Prima Facie vs. all Things Considered

We can by all means say that the general principle “An innocent man shall not be killed” contains certain “objective elements”. In this regard, the “objective” dimen­sion of the principle refers either to the wide acceptance of the principle (empirical dimension) or to the validity of it (normative dimension).

As was referred to above, general principles like “An innocent man shall not be killed”, independent of their formulation, are in need of interpretation when being applied to practice. This results from the nature of language. All linguistic expres­sions belong to a certain language-game, why they all are contextual as to their nature. There are no single expressions for which the meaning is unambiguous and given in advance.

In this regard, Aleksander Peczenik spoke about prima facie reasons or obliga­tions (Peczenik 1989,238). The same term had already been used by Sir David Ross who argued, against G.E.Moore, that maximising the good is only one of the several prima facie obligations that play a role in determining what a person ought to do in a certain situation (Ross 1930,41; Williams 1985,176). Theprima facie obligations other than maximising good have already been dealt with above.

However, Shelly Kagan has argued that Ross does not actually speak about prima facie but rather pro tanto reasons or obligations:

... in distinguishing between pro tanto and prima facie reasons I depart from the unfortunate terminology proposed by Ross, which has invited confusion and misunderstanding (Kagan 1989, 17).

Kagan herself argues that a pro tanto reason has genuine weight, but, nonetheless, may be outweighed by other considerations, whereas a prima facie reason involves epistemological qualifications. Referring to that, Kagan continues: “a prima facie reason appears to be a reason, but may actually not be a reason at all” (Kagan 1989, 17).

Shelly Kagan is right. Prima facie is an epistemological qualification, or at least something like it, and it is in this very sense that the term is used by Peczenik. According to him, prima facie reasons are starting points for further interpretation procedures. It challenges one to provide justificatory reasons for prima facie obliga­tions. As it happens, they are not “binding” fundamentals, to say nothing about their being “final” arguments, even though they have swept people along throughout the ages.

What is essential for general principles of the prima facie type, such as the afore­mentioned prohibition, are the (normative) exceptions. Gottfried Wilhelm Leibniz spoke about an “internal” measure (Leibnitz, passim,). Every matter either has a locked or open internal measure. A circle is internally closed. A line, on the other hand, is open. The concepts “happiness” and “kindness” are similarly open by their internal measure. We can never say that we are “completely” happy since there is always something that could make our happiness even greater.

The same goes for prima facie principles. According to their meaning in the considered culture, such a statement decides that an action of the kind it indicates ought to be performed ceteris paribus (Searle 1978, 88; Aarnio and Peczenik 1996, 18). They are normatively open and, as such, are a challenge for interpretation. In this regard, the crucial points are the reasons provided in applying the general prin­ciple to practice. General principles retain their force with the help of exceptions: “An innocent man shall not be killed, unless he is..All exceptions are stipulative and, as such, normative as to their nature. The exception can also refer to the notions “killing” and “man”. For example, an innocent man shall not be killed, unless he is a member of another tribe, race, etc. In this way, each application of a general prin­ciple is bound to its context. The prima facie statement has to be adapted to the case at hand “all things considered”.

When applied to practice, general moral principles become conditional. They can be used “more or less” depending on the situation, as is the case with legal principles too. The optimal content, all things considered, defines the contextual application of a general prima facie obligation. Thus the optimal point is a result of weighing and balancing.

In this view, “An innocent man shall not be killed” is a true moral principle. This is why the distinction between prima facie (PF) and all things considered (ATC) proves to be crucial in the areas of values, morality and law as well (Aarnio and Peczenik 1996, 324). It reveals not only the difference between the applications but also the reason for the importance of providing reasons for statements on value and morals. An individual application of the principle “An innocent man shall not be killed” can only be tested through its reasons. Only the reasons make it possible to take a critical stand toward value statements, morality and law. If there are no reasons, or if they are insufficient, the gates are opened for arbitrariness, since the reasons are being replaced - fully or partially - by the arch-enemies of rational thought: Persuasion and manipulation, even by the use of force (Toulmin 1968,185, 203, 1976, 234; Gregg, 289; Veitch, 105).

The empirical dimension exemplifies - but does not justify - the normative one. The Aztecs killed thousands of people from opposing tribes in the span of a single day, as the anthropologist Marvin Harris describes, and they could do it using interpretation - i.e., the exceptions made to general principles. The people killed were not “innocent”. A general principle can be fitted into a whole formed by time, place and circumstances, and the appli­cation is grounded by stating that the general principle allows the exception in question, like killing in self-defence.

In this regard, there is nothing like “objective morality”. One should not even try to aim at determining the exact content of the general moral concepts.

If people are ready to take part in rational discourse, the extreme opinions can be eliminated and the final result can be based on the shared opinions based only on adequate reasons with all things considered. In this case, people have gone as far as a human being can. Only gods or Ronald Dworkin's supreme judge Hercules can surpass the abilities and possibilities of men who accept these views.

The crucial point of the procedural theory is that the discussion cannot continue “endlessly”. There must be a “certain” foundation so that no additional reasons are needed. The firm final basis is as important for values as it is in the case of truth. As far as I can see, that basis can be found in our form of life. There is nothing in human life that is as certain as the primitive holdings of our form of life. With their support, we determine what we hold as right or wrong.

These final foundations cannot be contested or even expressed by language since they merely have to be accepted as given. We cannot go outside our thoughts and thus outside the form of life. It brings together social groups and makes an internal discussion on values possible inside a certain group and, with certain reservations, the dialogue between groups as well.

However, we can never know when we have reached the certain basis of our interpretations. This basis exists but it is outside rational argumentation. As we will see later on, this does not destroy the rationality of legal reasoning or frustrate the purpose of producing certainty in DSL.

The value objectivists do not accept this kind of relativism. According to them, values are necessarily objective as to their nature. This kind of objectivity may mean a number of things. First, the notion of objectivity is identical to the concept of independence of the subject. This characterisation of objectivity is again prone to the so-called argument of the open question: You think the values are objective, but for what reasons? Sometimes, the objectivity means that values exist in a special “value reality”. This ontological assumption presumes that the “value entities” can only be recognised by intuition, not by public means. However, intuition is not a means to reach knowledge in the true sense of the term.

Sir David Ross was an example of a moral theorist, who was a moral realist, a non-naturalist and an intuitionist. He argued that there are moral truths: “The moral order... is just as much part of the fundamental nature of the universe... as is the spatial or numerical structure expressed in the axioms of geometry or arithmetic” (Ross 1930,41).

St. Thomas Aquinas is another famous example of those who proceed from the assump­tion that practical deliberation is guided by natural ability (habitus). St. Thomas calls it synderesis. It is a property of the human mind, with the help of which man apprehends the most general moral principles. Some might speak of the “acquiring of moral knowledge. Still, synderesis is not just the ability to acquire moral knowledge. For St. Thomas, it is a natural, innate and infallible capacity for understanding moral principles and accepting them. For this reason, the basic premises of practical reason cannot be mistaken since syn- deresis has been given to man once and for all and cannot be weakened or diminished in even the direst of circumstances. It is and remains the basic ability that provides practical deliberation (practical syllogism) with its undisputed premises (O'Connor 1969, 22).

I do not see these kinds of theories as well-founded. One here meets Wittgenstein’s famous beetle example. Five people each have a different beetle in their matchboxes. No one opens their own box, but the five have a spirited discussion on the qualities of the beetles. Each has his own “private language”, and no kind of sensible discussion on the beetles is possible unless the parties concerned open the lids of their boxes. If a private and solely intuition-based value language would be possible, we would be facing a social dead-end.