7. Hume’s legal functionalism

7.1. Words to remember

adumbrate	намёк, очертание, эскиз, намётки
de-mystification motif	намерение демистифицировать
concealed	прятать
pedigree	родословная
deception	надувательства
consent	соглашение, согласие
allegiance	верность, преданность
controversies	спор, полемика
virtues	суть, сущность
premise	предпосылка
endorse	передавать
vicious	порочный, злой
denunciation	донос

7.2. Read the text.

As stated in the introduction, my purpose is to explore a fictionalist account of law’s normativity. It is generally believed that legal functionalism was adumbrated by Jeremy Bentham; in fact, as Hart says, “the de-mystification motif colours [Bentham’s] general theory of law.”28 In Hart’s illuminating exposition, Bentham thought that “laws are at bottom nothing but commands, prohibitions or permissions, artefacts of the human will,” though law’s real nature is concealed by the conventional formulation of laws in nonimperative language.

Without denying the Benthamite pedigree of legal fictionalism, in my opinion it was David Hume who provided the most fruitful analysis of the role of deception in the maintenance of legal conventions. For Hume justice is an artificial virtue arising from the conventions of justice – stability of possessions, transfer of property by consent, and promises.He extended this conventionalist approach to political allegiance. Therefore, the normativity of political conventions can also be explained in terms of the functionalist approach developed for the conventions of justice. Though Hume’s account could certainly be considered a form of legal conventionalism, it should be distinguished from contemporary forms of legal conventionalism by its factionalist analysis of normativity.

A. The Artifice of Fictional Motives

Hume’s theory of the conventions of justice has given rise to deep controversies. To start with, we must notice that Hume analyzes moral concepts in sentimentalist terms. For Hume moral terms denote (as opposed to express) the speaker’s natural moral sentiments. Indeed, Hume says that “when you pronounce any action or character to be vicious, you mean nothing but that from the constitution of your nature you have a feeling or sentiment of blame from the contemplation of it.”

He also states that “when any action, or quality of the mind, pleases us after a certain manner, we say it is virtuous; and when the neglect, or nonperformance of it, displeases us after a like manner, we say that we lie under an obligation to perform it.” Hume applies this sentimentalist scheme of analysis to what he calls the “natural virtues,” such as beneficence, clemency, generosity, and charity.

On this view, justice would be a rule-based virtue, rather than a motive-based one. When justice is equated with the external performance of acts that comply with the rules of justice, the sense of duty might be identified in a noncircular way, because justice is to be found in the external performance, not in an internal motivational state. For instance, the sense of duty could be the sentiment that just acts are obligatory. This internal sentiment would only become relevant to ensure that the act is really (i.e., “subjectively”) just, as opposed to only apparently (i.e., “objectively”) just.

Darwall points out that it is crucial for Hume that the rules of justice have for each participant what Hart called an “internal aspect” – that each regard the rules prescriptively.

Hume defines “obligation” in a sentimentalist, “internalist” way, but he also says that the idea of obligation is “altogether unintelligible” before the “convention, concerning abstinence from the possessions of others, is enter’d into.”39 The only way to reconcile these two claims is to take Hume in the latter quotation as referring to an artificial obligation, that is,

B. The Is–Ought “Fallacy”

The is-ought fallacy is when someone assumes a conclusion based on an ‘ought’ rather than an ‘is’. The major problem is that an ‘ought’ is often derived from an instinct, false premise, or  cultural morality. As is well known, Hume endorses two views on the relation between facts and values that are apparently contradictory.

On the one hand Hume adopts a sentimentalist analysis of moral terms, among them (“natural”) “obligation.” Thus, the judgment “we lie under an obligation to perform X” is synonymous with “the nonperformance of X displeases us from the constitution of our nature.”

On the other hand, the “is–ought fallacy,” that is, the presumed fallacy of deducing moral conclusions or premises that are merely factual. Ever since G. E.Moore introduced the label “naturalistic fallacy,” it has been common to think that Hume rejects the derivation of prescriptive judgments from merely descriptive statements. However, it is plain that Hume does not at all share Moore’s thesis that naturalism commits any “fallacy,” because he himself provides, as we have just seen, a sentimentalist analysis of moral predicates such as “virtuous,” “vicious,” and “obligation.” This being so, it is obvious that Hume thinks that a speaker can deduce the moral judgment “X is virtuous” from the first-person naturalist statement “from the constitution of my

nature I have a feeling of praise from the contemplation of X.” This is no fallacy, but just the exposition of Hume’s naturalist outlook. And, of course, as Frankena has shown, it would beg the question to claim that this reasoning is fallacious just because one assumes that naturalism is false.

Accordingly, Hume’s is–ought problem is really that of explaining how “external” facts can entail new obligations. Indeed, as against the standard interpretation, I contend that Hume certainly allows an “ought” to be derived from an “is.” This can happen in two different cases: first, when the “is” refers to the constitution of our own nature, that is, to our natural moral feelings (this is the clearest case); and second, when the “is” denotes “external” facts that are relevant within certain institutions (conventions of justice). In the latter cases, he does not regard the inference as impossible, but rather as puzzling, that is, as demanding an explanation. And a mysterious reasoning is not necessarily fallacious.

The best interpretation of the is–ought passage does not see it as the denunciation of a fallacy, but as the preamble to an explanation of artificial “ought”s. Such “ought”s can be deduced from “is”s, even if the inference is not warranted by the meaning of moral obligation. This is why Hume demands an explanation. Those, therefore, who make use of the word property, or right, or obligation, before they have explain’d the origin of justice, or even make use of it in that explication, are guilty of a very gross fallacy, and can never reason upon any solid foundation.