"Is" and "Ought"

Whether Hume was a heteronomist or autonomist is a good question. After a fashion he was both: he explains the occurrence of morality by reference to the customs of society as those develop over time, just as he explains causality itself on the basis of habit and custom. That sounds very heteronomous. However, as with causality again, he is aware that morality is not proven or rationally justified by his explanation. Indeed, it cannot be: Hume is also famous for noting that a proposition with an "ought" (assertions of value) cannot be logically derived from propositions merely with an "is" (assertions of fact):

I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason. [op.cit., pp.469-470, original spelling, boldface added]

And so the assertions of morality cannot be logically derived from factual assertions about social or historical habit and custom. The force, certainty, and actual moral nature of morality is a residue that reference to society cannot account for. Since that residue is found in our own moral sentiments, this is something left to autonomy. While Hume's distinction between "is" and "ought" is often used as an argument that moral statements are baseless or meaningless, this was not what Hume had in mind. Instead, we must take him as arguing for what now would be called the "axiomatic independence" of ethics, something that would have already been comprehensible to Aristotle, who expected that each area of knowledge possessed its own first principles. It seems like many recent philosophers neither know their Aristotle nor understand their Hume.

Hume is a skeptic (which in philosophy means believing that knowledge is impossible) but of a certain kind. "Pyrrhonian" skepticism, named after Pyrrho of Elis (365-275 BC), is that because knowledge is impossible, we should practice suspension ( ἐποχή , epochê) of judgment on all things. On the other hand, this was later modified when the scholars in Plato's Academy went through a phase of skepticism. Carneades of Cyrene (d. 129 BC), a Scholarch (president) of the Academy, is particularly associated with this movement of "Academic" skepticism. The Academic skeptics ultimately said that although there may be no certain knowledge, there is reasonable belief, and this is necessary for practical judgments in life. That is the term that Hume uses, as he says, "The great subverter of Pyrrhonism or the excessive principles of scepticism is action, and employment, and the occupations of common life" [Enquiry Concerning Human Understanding p. 126], and "There is, indeed, a more mitigated scepticism or academical philosophy, which may be both durable and useful, and which may, in part, be the result of this Pyrrhonism, or excessive scepticism, when its undistinguished doubts are, in some measure, corrected by common sense and reflection" [p. 129].

Kant understood that Hume was in no doubt of the quid facti (the matter of fact, the existence) of causality or morality but that his skepticism merely consisted in his inability to account for the quid juris, the foundational justification of them. The failure to find the quid juris cast no doubt whatsoever on the quid facti. Hence Kant famously says about Hume and his critics, this case concerning the issue of causality, but equally applicable to moral questions, about which Hume had comparable ideas:

Allein das der Metaphysik von je her ungünstige Schicksal wollte, daß er von keinem verstanden würde. Man kann es, ohne eine gewisse Pein zu empfinden, nicht ansehen, wie so ganz und gar seine Gegner Reid, Oswald, Beattie, und zuletzt noch Priestly, den Punkt seiner Aufgabe verfehlten, und, indem sie immer das als zugestanden annahmen, was er eben bezweifelte, dagegen aber mit Heftigkeit und mehrenteils mit großer Unbescheidenheit dasjenige bewiesen, was ihm niemals zu bezweifeln in den Sinn gekommen war , seinen Wink zur Verbesserung so verkannten, daß alles in dem alten Zustande blieb, als ob nichts geschehen wäre. Es war nicht die Frage, ob der Begriff der Ursache richtig, brauchbar, und in Ansehung der ganzen Naturerkenntnis unentbehrlich sei, denn dieses hatte Hume niemals in Zweifel gezogen ; sondern ob er durch die Vernunft a priori gedacht werde, und, auf solche Weise, eine von aller Erfahrung unabhängige innre Wahrheit, und daher auch wohl weiter ausgedehnte Brauchbarkeit habe, die nicht bloß auf Gegenstände der Erfahrung eingeschränkt sei: hierüber erwartete Hume Eröffnung . Es war ja nur die Rede von dem Ursprunge dieses Begriffs, nicht von der Unertbehrlichkeit desselben im Gebrauche. But Hume suffered the usual misfortune of metaphysicians, of not being understood. It is positively painful to see how utterly his opponents, Reid, Oswald, Beattie, and lastly Priestly, missed the point of the problem: for while they were ever taking for granted that which he doubted, and demonstrating with zeal and often with impudence that which he never thought of doubting , they so misconstrued his valuable suggestion that everything remained in its old condition, as if nothing had happened. The question was not whether the concept of cause was right, useful, and even indispensible for our knowledge of nature, for this Hume had never doubted ; but whether that concept could be thought by reason a priori, and consequently whether it possess an inner truth, independent of all experience, implying a perhaps more extended use not restricted merely to objects of experience. This was Hume's problem . It was solely a question concern the origin, not concerning the indispensable need of using the concept. [Prolegomena to Any Future Metaphysics, translated by Lewis White Beck, The Library of the Liberal Arts, Bobbs-Merrill Company, 1950, p.7; «Prolegomena zu einer jeden künftigen Metaphysik», Werkausgabe V, Schriften zur Metaphysik und Logik I, Suhrkamp Taschenbuch Wissenschaft, Insel Verlag Wiesbaden, 1958, p.116-117; color added]

To think that Hume did not believe in the principles of causality and morality is to confuse the content of knowledge with its object, or de dicto ("concerning what is said") properties with de re ("concerning the thing") properties. Observing that moral claims are made in historically contingent, fallible, and corrigible ("correctable") propositions, some infer that the objects of those propositions share in the same historical contingency. There is no force to that inference whatsoever, since it can only be made by confusing dictum with res and applying predicates of the former to the latter. Could that inference be made, it would simply erase the entire significance of moral discourse: no moral imperative (an "ought"), as Hume himself noted, can be derived from the contingent fact of something being said at some moment in history (an "is"). The idea that the description of practice, as the natural history of what we actually do, is sufficient for moral theory, which is what many philosophers today wish to do with Hume, effects a grotesque reductionism of people's sense that they ought to do certain things into the bare, retrospective indicative that they have. This would indeed be a pure Pyrrhonian suspension of moral judgment, and it is not at all a reflection of Hume's views.

Modern historicist and linguistic relativist theories (see Relativism about Wittgenstein, Rorty, and Robert Solomon) combine relativism with objectivism and heteronomy -- since history and language are objective things that exist outside of us but vary in time, place, and context. These connections are the worst of all possible worlds: putting the moral agent at the mercy of external standards (language, society, culture, etc.), even while these standards cannot be rationally questioned. Hegel had thought that history was the concrete exemplification of Reason and so could be rationally critiqued and changed, but the real, external reality, as such nevertheless derived authority from its presupposed rationality. Other versions of heteronomous relativism, even those derived from Hegel, now do not need to take Hegel's notion, or any notion, of reason very seriously. This can give near or complete totalitarian force to mere social and cultural traditions.

Again, we saw that the lawless one [παράνομος] is unjust [ἄδικος] and the lawful one [νόμιμος] just [δίκαιος]. It is therefore clear that all lawful things [πάντα τὰ νόμιμα] are just [δίκαια] in one sense of the word, for what is lawful [νόμιμα] is decided by legislature [ὑπὸ τῆς νομοθετικῆς], and we say each of them is just [δίκαιον]. Aristotle, Nichomachean Ethics, V.i.12-13, 1129b12-14, Aristotle XIX, Loeb Classical Library, translated by H. Rackham, Harvard University Press, 1926, 1934, 1982, pp.256-259; translation modified after Terence Irwin, Nicomachean Ethics, Hackett Publishing Company, 1985, p.118 [Romans 2:14] For when gentiles [ἔθνη] who have not the law [τὰ μὴ νόμον ἔχοντα] do [ποιῶσιν] by nature [φύσει] what is of the law [τὰ τοῦ νόμου], even though they do not have the law, they are a law to themselves. [2:15] They show that the work of the law [τὸ ἔργον τοῦ νόμου; Sanskrit , karmadharmasya] is written [γραπτόν] in their hearts [ἐν ταῖς καρδίαις αὐτῶν]. Lex injusta non est lex -- An unjust law is not a law. Lex mala, lex nulla -- A bad law is no law. No, we can neither expect nor demand respect for the law just because it has been promulgated, regardless of its content. What matters is not respect for this or that (often accidental) decision of the majority in a parliament or of a judge. Rather, what matters is respect for the moral law, which may or may not coincide with the positive law and which involves the legally irrelevant distinction between good and evil. Leszek Kołakowski (1927-2009), "Crime and Punishment," Is God Happy? Selected Essays [Basic Books, 2013, p.236] Judicial Positivism The idea that actual, heteronomous institutions and practices thereby possess moral force is "judicial positivism" -- what Leonard Nelson called Rechtswissenschaft ohne Recht, "Jurisprudence without Justice." This can be stated as the doctrine that: "Justice is the practice of the courts," and The only law is "positive law," i.e. actual statutory and case law. The opposite of "positive law" is natural law, i.e. principles of natural justice, including natural rights, that do not exist as statutes or case law but that actually have moral force, as mere laws, as such, do not. Thus, Martin Luther King, quoting St. Augustine, said, "An unjust law is no law at all" ["Letter from a Birmingham Jail," 1963; Lex injusta non est lex]. Thus, judicial positivism is decisively falsified if we allow, as, I dare to affirm, sensible and morally mature persons do, that the practice of the courts can be unjust, and that it is possible for laws to be unjust. Persons who deny that the courts or the laws can be unjust are seriously out of their reckoning, either as fools or villains, or some combination thereof.

While the terminology of natural law goes back at least to St. Thomas Aquinas (also quoted by King), if not St. Paul, the scholastic versions of it nevertheless emphasized obedience to authority. This changed with John Locke, who justified the English Glorious Revolution (1688) on the principle that unjust authority did not merit obedience, and might rightfully be overthrown. This view was simply taken over by Thomas Jefferson and the other theorists of the American Revolution [note].

Later, in the debate over the Constitution, one problem was whether there should be a Bill of Rights. The Federalists Alexander Hamilton and James Madison argued that a Bill of Rights could produce misunderstandings:

People might say that we only have the particular rights listed in the Bill; and That we only have the rights because they are listed and so positively granted.

When most of the States insisted on a Bill of Rights, and Madison was won over by his friend Jefferson, he suggested the Ninth Amendment to prevent such misunderstandings: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Various sophistries have been offered to get around the plain meaning, and the historical motivation, of this text, but it clearly allows that rights exist which are not listed in the Constitution, and it thus implies that such rights do not exist because they are granted by positive law.

Today, the most infamous self-professed judicial positivist was probably the late Robert Bork, who (in)famously stated that the Ninth Amendment was a "blot of ink," i.e. a meaningless hieroglyph that could not be interpreted. In this, he at least honestly admitted that his judicial philosophy denied the existence of the very things the Ninth Amendment was talking about. Bork was not confirmed for the Supreme Court. Later, however, when Clarence Thomas was nominated, he was actually attacked, before other things were found to accuse him of, for not being a judicial positivist. Thomas's acknowledged adherence to, and Bork's rejection of, natural law principles, however, are both unusual. Most judges today (reflected in most Constitutional case law) are reflexive and unconscious positivists; and modern American political and judicial attitudes are overtly hostile, as was Bork, to principled disobedience to existing law, even law that is grotesquely unjust and, on any honest reading of the Constitution, unconstitutional. A good example of this reflexive positivism was President Clinton, who said, after the bombing of the Alfred P. Murrah Federal Building in Oklahoma City:

When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving [sic] a radical amount of individual freedom to Americans, it was assumed that the Americans who had that freedom would use it responsibly... that they would work for the common good, as well as for the individual welfare... However, now there's a lot of irresponsibility. And so a lot of people say there's too much freedom. When personal freedom's being abused, you have to move to limit it. [boldface added]

The stigmata of positivism are all over this, with Clinton, a former professor of Constitutional law (!), considering whether some of the freedom "given" to us in the Bill of Rights should be taken back. To have politicians, and especially such a man as Clinton -- the perjured President -- considering how others have been "irresponsible" and should be deprived of their freedom is full of a particularly bitter but tragicomic irony. The same positivist animus to natural law principles of justice and freedom can be found in the modern rejection of the powers of juries, and in recent treatments of Thomas Jefferson.

While Bork is now infamous as a positivist, more prestigious Justices articulated positivist priniciples long ago. An important and influential example of that was Oliver Wendell Holmes (1841–1935), who said:

There is a tendency to think of judges as if they were independent mouthpieces of the infinite, and not simply directors of a force that comes from the source that gives them their authority. I think our court has fallen into the error at times and it is that that I have aimed at when I have said that the Common Law is not a brooding omnipresence in the sky and that the U.S. is not subject to some mystic overlaw that it is bound to obey. [quoted by Thomas Sowell, Intellectuals and Society, 2011, p.159; boldface added]

Noteworthy about this passage is the apparent contempt and disparagement that Holmes has for natural justice, natural law, and natural rights. He dismisses such conceptions as about "the infinite," a "brooding omnipresence in the sky," or a "mystic overlaw." But the United States, and every American, is indeed subject to some "mystic overlaw that it is bound to obey," and that is, in the memorable words of President Calvin Coolidge, "the eternal foundation of righteousness":

Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law. [to the Massachusetts State Senate, January 7, 1914; boldface added]

In the great words of Sherlock Holmes, "It's every man's business to see justice done" ["The Crooked Man," Memories of Sherlock Holmes, 1892]. Justice Holmes directly contradicted this when one day Judge Learned Hand (1872–1961) told him, in parting, "Do justice, sir, do justice." Holmes actually stopped and called Justice Hand back so that he could object that their job was to apply the law, not to "do justice": "That is not my job... It is my job to apply the law."

I'm sorry to need to express such disrespect, but the response I have to this rebuke of Learned Hand by Oliver Wendell Holmes is, "What an a**h**e!" One wonders if Holmes would have enforced the Fugitive Slave Laws without flinching. Might Learned Hand have asked him, "At the end of the day, sir, do you ever ask yourself whether you have done good or evil by enforcing your laws? And what answer will the Lord of Hosts expect? Do not forget, 'The judgment you give is the judgment you get'?" ( ἐν ᾧ γὰρ κρίματι κρίνετε κριθήσεσθε ; Matthew 7:2) [note].

Ironically, Sir Arthur Conan Doyle had named his immortal detective after the father of Justice Holmes, Oliver Wendell Holmes, Sr. (1809–1894). But one might not know from Justice Holmes's words that he was denying the philosophical basis of the Declaration of Independence and the Constitution, as Coolidge and Hand were affirming them. Of course, some caution and modesty in the application of Natural Law is necessary when some judges, or many judges, apply some half-baked version of Marxism and think that this is "eternal righteousness" (a term that would have occasioned laughter from Marx). Whether such follies can be prevented by the abolition of the Ninth Amendment, which affirms Natural Rights, seems unlikely.

We see the full meaning of the positivism of Justice Holmes in his statement that law is "the articulate voice of some sovereign or quasi-sovereign that can be identified" [ibid.]. This goes back to the Code of Justinian: Quod principi placuit, legis habet vigorem, "Whatever pleases the prince has the force of law" [Justinian, Digest, 1.4.1; S. P. Scott, The Civil Law, II, Cincinnati, 1932; Alan Watson, University of Pennsylvania Press, 1985, Revised English-language edition, University of Pennsylvania Press, 1998].

The Code explains that the authority of the princeps (i.e. the Emperor) derives from the people: Utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat, "In so far as with the lex regia [the grant of imperium, the authority of command], by which is born his authority, the people conferred upon him and in him all their own authority and power" [ibid.].

Now, with Holmes, in a democracy, sovereignty does not lie in a "prince" (as Richard Nixon wished, but who might be overthrown as ἀνάξιος , "unworthy"), but in the People. As John Locke would have said, the authority of a king, being conditional and fiduciary only, reverts to the People on the non-performance of his duty. Holmes knows this and relies upon the sovereignty of the people.

But this is still not right. Even democracy does not miraculously turn things that are unjust into things that are just by no more than a vote. As Coolidge says, "Men do not make laws"; and, as shown above right, Leonard Nelson correctly held that moral obligation depends on no will, either our own or that of any other. Socrates already argued this in the Euthyphro. The Pious is loved by the gods because it is pious, not pious because it is loved by the gods (see here a modern academic complaint about this). Justice Holmes and most Constitutional jurisprudence since does not believe in eternal righteousness; and, indeed, Holmes is regarded as representing a form of moral skepticism -- very different from that of Hume, at least in his autonomous form [note].

