Morality unbounded

Philosophy and Public Affairs

Volumn 36, Issue 4, 2008, Pages 323-358

  Herman, Barbara ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 56049089628     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2008.00145.x     Document Type: Article

References (57)

1. I will not argue here for any claim of morality's authority. The question of interest is whether there is something about the nature or work of an authoritative moral requirement that necessarily limits its sphere of application.
2. In the United States, for example, religious groups have extensive tax exemptions, and need not follow employment discrimination law or satisfy many safety standards in their own workplaces; this allows them to pursue various activities they otherwise could not afford or control.
3. I am assuming that these issues arise for groups within larger polities, typically modern states. This is because most groups now exist within state boundaries, and many of those that exist across boundaries (some churches, for example) have state-sensitive institutional variants. Although nations are among the groups to which the arguments of this article apply, the state is arguably a different kind of thing: Not a group, but the institutional moral framework for individual and group life. Its charge should then reflect the valid claims persons and groups get to make.
4. John Rawls, A Theory of Justice, 2nd ed. (Cambridge, Mass.: Harvard University Press, 1999), p. 25. The complete quotation is of interest, given the breadth of application of the "axiom." "There is no reason to suppose that the principles which should regulate an association of men is simply an extension of the principle of choice for one man. On the contrary: If we assume that the correct regulative principle for anything depends on the nature of that thing, and that the plurality of distinct persons with separate systems of ends is an essential feature of human societies, we should not expect the principles of social choice to be utilitarian."
5. For example, regulative principles for courts and legislatures need to be different because what they do is different: Stare decisis has a central place in one, no more than a pragmatic role in the other. But both systems can be subordinate to the value of constitutional rule. Since regulative principles serve institutional ends, and so other social values, there is no inconsistency in avowing Rawls's version of a separate spheres principle and also holding that morality is a or even the fundamental value across institutions. Interestingly, Bernard Williams criticizes Rawls for holding such a view. Cf.
6. "From Freedom to Liberty: The Construction of a Political Value," Philosophy & Public Affairs 30(2001): 3-26,
7. I am assuming that it is not essential to any group that it be against morality. It will be of interest whether the tracking issue is about reasoning and judgment or just permissibility.
8. Whether, ultimately, this is to be understood as a moral entitlement is another way of asking the question this article considers. Some solutions to the moral problem of social pluralism will alter the nature of social pluralism as a political problem.
9. Although it is not necessary that this be so, in many of these cases one can see from within a practice how another might be possible and even attractive. In an open culture, this is one of the ways the arts play a cosmopolitanizing role; the more closed the culture, the less this will occur (this is a theme in play at least since Plato's Republic).
10. I am not here worried about intergroup conflict in the usual sense, but the more unnerving occasions when groups find it unthinkable to live near other groups because of their "deviant practices."
11. The theorist who embraces social pluralism is like an anthropologist of moral institutions; she will not condemn any but the most extreme practices, but, regarding ways of life holistically, interprets objectionable-seeming practices as integrated elements of stable and, to the participants, correct patterns of living. It is not clear what it would mean, from such a position, to take their differences seriously.
12. There is no rule for how much substantial difference is tolerable before the scales tip toward more dramatic incompatibility.
13. Some minorities flourish in such circumstances by performing tasks that may not be done by the dominant group. Historically, this has rarely been a healthy permanent arrangement.
14. Of course it is a practical problem as well: Anxiety about change can make groups rigid, a posture that is often self-defeating.
15. Some might argue that to talk about individuals' interests is already to be talking about the groups that frame them. Although there is a truth in this, it does not show that groups are ontologically or morally on a par with individuals.
16. One wants to be wary of the romance of identity: Many of the identities we prize are, in historical terms, relatively recent, the product of conquests, forced movements of peoples, and the collective myth-making that is part of creating culture. Injustice too can be a source of identity-shared oppression, a common enemy-can create a belief in a cultural unity where there was none. This is not to underplay the importance of membership, of belonging, of being a this rather than a that. Identity, with its existential aura, may not be the most helpful notion for capturing this multifaceted phenomenon. For a very useful discussion, see
17. Rogers Brubaker and Frederick Cooper, "Beyond Identity," Theory and Society 29 (2000): 1-47.
18. Of course there are obvious moves here-common ownership, liberty claims. About common ownership I will have little to say, since I am most interested here in groups that share a place. Liberties attach to interests that there are moral reasons to leave to the authority of individuals or groups, so they must wait on a further account of what those might be.
19. For those who think that what it is to be an individual is to be partly constituted by groups and their reasons, this might seem a quite natural move.
20. The thirty articles of the Universal Declaration of Human Rights provide a rich, aspirational list that includes rights to free and compulsory primary education, to marriage and divorce, to work and to have equal pay for equal work, to join unions and to have unemployment protection, even a right to what is necessary for the free development of one's personality.
21. A parallel question arises for political regimes that aim to survive the introduction of democratic institutions.
22. If, for some norm-constituted activities, the nature of the constituting principle may not be clear until a practice is under stress, for others, it may be difficult to identify a determinate fact of the matter: external pressures can give rise to a rule that is then read into the history of a practice.
23. These cases suggest that whether reasons for action are internal or external may not be a function of the structure of reasons but of the forms of regulation. Reasons of bare authority are offered as external; other reasons make better sense if internal or object-constituting (e.g., reasons concerning well-being or friendship). Internal reasons that are neither instrumental nor object-constituting may be possible, but they would function at the limit of the intelligibility reasons provide for our actions.
24. It is not just that "acts of friendship" are conditional on moral correctness-that would manage potential conflict of value between morality and friendship-but friendship itself is (partly) a moral value. So conceived, reasoning to action under its auspices is always, though not only, moral reasoning. As a point of reference, T. M. Scanlon clearly accepts the first but not necessarily the second element of the relationship between morality and friendship (cf. chap. 4 of What We Owe to Each Other [Cambridge, Mass.: Harvard University Press, 1998]) and doubtless would not generalize this form of regulation across other domains of value to the extent that I do here.
25. The importance of the kind of source-value shows, for example, in the different protections of speech and association that come with political rights, regarded as essential to democratic processes (and so external), and moral rights that secure the social bases of rational judgment (and so internal).
26. I do not mean this to be an uncontroversial claim. I do mean to flag that our current practice of talking in terms of pro tanto and all things considered reasons involves a substantive view about moral norms.
27. This is not the case with unquestionably impermissible (or morally trivial) actions. If what the agent intends is to kill five to save one, we do not need a deeper investigation.
28. The Greeks and their "barbarians" are an example of this.
29. The role of this conjecture is simply to provide a plausible stand-in for the kind of end that could anchor a deliberative morality. The key feature a moral theory must have if it is to play this role is that it not merely offer standards of impermissibility for actions, but also be able to evaluate actions as the outcome of deliberation from ends that express moral value. I think there is a Kantian variant of such a view that is quite powerful, but it depends on a story about obligatory ends that I cannot develop here. Nothing substantive rides on the quasi-Aristotelian view that I use as the stand-in, except that morality involve, in an essential way, ends that anchor practical deliberation. Any view that insists that all of our activities must be justified as they relate to some moral good is going to seem excessively moralistic. But for it to be the case that the activities we choose be good for us, it does not follow that we should choose them solely or even primarily because they are.
30. The fact that the costs to someone of adhering to morality might be too high for him to countenance does not imply they do not bear. "I can't" is often an expression of how profoundly one doesn't want to.
31. Some groups will therefore not have standing because the role they play in people's lives is too limited (clubs and teams): They do not rise to the level of making a valid claim, even though they may be loci of persons' identities. Others will fail because the core actions or defining attitudes they sanction are not compatible with the justifying moral value (vigilante groups, white supremacy associations).
32. For other reasons it would matter that they know they could deliberate in moral terms, that there is congruence with morality. Isolation is not a guarantee against change.
33. This sort of effect might lead one to doubt the stability of the differences that define groups entering a Rawlsian overlapping consensus.
34. One can imagine a group having ideological reasons to resist making the claim, and yet taking advantage of the rights and permissions that came its way. It might regard its congruence with moral value as adventitious, or as a passing stage in a historical progression.
35. Some of the confusion about affirmative action has this source: The more the principle turns to issues of representativeness, the less it is able to be a response to selective past injustice.
36. There is an interesting example in the mainstream Western religions that have, over time, formed an extensive common moral culture. It does not seem that the sharing of a value system has required the sharing of faith.
37. Many parents of small children use firm holding in this way.
38. The deliberative rules from ends to intention may be difficult to formulate; but it should be clear that many moral values do not support maximizing instrumentalism and are not served by a morality of constraints. One could interpret Kant's categorical imperative as such a deliberative rule: You act disrespectfully just in case you cannot will your maxim a universal law.
39. Conversely, accidental benefits of a bad practice do not speak in favor of it.
40. Or that we should have no qualms about this feature of contract. Cf.
41. Seana Shiffrin, "The Divergence of Contract and Promise," Harvard Law Review 120 (2007): 708-53.
42. Cf. Joshua Cohen and Charles Sabel, "Extra Rempublicam Nulla Justitia,"
43. A. J. Julius, "Nagel's Atlas," both in Philosophy & Public] Affairs 34 (2006): 147-75,
44. The inappropriateness of charity does not imply that law (or judges) should not be lenient or magnanimous. The point is about practice-distinctive moral virtues.
45. The trajectory of responsibility in role-based action can pass through the individual acting to others.
46. In the now familiar example about orchestra auditions of some decades ago, it might have seemed to the parties that the values of impartial evaluation and gender equity were in inescapable conflict. Hard as judges might try, they were unable to satisfy both moral masters. If they followed one principle, women failed to make the cut; if they followed another, they were compromising standards. As it turned out, changing audition practices so that there was a visual barrier between players and judges resolved the tension. It would be strange to say that prior to making the change, morality had failed as a guide. The change to the choice set not only resolved the problem, it said something about what the problem was. Had the solution been to use quotas, for example, it would have suggested the problem was a different one-the need for remedy or the priority of values. Although gender equity might be the outcome in both cases, when there are competing values in play, quotas tend to leave a longer tail of moral complaint.
47. I borrow the case and some of the worries about its resolution from
48. Jeremy Waldron, "Superseding Historic Injustice," Ethics 103 (1992): 4-28,
49. "Settlement, Return and the Supersession Thesis," Theoretical Inquiries in Law 5 (2004): 237-68.
50. Cf. Waldron (ibid.) and also
51. Avashi Margalit and Joseph Raz, "National Self-Determination," Journal of Philosophy 87 (1990): 439-61,
52. It is an interesting moral question whether individuals who survive a group's demise inherit its obligations or continue to be owed repair. Is the intuitive bias toward the latter more than a practical matter?
53. Individual or private actions may be able to mitigate the effects of reparative failure, but they do not thereby discharge the group's debt.
54. One of the morally significant features of reparative affirmative action is that it addresses an inherited group claim.
55. We say that an individual's debts cannot (morally cannot) be collected if the consequence is his death. Would the same be true for groups? Could we say: However it reached its current position, so long as it is not actively sustaining itself through unjust acts, it has a claim to continue to exist? If there is a reason it does, it would have to be for the moral reasons that support group standing in the first place. It would not follow that it has a claim to enjoy its relative privilege if it has inherited considerable reparative burdens. A high standard of living is not a condition necessary for its standing.
56. Can a group that has lost standing as a result of past injustices also lose a claim to reparations? In some cases, it would seem so (e.g., as an effect of dispersal, extensive intermarriage, or depopulation). There remains a question of what might be owed to descendant individuals and whether, if the span of time is long enough, adverse possession could be the end of the story. Even if so, the moral wrong has no such temporal horizon, and it remains attached to the surviving group in demands for historical truth and acts of symbolic recognition.
57. I use the language of more and less here because it remains the case that for some kinds of activity external regulation is necessary in order to respect the source-value that supports morality-from-within.