Meta-Ethical Agnosticism in Legal Theory: Mapping a Way Out

Abstract

In his review of Williams' Ethics and the limits of philosophy, Hart eloquently formulated an apprehension that still haunts much of contemporary jurisprudence: if the moral 'I must' has to be 'seen as coming not from outside, but from what is most deeply inside us [...] the fear is that this will not be enough.' I argue that this fear is the byproduct of the dualist outlook within which Hart - and a significant part of contemporary legal theory - is confined: because of his bald naturalist premisses, Hart could not conceive of moral objectivity except in terms presupposing an order of Reason resolutely distinct from the 'natural' world. In view of the heavy metaphysical assumptions needed to sustain such a rationalist outlook, Hart surrendered instead to a cautious agnosticism. This paper proceeds in two steps. A first it seeks to debunk this dualist outlook by engaging with the kind of 'non-bald' naturalism advocated in different ways by both McDowell and Blackburn. Subsequently considering contemporary efforts to draw a middle way between ethical skepticism and metaphysical rationalism, this paper draws on the pragmatic elements emerging from the confrontation between Habermas and Rawls. Together with the critique of 'physicalist' naturalism, I take these pragmatist insights to be key to conquering a traditional reluctance when it comes to accounting for law's axiological dimension.

Keywords: ethical objectivity, pragmatism, Raws, Habermas, McDowell, Blackburn, normativity, Hart