7 - Practical Errors: Pragmatic Foundations for Legal Perspectivalism

Summary

Those who seek to derive role-relative morality from considerations of human fallibility must be prepared to explain how such considerations give rise to differential reasons for action for citizens, officials, and institution designers. At least three accounts appear to be available.

THE ARGUMENT FROM PERSONAL ERROR

Larry Alexander has maintained that the reason for the gap between justified disobedience and justified punishment is that, “we as the subjects of rules are fallible, and we are more likely to produce those consequences demanded by our moral principles if we are governed not directly by those principles but by blunt (over- and underinclusive) rules that are relatively easy to follow and monitor” This insistence on rule-governed conduct is reminiscent of John Stuart Mill's conviction that, “whatever we adopt as the fundamental principle of morality, we require subordinate principles to apply it by…” Insofar as the law provides just such a set of subordinate principles for action, this thesis suggests that compliance with the law will accomplish results that are morally superior to those achieved by attempts to comply with the dictates of morality. This claim, by itself, fails to provide us with a defense of role-relative morality. It merely suggests that, by virtue of our inevitable fallibility, all of us, citizens, judges, and institution designers alike, have a reason to defer to the law if the law prescribes conduct that accords with the relevant moral principles more often than does our own calculation of those principles. Those who contemplate disobedience (of either decision rules or conduct rules) must factor into their calculations the possibility that they are in error in thinking that the relevant rules are over- or underinclusive.