The non-central fallacy and Law

by ThomasMore4 min read14th Mar 2021No comments

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A recent post by Matthew Barnett discussed the potential use of the non-central fallacy. Two stock examples seem to be 'taxation is theft' and 'eating meat is murder.' What is interesting is that, as well as being popular labels, 'theft' and 'murder' are both legal categories. 

This post will briefly discuss some of the added complications which follow from their 'legal' quality. It has two parts:

  1. First, that even if legal categories can be reduced to a complex array of moral positions, to jump straight there will confuse people. 
  2. Second, 'legal' categories, if reduced, usually have their own connotations distinct from commonplace concepts. 

Part 1: What Makes 'Murder' Different

Can we reduce the criteria for a legal category, such as 'murder', 'theft', or, to a lesser extent  'cruelty', to a series of moral standards? 

Example 1: 'Cruelty'

Some discussion on the non-central fallacy implies we can. A good summary of what this kind of reduction would look like can be found in Barnett's steel-manned non-central fallacy: 

Person A: "I'm not saying that animal farming merely fits the dictionary definition of cruelty, and therefore we ought to treat it exactly like every other case that matches that definition. 

Look, why do we think that torture and child abuse are wrong in the first place? For me, it's because those things involve involuntary suffering, and I think involuntary suffering is bad, no matter who experiences it. When I said that animal farming is cruelty, I was merely using that word as short-hand to convey my stance on involuntary suffering."

Here, cruelty is reduced to a set of (contested) moral positions. For instance, there is 'involuntary suffering is wrong' and 'the wrongness of involuntary suffering does not depend on the subject being a human.' 

'Cruelty' in this form could be seen as a useful, albeit superfluous, heuristic device for organising a sub-set of what we think is morally wrong. When we want to work out if a potential member qualifies, we would use morally salient features to determine similarity or difference. 

Addendum

Admittedly,  'Cruelty' is not the best example for my point because it is not commonly thought of as a 'legal' category. See below. Nonetheless, in Barnett's post 'cruelty' is treated the same as 'murder' and 'theft' without distinguishing their legal status, so it can be assumed we are interested in whether the same kind of deconstruction is possible for all of them. 

Example 2: 'Murder'

Similarly, take Barnett's treatment of the label 'murder':

How do Scott Alexander's other examples fare? He also mentions the argument "Capital punishment is murder!" My steelman for "taxation is theft" can easily extend to this case too. The reader can probably fill in the blanks: just as we wouldn't accept the justification "but that guy was evil" as a good one in the case of ordinary murder, maybe we should also be skeptical when the state makes the same excuse for capital punishment.

Again, it would appear 'murder' and 'theft' are being treated as useful heuristic tools for discussing underlying moral arguments. The category itself is not doing any extra work on top of the moral points - at most it just helps us reason consistently. 

Should we always Reduce immediately? 

As noted above, what makes these particular categories interesting is that they are legal as well as general. I suggest this quality complicates reduction to moral terms. A common position in this debate is 'legal positivism.' For a legal positivist, the law is a normative category autonomous from morality, determined by formal sources (eg, statute book). This position can be summarised pithily with the line 'evil law is still law.' 

Whilst most people don't think about these issues too much, they often implicitly take a view on them. For our present purposes this is enough: if most people are roughly legal positivists, this will complicate discussion of legal rules solely in terms of moral principles. This is relevant because merely giving the labels 'legal' or 'illegal' to a set of scenarios will be doing a lot more work. 

This can be illustrated by the following exchange: 

Person A: hey, you can't park there, that's illegal! 

Person B: ah, yes but that law makes no sense after they changed the zoning rules. It doesn't harm anyone to park here, and I can't see anything else wrong with doing so. Therefore I will. 

Person A: yes but it's still illegal! 

Evidently Person A views 'illegality' as an independent reason for action from the moral merits or demerits of the action. 

If we were to ask Person A more closely what makes something illegal, they would probably say it is illegal because of 'that sign over there' or 'the policeman said so.'

The point is that if you are a positivist you will identify law based on formal sources, such as official orders, statutes, edicts, codes, caselaw, etc. These sources can appear to (A) produce a system of rules independent from morality; (B) reasons for action outside the moral or prudential. 

Yes, it might be irrational to do something just because 'it's the law', but many people do implicitly attach significant weight on this label, irrational or not. To ignore this and proceed straight to weighing up moral principles skips a step. 

When discussing categories like these with others, you'll need to push back against this 'but that's (not) the law' instinct. Once you do, perhaps by trying to provoke reflection on why it's the law, or what the special significance of something being law is (if any),  you'll realise that they include a range of other connotations. 

Hence, even if you can reduce a legal category to moral propositions, it would be a mistake to assume it's going to be the same as any other general category (ie, like 'traitor' or 'liar'). 

These connotations usually stem from the close identification of law with those formal sources, mentioned above. Sorting something into a 'crime' box could include: 

  • 'This activity deserve punishment and ought to be prohibited'
  • 'This activity is socially disapproved of'
  • 'The state has decided it is serious enough to deserve punishment, hence it must be serious.'
  • 'The law, and when punishment is allowed, is decided by the legislature, which is a representative body. Accordingly, it isn't up to me as a single citizen to disregard its view.'
  • 'We need the authorities to decide what the law is, rather than you and I, otherwise it would be chaos.' 
  • 'Police will probably beat you up with sticks if you do that, so I wouldn't if I were you.'

These are obviously context dependent; further, this isn't to say they are good reasons for regarding an activity as good or bad, or for providing reasons for action. Rather, it is to say that when something is a legal category it will come with a lot more baggage than the usual discussion of the moral merits of an activity. 

What makes this particularly tricky is that these words cover both legal and general categories. The clash between the two can be observed in the question 'I know the law says that killing someone by mistake with a slap is murder, but it's not really murder is it?' Sometimes the legal label dominates, other times it doesn't: take 'cruelty' - although incorporated into many laws, it is obvious the general concept of 'cruelty' is what dominates. If someone was doing something  which appeared cruel, it would be odd to say 'ah yes but not according to the law', in a way it wouldn't for murder. 

Conclusion

This article is not arguing legal concepts are irreducible. In fact, if they were that would make rational discussion difficult: eg "why can't I?" "because it's the law."  

All it argues is that (A) legal concepts, by dint of being 'legal' often invoke pre-emptive feelings towards the acceptability of behaviour; (B) even after deconstruction can be more complicated than general-use concepts. 

In discussion, it is worth bearing these in mind.

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