Eugene Volokh, of the Volokh Conspiracy, writes:
Even if one believe[s] that certain things are objectively immoral, one should recognize that such a judgment is not the sort of thing that one should label "fact"; if anything, we should be teaching students to better distinguish facts from value judgments, even while recognizing that value judgments may be very important and even objectively right.
To my mind, this statement is a mess, but perhaps I'm not seeing clearly. There's a few things clouding my vision.
If I only believe something, I could be wrong. If I know something, I cannot be wrong. (This is not the same as saying that if I think I know something, I cannot be wrong.) For example, I can never know that I had oatmeal for breakfast this morning because it's false that I had oatmeal for breakfast this morning. Note that this is different from saying that I can never know the details of what happened in the duel between Hamilton and Burr. In the first case, I cannot have knowledge because the claim is false. In the second case, I cannot have knowledge because the evidence does not rise to the level of knowledge. (After examining the evidence available, I might lean one way or the other, but not enough to say that I know what happened.)
So when Volokh writes that "Even if one believe[s] . . ." I don't know whether he's playing on the distinction between believing and knowing. If he means that "Even if one knows that certain things are objectively immoral . . . one should [not label them as fact]," then I think he's wrong. If what Volokh means is that "Even if one only believes [i.e., doesn't know] that certain things are objectively immoral . . . one should [not label them as fact]," then he's right to say that we shouldn't label our judgment a fact. If we want to be responsible in our labeling, we should wait until we know that something is a fact before we label it as fact. Which of these Volokh has in mind is the first thing that is unclear to me. Here's the second.
What is the difference between a fact and an objectively correct value judgment? I take "fact" to mean the way things are. Not very illuminating, I know. The point is that facts are basic. A fact is the way the world is. So, if grass is green, then it's a fact that grass is green. If F=MA, then it's a fact that F=MA. Sometimes people use "fact" and "correct" or "right" or "true" synonymously. That's misleading. We say that a judgment about a fact is correct or incorrect, right or wrong, and that statements about facts are either true or false. If I judge that grass is green, then my judgment is correct. If I say "Grass is green," then my statement is true.
Volokh wants to distinguish between facts and "value judgments." In a trivial sense, I agree. A judgment is a mental act. A value judgment, then, is a mental act about values. A fact is the way the world is. Clearly, mental acts are not the same as the world's being a certain way, and though there are facts about mental acts, this should not lead us to conflate the two. To be precise, we should speak of judgments about value and judgments about facts. (Maybe Volokh thinks that one does not make judgments about facts. I disagree, but I'll save that for another day.)
But I do not think that Volokh meant to state the obvious that mental acts are not the same as the way the world is. Here are two possible further interpretations.
(a) He might mean that judgments about facts are not the same as judgments about values. In some cases this is true; in others, false. It is true in cases where the value judgment is nonnormative, for example, in the claim that I prefer strawberry icecream to vanilla. In this case, I can make no legitimate claim to normativity, that is, that everybody ought to prefer strawberry to vanilla. So in cases where the distinction is between judgments about facts and judgments about nonnormative values, Volokh is right to insist on a difference between fact and value.
But in cases where the value judgment is normative, for example, that one ought to be courageous (or, controversially, that one ought not engage in homosexual acts) then it is in the same boat as judgments about facts. Why? Because normative judgments depend upon there being a fact of the matter in order to be normative. Normative value judgments are significantly like judgments of fact: they are either right or wrong (and the corresponding claims based on the judgments are either true or false). What makes both of them right and wrong is the world's being a certain way.
(b) He might mean that facts are scientific or empirical or some other such thing and that values are nonempirical or nonscientific. This claim can only be supported by arbitrarily restricting our use of "fact." Facts are the way(s) the world is. Some facts are facts about the way the world is scientifically. They tell us about the chemical or biological parts of the world. Now the question is Is there a fact of the matter about the way the world is morally? If so, then let's call those ways facts. If not, then we can call them something else. The important point is that we can't say that we need to limit our use of "fact" prior to discovering whether there is a fact of the matter about the way the world is morally.
So here's why I'm confused. Volokh says that we can recognize that "value judgments may be . . . objectively right"; here he seems to think that there might be a fact of the matter about morality. But he also says that judgments about value are not the same as facts (or, to be precise, judgments about facts). These are incompatible claims.
Now, in both (a) and (b) there are issues of whether there are any normative value judgments and whether there are moral facts of the matter about the way the world is. I think that these are essentially the same issue. Since I haven't given an argument that there are any normative value judgments, one might think that my critique of Volokh is pointless. But, on the other side, in order to show that the usual (but false) distinction between fact and value is real, one has to give an argument that there is a difference. Volokh hasn't done this, and so my critique of his claims doesn't require that I show there isn't one.