Starting Point
Ethics and morals have been, and are by now, the subject of a wide and deep philosophical discussion. It would be waste of time even to attempt to deal with the main contributions on this topic.
In what follows, the focus is only on a limited number of issues where there seems to be at least some possibility to introduce a fresh understanding of the old question of values and morals. This chapter should therefore be read not as a comprehensive study of values and evaluations but as a limited analysis of their basic features and their role in the theory of DSL.I will defend two special theses: first, an extreme injust thesis (the moral foundation of law), and second, the thesis of moderate value relativism (Jorgensen 1982; Aarnio and Peczenik 1996, 321). The former deals with the ultimate justification of law, and further, what is, in the end, the object of the doctrinal study of law. The latter concerns the nature of value statements and their role in DSL.
At least the following positions can be taken as far as the nature of value statements is concerned:
1. Values are entities of their own, existing independently, and belong to the world in one sense or another,
2. values are properties of objects, like “black” is a property of a table, and
3. values are, or can be, derived from facts (they are reducible in a certain way).
From an epistemological point of view, both (1) and (2) have some problematic consequences. The “knowledge” about this kind of objectivity is not publicly controllable. The “knowledge” is personal, based on intuition or the like. As is well known, G.E. Moore defended the so-called “ethical intuitionism”. Moore agreed with an idea that the business of ethics is to discover the qualities that make things good. For him, the categorisation “good” is, however, an indefinable and non-natural property.
Something is good because it is good. One cannot prove if something is good, but one can know it. The question of intrinsic goodness can only be settled by appealing to what Moore calls “moral intuitions”, self-evident propositions that recommend themselves to moral reflection (Moore 2002, 1). For reasons referred to later on, this kind of intuitive knowledge is not a sound basis for a value theory, perfectly independent of whether values are defined as “existing” independently or are understood as properties of existing entities.Alternative (3) is related to Hume’s guillotine: A normative or evaluative sentence cannot be deduced from a factual one. Water and food are certainly necessary for the life of a human being, but it does not logically follow from this fact that every human being ought to get enough food and water. On the other hand, a value statement cannot be justified using facts as the only reasons, although we are all ready to say that getting food and water is a moral right for everyone.
Values are not mere feelings or otherwise subjective matters either. For the representatives of the so-called Uppsala school, as well as for C.L. Stevenson, value statements were only expressions of personal feelings. According to this view, it is impossible to use rational argumentation to support values. Value-nihilists like Hägerstrom, Olivecrona and other representatives of the Uppsala school concluded that one can only persuade others, not convince them rationally.
The thesis of moderate value relativism is also in deep contrast to R.M. Hare ’s “universal prescriptivism” (Hare 1952, 1981). Hare argues that moral terms like “good” and “right” have two semantic (or logical) properties, universability and pre- scriptivity. The term “universability” means that moral judgements must identify the situation they describe according to a finite set of universal terms. “Prescriptivity”, in turn, means that moral agents must perform acts they consider an obligation to perform, whenever they are able to do that. According to moderate value relativism, neither universability nor presciptivity in the Harean sense does hold's good.