有法律的理由吗？

RICHARD PAUL HAMILTON MIGHT THERE BE LEGAL REASONS? ABSTRACT. In this paper, I consider and question an influential position in Anglo-American philosophy of action which suggests that reasons for action must be ‘internal’, in other words that statements about reasons for actions must make reference to some fact or set of facts about the agent and her desires. I do so by asking whether legal requirements could be considered as reasons for actions and if in so considering them one must translate statements about legal requirements into statements about the psychological state of the agent fulfilling those requirements. Since such a process of translation seems neither necessary nor desirable, I suggest that the crudest forms of the internalist position are found wanting. I discuss a more sophisticated form of internalism put forward by Bernard Williams and criticised by John McDowell. I extend McDowell’s argument to cover legal reasons and suggest that Williams’ argument fails to recognise that reasons for action entail standards of correctness that are irreducible to facts about individual character and motivation. I conclude with a brief description of the justificatory status of legal requirements. KEY WORDS: external reasons, internal reasons, legal obligation, McDowell, Williams I The question strikes us as paradoxical, or at least it ought to.1 As the phrase ‘for legal reasons’ indicates, the only reason for per- forming some actions is simply that the law requires them. Yet this apparent truism conflicts with an influential tradition in Anglo- American philosophy of action, which argues that any explanation for acting must make reference to the agent’s motives or desires.2 1 A version of this paper was presented at the annual conference of the Association for Legal and Social Philosophy at the University of Newcastle upon Tyne in April 2003. I am indebted to the many contributors to the discussion, and to two anon- ymous reviewers, for their helpful comments and criticisms. My title echoes John McDowell’s paper, ‘Might there be External Reasons?’, in his Mind, Value and Reality (Cambridge, Mass.: Harvard University Press, 1998), 95–111. 2 I am therefore discussing motivational internalism rather than belief internalism. Res Publica 10: 425–447, 2004. � 2004 Kluwer Academic Publishers. Printed in the Netherlands. Reconciling the mundane realities of legal observance with a ven- erable philosophical tradition seems to occasion two possible re- sponses. On the one hand, we might deny that legal requirements can ever be reasons for acting, or else we can re-interpret state- ments about legal observance in the light of individual motives. In what follows, I aim to show why neither option is entirely satis- factory and that consequently we might need to re-examine some of the assumptions prevalent in Anglo-American philosophy of action. Let us begin with a fairly uncontroversial definition of a reason: a proposition states a reason when it can explain (and/or justify) a person’s acting thus and so. We might also note the distinction, marked in English by the use of indefinite and definite articles, be- tween a reason for doing something and the reason. This distinction also touches on one between explanation and justification, since a statement might partly explain someone’s actions without thereby justifying them. If a man decides to torment his neighbour because he believes him to be an emissary from the planet Vogon, then his erroneous belief might provide a reason for his action, yet does not justify it, particularly if we know that they are in the midst of a rather nasty dispute over a privet hedge. Sophisticated philosophical anal- yses recognise these distinctions, and recognise also that actions may be overdetermined and that, consequently, the reason for an action may not always be found. Here consensus ends. Debate rages on what is involved in a reason’s explaining an action. Two strands of thought, externalism and internalism, contest this question. The externalist is impressed by the fact that reasons possess an impersonal character and can be appealed to as standards of correctness and criticism. Furthermore, before some consideration can count as someone’s reason, it must satisfy certain canons of intelligibility. In other words, not just anything can constitute a reason. Since we are not menaced by invading Vogons, the man’s reason can be discounted. The exter- nalist position speaks to our desire to distinguish rational from irrational actions and consequently to differentiate between reasons and rationalisations. The internalist, by contrast, is struck by the fact that people can fail to be moved by reasons which, at first blush, seem perfectly good ones. The internalist feels that something else is required, if we are to understand how a reason can come to be someone’s reason and thus explain her acting thus and so. In the formulation I shall consider, the 426 RICHARD PAUL HAMILTON internalist claims that no statement can explain a person’s conduct unless it invokes ‘some motive that is furthered’ by his actions.3 The internalist would insist that, while we may disapprove of the man’s behaviour, the fact of his believing his neighbour to be a Vogon and, his consequently wanting rid of him, partially explains behaviour that would otherwise be unintelligible. In summary: the internalist is concerned with the motivational power of reasons; the externalist focuses upon their critical character. In this paper, I aim to challenge the generality of the internalist thesis, by urging that a legal requirement can be a reason for acting. The mere existence of a law can sufficiently explain the actions of a person who falls within its jurisdiction; where a legal requirement does explain someone’s conduct, other motives become irrelevant. I also believe that the law can sometimes be the reason for action: the existence of a law – in the absence of any other relevant consideration – provides sufficient justification for acting in the ways specified by that law. That is, when the only concern is the legality of one’s action, it is reasonable to obey the law. This stronger claim would require substantial argument. Since my main purpose is to question the gen- erality of the internalist thesis, while I would urge both, the success of the weaker claim will suffice.4 My aim is not to discount psychological explanations entirely. Clearly, we sometimes do explain people’s actions by reference to motives. Such explanations can be enormously powerful and it is tempting to see how far they might be extended. Internalists, how- ever, offer a philosophical thesis not a speculative generalisation. They claim that explanations must invoke motives and in doing so they conflate occasions when it is appropriate to cite psychology and when it is irrelevant. The mark of a good explanation, however, is that it excludes competing alternatives. Thus a person’s action is best explained either by the legal requirement, or else by some psycho- logical motive she is furthering, not both. 3 Bernard Williams, ‘Internal and External Reasons’, in his Moral Luck: Philo- sophical Papers, 1973–1980 (Cambridge: Cambridge University Press, 1981) 101–13. Since this paper was written, we have learned of Professor Williams’ demise. I am sure that he would have recognised that thoughtful criticism is the most sincere compliment one philosopher can pay another. 4 I must stress here that my interest is primarily conceptual. I urge that a legal requirement can explain someone’s conduct; I am not concerned with the substantive question of whether it ought to. 427MIGHT THERE BE LEGAL REASONS? This topic may not seem immediately relevant to a discussion of disobedience and dissent. However, while I will have little to say specifically on the question of disobedience, I would suggest that greater clarity about the nature of obedience might shed light on the issue of whether and when disobedience is legitimate. For instance, if, as I maintain, internalism does not provide a satisfactory account of legal obligation, then it follows that the grounds for both obedience and disobedience should not be sought inside the agent’s head. Furthermore, if we recall that many arguments about civil disobe- dience centre on the impersonal nature of legal systems, then the relevance of my argument to the topic of disobedience becomes clearer. In the concluding section, I shall therefore briefly discuss the justificatory status of legal requirements. My attention throughout will be upon the mundane observance of civil law, since this allows for a clarity of focus unencumbered by competing considerations. Nevertheless many points can be extended to the law in general. I shall illustrate the kind of situation that interests me with an example, which anyone who has ever claimed unemployment benefit in the UK will recognise. Shortly after secur- ing employment and signing off the dole, one receives a letter announcing the cessation of benefit on the grounds that one is working.5 Should one feel minded to protest this egregious waste of taxpayers’ money, the response would undoubtedly be that the law requires that these letters be sent. Some perfectly sensible reason could accompany the legal requirement but it need not. Moreover, whatever prudential reason may have been in the legislators’ minds, it is far from that of the person issuing these letters. He writes them for no other reason than that the law requires it. The defender of the internalist view would need to say that each time a civil servant issues such a letter, either that the facts of legal obligation can be paraphrased (without violence) into psychological facts about that official, or else some other reason motivates him. I suggest that neither option gives a tolerable account of the nature of actions pursued in fulfilment of a legal requirement and in what follows I aim to show why. 5 The actual process of issuing the letters is, of course, automated. Nevertheless, the initiation of the process is manual, and computers crash. 428 RICHARD PAUL HAMILTON II If we explain someone’s acting thus and so by reference to the law, then the view that reasons for action must be internal to the agent faces a challenge. Since it seems absurd to deny that we give legal reasons for our actions, such statements need to be given a psy- chological interpretation. What would this mean in practice? One answer which immediately suggests itself is the neo-Humean claim that a reason for action cites some set of beliefs and desires, to which we have recourse in making the action intelligible. In its baldest form this seems like a particularly hard-headed and exciting thesis; unfortunately it purchases excitement at the expense of intelligibility. On this view, the dole officer dispatches her letters because she believes that the law requires it and she wants to follow the law. In various guises this view has been a feature of moral philosophy for generations. What gives it plausibility is that we can imagine cases where the official might be required to send the letter and yet fails to do so. The requirement leaves her cold. In such cases the neo-Hu- mean position seems attractive, since it dispels the attendant air of paradox. The agent fails to perform her legal duties because, while there might be any number of good reasons why one might fulfil it, she has no such reason. We should mark the plethora of cautious neologisms that neo- Humeans employ in articulating this position. None but the crudest advocates claim that an action is intelligible only if the agent wants to do it, in the ordinary sense of that word. The motivation underlying this reticence is obvious, since the identification of rational action with the pursuit of wants is untenable. For it is either vacuous (when construed as the truism that any voluntary action is one the agent ‘wants’ to do) or else it is patently false (since we do many things that we do not want to do, ordinarily speaking, without pain of irratio- nality). Above all, it fails to capture what is obligatory about oblig- atory actions. Nowhere is this more the case than with respect to the law. Actions conducted in fulfilment of a legal requirement are categorically dis- tinct from those things we want to do. Although the categories may on occasion overlap, they need not. If we were to catch the dole officer about to despatch the superfluous letter and press her to explain her actions, the last thing she would say is that she wanted to. 429MIGHT THERE BE LEGAL REASONS? She would doubtless rather be helping an elderly claimant or exposing a fraudster. But, alas, she must send this pesky letter. Indeed in many ordinary contexts of employment the expression ‘x is legally required to u’ can stand in for ‘x would rather not u but has to’. Thus to say that sending the letter is something he wants to do renders the term ‘want’ opaque. Since such a usage is far removed from how the dole officer might describe his actions, it is unclear how it explains them. The neo-Humean might respond by removing legal observance from the realm of rational action entirely and placing it among those actions Weber described as ritual ones, a category which includes habits and routines. This suggestion has some appeal. After all, explaining an action by the fact that it is habitual or routine typically excludes the idea that the agent has psychological motives for per- forming it. If we treat as rational only those actions that further psychological motives, then it makes sense to exclude legally required actions, since we often have no psychological motive for performing them. Such a move also acknowledges the routine nature of much legal observance. It is quite likely that the dole official regards her sending out the letters as simply part of the run-of-the-mill business of doing her job. Certainly treating legal observance in this way gives a better account of things than regarding it as the satisfaction of psychological desires or preferences. Nevertheless, it creates new difficulties. The primary problem is that the class of ritual actions vastly outweighs those that involve deliberation about occurrent desires. Were we to reserve the title rational for those actions which we deliberate about, we would be placing huge swathes of human action outside the reach of reason. For, among so-called ritual actions, we discover a vast array of things we do in the course of our daily lives: the observance of etiquette, the exercise of a range of habitually ac- quired skills, the performance of duties of office, and many minor acts of kindness or affection. The obvious thing to note about such actions is that they are constitutively social. With the exception of certain idiosyncratic habits, most ritual actions are performed in a cultural context. Placing these activities outside the space of reasons sets up the ‘social’ and the ‘rational’ as constrastive terms. Nevertheless, while we might be prepared to accept this down- grading for some of our actions, when applied to legal observance it becomes troubling. We want to say that legal observance must, in principle, be susceptible to rational criticism, for there may be occasions when we feel the need to disobey and to justify that 430 RICHARD PAUL HAMILTON disobedience. Moreover, an action can be both routine and rational. Routines, habits and rituals may themselves be subject to rational scrutiny. Take, for instance, the habit of chewing one’s pencil, the habit of chain smoking, the ritual of some Catholics of making the sign of the cross when passing a church, or the ritual slaughter of infants to assuage the wrath of the sun god. To treat these as indis- tinguishable enfeebles rational criticism. Moreover, one need only consider the role of law in regulating conduct and providing standards of correctness and criticism to recognise a distinction between legal observance and habit. We would not normally criticise someone for failing to perform a habitual ac- tion, even where we disapprove of the habit. By contrast, it is part of the business of the law to condemn those who fall short of its stric- tures. Indeed in areas such as tort law someone may be sanctioned for failing to perform routine actions. In other areas, the law specifies the precise nature of the routine and penalises failure to conform. So, many actions conducted in fulfilment of the law cannot be construed as either deliberative or habitual. The problem lies in too ready an identification between reasons, and deliberation. The space of reasons is broad indeed. It can accommodate those actions we deliberate about and yet it can also encompass those that one acquires through a process of training and habituation. Most importantly, the space of reasons encompasses both the rational and the reasonable. Certain action can be entirely reasonable, without stemming from ratiocination. In the case of routine rule-governed actions, such as much mundane legal obser- vance, the rule or the routine itself forms a central part of the criteria by which we explain and justify our actions. Moreover, unlike habits, both the fulfilment of legal requirements and their delict are publicly accountable matters. III Any serious internalist position must distance itself from the view that actions are rational only to the extent that they relate to an agent’s occurrent preferences, since the price of such a view is to place vast swathes of human action beyond the pale of reason. Conse- quently, the internalist may wish to deny that an appeal to occurrent desires need form a necessary feature of our explanation of someone’s acting thus and so. He suggests instead that all that is necessary is to 431MIGHT THERE BE LEGAL REASONS? highlight standing patterns of motivation, by reference to which we make the person’s action intelligible. On this view, in order to explain the dole official’s sending the letter, we do not need to suppose that, at the time of sending it, he was especially desirous of obeying the law. It suffices that he is the kind of person who is disposed to follow the law. For that reason, the fact that he might prefer to do otherwise does not constitute a refutation. He sends it, albeit resentfully, because he can do no other without peril to his character. This position is implicit in the work of that most robust defender of internalism, Bernard Williams. Williams’ version of internalism asks us to accept nothing more taxing than the idea that any adequate explanation of action must refer to an agent’s relatively stable pat- terns of motivation, in Williams’ terms, to the agent’s ‘subjective motivational set’.6 This subjective motivational set can encompass ‘such things as dispositions of evaluation, patterns of emotional reaction, personal loyalties, and various projects as they may be abstractly called, embodying commitments of the agent’.7 Williams’ ‘subjective motivational set’ refers to an individual’s propensity to respond to events and circumstances in broadly predictable ways. This regularity enables his version of internalism to account for ac- tions that do not result from deliberation and yet are not capricious. It is a theory which aims to provide a satisfactory account, not only of what the agent wants to do, but additionally those things to which she is disposed, inclined or accustomed. One attraction of Williams’ position is that it can accommodate a range of actions which are not narrowly rational and yet which we would hesitate to call unrea- sonable. Williams’ starting point is this: for a reason to motivate someone, the agent must, in principle, be able to see some reason as having force for him. Any sensible theory of action must accommodate this characteristic, if on no other grounds than that perfectly good rea- sons may leave someone cold. He cites the example of Britten’s Owen Musgrove, who has