Vuko Andrić

How can legal norms be morally evaluated? In this paper we discuss and defend consequentialism about legal norms. According to this doctrine, the legitimacy of legal norms depends entirely on the consequences of the norms’ validity. Consequentialism about legal norms shares the advantages of both act- and rule-consequentialism while avoiding the respective disadvantages. In particular, consequentialism about legal norms has prima-facie plausibility like act-consequentialism and for similar reasons: it qualifies as a version of collective act-consequentialism. At the same time, the implications of consequentialism about legal norms cohere with common-sense morality because, like rule-consequentialism, consequentialism about legal norms takes into account the motivational limits of human agents.

Error theories about practical deontic judgements claim that no substantive practical deontic judgement is true. Practical deontic judgements are practical in the sense that they concern actions, and they are deontic in the sense that they are about reasons, rightness, wrongness, and obligations. This paper assumes the truth of an error theory about practical deontic judgements in order to examine its ramifications. I defend three contentions. The first is that, if so-called fitting-attitude analyses of value fail, the truth of some substantive evaluative judgements would not be threatened by the fact that no substantive practical deontic judgment is true. Secondly, in light of the truth of these evaluative judgements, the best thing we could do is to continue to make practical deontic judgements despite the truth of an error theory about practical deontic judgements. My third contention is that, if some evaluative judgements are unaffected by an error theory about practical deontic judgements, then such an error theory will eventually lead us to some version of consequentialism.

This paper offers a critique of David Gauthier’s contractarian moral theory. I point out morally counter-intuitive implications of Gauthier’s theory – for example, with respect to societies with slavery or concerning the protection of animals – as well as theoretically unattractive features, such as the overly optimistic assumption of translucent agents. However, contractarian moral theories can be improved by correcting the theoretically unattractive features. Moreover, though some morally counter-intuitive implications cannot be avoided, whether we should accept these implications ultimately depends on whether an instrumentalist account of practical reason is defensible and how morality relates to practical reason. Thus, contractarian moral theories cannot be refuted as easily as one might think at first.