The Metaphysical Challenge to the Reasonable Man Test in Law

So far, the procedure is one of rejecting demonstrably fallacious beliefs in regard to the general order of things, substantially on the lines on which tested and testable conclusions have been substituted for old delusions in what we term ‘the sciences.’ At every step the rationalist is assailed, just as were and are the reformers of the sciences; first by angry epithets, then by bad arguments as to ‘evidence,’ then by cooler attempts to demonstrate that his method will lead to moral harm, whether or not to present or future punishment at the hands of an terrestrial supra-legal omniscient authority. In particular he is assured that on his principles there can be no restraint upon men’s evil proclivities; and that even the most thoughtful man runs endless dangers of wrong-doing when he substitutes his private judgment for the ‘categorical imperative’ embodied either in religious codes or in the current body of morality. To such representations the critical answer is that undoubtedly the application of reason to moral issues incurs the risks of fallacy which beset all reasoning in science so-called; but that, on the other hand, every one of those risks attaches at least equally to all acceptance of ‘authoritative’ teaching. There, it is submitted no prospect of our ever seeing, unanimity of moral opinion among even the most disciplined types of religious believers in ‘authority.’ Even in the Catholic Church it would be difficult to find any two men of judicial habit of mind who agree in all points as to what is ‘right.’Nor is the reasonable man test’s position a whit more open to utilitarian criticism (for his religious opponents, it will be observed, are narrowly utilitarian even in professing to combat his utilitarianism)when he is challenged upon his acceptance of ‘the voice of conscience, ‘otherwise the ‘categorical imperative.’ The Kantian argument on that notion is a juxtaposition of shifting terms. Mental hesitation as to obeying the sense of ‘ought’ is the proof of the vacillation of the perception of’Oughtness.’ When I feel, first, that I ‘ought’ to forgive a wrongdoer in a legal sense, and then that I ‘ought’ to give him up to ‘justice’; or, alternatively, that I ought to rise earlier, and, again, that I may as well enjoy more sleep, I have reduced the ‘categorical imperative’ to the last term in a calculation. And exactly the same thing is done by the metaphysically inclined who is perplexed as to the need of balanced objectivity in a legal sense. Metaphysical subjective recording of history and biography are full of avowals, on the one hand, of the murderous clash of convictions alike resting on mental isolation of the reasonable man in a morally biased jurist of all kinds, and, on the other hand, of the agonies of ecclesiastical equities single mindedness in likely objective arbitrariness to know what is really the right answer to a legal situation. The life of the great parliamentary reformer Oliver Cromwell illustrates both orders of dilemma, with a sufficiency of resultant moral evil to arrest propaganda on the side of faith. And the philosopher of the ‘categorical imperative’ miscarries as instructively as does the soldier of divine will. Kant, on the one hand, vetoes even the telling of a lie to a would-be murderer to put him astray, and, on the other hand, commends to ‘enlightened’ ecclesiastical personalities the systematic preaching of their metaphysical beliefs in a double sense, because “the people wish to be deceived” ( an infamous Latin maxim ). The ‘categorical imperative,’ as propounded by him, is a form of self-deception.Law NotesWhen, again, the psychic facts are critically faced and the ‘categorical imperative’ is rationally recognised as either the sum of the persisting moral judgments or the mere verbalism that we ought to do what we feel we ought to do, the rationalist is still at no disadvantage, utilitarian or other. It is not there that his tether tightens. Ecclesiastical morality, as finally ratified by the more thoughtful among religious men, is but the endorsement of ‘natural’ morality. There is not one social commandment, as distinguished from metaphysical or repetitive dogma, that did not emerge as a prescription of the natural moral sense, primitive or otherwise–a supererogatory proof that the religious prescriptions are from the same source. All surviving ecclesiastical ethic is to-day actually accredited as such, precisely because–and only in so far as–it conforms to natural judgment. Without resort to that tribunal,the ecclesiastical order could not discriminate between the sanction of the people of the book and the law of the levirate, which he has cancelled.The a posteriori argument for religious conformity has thus come to nothing; and the process of argument has revealed the religio-utilitarian champion of morality as traitor to that cause. Thereis left him, indeed, the plea that religious fears and sanctions are good for the ill-disposed believer, who ought, therefore, not to be disillusioned. As regards the simple dogma of deity, the position hasthe emphatic support of Voltaire. But Voltaire declined to use the favourite menaces of faith, as do many religionists of to-day; and if those menaces are to be rationally vindicated, there must first beraised the question whether they could not be improved upon for the purpose professed. Leaving that task to those who affect them, the rationalist may claim to be justified in acting on the maxim thathonesty is the best policy in the intellectual as in the commercial life. There has been no such historical harvest of moral betterment from the religion of fear as could induce him of all men to employ it as a moral prophylactic. Thus far he figures as the vindicator of simple veracity against thosewho, in the name of morals, would make it of no account. He has still to meet, indeed, the challenge: What of the ill-disposed among your own way of thinking? If an unbeliever should see his way to gain by falsehood or licit fraud, what should deter him? Much satisfaction appears to be derived by many well-meaning people from the propounding of this dilemma. They may or may not be gratified by the answer that if a rationalist should not be, by training and bias, spontaneously averse to lying and cheating, or generally unwilling to do otherwise than he would be done by, or sensitive enough to the blame of his fellows to fear it, there is indeed no more security for his veracity or honesty than for