Abstract
In the previous chapters we have repeatedly mentioned values. For instance, when we examined principles we said that principles in the strict sense imply the assumption of “values regarded as categorical reasons with respect to any interest”. Therefore, we said, norms transporting those values — i. e., principles in the strict sense — always prevail over policies and play a predominantly negative role: they prevent that the pursuit of some interest harms those values. Now, this does not mean — we added — that policies are not also supported by values, at least if that expression is used in a wide (and common) sense; rather, we can say that what is implied here is another kind of values to which we then referred as social objectives, collective interests of an economic, social, cultural, etc. character.
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References
See, for example, Silva (1992, 340 ff.) who shows how, from an imperativist conception one can avoid all — or almost all — the ‘negative consequences’ attributed to that position by critics.
Cf. Mir 1976, 54, where, for example, he refers to power-conferring norms.
We will not go into that last kind here; but it may be interesting to call attention to one point of their treatment by Mir. In his opinion, a norm stipulating security measures, “in contrast to criminal provisions, cannot be a command or prohibition addressed to citizens, nor a legal-ethical valuation referred to their addressees. They cannot direct an imperative at citizens, because they do not refer to behaviour that is prohibited, but to states of affairs in which a subject is dangerous, and one cannot imagine that it could be prohibited to be dangerous. Imperatives cannot refer to a way of being, but only to a way of acting. But one also cannot think that bills foreseeing security measures presuppose a legal-ethical valuation, because the latter can only concern conducts a subject can avoid, and not personal characteristics like being dangerous. What happens is that the provisions stipulating security measures do not entail any ‘primary norm’ addressed to citizens: neither an imperative norm, nor a norm of legal-ethical valuation. They only contain the norm addressed to the judge ordering him to impose a security measure on dangerous subjects” (1990, 45). We think that what Mir says here is not objectionable, provided it is understood as referring to the concept of a norm related to security measures. But that should not make us forget that under the label of a ‘norm related to security measures’ one can accomodate — as has frequently been the case in history — provisions ordering the judge to impose certain kinds of unpleasant treatment as a consequence of certain activities or conducts, such as ‘habituall vagrancy and begging’. In those cases, it seems obvious that the legal order attempts to deter from performing those activities or conducts, and that, in this sense, it makes perfect sense to think that a provision of that type contains a prohibition of habitual vagrancy or begging, and a negative ‘legal-ethical valuation’ of them. That such cases constitute instances of a ‘perverse use’ of the institution of security measures is, we think, uncontrovertible; but that does not affect our point.
With good reason, Juan Carlos Bayón has pointed out to us another case of incomplete correspondence, located outside of the sphere of law. It is the case of acts known as’ supererogatory’ in moral theory. An act is called supererogatory if its performance is praiseworthy, but its forbearance is not blameworthy (because it violates no duty). A typical example is that of the soldier who throws himself on an exploding grenade and dies, in order to save his comrades’ lives. Intuitively, everyone would probably accept that the soldier in question has done something that deserves a highly positive moral evaluation; but we would not say that because they did not do the same thing the other comrades failed to comply with a duty. Other examples of supererogatoy acts are less pathetic: if N, a very busy person, manages to visit her sick friend X every night, taking care every day to offer him entertainment and diversion in the form of books, videos, etc., we would say that N has acted better than if she had only visited X three times a week; but in the latter case we would not say that N had failed to comply with her duties as a friend. Thus, we can say of a supererogatory act that doing it is valuable, but not obligatory. Therefore, the evaluative and the directive spheres, to some extent, seem to separate. The status of supererogatory acts poses very difficult questions for ethics because it is not easy to accomodate them within a consistent conception of morality: How is it possible that performance of an action which, in some context, is the most valuable of all possible actions, is not obligatory? Must we not always do what is best? Actually, some very influential moral theories leave no room at all for the concept of supererogatory acts: According to classical utilitarianism, for example, agents must always choose the course of action that produces the greatest global good, irrespective of the cost this implies for the agent himself. And if James S. Fishkin (1986) is right in categorizing them under the label of’ systematic impartial consequentialism (SIC)’, the same would be true of moral theories as distant from utilitarianism as those of John Rawls or Bruce Ackerman: the repeated admission of supererogatory acts in A Theory of Justice would be inconsistent with Rawls’ basic position — grounded on the equal consideration of everyone’s interests — that agents may not give special weight to their own interests or those of persons close to them. One way open to this kind of conceptions of morality for accomodating supererogatory acts is the one suggested (and rejected) by Raz (1986, 197 f.): supererogatory acts could be understood as acts that are in fact obligatory, but compliance with which requires such extraordinary personal qualities that, while their omission cannot be justified, it can, however, be excused. But it would hardly be accepted as an adequate characterization of what the soldier in the first example did to say that he complied with his duty, whereas his comrades failed to do so, although they had an excuse for it. Except for fanatics, everyone would agree that what the soldier in question did was beyond the ‘limits of obligation’ (for this expression, cf. Fishkin 1986 and 1982), and that such conduct could not be required, neither of him nor of his comrades. This kind of considerations has led Bayön (1991a, 364) to reject the assertion sustained — he says — by many moral philosophers that the sentences ‘There is a moral reason for performing acts of class P’ and ‘The acts of class P are prima facie obligatory’ express exactly the same thing. In Bayón’s view, with respect to the class of supererogatory acts, the first sentence is true — because “otherwise one would not understand why their performance is morally praiseworthy, and not morally indifferent” —, but the second is false, because of supererogatory acts “we don’t say that they are ‘obligatory’, not even prima facie”. However, in our opinion there is a way that allows us to assert that supererogatory acts are prima facie obligatory as well as that they are acts the performance of which, all things considered, is beyond the limits of obligation. Let us return to the example of the soldier: If we ask what act it was the soldier performed, and we answer’ saving the lives of his comrades’, then it was undoubtedly a prima facie obligatory act, since’ saving the lives of others’ obviously is a prima facie obligatory act: everyone would agree that saving the lives of others under circumstances that do not imply a substantial sacrifice for the agent is obligatory, all things considered. What makes the act performed by the soldier supererogatory is that, in this case, saving the lives of others did imply a very substantial sacrifice on the part of the agent. To see things in this way implies that supererogatory (individual) acts are cases of prima facie obligatory (generic) acts, performed under circumstances — as in the case of the soldier — or through activities — as in the case of the daily visit to the sick friend — such that performing the action goes beyond the limits of obligation (on the distinction between act or action and activity, which comes from von Wright, cf. Appendix to ch II, n. 2). In this light, we think that Rawls is right when he says (1971, 439) that “supererogatory actions are ones that would be duties were not certain exempting conditions fulfilled which make allowance for reasonable self-interest”. If we go back once more to the example of the soldier, the condition for reconstructing things in this way is, of course, that the act carried out by the soldier is described as ‘an act of saving the lives of others’. If we would describe it as ‘an act of sacrificing one’s own life in order to save the lives of others’, the supererogatory would be located not in the circumstances of performance of the individual act, but in the generic act itself. The relevant difference between the first — ‘an act of saving the lives of others’ — and the second description — ‘an act of sacrificing one’s own life in order to save the lives of others’ — is that the first, but not the second points to the con-sequence (the change in the world) constituting the agent’s intention. And it is justified to point to the consequence constituting the intention of the agent — as a criterion for the description of an action —, because it is the intention that makes the act morally valuable: what the soldier did was morally valuable because it was done in order to save the lives of others and not, for example, in order to commit suicide or to be admired posthumously. On the other hand, we agree with Bayón that the reason why supererogatory behaviour cannot be required is the moral relevance of the agent’s autonomy, that is, the weight an agent may legiti-mately give to his own personal projects: the value of personal autonomy is the barrier which in the case of supererogatory acts prevents complete correspondence between the evaluative and the directive spheres, because in the contexts here described it does not allow one to pass from the assertion that ‘X is the most valuable action, all things considered’ to the assertion that ‘X is obligatory, all things considered’.
This can help us clarify why Nino insists that legal norms offer only auxiliary reasons for acting, and not operative reasons (cf. Nino 1985b). When formulating that thesis, Nino is thinking of a legal norm in the sense exemplified in 2), or one similar to it — a norm as an act of prescription or as a social practice — and not as an ought-judgment — of the kind exemplified in 3) — which takes into account (as auxiliary reasons) the fact that certain prescriptions were issued by certain persons (organs, procedures, etc.), or the fact that there is a certain social practice. In any case, it is remarkable that an author like Nino, who probably has insisted more than anybody else on the plurality of concepts of ‘legal norm’ (cf. not only the papers contained in Nino 1985, but also Nino 1992 and Nino 1994), would enter into a dispute based merely on a misunderstanding.
The position sketched here is, of course, the exact opposite of the one defended by Kelsen; for him, in fact, norms — understood as directives that are the meaning of an act of will — constitute the foundation of all value judgments (Kelsen 1960, 18), and therefore it holds that: behaviour that is in accordance with a norm has positive, and behaviour that violates a norm has negative value (Kelsen 1960, 17).
In our opinion, thus, whether a sentence has the form of a value judgment or of a principle does not make any difference for its meaning, but only for the relative emphasis of its evaluative or directive dimension. For example, article 1.1 of the Spanish Constitution now says: “Spain is constituted as a social and democratic State under the rule of law, declaring as the highest values of its legal order liberty, justice, equality and political pluralism.” But the Constitution would not be any different (except for the substitution of ‘political pluralism’ by ‘peace’) if one of the other proposals had prevailed, which was: “Spain is constituted as a social and democratic State under the rule of law, declaring as the principles of its legal order liberty, justice, equality and peace.” Another matter is that the language of values is usually more abstract than that of principles. For example, in the Spanish Constitution, the value ‘equality’ corresponds at least to the following different principles: equality before the law (art. 14); real or effective equality (art. 9.3); political equality (art. 23); fiscal equality … But, then, the difference is not between evaluative sentences and normative sentences of principle, but between sentences of a higher or lesser degree of abstraction; also, there would be nothing strange about speaking of the value of equality before the law, of the value of real equality, etc. However, this is not the opinion of Gregorio Peces-Barba. In his view, the use of the term ‘principles’ in that article, instead of ‘highest values’, would have meant “to relapse into positions of natural law” (Peces-Barba 1984, 51), because that “would have suggested that there are a priori concepts which positive law must guarantee” (ibid., 52). We do not see how the opposition between natural law theory and legal positivism has anything to do with the use of the terms ‘principles’ or ‘values’ (Peces-Barba thinks that one of the main motives for having used the expression ‘highest values’ is that of overcoming that opposition ibid., 53); we do think, however, that his basic conception of the highest values incorporated in the Constitution, and the distinction he draws between them and the principles appearing in other constitutional articles is more or less correct. According to Peces-Barba, the difference lies in the perspective of the globality or totality of values, on the one hand, and in the fact that values have a normative nature, but are, in some sense, ‘prior’ to — that is, serve as the foundation for — the remaining norms (including principles), on the other (ibid., 39 ff.). In our terminology, this means that value judgments have a directive dimension, i. e., that they somehow guide behaviour, that the justificatory or evaluative element is prior to the directive one, and that the ‘highest values’ contained in article 1.1 are the most abstract, such that constitutional ‘principles’ can be seen as specifications of these values. But we do not think that any of this had changed if article 1.1. had used the term ‘principle’ instead of ‘value’. In the same direction, cf. Rubio Llorente (1995).
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Atienza, M., Manero, J.R. (1998). Values in the Law. In: Laporta, F.J., Peczenik, A., Schauer, F. (eds) A Theory of Legal Sentences. Law and Philosophy Library, vol 34. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0848-8_4
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