Legal Commentary

Jeff Lipshaw has an excellent and down-to-earth post on the Is-Ought distinction, which asks me to clarify my own earlier post on the topic.

Of course, there is an ought-is distinction in our speech, just as there is a boundary between France and Germany on our maps of Europe. I did not mean to argue against the distinction. Instead, I meant to argue against drawing the implication from this distinction that one cannot cross the border from facts to values. I find that this view comes in the form of a certain bastardized version of Hume (or G.E. Moore) floating around law schools -- a view that uses the distinction to argue one of the following: (a) "Morality is 'subjective,' facts are 'objective'" or (b) "Facts are irrelevant to morals: Any morals can co-exist with any state of the factual world."

Both of these positions seem untenable to me. Indeed, I doubt that Hume himself really endorsed either view. (On this subject, my favorite book is Stephen Darwall, The British Moralists and the Internal 'Ought,' 1640-1740. Hume is discussed at chapter 10).

So what's my own (admittedly amateurish) take on Is-Ought? (N.B.: There must be some serious philosophers who check this blog: Tommy Crocker, Brian Leiter, or Kevin Heller, among others. They should weigh in to prevent any further philosophical malpractice).

I regard the Is-Ought distinction as similar to other distinctions in natural language grammar -- say, the subjunctive-indicative distinction. The distinction exists, but it is an unsettled and controversial matter whether moves across this linguistic boundary are normatively correct. Yes, of course, the relationship between "ought" sentences and indicative sentences is not the same as the relationship among purely indicative sentences: One cannot (should not?) infer from the sentence, "I am only blogging" that "I should be grading" in the same way that one can infer "I am not grading" from "I am only blogging." But the same holds true for relationships between statements about possible and actual worlds. (E.g., one cannot infer "I could be grading" from the statement "I am only blogging"). This fact (norm?) about language does not make subjunctive sentences "subjective" or essentially controversial. And neither does the the analogous fact (norm?) about "ought" sentences.

I find that many law profs use the Is-Ought distinction to endorse a sort of folk relativism. Facts are "objective," verifiable, uncontroversial, whereas norms are none of the above. But this proposition (a) does not follow from the Is-Ought distinction and (b) is untrue. Some factual matters will always be controversial and, indeed, in principle non-resolvable (e.g., Are there universes outside the outer limits of the known universe?") Some moral statements are wholly uncontroversial (e.g., "Rick should stop blogging and grade the last 60 exams -- now!").

I believe that these statements, by the way, are consistent with Hilary Putnam's views expressed in "The Collapse of the Fact/Value Dichotomy," by the way. Except for that bit about my obligation to grade, which is simply a synthetic a priori proposition.