In my blog I try to use terms in a way that fairly closely tracks with how philosophers in meta-ethics use the terms.  I want the readers of this blog to be able to join in the conversation.  Thus one of my earlier blogs sets out to explain what I still consider the basic 4 meta-ethical beliefs as understood by most philosophers.

The way I use terms there and elsewhere in my blog  will be in agreement with what I consider main stream meta-ethicist’s like Russ Shaefer Landau, who among other things is the founder and editor of the periodical Oxford Studies in Metaethics,  and Richard Joyce whose clear writings on meta-ethics has likely lead to Stanford wanting him to author several articles in their online encyclopedia regarding meta-ethics.

But often times the edges of these philosophical terms can get a bit frayed.  This is the nature of philosophy.  The issue I want to discuss here is one that I find often causes some confusion regarding the moral realist position.  To quote Richard Joyce

“Traditionally, to hold a realist position with respect to X is to hold that X exists in a mind-independent manner (in the relevant sense of “mind-independence”)”

https://plato.stanford.edu/entries/moral-anti-realism/

I want to discuss that issue of the “relevant sense of ‘mind independence’” and suggest that some legal terms may actually help us understand what “the relevant sense” is.  Joyce briefly discusses this issue in the above article and I agree with what he says, but I also think using some legal terms can help people understand the issue.    So lets introduce the problem by considering two cases:

Case 1) During a play someone thought they were firing blanks when they aimed a gun and fired at an innocent person. But there were real bullets in the gun and the innocent person died.

Case 2) During a play a person believed there were real bullets in the gun and there were real bullets in the gun. The person shot an innocent person intentionally causing her death.

Certainly, we draw moral distinctions between situation 1 and situation 2.  In the law we traditionally call this mens rea. Which can be translated from the Latin as “guilty mind.”  Traditionally in order to be culpable of a crime we need to prove two things, Actus Reus (a guilty act) and Mens Rea (guilty mind).

“Actus Reus Non Facit Reum Nisi Mens Sit Rea”  “The act itself does not constitute guilt unless done with a guilty intent.”

http://www.duhaime.org/LegalDictionary/A/ActusReusNonFacitReumNisiMensSitRea.aspx

Now this common sense position is something moral realists certainly can agree with.  Certainly Christian moral realists would take this view.   Moral realists who reject free will  (like Sam Harris)  may have some difficulty here, but that is for a different blog.  For now I want to discuss how a moral realist can believe an accident is not as culpable/immoral as intentional actions.

However, we should recognize that these cases do demonstrate the morality of an action is not completely mind independent – in all senses.    So the mind of the person committing the action being considered moral (or not) can be relevant to the question of whether it is moral or not moral.  Then in what sense is the morality of the action a mind independent fact?

Consider that the state of mind of the person who did the shooting was itself a fact.  In the law prosecutors must prove intent and it is considered an issue of fact.   If the after the second case occurred the shooter said “at the time I fired I believed the gun had blanks in it.”  His statement about his belief would be factually incorrect.   He did believe it had real bullets and he is likely lying about what he believed at the time.   It would still be factually incorrect if he later somehow really came to believe he always believed they were blanks – say through a brain injury or however.  Even if everyone believed that at the time of the murder he thought the gun had blanks – it would not change the fact that he did believe they were real bullets and he did intentionally kill the person.  In the second scenario he believed the gun had real bullets and that is an objective fact that will not change depending on people’s later points of view.  The fact that he knew there were real bullets in the gun and he intended to kill the victim are relevant facts in our consideration of whether his action was in fact immoral.

Let me introduce two more legal terms that I think can help clarify this matter.  One is called the “totality of circumstances” and the other is “all relevant facts.”   These terms help us to envision a set of facts as they occurred in history.   Here the actor’s state of mind (mens rea) is a relevant fact that makes up part of the totality of circumstances that should be considered when we decide if his action was moral or not.  But once the totality of circumstances relevant to the question of morality is established the moral realist would say they determine whether the action was moral or not and our opinions about whether that totality of facts does not effect the truth of the matter.

I think it is helpful to think of this in terms of “after the fact” opinions on the morality of the situation.  Whether an action is moral may depend on the mental states of the people involved but after the moral action in question happens and the consequences play out then our later opinions will not effect whether it was moral or not.   This would not only include people removed by time but also otherwise removed from the actual action in question.

Can moral realists have disputes about what is a relevant fact?  Yes.  Do you have all of the relevant facts that would make up the totality of circumstances necessary to answer whether something is moral or not?  Sometimes.  I would point out that morality is very much like tallness.  We tend to acknowledge that some things are more evil or good than others. (Just like some things are taller than others)  Nevertheless, I doubt we as humans ever have the full knowledge we need to accurately determine the exact culpability of any action.  How immoral is someone who kills someone due to an accident while negligently driving a car while drunk?  Is it more immoral then when someone negligently drives drunk but luckily makes it home without killing anyone?  Etc.   A moral realist may not be able to fully sort out the exact degree of moral culpability here but they can still say the person who deliberately ran an innocent person over with their car is likely more culpable.    Just because I think the mental states of the people involved effects the morality in ways I can’t exactly sort out, does not mean I can’t be a moral realist.  Just like the fact that I can not say exactly how many millimeters tall my grandfather was at the time he died means I do not think he was at least three feet tall or taller at the time he died.   And, of course, it doesn’t mean he was as many millimeters tall as we decide he was by virtue of our deciding that.

So in sum, when we consider all the relevant facts in the totality of circumstances, we can try to judge whether an action is immoral (or not) but we do not think our judgement after the event actually effects whether the action was in fact moral.   No persons “after the fact” judgments will ever effect whether an action was in fact moral or not at the time it occurred.  Unlike the subjectivist the moral realist thinks these “after the fact” judgments are irrelevant to the truth.

Now let’s talk about what are the “relevant facts.”   Of course, there are many disagreements here.  But one in particular really ties in with this topic.  Is it relevant that the person really thought he was acting morally?  So lets say a person really thought there was nothing wrong with owning slaves, or bestiality etc.  Lots of times people are mistaken about the morality of their actions.  Does this influence the morality/culpability of their actions?  In a sense it would seem that a moral realist could not agree to this, as it would seem to directly contradict his view that whether something is moral or not is “independent of our or anyone’s beliefs about it being moral.”  But I think the moral realist can even say the actor’s beliefs about whether he or she is acting morally can effect their culpability.

How can I do this and maintain my moral realism?  By explaining that at least arguably that would be part of the mens rea.  And as part of the mens rea it is a relevant fact in the totality of circumstances considered.    But, of course, our after the fact views of the morality of the situation is not part of the mens rea. (assuming we had nothing to do with the actions, or let’s say beliefs of people “removed from the action in question”)  So it is not the case that the beliefs of anyone trying to judge the situation after the fact is a relevant fact.  For the subjectivist the key to what is moral is what does a certain person or group doing the judging think.

Moreover just because the person who committed the crime thought it was moral at the time, that does not, per se, mean it was moral.    That would not be a view a moral realist could hold IMO. (edit: I think when we consider this as a form of mens rea then perhaps the better view is that the moral realist could hold that view.   As this would make this more of “first order” ethical concern rather than “second order” i.e., a meta-ethical issue, but this is where the boundries between first and second order concerns start to blur.)  Rather the moral realist believes that given all the relevant facts, including whatever the mens rea of the person was at the time, an action was either moral or not.  An acter’s view of what was moral or immoral at the time can influence how immoral their action was but it is certainly not always dispositive.

To be sure I think there can be a bit more argument along this extreme edge of understanding what moral realism means.  But hopefully, this blog helped explain the basics of  “relevant sense of mind-independence” for those who are new to the subject.  A moral realist can properly account for mens rea, without buying into a moral subjectivism by believing that morality is entirely determined by the judgements of some person or group.