Returning to my example of the intrinsically unjust: if a procedure is one of judicially punishing a man for what he is clearly understood not to have done, there can be absolutely no argument about the description of this as unjust. No circumstances, and no expected consequences, which do not modify the description of the procedure as one of judicially punishing a man for what he is known not to have done can modify the description of it as unjust. Someone who attempted to dispute this would only be pretending not to know what "unjust" means: for this is a paradigm case of injustice.
And here we see the superiority or the term "unjust" over the terms "morally right" and "morally wrong." For in the context of English moral philosophy since Sidgwick it appears legitimate to discuss whether it might be "morally right" in some circumstances to adopt that procedure; but it cannot be argued that that the procedure would in any circumstances be just.--Anscombe, "Modern Moral Philosophy" [1958)], reprinted here.
But an innocent man, though of more than ordinary constancy, is often, not only shocked, but most severely mortified by the serious, though false, imputation of a crime; especially when that imputation happens unfortunately to be supported by some circumstances which give it an air of probability....An innocent man, brought to the scaffold by the false imputation of an infamous or odious crime, suffers the most cruel misfortune which it is possible for innocence to suffer.--Adam Smith, The Theory of Moral Sentiments.
For the second time in three years, a rich, fascinating public lecture by Julia Driver, (this time) 'The Case Against Consequentialism: Anscombe, Foot, and Murdoch,' has inspired some musings in me (recall). In what follows in these Digressions, I do not comment on Driver's thesis and argument, but once her paper has appeared in print I will do so. Here I explore features of the quoted passage above from Anscombe featured in Driver's essay, which made me return to "Modern Moral Philosophy" (MMP), that are orthogonal to Driver's argument.
Anscombe's MMP is, despite its scholarly popularity, not Anscombe at her most subtle; yet it is a polemical masterpiece. This is not to deny it is a very important statement; I always relish her contempt for the "provinciality of mind" among the "English" (Sidgwick and his followers), although she mistakenly believes that Sidgwick did not know what he was doing when he excluded non-trivial features of the "Hebrew-Christian ethic;" for while she is right to note that in Sidgwick the important things in him occur in asides and footnotes and small bits of argument which are not concerned with his grand classification of the "methods of ethics," she fails to recognize that these asides also exhibit Sidgwick's stance on philosophical prudence which are a feature not a bug of his (what came to be known as) Government house utilitarianism.
MMP has an apparent accessibility, which -- in addition to the care-free pot-shots at previous, (once) canonical thinkers --, undoubtedly helps sustain its popularity. Her readings of others lack -- to invoke a Christian virtue that has, perhaps unwisely, been adopted by generations of scholars -- charity and, thereby, she can exhibit an-oft subtle point, while simultaneously scoring points that many students of philosophy might think they could have made too (e.g. "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.")
Anyway, in the quoted passage at the top of this post, Anscombe makes two connected mistakes (which are, at bottom, the same),* one not too subtle and the other more so. First, in the passage she tacitly presupposes that in the philosophy of law or political philosophy, legal positivism is ruled out. It is, hence, no surprise that a few lines before, she heaps scorn on "a rule of law by which something is "deemed" to be the case which is admittedly not the case as a matter of fact." But Anscombe has not earned this position; to show that legal positivism or legal proceduralism has immoral consequences is not a decisive argument against it. (To be clear: she is critical of positions that allow the execution of innocents under certain circumstances.) For, not only does all human law have immoral consequences (to assume otherwise would be to assume the conditions under which human law wouldn't be necessary), but it also begs the question to assume that moral authority trumps political and legal authority when they come into conflict. When they do, this opens up, to echo Anscombe (discussing Hume) "very deep and important problems" that are only easily resolved by analytical philosophers who -- to historicize++ -- have a tendency to take the very existence of political order for granted; the political intermingles with all philosophical inquiries of axiological importance (recall Isaiah Berlin's criticism of analytical philosophy). I return to this below.
Second, Anscombe is mistaken in making her position turn on terminological superiority. For one can describe the case she labels as a paradigmatic instance of 'intrinsic justice' (and agree that it is paradigmatically so) without using "injustice" at all and without sounding like one is using euphemisms. As an example of this, I quoted the relevant passage in Adam Smith above. He very carefully avoids describing the case of a "judicial condemnation of the innocent" as an instance of injustice while still managing to convey the moral gravity of the situation ("suffers the most cruel misfortune which it is possible for innocence to suffer") and without giving in to the temptation of calling such situations "morally right." That is, Smith recognize that the institution of justice can do genuine, severe harms, but that one should be cautious about calling these instances of "intrinsic injustice."** That is, she is wrong to think that "someone who attempted to dispute this would only be pretending not to know what "unjust" means;" rather than arguing it, I showed it. Of course, from the vantage point of the innocent person it is proper to call it an instance of "injustice:" As Smith goes on to write "The innocent man, on the contrary, over and above the uneasiness which this fear may occasion, is tormented by his own indignation at the injustice which has been done to him."*** The humane spectator understands this indignation and, if she is wise, too, would not try to argue otherwise.
The true point Anscombe wishes to make, that is, that the kind of moral philosophy associated with Sidgwick and his followers can easily become, and was, complicit in the (procedurally licensed) evils and harms, large and small, of the technocratic state is surely right (see, especially, her last paragraph).+ She can say that (and I would agree) without accusing the other side of not knowing how words are used or whose (paradigm-relative) terminology is superior. But making that charge stick would have forced her to explore the relationship between her moral certitudes and her paradigmatic exemplars that sustain them and a form of life that takes the (forgive my scholasticism) the nature(s) and existence of the all-too-human-political-legal-order seriously. Of course, she has explored some of these issues elsewhere and a polemic is often not the right place for generosity. +++
*That they are connected, I learned in discussion with Prof. Driver.
+This is a distinct complaint from its too easy complicity in forms of colonialism.
++ Some other time I'll discuss the way(s) in which Anscombe herself historicizes the English tradition that runs from Butler to Sidgwick and her followers.
**Unlike Hume, Smith does not treat justice and the rule of law (and the existence of property rights) as near synonymous. So, his reasons probably have more to do with his concerns with the rhetorical and psychological impact of theorizing on society.
***I am grateful to Jon Shaheen for calling my attention to this passage after I published an earlier version of this post and for pressing me to clarify.
+++UPDATE: I have edited this post in light of criticisms from Jon Shaheen, Eric Wiland, and Eric Brown. These edits have not changed the position of the piece, but they have helped me make more precise what I think the issues are.
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