Contested Principles and the Legislative
Point of View
If we adopt a legislative point of view, we have a reason to take into consideration the way others would interpret and apply a principle when deciding whether or not to act on that principle. The question is why we should adopt such a point of view if we are not really legislating. That was the essence of the King dilemma in chapter 1: why should he reject the principle “Disobey unjust laws” because other people might apply the principle incorrectly? The objection is a very important one, and in this chapter I will present a Lockean response to it. Before doing so, I want to consider the objection in a more familiar context, since this is in fact one of the principal objections that have been levied against rule-utilitarianism. In the first section of this chapter I argue that rule-utilitarianism is more attractive than act-utilitarianism precisely because it makes use of a legislative point of view and that, in doing so, it resonates with a powerful moral intuition. Rule-utilitarianism, however, is unable to give a satisfactory answer to the above objection. In the second section I present Locke's original argument for taking on this point of view. Locke was able to avoid the rule-utilitarian's dilemma because he grounded the legislative point of view in a theistic theory of natural law. In the third section I examine the core premises that Locke's argument rests on and formulate an analogous version that appeals to similar moral intuitions but which could be endorsed by persons who reject a universal theistic morality. The concluding section applies the Lockean argument to two concrete problems: contemporary debates over hate speech and Martin Luther King, Jr.'s, justification for civil disobedience. Developing the argument from the previous chapter, we see that King's actions were justifiable from a legislative point of view. The Lockean argument provides an important response to those who would justify force on the basis of principles that they would not want persons who disagree with them to interpret and apply.
The place to begin is with Gerald Dworkin's treatment of this problem in his classic article, “Non-neutral Principles.”1 I use the term “contested”
1 Dworkin, “Non-neutral Principles,” pp. 492, 496.