under threat, and because we are forced to make compromises with respect to privacy in our day-to-day lives, that we should care about it more than we did before.

This is just one example of how technology seems to have an effect on our moral values. On the one hand, the creation of new technologies — in this case the internet and smart devices — has created new opportunities for tracking, surveillance and spying. This puts privacy in the vice. On the other hand, the increased pressure on privacy activates it in our minds and makes us worry about it more than ever. We respond by calling for new social norms with respect to the use of surveillant technologies, as well as legal reforms and protections.

Philosophers of technology sometimes explain this phenomenon by using the concept of technological mediation. The idea, in brief, is that technology mediates our relationship to the world: it changes how we perceive ourselves, our actions and our relationship to the world. This, in turn, has an effect on our moral perceptions and actions. Technology is never really value neutral: it comes loaded with moral significance and meaning. But its value-ladenness is not something beyond our control. All people involved in the design and use of a technology have some say in the moral significance of that technology.

In this article, I want to explain this concept of technological mediation and how it affects our moral reasoning. I’ll do so in three parts. First, I will briefly explain Don Ihde’s classic theory of human technology relations. Second, I will outline Peter Paul Verbeek’s key insights into the technological mediation of morality. Third, I will consider the practical significance of the technological mediation of morality.

This may all sound a little dry and theoretical, but I promise it is interesting and may change how you think about technology.

1. Don Ihde’s Four Types of Human-Technology Relationships

”Mediation” is one of those fancy academic terms that can be obscure to outsiders. If my experience is anything to go by, academics love to throw the word into some otherwise banal sentence to make their thoughts sound more sophisticated than they really are. So, for example, you will commonly hear people at conferences say something like “Facebook mediates our perception of social reality”, to which others will nod their heads in agreement as though that says something informative or significant.

It doesn’t have to be so obscure or fancy-schmancy. The etymology of the term ‘mediate’ lies in the Latin verb for ‘to be placed in the middle of’ and that’s a pretty good first approximation of what academics mean when they talk about technological mediation. They mean that technological artifacts place a layer of some sort between humans and the world around them — that the technology stands between us and the world. This then has an effect on how we perceive the world. Consider, a trivial example: my eyeglasses. I wear them on my head everyday. They mediate my perception of reality: they bend light rays in such a way that I can see more clearly. Without the mediation provided by my glasses, I would have much poorer eyesight.

But mediation is a little more complex than that. In his now classic work on the philosophy of technology, Technology and the Lifeworld, Don Ihde outlines four kinds of relationships that humans can have with technologies and the world around them. They are:

Embodiment Relations: These arise when humans use technology as an extension of their own bodies/perceptual faculties. My use of eyeglasses and the blind person’s use of a cane are examples of embodiment relations. They are a particular kind of mediation where the technology is an extended part of who we are. Ihde schematises embodiment relations in the following way:

(Humans — Technology) → World

Hermeneutic Relations: These arise when humans use technology to reinterpret or reframe their perception of the world, perhaps by creating new concepts or categories to understand what they are seeing, or perhaps by appropriating old ones to make sense of the new perception. A classic example is the use of processed images in science, e.g. MRI scans or astronomical photography using non-visible electromagnetic radiation. In this type of mediation, the technologies are representing the world to us and we see them as joined to this external world, not to ourselves. This can be schematised as follows:

Humans → (Technology — World)

Alterity Relations: These arise when humans have to relate directly to a technological artifact. In other words, the artifact doesn’t represent or reinterpret the external reality for us; it is, rather, the external reality with which we must interact. The rest of the world fades into the background. The kinds of relationships we have with robots or ATMs are thought to be classic examples of this kind of relationship. In some ways, alterity relations are the antithesis of mediation insofar as the technologies in this instance do not mediate between us and the world. They are, in a sense, the world. Nevertheless, this can still be viewed as a logical extension of mediation. Furthermore how we perceive and understand technologies in alterity relations can affect other perceptions we might have of the world around us. I’ll get back to this later. Alterity relations can be schematised in the following way:

Humans → Technology(World)

Background Relations: These arise when technologies fade into the background and are not seen as something separate from the world. Rather they are just part of the background canvas upon which we experience reality. Artificial lighting and heating are sometimes given as examples of this kind of relation. This may represent the logical extreme of mediation when the technology is no longer seen to mediate our interaction with reality but is, simply, part of the stage on which external reality presents itself. These relations can be schematised as follows:

Humans (Technology/World)

 

People have built on Ihde’s framework over the years, proposing different kinds of human-technology relations (e.g. augmentation, immersion). But I still think his original is probably the most useful. One of the key ideas to be drawn from it is that how technologies are perceived and understood, and how they mediate our relationships with the world, is not something that is stable or fixed. It depends a lot on our cultural context, experiences and uses of the technology. What might be part of the background for us (e.g. electrical lighting) might be part of the foreground for others (e.g. those coming from pre-electrical societies). And what might have been part of the background for us in one context (e.g. air conditioning) might be something we have to relate with directly in another (e.g. when the system breaks down and needs to be repaired). This instability is important when it comes to understanding how technology mediates morality.

2. Verbeek’s Theory of Moral Mediation

Working from a similar perspective to that of Ihde, Peter Paul Verbeek has developed a theory for understanding how technology mediates our moral perception and engagement with the world. In other words, Verbeek claims that technology not only changes how we relate to the world in a descriptive or non-normative sense, but also how we relate to it in a moral sense. It presents us with new moral choices and moral frameworks for action.

Here’s how he characterises the idea himself:

[The technological mediation approach] studies technologies as mediators between humans and reality. The central idea is that technologies-in-use help to establish relations between human beings and their environment. In these relations, technologies are not merely silent ‘intermediaries’ but active ‘mediators’ that help to constitute the entities that have a relationship ‘through’ the technology… …By organizing relations between humans and world, technologies play an active, though not a final, role in morality. Technologies are morally charged, so to speak. They embody a material form of morality, and when used, the coupling of this ‘material morality’ and human moral agency results in a ‘composite’ moral agency. 

(Verbeek 2013, pp 77-78)

 

What does all that mean? I think we can break it down and make more straightforward by focusing on three key insights from Verbeek’s work.

The first two insights relate to the effect that technology has on morality. Verbeek claims that technology mediates our moral relationship with the world in two distinctive ways. First, it pragmatically mediates our relationship with the world. This means that it changes the space of options and actions available to us and this, in turn, has moral significance. Consider two ways in which this might happen:

Technology makes options available that once were unavailable - For example the creation of projectile weapons, missiles and ultimately nuclear weapons made killing at distance and at a massive scale possible. Similarly, the creation of the cell phone/mobile phone made it possible to connect with anyone at anytime in (virtually) any place.

Technology can close off options that were once available - For example speed bumps on the road can prevent us from driving at high speeds. Alcohol interlocks in cars can prevent us from driving while drunk. Internet blocking devices can prevent us from surfing the web during work hours.

 

The net effect of this is that technology can thrust new moral choices upon us or, alternatively take them away from us. We have to engage our existing moral values and normative theories to decide what we ought to do in these new circumstances. Is killing at a distance less bad than killing up close and personal? Is it okay to call someone at anytime and in any place or should we limit our connectivity in some way?

In addition to this, technology also hermeneutically mediates our relationship with the world. That is to say, it changes how we perceive and understand aspects of the real world (e.g. the concepts and analogies we apply to it) and this can have an impact on our moral decision-making. This new mode of moral seeing is in addition to any choices that the technology might add or take away.

Verbeek has a go-to example of hermeneutic mediation: obstetric ultrasound. This is a technology that allows people to see the foetus in utero at various stages of development. According to Verbeek, ultrasound images are not presented to us in a neutral way. On the contrary, they encourage us to see the foetus as an independent entity, separate from its mother (though present inside her), and as a possible patient for certain treatments or interventions (most obviously, abortion). Here’s how he puts it:

This technology is not merely a neutral interface between expecting parents and their unborn child: it helps to constitute what this child is for its parents and what the parents are in relation to their child. By revealing the unborn in terms of variables that mark its health condition, like the fold in the nape of the neck of the fetus, ultrasound ‘translates’ the unborn child into a possible patient, congenital diseases in preventable forms of suffering (provided that abortion is an available option) and expecting a child into choosing for a child, also after the conception. 

(Verbeek 2013, p 77-78)

 

Another example of this hermeneutic mediation might be the combination of the cameraphone and social media. By having a device on us at all times that allows for the recording of our everyday experiences, we are encouraged to see those experiences in a new way. They are not things to be enjoyed in and of themselves. They are now to be seen as opportunities for sharing with others, bragging, self-promotion and monetisation. We suddenly focus on the instrumental value of our experiences, not their intrinsic value.

This leads, in turn, to Verbeek’s third key insight. You may have heard the famous phrase that all technologies/artifacts have a politics (an ideology or set of values embedded within them). The classic illustration of this comes from Langdon Winner’s observation about the bridges over the highways on Long Island: they were not high enough to accommodate buses. Because they were less likely to own cars, Winner pointed out that this excluded poor (black) people from the beaches on Long Island. In Winner’s analysis, this was a deliberate design decision by Robert Moses, the planner behind the road network, who let his values shape their construction.

Verbeek agrees with this basic picture but finesses it somewhat. Technologies are indeed value-laden (“dripping with morality” in one memorable phrase) but their values are not entirely shaped by their designers. Oftentimes technologies are interpreted and used in ways that designers do not anticipate or intend. For example, I doubt that Facebook intended for their livestreaming feature to be used by rampage shooters on mass killing sprees. They probably intended it to be used for more benign purposes. Nevertheless, the technology made this possible. According to Verbeek, while designers have a significant part to play in the mediating effect of their technologies, users and regulators also have a role to play. Users and regulators can appropriate technology for new ends, encourage specific uses of it, and develop new interpretations of its moral significance.

This is both an uplifting and dispiriting thought.

3. Practical Significance of Moral Mediation

What does all this mean in practice? There are a number of key lessons here, some of which have been implicit in the discussion so far but are worth specifying.

First, as should be obvious, technological mediation puts the lie to the neutrality of technology. Technology is not some value-neutral tool over which we have complete moral autonomy. It comes with certain values and choices embedded in its design. A speed bump encourages us to slow down: it is biased in favour of slower driving. A cameraphone with internet connectivity and social media encourages the sharing and archiving of everyday life. You still have some choices as to whether you use technologies for their intended purpose but you often have to fight against the in-built biases.

Second, the fact that technologies mediate our moral perceptions and actions is important when it comes to the risk assessment of new technologies. Oftentimes, technological risk assessments focus heavily on what Verbeek and others call the ‘hard’ impacts of technology: the health risks, the possibility of environmental damage, the safety concerns and so on. These hard impact assessments use existing moral frameworks and evaluative standards (e.g. energy efficiency, radiation exposure) to determine whether the technology falls within acceptable parameters. This overlooks the potential ‘soft’ impacts, in particular the impact on social values and norms. What if the rise of the smartphone undermines the value of privacy? Is that not something we should factor into our risk assessment? Of course it is very hard, in practice, to assess these soft impacts (for reasons I won’t get into here) but they are worth considering nonetheless.

Third, and leading on from this, in order to meaningfully assess the soft impacts we need to know whether there are particular patterns to moral mediation. In other words, will it be easy to predict the future course of moral mediation or is it simply chaotic and unpredictable? We know, in general, that technology tends to add moral choices and dilemmas to our lives; it tends not to take them away. Indeed, the examples I gave earlier of technologies that eliminate options are all examples of technologies designed to take away an option that an earlier technology made possible. The alcohol interlock takes away the option of driving while drunk, but we would not have had that option if the automobile had not been invented in the first place. Furthermore, the creation of the interlock adds another choice: the choice of whether to use it or not. So it seems fair to say that the net effect of technological innovation is to add moral complexity to our lives, but can we say anything more specific and predictively useful? I’m not sure, but developing detailed case studies of technological mediation and extrapolating lessons from them looks like a good start.

Fourth, and more pessimistically, as Kudina and Verbeek (2019) have argued, technological mediation adds another dimension to how we think about the Collingridge Dilemma. This dilemma is something that is widely discussed in the world of responsible innovation and design. The classic version of the Collingridge Dilemma works like this:

Classic Collingridge Dilemma: When technology is at an early stage of development we have the power to control it, but we don’t know what its social impacts will be. When technology is at a late stage of development, we know what its social impacts are, but we lose the power to control it.

 

In short, once a technology proliferates in society it will be but it will be too late to do anything about its social impacts. As Kudina and Verbeek argue, there is a moral variation on the dilemma that arises from our awareness of the technological mediation of morality.

Moral Collingridge Dilemma: “[W]hen we develop technologies on the basis of specific value frameworks, we do not know their social implications yet, but once we know these implications, the technologies might have already changed the value frameworks to evaluate these implications.” (Kudina and Verbeek 2019, 293)

 

This moral variation on the dilemma is interesting to me because it reminds me of what the philosopher L.A. Paul’s has said about transformative experiences. Briefly, Paul has argued that some life choices cannot be rationally evaluated in advance because they transform who we are. Her main example of this is the decision to have children. To know whether having children is a good choice for you, you need to actually have them and acquire the experiential knowledge of what it is like to have a child. No amount of advance reading or consultation with friends will give you this. (Having now had a child, I think I disagree with Paul but let’s set that disagreement to the side for now)

One way of understanding Paul’s argument is that undergoing a transformative experience has an effect on the evaluative frameworks you use to rationally assess different choices. Anecdotally, it does seem to me like having a child changes how you value different aspects of your life. So the metrics you use to evaluate the choice of having a child will be different after you have had the child. What Kudina nad Verbeek are suggesting is that something similar is true when it comes to the development of technologies. The very act of developing and using the technology might change how we evaluate its merits. We could, in short, undergo a kind of moral transformation that makes it nearly impossible to rationally assess a technology in advance.

That’s a pessimistic thought on which to end and I merely offer it as a suggestion. I’m not sure that any technologies have resulted in transformative moral changes. The development of the internet does seem to have affected how much we value communication and connectivity. So much so that many people now demand internet connectivity as something close to a basic human right. But I’m not sure if that is a transformative moral change since we always valued those things to some extent.

It’s something to ruminate on if nothing else.

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Does Parenting Style Shape Our Moral Culture?

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A moral culture is the set of beliefs and practices in a society that specifies the values and norms that (people believe) ought to be adopted by the people living in that society. There are many different moral cultures. Psychologists and sociologists frequently talk, for example, about honour-based moral cultures. These are cultures in which the moral worth of each individual is not equal. It depends on the honour of each individual. Consequently, gaining and protecting one’s honour is the focal point of the moral beliefs and practices in such a culture. Honour-based cultures are sometimes contrasted with dignity-based moral cultures, which essentially hold that all people are of equal moral worth and this equality must be respected by the society’s moral beliefs and practices.

These are just illustrative examples. The concept of a moral culture is broader than that. Since a moral culture is, in essence, just a particular constellation of moral beliefs and practices, usually held together by some common underlying moral theory or paradigm, we could also talk about individualist, communitarian, and egalitarian moral cultures.

As you may know, I’ve recently been writing quite a bit about the idea of moral change and moral revolution. It is an obvious historical fact that people’s moral beliefs and practices change over time. The more dramatic moral changes — the revolutions — often involve changes in the underlying moral culture. For instance, the shift from honour-based morality to dignity-based morality is often thought to be a significant one. But here’s an interesting question: does parenting style make a difference to moral culture? And can shifts in parenting style precipitate or cause moral revolutions?

I recently came across a paper that addresses these questions. It was by Markus Christen, Darcia Narvaez and Eveline Gutzwiller-Helfenfinger (hereafter ‘Christen et al’) and it was called ‘Comparing and Integrating Biological and Cultural Moral Progress’. The paper looks at a number of different issues in the philosophy, psychology and history of morality. I’m not going to consider them all. But the comments it made about parenting style struck me as being quite important, particularly in light of my own recent reflections on the appropriate ethical style of parenting. So I want to review and critically analyse what they have to say.

I’ll do this in three parts. First, I’ll explain why parenting style might be an important shaper of moral culture. Second, I’ll consider a contrast between ancient and modern parenting styles and how this might be impacting on our moral culture. Third, I’ll consider some problems with the claim that modern parenting style is having a negative impact on our moral culture.

1. Why Does Parenting Style Matter to Moral Culture?

In an earlier article, I set out to explain the ‘mechanics’ of moral change. In that article, I made a few observations about evolution and brain development that seem to bear repeating here.

Very roughly, we would expect evolution to play some significant role in shaping the kinds of rules that we adopt in our lives. After all, it does this for other animals. For example, sea-dwelling Salmon follow reasonably strict rules when it comes to their own reproduction: swimming back to the rivers in which they were spawned to continue the cycle of life.

But one of the interesting things about human evolution is how relatively flexible our behavioural rules actually are. Although there are some things that humans have to do in order to survive and thrive, they are surprisingly few in number. They certainly can’t account for all the things humans think they have to do. Indeed, the rules and norms humans follow in their lives — including oddities such as not eating pork and remaining voluntarily celibate for the purposes of religious devotion — are diverse, culturally contingent, and not always obviously linked backed to evolutionary pressures. How did this diversity arise?

Part of the answer lies in the evolution of the human brain. Instead of coming into the world with a complete set of pre-programmed behavioural rules and fixed action patterns, humans come with a flexible learning machine — the brain — that allows them to create and learn behavioural rules in response to cultural, geographical and other contingent historical factors. Evolving that brain came at a cost. Given the constraints of the human birth canal, human babies cannot be born in a mature and capable state. They have to be born in a helpless and immature state. This makes them highly dependent on their parents, particularly their mothers, as well as their wider families and caregiving networks for nurturance and guidance in their early years.

This results in something of a tension when it comes to human moral development. On the one hand we have a flexible capacity to learn lots of different moral rules, but on the other hand we have evolved to attach to and be dependent on our parents and other caregivers in our early years. This means that the style of parenting to which we are exposed can have an important nudging effect on the kinds of moral rules we are inclined to follow later in life.

This is where the influence of parenting style on moral culture can be observed. Learning styles or behavioural rules are not necessarily equivalent to moral cultures, but they are a substantial part of them. Parents and caregivers provide opportunities for and place constraints on their children. These opportunities and constraints either explicitly or implicitly teach children what to value and what to do. This shapes their future moral beliefs and practices, predisposing them to favour certain forms of moral culture.

This can also have an effect on how susceptible people are to moral change later in life. Intuitively, it would seem that the stricter and more conservative one’s upbringing, the less open to moral change one is likely to be in the future. But this is just a rough guess. One’s disposition to moral change is going to be influenced by more than just parenting style. It will also be influenced by genetic factors as well as other wider social factors. For instance, the moral beliefs and practices that prevail in a time of war or famine might be very different from those that prevail in a time of peace and plenty. This is adaptation is not necessarily linked to parenting style.

2. Ancient versus Modern Parenting Styles

You will notice that in the previous section I equivocated somewhat between parents and wider caregiving communities in some of my comments. That equivocation was deliberate but it needs to be cleared up now before it leads to unnecessary confusion.

Nowadays we think of parents (one or two adult individuals) as the primary caregivers for children. But, of course, it is rare for one or two individuals to be solely responsible for the care of children. Children are raised in communities, which consist of extended family members (aunts, uncles, grandparents), peers (friends, neighbours) and social institutions (schools, churches etc). It is these wider caregiving communities, and not just biological or adoptive parents, that raise children.

This prompts a reformulation of the question I asked at the outset. Instead of asking: does parenting style make a difference to a moral culture? It is probably more correct to ask: does caregiving style (where this includes what parents and wider caregiving communities do) make a difference to a moral culture?

This reformulation is important when it comes to understanding the claims made by Christen et al in their paper. Although they make comments about parenting style and, specifically, the role of mothers, in shaping moral culture, it’s pretty clear that they are focused on caregiving as a whole, and not just on what mothers and fathers might do.

So what argument do they make about caregiving styles? They draw a contrast between our ancestral evolved form of caregiving and modern caregiving. Like many psychologists and anthropologists, they assume that humans evolved in small hunter-gatherer bands. Some such bands still exist today and there are ethnographic records of such bands dating back a few centuries. Looking at such hunter-gatherer bands, a particular style of caregiving can be observed. Christen et al argue that this caregiving style is the original, evolved form of caregiving for human beings.

What are the distinctive features of this ancient caregiving style? In her previous work, Darcia Narvaez (one of the co-authors on the Christen et al paper) has enumerated its main features. Four are particularly important:

Affectionate Touch - Children are kept in close (skin to skin) contact with their mothers and breastfeed regularly, often up to the age of four.

Responsivity - Parents are available to respond to their children when they are in distress and regularly do so.

Free Play - Children are given lots of time to play on their own and with other children in a relatively free and open form, often including rough-and-tumble play.

Alloparenting and Social Support - Children are not just cared for by the parents or mothers but by wider social networks within the hunter-gatherer band.

 

These features are found across most hunter-gatherer bands and, according to Narvaez, they characterise the evolved developmental niche (or EDN) for human beings. In other words, it is to this caregiving style that human development, particularly brain development, has been adapted. Narvaez’s work focuses a lot on the role of mothers and maternal touch within this EDN, but, as can be seen from the list of features just given, this style of caregiving is about more than just mothers. It’s also about the opportunities for free play and social interaction that are given to children.

This ancestral and evolved form of caregiving is contrasted with the modern style of caregiving, particularly the one that has emerged in the USA and that can also be found, to perhaps a lesser extent, in other developed countries. Having read through a few papers by Narvaez on caregiving styles, I’m still not entirely sure what the key features of the modern style of caregiving are, but it seems that they are best understood as the opposite of the evolved style. So, in other words, modern parenting seems to be characterised by less affectionate touch (less, close, physical bonding with mothers in particular), less parental responsivity (children left to cry or left in daycare), less free play and a more isolated parenting style (single or dual parents do the majority of caregiving with some, distant, institutional support). There is also a greater use of punishment and coercion in this form of parenting to ensure that children adopt certain behavioural norms. This seems to be absent from the evolved caregiving style.

What effect does all this have on moral culture? The argument from Christen et al (and supported by Narvaez’s empirical work) is that it is having a noticeable, and arguably negative effect on our moral culture. They claim that the ancestral caregiving style supports a prosocial, ‘engagement ethics’. Children are taught to share and care for other members of their groups. They are taught to have empathy for others; to see themselves as members of supportive communities and not as isolated individuals. They often then look on resources as shared communal property, not something that just belongs to certain people. Contrariwise, the modern caregiving style supports a more isolationist, ‘self-protection’ ethics. Children are taught to see the outside world, including others, as a source of potential threats to their existence. They are taught resources are subject to property rights (some stuff is ‘mine’ and other stuff is not) and not communal property.

There’s more, but that’s the gist of the thesis: the contrasts in caregiving style support very different moral cultures. And one of them, according to Christen et al, is ‘aberrant’ and contrary to human flourishing. No prizes for guessing which one.

Christen et al don’t get into this in their paper but it struck me that what they argue lends support to the thesis developed by Jason Manning and Bradley Campbell in their work on ‘Victimhood culture’. Very roughly, Manning and Campbell argue that we (in the West, specifically the USA) are undergoing a shift in our underlying moral culture. As noted above, we have previously shifted from an honour-based culture to a dignity-based culture. The key contrast between those cultures had to do with how we perceived the moral worth of the individual and the rights and responsibilities that flowed from this perception. In an honour-based culture, worth is something you must gain and maintain: if it is under threat, you have the right to protect your own honour. In a dignity-based culture, everyone has equal moral worth and the institutions of power respect and protect this. Individuals are then free to live their lives as they see fit, with some moral limits involving respect to others. In a victimhood culture, moral worth is, once more, under unstable and under threat (everyone is a potential or actual victim of such a threat). In this case, moral worth is linked to identity and authenticity. Unlike an honour-based culture, however, being a victim in this culture actually adds to your respect. Furthermore, you don’t protect yourself from threats; you look, instead, to authorities (parents, schools, states) to do so. Caregiving style, according to Manning and Campbell, has a role to play in shaping this culture, by setting a certain conception of self-worth and highlighting threats and risks. I think you can see how the protectionist style of parenting could support this.

3. Some Critical Reflections

A large portion of this argument rings true to me. I certainly think that there are aspects of modern parenting, particularly of the helicopter style, that support a self-protectionist ethics. As I have noted before, many parents in my extended peer group (middle-class, college-educated, living in economically developed countries) are highly protective, competitive and interventionist when it comes to their children. They shield them from threats, try to optimise their education and health, while also maintaining full time careers themselves (careers that often mean they are separated from their children for large portions of the day/week). My sense is that this style of parenting induces a lot of anxiety among both parents and children.

This is not to condemn those parents or to suggest that I am immune from these practices myself. I’m not. It’s just what I see in my peer group. This chimes with what Christen et al say about modern parenting. Furthermore, and more significantly, Darcia Narvaez has, in her empirical work, amassed a reasonable amount of evidence to suggest that we can trace the effects of this parenting style through a child’s cognitive and moral development. I recommend reading it and reviewing what she and her collaborators have to say.

Still, I have some worries about the thesis. First, I worry about the over-moralisation of caregiving styles. As noted, it’s very clear from the way they present it, that Christen et al think that modern caregiving style is morally defective or inferior when compared to evolved caregiving style. This argument has a stench of the naturalistic fallacy to me: because we evolved to develop in that caregiving niche that is the one that is optimal, morally speaking, for us. That may be true, and there are ways to make this claim more plausible and remove the whiff of naturalistic fallacy from it, but there are also reasons to think that modern parenting might be a morally appropriate response to changes in social and technological development (Christen et al allude to this themselves).

The modern world is, after all, orders of magnitude more socially and technically complex than what you find in small hunter-gatherer bands. This means that there more opportunities for people in the modern world (more things to do, people to interact with, experiences to have etc) but this comes with increased threats and risks to people’s welfare too (threats from other people, from the choices they might make, and from the technological world that we now inhabit). Being more protective in such a world might be appropriate. Furthermore, I think you could argue that modern parenting represents a reasonable tradeoff between different values and interests. Parents value having rewarding careers and families, children need to be provided for with respect to their education and future. Given these values and interests, more parental investment in work, more reliance on daycare and more separation from children, may be morally preferable. At the very least, if it is morally sub-optimal, it’s not something that parents themselves can easily correct without institutional and legal support (more paid parental leave, cheaper property and education costs and so on).

To be clear, it’s not that I am a huge fan of modern caregiving style. I’m not. I’ve written previously that I think parents can be too protective and too invested in trying to control their children’s development. But I don’t think we can morally condemn it all that easily.

This brings me to a second critical point. I am somewhat sceptical that we can easily delineate between modern and evolved caregiving styles. The presentation given above, and in Christen et al’s paper, draws a sharp contrast between the two styles. We adopt the modern style; others adopt the evolved style. But I imagine, in practice, that the lines are more blurry and the contrast less obvious. It varies from culture to culture, and locale to locale. Speaking from my own experience of parenting, I find that many of the features of the evolved style of caregiving are present, actively encouraged and supported (perhaps to an excessive degree). For example, breastfeeding and affectionate touch have been both advocated for and normalised for my daughter. Furthermore, we have lots of social support from wider family when it comes to caring for her. The COVID-19 pandemic has unfortunately impacted on this, but it has its advantages too — the main one being that both her parents have been far more involved in her day-to-day care than might otherwise have been the case.

I may just be lucky but the point here is not that my anecdotal experience represents the norm but that caregiving styles are probably not so black-and-white. If that’s true, the effects on moral culture may be more subtle and nuanced than we would expect.

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A Taxonomy of Possible Moral Changes

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I’ve recently been studying the history of moral change and moral revolution. The purpose of this has been to get a handle on the mechanisms of moral change over time and to use this to predict and plan for future moral changes. I’ve written a lot of half-baked thoughts about this over the past 18 months or so. In this article, I want to collect some of those thoughts together and present a taxonomy of the types of moral change that can occur in human societies.

This will, necessarily, be an abstract discussion. I’m not going to be focusing on specific examples of moral change over time; I’m going to be focusing on the high level forms of moral change instead. Nevertheless, I will provide some concrete examples as I go along. These examples are not always intended to be historically accurate or even plausible. They are just intended to illustrate a relevant concept or idea.

1. The Elements of Moral System

I’m something of a traditionalist when it comes to understanding human morality. I agree with the majority of moral philosophers in stipulating that there are two main branches to any moral system: an axiological branch and a deontological branch.

The axiological branch is concerned with values. What is good? What is bad? What is important? What is worth promoting and celebrating? And so on. There is both a positive (the good) and negative (the bad) dimension to value. Values comes in degrees: things can be more or less good or more or less bad. This means that we often try to rank the relative value of different things. That said, value propositions (statements claiming that something or other is good or bad) are essentially binary in nature: something is either on the good side of the ledger or it is on the bad side. There may be some strictly neutral things: things that are neither good nor bad, but I suspect true neutrality is rare.

Values can attach to people, events and states of affairs. For example, we can say that pleasure (a subjective state) is good; one person helping another (an event) is good; and that Martin Luther King (a person) was good. Values can also be either intrinsic or instrumental in form. Intrinsic values are valuable in and of themselves (irrespective of their consequences or extrinsic properties). Instrumental values are things that are valuable because of their consequences or extrinsic properties. Pleasure is said to be the quintessential example of something that is intrinsically good; pain is the quintessential example of something that is intrinsically bad. But sometimes pleasure can be instrumentally bad (e.g. where it leads to greater suffering in the long run) and pain can be instrumentally good (e.g. where it leads to greater pleasure in the future). Many of the things that we value we value for both intrinsic and instrumental reasons. For example, loving intimate relationships are often thought to be intrinsically valuable, but they are also alleged to have an number of instrumental benefits (financial security, personal health and well-being etc).

The deontological branch of morality is concerned with the rightness or wrongness of human action. The terminology may be somewhat confusing. The deontological branch of a moral system is not synonymous with deontology as a general normative theory. Deontology as a normative theory is associated with the claim that we ought to do certain things irrespective of their consequences (i.e. that we have relatively fixed duties). It is usually contrasted with a consequentialist normative theory. The deontological branch of a moral system is more general and less prescriptive than that. It is concerned with answering questions such as: What is permissible? What is forbidden? What is obligatory? And so on.

Unlike value propositions, deontic propositions come in more than two flavours. Indeed, deontic logic is highly complex and multivariate. For what it is worth, I think there are essentially four flavours of deontic proposition:

• X is forbidden (i.e. you ought not to do X)

• X is permissible (i.e. you can do X but you are not obliged to do so)

• X is obligatory (i.e. you ought to do X)

• X is supererogatory (i.e. X is a really good thing and is above and beyond the call of duty)

I know there are others that think there are other forms of deontic proposition (e.g. that something can be omissible and not just permissible), but this four-flavour view seems to cover most of the relevant ground.

Unlike values, deontic properties attach to actions by people, and not to people themselves nor to general events or states of affairs. We can say that Martin Luther King was a good person, but we cannot say that he was a forbidden or obligatory person. That wouldn’t make sense. We can, however, say that his leading the march on Washington was permissible (perhaps even supererogatory). The deontological branch of morality is often complex and messy because obligations can sometimes conflict. Say you promised two people that you would meet them at the same time on the same day, but in different locations. Technically, we might say that you are obliged to meet them both, but practically speaking it is impossible for you to satisfy both obligations. How can we resolve such conflicts? Is this simply a dilemma that cannot be resolved? Much ink has been spilled over these matters but it would be a distraction to get into them now. The important point is that, like values, deontic classifications often need to be ranked relative to one another, particularly when it comes to obligations. We need to know if one obligation ranks higher than another and so on.

I believe that the axiological and deontological branches are closely related to one another, but in an asymmetrical way. I believe that our values play a fundamental role in shaping what we think is right or wrong. Very roughly, I believe that we are permitted and perhaps obliged to perform actions that produce or honour or celebrate good people, events and states of affairs; we are forbidden from performing actions that produce, honour or celebrate bad people, events and states of affairs. This understanding of the relationship between axiology and deontology may, however, be controversial, at least from a causal perspective. It’s possible, given what we know about human psychology, that what we are permitted (and able) to do has an impact on what we think is valuable. Indeed, I suspect changes in social behaviour often feedback into changes in societal values. So it is perhaps best to think the relationship I just outlined as a logical one, not a sociological or behavioural one.

2. The Types of Moral Change

In any event, given that there are these two branches to morality, it follows that there are two main types of moral change: axiological change (i.e. changes in values) and deontological change (i.e. changes in what we think is right and wrong). Let’s consider, in slightly more detail, these two possible forms of axiological and deontological change.

Axiological change is the most straightforward, at least from a conceptual perspective. As mentioned earlier, values attach to persons, events and states of affairs. Most human societies have identified a class of things that they think are good and a class of things they think are bad. For example, pleasure, education, friendship, loyalty, democracy, freedom, responsibility (etc) are all widely classed as good; pain, ignorance, isolation, treachery, autocracy, slavery and recklessness (etc) are commonly classed as bad. (Yes, I know, there are lots of nuances and variations here). Within these respective classes of good and bad things, we often try to rank and prioritise the respective items. They might decide that freedom is more valuable than pleasure (or vice versa). Sometimes such rankings may seem unfeasible or illogical. People might just throw their hands up and say all these things are equally important or not capable of being ranked relative to one another. That’s fine, but I see that strong value pluralism as a kind of ranking in itself (a neutral or flat ranking). Furthermore, I suspect that most people, in practice, rank their values even if this ranking is only implicit and only applies for certain practical purposes. I suspect that strong value pluralism is the preserve of philosophers alone. This is important insofar as the study of moral change, as I conceive it, is concerned with how social moral beliefs and practices change over time and not with changes in the ideal form of morality that is commonly studied by philosophers).

Anyway, with all this in mind, it seems to me that there are three basic forms of axiological change:

Axiological Additions: New people, events or states of affair get added to the set of values and given a classification and ranking. I suspect this arises primarily from social and technical innovation. For example, when social media was invented people started to evaluate it and so started to classify it as either a good or bad thing and assign it some sort of ranking.

 

Axiological Reprioritisations: There is a change in how people rank the relative value of something within the set of good or bad things. For example, with the rise of the knowledge economy, literacy and numeracy, which were always values to some extent, became more valuable and more important than they were in an agricultural or manufacturing economy. People may also, of course, decide that things we thought were better are worse or worth the same as other things.

 

Axiological Reclassifications: People switch something from the set of good things to the set of bad things. For example, where once upon time some people believed that female servility and passivity was a good thing, many (though sadly not all) people now believe it is a bad thing. You can probably think of reclassifications as an extreme form of reprioritisation.

 

You may wonder why I don’t include subtractions among the possible forms of moral change. If something can be added to the set of values can it not also be taken away? I’m not convinced of this. I tend to think that humans exhaustively evaluate all people, events and states of affairs that they encounter. If it exists and people are aware of it, it probably has some value classification and ranking. That said, it’s possible that some evaluations are highly uncertain or unstable or neutral. For example, we might have no stable or agreed upon classification or ranking for new innovations like lab-grown meat or genetically engineered offspring (though there are lots of strong opinions out there).

What about deontological changes? These are trickier to taxonomise. If we grant that there are four basic forms of deontic proposition (forbidden, permissible, obligatory and supererogatory) then it is possible for any existing deontic belief or practice to shift from one of those forms to another. For example, if we currently believe that giving lots of money to charity is supererogatory, we may, in the future, come to believe that it is forbidden, merely permissible or obligatory. Likewise, although most people now believe that it is permissible to eat meat, it is possible (in principle) that we may in the future believe that it is forbidden, obligatory or supererogatory. It may be hard to believe in some of these possible moral changes right now but they are, in principle, possible. Furthermore, radical deontological shifts have happened in human history. As recently as 50 years ago, many people thought homosexual sex (never mind marriage) was forbidden. Nowadays, most people think it is permissible.

Anyway, if we accept that there are these four types of deontic proposition, and that any existing deontic proposition can, in principle, shift to one of the other three types, we can use some simple combinatorics to work out the total number of possible deontological changes. There are 12 of them (3 for each of the 4 types of deontic proposition).

But, of course, the possible forms of deontological change don’t end there. New technologies and new social arrangements make new forms of action and interaction possible. These new actions will require some deontic classification. For example, the creation of the internet and social media has made cyberbullying a new possible form of human action. We need to figure out how to classify that action. Is it forbidden in the same way that physical bullying is forbidden? Is it more or less serious a form of wrongdoing? I’ve spend a lot of my academic career looking at the new forms of action made possible by technology and figuring out how it should be classified from a deontic perspective. Consider, for example, my work on virtual sexual assault and robotic rape. It’s possible, of course, that new actions don’t require new deontic rules. They may just be subsumed under a old deontic rule. For example, the deontic proposition stating that you ought not bully people could be expanded to include cyberbullying (a process some people refer to as semantic deepening, i.e. an existing concept is found to have a broader scope of application). But either way, the new actions requires some classification.

Finally, given that some deontic claims have to be ranked relative to one another (e.g. which obligation takes priority in the case of limited time and resources), it is also possible for deontological change to take place via a re-ranking or re-prioritisation of deontic claims. For instance, in a time of global pandemic, the obligation to prevent the spread of disease might take priority over the obligation to maintain one’s social commitments.

In short, even though it is a more complex phenomenon, it seems that there are three main types of deontological change and they line up with the three main types of axiological change:

Deontic Additions: New actions become possible and must be assigned to one of the four types of deontic status: obligatory, permitted, forbidden, supererogatory. For example, cyberbullying is assigned the status of being forbidden.

 

Deontic Reprioritisations: The relative ranking of different deontic claims is changed. For example, preventing the spread of disease takes priority over our usual social obligations in the time of a global pandemic.

 

Deontic Reclassifications: An action that was once classified as forbidden/obligatory/permitted/supererogatory is reclassified and assigned one of the other deontic statuses. For example, slavery was once permissible but it is now forbidden. In principle, deontic reclassifications can take 12 different forms.

 

The diagram below summarises the taxonomy of possible moral changes.

I hope this taxonomy of possible moral changes is useful. It may seem a little obvious in retrospect (now that you’ve read through this explanation) but when you are thinking about moral change in the abstract it can seem like an intimidatingly diverse phenomenon. It’s useful to put some limits on its possible forms.

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