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on which to act (and thus for our acting). “[D]esire-based action requires a
desire-independent warrant.”16 In other words, an appeal to desires alone
does not constitute a suf¬cient justi¬cation for our maxims.
Step 2 does not follow trivially from step 1. Suppose an agent adopts a
maxim in which she takes account of a strong inclination she has. Step 1
does not itself rule out the legitimacy of her justifying her adopting this
maxim simply by appealing to the fact that she has this strong inclination.
To return to the earlier example, an agent might have a strong inclination
to eat ice cream. Granted, as step 1 indicates, her having this desire could
constitute a motivating reason for her to act only if she committed herself
to some rule allowing herself to indulge an inclination for ice cream under
certain circumstances. However, the question remains as to whether she
could justify her committing herself to such a rule simply by appealing to
the notion that she has a strong desire for ice cream. In other words, step 1
leaves it an open question whether an agent would be able to justify her act
of incorporation simply on a sensuous basis.
Allison himself seems to recognize this, for he offers an argument that is
supposed to lead us from step 1 to step 2:

[T]his conception of transcendental freedom has important implications for the
justi¬cation of maxims. This is because, assuming motivational independence, the
ground of the selection of a maxim can never be located in an impulse, instinct or
anything “natural”; rather, it must always be sought in a higher-order maxim and,
therefore, in an act of freedom. Consequently, even if one assumes the existence of
a natural drive such as self-preservation, a transcendentally free agent is capable of
selecting maxims that run directly counter to its dictates. And from this it follows that
the mere presence of a drive or inclination does not of itself constitute a suf¬cient
or justifying reason for acting on the basis of it.17

In the second sentence, Allison claims that, if an agent has motivational
independence, then his justi¬cation of his choice of maxim can never be
located in any impulse or inclination. It may be unclear, however, why one
should accept this claim. Allison de¬nes motivational independence as a
capacity to recognize and be motivated by reasons to act that do not stem,
even indirectly, from the agent™s sensuous nature. Why does an agent™s hav-
ing this capacity entail that, rationally speaking, he cannot justify his choice
of maxim simply with an appeal to sensuously based reasons?
Allison suggests a response in the latter half of the quoted passage:
“[E]ven if one assumes the existence of a natural drive such as self-preserva-
tion, a transcendentally free agent is capable of selecting maxims that run
directly counter to its dictates. And from this it follows that the mere presence
Search for the Supreme Principle of Morality
38

of a drive or inclination does not of itself constitute a suf¬cient or justifying
reason for acting on the basis of it.” Yet I ¬nd his reasoning puzzling. First,
Allison™s argument threatens to prove too much. Allison seems to reason
that it is because we can act counter to our drives that these drives alone
are not justifying reasons for our actions. But we can also act counter to the
moral law. By the same reasoning, we should, it seems, conclude that the
moral law is not a justifying reason for our action. Second, it is not obvious
that a (transcendentally free) agent™s being capable of choosing a maxim
that goes directly against an inclination precludes him from justifying his
action by an appeal to his having this inclination. Suppose someone is in
excruciating physical pain and has an inclination for it to stop. Granted,
as a transcendentally free agent, he is capable of choosing and acting on a
maxim of enduring all pain as long as it lasts, a maxim that would preclude
him from acting on his inclination by, let™s say, taking morphine. But why
does the agent™s being capable of acting on such a maxim prevent him from
acting on a different one, that is, a maxim of trying to relieve excruciating
pain when it occurs, and, moreover, justifying his choice of this other maxim
simply by appealing to the fact that he wants this excruciating pain to stop?
Even if the particular argument Allison suggests is problematic, there
are familiar Kantian grounds for embracing step 2 of Allison™s argument.
Following Thomas Nagel, for example, we might argue that in undertaking
to justify an action, an agent must remove herself from the purely inter-
nal perspective and consider her action from an “external” point of view.18
From this point of view, her action is the action of “this person.” To justify
the action, she would have to justify the action of anyone in the same circum-
stances. Yet to justify what anyone would do in the same circumstances, an
appeal to the fact that the agent had a certain desire would not be enough.
She would need to appeal to some principle, for example, the principle
that it is morally permissible for anyone to act on a certain kind of desire
in certain circumstances. For example, suppose I do have an inclination to
be rid of my excruciating pain, and I believe I can rid myself of it by taking
morphine. Asking myself whether I am justi¬ed in acting on my inclina-
tion for my pain to stop requires me to distance myself from my particular
inclination. It makes me see my inclination as that of a person in a certain
situation. To justify my taking the morphine, I would have to justify any
person™s doing so in the same circumstances. Yet appealing to the fact that
I now have this inclination to get out of pain would not accomplish this.
To justify anyone™s taking the morphine in the same circumstances, I would
have to appeal to some principle, one such as: it is morally permissible for
anyone in excruciating pain to take measures to stop it, if these measures
do not cause anyone else comparable pain.
Of course, this argument, especially when sketched so broadly, does
not leave an opponent of step 2 without recourse. He might, for exam-
ple, demand an explanation of why, precisely, he must agree that to justify
Transcendental Freedom to the Rescue? 39

his action, an agent must always take an “external” perspective toward it.
However, pursuing this discussion would lead us far a¬eld, and I hope I may
be excused for not doing so here. I propose that we simply accept step 2
of Allison™s argument. An appeal to desires alone cannot justify an agent™s
maxims. Principles are required not only for the motivation, but for the
justi¬cation, of our acting.


2.4 Practical Law and Justi¬cation of Action
According to step 3, the justi¬cation of our maxims must lie in their con-
formity to some “universally and unconditionally valid practical principle” “
some practical law.19 Only our maxims™ conformity to a practical law could
justify them. Acknowledging that Kant does not explicitly defend this
premise, Allison constructs a Kantian argument for it.20
The argument unfolds in two stages. In the ¬rst, Allison claims that a suf-
¬cient condition for a maxim™s being justi¬ed is that it be adopted because
it is required by some practical law. As Allison suggests, this claim seems rel-
atively unproblematic: “[I]f my reason for x-ing is that it is dictated by such
a law . . . then I have all justi¬cation I could conceivably need for x-ing.”21 In
the second stage of the argument, Allison defends the view that a necessary
condition for a maxim™s being justi¬ed is that the maxim conform to some
practical law. This far more controversial stage of the argument deserves a
careful look.
Allison begins by observing that a transcendentally free rational agent,
as we are assuming ourselves to be, cannot take his maxims to be justi¬ed
unless he holds them to be permissible “ not contramanded by whatever
principle serves as their standard of justi¬cation. Allison then tries to show
that such an agent must hold the following: a necessary condition of his
maxims being permissible is that they conform to some practical law. In
other words, only one kind of standard for the permissibility of maxims will
do: a universally and unconditionally valid practical principle.
This latter move requires scrutiny. In defense of it, Allison points out
that a standard by which we could determine the permissibility of any of
our maxims would have to be “governing the pursuit of any end at all,
including desire- or interest-based ends.”22 If a standard of permissibility
applied only to certain ends, then the standard would not apply to some
(possible) maxims. For every maxim contains, if only implicitly, a description
of an end.23 So, for example, a standard such as “If you want to maximize
your life-span, you ought to do x, y, and z” would not do. For it would not
be a basis on which to determine the permissibility of a maxim that does
not (even implicitly) have maximizing one™s life-span as its end. And we, as
Kantian rational agents, can, of course, have such a maxim. Next, Allison
argues that, since an adequate principle for determining the permissibility
of our maxims would have to be one governing the pursuit of any end at all,
Search for the Supreme Principle of Morality
40

“it must not only apply to all transcendentally free rational agents, it must
also apply to them regardless of what desires or interests they may happen
to have.”24 And, concludes Allison, such a principle is precisely what Kant
means by a practical law.
This argument is, I believe, unsatisfactory. As Allison suggests, Kant does
conceive of a practical law as a principle that applies to all transcendentally
free rational agents. However, Allison™s argument falls short of showing that
the standard for the permissibility of our maxims “ that is, the maxims
of human rational agents “ must apply to all transcendentally free rational
agents. Therefore, the argument does not establish that this standard must
be a practical law.
An example helps to illustrate this point. Consider the following prin-
ciple of happiness, PH: “Always do what you believe will maximize your
own pleasure.”25 Let us suppose that PH is a categorical imperative in the
following sense: it is a principle that commands us to act in a certain way re-
gardless of what we do or might desire. PH prescribes that an agent do what
he believes will maximize his pleasure even if he does not want to maximize
it. Strictly speaking, PH is not a viable candidate for a practical law. There
might be rational agents who, because of their constitution, cannot have
pleasure. Speaking of the pleasure (or pain) experienced by these agents
would be akin to speaking of the pleasure (or pain) experienced by the
number 3: non-sense. PH could not be a practical law, for it could not serve
as the principle by which to determine the permissibility of these agents™
maxims.
Allison™s argument, however, does not close the possibility that PH could
serve as the principle by which to determine the permissibility of our maxims.
As Allison points out, this principle would have to govern the pursuit of any
end we could have, including desire- or interest-based ends. But PH could do
so. According to PH, if an agent believes that adopting a particular maxim
would enable him to maximize his pleasure, then his adopting it will be
permissible; if he does not believe this, then his adopting it will be imper-
missible. This standard would be in effect no matter what the ends described
in the agent™s maxims might be, even if they include minimizing his own plea-
sure. Even though PH is not a practical law, it could serve as the principle
by which the permissibility of our maxims is determined.
Allison might respond that we ¬nd in step 2 of his argument the key to
seeing why PH could not serve as this principle. In step 2 he has established
that we require a nonsensuously based justi¬cation of our maxims. For the
same reasons we require this, we also require a nonsensuously based stan-
dard of our maxims™ permissibility. Since PH is sensuously based, concludes
the response, it could not be such a standard. Once again, “desire-based
action requires a desire-independent warrant.”26
This response is ineffective. What step 2 actually establishes is that an
agent cannot justify his maxims simply by appealing to the notion that he has
Transcendental Freedom to the Rescue? 41

some particular desire or impulse. To justify them, he must appeal to some
principle. Likewise, let us grant, the standard of whether an agent™s maxims
themselves are permissible cannot simply be whether they further some
particular desire or impulse he has. To determine his maxims™ permissibility,
he must appeal to some principle. The important point here is that PH is
not some desire or impulse (or the mere notion that one has some desire
or impulse). It is a principle. It gives some maxims a “desire-independent
warrant” “ a warrant no matter what an agent actually desires. PH does not
prescribe that we maximize our pleasure on condition that we want to. It is,
in the sense already described, a categorical imperative.
Nevertheless, Allison might insist that PH is sensuously based in that it
invokes a concept of something sensuous, namely pleasure. I agree; if one
wants to use the designation “sensuously based” in this way, then PH is
sensuously based. However, Allison has not shown that no principle that
invokes the concept of something sensuous could serve as the standard of
the permissibility of our (rational human agents™) maxims.
Let me put the general point I am making in a different way. Allison is
correct in thinking that a principle cannot serve as the standard for the
permissibility of each and every one of our ( human rational agents™) max-
ims unless it applies to us regardless of which desires and interests we may
happen to have. A principle cannot serve as such a standard for our maxims
unless it applies to us unconditionally. However, Allison holds (in my view
wrongly) that if a principle applies to us unconditionally, it must therefore
apply to all rational agents as well. Following Kant, he makes an unwarranted
move from the requirement that a principle that serves as the standard
for the permissibility of maxims be unconditional ( binding on us regard-
less of what we might desire) to the further requirement that such a prin-
ciple™s scope extend to all rational beings.27 Since PH fails to ful¬ll the
¬rst requirement, it could not be a practical law. For all Allison has said,
however, it still might serve as the principle by reference to which we, tran-
scendentally free human agents, are to determine the permissibility of our
maxims.
My point here is not to defend PH as a candidate for the supreme principle
of morality. I mention it merely as an illustration of a principle that Allison™s
argument here does not rule out as a possible justi¬catory basis for our
maxims. Just as his defense of step 3 does not exclude PH as a justi¬catory
basis for our ( human beings™) maxims, it also fails to bar a principle such
as “Perfect your human rational and physical capacities,” if we understand
the principle as an unconditional command. Although this perfectionist
principle is not a viable candidate for a practical law “ it would obviously
not provide a basis for nonhuman rational agents to judge the permissibility
of their maxims “ it might, nevertheless, serve as a basis for us to judge the
permissibility of our maxims. In general, if I am correct, Allison has not
established that the scope of whatever principle serves as the basis for the
Search for the Supreme Principle of Morality
42

justi¬cation of our maxims must extend to all rational beings. Therefore,
he has not proved step 3 “ that this principle needs to be a practical law.


2.5 Practical Law and the Formula of Universal Law
In step 3, Allison tries to establish that our maxims are justi¬ed only when we
adopt them on the basis of their conformity to some practical law. According
to step 4, this practical law must be the “moral law,” speci¬cally Kant™s For-
mula of Universal Law. To establish this, Allison must obviously show that no
principle besides the Formula of Universal Law is capable of justifying our
maxims. Allison™s argument for step 4 has two main parts, which we need to
examine in turn.
The ¬rst part is relatively uncontroversial. For a practical law to serve
an agent as a justi¬cation of her adopting a particular maxim, he suggests,
it does not suf¬ce that the maxim conform to the law.28 Suppose, for a
moment, that the Formula of Universal Law is the only practical law. An
egoist might act on a maxim of keeping her promises, yet do so in order
to secure a good reputation and, ultimately, simply to promote her own
happiness.29 She might contend that her maxim was justi¬ed simply by
virtue of its conforming to the Formula of Universal Law. But this contention
would not withstand scrutiny. For a maxim to be justi¬ed by reference to
a practical law, it must noncontingently conform to the law. Yet, Allison
seems to suggest, the only way a maxim can noncontingently conform to a
practical law is if it is adopted at least in part because it conforms to the law.
Although the egoist™s maxim conforms to a practical law, it does so merely
as a result of a coincidence of the law™s dictates and her ultimate end. If
in different circumstances the egoist believes that the best way to promote
her happiness is to break her promises, then she will do that. According to
Allison, a justi¬ed maxim is one that an agent has adopted ultimately at least
in part because it conforms to a practical law.
But when does a maxim count as having been adopted ultimately at least
in part because it conforms to a practical law? Allison, it seems, recognizes
two main possibilities. First, if I treat my maxim™s conformity to a practical
law as a suf¬cient reason for my adopting it, then I have adopted the maxim
at least in part because it conforms to a practical law. Second, if I treat my
maxim™s conformity to a practical law as “an ineliminable component in a
jointly suf¬cient reason,” then I have adopted it in part because it conforms
to a practical law.30 This second kind of scenario arises when my maxim is
based on inclination. Allison appears to be suggesting the following kind of
case. Suppose I adopt a maxim of exercising regularly and that if my maxim
violated the law, then, for that reason, I would refrain from adopting it. In
this case, I count as adopting my maxim ultimately (at least in part) because
of its conformity to a practical law. I count as doing so even if I don™t take the
exercising maxim™s conformity to practical law as in itself suf¬cient for my
Transcendental Freedom to the Rescue? 43

adopting it, that is, even if I would not adopt it unless I had an inclination
to stay in shape.
Now the question arises: why must a justi¬ed maxim be adopted by virtue
of its conformity to the Formula of Universal Law, instead of some other
principle? If Allison answers this question, it will be in the second part of his
argument. He moves very quickly:

[I]f I am required to adopt a maxim at least in part because of its conformity to
universal law or, equivalently, an unconditional practical law, then, clearly, this maxim
must be able to include itself as a “principle establishing universal law,” which is just
to say that the maxim must have what Kant terms “legislative form.” In other words,
the intent expressed in the maxim must be compatible with the putative universal
law produced by the generalization of that maxim. Otherwise, its conformity to such
a law could not possibly be the reason (or even a reason) for adopting the maxim in
the ¬rst place.31

Allison claims that only if an agent™s maxim has legislative form can she
adopt it even in part because of its conformity to practical law. On Allison™s
reading, it seems, a maxim has legislative form just in case an agent can act
on it and will that it become a universal law. In other words, a maxim has
legislative form just in case it passes the test contained in Kant™s Formula of
Universal Law. A rational agent who assumes she is transcendentally free,
says Allison, will ¬nd on re¬‚ection that only if her maxim passes the For-
mula of Universal Law test can she adopt it even in part because of its
conformity to practical law. A necessary condition of her maxim™s being
justi¬ed is thus that the maxim conform to the Formula of Universal Law.
Therefore, Allison seems to hold, the agent must conclude that the law on
the basis of which she adopted any justi¬ed maxim would have to be this
formula.
But why should we agree that only if an agent™s maxim passes the Formula
of Universal Law test can she adopt it even in part because of its conformity
to practical law? In my view, Allison leaves this question unanswered. Let
me illustrate this point with the help of a few examples. First, consider the
principle PRU: “Act only on maxims such that you believe that your acting
on them will maximize the general happiness.” It seems that someone™s
reason for adopting a maxim could be that it conformed with PRU, even if
his maxim failed the Formula of Universal Law test. Take a maxim such as,
“In order to maximize the general happiness, I will devote myself entirely to
the study of ethics.” This maxim fails the Formula of Universal Law test, at
least on a common reading. It is not possible for me, as a rational being, to
act on it and at the same time will that it become a universal law. In willing
the universalization of my maxim, I would be willing a state of affairs in
which no one would develop the skills necessary for maximizing the general
happiness, for example, skills in food production or medicine. I would, in
effect, be willing it to become impossible for me to attain the end described
Search for the Supreme Principle of Morality
44

in my maxim. Despite the maxim™s lack of legislative form, it seems that I
could adopt it because it conforms to PRU.
In response, perhaps Allison would suggest that at this point in his ar-
gument it is already clear that an agent could not justify his adoption of a
maxim by appealing to a principle such as PRU. According to his step 3,
the justi¬cation of a transcendentally free agent™s maxims must lie in their
conformity to some practical law. But, Allison might argue, PRU is simply
not a viable candidate for a practical law. Such a law must apply to all rational
agents “ something that PRU, like PH, fails to do, since presumably there
might be some rational agents (e.g., angels) to whom the concept of happi-
ness fails to apply.
Actually, it is not obvious that PRU fails to apply to all rational agents.
Granted, we cannot presuppose that all rational agents can be happy. Per-
haps angels cannot be. However, it would be mistaken to conclude simply
from this observation that PRU could not apply to all rational agents. That
angels cannot themselves be happy does not entail that they are incapable
of acting on maxims that, they believe, would maximize the general welfare.
They presumably hold that what they do has an impact on agents capable of
various degrees of happiness “ that is, agents like us. If PRU fails to apply to
any rational agents, it fails to apply only to those who both cannot themselves
be happy and who can in no way in¬‚uence the happiness of others. Since it
is possible that such isolated agents exist, it seems that, after all, PRU does
not necessarily apply to all rational agents, and that, therefore, PRU is not a
viable candidate for a practical law. Of course, if, as I have claimed, Allison
fails to establish step 3, and we (transcendentally free human agents) could
justify our maxims with reference to a principle that does not quite have the
scope of a practical law, then this point is moot.
But even if Allison succeeds in showing that a maxim based on PRU could
not both fail to have legislative form and be adopted on the basis of a prac-
tical law, other challenges are not dif¬cult to generate. I will consider two.
First consider the weak principle of universalization WU: “Act only on that
maxim which, when generalized, could be a universal law.” Notice that WU
is not equivalent to the Formula of Universal Law. As Kant suggests in the
Groundwork, a maxim of nonbene¬cence could, when generalized, consti-
tute a universal law (GMS 423). Since a world where no one acted bene¬-
cently is indeed a coherent possibility, acting on a maxim of nonbene¬cence
does not violate WU. On Kant™s view, of course, acting on such a maxim runs
afoul of the Formula of Universal Law. It does so, he thinks, because as a
rational agent it is not possible to act on it and, at the same time, will that its
generalization be a universal law. A maxim of nonbene¬cence does not have
“legislative form.” However, Allison does not explain why an agent could not
adopt a maxim of nonbene¬cence on the basis of its conformity with WU.
He does nothing to rule out the possibility that WU is the practical law on
the basis of which we can justify our maxims. There remains a gap between
Transcendental Freedom to the Rescue? 45

the notion that our maxims must be justi¬ed on the basis of some practical
law and the notion that this law must be the Formula of Universal Law.
A rather bizarre principle can serve as a second illustration of this point,
namely BP: “Act only on that maxim that you cannot, at the same time, will
that it become a universal law.” It is, of course, not hard to ¬nd maxims that
would be in accordance with BP, yet that would not have legislative form.
Once again, the maxim of nonbene¬cence Kant discusses in Groundwork I
¬ts the bill. If the maxim of nonbene¬cence fails the Formula of Universal
Law test (as Kant holds it does), then it passes the BP test. According to
Allison, an agent™s reason for adopting a maxim could not be its conformity
to BP. No one, Allison claims, could adopt a maxim of nonbene¬cence
and have as his reason for doing so the maxim™s conformity with BP. Yet why
couldn™t a transcendentally free agent™s reason for adopting a maxim be that
it conform to BP, rather than to the Formula of Universal Law? BP, we might
specify, has the form of a practical law. It is an unconditional imperative,
commanding that we act in a certain way regardless of what we desire to do.
Moreover, like WU, it is not sensuously based, not even in the minimal sense
of making use of sensuous concepts such as happiness or pleasure.
But surely we need not take BP seriously, one might here interject. For
running maxims through the BP test has obviously counterintuitive impli-
cations. Just to name one, if we rely on BP as a standard, we ¬nd that we
have no duty of bene¬cence, which goes strongly against ordinary moral
thinking. I agree wholeheartedly that BP has counterintuitive implications
(as does WU) and that, therefore, we need not take it seriously as a candi-
date for the supreme principle of morality. My point is simply that Allison™s
argument does not exclude this principle (or WU ) as a basis on which tran-
scendentally free rational agents justify their maxims. And since it does not,
the argument is not a successful derivation.
One might see it as an advantage of Allison™s approach that it does not
rely on Kant™s appeals to ordinary moral reasoning in Groundwork I, for ex-
ample, on his discussion of which actions we take to have moral worth. These
appeals generate considerable controversy “ controversy that it might seem
desirable to avoid. But shortcomings in Allison™s argument suggest that an
examination of ordinary moral reasoning must play a role in any effective
derivation of the Formula of Universal Law. To put it bluntly, Allison™s argu-
ment remains at too abstract a level to be successful. Even if we begin with a
very robust notion of a Kantian agent and, contrary to my objection, grant
him that such an agent (even if he is also human) must justify his maxims
by an appeal to a practical law, we ¬nd that Allison fails to show that this
practical law must be the Formula of Universal Law. There is a gap in this

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