Seminar: ‘Authority, morality, legality: the Goldilocks problem for moral positivism’ – Abby Everett Jaques (MIT)


A signature claim of positivist views about the law is that what laws there are, and what laws there ought to be, are separate questions. As Austin famously said, “The existence of law is one thing; its merit and demerit another.” This distinction is achieved by linking the existence and content of law to certain social facts—in particular, in the simplest and earliest versions of positivism, to certain authoritative demands, where the authority that underpins the demand is not derived from the content of the demand, but rather from its source: paradigmatically, a sovereign backing her orders with coercive force.

In this paper, I suggest that certain recently popular views in metaethics, exemplified in the work of Stephen Darwall but reaching well beyond his corpus, amount to a kind of Austinian moral positivism—and that this gives us reason to think they are untenable. The views in question take second- personal moral demands to be the fundamental moral phenomenon, and claim such demands are made authoritative in virtue of some status all people (supposedly) have—e.g., being free and rational. My argument proceeds by considering what kind of authority would be required to make demands morally binding not in virtue of their content, and concludes that not only is the kind of basis proposed neither necessary nor sufficient, in fact there is no plausible basis for such authority in the moral domain. The moral positivist thus faces a dilemma:  either a given moral demand will be morally redundant, because its force will reduce to moral reasons present even without the demand, or it will be coercive, and so not a moral demand. Necessarily it will do either too little or too much, so it can never be just right: this is the Goldilocks problem.

I then consider the post-Austin refinements to legal positivism to see if they offer a way out for the moral positivist, and find that they do not. I conclude that contemporary versions of moral positivism cannot escape the difficulties faced by earlier incarnations such as divine command theory. (Indeed, the Goldilocks problem can be understood as simply another face of the Euthy- phro dilemma.)

In closing, I note that it is precisely the strengths of legal positivist views that become the points of failure for any moral positivist view. Most significantly, in the moral case, we cannot separate the question of what is required from what ought to be required. So while it is a commonplace to think of morality as a kind of law, this paper offers reasons to be cautious in doing so.

Discussant: Silvan Wittwer