Taking Stock: A Comparison and a Note on Defeasibility

In discussing Korsgaard’s and Herman’s attempts to escape the Trilemma and meet the Particularist Challenge, we discovered many structural similarities between their accounts: both appeal to the idea that, despite being universally valid, principles of duty are (or contain) defeasible principles and both end up with views that are not entirely consistent. More specifically, they both commit themselves to the claim that certain actions both do and do not violate the Categorical Imperative.133 Moreover, in

each case, the inconsistency is concealed. In Korsgaard’s account, the inconsistency is inconspicuous, in part, because the discussion is conducted on a metaethical level

130 _{Why is it overcomplicated? As my discussion has brought out, acting on moral grounds entails that}

one is doing something permissible or obligatory, but it is, in fact, more demanding than that (see fn. 119). Hence, in order to explain why an action has the deontic status that it has, we do not need to refer to whether the agent has a good character or will, which goes beyond the question of whether they did what they ought to have done in this case.

131 _{If they do not, if they are hedged rather than unhedged principles, then the worry would be a dif-}

ferent one, namely that the hedging clause “unless there are defeaters” seems to be the kind of hedg- ing clause that renders the principle towhich it is attached trivially true. For a discussion of this objec- tion see e.g. McKeever and Ridge 2006: 121-3. Note that there is actually some evidence that Herman is advocating unhedged principles with a long list of unless-clauses or a fine print. For, like Korsgaard, she tries to distinguish between parts of principles that lie in the foreground and parts that lie in the background (1993: 144-5). To the extent that she does, she exposes herself to the criticism that we levelled against the Implicit Awareness Response in sect. 2.3.2.

132 _{It could be argued that there is an asymmetry nonetheless. After all, such principles do honour the}

idea that certain features have their deontic import by default and that this import can be defeated. This is true, but they honour it in name only. To say that defeaters are absent is to say that the case is a standard case; to say that defeaters are present is to say that the case is an exceptional case – but if, having said that, one goes on to treat their presence and absence symmetrically, one hasn’t really done justice to the difference between them.

133 _{In Korsgaard’s account, this is true of actions from provisionally universal principles: they are not}

supposed to be morally problematic, but in the end they must be. In Herman’s account, this is true of impermissible actions that are based on moral grounds: insofar as they are impermissible, they must be violations of the Categorical Imperative, but insofar as they are based on moral grounds, they can- not be violations – at least on her official understanding of the notion of moral grounds, i.e. the Moral-

and, in part, because de factofalse moral views are treated as if they were merely fallible or incomplete. In Herman’s account, the inconsistency is inconspicuous because her use of the distinction between moral and self-interested grounds is ambiguous in a way that evokes two different conceptions of morality. In both cases, we suggested that the endeavour to hold together two elements that are ultimately incompatible is nonetheless understandable, because, given the inability of any one element to satisfy all three desiderata on its own, this endeavour can be understood as an attempt to divide labour. That such a division of labour is indeed what Korsgaard’s and Her- man’s accounts would require was confirmed by our unsuccessful attempts to defend them. We saw that abandoning Universality in its original form (2.3.1, 3.3.1) would saddle them with views that cannot make sense of the objectivity of our moral judg- ments (a worry to which we shall return in ch. 3), whereas abandoning the element that is in contradiction with Universality would leave them impaled on the Fine Print horn of the Trilemma.

In the following chapter, I will argue for a response to the Particularist Challenge that shares an important feature with Korsgaard’s and Herman’s accounts: like theirs, mine is an account of our principles of duty as both universal and defeasible. For this reason, I want to conclude the present chapter with a brief note on the two concep- tions of defeasibility discussed above. Philosophers’ reasons for presenting certain rules, claims or statuses as defeasible are many, and thinking about why someone chooses to appeal to defeasibility is usually a good guide to what they mean by it. One such reason is the wish to highlight the fallibility of our judgments, beliefs and theories, the wish to do justice to the common sense idea that what we take to be true at a given time may well turn out to be false later. Which conception of defeasi- bility is appropriate for this purpose? Think about a scientific hypothesis: a scientific hypothesis is defeasible in the sense that there might be counterexamples that dis- prove it. When such a counterexample is found, we have to admit that our hypothe- sis was wrong and hence reject or revise it. Korsgaard’s remarks on the appropriate reaction to an exception (namely, going back and revising the original principle) sug- gest that this is the conception that she has in mind. On reflection, this is surprising, however. After all, her aim is not to highlight the fallibility of our moral judgments but rather to accommodate the idea the deontic purport of features varies with cir- cumstances (of course, we can be mistaken about how they vary as well, but that is

not the point). Herman’s choice is similarly curious. In sketching the problem and discussing rival accounts, she is very clear that her concern is with how to arrive at principles that mention all and only morally relevant features, given how that varies with circumstances (1993: 132-46). But the conception of defeasibility that her solu- tion draws on is a conception that we would usually associate with a different aim. Hers is a conception of pro tanto defeasibility, according to which the default deon- tic import of a feature is defeasible not in the sense that it varies with or depends on circumstances, but in the sense that it can be outweighed by the default import of other features. This conception is, in my view, a more natural choice for someone who aims to accommodate the phenomena discussed in ch. 1, sect. 3, e.g. the idea that an obligation retains its force and leaves a residue even when it is defeated and that, therefore, there are reasons for regret.

The moral of the above story is this: if we are to give an account of defeasible principles of duty, we need to make sure that it is fit for purpose. In the following chapter, I hope to develop such an account.134

134 _{Of course, my account of defeasible principles is not the only one that was ever designed with a}

view to accommodating the idea that the normative purport of features varies with circumstances. Another example is the account presented by H.L.A. Hart in “The Ascription of Responsibilities and Rights”. In this paper, Hart argues that “there are characteristics of legal concepts which make it often absurd to use in connection with them the language of necessary and sufficient conditions” (1948: 173). Instead, he argues, we should distinguish between initial conditions and defeaters. Under normal circumstances, the satisfaction of the initial conditions is sufficient for the applicability of the relevant legal concept; under exceptional circumstances, in which defeaters “bring[ ] the case under some rec- ognized head of exception” (Hart 1948: 174), it is not. We can see how this account is fit for purpose.