A Plea for the Moral Sciences

The University of Cambridge used to have a Faculty of Moral Sciences. It was originally set up in contrast to the Faculty of Natural Sciences, and was concerned with the mores of men rather than the phenomena of nature. But the humane disciplines were hived off to become separate subjects, and when the faculty was finally renamed the Faculty of Philosophy, philosophy was indeed the only subject studied.

The separation of the disciplines has proved unfortunate. It has led to each being studied in isolation, with scant regard to the relevance of circumambient disciplines. Lawyers acknowledge that there may be moral problems about obeying the law, but dismiss them as the concern of moral philosophers, not of legal theorists. And although opinions held by legislators about morality may affect legislation, legal theorists see them solely as external political factors, not ones that lawyers themselves should engage in. Economists work with a concept of economic man who always seeks to maximise his utility, without ever allowing considerations of justice, loyalty, or compassion, to influence his decisions, unless they will either prove profitable or can be incorporated in a private utility function. The result in each case is an unrealistic discipline. What the bad man is told by his solicitor is a useful concept for legal analysis, but---obviously---cannot exhaust the whole of law, which is concerned with good men as well as bad, and relies on at least some people---solicitors, barristers, judges, juries and witnesses---being sensitive to moral considerations, and acting disinterestedly, impartially, honestly and truthfully. Similarly most businessmen are guided not only by the bottom line of profitability, but by ideas of integrity and public responsibility. Customers sometimes shop around, but often go to the same shop as they are accustomed to patronise. Much business is transacted through an old-boy network on a mutual help basis: money does change hands, but is not the sole, or sometimes even the major, determinant of what the parties do.

One reason why the different moral sciences separated is growing scepticism about morality itself. There is, as Plato noted (Phaedrus 263a) no decision-procedure for settling moral disputes, and many modern philosophers have agreed with Hume that morality is a function not of reason but of emotion. Moral values, they say, are not truths, not part of the fabric of the universe, but are projections of our own subjective attitudes, painted by us onto the objective description of factual events. If law and economics are to make good their claim to be sciences, they must disentangle themselves from the non-cognitive issues of morality, and be concerned only with objective matters. If the moral prejudices of the populace influence legislation, it is an external factor: all the lawyer should be concerned with is the actual law as finally promulgated, since that, at least, is an objective fact. Similarly, if a business man happens to have ideals of responsible citizenship, that is a fact about him to be registered in his private utility scale, but outside the sphere of economic argument. But in each case the scepticism is overdone. Although in some cases there is no arguing with what the legislators have laid down, or with the ideals espoused by a particular businessman, in other cases argument can be carried on, and may end in an agreed conclusion. The absence of a decision-procedure, guaranteed to reach a result in every case, does not mean that no decision can ever be reached. It is an obvious fact of social intercourse that we do argue about what we ought to do, and sometimes arrive at an agreed conclusion. Equally, the metaphysical view that values do not exist is one we may in turn be sceptical about. Often it rests on a crude materialism, sometimes on a simpliste view of what it would be like for moral values to exist. So far as the actual facts of social intercourse go, arguments about what should be done are common, and are sometimes well reasoned, and yield a conclusion acceptable to all concerned; and among the considerations canvassed, some are recognised as moral considerations, yet without being always the subjects of irresolute disagreement. There is no reason, therefore, to extrude all general issues of what ought to be done from law and economics.

If we consider law and economics in their everyday contexts, we obtain a wider perspective on what is happening. In each case it is illuminating to start with the theory of games. Hobbes saw law, as did Protagoras and Plato before him, as the way of escaping from the Prisoners' Dilemma, but its function as a coordination norm is wider and more pervasive. Individuals, in deciding what to do, need to know what the done thing is. If you and I both know what the done thing is, we can coordinate our actions so that the actions of each do not frustrate the actions of the other. Custom is our guide, and is largely self-enforcing. If I fail to drive on the correct side of the road, I shall suffer. Furthermore, if others suffer too, I shall be blamed, and my ill reputation will lead others to avoid me, and I shall suffer further adverse consequences as a result of their withdrawal of cooperation. But that my not be enough to deter all wrong-doers, especially in large communities where the misdeeds of one man may not be know to all the others. Enforcement and punishment may be necessary, and it is enforcement that has attracted the notice of legal theorists. Enforcement, even on the recalcitrant, is what distinguishes law from custom. If I flout custom, and do not mind about the damage to my reputation, or the withdrawal of cooperation on the part of others, I can get away with it: if I break the law, I cannot. I shall be summonsed, arrested if need be, convicted, sentenced, fined, and as a last resort, imprisoned. But this distinguishing feature does not capture the whole essence of law; it is what distinguished law from mere custom and other action-guiding norms. Etiquette is, perhaps, to be classified as a form of custom, but some ideals of behaviour are not customary, though for some people mandatory. If I fail to be guided by these norms, I may not land up in court, but it does not follow that the law is totally unconcerned with them. The law may refuse to enforce immoral contracts, and may take into account bad behaviour in apportioning blame, and may seek to promote morality when awarding custody.

In primitive legal systems the distinction between law and custom is blurred. Often customary law is recognised as valid law. As the distinction is drawn more sharply, lawyers begin to think that customary law needs to be validated, either by codification or expressed in recognised precedents. But custom is still recognised as setting norms, and as indicating which sorts of behaviour are deemed deviant and worthy to be stigmatized, if not punished as such. The mere fact of having flouted a customary convention may not be enough to warrant the infliction of punishment, but it is still relevant to many of he adjudications the law has to make.

There is a moral question why one should obey the law. In normal cases the question is largely answered by the account given above of the genesis of law as providing us with coordination norms for the most part together with some PD norms. It is foolish, as well as inconvenient for others, to flout coordination norms. Once I recognise the existence of others who can make up their minds for themselves, I know I am not omniscient, and cannot, by my own unaided self know what other people are going to do. Mutual agreement is the only recourse against crippling ignorance. But ignoring conventions I diminish my own, as well as other peoples', knowledge of likely outcomes, to my own disadvantage as well as theirs. In the case of a PD norm, the argument is more immediately moral. By ignoring a PD norm I am unfairly gaining an advantage at others' expense: I am benefiting from their forbearance, while depriving them of the benefit of my forbearance. In the long term it may well prove disadvantageous to me, in that my refusal to play the game may provoke retaliation on their part. These and other considerations {ObeyLaw} give good reasons for obeying the law.

But there are difficult cases. I may have moral principles which conflict with some provisions of the law: I may believe that abortions is right in spite of its being prohibited, or that fox-hunting is wrong in spite of its being permitted. I do not deny a general obligation to obey the law, but cannot in all conscience comply with this particular enactment. At the other extreme it may not be some idiosyncratic principle of mine that conflicts with the law, but a fundamental wickedness that flaws the whole system. The nazi and communist regimes of the twentieth century were so wicked and so unreasonable that there was no call on anyone to obey if they could escape detection. These are very different cases. In the former the general obligation is not denied. The law-breaker breaks only this law, and is obedient to others. Sometimes, indeed, he gives himself up, after breaking the law, and accepts punishment, making it a further expression of protest. In many cases the debate whether to conform or disobey is an individual moral one, not one raising issues of legal validity. There is no doubt that the law is valid, and that, other things being equal, one would be morally obliged to obey it. But the prima facie obligation is overridden by further moral obligations, so that all in all one's duty is to disobey. In the other case there is no moral reason for obeying the law, only prudential reasons of avoiding the untoward consequences of detected disobedience. In order to reach that conclusion, severe criticisms of the legal regime must be substantiated. Radbruch identified fundamental defects of the nazi regime in Germany which entirely vitiated its claim to be obeyed.

Legislators may be guided by moral reasons. ``There ought to be a law against it'', we sometimes exclaim when confronted by grievous wickedness. Hart followed Mill in arguing that moral reasons by themselves were never enough to justify legislation, which could never be properly enacted unless it was to avoid harm being done. But the arguments are unpersuasive. As a matter of practice, legislators have often enacted laws for purely moral reasons, without having considered whether the activities forbidden did cause harm. Moreover, harm is an elastic concept. I may well claim to be harmed by your doing something I disapprove of: the outrage I feel may damage my health. Moral welfare is often considered by courts in custody cases, and damage to moral welfare is accounted harmful. More fundamentally, societies are based on a community of values, and need to protect those values irrespective of whether definite harm can be shown to be done by some particular action to assignable individuals.

Judges often have to interpret the law. They call in aid any considerations, including moral ones, which may help them to interpret well the application of the law to a particular case. It would be foolish not to. But, both in legislating and in interpreting, there are reasons for caution in invoking morality. Although we often agree, we also often disagree, about moral questions. Civil society is unselective in its membership, and legislation needs to guide bad men as well as good. It is sensible to spell things out so clearly and definitely that even the bad man can understand what he may and may not do. Although in some case we can say he should have known, it is better not to rely on this argument.

A further argument from tolerance carries weight. Civil society is unselective, and contains, besides bad people, people with idiosyncratic moral principles: vegetarians, Seventh Day Adventists, Flower Children and the like. Their views demand respect, though not acceptance. Their views are wrong, and w should not hesitate to say so, and argue our case if need be. But, having failed to convince them, and realising that they are cussed, we still should draw back from actually punishing them for their wrong opinions, unless further conditions are fulfilled. Sometimes such further conditions are fulfilled. If the Moonies brainwash impressionable people who fall into their clutches, we are entitled to take action against the Moonies to protect their potential victims. Sometimes the idiosyncratic moral principles are not just idiosyncratic, but deliberate affronts to the shared values cherished in common by the community. An American citizen may genuinely and sincerely believe that burning the Stars and Stripes is a commendable action of protest, but still be punished for it: but there are other ways of registering protests; to desecrate the American Flag is to make use of the conventions whereby the USA constitutes a symbol of national identity; the protester is not merely expressing his dissent, but deliberately trampling on an icon of American nationhood; and may be justly punished for it by the American nation.

Tolerance is not indifference. We often are indifferent to what others do, and rightly so. It is only when we disagree or disapprove that the question of tolerance arises. We tolerate by not exercising some pressure or sanction we could use in order to alter the offender's opinions or actions. If your views are obnoxious, I do not exclude you from my company; if you worship God the wrong way, I do not destroy your churches and conventicles; if you are a vegetarian, I do not serve only food containing meat. But our forbearance is not a total inhibition. We do not have to agree with you, nor refrain from expressing disagreement on suitable occasions, nor---importantly---from actions or inactions that might be taken to signal agreement. If you express obnoxious opinions, I may perfectly well take you up and argue with you, or simply say that I do not agree, and shall argue the matter out at another time; if you worship God the wrong way, I do not have to attend your services, or invite you to take part in public occasions; if you are a vegetarian, I do not have to eat only vegetables in your presence. It is a point easily overlooked. In recent years there has been some agitation in favour of homosexual equality. Advocates often claim that theirs is an alternative life style, just as valid and fulfilling as traditional heterosexual marriage. It is a view that can be argued for, but also argued against. There are obvious disanalogies between a homosexual partnership and a traditional marriage, disanalogies which count strongly against the claim that the two are on a par. But still, it is said, we ought to tolerate those who differ, and feel themselves drawn to a homosexual lifestyle. There is force in this argument, but it is a different argument from that originally put forward, and incompatible with it. A plea for toleration acknowledges that the beliefs or actions to be tolerated are in some sense deviant, but argues that nevertheless they should not be altogether discountenanced. That acknowledgement precludes subsequent complaints the opinions or actions are being disagreed with or disapproved of. It also rules out demands that those being tolerated should have equality of treatment in all respects as compared with those not holding the particular opinions or not engaging in the particular activities. Homosexual activity may be tolerated in that it is not a criminal offence: it does not follow that those who engage in homosexual actions are entitled to be appointed to jobs on the same basis as those who do not. The Church of England decided to admit to Holy Communion those who conscientiously believed that a homosexual partnership was right for them: subsequent criticisms that it was maintaining a double standard in not also admitting practising homosexual to Holy Orders missed the point that the Church had considered and rejected the claim that homosexuality was just an alternative lifestyle entirely on a par with marriage, and was considering what it could do for those who dissented from its teaching without seeming to abandon its teaching by conniving at activities that contravened it.

Precepts of toleration are not the only reasons for not legislating in accordance with moral norms. Legislation is a bad thing. Although sometimes the alternative is even worse, there are always costs to enacting a law. In the first place, the law is a blunt instrument. It has to use definite terms which admit of no dispute, and so cannot fit every eventuality. It will, therefore, sometimes be unfair. Better in many cases to trust to the good sense of those who actually have to deal with the problem, and give them discretion to do the best they can. Secondly, legislation is often counter-productive. Acts of Parliament to prevent landlords evicting tenants led to widespread homelessness. Once it became impossible to fire workers who had been in their jobs for more than six months, marginal workers were not given a second chance to pull up their socks for fear that they would gain security of tenure. We can see why this should be so. In a free society people can take steps to avoid being enmeshed in laws they regard as unfair. If the law codifies accepted practice, well and good: but if it imposes great burdens on one party, nobody will willingly put himself in the position of having to bear that burden. If I cannot obtain possession of a house I let out, I will not let it out but will sell it while I have no need of it, and buy a different one when I want one again. If I cannot fire a worker who seems unsatisfactory, I shall not hire him in the first place, but will outsource the work on a contractual basis, which does not leave me encumbered with open-ended obligations---and all this even though I should be rightly reluctant to fire a good worker who had proved his mettle over many years. Only if legislation keeps fairly close to customary practice is it likely to be successful, and in that case it may be better to leave decisions to those apprised of the individual case rather than lay down rigid rules. The employer should be reluctant to sack a good workman who had given years of loyal service to the firm, but he needs to have the discretion to distinguish that case from the one of a lazy, incompetent, and perhaps dishonest one, whose right to a job is difficult to sustain.

Legislation imposes costs. It requires inspectors to enforce it, and adjudicators to interpret it, and private citizens and public companies have to employ advisers and compliance officers to make sure they are in the clear. The supply of honest and competent inspectors and able and impartial adjudicators is limited. Second- and third-world countries suffer from a plague of corrupt petty officials intent not on seeing that the law is obeyed but on extracting ample bribes for turning a blind eye to infractions. Thus far, we have been lucky and cases of corruption are relatively few---we may be still enjoying the Victorian inheritance of incorruptibility. But we cannot count on its continuance in time to come. We need to husband our stock of able and impartial civil servant for really important administrative decisions. A great prophylactic against corruption is to have few laws.

Criminal legislation is even more expensive. There will be law-breakers, some of whom will have to go to prison. And prison is very expensive. Criminal legislation also creates opportunities for blackmail. It was a telling argument for making homosexual activity no longer a criminal offence. The bishop who said he would rather have England drunk that England sober by Act of Parliament was overlooking the duty of legislators to consider consequences, but was making a valid point about the importance of autonomy in morals. Although in some cases it is better that people should do the right thing for the wrong reasons, the moral value of the action is diminished by the wrongfulness of reasons, and in so far as we are primarily concerned with the moral quality of the action, we may do better to allow a few people to make the wrong choice as the price of the many making the right choice autonomously.

The concept of economic man is a useful tool of analysis in economics in much the same way as the concept of the bad man and his solicitor is in the law. There are occasions when it accurately represents what is going on in an economic transaction. Hayek's example of a South-Sea trader exchanging copra for beads is one, and the traders on a currency exchange would be a more modern instance. But they are the exceptions. The transaction in the South Seas was a one-off transaction where each party could see what he was getting, and neither had any previous knowledge of the other, nor any need for, or hope of, subsequent cooperation of the other. Traders on a modern currency exchange do not trade with coins and notes, so that there is no longer any possibility of forgery, which in previous times would have confined dealings to reputable operators; and the units of the currencies being dealt with are qualitatively identical, and well known; I do not have to be choosy about which French francs I get from you, and you can be sure that my pounds sterling are all okay.

Economists have tended to focus on these exceptional cases and argue for the irrelevance of circumambient features to economics as such. But this is unrealistic. For one thing, these are extreme case where the circumambient features have been reduced to an untypical minimum. And for another even in these cases some framework of mutual understanding is presupposed. In Homeric Greece it was natural to enquire of a trader on arrival in a harbour whether he was, indeed, a trader, or a pirate. Force and fraud must be excluded before we can start on economics, and fraud may include some psychological forms of deception. In all transactions my word must be my bond over the very short interval between the money being tendered and the goods being wrapped and handed over (or vice versa).

Most economic transactions take place within a large web of social institutions and mutual understandings. I pay my rent, I draw my pension, I make a covenanted payment to the Lifeboats, I place an advertisement in the local newspaper, I do the weekly shopping, renew the licence for my car, take it to the garage, fill up with petrol and drive to a local craft shop to look for a wedding present for my colleague's daughter. All these involve money, but in very few am I acting as economic man. I do weigh price against quality when I am buying a house or a car, taking out an insurance or entering a pension scheme, or buying a special offer at the grocer. But I do not often wonder whether to renew my licence or my covenants. Nor am I aware of a utility function I am trying to maximise. Rather, I am carrying on a way of life which involves other people and on occasion needs the cooperation of some of them. Though some co-operations are mutually beneficial---I neither pay nor am paid for my activities in the local dramatic club---many are one-sided, and benefit me more than the other party: the garage man may obtain some satisfaction from doing a good job servicing my car, but his benefit is small compared to mine in having a car which goes. In such cases money is the equaliser. By paying him money I raise the benefit to him of the transaction to a level comparable to mine, as in years gone by, the satisfaction I enjoyed as a school teacher was signally augmented by the salary I drew in consequence.

Money speaks. But not very loudly, nor all the time. Other things being equal, I prefer to buy the cheaper article: if there are two wooden bowls at the craft shop, one for £12 and the other for £60, I shall be inclined to buy the former unless it is markedly inferior. If I am offered £5000 more to be head of French at St Trinian's than at Councillor Muggeridge Sixth Form College, I shall be inclined to take the St Trinian's post unless there are compensating disadvantages there. But I do not go all the way, or O should never have been a schoolmaster at all. Many children have definite ideas of what they will do when they are grown up, and young people often want to make a significant contribution to the society they live in. Someone who has a vocation to be a teacher will not lightly abandon it, though he may if the pay is too low or the conditions too bad. Often, and quite rightly, people choose careers which they can imagine themselves being happy in at the ages of 36, 48 and 60, and only within that framework consider where the best-paid jobs are to be had. The superlatively economic man who always buys in the cheapest and sells in the dearest market is seldom to be found. We are much more likely sometimes to encounter his comparative brother, who finds himself inclined to buy at the cheaper, and sell at the dearer, price, and will actually do so when other things are equal, or the differences do not outweigh the pecuniary advantage.

Money speaks, but does not have the sole say in business decisions. We naturally ask: What else has, and should have, a say? The word `customer' provides a point of entry into such deliberations. A customer is someone who is, by and large, accustomed to shop. The transaction with him is not a one-off transaction, but part of a general pattern of behaviour. At the very crudest the shopkeeper's counsel of prudence applies: ``You can rip off a customer once, but only once''. If you want the customer to come back, you need to provide him with a good bargain. But it is not merely a counsel of prudence, though for some people only counsels of prudence will cut much ice. A commercial transaction constitutes some sort of community between the parties to it, a community that generates norms of appropriate behaviour for both parties. It does not make sense to engage in a commercial transaction unless I recognise that there are other parties to it besides myself, and I do not properly recognise those other parties, unless I acknowledge that they have their own points of view, points of view I need to be aware of and take into consideration in my own deliberations. It does not follow, as many thinkers have feared that it would follow, that I have to act altruistically, considering only the interests of others, but not those of myself. What does fallow, however, that I should provide goods or services which the others could be reasonably expected to find satisfactory. They are coming to me not as a profit-maximiser, but as a grocer, a builder, a doctor, or a teacher, and it is my duty to give them good value for money. Some services, admittedly, it is difficult to evaluate: the doctor may fail to make me better because my illness is beyond the reaches of medical art; the teacher fails to get me to understand the differential calculus because I am just not clever enough; the builder did his best, but the subsidence made the whole house fall down. But difficult though it may be to evaluate in particular case, the general principle stands: the point of the transaction was not just to make me rich, but also to meet the needs or wants of the other parties, and if I refuse to take them into consideration, I am destroying the fundamental assumptions of the transaction. Economic man was a solipsist who conducted a monologue with himself about how to maximise his utility function: but commercial transactions necessarily involve more than one person; instead of a monologous calculation of utilities, we need a two-sided dialogue between different points of view with different interests.

Although the two parties to a commercial transaction are those most intimately concerned, there are others who have a legitimate interest. Most obvious are those of public safety and hygiene, but there are many others where we may want to protect people from unwise decisions on There own part, of others from untoward neighbourhood effects. Economists acknowledge the relevance of these, but maintain that they should be dealt with by legislation rather than anything as wishy-washy as stakeholders' rights. But legislation is a crude instrument. Often there are good grounds for not legislating, even though the intended outcome is eminently desirable. If commercial transactions can take place only within a legal framework, then, since there are often, for good reasons, not laws, which on other grounds would be desirable, the deliberations of the parties to a commercial transaction should take account not only of the legal rules there actually are, but the considerations that might constitute grounds for enacting further legal rules.

It is vague. But that is because we are talking in general terms, seeking simply to argue against the tough-minded position which makes out that maximising shareholder value is the sole guide to decision-making in business. It is not. And once we recognise that it is not, we can allow the intimations of common sense to percolate back into our deliberations. There may not be a law against it, but we should none the less be chary of laying off a workman who has given the firm years of good service at an age when he cannot hope to find alternative employment. It is not a cast-iron rule: sometimes we might have to, if it was the only way of saving the firm from bankruptcy, with the loss of everyone's job. But we should be chary. In a different way, a large firm may play a dominant part in the local economy, and should take cognizance of the needs of the locality. Contributions to local good works are not a breach of trust to the shareholders. Nor, for comparable reasons are contributions to training schemes for the industry as a whole.

Economics and law both suffer from being studied in isolation. We understand them better if we regard them as different facets of the way we arrive at decisions, each having its own peculiar features, but each interpenetrating the others. Economists have always acknowledged that economics needs a background of law, and lawyers have sometimes admitted that law itself is influenced by moral considerations. But in reality their interrelations are much closer and more complex. We are constantly making decisions, a few of them purely moral, some purely prudential, most influence by a wide variety of considerations, moral and prudential ones among them. Some of these are both circumscribed and protected by law; many involve some economic transaction. These are the proper study of the lawyer and the economist, but it is only if we study them in their context that we can understand them aright.