To my colleagues and friends in France, Bonne Fete Nationale! I will conclude my recap of the late Alasdair MacIntyre’s 2023 essay On Having Survived the Academic Moral Philosophy of the 20th Century in my next post. In the meantime, here is some melancholic music from the Korean hip hop artist sAewoo (세우):
I will begin wrapping up my review of the late Alasdair MacIntyre’s 2023 essay On Having Survived the Academic Moral Philosophy of the 20th Century with three closing thoughts. To begin, my first observation is that the natural law approach to philosophy can be summed in three words: don’t harm others. That is, MacIntyre’s three “unconditional commitments” — avoid harming others, keep your promises, and never lie — boil down to one simple moral rule: the harm-avoidance principle. Why? Because, broadly speaking, broken promises and lies are just specific types of harms. That is, whenever you break a promise or tell a lie, one way or another you are harming someone, either the person to whom the promise was made or the person to whom the lie was told.
Next, my second point is that any moral philosophy based purely on harm-avoidance is going to be an empty one. Again, why? Because as the late Ronald Coase taught us long ago (see here), harms are almost always a reciprocal problem. Simply put, whenever B accuses A of harming his (B’s) interests, it is almost always the case that both A and B are responsible for the harm, or in the immortal words of Coase (emphasis added by me): “The question is commonly thought of as one in which A inflicts harm on B and what has to be decided is: how should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A? The problem is to avoid the more serious harm.” To ignore this fundamental insight is what I call the philosophers’ fallacy.
Lastly, my third and final observation (for now) is that Alasdair MacIntyre is not the only eminent philosopher to commit the philosophers’ fallacy. Consider, for example, John Stuart Mill’s conclusion in his 1859 essay On Liberty: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” (For an overview of Mill’s harm principle, see § 3.1 of David Brink’s entry for “Mill’s Moral and Political Philosophy” in The Stanford Encyclopedia of Philosophy (2022), available here.) Mill’s harm principle can, in turn, be traced to Adam Smith, who defines justice as restraint from harming others: “Mere justice is, upon most occasions, but a negative virtue, and only hinders us from harming our neighbor.” (For a survey of the Scottish philosopher’s conception of justice, see James R. Otteson, “Adam Smith on Justice, Social Justice, and Ultimate Justice”, Social Philosophy & Policy, Vol. 34 (2017), pp. 123-143, which is available here.)
But if harms are indeed a reciprocal problem, then we are going to need some external criterion or other moral principle — above and beyond the harm-avoidance principle itself — for balancing competing harms in any given situation, i.e. for deciding which harm to privilege and which to restrain. For Coase, that external moral principle is some form of crass consequentialism: we “must avoid the more serious harm”, i.e. choose the lesser evil. Coase’s economic approach to harms, however, presupposes our ability to assign some type of monetary or other numerical value to competing harms, and here is where Coase’s approach can falter or leave us hanging, so to speak, for what if one of the harms is purely aesthetic? Or, relatedly, what if the competing harms are incommensurable, i.e. what if the competing harms cannot be measured on the same scale?
Is there any way out of this incommensurability conundrum, or is the philosophers’ fallacy simply an unavoidable one in the domains of morals, politics, and law, especially in a highly diverse and pluralistic society like ours? As it happens, I am hoping to address these fundamental philosophical questions in a future work. In the meantime, however, I will formally conclude my review of MacIntyre’s 2023 essay on a more positive note in the next day or two …
This week, we have been revisiting the late Alasdair MacIntyre’s 2023 essay On Having Survived the Academic Moral Philosophy of the 20th Century. To recap, although I agree with MacIntyre’s diagnosis of philosophy (see here), his proposed remedy or scholarly cure is an impotent one for two reasons: he commits the natural law fallacy (here), and then he tries to pull off the old “bait and switch” trick (here), i.e. he substitutes a new moral criterion (the idea of “unconditional commitments”) in place of his original one (the telos of basic goods). Today, I will pick up where I last left off by asking: what do MacIntyre’s “unconditional commitments” consist of, and are they really “unconditional”?
To the point, MacIntyre is not only able to identify three “unconditional commitments” or Kantian moral duties in paragraph 24 of his essay; he also explains the underlying rationale or common thread tying them together: “I am bound by certain unconditional commitments—commitments not to harm the innocent, to be truthful, [and] to keep our promises, commitments that allow us to reason together without the distortions that arise from fears of force and fraud ….” Okay, fine, but who hasn’t broken a promise or told a lie? More generally, why are these three commitments or moral duties “unconditional”?
For my part, I am totally willing to concede that most people would agree with MacIntyre’s three general moral principles or commitments. As a general rule, we should avoid harming others, we should keep our promises, and we should tell the truth. The problem, however, is that rules, even moral ones, are never unconditional. Simply invoking a general moral rule in favor of harm-avoidance, truth-telling, or promise-keeping, or calling these general rules “unconditional commitments” as MacIntyre does, won’t get us very far. Why not? Because almost every legal or moral rule, no matter how important, usually has one or more exceptions.
Consider, for example, the third of MacIntyre’s unconditional commitments: promise-keeping. Is it really never morally permissible to break a promise? What about immoral or illegal promises? Or promises made under false pretenses? Or promises made under duress? Or what if keeping a promise, however procured, would itself produce a harm? As it happens, one of the things that struck me the most when I first studied the literature on promise-keeping is that philosophers and legal scholars are deeply divided on these questions. (And well they should be, since the meaning of such terms as “promise” or “duress” — or “truth” for that matter — is open to debate.)
Moreover, an even deeper logical problem is lurking behind MacIntyre’s analysis of unconditional commitments, a problem that bedevils the work of many moral and legal philosophers. Rest assured, I will describe this deeper problem in my next post …
Yesterday, I accused the late Alasdair MacIntyre of committing the natural law fallacy in his 2023 essay On Having Survived the Academic Moral Philosophy of the 20th Century. To the point: he identifies a wide range of basic “goods” that are needed to lead a good life (see my previous post), but he doesn’t tell us where he got his laundry list from, or who is supposed to provide these goods. Today, I will show how MacIntyre tries to dig himself out of this deep natural law hole. As it happens, MacIntyre has a very clever stratagem up his rhetorical sleeve. Instead of trying to solve or refute the natural law fallacy directly, he changes the subject in order to sidestep the problem altogether!
In brief, MacIntyre tries to pull off an intellectual “bait and switch” operation! First, he baits us with his exquisite laundry list of basic goods. After all, who can object to such things as adequate food, clothing, and shelter, let alone love, affection, or practical rationality? But then, having lured us in, MacIntyre substitutes a new moral criterion or touchstone in place of his old one, for he makes no further reference to his laundry list of basic goods in the remainder of his 2023 essay; instead, out of nowhere, he announces in paragraph 27 of his essay “the discovery of the place that relationships structured by unconditional commitments must have in any life directed toward the achievement of common goods” (emphasis added).
To make matters worse, MacIntyre ends up digging himself into an even deeper logical hole, for he also informs us that the ultimate source of these supposedly unconditional moral commitments are “the exceptionless, if sometimes complex, precepts of the natural law.” But this conclusory statement begs the original question posed by the natural law fallacy: how do we know what the precepts of the natural law are in the first place? (Worse yet, if the precepts of the natural law are the same as MacIntyre’s unconditional moral commitments, then MacIntyre has committed a second logical fallacy: circular reasoning!)
So, what do MacIntyre’s unconditional commitments consist of, and are they really “unconditional”? We will turn to these key questions in my next post …
In my previous post, I began my review of the late Alasdair MacIntyre’s 2023 essay On Having Survived the Academic Moral Philosophy of the 20th Century by noting “the pervasiveness of disagreement”, not just among moral philosophers as MacIntyre does, but also among constitutional law professors and legal philosophers more generally. I also mentioned that MacIntyre’s alternative approach to moral philosophy is informed by the natural law tradition of Thomas Aquinas. Today, then, I will pick up where I left off by describing MacIntyre’s natural law approach to philosophy.
In summary, the natural law approach to legal philosophy begins by asking, What is the goal of law? Why do we have law in the first place? By the same token, MacIntyre’s natural law approach to moral philosophy begins by asking, and I quote, “What is it to be a good human being?” (A minor quibble, but I would reformulate MacIntyre’s question by asking, What does it mean to lead a good life?) MacIntyre then proceeds in paragraph 15 of his essay to identify “four sets of goods” that are needed to be good person, i.e. to lead a good life:
First, without adequate nutrition, clothing, shelter, physical exercise, education, and opportunity to work no one is likely to be able to develop his or her powers—physical, intellectual, moral, aesthetic—adequately. Second, everyone benefits from affectionate support by, well-designed instruction from, and critical interaction with family, friends, and colleagues. Third, without an institutional framework that provides stability and security over time a variety of forms of association, exchange, and long-term planning are impossible. And fourth, if an individual is to become and sustain … himself as an independent rational agent, … he needs powers of practical rationality, of self-knowledge, of communication, and of inquiry and understanding.
Notice that with MacIntyre’s natural law formulation of the good life, basic survival goods are not enough for one to flourish. In addition to such basic goods as food, clothing, and shelter to ensure our physical survival, we also need three more types of goods: (1) emotional, especially love and affection from our family and friends; (2) institutional or legal, i.e. a stable legal environment so we can trade with others and make plans; and last but not least, (3) and epistemological, i.e. critical thinking skills. (As a college professor, I especially like the last item on this list of natural law goods: practical rationality and critical thinking more generally.)
After formulating this laundry list of goods, MacIntyre draws the following conclusion in the 16th paragraph of his essay: “there are standards independent of our feelings, attitudes, and choices by which we may judge whether this or that [action or decision] is choiceworthy, whether this or that is good to choose, to do, to be, to have, to feel.” But that said, I can’t help but notice two big blind spots, two gaping holes, in MacIntyre’s approach to ethics: he falls into what I like to call the natural law fallacy, and he fails to define key terms.
Simply put, natural rights are supposed to be timeless and universal, but where does natural law itself come from? Specifically, who says that MacIntyre’s four sets of goods, and only those four, are a necessary or sufficient condition for leading a good life? And who is supposed to provide them? Alas, MacIntyre himself never tells us where his “four sets of goods” come from, or who is supposed to provide them. Nor does he bother to define such critical terms as adequate, friend, institutional, or practical rationality.
So, is there any way to escape these two natural law traps? Is there any way of locating the ultimate source of natural law or of defining key terms? I will address these questions in my next post.
At the end of my previous post highlighting my summer readings, I singled out the late Alasdair MacIntyre’s stinging critique of academic moral philosophy in his 2023 essay On Having Survived the Academic Moral Philosophy of the 20th Century. Most of all, it was MacIntyre’s eloquent description of the pervasiveness of disagreement among philosophers that really resonated with me:
“Disagreement on fundamental issues is in practice taken to be the permanent condition of philosophy. The range of continuing disagreements is impressive: realists versus antirealists in respect of mathematical, moral, perceptual, and historical judgments; dualists versus materialists in the philosophy of mind; utilitarians versus Kantians versus virtue theorists in ethics; Fregeans versus direct reference theorists in the philosophy of language; and a great many more. Add to these a range of disagreements in religion and politics that, themselves non-philosophical, are closely related to philosophical disagreements: theists versus atheists, conservatives versus liberals versus libertarians versus Marxists.”
Moreover, MacIntyre draws a further distinction between incremental “progress” and creativity in philosophy versus the possibility of a “decisive resolution” of any major philosophical problem (emphasis on the word “never” in the original):
“It is not that there is no progress in philosophical inquiry so conceived. Arguments are further elaborated, concepts refined, and creative new ideas advanced by the genius of a Quine or a Kripke or a Lewis. But this makes it the more striking that there is never a decisive resolution of any central disputed issue. So how should we think about this and respond to it?”
In addition, using the concrete example of the philosophical debate between the defenders of Kantian duty-ethics and the proponents of pragmatic consequentialism, MacIntrye concedes that the problem of disagreement in philosophy is an “interminable” or never-ending one. Why? Simply put, because neither party in any given philosophical controversy “has the resources to defeat the other.”
So, why does MacIntyre’s diagnosis of the pervasiveness of disagreement in philosophy strike a raw nerve with me? Because MacIntyre’s diagnosis applies equally to my field (law) as well. Many legal problems and controversies, especially in the domain of constitutional law, can be described as interminable, such as the never-ending debate between progressive and conservative law professors over their competing pet theories of constitutional interpretation.
Given this interminable state of affairs — given the impossibility of a decisive resolution of these questions among legal academics — what is to be done? As it happens, MacIntyre’s approach to philosophical problems is inspired by the natural law tradition of Thomas Aquinas. I will explore this natural-law-inspired approach in my next post …
In addition to the above works, I also want to single out an essay by the late Alasdair MacIntyre, On Having Survived the Academic Moral Philosophy of the 20th Century, that I had read soon after the death of the Scottish-American philosopher on 21 May 2025. As it happens, although this essay is directed mainly to moral philosophers, it is highly relevant to my field as well (law). I will therefore have more to say about MacIntyre’s essay in my next post …
Preview: I will revisit the late Alasdair MacIntyre’s stinging critique of academic philosophers, “On Having Survived the Academic Moral Philosophy of the 20th Century,” in the next day or two; in the meantime, below is one of my favorite flamencos of all time … ¡Olé!
James Buchanan versus Warren Samuels, last round: Buchanan’s devastating critique of Samuels’s analysis of Miller et al. v. Schoene
Thus far, we have outlined Miller et al. v. Schoene (the red cedar tree rust case), explained why economists like James Buchanan and Warren Samuels took an interest in this old case (see here), and then compared and contrasted Samuels’s 1971 paper with Buchanan’s 1972 reply paper (see here and here). Today, I will conclude my series on the Buchanan-Samuels exchange by pinpointing the main source of their disagreement over how the cedar tree case was decided.
As I see it, it’s not so much what Samuels says that bothers Buchanan; it’s what he doesn’t say, for there is a big blind spot in Samuels’s economic analysis — and in Coase’s theorem as well, for that matter. Simply put, both Samuels and Coase are ignoring a critical distinction: the distinction between (a) lower-level, day-to-day law and politics on the one hand and (b) higher-level constitutional rules on the other. Although Buchanan does not express his objection to Samuels or to Coase in this way, this objection is implicit in the logic of Buchanan’s overall worldview as expressed in many of his other writings. (See, for example, this 2003 paper describing Buchanan’s “public choice” approach to politics; James Buchanan, Politics without romance, Policy, Vol. 19, No. 3 (2003), pp. 13-18.)
To the point, while Samuels’s focus is on how law can impact economics (e.g. how the allocation of property rights affects costs), Buchanan’s focus, by contrast, is on how economics can impact law. For Buchanan, government officials (including legislators and judges) are not benevolent do-gooders; they are self-interested actors who respond to incentives the same way everyone else does. This is why the distinction between lower-level, day-to-day law and politics and higher-level constitutional rules is so crucial for Buchanan. On the one hand, constitutional-level rules are designed to limit government power, such as the rules under which the government itself may confiscate property — e.g. the Takings Clause of the Constitution. On the other hand, the ordinary rules of law and politics refer to the rough-and-tumble world of law courts and legislatures — e.g. a specific law or government order taking someone’s property, such as the Cedar Rust Act of Virginia or Fred Schoene’s order in in Miller et al. v. Schoene.
For Buchanan, our ordinary political-level rules are always up for grabs; that is why higher-level constitutional-level rules need to be established ahead of time in order to bind the players of the day-to-day law and politics game. More to the point, this distinction between constitutional rules and ordinary law and politics is especially relevant to a case like Miller et al. v. Schoene. In that case, the State of Virginia enacted a takings law (the Cedar Rust Act) that required the owners of red cedars to cut down their infected trees, but at the same time, a strong argument can be made that this law violated the Takings Clause in the Constitution because the law did not require the payment of compensation to the cedar tree owners for the fair market value of their fallen trees. And that is why the main lesson to be learned from the cedar tree case is not how law can shape economic activity (Samuels’s main point in his 1971 paper). The main lesson to be learned for someone like Buchanan is how economics can shape — and distort — law!
In other words, Buchanan is not so much objecting to the substantive choice that was made in the cedar tree case. That is, his objection is not that the legislature and the courts favored the interests of the apple growers at the expense of the cedar tree owners; after all, their dispute is a reciprocal one, so one of the parties is going to be harmed no matter how the case is decided. Instead, what Buchanan is really objecting to is the legislature’s and the courts’ ex post disregard of an important ex ante constitutional-level rule: the Takings Clause, which is supposed to protect existing property owners by providing them compensation whenever their property is taken by the government.
For my part, Buchanan’s critique of Samuels (and Coase) is a devastating one. Why? Because Buchanan’s critique is not that one side or another should have won the cedar tree case; rather, his critique is that neither the legislature nor the courts in this case abided by the constitutional-level rules that apply to takings. Instead, they flouted those constitutional-level rules and literally changed the rules of the law-and-politics game in the middle of the game!
Nota bene: Today (5 July) marks the 12th anniversary of my blog!
In my previous post, we saw how one economist, Warren J. Samuels, painted a reciprocal picture of the conflict between the cedar tree owners and the apple growers in Miller et al. v. Schoene. Simply put, one of these two groups of landowners is going to harmed no matter how the case is decided. If, for example, the courts were to declare Schoene’s order under the Cedar Rust Act to be an unconstitutional taking of private property (recall that that the owners of red cedars were initially ordered by Schoene to cut down their trees without compensation), it is the apple growers who will be harmed, since their apple trees will be exposed to the risk of being infected by cedar rust. By contrast, if the courts were to affirm the legality of Schoene’s order, which is what the trial judge, the court of appeals, and a unanimous U.S. Supreme Court all did, then it is the owners of the cedar trees who will be harmed.
So, why did Samuels’s colleague and friend James Buchanan (see the infographic below) object to Samuels’s economic analysis of this case? As it happens, something rubbed Buchanan the wrong way when he studied Samuels’s analysis of the cedar rust case, so much so that Buchanan wrote a strongly-worded reply paper to Samuels’s 1971 paper. (See James M. Buchanan, Politics, property, and the law: an alternative interpretation of Miller et al. v. Schoene, Journal of Law and Economics, Vol. 15, no. 2 (1972), pp. 439-452.) What was that “something”?
Was it, for example, the tone of Samuels’s 1971 paper that offended Buchanan’s “public choice” sensibilities? In their subsequent correspondence (see Buchanan & Samuels, On some fundamental issues in political economy: an exchange of correspondence, Journal of Economic Issues, Vol. 9, No. 1 (1975), pp. 15-38), Samuels insists that he is engaging in “descriptive” or “positive” economics (as opposed to “normative” economics), while Buchanan suspects that Samuels is, in fact, smuggling in certain moral values between the lines or through the back door.
Yes, this normative versus descriptive debate does take up a large part of their exchange, but for me it’s not the whole story. Instead, what really bothered Buchanan the most was Samuels’s and the courts’ cavalier disregard of the primacy of property rights. Although Buchanan raises several subsidiary objections to the technical details of Samuels’s economic analysis (e.g. how do we know in the absence of Coasean bargaining which land use is the most highly-valued one in this case), his main objection is to the Virginia legislature’s total disregard of property rights when it first enacted the Cedar Rust Act and to the courts’ similar disregard of property rights when they adjudicated the dispute between the cedar tree owners and the apple growers in Miller et al. v. Schoene.
But that said, Buchanan’s objection begs the key question, “Why are property rights so important in the first place?” After all, one possible reading of the “Coase theorem” in economics and in law is a Panglossian one: property rights don’t matter so long as someone has them and the parties are free to bargain with each other. In brief, Coase’s so-called theorem not only posits that most conflicts are reciprocal in nature (Miller v. Schoene being a textbook illustration of the reciprocal nature of harms); it also predicts that private bargaining will produce an efficient outcome regardless of where or to whom those property rights are initially assigned when two conditions are met: (1) when property rights are well-defined, and (2) transaction costs — i.e. the costs of negotiating, monitoring, and enforcing agreements — are low.
Buchanan, for his part, was fully aware of Coase’s theorem. In fact, he devotes most of his 1972 reply paper to the problem of transaction costs and to the possibility of a negotiated settlement between the red cedar owners and the apple growers, and his treatment of both of these issues is a sophisticated one (see especially pp. 441-448 of Buchanan’s reply paper). Spoiler alert: Buchanan’s disagreement with Samuels goes way beyond the technical details of the Coase theorem. Their disagreement was much deeper and philosophical than that, for as I will explain in my next post, what Buchanan and Samuels really disagreed about was the proper relationship between economics and law …
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