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The pejorative notion of casuistry is a good starting point for our critical discussion.68

It is generally difficult to shake off the impression that in casuistical arguments terms are being stretched and bent to people’s wills.69 The suspicion is well familiar. It is

felt whenever people seeking to justify exceptions start quibbling over language, and, on reflection, there is no reason why it should not extend to moral philosophers – especially those who are anxious to reject a rigorism charge that critics have brought against their favourite thinker. This, then, is the objection we need to consider: that the Casuistical Questions Response is an abuse of casuistry. To clarify: the objection here is not to the claim that, in day-to-day conversation, we tend to use our terms loosely. That claim is not likely to cause much controversy. What is problematic is the use of this claim in attempts to justify exceptions, given the obvious temptation of abuse. Before we can assess the reasoning that leads the proponents of the present response to the conclusion that, strictly speaking, this or that act is not a ϕ-ing, we need criteria. How does one fend off the charge of abuse? How does one back up the claim that, strictly speaking, a given act is not a lie without begging the question? Let us begin from the standpoint of an ordinary agent, rather than the standpoint of a moral philosopher, and consider two strategies that are most certainly unsuccessful.

First, one cannot simply shrug one’s shoulders. This might seem obvious, but it is not, for one might think that this is exactly what the term “judgment call” conveys: that there is nothing more to say, nothing to convince an interlocutor who just does not “see it”. Think of disagreements about the applicability of colour concepts and the utter pointlessness of pushing someone to back up their claim that the sweater is blue, not green. This is not how it is with moral disagreements, however.70 Here we

68_{Merriam Webster defines casuistry, among other things, as a “specious argument” or “rationalization”,}

and one of the definitions given by the Oxford Dictionaries is “the use of clever but unsound reasoning, especially in relation to moral questions; sophistry”.

69 _{This is an objection that both early modern thinkers and conservative catholic theologians mounted}

against the casuistical practice of Jesuits, when casuistry fell into general disrepute in the 17th _century.

For a discussion of how this debate influenced Kant, see Schüssler 2012: 90-4.

70 _{It seems to me that this difference is not always sufficiently appreciated. In a much-discussed paper,}

entitled “Values and Secondary Qualities”, John McDowell draws an analogy between values and colours (1998: 131-50). The point of his analogy is to argue for a no-priority view: for the view that

do expect people to say more. Of course, it is possible that the subsumption of acts under principles of duty is a judgment call in a broader sense: in the sense that it is impossible to specify a second-order rule for how to go about the task of subsuming cases under a given first-order rule. This seems very plausible.71 The truth, I think,

must lie somewhere in between the two extremes. If you were challenged to back up your claim that your telling the murderer a falsehood was, strictly speaking, not a lie, you would have to be able to say something to corroborate this assertion, but you would not be required to give a foolproof algorithm or full list of necessary and suf- ficient conditions, which would settle the question beyond doubt.

Second, one cannot fend off the charge of abuse by pointing to the deontic sta- tus of the act in question. In the Murderer at the Door case, for instance, you cannot substantiate your claim that your statement was not a lie by saying that making it was permissible or obligatory. This would be question-begging, given your opponent’s suspicion that you are quibbling over terms precisely because you are biased and thus inclined to treat the act in question as permissible or obligatory.72 The considerations

that you cite must provide independent support for the intended conclusion.73

values and colours are both essentially related to human sensibilities and objective, and that neither of these characteristics is to be given explanatory priority over the other. However, when particularists draw on his views and arguments as a source of support for theirs, they sometimes seem to take the analogy further, assuming that evaluative concepts share a further characteristic of colour concepts, which McDowell highlights elsewhere. In Mind and World, McDowell says that colour concepts are only “minimally integrated into possible views of the world” (1994: 30). Part of what he means by this, I think, is that the possession of a colour concept is a conceptual capacity with relatively little content, that, when we apply the concept “red”, for example, there is not much we can say in support of this application. It seems to me that something like this must be presupposed in Dancy’s claim that “there is nothing that one brings to the new [moral] situation other than a contentless ability to discern what matters where it matters” (Dancy 1993: 50). I doubt that McDowell would agree with this extension of his analogy, and I think that, on reflection, it is not very convincing. I would argue that our evalua- tive concepts are unlike colour concepts in that they are deeply integrated into our views of the world, and that we do expect each other to give reasons when such concepts are applied.

71 _{Indeed, according to Kant, we have to assume that this is impossible and unnecessary if we are to}

steer clear of an infinite regress. He says: “The power of judgment is the faculty of subsuming under rules, i.e. of determining whether something stands under a given rule ... or not ... Now if we wanted to show generally how one ought to subsume under these rules, i.e., distinguish whether something stands under them or not, this could not happen except once again through a rule. But just because this is a rule, it would demand another instruction for the power of judgment, and so it becomes clear that ... the power of judgment is a special talent that cannot be taught but only practiced ... in the absence of [this] natural gift no rule that one might prescribe to him [to a student] for this aim is safe from misuse” (CPR B 171-3). Of course, this is nothing but a gesture at a topic that would have to be discussed in much more detail.

72 _{The worry is, in other words, that one is trying to make an exception for oneself. I will say more about}

the distinction between exceptions for oneself and exceptions that are called for by the circumstances in ch. 3, sect. 2.5.

73 _{This is what Schüssler has in mind when he cautions against an inference that some Kantian have}

Having said what fending off the charge of abuse cannot look like, we have come closer to understanding what it must look like. To fend off such a charge, we have to cite features of the act other than its deontic status that warrant its exclusion from the sphere of the relevant action kind concept. What is interesting is that this kind of justification is strikingly similar to the kind of justification we would expect from someone trying to back up their claim that a given lie is permissible or obligatory, except that the latter justification would not take the detour via the question of sub- sumption. Let us consider an example.

Lie to a Friend: I overheard how you lied to a common friend and now I am scolding you. One way of justifying what you did would be to say that it was not strictly speaking a lie. If I responded with a rebuking look, you might try to allay my suspicion by saying that you had no intention to deceive. But note that there is another, more direct route that you could take: you could accept my claim that it was a lie and appeal to the very same consideration, that is, to the fact that you had no intention to deceive, to show that it was a permissible lie.74

There is no doubt that real life disputes about alleged exceptions to perfect duties come in both these forms. Yet, according to proponents of the Casuistical Questions Response, justifications that proceed via the latter, more direct route are at best loose talk, and at worst misguided. If you and I agree that lying is impermissible, then, in their view, the real point of contention between us must be whether your act was a lie, no matter which direction our conversation takes on the surface level. (After all, if lying is indeed impermissible, then, following the Deontological Thesis, it must have that status across the board.) But why should we accept that, at a deeper level, all disputes about alleged exceptions to perfect duties are disputes over semantics?75

Why should we accept that, once it is settled that the action falls under the concept of a lie or a theft or a promise-breaking, it is also settled what its deontic status is? intricate to the claim that settling such questions is a matter of focusing directly on the deontic status of the relevant acts (2012: 94-5). Schüssler is right to note that this conclusion leaves us wondering how it is possible to have intersubjective insight into or share judgments about whether a particular case falls under a principle of duty or not. After all, if I think that some act is a lie and you think that it is not, then my pointing out that it is impermissible won’t help us to make any progress.

74 _{This example is interesting precisely because an intention to deceive is sometimes thought to be a}

necessary condition for lying. I will come back to this below, both in the main text and in fn. 77.

75 _{In fact, in ch. 3, I will argue that in a sense they are, but by that I won’t mean that they are all disputes}

It seems that we have run into a difficulty. On the one hand, we have managed to get an idea of what a successful attempt to substantiate claims of the form “Strictly speaking, this is not a ϕ-ing” might look like. But, on the other hand, we have realized that this is not necessarily how such substantiations would be presented. So now that we know what a good substantiation might look like, we no longer know how to tell whether we have found one. The following thought might help to get us out of this conundrum: if the difference between the two justificatory strategies open to you in the Lie to a Friend case was indeed merely a difference between strict and loose uses of language, as proponents of the Casuistical Questions Response maintain, then they should sound equally intuitive. And, arguably, in this case, they do. Given that you intend to justify yourself by appeal to the fact that you had no intention to deceive, it makes at least as much sense for you to reject my characterization of your act as a lie as to proceed on the assumption that it was one. But what about our target cases? What about the Murderer at the Door case, for example? Presumably, here, you would justify your making a false statement by appeal to the fact that the addressee of your statement was planning to use the information provided to murder someone. Now, in this case, it would seem much more appropriate to accept your opponent’s claim that you lied and argue that, in this situation, lying was permissible. For why would the fact that someone’s life is in danger bear on whether your statement is a lie?

Let us take a step back and reflect on what we have said. What the comparison between these two cases reveals, I believe, is that our intuitions about the felicity of justifying oneself directly or indirectly, via a refusal to subsume, turns on the extent to which the consideration appealed to is part of what we regard as the semantic core of the relevant term.76 In this respect, the Lie to a Friend case is a bit of a special case:

the reason why, in this case, the two justificatory routes seem equally intuitive is that it is genuinely controversial whether an intention to deceive is necessary for lying or not.77 But many of our target cases, including the Murderer at the Door case, fall clearly

on the direct-route side of the spectrum. These cases differ from the cases presented

76 _{It could be argued that I am using a bad criterion because our felicity intuitions might be influenced}

by pragmatic considerations. Perhaps it is for merely pragmatic reasons that the shorter route sounds more intuitive. I think a comparative analysis would show that this is not what is going on. The more important point, in any case, is the idea of a semantic core and the question why the fact that a life is in danger would bear on whether your statement is a lie. The appeal to justificatory routes and felicity intuitions is meant to serve as an illustration, not as an argument that stands on its own.

77 _{Deceptionists argue that an intention to deceive is necessary for lying (e.g. Mahon 2008b, Lackey}

in Kant’s casuistical questions in that the considerations appealed to are clearly not part of the semantic core of the relevant action kind concepts. Thus, in these cases, claims to the effect that a given act is, strictly speaking, not a lie, or a promise-breaking, or what have you, would beunfounded: not proper uses but abuses of casuistry.

With this in mind, let us return to the standpoint of the orthodox Kantian moral philosopher. He or she wants to defend Kant’s ethics by arguing that any apparent exception to principles of perfect duty, e.g. the principle that lying is impermissible, isn’t actually an exception because the act in question isn’t actually of the relevant kind, e.g. not a lie, despite the fact that, speaking loosely, we might call it that. The above argument has shown that that might work in somecases, but certainly not in all, and, crucially, not in the cases that Kantians and their critics tend to argue about. So even though there is a gap between principles or concepts, on the one hand, and particular cases, on the other, and even though Kant shows awareness of this gap, none of this helps to reconcile the idea that there are exceptions with the Deontological Thesis. The Casuistical Questions Response is ultimately a second-order abuse of casuistry.78 But

when we say this, it is important to keep in mind that our objection to this abuse of casuistry is not the objection of 17th _{century catholic theologians who were anxious to}

restore the strictness of divine commands. Most of us share the intuition that cases such as the Murderer at the Door case call for exceptions, that lying to the murderer can be justified, although only via the direct route: by arguing that it is a permissible lie because an innocent victim needed protection. So, from our point of view, the above discussion suggests that we need to reject the Deontological Thesis and to admit that it is part of our understanding of the duty not to lie that, in certain circumstances, it has to give way to the duty to protect.