Antonin Scalia and Derek Parfit: The Limit of Rules

It is interesting how a potential insight might come from the order and timing with which one reads a pair of articles.

In my last post, I mentioned Antonio Scalia’s article on “The Rule of Law and the Law of Rules.” It mentioned two important facts about rules:

(1) the usefulness of general rules applicable to a wide range of circumstances rules in making the application of laws predictable, and

(2) the limitation of rules in that they will never be able to apply to every imaginable circumstance.

Today, I read a review of Derek Parfit’s “On What Matters” - recalling some things that Parfit had said in other writings.

I am inclined to read Parfit as an intuitionist who holds that certain propositions describe intrinsically valuable actions. These are “rules” in a sense-descriptions regarding what to do if one wants to do that which fulfills some intrinsic “ought”.

At the same time, Parfit was famous for his ability to come up with thought experiments that challenged the application of those rules.

In short, observing Parfit’s attempts to discover what is morally right and wrong was surprisingly familiar to what Scalia described as the judge’s task of discovering what is legally right and wrong.

The difference is that Scalia was well aware of the fact that he was dealing with human constructions built (roughly) to serve human ends, and Parfit thought he was dealing with the discovery of non-natural properties that existed in nature itself. Consequently, Parfit saw these far corners where the rules did not fit as philosophical puzzles (as did many of the philosophers he interacted with), while Scalia accepted them as a fact of life.

I would hold that Scalia had the better view of the matter.

We have invented morality to serve a useful purpose in the vast majority of every-day occurrences in our life. Like the law, we did not build morality to handle every conceivable situation. When people test their moral intuitions in examples that have little or nothing to do with the every-day decisions that we have designed morality for, then they are applying moral concepts where those concepts do not fit.

If an actual life enters one of these dark corners where morality does not apply, she has to make it up as she goes along. Judges work the same way whenever they confront a case where the law provides no clear guide. He has to say something, so he presents the best decision that he can - recognizing that he is not actually applying the law but creating it. There is nothing else for him to do - he has to say something.

The point is that we can come up with perhaps an infinite set of imaginary settings where morality provides no clear answer. The proper way to think of these is not to think that morality must be providing a clear answer that we could discover if we understood morality correctly. The proper way to look at it is that we have built morality to give us the best answers in the cases we regularly encounter, and it has nothing to say about these bizarre never-actually-encountered cases that the philosopher can imagine.