Tax reduction: law and ethics

Introduction

This post is about different ways to try to reduce the tax one pays, and about relationships between those ways, the law, and ethical considerations.

This post is not advice on tax law. Anyone with questions or concerns about the position of an actual taxpayer should seek appropriate professional advice. We will not provide advice or recommend an adviser.

The focus is on the UK. We shall therefore refer to the tax authority as HMRC, which is short for HM Revenue and Customs. Other countries handle some of the issues differently, but the same general style of enquiry may be useful in relation to those other countries.

We have written two earlier blog posts on issues related to legal provisions we shall discuss:

https://analysisandsynthesis.blogspot.com/2012/07/tax-avoidance-and-problem-of.html

https://analysisandsynthesis.blogspot.com/2013/03/reasonableness.html

Categories of conduct

The traditional categories

There is a traditional distinction between three things one can do in order to reduce the tax one pays: tax planning, tax avoidance, and tax evasion.

Broadly, planning involves things like putting money into tax-privileged investments such as pension funds, or ensuring that a home bought to rent out becomes the owner's main private residence for certain periods so as to minimise the proportion of the gain on sale that is taxable, or structuring a group of companies so that if one company makes a loss, it can be netted off against the profits made by another company to reduce the amount that is taxable. Avoidance is planning that looks too much like the exploitation of loopholes. It often involves complex structures and transactions that have no purpose other than to save tax. It is common to speak of avoidance schemes, where a scheme is a complete structure and set of transactions. Evasion is the provision of false information to HMRC, or the withholding of information, in order to pay less tax.

There is also a well-established distinction between different consequences of actions that in some way harm others. This is the distinction between restitution, making good the loss suffered, and penalties. In the context of tax underpaid, restitution arises in the form of payment to HMRC of the tax that would otherwise have gone unpaid.

Traditionally, tax avoidance which did not succeed because HMRC argued successfully for an interpretation of the law that left no loophole only led to restitution. The tax which the taxpayer had hoped to avoid had to be paid, perhaps with interest, but that was all. There was nothing illegal in setting up complex structures and carrying out complex transactions. They might simply fail to achieve their aim. Evasion, on the other hand, traditionally led to penalties.

The categories we shall explore

We shall explore categories that are not the traditional ones, although they are related to the traditional ones. We shall do so because our alternatives seem to be more useful in understanding certain issues, particularly some relationships between the legal position and the ethical position. 

Our first category, which we shall call failed avoidance, covers tax planning or avoidance (we can run them together) that does not achieve its aim, for legal reasons rather than because some mistake was made in implementing the planning or avoidance.

Our second category, which we shall call unethical avoidance, covers tax planning or avoidance that on ethical grounds should not be undertaken.

Our third category, which we shall call penalised conduct, covers conduct that is liable to lead to penalties as distinct from mere restitution. We shall however not be concerned with the deliberate falsification or concealment of information.

Our fourth category, which we shall call culpable conduct, covers conduct that on ethical grounds should lead to penalties.

One of our questions will be that of the sharpness of the boundaries of these categories. Another will be that of the match or mismatch between the boundaries of the first and second categories, and between the boundaries of the third and fourth categories. We shall also be concerned with the extent to which, contrary to tradition, failed avoidance can amount to penalised conduct.

We shall start with failed avoidance, then move on to unethical avoidance and relationships between failed and unethical avoidance. After that, we shall we shall move on to penalised and culpable conduct. We shall then consider the ethics of legislating in certain ways. We shall conclude with a discussion of categories and general ethical principles.

Failed avoidance

Tax planning can be very straightforward, for example putting money into a pension fund to get a tax deduction now and tax-free investment returns, subject to taxation (perhaps at a lower rate) when the pension is paid out. At the other extreme it can involve very complex structures and transactions, often using multiple companies, trusts and the like and mixtures of share capital and loans, all spread across several jurisdictions, in an attempt to ensure that the overall tax rate on a group's worldwide profits is far less than one would naturally expect it to be.

HMRC will seek to prevent tax avoidance from succeeding when the tax at stake is substantial in an individual case, when it would be substantial if a scheme were widely used, or when the avoidance is considered to be brazenly contrary to the policy of the tax system. Complexity is not essential for any of these conditions to be met, but it is quite common for schemes to be complex and to rely on loopholes in the law that may not have been apparent when it was drafted.

Legal provisions

Avoidance in which the necessary steps were executed correctly can only be prevented from succeeding if the legal tools are available. Some avoidance is blocked by specific legal provisions, often ones which were inserted as soon as the form of avoidance in question came to light. But the enactment of such provisions can easily lead to the creation of new schemes that stay just outside the ambit of the new provisions. More significant for our purposes are general provisions that are intended to lead to the failure of classes of schemes defined by some aspect of their overall nature or by their results, rather than by their details. We shall look at two such provisions, the General Anti-Abuse Rule (the GAAR) and the Diverted Profits Tax (the DPT).

The GAAR

In 2013, the UK introduced the General Anti-Abuse Rule (the GAAR). Links to the legislation and the guidance can be found here:

https://www.gov.uk/government/publications/tax-avoidance-general-anti-abuse-rules

The basic idea is that a tax avoidance scheme does not succeed in delivering the expected tax saving if it fails the double reasonableness test. In the words of Finance Act 2013, section 207(2):

(2) Tax arrangements are "abusive" if they are arrangements the entering into or carrying out of which cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions, having regard to all the circumstances including -

(a) whether the substantive results of the arrangements are consistent with any principles on which those provisions are based (whether express or implied) and the policy objectives of those provisions,

(b) whether the means of achieving those results involves one or more contrived or abnormal steps, and

(c) whether the arrangements are intended to exploit any shortcomings in those provisions.

One argument for the double reasonableness test is that it makes it quite difficult for tax avoidance to be caught by the GAAR. This is legislation with a much less well-defined scope than most of the legislation that targets specific tax avoidance schemes. It has to have a fuzzy boundary of application because if it had a precise boundary, avoidance schemes that stayed just the right side of the boundary would soon be devised. So to be fair to taxpayers, the grey area created by the fuzziness of the boundary should be such that it is easy to keep a safe distance away from it. Routine tax planning is definitely safe because it would be perfectly reasonable to regard it as reasonable. This is so even though there are also reasonable positions from which it would be regarded as unreasonable, for example a position that people should act without regard to tax considerations and then just accept whatever tax consequences happened to follow.

We should note the connections between the general notion of reasonableness and the circumstances to consider that are listed in section 207(2)(a), (b) and (c).

The effect of the circumstances mentioned in (a) and (c) is to link the notion of reasonableness to the intention of Parliament as it may be inferred from the relevant legislation and to the policy intention (an intention of the Government rather than of Parliament). Unreasonableness is indicated, although not demonstrated, by action which would frustrate those intentions. And (b) draws attention to contrived or abnormal steps as an independent indicator of unreasonableness.

Thus the notion of reasonableness at stake is closely tied to what Parliament and the Government at the time wanted the law to achieve. This is not surprising. The whole point of the GAAR was to give a new way to stop taxpayers dodging the intended effect of the law. But it will raise the question of whether what one might regard as unreasonable on general ethical grounds would align with what would be caught by the double reasonableness test of the GAAR. Has the GAAR defined a boundary of ethical significance, or merely one of governmental convenience?

The DPT

The Diverted Profits Tax (DPT) was introduced in 2015. The legislation is in Finance Act 2015, part 3, and may be viewed here:

https://www.legislation.gov.uk/ukpga/2015/11/part/3

This is a tax in addition to corporation tax, not an element within corporation tax. It is imposed on profits which would have been subject to UK corporation tax if avoidance steps had not been taken.

For the tax to apply, the taxpayer must have taken steps which lacked sufficient economic substance (sections 80(1)(f) and 86(2)(e)). This condition is defined in section 110(4), (5), (6) and (7). There are two parts. It must be reasonable to assume that the steps were designed to secure a tax reduction. And it must not be reasonable to assume that the non-tax benefits would exceed the tax benefits (section 110(7)(b) introduces a variation on this relative benefits rule which we shall not discuss).

We here have a different kind of reasonableness test from that used in the GAAR. The important difference is not between single and double reasonableness, with reasonable-design replacing reasonable-reasonable. Rather, it is between the DPT's "it is reasonable to assume" design to secure a tax reduction and the GAAR's "cannot reasonably be regarded as a reasonable course of action". The use of "cannot" in the GAAR leaves scope to survey all reasonable views in search of one favourable to the taxpayer. The use of "is" in the DPT pushes us to suppose some authoritative standard of reasonableness on the basis of which various possible sets of steps taken by a taxpayer could be divided into those it was reasonable to assume were designed to secure a tax reduction and those about which it would not be reasonable to make that assumption. The GAAR avoids the need to suppose an authoritative standard by allowing the full range of reasonable positions to be surveyed.

While inability to survey a full range of reasonable positions would make it harder for a company to be confident that it was safe from the DPT than it would be to be confident that it would be safe from the GAAR, because the inevitable grey area would be closer to regular commercial practice, there is another difference that might, but need not, pull in the other direction. The GAAR looks directly at what the taxpayer did. The DPT legislation looks at whether what the taxpayer did appeared to be designed to reduce tax. That is, application of the DPT requires consideration of design.

Having said that, it is only design as may be inferred from action that matters, not actual design as might be disclosed by internal company documents. To avoid its being reasonable to assume that transactions were designed to achieve a tax reduction, one would at a minimum have to argue that the transactions could easily have been chosen without tax reduction in mind. This much would be needed because section 110(9)(b) allows there to be design to secure a tax reduction despite there also being design "to secure any commercial or other objective". 

There is however one final safeguard for the taxpayer. This is the rule that the DPT does not apply if it is reasonable to assume that the non-tax benefits would exceed the tax benefits.

There is a penalty for failure to notify that the DPT might apply. It can be up to 100% of the tax at stake. Notification does not however imply an admission that the tax applies.

Unethical avoidance

What is unethical?

Tax avoidance may be seen as unethical. It at least tends to be against the spirit of the law, which is to collect tax at prescribed rates on income, gains, sales and so on as evaluated in a common-sense way. If for example someone receives income of £90,000, and there is no express provision to treat income of that kind as being less than is received, they should pay income tax on that amount minus the personal allowance at the applicable rates of 20% and 40%. It would be contrary to the spirit of the law to find a loophole which meant that tax was only levied on £20,000.

The ethical case against avoidance could be strengthened by pointing out that the avoider relied on goods and services provided out of taxation, such as education, healthcare and roads. Such goods and services are not only used directly in daily life. They also make it possible to run businesses so that people can have jobs or make investment returns. That is, they help to generate the income on which tax is supposed to be paid. If a democratically elected Parliament has decided how the cost of the tax-funded goods and services is to be shared out, it would seem to be unethical to dodge paying one's allocated share.

A contrary view would be that tax was an artificial imposition, with ethical obligations being defined entirely by the words of the law so that the only unethical conduct would be to act contrary to those words. If an avoidance scheme navigated round the words of the law without actually breaking any of the rules, nobody would have any ground to condemn the avoider as unethical. It would even be possible to take a positive view of avoidance, on the ground that the state had no business violating individual property rights without individual consent (as opposed to collective consent).

There is very unlikely to be universal agreement on the boundary between acceptable and unethical tax planning or avoidance. Some people think that if the law allows a piece of tax avoidance to succeed it is ethically acceptable, however contrived it may be. Others think that anything in the least bit contrived is ethically unacceptable. And there are plenty of options in between, allowing that certain degrees of avoidance are acceptable but condemning more extreme avoidance.

It is not surprising that there should be a wide range of views. There are many factors to consider in political questions, and several angles from which those questions may be viewed. We do not find the single dominant factors or angles which may allow there to be general agreement on conclusions such as the one that physical violence is wrong. 

Not only is there no general agreement on where to place an ethical boundary. Almost any boundary would be hazy. The only positions that would be guaranteed to yield sharp boundaries would be extreme ones: that all tax planning was wrong, so that people should make their commercial decisions as if tax did not exist and then accept whatever tax consequences arose, or that all tax avoidance, however contrived, was ethically acceptable.

Even an ethic that was intrinsically disposed to precise conclusions as to what to do in given cases would be unlikely to help. A Kantian ethic might tell taxpayers to act from a good will, and to consider the feasibility of universalising the maxims on which they acted, but any one of a range of principles on which to approach tax planning, or indeed any one of a range of possible decisions on particular occasions, could easily comply with such requirements. And a Benthamite approach of maximising happiness could not be used to work out either principles on which to act or which choices to make on particular occasions, simply because of the impossibility of working out what would in fact do the most to promote human happiness. On the one hand it could be argued that the democratically controlled state was the best guardian of resources to be applied for the common good, so that tax planning should be minimal. On the other hand it could be argued that the flourishing of the economy would be vital, that this would demand not letting too much wealth leach into the public sector, and that the state was incompetent at allocating resources, so that tax payments should be minimised.

Failed avoidance and unethical avoidance

We shall now consider the relationship between the boundary that divides effective from failed avoidance and possible boundaries that would divide acceptable from unethical avoidance.

Perfect correspondence in fact, so that tax planning was ethically acceptable if and only if it was legally effective in the sense that it would lead the planner to keep their envisaged tax saving, seems unlikely. One would expect it if there were a general ethical principle that whatever planning the law did not defeat was acceptable, and whatever it defeated was unacceptable. One might argue for the first leg of this general principle on the basis that there was no natural morality about the levying of taxes, although on that basis ethical acceptability would amount not to endorsement but only to the absence of ethical objection. And one might separately argue for the second leg of the general principle on the basis that there was an ethical requirement to show respect for the law which went beyond abstention from illegal actions and extended to abstention from actions, the hoped-for consequences of which would be frustrated by operation of law. (Remember that tax planning, even aggressive avoidance, is in general not disobedience. There is in general nothing illegal about setting up complex commercial structures, even if the purpose is tax avoidance. The law may merely render the use of such structures ineffective for tax purposes.) But it would be very hard indeed to argue for both legs at the same time, unless one were to assert that the law was in the areas of life that it covered the definitive guide to the ethical. That would be to allow legal positivism to steamroll its way across ethical discourse.

Ethical thought and the GAAR

The GAAR relies on the double reasonableness test: could the tax arrangements reasonably be regarded as a reasonable course of action? 

The resultant haziness as to which tax avoidance would be defeated by the GAAR is inevitable, given that precise rules directed against specific avoidance schemes routinely leave scope to devise new schemes.

There is a special contribution that ethical thought might make to deciding specific cases. Ethical thought might contribute to deciding what would be reasonable, or at least (taking account of the double reasonableness test) to deciding what could reasonably be regarded as reasonable. What follows here on this point is however speculative. The potential scope to contribute is not recognized in current legislation, and attempts to make use of ethical thought might get nowhere in court. We include the topic here in order to suggest that ethical thought might have a role to play in the writing of future tax law or in the development of approaches to deciding cases.

A Kantian approach would best be suited to saying what could reasonably be regarded as reasonable. An understanding of the notion of a good will and of the categorical imperative would not suffice to say what would be reasonable in tax planning. The factors to consider would be too complex for that. But a claim that some particular piece of tax planning could reasonably be regarded as reasonable could be tested by asking whether it was plausible that the action might be inspired by a good will, or whether it was plausible that the maxims behind the tax planning could be universalised. (We here mean maxims specific to planning of the relevant sort, and do not envisage a single maxim or set of maxims that would cover tax planning of all sorts.)

A utilitarian approach would likewise best be suited to saying what could reasonably be regarded as reasonable. The only actions that would in fact be reasonable, according to such an ethic, would be actions that maximised total happiness. But it would be far too hard to work out consequences of particular pieces of tax planning or of general approaches to tax planning. On the other hand, it might be feasible to say that it was reasonable to regard some particular piece of tax planning, or some particular general approach, as having a plausible prospect of maximising total happiness.

Virtue ethics may have a better prospect of leading to judgements as to which specific pieces of tax planning, or general approaches, were in fact reasonable. A piece of tax planning or a general approach could be judged on the basis of whether it accorded with specific virtues. Honesty would be an obvious virtue, but so long as we were not considering evasion dishonesty might not be in question in any case. Community spirit might be a relevant virtue (although there are philosophies, such as that of Ayn Rand, which would not see it as a virtue of any significance). Paying for resources on which one relied even though they were technically provided free of charge at the point of use, such as the education of employees, might be a virtue. And so on.

Penalised and culpable conduct

Restitution and penalties

We have noted the distinction between two two types of demand for payment that HMRC may make.

Restitution is making good a loss, for example when tax avoidance fails and the tax which it had been intended to save is payable after all. The restitution is of the loss to the state. It is not exactly like damages payable for loss in a civil action between private individuals or companies, but the basic idea is the same. Adversely affected parties are to be restored to the financial positions in which they would have been had something unfortunate not happened. Most importantly, for any payment to amount to restitution, its amount must be determined by reference to the loss that arose.

A penalty is a punishment that is inflicted for reasons other than restitution, for example in order to deter. The severity of a penalty may happen to be determined by the size of the loss in question, as when a penalty for making an inaccurate tax return is a percentage of the tax that would have been lost. But there is no need for there to be a link between the size of the loss and the size of the penalty.

The extent of penalties

Penalties do of course apply when a taxpayer deliberately falsifies tax returns, or conceals information that is required. Such actions fall under the traditional heading of evasion. We shall not be concerned with such conduct here.

One would naturally expect that failed avoidance would lead only to restitution. Indeed, that has been the traditional position. There is in principle nothing illegal about setting up complex structures and carrying out complex transactions, even if the aim is to reduce tax liabilities.

Things have however changed. Failed avoidance can incur penalties, and can do so even when all the structures and transactions are in themselves perfectly legal and full disclosure has been made to HMRC. We shall consider two examples here. The first one relates to mistaken claims to successful avoidance. The second one relates to the GAAR.

Mistaken claims to successful avoidance

If a taxpayer completes a tax return on the basis that an avoidance scheme succeeds, when in fact it fails, the return will be inaccurate and there may be penalties for that reason, a reason which is distinct from the creation of a complicated commercial structure and its use to engage in complicated transactions.

This can happen even if the structure and the transactions involved are disclosed in full, and any applicable requirement to notify the use of an avoidance scheme or of transactions that may suggest avoidance is also met. (The use of some specific schemes must be notified. And transactions with certain characteristics that are typically associated with avoidance must also be notified, even if no avoidance is in fact involved.) 

The return can be inaccurate because under the self-assessment regime that has prevailed in the UK since the 1990s, the taxpayer is responsible for working out what tax they owe. So if a taxpayer has engaged in tax avoidance that on close inspection would be found not to save tax, they should state their tax position without taking account of the purported saving. The normal penalty would be the one for carelessness in making an inaccurate tax return, although other penalties would also be possible (Finance Act 2007, schedule 24, paragraph 3A). The penalty for carelessness typically ranges from nil to 30% of the tax at stake (more if transactions involving entities in certain countries are involved), but if HMRC find out about the error before the taxpayer discloses it unprompted the minimum penalty is 15%.

The GAAR

In relation to the GAAR, the UK has adopted an approach which allows penalties to be imposed merely because avoidance fails. A taxpayer may be put on notice that HMRC believe the GAAR to frustrate a piece of tax avoidance. If the taxpayer does not promptly agree and re-assess their tax as if the avoidance did not succeed, a legal challenge may follow. If the taxpayer loses, they must pay not only the tax not saved but also a penalty of 60% of that tax. The only way to guarantee not to suffer this penalty is to concede that the scheme is defeated by the GAAR as soon as HMRC claim that it is so defeated. If the taxpayer fights the case and loses, the penalty will be due.

Culpable conduct

The absence of general agreement on an ethical boundary, together with the fact that the steps taken in tax avoidance are when considered individually often steps that could just as well be taken for other reasons, steps such as setting up trusts in order to safeguard assets from the spendthrift or making loans in order to finance business ventures, make it arguable that when tax avoidance is frustrated by law the consequences should be limited to restitution and should not include a penalty. The law has to draw its boundary between effective and failed avoidance in one place, and there is not much prospect of general agreement that it is ethically the right place. So there is not likely to be general agreement that a given taxpayer has acted in a way that would make penalties appropriate in addition to restitution.

This puts the spotlight on cases in which the approach is to impose penalties despite the fact that all this is involved is failed avoidance. Can it be right to do so, given the legality of the underlying structures and transactions?

One argument in favour of such penalties would be that the law could draw a secondary boundary within failed avoidance, between respectable and outrageous avoidance. Another argument would be that penalties would deter speculative avoidance which was unlikely to succeed unless HMRC failed to look at it. A third argument would be that while the structures and transactions might be perfectly legal, the motive would very often be one of tax reduction. Then the taxpayer should be regarded as unethical and the state should not be expected to pull its punches.

There are counter-arguments to all three of these. To take the first argument, while a legally defined boundary between respectable and outrageous avoidance might be said to exist already in the double reasonableness test of the GAAR, there would be little prospect of general agreement on the location of a corresponding ethical boundary. The deterrent effect in the second argument might go too far. It would extend to avoidance that had a reasonably good prospect of succeeding, and the state should not deter claims to what might well turn out to be the taxpayer's legal entitlement were the matter to go to court. (It is a feature of such cases that it often cannot be known in advance of a court hearing exactly what the law would require.) Finally, the argument that unethical conduct on the part of the taxpayer should allow the state a freer hand than it would normally have would introduce notions of fair dealing into the tax system in a very strong form. Not being bullied by the state would become dependent on being kind to the state.

The GAAR brings such issues sharply into focus. It may easily be unclear whether some tax avoidance would be defeated by the GAAR. There is guidance on the GAAR, but it is not going to answer every question, and in any case guidance is not the law under which the question of whether tax avoidance succeeds is determined. And yet Parliament has legislated to impose a penalty of 60% of the tax at stake on avoidance that fails by virtue of the GAAR, the only sure protection against which is to concede as soon as HMRC challenge the avoidance.

For the penalty actually to apply, the avoidance must be established to fail. Then it would be a penalty like the general penalty for making a return that was inaccurate by virtue of allowing for avoidance that was found to fail. But the scale of the penalty would be doubled, from a usual maximum of 30% to a fixed 60%, if the taxpayer, at the earlier stage of not knowing whether the avoidance would succeed, had the temerity to challenge HMRC's view that the avoidance would fail. Such an encouragement to taxpayers not to stand up for themselves but instead meekly to accept HMRC's view of the law is at the very least ethically dubious.

To raise ethical objections to this kind of penalty is not to endorse tax avoidance. The kind of avoidance involved will nearly always be highly contrived, and would not have been instigated unless the taxpayer was determined to pay significantly less tax than the general principles of the tax system would lead one to expect. But such considerations do not suffice to give the state a free pass.

We should add in favour of the state that a decision to challenge avoidance under the GAAR would not be made lightly or on the say-so of a single tax inspector. There is an Advisory Panel, and HMRC must seek the Panel's opinion on each case before invoking the GAAR. The Panel can decide that the GAAR should not be used, for example in the case discussed here:

https://www.pinsentmasons.com/out-law/news/gaar-advisory-panel-backs-uk-taxpayer-first-time

One may however have reservations about the strictness of the control imposed by the existence of the Panel. While its members are not HMRC staff, they are appointed by HMRC and are supported by an HMRC-staffed secretariat. While HMRC must seek the Panel's opinion on each case before invoking the GAAR, they are not bound by that opinion but are only required to consider it (Finance Act 2013, schedule 43, paragraph 12). And the Panel does not apply the double reasonableness test, but only the test less favourable to the taxpayer of asking whether the taxpayer's actions were in fact a reasonable course of action (Finance Act 2013, schedule 43, paragraph 11(3)(b)).

Thus one can still be concerned about the existence of a penalty for avoidance, the only sure way of avoiding which is to concede to HMRC without taking the matter to a judicial hearing, even if one disapproves of tax avoidance and despite the existence of the Advisory Panel.

We do not here discuss penalties under the Serial Tax Avoidance Regime. We do however note that there would be things to say in connection with that regime about the imposition of penalties, rather than merely requiring restitution, on the basis of the fact that the taxpayer had previously attempted avoidance.

The ethics of legislating

Clarity

It is a general principle of law that individuals and companies should know in advance what the consequences of various possible actions would be. This argues in favour of clear boundaries, and against hazy ones. Legislation that does not provide such boundaries where it would be possible to provide them is arguably unethical, even if hazy boundaries would make it easier for the state to achieve its objectives.

In the present context this means that it should ideally be clear in advance which kinds of tax avoidance would fail, and which conduct would be penalised (as opposed to merely requiring payment of tax saved by way of restitution).

With avoidance that is defeated by the GAAR, the boundary between successful and failed avoidance is deliberately hazy. A precise boundary would lead to too narrow a range of avoidance being defeated by the GAAR, either because the boundary had been made precise by specifying commercial features of schemes (such as loan transactions that went through intermediate group entities which merely received money and passed it on, or the use of branches which were commercially significant but fell outside the definition of permanent establishments), or because the boundary had been made precise by reference to figures like effective tax rates. In either case, it would not be long before significant avoidance schemes which fell just outside the boundary were devised.

The same case for a hazy boundary could be made in relation to the DPT, although the potential scope of that tax is made a bit more precise by the need for a specific effect, the diversion of profits, which narrows the range of structures and transactions that could give rise to the charge.

In defence of haziness in both these cases, it could be said that those who engage in normal commercial transactions with little focus on saving tax will find themselves to be at a safe distance from the hazy boundary, although this is less true of the DPT than of the GAAR because of the absence with the DPT of an option to survey a full range of reasonable positions.

The argument for clear boundaries is particularly strong when penalties, rather than merely restitution, are involved. We naturally associate penalties with criminal conduct, where conduct must clearly fall within the scope of an offence defined in legislation. But penalties are involved both when the GAAR applies and when the failure of avoidance leads to a penalty for making an inaccurate return, another area of hazy boundaries because it can easily be unclear in advance whether avoidance will succeed even when the avoidance is clearly not within the scope of the GAAR. (The penalty for failure to notify that the DPT might apply is however rather different. It is not in itself enough to make haziness of the boundary objectionable, because notification does not imply liability.)

Motives and penalties

It might be thought that penalties, and even the GAAR penalty for having the temerity to challenge HMRC's view and then losing, would be acceptable so long as a taxpayer had unacceptable motives.

It might also be thought that dubious motives were indeed present, both when the GAAR applied and when the penalty for making an inaccurate return applied. After all, the pursuit of loopholes and the minimisation of one's contribution to the cost of providing infrastructure, a health service, and so on do not look like good objectives.

We should however recognise counter-arguments.

One is that the duty of taxpayers to the state is laid down in statute, and statute is nearly all drafted in terms of precise rules. The rules must be obeyed, but the limits of the rules are the limits of the taxpayer's obligations. There is nothing in statute about the spirit of the rules, and the relationship of taxpayer to state is not like the relationship of two cricket teams to each other in which the spirit of the game should be observed. (As it happens there is a law of cricket, law 41, which requires observation of the spirit.) The closest one gets in tax law to reference to the spirit of the rules is in references to the principles and policy objectives of legislation and to the exploitation of shortcomings in legislation which we find in the GAAR legislation quoted above (Finance Act 2013, section 207(2)(a) and (c)).

A second counter-argument is that the state gets enough money, and wastes a lot of it because politicians and officials who spend it are not personally at risk of financial loss, so it is good to keep the state on a tight rein by not paying more tax than one must.

A response to concerns about penalties might be that it would be impractical to handle all the tax avoidance there would be if attempting it were a game without risk, in that the taxpayer would in cases of failure merely have to pay the tax they would have had to pay without the attempt. Penalties change the balance of risk, and deter the taxpayer population as a whole. But that would be to say that the need to keep the population cooperative outweighed considerations of justice to individual taxpayers. One could make a case that this was so, but the case could in turn be challenged.

Categories and our general ethical principles

We have proposed four categories to analyse conflicts between on the one hand actions short of the outright criminal to reduce tax payable, and on the other hand the law and ethics: failed and unethical tax avoidance, and penalised and culpable conduct. These categories strike us as more useful than the traditional categories of planning (being sensible), avoidance (being too clever by half), and evasion (lying), when we want to think about relationships between legal rules and ethical principles.

Having said that, the categories we use are not particularly novel. They are clearly related to and inspired by the traditional categories. And the traditional categories still have important roles. They serve to explain how the law has developed. They also help to relate general ethical principles from outside the tax world both to the general scheme of the law and to ethical assessments of what taxpayers do: being sensible is generally accepted both in law and in ethics, being too clever by half may easily be seen as something to be blocked by the law and is also ethically debatable, and lying is both reasonable to punish and ethically unacceptable.

It is not that the traditional categories are essential to underpin judgements as to what is legally appropriate or ethically unacceptable. But whenever we tackle questions of what the rules should be or what is unacceptable conduct in a specific area, we do need some way to relate the question to more general principles. And it so happens that in the area of taxation the traditional categories can perform that role. Since they also need to be kept in play in order to understand the history of the current law and the context of much ethical comment on what taxpayers may do, and they do not interfere with other ways of thinking about the issues, we see no reason to discard them. It is merely that they are not the only useful categories.

One thing

City Slickers

In the 1991 film City Slickers, the wise old cowboy Curly explains something vital to Mitch, one of the three slickers who have come out to join the cattle drive and rediscover meaning in their lives. The dialogue goes as follows.

Curly: Do you know what the secret of life is?

Curly: This. (He holds up his right index finger)

Mitch: Your finger?

Curly: One thing. Just one thing. You stick to that and everything else don't mean shit.

Mitch: That's great, but what's the one thing? (Mitch smiles and holds up his right index finger)

Curly: That's what you've gotta figure out.

(Mitch looks uncertainly at his finger)

This is more intriguing, and more powerful, than the many self-help platitudes each of which claims to be the ultimate secret. It may not be in the league of Aristotle or Marcus Aurelius, but a one-liner does not have the same objective as a book. And figuring out what we might make of it from an impersonal standpoint is just as much of a challenge as an individual's figuring out what his or her personal one thing might be.

The phrase "one thing", while absolutely right in its original context in which Curly holds up one finger, can sound inelegant when used in other contexts. So we shall speak of an individual's project, with the implication that only one project will really matter to him or her at a given time.

In speaking of projects, we shall narrow the range of things that Curly invites us to identify. Projects have goals and results. Curly would allow an individual to select something that was not so teleological, for example "family" rather than "bringing up children". Our narrowing will allow us to be more specific in what we say than would otherwise be possible. But there would be other comments to make on a proposal to focus on things which were not defined in teleological terms.

This post will explore some complexities that come to light when we look at Curly's advice and its implications. Complexities are laid out, but not resolved. As may be apt for advice directed to individuals in relation to their own lives, resolution is left as an exercise for the reader.

What kind of project?

Options

There are plenty of projects on which someone might focus. Examples include bringing up a family (existing or planned), pursuing a career, or undertaking a business, academic or artistic project.

We can take it that Curly's recommendation would be limited to projects that really mattered to the individual, or that would at least have a good prospect of coming to be of great importance to the individual after he or she had got involved in them.

False steps

There would be scope for false steps, as there usually is in life. The individual might pick a project, even one that was already of great importance to him or her, and after a while find that it was not sufficiently important to justify making it the single focus of his or her current life. If the risk of that kind of false step was very high, one should perhaps not follow Curly's advice.

We here take it that the appropriate arbiter of importance is the individual, not some independent standard with which the individual might disagree. This reflects the fact that Curly offers advice to the individual. There is no proposal to manage society so that the various focuses of people would collectively produce the best overall result. Curly is a cowboy, and cowboys are not collectivists.

Breadth

An individual might select a project that was broad or one that was narrow. Both breadth and narrowness could have advantages. And a consequence of following Curly's advice and selecting only one project would be that there was a trade-off: an individual could not enjoy both the advantages of breadth and the advantages of narrowness at the same stage in life.

Robustness and adjustment

A broad project should be more robust than a narrow one. A narrow project, such as becoming an Olympic-level athlete, could easily be frustrated by some random accident, such as injury caused by slipping on an icy pavement. A broad project could be adjusted in its details to accommodate unexpected difficulties.

There is a risk in adjustment. Modest and rare adjustments would maintain the single focus that Curly recommends, even if the cumulative consequence was that the project after 20 years was not recognisably the same project as the one that was first adopted. But substantial or frequent adjustments would betoken a loss of focus, so that some of the benefit of following Curly's advice would be lost.

Guidance

The adoption of a project should yield guidance on what to do. There might be a lot of detail to fill in, not evident from the description of the project and perhaps not even implied by that description. But the general lines should be clear.

The statement of a broad project might not give much guidance. Statement of one of the broadest ones, such as "be happy" or "achieve worthwhile goals" would give hardly any guidance beyond indicating some types of activity to avoid (in our examples, activities that would induce misery or would waste time and energy). And adoption of a project as broad as that would not amount to following Curly's advice. But statement of a moderately broad project, such as "start a family" or "write a book", might give enough guidance. And statement of a narrow project should give quite a lot of guidance.

Focus

The nature of focus

The basic idea is that of focus on the individual's one project.

We take this focus to require primarily attaching value to progress in the project. How things go in relation to anything else is not to be important. There is indeed a suggestion in Curly's words that how other things go will automatically cease to matter, so long as the individual is focused on the one project.

Focus can seem like a good idea. More will be achieved in the area of focus, and the individual will be less bothered by things going on outside that area. At least, these results should follow so long as the project is not defined too broadly. But complexities crowd in quickly.

The sense in which a project matters

A project might matter to the individual, or it might be one that would be generally agreed mattered to society or reasonably could matter to an individual. Finally, if one were to allow talk of moral facts or other facts of a comparably unusual nature, one might see a project as mattering by reference to some factual standard.

Focus would only work as a motivator and as a way to stop other things mattering if a project really mattered to the individual, and mattering to the individual might be sufficient as well as necessary for focus to work. But we should not ignore the other ways in which a project might matter.

Social acceptance that a project was at least one which reasonably could matter to an individual might be needed in order to ensure that the individual was neither obstructed by social disapproval of the project nor deprived of friends.

The existence of a factual standard by which a project mattered would not contribute anything if the factual correctness of such standards was not manifest to most people, and it would seem that it would not be. People might claim that such-and-such standards existed, but there would not be any independent way to check their claims. And while ethical intuitionists might regard their conclusions as self-evident, general agreement with those conclusions would not always be found. So all we would have to go on would be claims that the standards existed, together with whatever support particular alleged standards might have garnered by virtue of having emerged from empirically informed debate over such matters as the social effects of respecting or violating certain standards. And there would be no good reason to heed any claims that were only espoused by a few people. Thus so far as power to motivate individuals went, reference to supposed factual standards would not in terms of content take us beyond reference to social acceptance.

Reference to supposed factual standards might however take us further in terms of motivation. If an individual thought that focus on the chosen project complied with standards that he or she took to be factual, or even better, if the individual thought that focus on the chosen project was (for him or her) positively recommended by such standards, that should encourage focus on the project.

Correspondingly, if relevant standards were supposed to be factual, an individual's fear that his or her choice of project might conflict with those standards would undermine motivation. It would not be possible for the individual to think that the conflict was merely with views of other people that could be disregarded because one was entitled to follow one's own star.

Neglecting other things

A focused life might have advantages, but one would need to ask whether it was acceptable for an individual to attach little or no importance to concerns outside the scope of his or her chosen project.

Whether it would be acceptable to the individual would depend on his or her psychology. Some people would not worry that other things which they might at other times have thought important were being neglected. Others would be seriously concerned. And while we might say that the former turn of mind would be more effective, we could hardly make an ethical judgement as to which turn of mind was psychologically preferable.

We could however discuss substantive ethical questions without judging the individual's psychology directly.

We may start with the positive benefits of focus. In favour of not worrying about the neglect of other things, one could say not only that more might be achieved but that a focused life would itself be a good life. It would not be the only kind of good life, but such a life would offer a better prospect of turning out to be good than several other kinds of life because it would be likely to be a life of high or at least respectable achievement. (We could only be sure of the quality of a life in retrospect. While it was being lived, the best one could do would be to act in such a way that there were good prospects.)

We now turn to the disadvantages of neglecting other things.

At the level of society as a whole, or by reference to long-term measures such as human progress, neglect would be very unlikely to matter. It would be exceptionally rare for what any one individual might have done or not done outside his or her main project to matter much. Someone else would have done something just as good. It is true that very widespread neglect of certain things, such as friendship, family, or civil society, would be a serious loss. But that is not a likely consequence of many people focusing on their single projects. Different people would focus on different things, and some people would focus on friends, family, or civil society.

There is a more troubling ethical question about the effects of neglect on people close to the individual, whether family or friends. (Work colleagues are not included here because someone who did not work hard enough would simply be replaced by someone who was willing to devote more effort to the job.)

We may distinguish two types of case, although the boundary between them would be decidedly hazy.

In a case of the first type, someone might gradually evolve into a highly focused person, with his or her personal relationships evolving in parallel to fit around that focus. Someone who needed a lot of time, or a nomadic life, to pursue his or her chosen project would form friendships of types that would fit with such demands. There would not need to be any specific person who could legitimately claim to have been unjustly left out of friendship, because those unable to be accommodated by virtue of the demands of the individual's focus would not have become friends, or at least not close friends, in the first place.

In a case of the second type, there would be existing personal relationships which would be damaged by the individual's coming to focus on a demanding project. One might expect this to apply to relationships with family members, who would automatically have a status of closeness to the individual and who might be counterparties to obligations on the individual. It could also apply to close or long-standing friends. Here there would be an ethical argument against adopting a project, focus on which would damage existing relationships. Having said that, one could also argue that each person was entitled to give priority to his or her own life and that it would be wrong for some friend or family member to expect that the individual should abandon his or her own aims. There is little hope of general rules to adjudicate individual cases. But we can say that there would be some dependence on whether the individual had voluntarily taken on the relationships in question, as when someone had chosen to start a family with a partner. There might also be some dependence on whether the individual's chosen project actually succeeded (something that could only be confirmed too late) or had a good prospect of succeeding (something that might be assessed in advance). We might here bring in what Bernard Williams said about Gauguin, who abandoned his family in pursuit of the fortunately fulfilled project of becoming a great artist ("Moral Luck", in Williams, Moral Luck: Philosophical Papers 1973-1980, Cambridge University Press, 1981).

Finally, we can ask whether an individual's life might fall short of being among the better sorts of life by virtue of constraints on relationships. Certain types of engagement with others which are widely considered to contribute to a good life might be ruled out by a focus on some demanding project. And it might be that while close relationships were formed, they would be at higher than usual risk of having to be broken off. That risk might taint relationships even before any break.

Change over life

Suppose that an individual selects a project and puts a great deal of energy into it for a few years. Various goals that fall within the scope of the overall project and that are worthwhile in themselves are achieved, so that the effort to date would not be wasted even if the project was no longer pursued. But there is a good deal more that could be done within the scope of the project.

Now suppose that the individual's priorities or attitudes change, as can easily happen as people get older. As a result the individual either deliberately abandons the project or, without a decision to abandon, devotes less and less energy to it.

There is no reason why such a change should devalue the achievements to date. The project was at the time worthwhile, it would still be directly perceived as worthwhile by anyone who had the priorities and attitudes the individual used to have, and its worth could still be appreciated indirectly by anyone who could imagine having those priorities and attitudes.

There is however a way in which the possibility of future change could legitimately concern an individual and might undermine his or her current motivation. Future change might arise not out of the kind of development in priorities and attitudes that is natural to human beings, but out of a realisation that a mistake had been made in selecting the project. The project might turn out to be too challenging, given the individual's abilities. Or it might have appeared to be one that was appropriate to the individual's priorities and attitudes, but only because there were implications of pursuit of the project that did not come to light early on. Careful thought in advance might reduce the risk of such a mistake, and once a mistake was appreciated there would be nothing for it but to start again. It is the possibility that a mistake would in due course come to light that might undermine current motivation. Not to lose motivation for that reason would be to exhibit the virtue of cheerfully living with uncertainty.

The plausibility test

In this post, we shall explore the test of whether responses to questions are plausible. We shall consider use of the test in philosophy and in history.

The plausibility test is in principle less demanding than the test of whether responses are correct. But it is still important, for two reasons. The first one is that it is not always possible to say whether a response is correct. The second one is that a focus on plausibility brings out certain important requirements for responses to be acceptable, such as that they should not outrage our background understanding and that (in some cases) they should confer Verstehen.

References are given at the end of the post.

The test

Suppose that one seeks a response to a philosophical question, or to the historical question of why events in the human world took the course they did. Such a response may be a one-line statement of some conclusion, or an elaborate account that implicitly answers the question.

We shall use the term "response" to cover the full range of such possibilities. And we shall sometimes be able to speak of responses being correct or incorrect, meaning either that they are answers to questions where those answers could be identified as correct or incorrect in the ordinary sense, or that they are more discursive responses which could nonetheless attract attributions of correctness or incorrectness which would be based on their head-on collisions with facts.

There will however be some responses which are too discursive to collide with facts in the required way, or which do not collide with facts in that way because of the nature of the subject matter of or the approach to it. Concepts of correctness and incorrectness will then be inapplicable. And there will be gradations, with some responses more or less open to classification as correct or incorrect.

When a response is not open to classification as correct or incorrect, an important control is to ask whether it strikes experts as plausible. In this context, plausibility will require making sense, not being outlandish or in serious conflict with how one thinks the world works, and so on. It will not just mean within the bounds of possibility. On the other hand, our intended sense of plausibility is not that a response is to be believed cautiously, or that it is to be assigned some respectable probability of being correct (such as 0.25). Rather, the sense is that adoption of the response would not be unreasonable.

This plausibility test is what will concern us here. When applied in an academic discipline, it will not stand alone. Even if a judgement as to correctness is not expected, there will still be scope for detailed argument as to the evidential and other reasons to accept or reject a response. And what is learnt in the course of such detailed argument should influence judgements as to whether the response is plausible. But the plausibility test will still take investigation a step forward from the stage of detailed argument. It is a safeguard against getting lost in the trees of analysis so that one fails to see the wood of the overall picture, an overall picture which will include the background of existing understanding.

The test also has a role when a judgement as to correctness is envisaged. Even in such cases, once all the detailed work on evidence and reasoning has been done, it is worth standing back and asking whether the response is plausible. This final stage may not be especially worthwhile in disciplines in which one can be confident both that all the relevant evidence has been collected and interpreted correctly, and that its analysis will drive one to an inevitable conclusion as to whether a response is correct. But such happy conditions are only met in physics, chemistry, and a few other parts of the natural sciences. Elsewhere, and certainly across the humanities, the plausibility test is a valuable additional check. This role of the test in writing history was for example highlighted by Geoffrey Elton (The Practice of History, chapter 2, section 5). Elton did not draw our distinction between contexts in which judgements as to correctness are envisaged and contexts in which they are not, but he did stress the need for a stage of detailed analysis of the available evidence.

There is no algorithm for the plausibility test. A judgement as to whether the test is passed will not rest directly on a detailed analysis of evidence or reasoning, even though it may be influenced by matters that have come to light in the course of such an analysis. Rather, whether a response is plausible will simply be manifest to an expert, who will not then seek further justification for their judgement.

One might speak of intuitive judgements. We shall however not do so, except when we refer to other authors' work on intuition. A reference to intuition may be helpful in grasping the notion of judgements that responses are plausible. But the concept of intuition is liable to bring some baggage with it. One can see some of this baggage in discussions of the role of intuitions in philosophy. Philosophers are widely thought to rely on intuitions, but there is also a case to be made that intuitions are not needed (Cappelen, Philosophy without Intuitions). One might argue that the proper role of intuitions in philosophy was not in reaching or directly supporting specific conclusions, but in making judgements of plausibility, albeit subject to the qualification that a response which failed the plausibility test might nonetheless be correct (since intuitions can mislead). We shall not pursue that line of argument here. But we do note that it would be challenged by the fact that a lot of philosophical discussion centres on the scope for intuitions to give direct support to specific conclusions (see the papers in Booth and Rowbottom (eds.), Intuitions).

We should add that expertise does matter. Someone must have had the right kind of education and experience for their judgements to count for much. To describe a response's plausibility or implausibility as manifest, or to refer to intuition, is not to throw the door open to the views of the ill-informed or the untrained.

Examples

We shall now set out some examples of use of the test. We shall include some comments on use of the test in different contexts. Later on we shall focus on the nature and the value of the test itself, rather than on examples of its use.

Our examples will be drawn from the disciplines of philosophy and history. The sense in which a response to a question can be plausible differs as between these disciplines. The normal sense in the areas of philosophy we shall highlight is that a response may be plausible given our own attitudes and habits of thought. In history, the point of reference is not our own attitudes and habits of thought but those of people of the past, along with what was feasible at the time studied. Our own attitudes and habits of thought, along with our current knowledge of people's physical and mental capacities and our grasp of the history of technology, will however be the starting point in compiling the point of reference we need.

Our treatment of the tests in the areas of philosophy we shall highlight and in history as a single test is justified by the fact that in both cases, the point of reference is primarily the nature of human beings. This also opens up scope for applying what would be broadly the same test across other humanities and to some extent across the social sciences. But while there can be good reason to ask whether an account in the natural sciences is plausible, the point of reference would be different enough that one could not say that the plausibility test would be the same kind of test.

Meta-ethics

Various responses to the question of the nature of ethical claims may be accepted by some ethicists and rejected by others on technical grounds. But the most powerful reason for rejecting some responses can be that the responses simply strike one as implausible against the background of a common human understanding of the nature of ethics.

Emotivism may be rejected because it seems plain that an ethical claim is more than an expression of preference, or even an expression of preference with which one would expect others to agree. And one can reject emotivism as implausible on such grounds even before noticing technical concerns such as those raised by the Frege-Geach problem (Geach, "Assertion", pages 463-464).

Some forms of moral realism may be rejected because it seems that there is no space in the world as we generally understand it for moral facts or moral properties on a par with non-moral facts or properties. (One source for such arguments is Mackie, Ethics: Inventing Right and Wrong, chapter 1, section 9.)

Substantive ethics

Suppose that an ethicist argues for some specific response to the question of how to act in a situation of a given type. Other people may agree, or they may disagree but think that the response is nonetheless plausible. As an example of such disagreement, one ethicist might endorse telling small lies to save people's feelings, and another one might say that while their own commitment to honesty was too strong for them to agree, they could still see that the use of small lies for such purposes could be a sensible policy. Whether there was agreement or such eirenic disagreement, the first ethicist's response would pass the plausibility test in the eyes of the second one.

On the other hand, an ethicist might offer a response from which many people would recoil. One such response would be that nobody should ever lie, even to protect someone from a potential murderer. Then the response would in the eyes of most people not pass the plausibility test, and we would start to look for defects in the reasoning or in the premises from which it started.

In order for us to fit the application of the plausibility test to substantive ethics into our discussion, we need to take it that there is scope for disagreement about what to do in situations of different types. An emotivist position would stand in the way of seeing scope for disagreement. But there are other meta-ethical positions, so we shall explore application of the plausibility test on the assumption that there is scope for disagreement about what to do.

Use of the plausibility test in substantive ethics draws on our personal inclinations. We may accept one response to a question as to what to do as reasonable, and reject another one as manifestly immoral, because of our own values. This need not be illegitimate. Ethics concerns how to conduct human lives. So it seems reasonable to give a conspicuous role to how human beings regard it as appropriate to live. But that does give rise to questions. How respectable are the origins of our views on how people should live? And are those views consistent enough between people and across cultures for judgements of plausibility to be thought of as having more value than idiosyncratic preferences?

On the respectability of origins, we may compare reaching a verdict on the plausibility of some response to a question of what to do with the route to conclusions that has been advocated by intuitionists. Intuitionists take the correctness of an ethical claim to be self-evident, without the need for direct support from argument (Stratton-Lake, "Intuitionism in Ethics"; for a full exploration of ways in which intuitionists may reach their ethical conclusions and advocacy of one particular way see Roeser, Moral Emotions and Intuitions). Correctness in the eyes of intuitionists does not however mean obviousness at first glance. It may become evident only after detailed thought which helps to bring out what is salient. Likewise, a judgement of the plausibility of a response will not depend on arguments that support the response directly, but it will be likely to follow detailed argument that relates to aspects of the response other than its plausibility. Having said that, there is a difference between the intuitionist approach and our approach. An intuitionist's claim that it is self-evident that a particular ethical claim is correct is a very strong claim. All conflicting claims are ruled out. To say that it is self-evident that a response which makes the claim is plausible can be to say something much weaker, because several conflicting responses might still be admitted to be plausible.

On consistency of views, we may look to surveys that have been conducted under the banner of experimental philosophy. (Much has been and is being written in this area. Two starting points for what we say here, including our remark about Gettier cases under the heading of epistemology, are Knobe, "Philosophical Intuitions are Surprisingly Robust Across Demographic Differences"; Stich and Machery, "Demographic Differences in Philosophical Intuition: a Reply to Joshua Knobe". On personal identity under our heading of metaphysics see Tobia (ed.), Experimental Philosophy of Identity and the Self.)

There is some evidence from experimental philosophy that people's ethical views do vary across cultures and can be affected by framing. That would count against the worth of views on the plausibility of responses to ethical questions where those views were not based on detailed argument, perhaps reducing the views to expressions of idiosyncratic preferences. Having said that, there are reasons why we should perhaps not be too concerned.

One reason not to be too concerned is that interpretations of the data differ. Not everyone agrees that there are wide variations in views.

A second reason not to be too concerned is that the data often reflect the views of people in general, while we are interested in application of the plausibility test by experts (although sometimes experts are surveyed and turn out to have varying views). There may not be a clear distinction between people in general and experts when it comes to substantive ethics, but there is still a distinction between what people will say when answering a questionnaire quickly and what they would say if they were encouraged to reflect on their views before answering. And those who had already spent some time considering ethical questions could be expected to reflect more thoroughly and more effectively than those who had not.

A third reason not to be too concerned is that even if results varied between cultures, the results obtained in a particular culture could still be seen as valid for people within that culture. The significance of an ethical claim's being thought correct or of a response to an ethical question's being thought plausible would however then have to be limited to what could be concluded from its being thought correct or plausible relative to the relevant culture. No conclusion based on any supposed general correctness or plausibility could be drawn.

Finally, when reviewing data on what people think, we must be sensitive to whether the questions they were asked related to correctness or to plausibility. These can be hard to disentangle. A claim will typically be that in all situations, or in all situations of certain types, some specified conduct is required, acceptable, or forbidden. And the question put to people is quite likely to amount to "Is it required/acceptable/forbidden to perform such and such action in such and such circumstances?". Such a question would relate to the conduct in question rather than to the claim considered as a response to a question. One might conclude from what a subject said that agreement with a response encapsulated by a claim was being shown. For example, agreement that some specified conduct was required would imply a view that a response to the ethical question to the effect that the conduct was required was correct. It would be less straightforward to get at views on the plausibility of responses. Thinking a claim correct would imply thinking that a response which the claim encapsulated was plausible, but it would be left unclear how wide a range of people thought a claim incorrect but still regarded such a response as plausible, and therefore unclear how far views on plausibility of responses varied between different cultures or between segments of the population defined in other ways. One might however at least hope that if ratios of regarding claims as correct to regarding them as incorrect were much the same across cultures or across other segments, proportions regarding corresponding responses to ethical questions as plausible would be much the same too.

Metaphyiscs

In fundamental physics, any plausibility test that is of value will be couched in highly technical terms. It will only be usable by physicists who are deeply immersed in current research. It would be misleading to think of it in the way in which we have been thinking of the plausibility test more generally. And if the results obtained or their conceptualisation turn out to be utterly counter-intuitive to non-experts, so much the worse for those people. Any objection that a non-technical plausibility test was failed would rightly be ignored by physicists.

Turning back to philosophy, we do reasonably demand a commonsense metaphysics of space, time and matter. That is however allowed us, with no need to challenge physics. We may borrow an image supplied by Max Tegmark, without needing to accept his whole theory. The world as described by counter-intuitive physics can unproblematically be seen as giving rise to the consensus reality of space, time, objects, and the observable interactions of objects within which we conduct our lives (Tegmark, Our Mathematical Universe, chapter 9).

There are other areas of metaphysics in which there is not the same need to accept the supremacy of potentially non-intuitive physics and then recover our everyday world.

One example is given by personal identity. A response to the question of what constitutes personal identity over time may be reviewed to see whether it offers a secure identity through all sorts of changes. These will include both gradual changes such as those of maturing and ageing, and sudden changes such as those caused by brain injuries. And the identity must be substantial enough to fulfil its practical roles in settling to which people we relate in certain ways (as family, friends, colleagues, and so on), in settling attributions of responsibility and property, and so on.

How the plausibility test can affect debates is interesting. Philosophers will imagine strange cases, including brain swaps, brain divisions, and successful and interrupted teleportations. Then they will precisify or amend everyday notions of personal identity to find notions that will yield plausible verdicts on those cases. This will be an initial application of the plausibility test. But the test must be applied again in relation to cases that actually occur.

It will usually be trivial to show that a notion of personal identity yields plausible verdicts in the most straightforward everyday cases. But there may be difficulties in less straightforward cases, such as extreme memory loss, where we naturally want to say that identity is in fact preserved but have difficulty in doing so. There may also be concern that a notion provided by philosophers is not robust enough to meet our everyday requirements. For example, a criterion based on a sense of attachment to one's past or to one's forthcoming conscious life might be thought to be too focused on ephemeral mental phenomena. And philosophers like Derek Parfit (Reasons and Persons, chapter 12) who say that identity is not the important thing may be thought to have insufficient respect for a notion that is central to our personal and social lives. In all the cases in this paragraph we may see applications of the plausibility test, both by philosophers and by other people who take an interest. And even if one were to discount the views of non-philosophers, a notion that they would criticise as implausible might well also be criticised as implausible by many philosophers.

Another example is given by the question of human free will. From the inside, we have a clear sense of making our own decisions and acting on them. But from the outside, we may be told that all of our thoughts and actions as they may be characterised in human terms supervene on physical reality, and that this reality's evolution reflects a mixture of determinism and randomness.

(For an introduction to views we now mention see Fischer, Kane, Pereboom and Vargas, Four Views on Free Will.)

Some philosophers will tell us that free will is indeed illusory. Such responses to the question of free will would fail any plausibility test, even among philosophers, until good reason had been given to think that there was no alternative.

Other philosophers, the libertarian incompatibilists, will tell us that while the physical world cannot accommodate free will, we have it anyway. Such a response might fail the plausibility test not because it would be disappointing, but because it would be unclear how free will would arise.

Finally, there are the compatibilists who work on our initial conceptions of free will. Schopenhauer located freedom in our freedom to do what we will, and dismissed the idea of our being able to will what we will (Prize Essay on the Freedom of the Will). More recent philosophers have developed the notion of guidance control: our choices and actions reflect our own personalities because lines of causal influence flow through our brains and bodies, but this does not imply that things could have turned out differently by virtue of influences originating within ourselves and not directly or indirectly prompted by any prior events in the external world. Compatibilist responses to the question of free will would seem to have the best prospect of passing the plausibility test. This reflects the fact that a response can on reflection be found plausible by virtue of some adjustment to our initial demands, in this case an adjustment to everyday conceptions of free will.

Epistemology

Most people are confident that many facts are known by humanity, and that they themselves know a fair few. Even experts in various disciplines, well aware of the difficulty of making discoveries and the risk of error, take the same view of the contents of their disciplines. Responses to the question of how to define knowledge that would make knowledge very hard to obtain, for example definitions that would require no possibility of error, would therefore fail the plausibility test.

A more interesting case is that of definitions which discriminate between examples of knowledge and non-knowledge in ways that provoke debate, both among people generally and among experts in various disciplines. Typically the examples are justified true beliefs where there has been some element of luck, for example through harmless or even positively helpful reliance on false premises or on defective reasoning. A response that supplies a given definition may be thought to fail the plausibility test if the definition too often classifies such beliefs as knowledge when people are inclined not to do so, or if it too often classifies them as non-knowledge when people are inclined to think of them as knowledge.

As with substantive ethics, such verdicts as to plausibility can legitimately have force. The facts that we know may not be human constructs, save to the extent that we have invented specific concepts to express those facts, and even then the independent world may have forced us to use certain concepts and not others. But the notion of knowledge is our own construct. It has been created to capture important facts about our relationship to the world, such as the fact that people with knowledge tend to get on better than people without it. The notion has been tailored to capture the fact that there is something more advantageous than true belief, following the issue raised by Plato (Meno, 97-99). And the verdicts on individual beliefs that a definition gives had better not be too far out of line with what people would think prior to philosophical reflection.

But as with substantive ethics, we must ask about the consistency across cultures of pre-philosophical thought. Again, experimental philosophy has something to say. Views on Gettier cases and the like do vary. But as with substantive ethics, we can ask how great the variation really is.

One difference from substantive ethics is that it is harder with knowledge to minimise concerns about a lack of consistency by saying that views may be for particular cultures rather than for the whole of humanity. Cultural relativity need not be overly troubling in relation to substantive ethical views. Different people live in different circumstances, with different histories. So different judgements of good and bad, right and wrong, may be apt to different societies. But the notion of knowledge is closely tied to the notion of truth. And we tend to regard both the notion of truth and the set of propositions that are true as universal.

History

At first glance, the discipline of history might seem to amount to the narration of facts on the basis of evidence. That would leave no room for a plausibility test, save in making judgements when the available evidence was not decisive.

But history goes far beyond chronology. Historical accounts impute motives, they abstract from factual details to identify political, economic and social forces, and they give narratives that are powerfully explanatory and that confer understanding on those who read them.

Having said that, history is far from being a natural science. There is no scope for repeated experiments, nor for precise and decisive calculations of the extent to which evidence supports conclusions. And both the motives of human beings and the causal links between what they think and what they do are too ill-defined to admit of comprehensive calculation.

In such a context, there is work for the plausibility test to do. Are portrayals of people's thoughts, fears and desires, and identifications of reasons for significant actions, plausible?

The test will usually be passed in published work, because historians are also human beings and will have a good inner sense of what would be realistic portrayals of the people they study. But we may still see the test as having played a role in processes of thinking, writing and re-writing, perhaps playing that role without historians' being conscious of its having done so. 

The plausibility test acts as a filter to dispose of responses to questions of why events took the course they did which would not be much good, rather than as a way to show that a given response which passes the test is correct. In the context of history, the test may first be applied to see whether Vestehen (understanding) is conferred. Its conferral would be a good sign, given the need for consonance with our background understanding of people and the world if it is to be conferred. Then the test may be applied in two directions, running between Erklären (explanation in a broadly scientific sense) and Verstehen.

The first direction runs from Erklären to Verstehen. Suppose that some quasi-mechanical causal account has been given as a response to the question of why events took the course they did. If the account is good enough, it will amount to Erklären. But is it good enough? Given the lack of mechanical precision in the world as viewed by historians, it is useful to have a test that brings in a different set of requirements. This is what the plausibility test can do. It can be used to assess whether the quasi-mechanical detail in the account affords a route to Verstehen. The move is from testing the proposed mechanism by reference to technical and quasi-mechanical principles to testing whether the account would resonate with us on the basis of our common understanding of how human beings and the world work.

The second direction runs from Verstehen to Erklären. An account may seem to confer understanding, and that may be checked in an initial application of the plausibility test. But an impression of understanding may be too easily given. If understanding depends on accepting an account that assumes a pattern of causes and effects which is in quasi-mechanical terms implausible, then the account should be rejected as an implausible response to the question of why events took the course they did.

Historians must be cautious when checking for plausibility by reference to Verstehen, whether in an initial application of the test or to see whether the quasi-mechanical detail provided affords a route to Verstehen.

The need for caution arises from the fact that principles of human motivation and action, the satisfaction of which in an account is required for the account to confer Verstehen, vary as between societies. Given that the test should be of whether the people studied could plausibly have acted as described, the relevant principles will be the ones of that society. (In anthropological terms, an emic approach should be preferred to an etic one.) These relevant principles may not be the ones that first occur to historians, especially if the historians come from a society other than the one being studied or if they are looking back many centuries. Just how easy it can be for principles to differ can be seen from one anthropologist's attempt to explain the story of Hamlet to members of a west African community (Bohannan, "Shakespeare in the Bush").

A general consideration of the test

We now move on from specific applications of the plausibility test to a more general consideration of its worth.

Plausibility and correctness

A judgement that a response is plausible is not always a judgement that the response is uniquely correct or that it is among the correct responses. It is however at least a judgement that the response should not be discarded yet, but should continue to be kept in play and explored as a useful way to look at relevant features of the world. It is therefore at least a judgement that the response should not currently be regarded as incorrect, because responses regarded as incorrect are never worth keeping in play except perhaps as part of a lateral thinking exercise in which they may prompt new thoughts.

There are three possibilities to consider.

The first possibility is that it was expected that one response would deserve to be regarded as correct. Then the identification of only one response as plausible might amount to a judgement of its correctness.

The second possibility is that it was expected that several responses would deserve to be regarded as correct. If it was thought that all plausible responses deserved to be regarded as correct, a judgement of plausibility would amount to a judgement of correctness. (This case might not be reducible to the one-response case. Differences in the aspects of the topic on which responses focused might suffice to obstruct simply taking their conjunction and presenting that as a perhaps unwieldy single correct response.)

The third possibility is that the nature of the discipline or of the topic would make it inappropriate to assert that every response could be shown to be correct or shown to be incorrect, so that there would be space for an intermediate category of responses which, while plausible, could not have their status as correct or as incorrect determined. Then a judgement of plausibility would not in general amount to a judgement of correctness, although it might do so in relation to some responses. (There might or might not be responses which could never have their status determined. It might only be that at any one time, there would be responses which could not have their status determined in the near term. As the discipline progressed, they might have their status determined or they might cease to be of any interest, but it would be likely that new responses of indeterminate status would also come into play.)

When a judgement of correctness is made, a judgement of plausibility becomes redundant save as a path to a judgement of correctness. Correct responses have to be accepted whether one likes them or not. The favourable result of any test of plausibility would play no more than a supporting role, showing the absence of a certain kind of objection to a response. There is also pressure on experts to resolve any disagreement as to correctness.

It is when no judgement of correctness is made, or when conflicting judgements of correctness are made by different experts and there is no prospect of resolving their disagreement in the near term, that the role of plausibility becomes interesting. A judgement of plausibility is not rendered redundant, but may be valuable in its own right. So a test of plausibility may make a real contribution, moving us forward from a plethora of possible responses either to one plausible response, or to a modest range of plausible responses.

We should think in terms of a range of responses, however many responses are currently in play. Even if only one is in play, we should allow for a potential range that would encompass responses which could be introduced. That possibility would be interesting because while there might be grounds to think that only one response could be correct, and there would always be reason to think that when responses conflicted no more than one of them could be correct, there would not in general be reason to think even that only one out of a range of conflicting responses could be plausible, at least not when determinations of correctness were not expected to be available in the near term. 

It may be perfectly possible to consider each member of a set of responses plausible, even if various responses in the range would not sit comfortably together or would contradict one another. This would however need to be limited to saying that each one was plausible individually, not that the conjunction of all of them would be plausible.

If conflict fell short of contradiction, for example because different responses identified different ethical or experiential considerations as central while each allowed some role for considerations picked out as central by others, or because different responses identified different factors in the explanation of some historical event as the most significant factors, there would be a hope and maybe an expectation that either current approaches to the question or knowledge of the world would in due course advance so that some responses would drop out and the conflict would be resolved. It would however be possible to live with the thought that the conflict might never be resolved. If there was contradiction, there would be a more pressing need to resolve the conflict. Then a thought that the conflict might never be resolved would amount to a thought that our grasp of the world and of life might be irremediably inadequate.

One feature of the humanities would contribute to making it tolerable to regard several conflicting responses as acceptable. This is the fact that a given response is prone to carry with it a given way to weigh up competing considerations and sometimes a given way to interpret evidence. So someone who favours one response may see someone who favours another response not as debating with them against a background of a completely shared understanding of the significance of different considerations and of the meaning of the evidence, but as debating against a background that was in some respects different. The effects would be a bit like that of perspective-taking in the natural sciences, where what might be seen as tension between different accounts of the same phenomenon can be defused by a recognition that different scientists may approach a single topic from different perspectives.

The significance of tolerance

We now turn to the significance of the scope to tolerate several conflicting answers as plausible. We shall explore what it might mean for the worth of a response's passing the plausibility test, not merely in cases in which several conflicting responses are in fact considered plausible, but in general. We shall say something about the nature of the test which will be relevant whether or not, in a particular case, several conflicting responses all pass it.

A judgement of plausibility is at least a judgement that it makes sense to look at some feature of the world in a particular way. It is stronger than a judgement that it is pedagogically helpful to look at the feature of the world in that way. Pedagogical helpfulness will reflect the psychology of students. Responses that experts would regard as misleading may turn out to be helpful. We on the other hand are concerned with what fully trained experts, who would not need the same level of assistance as students, would say about keeping possible responses in play.

Having said that, a response may be plausible in our sense when the usefulness of keeping it in play reflects the powers of thought of experts, while some hypothetical more advanced being would regard the response as misleading. Such a being might view it in the ways that human experts would view ways to look at the relevant feature of the world which were needed only to help students. We cannot have more than a speculative grasp of what the powers of such a more advanced being might be, so we cannot tell which answers might be downgraded in the eyes of such a being. 

One might argue that such advanced beings were already among us, in the form of artificial intelligence systems. We might declare certain ways to look at features of the world of which the systems appeared to have no need to be of merely pedagogical helpfulness. We would however be reluctant to do so if, as would be entirely possible, we could not grasp how such systems thought. Dispensing with our own ways to look at features of the world would then leave us with artificial intelligence systems which could assure us that the evidence found should not surprise us, or which could make accurate predictions, but the systems would not give us any understanding. Concerns about degrees of sophistication and comprehensibility of different responses would however mainly arise in relation to the natural sciences, rather than in relation to the humanities which are our concern here.

While a judgement of plausibility is stronger than a judgement of pedagogical helpfulness, it is weaker than a judgement that the world actually is as described, at least when the judgement of plausibility falls short of a judgement of correctness. It is weaker than such a factual judgement even if the factual judgement is read in ways that either anti-realists or perspectivists in the philosophy of science might advocate. (We take perspectivists to read factual judgements as saying "From this perspective, the world is like this".)

The comparative weakness of a judgement of plausibility explains why it is possible to judge several responses plausible even when they contradict one another. If responses were judged to say how the world was, such tension between them would be intolerable. If one description of the world was thought correct, contradictory ones would have to be thought mistaken. This is not because the world is known not to be an awkward place which could encourage contradictory descriptions. The existence of sensible if inconclusive discussion about adjusting logic in the face of quantum mechanics shows that we cannot be confident of the world's not being so awkward. Rather, our aversion to regarding contradictory responses as correct springs from the fact that doing so would undermine our notion of judgements of correctness as saying how the world actually was and implying decisively how it was not. If our judgements of plausibility do not amount to judgments of correctness, we can tolerate contradiction more easily. Contradiction will however remain uncomfortable.

Likewise, the comparative weakness of a judgement of plausibility makes it easier to judge several responses plausible when they would conflict with one another in some way that fell short of contradiction than it would be to judge all of those responses correct. The prospect of the world's being awkward enough to encourage conflicting but non-contradictory descriptions is more tolerable than that of the world's encouraging contradictory descriptions. It would undermine not our notion of correctness, but our confidence that we were on the high road to a full understanding. And finding several conflicting but non-contradictory responses plausible would not be as depressing as thinking we had to regard them all as correct. It might indeed be encouraging, in that it showed we were capable of developing several lines of enquiry without knowing which one would turn out to be the most fruitful.

We can see one way in which it can be tolerable to keep conflicting responses in play by reflecting on how things are in certain types of philosophy and in history. An important feature of these areas of work, and of some other work in the humanities, is that decisive judgements as to the truth of assertions can often be expected to lie permanently out of reach. This is so because in order to say anything interesting, one has to go beyond what the evidence requires one to say or not to say, and to interpret it in ways that are optional. Given that the crunch point at which final verdicts of truth and falsity are announced is not expected to be reached, conflicting responses can be tolerated because their coexistence will not be forced to come to an end. This does not however mean that anything goes. There are still standards to be met. For standards in history see Baron, Epistemic Respectability in History.

The value of the test

As we have already said, the fact that a response passes the plausibility test does not show that it should be taken to be correct, at least not without some substantial additional conditions being met. And we can often tolerate having conflicting responses to the same question which all pass the test. The test is only a filter to reject some responses, while potentially leaving several others in play. Does all this mean that the test is too undemanding for its administration to have value? No, it does not.

The fact that the test is only a filter to rule out some responses does not undermine the whole process of review of responses, because it is not the only test. It will normally be administered in addition to a detailed analysis of evidence and reasoning.

But why should such a filter add much to detailed analysis?

One reason is that detailed analysis cannot be as conclusive in the humanities, or indeed in the social sciences and some parts of the natural sciences, as it can be in physics and chemistry. Forms of evidence are diverse enough for there to be scope to overlook relevant evidence, and the evidence that is found can be misinterpreted.

A second reason is that evidence may be open to alternative interpretations, all arguably legitimate, in the light of different background theories. The use of such theories may be required in order to make the evidence speak at all, so it is not to be avoided. From within a theory, its interpretation of the evidence cannot be seen as illegitimate, and there may be no neutral standpoint from which to weigh up the alternative theories and their approaches to the interpretation of evidence. Then the plausibility test, based on general principles which are not specific to particular theories, may help to screen out theories which fall short in some way. The test would typically do so by finding that responses in some way failed to make sense, implying that there might have been something wrong with the theories under which they were produced. The test would however still not offer a neutral standpoint from which theories could be examined, because it would not have the tools with which to examine theories directly. Indeed, its use might lead to the identification of a theory as unsatisfactory without specifying the defects in that theory, merely condemning it by reference to its results.

A third reason is that in the humanities in particular, there is a legitimate demand for Verstehen. Responses to questions must bear an appropriate relationship to the nature of human readers, one that really does confer understanding. It is hard to check for that through detailed analysis. A general test like the plausibility test is what is needed.

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