Continuity in Morality and Law
Theoretical Inquiries in Law, Vol. 22, pp. 45-85, 2021
54 Pages Posted: 25 Oct 2020 Last revised: 27 Jan 2021
Date Written: May 2, 2020
According to the an influential and intuitively appealing argument (the Continuity Argument): (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when action is reasonable (as positive law sometimes does). In this paper, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong – even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are both reasons in favor and reasons against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous and specifically that it should be often continuous.
Keywords: Morality, Law, Continuity, Scalar Consequentialism
JEL Classification: K10, K13, K14,
Suggested Citation: Suggested Citation