Continuity in Morality and Law

Abstract

According to an influential and intuitively appealing argument (the
Continuity Argument), (1) morality is usually continuous, namely, a
gradual change in one morally significant factor triggers a gradual
change in another; (2) the law should usually track morality; (3)
therefore, the law should often be continuous. This argument is
illustrated by cases such as the following example: since the moral
difference between a defensive action that is reasonable and one
that is just short of being reasonable is small, the law should not
impose a severe punishment when the action is almost reasonable
and no punishment at all when the action is reasonable (as positive
law sometimes does). In this Article, I consider two doubts regarding
this argument. First, the premise that morality is continuous in such
cases is incompatible with the common view that the moral status
of actions is not continuous since there is an important difference
between actions that are permissible and actions that are wrong—
even if this difference is due to a difference that is very small, such
as the one between an action whose consequences are the best and
an action whose consequences are just slightly less good. This view
extends also to the overall moral status of agents given the common
assumption that it depends on the moral status of their actions. This is
an important challenge that the Continuity Argument should confront.
However, I argue that the best account of morality is more scalar
than the common view in these respects. Therefore, I conclude that
the first premise of the Continuity Argument is correct in this regard,
although it is based on a minority view. The second doubt concerns
the scope of the second premise: since there are reasons both in favor 

and against legal continuity, and the applicability and force of these

reasons depend not only on various moral propositions but also on
contingent non-moral facts, we often lack the evidence to determine
the degree to which the law, at a certain place and time, should be
continuous, and specifically that it should often be continuous.