Critical Normativity

Law & Critique, Vol. 20, p. 27, 2009

Harvard Public Law Working Paper No. 08-46

23 Pages Posted: 6 Oct 2008 Last revised: 16 Mar 2009

Joseph William Singer

Harvard Law School

Date Written: March 13, 2009

Abstract

Is there any difference between a preference and a value? When we say that some course of conduct is wrong, do we have any basis for backing up our claim? Some skeptics insist that statements about right and wrong are merely expressions of preferences - strong preferences, perhaps, but preferences nonetheless. To the contrary, I want to argue that values are not the same as mere preferences.

Efficiency theorists seek to maximize social welfare by satisfying preferences, whatever they happen to be. Postmodernists argue that all values are socially constructed and not founded in any supranatural order. If postmodernists and economists are right, then arguments based on considerations of justice and fairness are nothing more than rationalizations for power relationships. But I argue, in contrast, that no one really believes this. Critical analysis of skeptical arguments shows that we do make strong evaluations of human claims and that we reject certain preferences as illegitimate and not worthy of being considered in any moral calculus.

This article argues that skeptical doubts about the foundation of value claims are based on the value judgment that it is wrong for some individuals to impose their values on others. To the contrary, I argue that deference to others, no matter what they think, is an interpretation of what it means to treat others with equal concern and respect, but it is a faulty interpretation of that moral value. It assumes that we are free to indulge in any preferences we like and that it is no one's business but ourselves what we choose to believe. But this again is false. The assertion of a preference is not a self-regarding act. While it may be true that holding a preference may be a self-regarding act, asserting it against another and demanding that others defer to one's preferences is anything but a self-regarding act. And actions that affect others require justification. Values are different from preferences because they entail claims we make on each other. Critical normativity requires acknowledgment that human beings cannot live without such claims but that we are obligated to be careful about them. What we need is an attitude of restraint and caution combined with a fierce belief in justice.

This article illustrates this stance by telling three parables of justice, focusing on a town in Vichy France that saved thousands of Jews from the Nazis and the predicament of the main character in the movie Stranger than Fiction who sought to come to be the author of his own life.

Keywords: legal theory, jurisprudence, political theory, moral theory

Suggested Citation

Singer, Joseph William, Critical Normativity (March 13, 2009). Law & Critique, Vol. 20, p. 27, 2009; Harvard Public Law Working Paper No. 08-46. Available at SSRN: https://ssrn.com/abstract=1278154 or http://dx.doi.org/10.2139/ssrn.1278154

Joseph W. Singer (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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