Introduction
Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact-value distinction. Of course, the relationship between fact and value is a deep and complex philosophical topic. Even a survey of the basic topics would take us far afield into the heart of metaethics and across the fields of normative theory and moral philosophy. Nonetheless, we can take a quick look at three important ideas with which every legal theorist should have a basic familiarity.
Hume on Deriving an Ought from an Is
The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "ought" from an "is." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason.
What is Hume up to? One might start with the idea that Hume's point is about the form of moral arguments. If all the premises are "is" propositions, then perhaps Hume is claiming that some sort of logical fallacy has been committed if the conclusion of the argument is an ought statement. Consider this example:
Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
Conclusion: Therefore, the United States ought to withdraw from Iraq.
We might think that there is a missing premises, which would be of the form:
Premise: The United States policy towards Iraq ought to aim at saving lives and improving the condition of the Iraqi people."
But there is a problem with this interpretation of Hume's point. One can easily produce a version of the argument that contains only is premises, but that looks more or less valid.
For example:
Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy.
Conclusion: Therefore, the United States ought to withdraw from Iraq.
I'm sure that you, gentle reader, have run ahead of me, and are at this very point objecting that the second premise includes a covert "ought" statement. And perhaps it does, but the point of the exercise is that Hume's point is not just about the formal qualities of moral arguments. For his point to get off the ground, it must have substantive metaethical punch--it must be grounded on some theory about what counts as a fact and what counts as a value.
G.E. Moore on the Naturalistic Fallacy
The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition.
The debate over Moore’s argument is almost endlessly complex, but it is possible to give an example of how the debate goes that will show that Moore’s argument may have started a conversation, but it was not a conversation stopper. Moore’s argument is based on the idea that an assertion that “x is good” if and only if “x is pleasurable” is a claim about meaning. What Moore seems not to have noticed is that “goodness” and “pleasure” might denote the same property, but not mean the same thing. This possibility is famously illustrated with the example of “water” and H2O. We can agree that all water is H2O, but, at the same time, believe that the meaning of “water” is different than the meaning of “H2O.” We know this is true, because chemists had to discover that water was H2O—prior to the discovery, the relationship of water to the elements, hydrogen and oxygen was unknown or imperfectly understood. But it is not just the case that being water and being H2O are merely coincident properties, as being a member of the Illinois philosophy department and not having grown up in Japan are merely coincident. Water is H2O. It was an open question whether water was H2O at one time, but this did not preclude the possibility that water just was H2O.
Emotivism, Relativism, and the Fact Value Distinction
The fact-value distinction relates to a third debate in metaethics--the controversy over the meaning of moral language. That's really a whole topic unto itself, but I want to briefly explore one aspect of that debate in this entry in the Lexicon. In the popular culture, the idea is that factual assertions or beliefs are, in principle, demonstrably true or false, whereas moral beliefs are neither true nor false, but simply matters of opinion and culture or the products of relations of power and subordination. That is, the fact-value distinction that holds sway in the popular imagination is tied to philosophically naïve versions of moral relativism, sometimes infused with a smattering of dimly comprehended noncognitivist metaethics. "Noncognitivist metaethics" is quite a mouthful, but the gist of noncognitivism is simply the view that moral assertions are neither true nor false: in other words, they are not "truth apt." One form of noncognitivism is "emotivism," the view that moral statements express emotions; a crude (or "reductio") version of emotivism is the so-called "boo hooray theory." The meaning of "Murder is wrong" is "Boo Murder!" The meaning of "Respect for human rights is good" is "Hooray human rights!" I won't offer arguments for or against noncognitivism or relativism here--but I will note that these views do not command support from a consensus of philosophers who work on metaethics. At the very least, they are deeply controversial.
The Entanglement of Fact and Value
It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line.
Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law!
If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth.
Conclusion
Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way! Even though this advice is sound, you need to be aware that the fact-value distinction is much more controversial and contested than you might think. Any argument in legal theory that relies on Hume's is-ought move, Moore's naturalistic fallacy, or noncognitivist metaethics is vulnerable to attack.
Related Lexicon Entries
References
- David Brink, Moral Realism and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989). Highly recommended.
- Terence Hogan and Mark Timmons, “Troubles for New Wave Moral Semantics: The Open-Question Argument Revisited,” Philosophical Review 21 (1992) 153.
- G.E. Moore, Principia Ethica (Thomas Baldwin ed. Cambridge University Press 1993)
- David Hume, Treatise on Human Nature (Clarendon Edition of the Works of David Hume edited by David Fate Norton & Mary J. Norton, Oxford University Press 2007).
Resources on the Internet
- Rachel Cohon, Hume's Moral Philosphy, Stanford Encyclopedia of Philosphy
- Richard Joyce, Moral Anti-Realism, Stanford Encyclopedia of Philosphy
- Michael Ridge, Moral Non-Naturalism, Stanford Encyclopedia of Philosophy
- Mark van Roojen, Cognitivism vs. Non-Cognitivism, Stanford Encyclopedia of Philosophy
(This entry was last revised on April 1, 2023.)
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