Jurisprudence Assignment One

Jurisprudence

Assignment #1

What should be the ultimate normative criterion? Should there be one such criterion or should there be several?

Let us start by designating that which a normative criterion is supposed to point us towards as ‘the good’. That is, for all x such that an adequate normative criterion or set of criteria points us towards x, x is ‘good’. Now, the good is spoken of in many ways; for the purposes of this epigraph, I will assume that there are only two. Some x, assumed to be good, may be good either in itself, or merely instrumentally. But nothing is described to be good merely because it is useful; whether or not it is good depends on whether the end to which it is put is itself good. For example, having an organized train schedule is useful. But organizing train schedules so as to be more efficient in transporting Jews to their deaths is not good.

I do not mean by this to criticize utilitarianism directly. Most forms of utilitarianism escape the proof above. They do so because they define the useful as useful towards some end; the end of human happiness. Therefore, since human happiness may be assumed to be a good, the form of utility measured by utilitarianism is itself the means to a good end.

But can this ‘happiness’ proposed by utilitarians be appropriate as ‘the good’? Let us assume for the sake of argument that happiness refers to ‘feeling good’. Then we can ask the question whether all actions which make us feel good are themselves good. This is clearly not the case; the utilitarian will object that they meant something like ‘average human happiness’. Leaving aside the question of whether such a res can be said to exist, are all actions which tend to increase average human happiness good? Consider the following thought experiment: Professor X builds a box, which makes everyone ecstatically happy, while providing sufficient sustenance such that they would never have to leave the box. Would it be good to build enough boxes for everyone and force them into those boxes? Of course not, even though it would certainly increase average human happiness. Therefore, happiness cannot simply mean ‘feeling good’. But what else can it mean?

To avoid ‘happiness box’ difficulties, happiness must somehow be tied into human nature; it must be something like what Aristotle called eudaimonia. So good actions will be those that tend to increase human happiness, where happiness means something more like flourishing. Is this sufficient to give us a formula for determining which actions are right actions? No. In the first place, we lack a sufficiently robust knowledge of human nature to determine which actions would allow that nature to flourish. Our consciousness is not transparent. In the second place, we lack a sufficiently robust understanding of human interactions to determine which actions are likely to encourage flourishing in others.

Does this mean that all ethics is unknowable? Yes and no. Ethics is unknowable in the sense that we never have the final word on the subject, and there is no single criterion, be it utility or fairness, that we can use to determine whether an action is ‘ethical’. However, we know something about ethics; one could say we have an intuitive sense about the matter. And so when we ask about an action, “Is this action good?” we look at the action and see whether, as it seems to us, is it fair? Does it make more people better off than it harms? Is it virtuous? Does it follow a universalizable maxim?

It may be objected that there is no way to resolve a dispute between these different norms. So be it – I would be the last person to attempt to impose a lexical ordering here. In general, we can feel our way around the relevant ethical disputes well enough in practical life that it doesn’t matter. And when we are judging the actions of others, such an impenetrable epistemological haze hopefully gives us some humility.