Conflicts of Rules in Hooker's Rule-Consequentialism

It is the business of ethics to tell us what are our duties.

—John Stuart Mill²

I Introduction

Just about any proponent of a rule-based theory of morality must eventually confront the question of how to resolve conflicts among the rules that the theory endorses. Is there a priority rule specifying which rules must yield to which, as in Rawls's lexical ordering of the first principle of his theory of justice over the second?³ Must the agent intuitively balance considerations, as in certain forms of intuitionist pluralism? Or might there be some other conflict-resolving provision? Brad Hooker, a defender of a rule-based theory of morality that he calls 'rule-consequentialism,' confronts this question about conflicts of rules in his recent book Ideal Code, Real World: A Rule-Consequentialist Theory of Morality.⁴ In this paper, I examine Hooker's answer to this question, and I argue that his answer fails to solve a serious problem that arises from such conflicts.

In order to reach this conclusion, I'll spend section II describing Hooker's theory of morality, his answer to the question of how to resolve conflicts of rules, and the main problem that arises from such conflicts. In section III, I'll argue that this problem is not solved, even in part, by Hooker's answer. I'll devote section IV to considering two objections that might be offered against my argument, before concluding in section V.

II Hooker's Rule-Consequentialism and Conflicts of Rules

Hooker presents his theory's core proposition as follows. He writes,

There are many versions of rule-consequentialism. The version I favour is as follows:

RULE-CONSEQUENTIALISM. An act is wrong if and only if it is forbidden by the code of rules whose internalization by the overwhelming majority of everyone everywhere in each new generation has maximum expected value in terms of well-being (with some priority for the worst off). The calculation of a code's expected value includes all costs of getting the code internalized. If in terms of expected value two or more codes are better than the rest but equal to one another, the one closest to conventional morality determines what acts are wrong.

(32; see also 144, n. 3)

Having thus formally presented his theory's standard of right and wrong, Hooker goes on to offer several clarifications and replies to objections.

'One common misconception about rule-consequentialism,' Hooker writes, has to do with how 'rule-consequentialism [should] deal with conflicts between rules' — that is, conflicts between two (or more) rules each of which seems to deserve a place within the ideal code (88-9). For example, both a rule requiring one to keep one's promises and a rule requiring one to shield others from hardships of certain magnitudes would probably be included in the ideal code, but conflicts between them can obviously arise (such as in a case in which a person can save another from considerable inconvenience only by breaking a promise to meet a third person at that same time). Hooker notes that some people think that rule-consequentialism should deal with such conflicts by 'build[ing] exceptions into the rules so as to keep them from conflicting' (89). And Hooker allows that the rules in the ideal code will have some exceptions built into them: 'For example, the rule about promise-keeping could have built into it an exception such that no one is required to keep a promise made to anyone who obtained the promise by lying' (89). But, he maintains, the exceptions built into the rules in the ideal code will not be sufficient to avert all conflicts between rules. The reason is not, of course, that there is anything inherently desirable about having some unresolved conflicts between rules, but because the exception clauses needed to avert all conflicts in acceptable ways would have to be so elaborate that a code whose rules were outfitted with such clauses would be nearly impossible for agents to learn, retain, and teach (89-90). To recall a phrase of Hooker's...