Abstract
One of the basic presuppositions of H. L. A. Hart is that “survival” is a necessary goal of any association (except suicide clubs), and the contingent fact that most men most of the time want to go on living, gives a reason for Law and morals to have a particular content; I shall try to show that survival is a necessary condition but not a sufficient one. While most men (except those bent on suicide), most of the time, want to survive, most men (if not all), most of the time, want to be happy. That should have consequences for Law and morals and give a reason for Law, at least, to have certain features, too. The basic purpose or interest of human beings is “survival” when it is in danger, but cannot explain properly the basic social institutions when survival is overcome.
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Notes
Hart, H. L. A: The Concept of Law, Clarendon Press, Oxford, 1961, p. 187. It is not my aim to refute Hart’s criticism of Kelsen’s claim that ‘law can have any content’. I think, on the contrary, that Hart was right on this point. But, in so far as he accepts some specific rights and duties implicit in ’nature’ he is not any more a legal positivist and his difference from Natural Law thinkers is very little except that he focuses on survival, what I claim.
Ibidem, p. 187.
Ibidem, p. 188.
Ibidem, p. 188.
Ibidem, p. 189.
Ibidem, p. 190.
Ibidem, pp. 190, 191.
Ibidem, p. 191.
Ibidem, p. 191.
Ibidem, p. 193.
Ibidem, p. 193.
Ibidem, p. 195.
Aristoteles: La Gran Moral a Eudemo, 5 cd. Austral, Madrid, 1972, pp. 32, 33, 126, 127.
Hume, David: An Inquiry Concerning the Principle of Morals, Ch. W. Hendel (ed.) The library of liberal arts, Indianapolis, first edition, 1981, pp. 57, 58.
Ibidem, p. 61.
Ibidem, pp. 63, 64.
Ibidem, pp. 93, 94.
Ibidcm, p. 111.
Ibidem, p. 112.
Ibidem, pp. 130, 152.
Kant Manuel: Critica de la Raz6n Prâctica, Austral, Madrid, 1975, p. 93.
Kant Manuel: Pundamentaci6n de la Metafisica de las Costumbres, Austral, Madrid, 1990, pp. 53, 54.
Ibidem, p. 85.
Ibidem, p. 88.
Ibidem, p. 106.
Cela Conde Camilo: “On the phylogeny of Human Morality (ten years later)”, Human Evolution, 1990, Vol. 5-N.2 (139–151).
Ayala, Francisco: Origen y Evolucidn del Hombre, Alianza Universidad, Madrid, 1986, p. 172; other important contributions that basically coincide with the former are: Waddington, C.H: The Ethical Animal, Allen and Unwin, London, 1960; Lumsden, C.J. and Wilson E.0: Genes, Mind and Culture. The Coevolutionary Process, Cambridge Mass, Harvard University Press, 1981; Cela Conde, C: On Genes, Gods and Tyrants, Reidel, Dordrecht, 1986; Mosterin, Jestis: Filosofta de la Cultura, Alianza Editorial, Madrid, 1993.
Rescher, Nicholas: Rationality. A Philosophical Inquiry into the Nature and the Rationale of Reason. Clarendon Press, Oxford, 1988, p. 215.
Mosterin, Jestis: Racionalidad y Accidn Ilumana, Alianza Editorial, Madrid, 1978, p. 103.
Simon, Herbert: Reason in Iluman Affairs, Basil Blackwell, Oxford, 1983, pp. 72, 73.
Ibidem, p. 105.
Popper, Karl: Objective Knowledge, Clarendon Press, Oxford, 1973, p. 117. In a similar sense: Ayala, Francisco: Origen y evoluciôn del hombre, op. cit., espec. pp. 164 and ff.; Popper, Karl and Lorenz Konrad: The future is open, Tusquets, Barcelona, 1992, espec. pp. 72, 108, 110, 114, 115, 123, etc.; Fcrrater Mora, José: De la materia a la razôn, Alianza editorial, Madrid, 1979, espec. pp. 30 and ff., 71 and ff.
Baydn, J.C: La normatividad del Derecho, Centro de Estudios Constitucionales, Madrid, 1991; “If the subject wants to achieve those actions that, in net terms, promote the global satisfaction of his plan of life, we can say that his ”interests“ are precisely the ”ultimate desires“ and relatively lasting which together define this plan of life. This supposes giving a subjective view of the interests of the subject, which is a very polemic claim: for many, what the subject believe to be his interests does not necessarily coincide with his real interests, and only these and not the former, would be authentic prudential (justificatory) reasons for the action”.(p. 99)… “ In the stratified structure of the deliberation of the subject, what he considers his interests constitute a metapreference in relationship to his desires; but, at the same time, what he considers to be morally valuable constitute a metapreference in relationship to his interests (and, a fortiori in relationship to his desires). When saying that from the point of view of the subject that a preference - of any level - satisfies the condition ceteris paribus what it is intended to say is that it is not ”dominated“, that is, that the subject has not any practical negative atittude of higher level (a metapreference) towards her. Then, when claiming that certain interest is for the subject a valid justificatory reason - that is, he considers that the condition ceteris paribus has been fulfilled - it is claimed implicitely that he considers that there is not any moral reason for not doing what he believes he is interested in: the action is, for him, prudentially justified because of the presence of his interest; and morally justified because of the absence of moral reasons for not doing it.” (p. 114)… “Or the plan of life of a subject is permisible or not; if not, what he considers to be his interest is not a valid reason for acting. But it is not for moral reasons (because it does not satisfy the ceteris paribus conditions) not because it does not coincide with a supposed real or objective interest.” (pp. 122–123)… “ in so far as the interest of the subject are only reasons for acting if the ceteris paribus condition is fulfilled, it can be claimed that a plan of life does not constitute valid justificatory reason for action if it contravenes moral reasons.” (p. 127)
Hart, op. cit. pp. 244, 245.
Rescher, Nicholas, op. cit., “Reason’s task in relation to action is to provide grounds for or against. And this means that any disconnection of reason from action is quite mistaken. To see reason as irrelevant to action is to misinterpret it to the point of caricature. An interesting and somewhat desperate move to trascend the gulf between wants and interests - between ‘what one wants’ and ‘what is good for one’ - is represented by Henry Sidgwick’s influential proposal to equate the latter with what one would want if - if one were fully informed, undistrubed by passion, painstaking in visualizing consequences, etc. But such a stance is predicated on the highly questionable idea that lack of information is the only impediment to appropiate evaluation. Clearly, it is not lack of information alone that prevents the monomaniac or the masichist from evaluating matters aright Failures to assess means to ends are one thing, failures to think sensibly about values and priorities another.”… “ As this perspective indicates, rationality involves two sorts of issue - means and ends. The rationality of means is a matter of factual information alone - of what sorts of moves and measures lead efficiently to objectives. But the rationality of ends is a matter not of information but of legitimation. It is not settled just by factual inquiry, but involves evaluative judgement. And both aspects are crucial: ends withour requisite means are frustrating, means without suitable ends are unproductive and pointless. Accordingly, rationality has two sides: an axiological (evaluative) concern for the appropiatencss of ends and an instrumental (cognitive) concern for effectiveness and efficiency in their cultivation. The conception of rationality fuses these two elements into one integral and well-coordinated whole.” (pp. 96, 97, 98.)
Elster, Jon: Tuercas y Tornillos, Gedisa, Barcelona, 1991, “In situations that are unique, new and urgent like to fight a battle or to help the victim of a car accident, either the costs or the benefits are highly uncertain. There is the risk to act too early with very little information and the risk to delay so much that it is too late. If we were able to say which is the biggest risk, but we have not any base to decide rationaly whether we should take the risk to obtain this knowledge. Hence, we have to act, more or less, arbitrarily. Between these two extremes there used to be most of the situations of daily life… Because of I cannot expect to take an optimal decision I will have to manage with one that be ‘good enough’.” (pp. 43, 44.)
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© 1996 Springer Science+Business Media Dordrecht
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Urbina, S. (1996). Survival, Happiness, Ethics. In: Reason, Democracy, Society. Law and Philosophy Library, vol 25. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2846-1_8
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