On Ethics, Law, and Pragmatism

The place of ethics as informing law is quite controversial.  But ahead of that is the search for common language about on the subject.  For instance, the principle of pragmatism can be quite confusing.  For instance, Jason Kuznicki provides a useful decision tree on the subject of strict scrutiny.  This, he has said, is pragmatic.  But let’s keep this term clear.  This is what might best be called practical pragmatism.  Or, for the scientists among us, perhaps methodological pragmatism might be a useful equivalent or parallel.  (We might also consider the term metaphysical pragmatism as a rough equivalent to the theoretical.)

But now let’s step back for a moment.  Ethics comes in three levels.  At the most abstract is the meta-ethic.  These are the presuppositions and assumptions that drive ideas.  In the middle are the theoretical ethical principles.  These are the broad principles that are applicable to life.  Finally, at the base are the practical applications of the principles.  This the practical ethic.  This is every-day living.  It is sending money to help in Haiti.  It is being faithful to your spouse.  Etc.  (Of course, these examples assume something positive, according to a Christian ethic.)

In more common language, the meta is the drive to do good, the theoretical is reason we do good, and the practical is the how that we do good.  Ok, you may have better terms in mind.  But let these suffice for now.

Strict scrutiny is a practical approach to the process.  It is an application of common law.  That might be confusing to some, though it seems a necessary distinction.  What I question is the ethic that informs the practical pragmatism of common law.  Must it be, in our liberal democracy, a religion-free-secularism, or can it be a religiously-informed secularism that can maintain a truly transcendent set of values?  The dangers of a theoretical pragmatism, what generally amounts to utilitarianism, can exist without restraint.  We saw the dangers of that in the 20th century and ought not pursue it again.  History has also shown the positive side of the best ethics for the advancement of human, and eternal, interests.  There is no need to repeat it all here.

In short, an awareness of the difference between practice and the theories that inform a practice will assist us in determining motivations and estimating the outcomes of the various events around us.