Ethics and the Moral Law, Part I: Anscombe

Larval Subjects has a good post up on deontological ethics. I am sympathetic to some of his antinomian sentiments, though I often find myself drifting back and forth between Aristotle and Kant in ethics (being the good Hegelian that I am). I’ve written a little bit about law-conceptions of ethics and their critics, and thought this would be a timely opportunity to post some of the results. This first post will deal with Elizabeth Anscombe and the second will move onto Saint Paul. Readers interested in this topic might also want to have a look at this previous post on Hegel and laws or this one on Anscombe and MacIntyre.

Modern Moral Philosophy

At the centre of Anscombe’s attack on modern moral philosophy, set out in her classic paper of the same name, is the concept of moral obligation. Part of the reason that her treatment of this concept is of interest is that she is sensitive to the historical grounds of its employment, noting the context in which it arose and became a fundamental notion for modern moral thought in an attempt to show that only under certain conditions–ones that are no longer widely believed to hold–is it coherent to speak of an emphatically moral obligatoriness.

Here I want to question the historical narrative that Anscombe presents us with, arguing that it may be problematic on two counts. These potential difficulties will be explored with reference to the religious elements of her account, where the divine law is invoked as the only viable way of construing moral obligation. The second of the worries I shall highlight is that she overlooks the diversity of thought within what she calls the “Hebraic-Christian ethic.” For Anscombe is too hasty insofar as she tacitly ascribes a relative unity to Christian thought in supposing that such thought should be seen as going hand in hand with the view that morality is seen as originating in divine law. But before addressing this point, another objection to her historical narrative will be considered-one that promises to be more threatening to her positive project-which claims that, even within the tradition of those who have believed morality to stem from divine law, Anscombe mischaracterises the way this has been conceived. Firstly though, some of the relevant main features of Anscombe’s strategy will be outlined briefly.

Anscombe’s strategy

Anscombe’s paper opens with a statement of three theses, the second of which will concern us here:

the concepts of obligation, and duty-moral obligation and moral duty, that is to say-and of what is morally right and wrong, and of the moral sense of ‘ought’, ought to be jettisoned if this is psychologically possible; because they are survivals, or derivatives of survivals, from an earlier conception of ethics which no longer generally survives, and are only harmful without it.

Here we see the historical dimension to Anscombe’s thought: emphatic moral concepts once made sense given the context of an earlier ethics, but without such a context they no longer do, becoming confused and out of joint to the extent that our use of them is actually harmful. The context that the emphatically moral sense of ‘ought’ arose from, and in which it is thought to have its natural home, is that of a law conception of ethics. Thus, ‘ought’ gained a moral sense in certain circumstances that was synonymous with the sort of requirement or obligation that one could be said to be subject to through coming under the authority of a law. Anscombe claims that it acquired such a special sense (that is, one in addition to the sense of ‘ought’ in which to say that a machine ought to be oiled means that it is liable to break otherwise) through the enormous influence of Christianity. For it had a law conception of ethics that understood what it is to be ‘bad qua human’ to be a failure connected with falling short of a divine law.

Given this diagnosis, it is not immediate apparent what Anscombe’s strategy is. As is suggested by the quote above and by other sections of her paper, it might simply be to drop talk of the moral ‘ought’ altogether, reverting to what Williams calls ‘thick’ moral concepts, such as justice or honesty. This rejection of the moral ‘ought’ would be premised upon the unsustainability of the law conceptions of ethics without which it loses its meaning. Anscombe certainly is disparaging of modern attempts to rehabilitate the notion of an ethics of law, like certain understandings of Kantian self-legislation. Yet Anscombe was herself a Christian who held to the divine law, so where does that leave her position? It seems that it should be read as an attack on the incoherence of those who employ emphatic moral concepts yet themselves lack an adequate law conception of ethics that would make these concepts intelligible. For her then, a law conception of ethics is not untenable in itself, but only insofar as it is divorced from the support of a religious framework. The crucial phrase in her second thesis comes when she says that emphatic moral concepts ought to be jettisoned because they are derived from “an earlier conception of ethics which no longer generally survives.” Recognising the de facto decline of a religious moral culture in favour of a secular one, Anscombe would be warning against importing concepts that only make sense in the first tradition into the latter climate where, without the necessary framework guiding their use, then they are bound to become mangled and perverted, as she thinks happened in the post-Sedgwick English tradition. So, whilst herself holding onto a Catholicised Thomism that combines law and virtue, she would be recommending a non-divinised virtue ethics for those unwilling to embrace a religious ethics.

Obligation and law

Having now outlined some aspects of Anscombe’s argumentative strategy, the first potentially problematic feature of Anscombe’s position that I want to consider stems from her treatment of the concept of law. In doing so, I want to pick up on the unease that has been expressed to a greater or lesser extent in different places with respect to the details of how she seems to understand this concept, its relations to those such as commandment and its place in the Christian tradition. One way to begin to articulate concern with Anscombe’s position in this respect would be to focus on her idea that emphatic moral concepts have lost their roots: their connection to a tradition that both illuminates them and endows the moral ‘ought’ with a meaning over and above what she calls that of “a word of mere mesmeric force.” For Anscombe’s suggestion as to how they lost their grounding, through the loss of their connection to the religious framework of divine legislation, highlights a potentially problematic understanding of what moral obligatoriness amounts to. This is one that both can appear independently unattractive and also at best marginal within the very Christian tradition that it is meant to be representative of.

Thomas Pink claims: “For a virtuous action not only to be virtuous, but actually to be morally obligatory, in Anscombe’s view, just is for that action to be commanded of us by a moral law-giver.” If this is what it means to be morally obligatory, then continuing to talk in terms of this emphatic moral obligation in the absence of the inferentially constitutive concepts of God, divine authority, commands that are promulgated to us, and so on, is liable to lead to some confusion. It is certainly something along these lines that Anscombe is getting at when she says, “It is as if the notion ‘criminal’ were to remain when criminal law and criminal courts had been abolished and forgotten.” Yet, is this what moral obligation means, either now or even at the height of theories of divine law in the late Middle Ages? Here we might question two aspects of the definition of moral obligation. Firstly, we can ask a question implicit in Pink’s work, is moral obligation reducible to the dictates of the divine law? Secondly, as Onora O’Neill hesitantly wonders in connection to Anscombe, is divine law here actually understood as divine command?

There clearly is a Christian tradition that locates the source of moral obligation in God and whose proponents are often referred to as ‘divine command theorists.’ Yet, this does not mean that for them moral obligation simply is divine command or legislation–that the former is semantically or explanatorily inexplicable without reference to the second. We can quite consistently suppose that all moral obligation has its source in God’s dictates while explaining what moral obligation is, or taking it as primitive, in a way that makes it independent of the divine. This is to say that the concept of moral obligation can be distinct from the concept of what is divinely dictated, even if moral obligation happens to arise through divine command or legislation. For it may be that coming to be morally obligated to do something requires certain conditions to be fulfilled–whether that is being commanded to do so by God, being the action that maximises utility, etc.–yet the moral obligatoriness does not have to be identified with its cause; the moral obligation is the normative claim upon us, and this we do not have to identify with the authoritative structures that generate this claim on us. This line of thought cautions against the potential category error of simply equating an object or event (e.g. God commanding you to do x) with the normative power it gives rise to (e.g. the moral obligation to x), for even if it is the former that give rise to the latter this does not mean that the latter are no more than the former. Thus, it may seem that Anscombe would have to do more to bridge the gap between moral obligation and divine dictates if she is to show that moral obligation becomes incoherent when removed from a religious framework, with it lacking some sort of independent basis.

The second question raised asks about Anscombe’s understanding of law. She often uses ‘law’ and ‘command’ in a seemingly interchangeable way, but does this accompany a deeper conflation of the concepts of law and command? O’Neill expresses the suspicion that Anscombe actually thought in terms of divine command when claiming to be discussing divine legislation, ignoring the crucial formal differences between laws and commands, instead treating divine law as fiat. But what is characteristic of laws is their universality, something O’Neill expresses by saying that they “prescribe for all cases within their scope.” We might think of this in Kantian terms, as no doubt O’Neill is predisposed to, whereby this universality characteristic of law is important insofar as its moral function is to confront the temptation to make an exception in one’s own case. Transfigured into a religious dimension this might become an insistence on law so as to oppose something like the following thought, ‘Ordinarily doing this would be wrong, but God has special plans for me that require me to do it.’

Evidence that O’Neill points to so as to demonstrate this lack of awareness of the distinct formal structure of laws is Anscombe’s focus upon the source of law, this being her only objection to those who advance law conceptions of ethics without a divine element. To expand upon O’Neill’s hints, perhaps a good example of this is Anscombe’s brutally swift dismal of Kantian self-legislation:

Kant introduces the idea of ‘legislating for oneself’, which is as absurd as if in these days, when majority votes command great respect, one were to call each reflective decision a man made a vote resulting in a majority, which as a matter of proportion is overwhelming, for it is always 1-0. The concept of legislation requires superior power in the legislator.

Yet this rather misses the point, for with respect to the notion of self-legislation the emphasis is very much on the legislation rather than the role of the self (O’Neill may demur at this point). What is important here is not the misleading picture of the agent that somehow binds or outvotes itself, but rather the fact that the agent is following maxims with the formal structure of laws, stripped of all partiality. In following these rationalised maxims, ones where no unjustifiable exceptions are made simply because it is I who is acting, we act in a way proper to being whose nature is itself infused with rationality, with the laws thus no longer being alien impositions: this is the self-legislative component.

Anscombe shows little sensitivity to the formal universality of laws, here or elsewhere. Her focus is upon the source of law, which she thinks must be divine if it is to be sufficiently authoritative, appears indifferent to the fact it is law under discussion at all. This seems to prevent her from appreciating some of attractions of the key alternative law conceptions of ethics that are relatively independent of a divine legalism. So, given that Anscombe thinks that emphatic moral concepts only make sense when allied to a law conception of ethics, of a legalistic sense of right and wrong, then it may seem little wonder that she is eager to recommend rejecting talk of the emphatic moral ‘ought’ for those who wish to adhere to a secular ethics. Yet, as we have seen, even the divine command tradition itself, not to mention other strains of Christian thought, does not seem to provide her with unambiguous support. This is because the implications of Anscombe’s second thesis may seem to require that the emphatic moral concepts are prone to be deployed incoherently outside of a divine command conception of ethics because all there is to moral obligation is to be divinely commanded, whereas it seems we could employ an independent notion of moral obligation, as someone like Suarez purportedly does. Arguably, this is not a decisive objection though insofar as we may think that even with some understanding of what moral obligation would amount to outside of the explanatory framework of a divine law conception of ethics, there would be still be systematic pressures disposing us to incoherent moral judgements insofar as we would still be unable to make sense of the source of moral obligation since secular ethics will not appeal to God as legislator and will require some as yet unproven stand-in. In this situation, we may be best advised to explore the aretaic alternatives like Anscombe suggest.

St. Paul and Hegel

Here, in this section I want to pick up on what it is a surprising omission from Anscombe’s account given her Christian convictions, even given the polemical style of her paper. This is that there is next to no consideration of anti-legalistic conceptions of ethics from those within the Christian tradition. Her references to ‘Hebraic-Christian’ thought occlude not just minor cosmetic differences amongst religious thinkers about the relation between law, morality and the divine but also radical disagreements over the relation of these three notions. Here, I shall briefly point to two such thinkers, Saint Paul and Hegel–hardly insignificant figures.

Paul had good reason to confront a law conception of ethics inasmuch as it was a pressing political issue within the early Church. The evangelising that Paul dedicated his attention to was faced with a pressing practical problem, one that required Paul to devise a theoretical, but no less concrete, solution. (Here we can see why Paul’s reputation amongst Marxists as the Lenin of Christianity is well deserved!) The problem concerned the issue of whether new initiates into the Church should be required to hold to the Abrahamic law; a matter that crystallised over whether they ought to be circumcised or not. Paul was torn between placating Jewish Christians who were predominantly in favour of a hardline adherence to the Jewish law and the Gentile Christians who were not eager to adopt a strange new set of legalistic injunctions.

It can be tempting to read this debate as one with a narrow relevance, of a dispute over the merely particularised traditional law of the Jews and so of little relevance to our concerns, those of the moral law in general. However, this would be a mistake. This is because Paul stresses throughout his letters that what is at stake in this conflict is Christian identity as such, that in Christ there is neither Jew nor Gentile. Condensed in this opposition is not the particular ethnicised law of the Jews against its rejection; rather, it is the opposition between particular law and the universal ‘cosmic’ law. In rejecting the disjunction of Jew or Gentile, in saying neither/nor, Paul thus rejects law in general. Or rather, he asserts the priority of love over law, which it is tempting to read as akin to an assertion of the priority of the good over the right. Paralleling this subsumption of law under love is one that similarly subsumes duty under grace (kharis): one is not redeemed by works, one cannot ‘earn one’s due’ that way. So, rather than the divine acting as a source of legislation as in Anscombe, Paul thus marginalises any legalistic obligatoriness more forcefully than she does. Although all this is articulated in a religious mode, Paul is rather paradoxically in many ways a stridently secular thinker; at least, he has been easily appropriated by some materialists in this spirit. For obvious reasons though, he is not a central figure in moral philosophy, despite his relevance to issues such as the law conception of ethics and although much of his thought is deep and tacitly argumentative enough to merit it.

Finally then, we can go on to consider Hegel as another anti-legalistic thinker who remains in the Christian tradition, but again whose opposition to a law conception of ethics is somewhat different than Anscombe’s critique. The Philosophy of Right does have a place for moral laws within the structures of Sittlichkeit, though arguably in a muted and secondary role. Here though, I shall maintain the religious theme by considering Hegel’s early theological writings, which attack law conceptions of ethics in an even more polemical fashion than Anscombe.

Of particular relevance here is the extended, unpublished essay, ‘The Spirit of Christianity and Its Fate.’ This represents Hegel’s first extended reckoning with Kant and in which the latter’s legalism along with his formalism is indicted. The hero of the tale, who Hegel often opposes to Kant, is Jesus. This is a Jesus who is a radically anti-legalistic figure, as can be seen from a representative passage:

The spirit of Jesus, a spirit raised above morality, is visible, directly attacking laws, in the Sermon on the Mount, which is an attempt, elaborated in numerous examples, to strip laws of legality, of their legal form.

The morality that Jesus is said to be above here is, of course, Kantian Moralität; and the problem with this morality is ineluctably entwined with its articulation in laws to which we are obligated. More fully, this problem is the split that Hegel sees it as nurturing within the subject between reason and inclination, divisively setting two aspects of the subject into conflict.

Hegel’s solution is, unsurprisingly, a complex one but as with Paul there is no straightforward rejection of law. Rather, in a deeply Pauline fashion, Hegel appeals to the fulfilment (πλήρωμα) of law through love: one that, so to speak, suspends its letter in the name of its spirit. The full details would take us too far afield, so all I wish to note are the deep affinities between these two Christian-centric critiques of law conceptions of the ethical. This makes it all the more strange that Hegel never explicitly mentions Paul. Nevertheless, my closing suggestion is that they might be profitably read together against Anscombe as anti-legalistic thinkers who take this opposition to law to be at the very essence of the Christian tradition and not a melancholy necessity imposed by its decline.

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