Against Consequentialism



As should be expected from the positions already argued for in my previous thread about commensurablism, my general position on the methods of justice is critical liberalism. That is to say, I hold that rather than by default rejecting all intentions until reasons can be found to justify them, all intentions should be considered justified enough by default to be tentatively held until reasons can be found to reject them.

It is only when one wishes to assert one intention over another that reasons need to be presented to show the other intention to be in some way wrong, and that alone does not in turn show that the proposed alternative is the one unique correct alternative, only that some alternative is needed, with the one put forth being merely one possibility.

In this manner, achieving justice is not, on my account, about starting from a state of everything being prohibited by default and building up to grander and grander systems of obligations for how to live the good life – the totalitarian view that every behavior either must be or must not be, everything either prohibited or obligatory – but rather about starting with limitless freedom to act or not to act, nothing either prohibited or obligatory, and then embarking on a never-ending process of narrowing down the range of permissible actions by eliminating those that can be shown to be bad. This deontological view is more generally known as liberalism or libertarianism, and it has been promoted by many, many philosophers dating back at the very least to John Locke.

Although I do consider ends to be important, and have done an entire previous thread on purpose about that subject, my overall ethical view is technically deontological in the more usual sense, as in opposite the view called consequentialism, which holds that the ends justify the means, because I also consider means to be independently important, and not merely justified by the ends that come about because of them. I consider consequentialism to be the prescriptive analogue of confirmationism, which I have already argued against in my previous thread on epistemology.

Just as confirmationism holds that true implications of a belief can positively justify that belief, so too consequentialism holds that good consequences of an intended action can positively justify that action or intention. And just as I hold that beliefs do not need positive justification, but rather only need to hold up to negative criticism, and in fact can never be positively justified but only tentatively survive such criticism, so too I hold to that principle for intentions as well.

Consequences do matter, but only because bad consequences can show an intended action to be bad, not because they can positively justify it as good. Intentions can only be shown bad, or not yet shown bad; never positively shown good. Because of this, nobody is ever positively obliged to action, though they can be obliged to inaction: if you are doing nothing, then you are doing nothing wrong, even though to do something instead of nothing might still be better than merely not-wrong. In other words, inaction is always permissible, even though actions may still be omissibly good.

But this does not imply that all intentions not yet shown bad are equal. Different intentions, none of them yet shown bad, can still be more or less likely than each other to bring about better consequences. When it comes to practical decision-making, it is often most reasonable to act on the intentions that have such a greater probability of doing more good than bad. But it is not deontologically wrong to intend something that is merely risky but not actually shown bad yet.

(So, for example, it is never morally necessary for someone to be licensed by some authority, or in other words seek out preemptive permission, to do some risky activity, such that they would deserve punishment merely for not asking such permission first, rather than simply for any harm they might end up causing whether or not they asked permission first).

And it is in some ways sometimes better to adopt such risky intentions, because intentions that put more of value into action, while thereby exposing all of that value to greater risk, can also leverage it for greater returns – or conversely put, to never bet anything at all leaves no opportunity to ever win anything either. And it is only by taking such risks, sticking our necks out and risking doing badly, that we can hope to better discover which actions yield better returns than others and so maximize the value that we create, the good that we do.

In general, I hold, we should tentatively adopt more risky intentions whenever we can afford to lose, but when we cannot afford that risk, we should act in accordance with those intentions that have the greatest probability of doing the most good. (For example, someone who can afford to start many small business ventures, most of which will likely fail but some of which may prove wildly successful, should do so, because otherwise such wildly successful new ventures will never come to be, and the whole world will miss out on what they would produce; but someone who cannot afford to fail at even one business venture should probably pour their efforts into working with some other already-proven business.)

On Efficiency

This notion of the value put on the line by different intentions dovetails into another prominent principle of intention-formation, which I consider analogous to the principle of parsimony in epistemology, what we might call the principle of efficiency, or perhaps the principle of economy. This principle simply states, rather uncontroversially, that if given multiple intentions or strategies or abstract models that all satisfy our appetites equally well, the one that requires the least investment of anything of value – whether that be capital, labor, whatever – should be preferred.

Likewise, just as in a previous thread I argued for an application of the principle of parsimony to give a normative grounding to Thomas Kuhn's description of the structure of scientific revolutions, so too I think this principle of efficiency can give a normative grounding to a structure of practical revolutions.

The entire point of coming up with strategies, abstract models to intend, is to have an easier, less costly means of achieving our ends than just attending to every single appetite on an individual basis. So this structure of practical revolutions would proceed from a period analogous to Kuhn's pre-science, wherein no single strategy has yet been devised that can account for all of the appetites at stake, and so there is no better, easier, simpler, more efficient way of satisfying all of them than many different strategies used in a patchwork to account for each of the disjointed areas of concern.

Once a strategy is devised that can account for all of those appetites, that then becomes the better, easier, simpler, more efficient way of achieving it all, and so the patchwork of other strategies are rationally, pragmatically discarded in favor of it. There may still be other strategies that also account for all of those appetites, and so are equally permissible, but unless they are in turn even more efficient, there is no reason to use them instead, and pragmatic reason not to.

But as new appetites are found that cannot be satisfied by the existing paradigmatic strategy, the best way to satisfy all the appetites at stake begins to grow again into an unwieldy patchwork of the main paradigmatic strategy and all of the exceptions and special cases needed to be made and used to handle the anomalous cases, until at some point that patchwork becomes so complex that other competing strategies, previously rejected as less efficient than the paradigmatic one, are now more efficient than the old paradigm plus all of its exceptions, and it becomes rational to adopt the best of them instead of trying to cling to the old paradigm and its mess of special exceptions.

On Types of Justice

For most of the above I have been implicitly talking about what philosophers call "distributive justice" and "imperfect duties", though most of what I've said applies also to the other kinds of justice and duties I am about to discuss as well. Distributive justice stands in contrast to procedural justice, while imperfect duties stand in contrast to perfect duties.

Procedural justice is about adherence to strict, transactional, rules of behavior, or procedures, while distributive justice is about how value ends up distributed among people as a consequence of whatever behavior. I hold that distinction to be analogous to the epistemological distinction between analytic and synthetic knowledge.

Both procedural justice and analytic knowledge are simply about following the correct steps in sequence from a given starting point to whatever conclusion they may imply, analytic knowledge following just from the assigned meaning of words and procedural justice following just from the assigned rights that who has over what (which I analyze as identical to the concept of ownership, i.e. to have rights over something is what it means to own it).

Likewise both distributive justice and synthetic knowledge are about the the experience of the world, synthetic knowledge about the sensory or descriptive experience of the world and distributive justice about the appetitive or prescriptive experience of the world.

Meanwhile the distinction between perfect and imperfect duties, which was introduced by Immanuel Kant, is roughly the distinction between specific things that we are obliged to always do, and general ends that we ought to strive for but admit of multiple possible means of realization.

I reckon that distinction, in turn, to be analogous to the epistemological distinction between a priori and a posteriori knowledge, because just as a priori knowledge comes directly from within one's own mind (concerning the kinds of things that can coherently be believed) while a posteriori knowledge comes from the outside world, so too perfect duties come directly from within one's own will (concerning the kinds of things that can coherently be intended) while imperfect duties comes from the outside world.



Many liberal or libertarian political philosophers have at least tacitly treated these distinctions as largely synonymous, with procedural justice, matters concerning the direct actions of people upon each other and their property, being the only things about which anyone has any perfect duties, on their accounts; and conversely, distributive justice, matters concerning who receives what value in the end, being at most subject to imperfect duties, if even that.

But I argue that, just as Immanuel Kant showed that the distinction between analytic and synthetic knowledge was orthogonal to the distinction beween a priori and a posteriori knowledge, so too the distinction between procedural and distributive justice is orthogonal to the distinction between perfect and imperfect duties.

At the intersection of matters of distributive justice and perfect duties lies the moral analogue of the synthetic a priori knowledge that Kant introduced. While that synthetic a priori knowledge is about imagining hypothetical things in the mind and exploring what sorts of things could even conceivably be imagined to be, this intersection of perfect duty and distributive justice is where I place the traditional moral concept of "The Golden Rule": if you cannot imagine it seeming acceptable to you for someone else to treat you some way, then you must find it morally unacceptable to treat anyone else that way. Kant's own Categorical Imperative ethical theory could plausibly be described as primarily concerning this category of justice, about what willings could conceivably be universalized.

This is very similar to but subtly distinct from the matter of property rights – of not acting upon something contrary to the will of its owner (including a person's body, which they necessarily own, i.e. necessarily have rights over), which lies in the traditional intersection of perfect duties and procedural justice – because it does not rely on any assignment of ownership, but only on experiential introspection; in much the same way that synthetic a priori knowledge is very similar to but subtly different from analytic a priori knowledge, in that it does not rely on any assignment of meaning to words, but only, again, on experiential introspection.

And of course, just as I hold there to be a category of analytic a posteriori knowledge as well, I also hold there to also be an intersection of procedural justice and imperfect duties as well, which is of utmost importance. For while distributive perfect duties are obligatory (as obligation tracks with perfect duty, and omissibility with imperfect duty), for that same reason of them being internal to the will (hence perfect duties), but not in terms of publicly established relationships of rights (hence distributive), they are not interpersonally relatable, and so are only a matter of private justice, not public society.

The only obligations that can be treated publicly are those phrased in terms of property with assigned ownership, procedural perfect duties; but those in turn depend on the procedural imperfect (and thus omissible) duties of assignment of such ownership.

On Distributive Justice

Just as, like many empiricists, I hold that synthetic a posteriori knowledge, empirical truth, is in a sense the primary kind of knowledge, so too like a good hedonist I also hold that distributive imperfect duties, hedonic goods, are in a sense the primary kind of justice, both in that they are the kind that we are most concerned about in trying to effectively achieve moral outcomes, and in that they are where we get the basic ideas of what seems good or bad that we can then employ introspectively ala "The Golden Rule" in distributive perfect duties.

Though distributive imperfect duties are the kind of greatest concern, being about our lived experience, it is only when we get to perfect duties that we can deal in clear-cut moral obligations, for while all matters of imperfect duty are omissible, which is what makes that duty imperfect, all perfect duty imputes moral obligation.

On Procedural Justice

When we then assign ownership of certain things to certain people, which is to say that the will of those people controls what it is permissible to do to or with those things, we get procedural matters of perfect duty, where we no longer need to actually do the imagining of what it would feel like to be another person being acted upon in some way, and can just deal in abstract claims. This is where we enter the realm of property rights, things that are right or wrong just in virtue of who owns what and what they do or don't want done with it, regardless of whether it actually inflicts hedonic suffering or not.

But this kind of justice in turn depends on another kind of imperfect duty, just as distributive perfect duties depend on distributive imperfect duties. Procedural perfect duty, justice in virtue of who owns what, depends on the assignment of ownership of the things in question, and that is not something that is itself a matter of perfect duty, but only imperfect duty. Nobody inherently owns anything but themselves; rather, sociopolitical communities arbitrarily assign ownership of property to people, and could assign it differently.

Initially, all property is owned by everyone, and in doing so effectively owned by no one; it is the division of the world into those people who own the property and those who don't that constitutes the assignment of ownership to it. People own what other people agree that they own, and so long as everyone involved agrees on who owns what, that is all that is necessary for that ownership to be legitimate, to conform to the procedural imperfect duties of who owns what.

But when people disagree about who rightly owns what, we must have some method of deciding who is correct, if we are to salvage the possibility of any procedural justice at all; for if, for example, two people each claim ownership of a tract of land and are each wanting to deny the other the use of it, they will find no agreement on who is morally in the right to do so because they disagree about who owns it and so who has any rights over it at all. Such a conflict could be resolved in a creative and cooperative way by dividing up the land into two parcels, one owned by each person, that would permit both people to get the use that they want out of it without hindering the other's use of it. Or the same property can have multiple owners, so long as the uses of the property by those multiple owners do not conflict in context.

But if no such cooperative resolution is to be found, and an answer must be found as to which party to the conflict actually has the correct claim to the property in question, I propose that that answer be found by looking back through the history of the property's usage until the most recent uncontested usage can be found: the most recent claim to ownership that was accepted by the entire community. That is then to be held as the correct assignment of ownership, the imperfect duty of this procedural matter, in much the same way that satisfying all appetites constitute the imperfect duty of distributive matters.

On Deontic Rights

From these two types of procedural justice, we can derive a set rights, which can be formulated in terms of obligations and their negations. Rights have been categorized, following the work of authors such as Wesley Newcomb Hohfeld, into four groups organized across two different distinctions: the distinction between active and passive rights (not to be confused with positive and negative rights; either an active or a passive right can be either positive or negative), and the distinction between first-order and second-order rights. Active first-order rights are also termed "liberties", while passive first-order rights are "claims", passive second-order rights are "immunities", and active second-order rights are "powers".

On Deontic Claims and Liberties

A liberty is something that you are not prohibited from doing. It is the negation of the obligation of a negation, and so it is equivalent to a permission. Something you have the liberty to do may nevertheless be bad, but you are not forbidden from doing so; it is an action that you are within your rights to do. A claim, conversely, is a limit on others' liberty: it is something that it is forbidden to deny you, which is just to say that it is obligatory. Per the deontological principles already spelled out above, I hold that people have maximal liberty, limited only by the claim to non-aggression: the only things forbidden to do are things that flatly contradict the will of the owner of the thing you are acting upon, such as the body of a person.

But there is in turn an exception to that claim: there is still liberty to contradict the will of the owner of the thing you are acting upon when that someone was already contradicting the will of the owner of the thing they were acting upon. There is a liberty to defend against aggression, which constitutes an exception to the claim to non-aggression: an aggressor cannot invoke the claim to non-aggression to bar you from acting upon him or his property as necessary to stop him from aggressing upon someone else, or to undo the effects of his aggression upon someone else.

For example, someone trying to punch you has no claim against you punching him as necessary to stop him from punching you; and someone who destroys something of yours has no claim against being forced to repair or replace it. But that qualifier "as necessary" is very important: unnecessary violence, in excess of what is necessary to prevent or reverse other violence, constitutes an act of aggression itself, no longer merely an exception to the claim to non-aggression.

On Deontic Powers and Immunities

That all depends, of course, on who rightfully owns what, which is where the second-order rights come in to play, which have to do with changing what is or isn't obligatory, by changing the assignment of ownership. A power is the liberty to do so, to change who has what rights, which I hold to be equivalent to changing who owns what, as ownership consists entirely of having rights over something.

An immunity, conversely, is a limit on others' power, just as a claim is a limit on others' liberty. Per the deontological principles already spelled out above, I hold that people have maximal immunity – nobody gets to change who has rights over what out from under them, things continue belonging to whoever they belonged to before – limited only by the power to contract, to mutually agree upon an exchange of rights (and consequently permissions and obligations), which power is how that ownership was initially assigned to begin with.

That power, in turn, has its own exception, in the reflexive case just as with the exception to the claim to non-aggression above: nobody has the power to agree to agree (or not) to any change of rights or ownership. That is to say, you have the power to waive specific claims, which is just to transfer away your exclusive ownership of things; and you have the power to waive specific liberties, which is just to take on obligations to do or not do things; but you do not have the power to waive your immunities, in other words to transfer away your exclusive power to change your first-order rights (by contract); and you do not have the power to waive your powers, in other words to take on obligations to permit or not permit things.

This limit invalidates certain kinds of contracts such as agreeing not to enter into other contracts (as in non-compete agreements), or agreeing to accept whatever terms the other party later dictates (as in selling oneself into slavery, or as in the "social contract" sometimes held to justify a state's right to rule), or agreeing to grant someone a temporary liberty upon certain conditions ("selling" someone the temporary use of your property, as in contracts of rent or interest; letting someone do something is not itself doing something). In short, the power to contract is limited to the simple trade of goods and services, and cannot create second-order obligations between people that place one person in a position of ongoing power over another person.

The implications of that limitation on rental contracts is especially important to my view on governance that I will discuss in a later thread; and the limitations on both slavery and rental contracts by the same principle is no coincidence, for just as vandalism is an abstraction of battery (the latter regarding one's body and the former regarding one's other property), and theft is an abstraction of abduction (the latter regarding one's body and the former regarding one's other property), I hold that rent is likewise an abstraction of slavery (again, the latter regarding one's body and the former regarding one's other property).

At first glance, one would think a maximally libertarian society would be one in which there were no claims at all (because every claim is a limit on someone else's liberty), and no powers at all (because powers at that point could only serve to increase claims, and so to limit liberties). But that would leave nobody with any claims against others using violence to establish authority in practice even if not in the abstract rules of justice, and no power to hold anybody to their promises either, making reliable cooperation nigh impossible. So it is necessary that liberties be limited at least by claims against such violence, and that people not be immune from the power to establish mutually agreed-upon obligations between each other in contracts.

But those claims and powers could themselves be abused, with those who violate the claim against such violence using that claim to protect themselves from those who would stop them, and those who would like for contracts not to require mutual agreement to leverage practical power over others to establish broader deontic power over them. So too those claims to property and powers to contract, which limit the unrestricted liberty and immunity that one would at first think would prevail in a maximally libertarian society, must themselves be limited as described above in order to better preserve that liberty.

But these rights really only establish side-constraints on action, laying out only the broadest boundaries of what is acceptable behavior. Within those broad boundaries, each party has much freedom to use the rest of the deontological principles laid out above to figure out to the best of their own individual ability what seems like the best course of action in accordance with their experience of the world. When multiple such parties come together to compare and contrast their experiences and mutually attempt to pursue goods together, building between themselves institutional justice in common for their whole society, entirely new principles are needed to see that that endeavor proves fruitful, which will be the topic of my next thread.

well thats alot to share all at once, lol, I thought I was long winded.

My first reaction is that you will get objections from legal positivists for advancing Kantian ideas of practical reason into justice. They will hold that there is no way for ethics to make a statement about what is legally right or wrong, and that it is only defined by what I think you could normative convention.

On your last post, rule utilitarianism defines social conventions which maximize happiness by sacrificing a small amount of liberty, for example, driving on one side of the road. If you consider the benefits of such conventions worthwhile, then 'a maximally libertarian society' might find many such conventions that change its emphasis from liberty to some other goal, which utilitarians call happiness but don't define. Legal positivists lay claim to laws restricting liberty in this manner as they derive legal positivism from the utilitarian method.

what is legally right or wrong — ernest meyer

At this point I'm not talking about law at all, but only about ethics. There is a purely ethical sense of "justice" that's logically prior to the legal sense of the word.

:up:

well Ill need to make a major change in my brain to think about that more, Id been thinking about the philosophy of science for the last month, which has become an increasingly depressing topic since Trump took power, and I am ready for a change. lol.

On Distributive Justice

This one was so interesting. I never heard of this topic until today. Another new concept I learn about law philosophy. Thanks for sharing and explaining it :up:

Glad to share. :-)