When I last looked at Parfit's 2002 Tanner Lectures, the "Ur-text" of On What Matters, it was to discuss the first of those lectures, and, not least, to examine how there Parfit interpreted Kant's Formula of Humanity. In this posting I'm going to look at Parfit's second 2002 lecture where he turns, by contrast, to the discussion of Kant's Formula(s) of Universal Law.
Parfit opens the second of his lectures with a discussion of the nature of Kant's references to "maxims" in his account of the rightness of acts. Parfit lists some statements that are described by Kant as "maxims" and then proceeds to describe what he terms Kant's "stated criterion of strict duties" which is: "it is wrong to act on maxims that could not be universal laws" though this seems to be based on Ak. 4: 424 where Kant in fact, by referring to at least two types of contradiction, refers to notions of "conception" and "willing" to distinguish them, a distinction that Parfit appears to make nothing of. Parfit looks instead at the notion that what is tested by the reference to universal laws is the "permissibility" of certain maxims (not their "possibility" of being experienced which is what Kant discusses). The notion of "permissibility" is not, in any case, taken by Parfit to be a very helpful way of understanding Kant's notion of universalisation and he raises questions about maxim-formation that have been circulating in the literature for some time in terms of the "test" of universality being either under-determined or over-determined.
In the process of raising these points Parfit criticises ways of understanding universal laws that have been made by Onora O'Neill which culminates in a switch from the initial "stated criterion of strict duties" to a different "actual criterion of strict duties" which latter states that: "it is wrong to act on maxims whose being universally accepted, or believed to be permissible, would make it impossible for anyone successfully to act upon them". This criteria has the advantage that it appears to make questions of publicity emerge as key to the way universal laws are meant to work. However, it is not this, but instead the notion of "success" that Parfit fixes on, arguing, as he does, that the alleged maxim of coercing others wherever this would benefit me, even if adopted universally, would not be universally impossible to successfully achieve. This objection strikes me as a pretty odd one since such a situation would, if it was the basis of all known and avowed maxims, make rather a large number of actions impossible of success and is the basic reason why, in the Doctrine of Right, Kant can provide an argument for the need for a sovereign power.
Parfit does not consider such a case, however, preferring instead to look at Kant's arguments against lying and stealing which are, however, themselves interpreted by Parfit in ways that are pretty eccentric since he focuses primarily on the question of the egoist, which was not obviously on Kant's agenda at all here. Parfit makes a better point with regard to lying promises since it is here that he sees that the practice of promising is conditional on the notion that keeping them is the general rule to be observed. This leads Parfit to begin to consider the reference to universality in a different way to previously as based not merely on an account of maxims in relation to acts but also in relation to beliefs concerning acts. However Parfit still has difficulties with the kind of criteria that the reference to universal laws seems to involve since, as he can easily point out, there are cases where lying promises might seem to be required.
The first lesson derived from the discussion by Parfit emerges at this point which is to the effect that relating maxims permissibility to a standard of universal successful accomplishment appears to make the universality criteria either much too weak or much too strong. It is only after this point has been stated that Parfit actually states Kant's Formula of Universal Law which is, however, given in a form that Kant never explicitly gives. The Formula in Parfit's telling emerges as follows: "It is wrong to act on some maxim unless we could also rationally will it to be true that this maxim is a universal law". Shortly after giving this formula Parfit also adds the "law of nature formula" and what he terms "the Permissibility Formula" which latter is said to state: "It is wrong to act on some maxim unless we could also rationally will it to be true that everyone is morally permitted to act in this way". This latter notion is said to be derived from Thomas Scanlon and is freely admitted by Parfit to be one that is not generally recognised.
Nor does Parfit stop here, however, since after giving the "permissibility formula" he adds that Kant's basic assumption in this alleged formula refers to effects of beliefs people hold and thus depends on what Parfit calls a "Moral Belief Formula", something that he implicitly appealed to earlier in the lecture but which is now explicitly presented as stating: "It is wrong to act on some maxim unless we could also rationally will it to be true that everyone believes such acts to be permissible". This formula is, however, implicitly conservative since it appears to require recognition of actual beliefs and thus not to test them.
As often, however, Parfit moves on to a different question than the one that seems obvious since his question about the alleged formulas given does not turn on any particular type of objection to their coherence but instead he goes back again to the question of the status of "maxims" for Kant. Here Parfit makes the point that when Kant speaks of "maxims" it seems that different types of things can be at issue. Thus, on some occasions it appears that Kant is using "maxim" to indicate the "policy" on which someone is acting, on others to the relationship between "policy" and "aim". Having made this point Parfit returns to the general problem of having a view of maxims that provides a serious wrong-making criteria and indicates that many maxims have a "mixed" status in the sense that it is not always bad to act on them nor always good. This is termed by Parfit the "mixed maxims objection" to the accounts of maxims that have been discussed by him up to this point. In response to it Parfit suggests a revision of Kant's Formula(s). The point of the revision is, however, a rather odd one. Having indicated that his basic problem is with "mixed maxims" Parfit suggests that the way that maxims are referred to should not be by means of policies or aims but instead by what persons are "intentionally doing". In fact, in stating this, Parfit seems unusually poorly informed since making the understanding of maxims refer to "intentions" is a proposal that has been widely considered and it has provoked serious objections from a range of philosophers.
Nor, in any case, is it obvious that what Parfit goes on to do is to discuss a revision that is really based on this notion of "intentions". It is instead Parfit's move to begin discussing rational willing and this appears to involve some sense of instrumental coherence, a notion that requires no explicit reference to "intentions" at all.
Parfit states that Kant's Formula(s) of universal law work best when 3 conditions are satisfied, namely, that it would be (a) possible to act on the maxim; (b) the effects of the maxim would be much the same however many people acted on it; (c) these effects could be randomly or equally distributed between people. Understanding Kant's formulas in this way brings them close to considerations that are at work in standard decision theories and in games theories (much as Parfit invokes in Reasons and Persons). Parfit's claim is that the problems that arise for the Kantian formulas are related to failure of one of these conditions. The only failure Parfit explicitly considers is (c) which leads to burdens being imposed only on select groups. In raising this point Parfit gets to the notion of "impartiality" and indicates that there is no guarantee of impartial consideration in weighing universal acceptability. The example of this given is one that I find extremely unpersuasive though and appears to me to be a prime example of what is often termed "maxim-fiddling".
The example is of a racist who takes it that there would be no problem of universalising maxims of segregation and unequal treatment. But in allowing the racist this claim Parfit neglects to conceive of the world that would therefore be being willed which would be a world in which there would therefore be no problem with the racist himself suffering the same treatment whenever they were in the minority. In failing to conceive of the general test in this way Parfit has simply fiddled the maxim in the racist's favour.
Parfit eventually gets to a version of this response when he considers Thomas Nagel's account of the maxims concerning benevolence which is the classic counterpart of the problem with contradiction of the will that I have transposed here to the case of the racist. Nagel appears to view the benevolence example as requiring us to be placed in "everyone else's position" but this is too strong and all that is needed is precisely what Parfit agrees is found in the discussion of benevolence in the Groundwork which is the failure of rational willing even in the case of the one willing non-beneficence. It is due to such failure that Rawls, as Parfit cites, invokes his idea of the "veil of ignorance" as a way of seeing the problem here. It is not that Kant has to have directly supposed that we do need to invoke this veil, as Parfit wrongly assumes. It is rather that the veil is an alternative way to make the same point in the same spirit.
In response to the discussion at this point Parfit invokes another way of understanding Kant's formulas of universal law in terms that recognises the question about impartiality in an explicit form. This leads Parfit to give what he terms the "Formula of Universally Willed Acts" which is as follows: "An act is wrong unless it could be rationally willed by everyone". This formula is an extension of the Consent Principle that Parfit found to be the first part of Kant's Formula of Humanity. It faces at least the problem Parfit himself mentions which is that Kant does not refer in this way to "what everyone could rationally will" though it is evident he does require some sense of rational willing to be understood. However Parfit concludes the second lecture with 2 final formulas. The first is meant to build in a reference to beliefs and produces what Parfit terms "Kant's Contractualist Formula" which is: "We ought to act on the principles whose universal acceptance everyone could rationally will". This version brings Kant into the vicinity of Thomas Scanlon though this point is not explored in this lecture.
Finally Parfit concludes with a formula that explicitly brings in a reference to Rawls' notion of the "veil of ignorance" and is stated simply as "Rawls's Formula" and is given as follows: "We ought to act on the principles that it would be rational for everyone to choose, as the principles that we would all accept, if no one knew anything about themselves or their circumstances".
Parfit concludes the second 2002 lecture with the claim that the third lecture will be devoted to consideration of the contractualist formula though it surely also considers its relationship to Rawls's Formula and indicates a resolution of some sort of the two formulas. However, before looking at the third and final 2002 lecture I will first consider the ways in which the discussion of the second 2002 lecture becomes transformed and reworked in Climbing the Mountain and the pre-publication version of On What Matters to become, eventually, Chapters 12 to 14 of the published book.
Showing posts with label Doctrine of Right. Show all posts
Showing posts with label Doctrine of Right. Show all posts
Monday, 5 March 2012
Wednesday, 7 September 2011
Report on UKKS conference 2011
I've recently returned from St. Andrews where the 2011 conference of the UK Kant Society was held. The theme of this year's conference was "Reading Kant" and it was organised by Jens Timmermann. The theme may sound unusually broad but the point of it was to focus attention on response to specific texts of Kant so that these texts can be given careful articulation rather than encouraging wide speculative moves that might be at some distance from what Kant wrote. There are good arguments both for and against such an approach but the conference itself provided some ground for thinking that, done in the right way, such an approach certainly has much to commend it.
The conference opened with a general speech by Konstantin Pollok who was apparently focusing on the passage from the B-preface to the Critique of Pure Reason that deals with the supposed "Copernican revolution" but, despite this being his official text, he wandered rather far from it in order to make a general set of remarks about the distinction between Critical and pre-Critical philosophy. The paper seemed rather unfocused and largely expository, indicating one of the dangers of the conference theme.
However, Pollok's paper was followed by two which were rather livelier. Adrian Piper set out a paper that linked up two, at first sight, rather divergent passages from the Critique of Pure Reason on the one hand (A751/B799-A752/B780) and the Groundwork (Ak. 4: 424) on the other and read them as connected in expressing a riposte to Hobbes on Kant's part. The first passage is full of the legal metaphors with which the Critique expresses its general mission and is part of the chapter on the 'discipline of pure reason', the first part of the Doctrine of Method. Here Kant does expressly name Hobbes and indicates the need to abandon the state of nature but the reference to the "state of nature" here is part of Kant's response to philosophical disputes and articulates his case for taking the method of critique to be a way past these disputes. The Groundwork passage, by contrast, indicates a problem with taking certain forms of maxim to be the ground of a universal law and is stated after Kant gives the four examples for the first time in Groundwork II. Here Kant is describing, however, the problem with the second two examples, namely, that they lead to a contradiction in the will and Piper, somewhat surprisingly, viewed this passage as a kind of "application" of the first passage from the Doctrine of Method. Whilst this was certainly a surprising way of understanding the relationship between these passages it had one central advantage which is that it enabled Piper to view the "state of nature" less as something definitely superseded and more as something that there is a constant danger of slipping back into. Unfortunately, the clarity of this point was somewhat obscured, however, by failure on Piper's part to distinguish between different types of "state of nature". After all, in the Religion, Kant talks about going beyond an ethical state of nature and this type of state of nature can exist even whilst the state of nature that would be contrary to right has been superseded. So it might have been more apposite for Piper to clarify the relationship between these two states of nature and bring out how, without superseding the ethical state of nature, there is always incipient conflict within the state of right. Piper went on to discuss Kant's "criteria of rule rationality", a set of four points derived from the conjunction of the two passages and taken to include universality, logical consistency, objective necessity and conceptual unity. Whilst these criteria seem pretty good there is one problem which is that the citations given for objective necessity related strictly to the notion of contradiction in the will so something should have been said about this. Piper concluded her paper with a third passage from the Groundwork concerning false promises (Ak. 4: 403) and Piper used this to argue that a practice of false promising is unstable in a way that universal lying would not be, a point that led to serious exchanges during the discussion. Again, a potential development of this point would concern precisely the status of promises in contract, something that underlies any type of social order and points to a way that the specific importance of promising could be further shown.
The third and final paper of the first day of the conference came from Graham Bird who defended his general deflationary view of Kant's transcendental idealism by discussing the account of freedom in the Critique of Practical Reason and arguing that Kant was saying no more about the status of freedom there than he had in the Critique of Pure Reason. Bird went so far as to claim that the construction of Kant's account as stating more than in the theoretical philosophy could only be "fantasy" thus denying Kant's clear statement in the Critique of Practical Reason that there are ways of extending pure reason practically that are not permitted theoretically (Ak. 5: 50-57). The paper was characteristically provocative and lively debate ensured concerning its claims.
If the first day of the conference was primarily marked by plenary sessions, on the second day, the conference broke up into thematic sessions. The unity of these sessions was not entirely obvious although one group of them was clearly theoretical and another focused on the Doctrine of Virtue. The point of the other two groupings was less evident. I began the day in one session and finished it in another. The morning session I attended was focused on the Groundwork and featured papers from Georg Urich and Martin Sticker. Urich's paper was a case where the injunction about addressing a particular passage was taken very literally since he focused on one sentence from the Groundwork at Ak. 4: 397 where Kant was ruling out the idea that actions recognised as contrary to duty could also be understood as in accordance with duty. In addressing this passage Urich spoke about the division of classes of action of duties and mentioned the argument of those who take there to be a "neglected alternative" here that Kant has not considered. The "neglected alternative" would be actions that, whilst wrong in themselves, were nonetheless committed for the right reasons. The point of focusing on such actions is that it would be a question not merely whether such actions were possible but also, assuming their possibility, whether they would possess moral worth. Some ways have been developed in the literature that attempt to circumvent this possibility such as the suggestion that the aims of the Groundwork preclude dealing with such a question (Timmermann's position), that Kant simply conceptually defines duty in such a way as to rule out this question (Kerstein's view) or that the question is practically irrelevant (also a view of Kerstein). However the second of these views was ruled out by Urich on the grounds that definitional claims would be non-explanatory and the third on the ground that there is conflicting evidence. I was less clear what his response to the first view is. Subsequently Urich considered the question as to whom actions contrary to duty are seen as such mentioning objective and subjective views of this. On the objective view it is the objective observer who sees them to be wrong (Herman's view) whilst on the subjective view it is the agent himself who sees them to be wrong (Stratton-Lake's view). Urich preferred the subjective reading for three reasons: firstly, Kant rules out consideration of reference to "usefulness" in intent (which implies he considers intent), secondly, his account refers to ulterior motives, thirdly, in stating that actions contrary to duty "conflict" with duty there is no reference to objective considerations beyond the "recognition" of the action in question. However having made these points, Urich moved on to reject the idea that there was a "neglected alternative" on the grounds of a typology of Kant's view of duties not enabling room to be left for it. Instead there has to be left reference to actions carried out in accordance with a mistaken moral judgment.
In contrast to Urich's very narrow consideration of texts, Sticker looked at the conception of "rationalising" in Kant in order to bring out that it is the generic term that Kant uses to describe the mode of reasoning that tries to escape considerations that would be otherwise rationally compelling. In addressing this idea Sticker discussed the necessary presuppositions of moral agency as involving universality, a distinction between legality and morality, respect being the only source of motivation for moral actions, the will being guided by the moral law in an unconditional way and that the foundation of moral judgment has to be pure. The place where Kant first introduces the conception of "rationalising" is towards the end of Groundwork I where the "natural dialectic" into which the common man is led is mentioned when his "innocence" gets compromised. At this point "rationalising" involves casting doubt on the validity, purity and strictness of the moral law (or its unconditionality, purity and universality). Sticker went on to discus the variety of references Kant makes to "rationalising" in the critical works, showing how it has both theoretical and practical relevance. In the theoretical sphere rationalising means to give too much weight to pure reason whilst in the practical realm, by contrast, it means giving undue weight to inclinations.
The afternoon sessions I attended were grounded in theoretical rather than practical philosophy and were papers by Katharina Kraus and a joint paper presented by Dennis Schulting and Christian Onof. Kraus' paper focused specifically on the problems with "inner sense" in Kant and argued for a conception of it that would escape the notorious paradoxes Henry Allison argued it contained on the basis of a use of some suggestions from Beatrice Longuenesse. Whilst Kraus' paper was interesting it left open a series of questions about the notorious note at B160 which the complex and important paper of Schulting and Onof specifically set out to address. The basic question is how it can be said that the unity of space and time do not belong to the categories and yet in some sense involve the understanding. In reference to this problem the paper pointed out that space and time are described in the note as being "objects", that the unity of space is said to "precede" all concepts whilst "presupposing" a synthesis, that the note appears to contradict the main text at B161 and that it is connected in some way to the distinction between "form of intuition" and "formal intuition". In response to these points the paper argued that space as unified makes an object and that this is "formal" intuition but that there appears to be a problem with space being presented as a determinate intuition as this indicates a phenomenal object is also infinite. The authors referred to the readings of Cohen and Dufour as arguing that the unity of space is synthetic and indicated we need a conception of unity that describes non-conceptual unity which they termed "unicity-unity". The singularity of space is, for example, necessary for geometry but is not generated by it. Unicity-unity is also required for the particularity of outer sense. Heidegger's solution of this problem was to argue unity is produced by imagination but A119 already states that apperception and imagination are intertwined. Longuenesse argues for a form of pre-conceptual role for imagination but does not explain how space can possess the property of unicity-unity. When the note states that the unity of space "presupposes" a synthesis this need not mean that it is "produced" by this but only that for understanding to grasp the unity requires this. The discussion of "concepts" of space appeared to be understood in the paper on the model of concepts of reflection rather than categories. The properties of space in the Transcendental Aesthetic are mereological structure, magnitude, topology and the world of outer sense. The Aesthetic is taken to describe the "form" of intuition. Bringing space under the transcendental unity of apperception involves taking the unicity-unity of space as a constraint on reference to it. The argument presented was eventually shown to be a modified form of Allison's conception of the distinction between formal intuition and forms of intuition but the details of the syntheses were left somewhat obscure. The paper as a whole was, however, one of the best of the conference, showed the importance of close textual reading for some key topics and should really have been a plenary.
The final session of the second day of the conference was a plenary speech from Ralf Bader who addressed the topic of Kant's argument for the postulate of the immortality of the soul. This paper was very narrowly circumscribed as it neither investigated the wide status of the postulates of practical reason in general nor showed a basis for understanding the relationship between the postulate of immortality and that of freedom though it did indicate some basis for relating this postulate to that concerned with the existence of God. Bader took the view that the postulate presents a kind of geometrical conception of the relationship between happiness and goodness and thus is a purely theoretical kind of consideration. This meant that the reference of the postulate to desert was, very surprisingly, not really addressed.
On the final day of the conference I was attentive to two of the three plenary sessions. The first was by Alexander Rueger who addressed a a passage from the third section of the Critique of Judgment that some have taken to be in conflict with a view stated by Kant in the Critique of Practical Reason. The passage from the Critique of Judgment (Ak. 5: 205) distinguishes between sensations and feelings on the grounds that without such a distinction there would be no psychological basis to prevent action always occurring in accordance with a principle of hedonism. This appears to make the categorical imperative dependent on a certain view of feeling but Rueger denied this on the ground that Kant can distinguish between the principle of execution and the principle of judgment. The passage from the Critique of Practical Reason some have taken to conflict with the passage from the Critique of Judgment occurs at Ak. 5: 22f and has been taken by some to indicate that Kant there states that all feelings are sensations. However, as Rueger argues, the passage from the Critique of Practical Reason makes a series of conditional claims, not an assertion. So Kant is not committed to the view that all feelings are qualitatively the same. The passage concerning sensation in the Critique of Judgment has to be read as saying that if all sensations were "objective" there would be the problem of commitment to hedonism following automatically. In section 5 of the Critique of Judgment Kant distinguishes specific feelings by means of form and Rueger argued that around 1783-4, whilst composing the Groundwork, Kant came to the view that the moral law requires its own kind of incentive which means he leaves behind his earlier more sentimentalist view of feeling at this time.
The final paper of the conference was a second joint presentation, this time from B. Sharon Byrd and Joachim Hruschka that concerned the passage in the Doctrine of Right where Kant marks the transition from the state of nature to the juridical state (section 41). The paper articulated a very technical set of distinctions that supported the general argument of their recently published commentary on the Doctrine of Right and included a distinction between two forms of the state of nature, one "original" and one "adventitious". This paper was an excellent conclusion to the conference and showed clearly some of the advantages of its theme.
The conference opened with a general speech by Konstantin Pollok who was apparently focusing on the passage from the B-preface to the Critique of Pure Reason that deals with the supposed "Copernican revolution" but, despite this being his official text, he wandered rather far from it in order to make a general set of remarks about the distinction between Critical and pre-Critical philosophy. The paper seemed rather unfocused and largely expository, indicating one of the dangers of the conference theme.
However, Pollok's paper was followed by two which were rather livelier. Adrian Piper set out a paper that linked up two, at first sight, rather divergent passages from the Critique of Pure Reason on the one hand (A751/B799-A752/B780) and the Groundwork (Ak. 4: 424) on the other and read them as connected in expressing a riposte to Hobbes on Kant's part. The first passage is full of the legal metaphors with which the Critique expresses its general mission and is part of the chapter on the 'discipline of pure reason', the first part of the Doctrine of Method. Here Kant does expressly name Hobbes and indicates the need to abandon the state of nature but the reference to the "state of nature" here is part of Kant's response to philosophical disputes and articulates his case for taking the method of critique to be a way past these disputes. The Groundwork passage, by contrast, indicates a problem with taking certain forms of maxim to be the ground of a universal law and is stated after Kant gives the four examples for the first time in Groundwork II. Here Kant is describing, however, the problem with the second two examples, namely, that they lead to a contradiction in the will and Piper, somewhat surprisingly, viewed this passage as a kind of "application" of the first passage from the Doctrine of Method. Whilst this was certainly a surprising way of understanding the relationship between these passages it had one central advantage which is that it enabled Piper to view the "state of nature" less as something definitely superseded and more as something that there is a constant danger of slipping back into. Unfortunately, the clarity of this point was somewhat obscured, however, by failure on Piper's part to distinguish between different types of "state of nature". After all, in the Religion, Kant talks about going beyond an ethical state of nature and this type of state of nature can exist even whilst the state of nature that would be contrary to right has been superseded. So it might have been more apposite for Piper to clarify the relationship between these two states of nature and bring out how, without superseding the ethical state of nature, there is always incipient conflict within the state of right. Piper went on to discuss Kant's "criteria of rule rationality", a set of four points derived from the conjunction of the two passages and taken to include universality, logical consistency, objective necessity and conceptual unity. Whilst these criteria seem pretty good there is one problem which is that the citations given for objective necessity related strictly to the notion of contradiction in the will so something should have been said about this. Piper concluded her paper with a third passage from the Groundwork concerning false promises (Ak. 4: 403) and Piper used this to argue that a practice of false promising is unstable in a way that universal lying would not be, a point that led to serious exchanges during the discussion. Again, a potential development of this point would concern precisely the status of promises in contract, something that underlies any type of social order and points to a way that the specific importance of promising could be further shown.
The third and final paper of the first day of the conference came from Graham Bird who defended his general deflationary view of Kant's transcendental idealism by discussing the account of freedom in the Critique of Practical Reason and arguing that Kant was saying no more about the status of freedom there than he had in the Critique of Pure Reason. Bird went so far as to claim that the construction of Kant's account as stating more than in the theoretical philosophy could only be "fantasy" thus denying Kant's clear statement in the Critique of Practical Reason that there are ways of extending pure reason practically that are not permitted theoretically (Ak. 5: 50-57). The paper was characteristically provocative and lively debate ensured concerning its claims.
If the first day of the conference was primarily marked by plenary sessions, on the second day, the conference broke up into thematic sessions. The unity of these sessions was not entirely obvious although one group of them was clearly theoretical and another focused on the Doctrine of Virtue. The point of the other two groupings was less evident. I began the day in one session and finished it in another. The morning session I attended was focused on the Groundwork and featured papers from Georg Urich and Martin Sticker. Urich's paper was a case where the injunction about addressing a particular passage was taken very literally since he focused on one sentence from the Groundwork at Ak. 4: 397 where Kant was ruling out the idea that actions recognised as contrary to duty could also be understood as in accordance with duty. In addressing this passage Urich spoke about the division of classes of action of duties and mentioned the argument of those who take there to be a "neglected alternative" here that Kant has not considered. The "neglected alternative" would be actions that, whilst wrong in themselves, were nonetheless committed for the right reasons. The point of focusing on such actions is that it would be a question not merely whether such actions were possible but also, assuming their possibility, whether they would possess moral worth. Some ways have been developed in the literature that attempt to circumvent this possibility such as the suggestion that the aims of the Groundwork preclude dealing with such a question (Timmermann's position), that Kant simply conceptually defines duty in such a way as to rule out this question (Kerstein's view) or that the question is practically irrelevant (also a view of Kerstein). However the second of these views was ruled out by Urich on the grounds that definitional claims would be non-explanatory and the third on the ground that there is conflicting evidence. I was less clear what his response to the first view is. Subsequently Urich considered the question as to whom actions contrary to duty are seen as such mentioning objective and subjective views of this. On the objective view it is the objective observer who sees them to be wrong (Herman's view) whilst on the subjective view it is the agent himself who sees them to be wrong (Stratton-Lake's view). Urich preferred the subjective reading for three reasons: firstly, Kant rules out consideration of reference to "usefulness" in intent (which implies he considers intent), secondly, his account refers to ulterior motives, thirdly, in stating that actions contrary to duty "conflict" with duty there is no reference to objective considerations beyond the "recognition" of the action in question. However having made these points, Urich moved on to reject the idea that there was a "neglected alternative" on the grounds of a typology of Kant's view of duties not enabling room to be left for it. Instead there has to be left reference to actions carried out in accordance with a mistaken moral judgment.
In contrast to Urich's very narrow consideration of texts, Sticker looked at the conception of "rationalising" in Kant in order to bring out that it is the generic term that Kant uses to describe the mode of reasoning that tries to escape considerations that would be otherwise rationally compelling. In addressing this idea Sticker discussed the necessary presuppositions of moral agency as involving universality, a distinction between legality and morality, respect being the only source of motivation for moral actions, the will being guided by the moral law in an unconditional way and that the foundation of moral judgment has to be pure. The place where Kant first introduces the conception of "rationalising" is towards the end of Groundwork I where the "natural dialectic" into which the common man is led is mentioned when his "innocence" gets compromised. At this point "rationalising" involves casting doubt on the validity, purity and strictness of the moral law (or its unconditionality, purity and universality). Sticker went on to discus the variety of references Kant makes to "rationalising" in the critical works, showing how it has both theoretical and practical relevance. In the theoretical sphere rationalising means to give too much weight to pure reason whilst in the practical realm, by contrast, it means giving undue weight to inclinations.
The afternoon sessions I attended were grounded in theoretical rather than practical philosophy and were papers by Katharina Kraus and a joint paper presented by Dennis Schulting and Christian Onof. Kraus' paper focused specifically on the problems with "inner sense" in Kant and argued for a conception of it that would escape the notorious paradoxes Henry Allison argued it contained on the basis of a use of some suggestions from Beatrice Longuenesse. Whilst Kraus' paper was interesting it left open a series of questions about the notorious note at B160 which the complex and important paper of Schulting and Onof specifically set out to address. The basic question is how it can be said that the unity of space and time do not belong to the categories and yet in some sense involve the understanding. In reference to this problem the paper pointed out that space and time are described in the note as being "objects", that the unity of space is said to "precede" all concepts whilst "presupposing" a synthesis, that the note appears to contradict the main text at B161 and that it is connected in some way to the distinction between "form of intuition" and "formal intuition". In response to these points the paper argued that space as unified makes an object and that this is "formal" intuition but that there appears to be a problem with space being presented as a determinate intuition as this indicates a phenomenal object is also infinite. The authors referred to the readings of Cohen and Dufour as arguing that the unity of space is synthetic and indicated we need a conception of unity that describes non-conceptual unity which they termed "unicity-unity". The singularity of space is, for example, necessary for geometry but is not generated by it. Unicity-unity is also required for the particularity of outer sense. Heidegger's solution of this problem was to argue unity is produced by imagination but A119 already states that apperception and imagination are intertwined. Longuenesse argues for a form of pre-conceptual role for imagination but does not explain how space can possess the property of unicity-unity. When the note states that the unity of space "presupposes" a synthesis this need not mean that it is "produced" by this but only that for understanding to grasp the unity requires this. The discussion of "concepts" of space appeared to be understood in the paper on the model of concepts of reflection rather than categories. The properties of space in the Transcendental Aesthetic are mereological structure, magnitude, topology and the world of outer sense. The Aesthetic is taken to describe the "form" of intuition. Bringing space under the transcendental unity of apperception involves taking the unicity-unity of space as a constraint on reference to it. The argument presented was eventually shown to be a modified form of Allison's conception of the distinction between formal intuition and forms of intuition but the details of the syntheses were left somewhat obscure. The paper as a whole was, however, one of the best of the conference, showed the importance of close textual reading for some key topics and should really have been a plenary.
The final session of the second day of the conference was a plenary speech from Ralf Bader who addressed the topic of Kant's argument for the postulate of the immortality of the soul. This paper was very narrowly circumscribed as it neither investigated the wide status of the postulates of practical reason in general nor showed a basis for understanding the relationship between the postulate of immortality and that of freedom though it did indicate some basis for relating this postulate to that concerned with the existence of God. Bader took the view that the postulate presents a kind of geometrical conception of the relationship between happiness and goodness and thus is a purely theoretical kind of consideration. This meant that the reference of the postulate to desert was, very surprisingly, not really addressed.
On the final day of the conference I was attentive to two of the three plenary sessions. The first was by Alexander Rueger who addressed a a passage from the third section of the Critique of Judgment that some have taken to be in conflict with a view stated by Kant in the Critique of Practical Reason. The passage from the Critique of Judgment (Ak. 5: 205) distinguishes between sensations and feelings on the grounds that without such a distinction there would be no psychological basis to prevent action always occurring in accordance with a principle of hedonism. This appears to make the categorical imperative dependent on a certain view of feeling but Rueger denied this on the ground that Kant can distinguish between the principle of execution and the principle of judgment. The passage from the Critique of Practical Reason some have taken to conflict with the passage from the Critique of Judgment occurs at Ak. 5: 22f and has been taken by some to indicate that Kant there states that all feelings are sensations. However, as Rueger argues, the passage from the Critique of Practical Reason makes a series of conditional claims, not an assertion. So Kant is not committed to the view that all feelings are qualitatively the same. The passage concerning sensation in the Critique of Judgment has to be read as saying that if all sensations were "objective" there would be the problem of commitment to hedonism following automatically. In section 5 of the Critique of Judgment Kant distinguishes specific feelings by means of form and Rueger argued that around 1783-4, whilst composing the Groundwork, Kant came to the view that the moral law requires its own kind of incentive which means he leaves behind his earlier more sentimentalist view of feeling at this time.
The final paper of the conference was a second joint presentation, this time from B. Sharon Byrd and Joachim Hruschka that concerned the passage in the Doctrine of Right where Kant marks the transition from the state of nature to the juridical state (section 41). The paper articulated a very technical set of distinctions that supported the general argument of their recently published commentary on the Doctrine of Right and included a distinction between two forms of the state of nature, one "original" and one "adventitious". This paper was an excellent conclusion to the conference and showed clearly some of the advantages of its theme.
Saturday, 6 August 2011
The Kantian Interpretation of 'Justice As Fairness'
Chapter IV of A Theory of Justice concludes with the central section 40 that discusses the sense in which Rawls takes it to be the case that 'justice as fairness' can be given a 'Kantian interpretation'. There is a great deal worthy of comment in this very rich section, not least with regard to how it both explicates a lot of Rawls' view and raises some important points about the Kantian implications of it.
The section opens by relating the general view of justice Rawls has set out to the Kantian conception of autonomy and emphasizes this conception over the place of universality and generality in Kant's ethics. The downgrading of the importance of universal law follows from an acceptance on Rawls' part of the force of the Hegelian objection of the "triviality" of the focus on universal law (although Hegel is not explicitly here referred to). In some respects this is surprising given the account Rawls gives subsequently of the "categorical imperative procedure" and is certainly not in accord with the work later done by constructivist interpreters of Kant.
However, whilst the downgrading of emphasis on universal law has problematic elements in it, there is also one basis for it that is creditable to Rawls and this is his intention to pay attention to the full scope of Kant's ethical view, a point made in an important footnote where Rawls wishes to distinguish Kant's view from the utilitarian conception of universality and attempts to easily reconcile Kant with utilitarian considerations. In making this point Rawls points, in a way that until extremely recently was unusual, at Kant's later ethical writings, particularly the Metaphysics of Morals although he also mentions the moral significance of Kant's works on religion and even refers to the Critique of Judgment. In the course of making this comment Rawls states that there was, at the time of writing Theory, 'no commentary on Kant's theory as a whole", adding, 'perhaps it would prove impossible to write'. Without saying that the work has addressed all elements of Kant's theory, since I am now certainly aware of a number that it does not, I think I can, without undue immodesty, point now to my own book, Kant's Practical Philosophy as covering rather more ground than any of the works Rawls here cites and going at least someway to disproving his pessimism concerning the possibility of addressing the ramifications of the whole theory.
Returning to the main text of section 40, Rawls' substantive philosophical point is to articulate the sense in which Kant makes moral principles objects of rational choice so that moral philosophy becomes the study of "the conception and outcome of a suitably defined rational decision". One of the points that Rawls derives from this is that understanding the point of legislation in relation to the kingdom of ends leads as a matter of course to the centrality of public principles although he neglects here to discuss the differing formulas of publicity Kant offers in Perpetual Peace. Free and equal rational beings are also presupposed in Kant's moral legislation.
Rawls articulates the original position as a way of realising the legislation of the kingdom of ends. One of the supporting considerations for this philosophical interpretation of the reference to the kingdom of ends is that Kant wishes to exclude heteronomous motivation and the adoption of the "veil of ignorance" ensures that the methodology of the original position maps this constraint. Effectively the ruling out of heteronomy is understood to require what Rawls earlier referred to as the formal constraints of right and the "veil of ignorance" is a means to ensure these formal constraints are met.
However, as Rawls goes on to add, there are additional elements in his construction that Kant does not refer to. One of the central ones is that of the basic structure although in referring to this Rawls neglects to follow the admonition of his own footnote since he doesn't mention here the formation of the basis of a state of right in Kant's Doctrine of Right but he does indicate generally that when all Kant's ethical writings are taken together something like the basic structure can be seen to emerge.
The principles of justice are also suggested to be analogous to the categorical imperative again when the latter is viewed primarily as a constraint that applies to persons understood as purely free, equal and rational. Just as the exclusion of heteronomy is mirrored in the "veil of ignorance" so also is the adoption of specific ends as required in hypothetical imperatives. However, Rawls does retain the notion of primary goods although he does assume these arise only from the most general assumptions about rationality and human conditions. The assumption of motivations in the original condition was also one of general mutual disinterest and this is again mapped in relation to the Kantian conception of autonomy.
Having made these points Rawls follows Sidgwick in identifying a problem with Kantian ethics, a 'problem' first articulated in the 'appendix' to the latter's Methods of Ethics. The 'problem' concerns an alleged ambiguity in Kant's view of freedom as on the one hand it is understood as a basis of choice whilst on the other it is also argued that choice of the law indicates a manifestation of freedom itself. This 'problem' has been examined at length since Rawls wrote this section of Theory with extensive accounts of the different types of freedom in Kant being undertaken by, for example, Henry Allison in his important book Kant's Theory of Freedom (amongst many other key treatments). It is a matter of distinguishing different ways in which Kant understands freedom that allows for the argument that "the scoundrel" as Rawls puts it does not realise freedom in the same sense as the one following the law and is far from being, as Rawls, following Sidgwick, thinks, a "decisive objection" to the Kantian view of freedom. Rawls says that Kant does not show "that acting from the moral law expresses our nature in identifiable ways that acting from contrary principles does not" but this is a mere assertion on Rawls' part since he does nothing to examine the evidence here.
It is likely far from being Rawls' case to engage Kant on this point since he wishes instead to articulate the original position as making good the alleged lack in Kant's view. Saying this does mean that the original position is taken to be an analogue to the noumenal view of choice with built-in constraints showing the ground for rational decision. In saying this however Rawls effectively reprises again the argument Kant gives not of moral choice in relation to autonomy but instead free choice in relation to right showing a surprising confusion of levels in Kantian theory afflicts Rawls' account. The description of the original position does not, as he claims, replicate that of noumenal freedom. Instead it replicates the contract position of right showing the ground for the restriction of external freedom being what can also realise it (the argument of his own previous two sections).
Rawls however is right to present Kant's view as one in which liberty is acting in accord with a law we give ourselves and that the understanding of shame, in Kant, is precisely one in which we fail to live up to such an ideal. The comprehension of Kant's view as an ethic of mutual respect is correct. The original position is presented in general by Rawls as a procedural interpretation of autonomy and the categorical imperative "within the framework of an empirical theory". One of the consequences of this is that Rawls does not investigate the notion that there is such a thing as pure practical reason. Another is that he conflates conditions of right with conditions of noumenal freedom. A third is that Kant's transcendental view is presented by Rawls as "transcendent", a mistake that is particularly striking. Finally, Rawls' view is explicitly distinguished from Kant's in the sense that whilst Kant's view applies to rational beings as such, Rawls' view is only meant to apply to human beings. The basic result of this is that Rawls gives up on providing a general theory of normativity or practical reason. One of the reasons for this is that Rawls wishes to give up on Kant's "dualisms", something that shows the philosophical modesty of Rawls' view. This modesty involves abstraction from central philosophical problems, an abstraction that much recent moral philosophy has, in my view rightly, given up on. The revival of more ambitious and comprehensive theories of practical reason is a return to the view of it that contemporary philosophers share with Kant and shows that the influence of Rawls on a central element of philosophy has waned.
The section opens by relating the general view of justice Rawls has set out to the Kantian conception of autonomy and emphasizes this conception over the place of universality and generality in Kant's ethics. The downgrading of the importance of universal law follows from an acceptance on Rawls' part of the force of the Hegelian objection of the "triviality" of the focus on universal law (although Hegel is not explicitly here referred to). In some respects this is surprising given the account Rawls gives subsequently of the "categorical imperative procedure" and is certainly not in accord with the work later done by constructivist interpreters of Kant.
However, whilst the downgrading of emphasis on universal law has problematic elements in it, there is also one basis for it that is creditable to Rawls and this is his intention to pay attention to the full scope of Kant's ethical view, a point made in an important footnote where Rawls wishes to distinguish Kant's view from the utilitarian conception of universality and attempts to easily reconcile Kant with utilitarian considerations. In making this point Rawls points, in a way that until extremely recently was unusual, at Kant's later ethical writings, particularly the Metaphysics of Morals although he also mentions the moral significance of Kant's works on religion and even refers to the Critique of Judgment. In the course of making this comment Rawls states that there was, at the time of writing Theory, 'no commentary on Kant's theory as a whole", adding, 'perhaps it would prove impossible to write'. Without saying that the work has addressed all elements of Kant's theory, since I am now certainly aware of a number that it does not, I think I can, without undue immodesty, point now to my own book, Kant's Practical Philosophy as covering rather more ground than any of the works Rawls here cites and going at least someway to disproving his pessimism concerning the possibility of addressing the ramifications of the whole theory.
Returning to the main text of section 40, Rawls' substantive philosophical point is to articulate the sense in which Kant makes moral principles objects of rational choice so that moral philosophy becomes the study of "the conception and outcome of a suitably defined rational decision". One of the points that Rawls derives from this is that understanding the point of legislation in relation to the kingdom of ends leads as a matter of course to the centrality of public principles although he neglects here to discuss the differing formulas of publicity Kant offers in Perpetual Peace. Free and equal rational beings are also presupposed in Kant's moral legislation.
Rawls articulates the original position as a way of realising the legislation of the kingdom of ends. One of the supporting considerations for this philosophical interpretation of the reference to the kingdom of ends is that Kant wishes to exclude heteronomous motivation and the adoption of the "veil of ignorance" ensures that the methodology of the original position maps this constraint. Effectively the ruling out of heteronomy is understood to require what Rawls earlier referred to as the formal constraints of right and the "veil of ignorance" is a means to ensure these formal constraints are met.
However, as Rawls goes on to add, there are additional elements in his construction that Kant does not refer to. One of the central ones is that of the basic structure although in referring to this Rawls neglects to follow the admonition of his own footnote since he doesn't mention here the formation of the basis of a state of right in Kant's Doctrine of Right but he does indicate generally that when all Kant's ethical writings are taken together something like the basic structure can be seen to emerge.
The principles of justice are also suggested to be analogous to the categorical imperative again when the latter is viewed primarily as a constraint that applies to persons understood as purely free, equal and rational. Just as the exclusion of heteronomy is mirrored in the "veil of ignorance" so also is the adoption of specific ends as required in hypothetical imperatives. However, Rawls does retain the notion of primary goods although he does assume these arise only from the most general assumptions about rationality and human conditions. The assumption of motivations in the original condition was also one of general mutual disinterest and this is again mapped in relation to the Kantian conception of autonomy.
Having made these points Rawls follows Sidgwick in identifying a problem with Kantian ethics, a 'problem' first articulated in the 'appendix' to the latter's Methods of Ethics. The 'problem' concerns an alleged ambiguity in Kant's view of freedom as on the one hand it is understood as a basis of choice whilst on the other it is also argued that choice of the law indicates a manifestation of freedom itself. This 'problem' has been examined at length since Rawls wrote this section of Theory with extensive accounts of the different types of freedom in Kant being undertaken by, for example, Henry Allison in his important book Kant's Theory of Freedom (amongst many other key treatments). It is a matter of distinguishing different ways in which Kant understands freedom that allows for the argument that "the scoundrel" as Rawls puts it does not realise freedom in the same sense as the one following the law and is far from being, as Rawls, following Sidgwick, thinks, a "decisive objection" to the Kantian view of freedom. Rawls says that Kant does not show "that acting from the moral law expresses our nature in identifiable ways that acting from contrary principles does not" but this is a mere assertion on Rawls' part since he does nothing to examine the evidence here.
It is likely far from being Rawls' case to engage Kant on this point since he wishes instead to articulate the original position as making good the alleged lack in Kant's view. Saying this does mean that the original position is taken to be an analogue to the noumenal view of choice with built-in constraints showing the ground for rational decision. In saying this however Rawls effectively reprises again the argument Kant gives not of moral choice in relation to autonomy but instead free choice in relation to right showing a surprising confusion of levels in Kantian theory afflicts Rawls' account. The description of the original position does not, as he claims, replicate that of noumenal freedom. Instead it replicates the contract position of right showing the ground for the restriction of external freedom being what can also realise it (the argument of his own previous two sections).
Rawls however is right to present Kant's view as one in which liberty is acting in accord with a law we give ourselves and that the understanding of shame, in Kant, is precisely one in which we fail to live up to such an ideal. The comprehension of Kant's view as an ethic of mutual respect is correct. The original position is presented in general by Rawls as a procedural interpretation of autonomy and the categorical imperative "within the framework of an empirical theory". One of the consequences of this is that Rawls does not investigate the notion that there is such a thing as pure practical reason. Another is that he conflates conditions of right with conditions of noumenal freedom. A third is that Kant's transcendental view is presented by Rawls as "transcendent", a mistake that is particularly striking. Finally, Rawls' view is explicitly distinguished from Kant's in the sense that whilst Kant's view applies to rational beings as such, Rawls' view is only meant to apply to human beings. The basic result of this is that Rawls gives up on providing a general theory of normativity or practical reason. One of the reasons for this is that Rawls wishes to give up on Kant's "dualisms", something that shows the philosophical modesty of Rawls' view. This modesty involves abstraction from central philosophical problems, an abstraction that much recent moral philosophy has, in my view rightly, given up on. The revival of more ambitious and comprehensive theories of practical reason is a return to the view of it that contemporary philosophers share with Kant and shows that the influence of Rawls on a central element of philosophy has waned.
Friday, 5 August 2011
Rawls on the Rule of Law and the Priority of Liberty
Sections 38 and 39 of Chapter IV of A Theory of Justice focus, after the previous discussion of the principle of participation, on the relationship between law and liberty. Section 38 discusses the notion of the rule of law, drawing out from the idea the basis under which rights are protected by law. Section 39 then follows up with a discussion of how the account of the rule of law affects the formulation of the first principle of justice and concludes with a re-statement of this first principle in the light of the discussion.
Rawls' account in section 38 opens with a description of the most basic element of the legal system, the view that there has to be 'impartial and regular' administration of public rules. Rawls describes this as "justice as regularity" but, whilst it appears the most formal part of the legal system, he includes within its correct functioning ways in which subtle bias are undermined or prevented from having more than limited effect so its scope is wider than is often included in formal views of law.
Law creates, as Rawls puts it, 'legitimate expectations' for social cooperation, including forming the basis for mutual trust. Law effectively "defines" the basic structure of a society so is fundamental to Rawls' conception. The rules that we term "laws" are also public and are governed by some precepts that are further built into the conception of justice as regularity. Included amongst these precepts are the assumptions that ought implies can; similar cases are treated similarly; there is no offense without a law and the precepts of natural justice. "Ought implies can", an important Kantian notion, is interpreted here legalistically to imply that legal systems cannot ask us to perform impossible actions. It includes a sense within it that laws are framed in "good faith" with regard to this assumption. The rule requiring similarity of treatment with regard to similar cases limits judicial discretion and sets the basis for precedents to build up into a general pattern. The central element of this second rule is the importance of 'consistency' just as the first rule was formulated by reference to 'good faith'. The third rule relates back to the point about publicity indicating that laws have to be general in statement and intent and not retroactive in application. Rules of natural justice require due process, impartiality of legal application, fairness of procedure and regular maintenance of rules.
The general conception of justice as regularity thus contains a great deal more than pure references to "formality" alone might suggest. After making this clear Rawls turns to the relationship of the rule of law to liberty. Without clear specification of what the law permits, for example, liberty is insecure. This helps to show that the desire for liberty is central to a functional legal system that is regular in application. This regularity of the legal system secures stability in social arrangements, not least with regard to penal sanctions for bad conduct and the understanding of what the latter consists in. This is the general point of all contractarian reasoning, going back to Hobbes.
Liberty is protected best by impartial and regular administration of law. On the basis of this regularity citizens have a plan for how to operate. One of the things that follows from Rawls' way of comprehending the legal system as based on securing liberty is that punishment is not seen by him (as some allege it is by Kant) as primarily retributive in point. Rather, punishment is connected to liberty in terms of responsibility being the ground on which we can trust each other to act. Since punishment is viewed in this way by Rawls it is to be expected that his account of it would differ later in substantive ways from Kant's but, unfortunately, little is really said by Rawls about this topic in Theory.
The only real point raised in section 38 concerns the way that liberties might have to be restricted more than one would wish in ideal circumstances in order to be better realised in non-ideal conditions. This point is referred to with regard to how the provisions of justice as regularity might have to be relaxed in emergency conditions. However, the point of any such relaxation would only be the better thereby to base equal liberties on the good of the representative citizen.
Section 39 turns to the further definition of the priority of liberty. Liberty can only be restricted for its own sake, as followed from the argument of section 38. But it can be restricted in two distinct ways. The first way would be that the basic liberties, whilst being equal, may be more or less extensive in range. The second way would be that the basic liberties may remain extensive but be unequally applied. If the first way is taken then the lesser extensiveness of the liberties has itself to be justified by reference to the gain of freedom of the representative citizen. On the other hand if liberties are unequally applied then the freedom of those with lesser liberty has to be all the better secured this way.
Restrictions on liberty can be grounded either on natural limitations or on contingencies of historical or social sort. Natural limitations affect the situation of children for example whilst contingencies of various sorts restrict freedom of speech (for example). However these points are distinguished by Rawls from the non-ideal circumstances in which there is injustice existent in various ways.
Rawls' general point is to consider the basis of restrictions on liberty of the two sorts indicated and to show that these restrictions cannot be such as to undermine the priority of liberty. Regulation of liberty of speech, for example, restricts liberty in various ways but it can be done in ways that are not unequal in application so such a kind of limitation can effectively be assimilated to a natural constraint despite having contingent ways of presenting itself.
Unequal liberties, if administered, by contrast, clearly show injustice exists but can still be regulated in such a way that the most important liberties are most equally allowed. This involves Rawls discussing paternalism as the real basis of inequality of liberties is a certain kind of paternalistic concern but such concern has to be guided by a theory of primary goods and by an understanding of real preferences. The discussion thus culminates with the restatement of the first principle of justice now given in a way that strikingly resembles Kant's universal principle of right in the Doctrine of Right (Ak. 6: 230). Rawls' first principle now reads: "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all". However this new formulation of the first principle of justice is accompanied now by the 'priority rule' which indicates not just that the principles of justice are in lexical order and that liberty, hence, can only be restricted for its own sake. It also indicates the two cases in which such restrictions are plausible. There is, as yet, no systematic argument given for the priority of liberty and Rawls postpones this to section 82, towards the conclusion of Theory.
Rawls' account in section 38 opens with a description of the most basic element of the legal system, the view that there has to be 'impartial and regular' administration of public rules. Rawls describes this as "justice as regularity" but, whilst it appears the most formal part of the legal system, he includes within its correct functioning ways in which subtle bias are undermined or prevented from having more than limited effect so its scope is wider than is often included in formal views of law.
Law creates, as Rawls puts it, 'legitimate expectations' for social cooperation, including forming the basis for mutual trust. Law effectively "defines" the basic structure of a society so is fundamental to Rawls' conception. The rules that we term "laws" are also public and are governed by some precepts that are further built into the conception of justice as regularity. Included amongst these precepts are the assumptions that ought implies can; similar cases are treated similarly; there is no offense without a law and the precepts of natural justice. "Ought implies can", an important Kantian notion, is interpreted here legalistically to imply that legal systems cannot ask us to perform impossible actions. It includes a sense within it that laws are framed in "good faith" with regard to this assumption. The rule requiring similarity of treatment with regard to similar cases limits judicial discretion and sets the basis for precedents to build up into a general pattern. The central element of this second rule is the importance of 'consistency' just as the first rule was formulated by reference to 'good faith'. The third rule relates back to the point about publicity indicating that laws have to be general in statement and intent and not retroactive in application. Rules of natural justice require due process, impartiality of legal application, fairness of procedure and regular maintenance of rules.
The general conception of justice as regularity thus contains a great deal more than pure references to "formality" alone might suggest. After making this clear Rawls turns to the relationship of the rule of law to liberty. Without clear specification of what the law permits, for example, liberty is insecure. This helps to show that the desire for liberty is central to a functional legal system that is regular in application. This regularity of the legal system secures stability in social arrangements, not least with regard to penal sanctions for bad conduct and the understanding of what the latter consists in. This is the general point of all contractarian reasoning, going back to Hobbes.
Liberty is protected best by impartial and regular administration of law. On the basis of this regularity citizens have a plan for how to operate. One of the things that follows from Rawls' way of comprehending the legal system as based on securing liberty is that punishment is not seen by him (as some allege it is by Kant) as primarily retributive in point. Rather, punishment is connected to liberty in terms of responsibility being the ground on which we can trust each other to act. Since punishment is viewed in this way by Rawls it is to be expected that his account of it would differ later in substantive ways from Kant's but, unfortunately, little is really said by Rawls about this topic in Theory.
The only real point raised in section 38 concerns the way that liberties might have to be restricted more than one would wish in ideal circumstances in order to be better realised in non-ideal conditions. This point is referred to with regard to how the provisions of justice as regularity might have to be relaxed in emergency conditions. However, the point of any such relaxation would only be the better thereby to base equal liberties on the good of the representative citizen.
Section 39 turns to the further definition of the priority of liberty. Liberty can only be restricted for its own sake, as followed from the argument of section 38. But it can be restricted in two distinct ways. The first way would be that the basic liberties, whilst being equal, may be more or less extensive in range. The second way would be that the basic liberties may remain extensive but be unequally applied. If the first way is taken then the lesser extensiveness of the liberties has itself to be justified by reference to the gain of freedom of the representative citizen. On the other hand if liberties are unequally applied then the freedom of those with lesser liberty has to be all the better secured this way.
Restrictions on liberty can be grounded either on natural limitations or on contingencies of historical or social sort. Natural limitations affect the situation of children for example whilst contingencies of various sorts restrict freedom of speech (for example). However these points are distinguished by Rawls from the non-ideal circumstances in which there is injustice existent in various ways.
Rawls' general point is to consider the basis of restrictions on liberty of the two sorts indicated and to show that these restrictions cannot be such as to undermine the priority of liberty. Regulation of liberty of speech, for example, restricts liberty in various ways but it can be done in ways that are not unequal in application so such a kind of limitation can effectively be assimilated to a natural constraint despite having contingent ways of presenting itself.
Unequal liberties, if administered, by contrast, clearly show injustice exists but can still be regulated in such a way that the most important liberties are most equally allowed. This involves Rawls discussing paternalism as the real basis of inequality of liberties is a certain kind of paternalistic concern but such concern has to be guided by a theory of primary goods and by an understanding of real preferences. The discussion thus culminates with the restatement of the first principle of justice now given in a way that strikingly resembles Kant's universal principle of right in the Doctrine of Right (Ak. 6: 230). Rawls' first principle now reads: "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all". However this new formulation of the first principle of justice is accompanied now by the 'priority rule' which indicates not just that the principles of justice are in lexical order and that liberty, hence, can only be restricted for its own sake. It also indicates the two cases in which such restrictions are plausible. There is, as yet, no systematic argument given for the priority of liberty and Rawls postpones this to section 82, towards the conclusion of Theory.
Tuesday, 12 July 2011
Rawls on Toleration and Equal Liberty
After the opening account of the "constitutional convention" that I discussed in my previous posting Rawls turns next in Chapter IV of Theory to a description of equal liberty of conscience that leads in to an account of toleration. Chapter IV is concerned as a whole with "equal liberty" so this concentration is one we should expect to emerge here.
When the device of the "original position" was invoked it was for the purpose of ensuring that principles of justice chosen would definitely not be based on considerations that uniquely favoured given parties. In fact, Rawls even assumes that the problem of future generations can be addressed by means of the device. In relation to the latter problem, the invocation of equal liberty has a special pertinence since it ensures the integrity not only of the parties in the position but continuing lines of descent from it. Rawls even goes so far as to claim that equal liberty of conscience is "the only principle" that the persons in the original condition can acknowledge by which he seems to mean the only one that they can agree to as a condition of anything (and everything) else.
Even were the parties in the "original position" convinced that the principle of utility need not compromise liberty still they could see the point of adopting the principle of equal liberty first in any case. This points to a way that the parties in the "original position" would be prompted to consider pluralist or "mixed" doctrines rather than the allegedly "monistic" one of utilitarianism. Further the principle of equal liberty of conscience meets the criterion of finality as it is not a principle, once adopted, that can be bent in favour of something else. The "veil of ignorance" strengthens the case for its adoption since it ensures one has no means of knowing whether one would have views that were in the majority.
The discussion of future generations furthers the case for equal liberty since the adoption of the principle is one that members of other generations can be assumed to also desire for the same reason that parties in the original position would do so. It also meets the test of a reasonable paternalism in being a principle that we can assume those under our guardianship would adopt on attainment of the age of reason.
Having presented the basic argument for the principle of equal liberty Rawls goes on to discuss toleration. Liberty of conscience is something that can be restricted under special circumstances that involve severe threats to public order and security. However these are the only conditions as there is nothing in political authority strictly considered that provides it with competence in other domains. The restriction of liberty in the severe circumstances mentioned would be accepted within the original position since disruption of the conditions of liberty is a danger to all. Hence restriction in these cases is an "enabling right" in relation to the provision of liberty itself.
It follows from this point that toleration is a general consequence of the acceptance of the principle of equal liberty. Hence granting it is granting something that is just, denying it is unjust. As Rawls puts it in a very Kantian formula: "Liberty is governed by the necessary conditions for liberty itself". This formula echoes the universal principle of right in the Doctrine of Right that referred to freedom in accordance with a universal law so that "the freedom of choice of each can coexist with everyone's freedom" (Ak. 6: 230).
After arriving at this point Rawls concludes by providing some reasons why toleration should even extend to the intolerant despite the fact that intolerant groups would have no right to complain where toleration not to be extended to them. No particular view of religious truth can be accepted in the original position so there is no basis for anyone thinking that their own views have any privileged status. One of the nice points Rawls makes in this connection is that even the intolerant principle that all should obey the injunctions of God at the expense of anything else is indeterminate in the sense that no one has a status that politically can enable them to determine what these injunctions consist in.
The political basis for toleration of the intolerant consists, fundamentally, however, in the stability of just institutions in the sense that they reproduce adherence to themselves. This psychological truth about just institutions is one that should give members of a well-ordered society confidence in these institutions. The only case in which the intolerant have toleration withdrawn are where their intolerance poses danger to the whole body politic (and hence this is not a special principle applied to the intolerant).
When the device of the "original position" was invoked it was for the purpose of ensuring that principles of justice chosen would definitely not be based on considerations that uniquely favoured given parties. In fact, Rawls even assumes that the problem of future generations can be addressed by means of the device. In relation to the latter problem, the invocation of equal liberty has a special pertinence since it ensures the integrity not only of the parties in the position but continuing lines of descent from it. Rawls even goes so far as to claim that equal liberty of conscience is "the only principle" that the persons in the original condition can acknowledge by which he seems to mean the only one that they can agree to as a condition of anything (and everything) else.
Even were the parties in the "original position" convinced that the principle of utility need not compromise liberty still they could see the point of adopting the principle of equal liberty first in any case. This points to a way that the parties in the "original position" would be prompted to consider pluralist or "mixed" doctrines rather than the allegedly "monistic" one of utilitarianism. Further the principle of equal liberty of conscience meets the criterion of finality as it is not a principle, once adopted, that can be bent in favour of something else. The "veil of ignorance" strengthens the case for its adoption since it ensures one has no means of knowing whether one would have views that were in the majority.
The discussion of future generations furthers the case for equal liberty since the adoption of the principle is one that members of other generations can be assumed to also desire for the same reason that parties in the original position would do so. It also meets the test of a reasonable paternalism in being a principle that we can assume those under our guardianship would adopt on attainment of the age of reason.
Having presented the basic argument for the principle of equal liberty Rawls goes on to discuss toleration. Liberty of conscience is something that can be restricted under special circumstances that involve severe threats to public order and security. However these are the only conditions as there is nothing in political authority strictly considered that provides it with competence in other domains. The restriction of liberty in the severe circumstances mentioned would be accepted within the original position since disruption of the conditions of liberty is a danger to all. Hence restriction in these cases is an "enabling right" in relation to the provision of liberty itself.
It follows from this point that toleration is a general consequence of the acceptance of the principle of equal liberty. Hence granting it is granting something that is just, denying it is unjust. As Rawls puts it in a very Kantian formula: "Liberty is governed by the necessary conditions for liberty itself". This formula echoes the universal principle of right in the Doctrine of Right that referred to freedom in accordance with a universal law so that "the freedom of choice of each can coexist with everyone's freedom" (Ak. 6: 230).
After arriving at this point Rawls concludes by providing some reasons why toleration should even extend to the intolerant despite the fact that intolerant groups would have no right to complain where toleration not to be extended to them. No particular view of religious truth can be accepted in the original position so there is no basis for anyone thinking that their own views have any privileged status. One of the nice points Rawls makes in this connection is that even the intolerant principle that all should obey the injunctions of God at the expense of anything else is indeterminate in the sense that no one has a status that politically can enable them to determine what these injunctions consist in.
The political basis for toleration of the intolerant consists, fundamentally, however, in the stability of just institutions in the sense that they reproduce adherence to themselves. This psychological truth about just institutions is one that should give members of a well-ordered society confidence in these institutions. The only case in which the intolerant have toleration withdrawn are where their intolerance poses danger to the whole body politic (and hence this is not a special principle applied to the intolerant).
Saturday, 19 March 2011
Rawls and Distributive Justice (I)
In the series of postings I have been doing on Rawls I've been gradually working through the chapters of his Collected Papers but intend to disrupt this when we get to the point that A Theory of Justice is published. But I've now reached his 1967 paper on "Distributive Justice" which seems to me to be worth more than one posting and is, in any case followed by another paper of "addenda" to the original.
In this 1967 paper Rawls introduces the notion of the "veil of ignorance" for the first time, some 4 years after he first described the "original position". The first interesting thing about this paper is the way the first sentence describes human society as "a more or less self-sufficient association" thereby implicitly aligning political life in general with the notion of association. It's also worthy of note that Rawls points out instantly that society, is characterized as much by conflict as identity of interests and that it is this that requires some kind of equilibrium point to be aimed at.
After making these opening points Rawls quickly dispatches utilitarianism as a possible standard for social arrangements, not least because a loss of freedom for some is not made right by a general sum of advantages for others. This prompts him to specifically present his own doctrine, by contrast to the utilitarian one, as contractarian. It is after this that Rawls discusses original agreement and mentions the "veil of ignorance" for the first time. However, despite invoking this notion, Rawls makes as yet little use of it, mentioning for example that he will not here attempt to show that his two principles of justice would be chosen in the original position (thus the "veil of ignorance" lacks, as yet, methodological significance).
The two principles of justice that Rawls subsequently introduces are, however, themselves more detailed than previously though the principle of liberty continues to have a clear connection to Kant's supreme principle of right. The second principle is more detailed and reads as follows:
This second principle clearly comes in two parts with the second part being one of openness to talents. The notion that inequalities are only to be tolerated if they are to the advantage of the "representative man" opens some significant questions.
Rawls is clearly aware of this and mentions at this point Hume's influential critique of social contract theory which was to the effect that criteria of the kind invoked in the second principle turn out not to be meaningful since, it is quite conceivable, that even slaves are "better off" in some sense than they would be in a state of nature. Rawls also mentions the emptiness of assessing social outcomes on the grounds of efficiency alone as appears occurs on Pareto optimality criteria. So justice has to be clearly distinguished from efficiency.
In responding to these points Rawls makes a key modification of the second principle in favour not of the "representative man" in some general sense but rather in relation to the "least advantaged" and in so doing he describes, for the first time, the first part of the second principle as the "difference principle". It is the "most unfortunate representative man" to whom we have to justify inequalities now. By this means Rawls aims to meet the standards of efficiency in the sense of attaining a sense of Pareto optimality and marrying it to the standard of justice.
In this 1967 paper Rawls introduces the notion of the "veil of ignorance" for the first time, some 4 years after he first described the "original position". The first interesting thing about this paper is the way the first sentence describes human society as "a more or less self-sufficient association" thereby implicitly aligning political life in general with the notion of association. It's also worthy of note that Rawls points out instantly that society, is characterized as much by conflict as identity of interests and that it is this that requires some kind of equilibrium point to be aimed at.
After making these opening points Rawls quickly dispatches utilitarianism as a possible standard for social arrangements, not least because a loss of freedom for some is not made right by a general sum of advantages for others. This prompts him to specifically present his own doctrine, by contrast to the utilitarian one, as contractarian. It is after this that Rawls discusses original agreement and mentions the "veil of ignorance" for the first time. However, despite invoking this notion, Rawls makes as yet little use of it, mentioning for example that he will not here attempt to show that his two principles of justice would be chosen in the original position (thus the "veil of ignorance" lacks, as yet, methodological significance).
The two principles of justice that Rawls subsequently introduces are, however, themselves more detailed than previously though the principle of liberty continues to have a clear connection to Kant's supreme principle of right. The second principle is more detailed and reads as follows:
inequalities as defined by the institutional structure or fostered by it are arbitrary unless it is reasonable to expect that they will work out to everyone's advantage and provided that the positions and offices to which they attach or from which they may be gained are open to all
This second principle clearly comes in two parts with the second part being one of openness to talents. The notion that inequalities are only to be tolerated if they are to the advantage of the "representative man" opens some significant questions.
Rawls is clearly aware of this and mentions at this point Hume's influential critique of social contract theory which was to the effect that criteria of the kind invoked in the second principle turn out not to be meaningful since, it is quite conceivable, that even slaves are "better off" in some sense than they would be in a state of nature. Rawls also mentions the emptiness of assessing social outcomes on the grounds of efficiency alone as appears occurs on Pareto optimality criteria. So justice has to be clearly distinguished from efficiency.
In responding to these points Rawls makes a key modification of the second principle in favour not of the "representative man" in some general sense but rather in relation to the "least advantaged" and in so doing he describes, for the first time, the first part of the second principle as the "difference principle". It is the "most unfortunate representative man" to whom we have to justify inequalities now. By this means Rawls aims to meet the standards of efficiency in the sense of attaining a sense of Pareto optimality and marrying it to the standard of justice.
Thursday, 17 March 2011
Rawls, Fair Play and Legal Obligation
In his 1964 paper entitled "Legal Obligation and the Duty of Fair Play" Rawls investigates the question of the relationship between law and morality. The question is investigated from the standpoint of the claim that the moral obligation to obey the law "is a special case of the prima facie duty of fair play".
In making this claim Rawls rules out the suggestion that legal obligation could be grounded on a specific principle of its own, not least because, he states, no one wishes to argue this. This point is made rather swiftly and seems to indicate that Rawls could conceive of no form of jurisprudence that attempted to find legal obligation to be of independent standing.
The next point that is raised is the sense of "obligation" that is implied in claiming that there is a moral obligation to obey the law and Rawls claims that the sense of obligation in question is one connected to institutional rules but this apparently vacuous claim is grounded on a specific sense of an "institution" as something that is related to what he termed an "association" in the previous paper on the sense of justice. It is characterised, in other words, by "voluntary acts" in which obligations arise from others. This does imply the slightly odd view that legal obligations have been entered into voluntarily by us and indicates a kind of precedence of moral obligation in relation to law, an impression that is furthered by Rawls stating that crimes of violence are wrong "independently of there being a legal system", something surely true but which shows that law requires assent of a kind to moral principles to gain a footing in the first place. (The later debate with Habermas will partly concern this question.)
In looking further at the special questions arising from thinking about the law Rawls fills in details of a legal system that fits the bill of having a clear and, in a wide sense of the term, "voluntary", hold on us. The first point is that such a system has to satisfy the rule of law meaning that under its reign there are clear and public criteria and that "similar cases are treated similarly". The feature of the rule of law is central to the form of law rather than to specific legal contents. But Rawls also supposes that the legal order that claims such "voluntary" consent also belongs to a democratic system in the sense of ensuring equal citizenship, basic freedoms and general equality of the suffrage.
The discussion subsequently moves on to the question of how the moral obligation to obey the law works given that it appears to imply that we have obligations to obey laws we might think are unjust and even that obeying them will not produce good "overall". One of the points Rawls makes in looking at these apparent problems is that voting, as a basis for law-making, has no characteristics in itself that ensures the best decisions (or even good ones) will be made. It simply decides which policy will be put into effect. So constitutions create mechanisms by which conflicting views are brought to a resolution, one which need not at all settle the dispute in question. The invocation of the duty of "fair play" concerns precisely the basis for following the law in such a situation as we have an obligation not towards legislators but rather towards other citizens and it is the other citizens who have a basis for indignation if we do not follow the law. But this does require that the general constitutional procedures are themselves just.
It is to specify the basis for viewing such a constitution as just that Rawls subsequently proceeds and these bases turn out, perhaps unsurprisingly, to include adoption of his principles of equal liberty and the acceptance that inequality is arbitrary unless it can be shown to be to everyone's advantage. Under such conditions even a law that is unjust still mandates an obligation that it be followed. Noticeably, Rawls' conditions here are stricter than those Kant appears to adopt when discussing the problems with any claimed "right" to revolution in the Doctrine of Right. Kant's account is part of a general argument concerning the nature of right but it does not require anything like the second principle Rawls adopts.
Rawls next looks at the problem with viewing laws from the standpoint of net overall good rather than in terms of a general moral obligation to obey the law. The basic point of this discussion is to bring out problems with basing a system of justice on the principle of utility. Rawls states that unjust institutions cannot be identified by the principle of utility and that the obligation to obey the law cannot be overridden by this principle. However, Rawls confesses that to establish this claim would require "a deeper argument based on an analysis of the concept of right" and he does not give such an argument, a sense in which the argument of the essay does not reach the level of Kant's Doctrine of Right. Rather than provide such an account of the concept of right Rawls reverts back to the general point that to attribute to justice an absolute weight is to interpret the concept of right by means of the sense of justice as grounded in an initial position of equality (thus invoking the original position).
The general question of the obligation to obey the law is settled for Rawls by a series of tests including those that would look at the justice of the constitution, the depth of the injustice the law enacted, whether those enacting it wish the injustice to result and whether we can realistically hope to repeal the law. This already looks towards questions concerned with civil disobedience but these questions aren't here taken further.
The legal system generally is looked at in this essay as a system of social cooperation that requires equilibrium between conflicting claims. The essay seems thus to be something of an intermediate stage in Rawls' thinking as we need more detail yet of both the general conception of the social/legal system and of the means by which civil disobedience is to be understood.
In making this claim Rawls rules out the suggestion that legal obligation could be grounded on a specific principle of its own, not least because, he states, no one wishes to argue this. This point is made rather swiftly and seems to indicate that Rawls could conceive of no form of jurisprudence that attempted to find legal obligation to be of independent standing.
The next point that is raised is the sense of "obligation" that is implied in claiming that there is a moral obligation to obey the law and Rawls claims that the sense of obligation in question is one connected to institutional rules but this apparently vacuous claim is grounded on a specific sense of an "institution" as something that is related to what he termed an "association" in the previous paper on the sense of justice. It is characterised, in other words, by "voluntary acts" in which obligations arise from others. This does imply the slightly odd view that legal obligations have been entered into voluntarily by us and indicates a kind of precedence of moral obligation in relation to law, an impression that is furthered by Rawls stating that crimes of violence are wrong "independently of there being a legal system", something surely true but which shows that law requires assent of a kind to moral principles to gain a footing in the first place. (The later debate with Habermas will partly concern this question.)
In looking further at the special questions arising from thinking about the law Rawls fills in details of a legal system that fits the bill of having a clear and, in a wide sense of the term, "voluntary", hold on us. The first point is that such a system has to satisfy the rule of law meaning that under its reign there are clear and public criteria and that "similar cases are treated similarly". The feature of the rule of law is central to the form of law rather than to specific legal contents. But Rawls also supposes that the legal order that claims such "voluntary" consent also belongs to a democratic system in the sense of ensuring equal citizenship, basic freedoms and general equality of the suffrage.
The discussion subsequently moves on to the question of how the moral obligation to obey the law works given that it appears to imply that we have obligations to obey laws we might think are unjust and even that obeying them will not produce good "overall". One of the points Rawls makes in looking at these apparent problems is that voting, as a basis for law-making, has no characteristics in itself that ensures the best decisions (or even good ones) will be made. It simply decides which policy will be put into effect. So constitutions create mechanisms by which conflicting views are brought to a resolution, one which need not at all settle the dispute in question. The invocation of the duty of "fair play" concerns precisely the basis for following the law in such a situation as we have an obligation not towards legislators but rather towards other citizens and it is the other citizens who have a basis for indignation if we do not follow the law. But this does require that the general constitutional procedures are themselves just.
It is to specify the basis for viewing such a constitution as just that Rawls subsequently proceeds and these bases turn out, perhaps unsurprisingly, to include adoption of his principles of equal liberty and the acceptance that inequality is arbitrary unless it can be shown to be to everyone's advantage. Under such conditions even a law that is unjust still mandates an obligation that it be followed. Noticeably, Rawls' conditions here are stricter than those Kant appears to adopt when discussing the problems with any claimed "right" to revolution in the Doctrine of Right. Kant's account is part of a general argument concerning the nature of right but it does not require anything like the second principle Rawls adopts.
Rawls next looks at the problem with viewing laws from the standpoint of net overall good rather than in terms of a general moral obligation to obey the law. The basic point of this discussion is to bring out problems with basing a system of justice on the principle of utility. Rawls states that unjust institutions cannot be identified by the principle of utility and that the obligation to obey the law cannot be overridden by this principle. However, Rawls confesses that to establish this claim would require "a deeper argument based on an analysis of the concept of right" and he does not give such an argument, a sense in which the argument of the essay does not reach the level of Kant's Doctrine of Right. Rather than provide such an account of the concept of right Rawls reverts back to the general point that to attribute to justice an absolute weight is to interpret the concept of right by means of the sense of justice as grounded in an initial position of equality (thus invoking the original position).
The general question of the obligation to obey the law is settled for Rawls by a series of tests including those that would look at the justice of the constitution, the depth of the injustice the law enacted, whether those enacting it wish the injustice to result and whether we can realistically hope to repeal the law. This already looks towards questions concerned with civil disobedience but these questions aren't here taken further.
The legal system generally is looked at in this essay as a system of social cooperation that requires equilibrium between conflicting claims. The essay seems thus to be something of an intermediate stage in Rawls' thinking as we need more detail yet of both the general conception of the social/legal system and of the means by which civil disobedience is to be understood.
Tuesday, 25 January 2011
Kant, Sandel and Justice
Here in the UK Michael Sandel is hosting a series of TV programmes on the topic of justice, in accord with his Harvard course on the same topic and which was summarised in a different way in his recent book. Sandel's talent with public engagement cannot really be doubted. He is superb at bringing out how philosophical principles are already being tacitly invoked in daily arguments concerning politics and that such arguments do often involve commitments to views of the right and the good that are more substantial than many realize.
So my initial response to the TV programmes and to Sandel's general activity is a positive one as was indicated also today over at Crooked Timber by Chris Bertram. However, Bertram's enthusiasm for the series covered particularly the episode I saw last night and in which Sandel provided a contrast between Jeremy Bentham, Kant and Aristotle. This contrast covered a number of topics amongst which was the decision in Germany not to allow the firing down of an aircraft that it was alleged would have saved other lives. Bertram follows the lead Sandel offers in the programme to regard the decision as crazy.
I'll return to the case in a moment but, prior to looking at such a particular, I have a general problem with the nature of Sandel's focus. In a programme on justice it was somewhat odd that Sandel focused exclusively on Kant's moral theory, citing the categorical imperative as an impressive contrast with the principle of utility. The point of this contrast was basically to subsequently present Aristotle as providing in some sense recognition of what was valuable in both the previous approaches and how to supersede the limits of each. However, whilst it is certainly the case that utilitarianism has a notorious problem with recognising justice as a specific subject and is constitutionally opposed to the notion of "rights" it is a distortion to think that a Kantian approach to the topic of justice is based primarily on the categorical imperative.
Kant's response to the topic of justice is laid out in the Doctrine of Right, not in the Groundwork and the formula that guides the latter work is the supreme principle of right. This principle concentrates on the conditions of external freedom and in the context of the elaboration of his account of justice Kant defends conceptions of public and private right that are grounded in the principle in question and not directly upon the categorical imperative. Since Habermas makes a similar error about Kant's view of justice in his otherwise seminal work Between Facts and Norms this is hardly an unusual error but it is an error none the less and distorts any serious contrast between Kant and Aristotle. Aristotle, like Kant, distinguishes the subject matter of politics from that of ethics and does not approach politics, as Sandel suggests, just from the standpoint of virtue.
In the light of these failings Sandel resorted in the programme to a fairly standard process of presentation that turns on hard cases, something common in elementary ethics classes and not to be despised in itself. It was in this context that he made Peter Singer admit that the utilitarian conception of the right thing to do does always come down to quantitative analysis. Oddly, when he turned to Kant, whilst he did approach a thinker from a Kantian philosophical background, it was not someone that has comparable standing to Singer, but instead went to Carolin Emcke who, despite her philosophical training, works primarily as a journalist. To Emcke he put the "hard case" of the shooting down of an airplane and she affirmed the unconditional nature of the dignity of the persons in the plane. The constitutional judgment makes clear further the commitment to the sense of such dignity.
The case in question is intended by Sandel to show the lack of attention to consequences in Kantian theory but what it in fact shows is that a certain type of interpretation of Kantian theory refuses to allow consideration of consequences. The point was to have a sharp division between Kant and utilitarians on the basis that Kant can give no basis for attending to consequences whereas the utilitarians can give no value to anything other than consequences. In this context, however, and as I will be focusing on in future postings, it leaves aside the growing debate over the question of whether Kantian ethics is so constrained that it can give no room for consequences. I have argued previously that this is not so and that Kantian ethics does have to be seen as consequence-sensitive. Others have increasingly been arguing for a version of Kantian consequentialism and it is has become less clear than Sandel's standard presentation would suggest that this is oxymoronic. Incidentally the case of the airline is, in any case, less obviously a knock-down argument against a view of Kantian ethics that refuses to incorporate concern for consequences than might be thought. It requires complete certainly that 1) the airline would definitely otherwise crash into a target full of civilians and there is no way at all that the hijackers could change their mind or be persuaded to act differently and 2) that there is further no possibility at all that the plane could not be retrieved from the hijackers. Such conditions are rarely met.
So in conclusion the basic problems with Sandel's presentation were the following: 1) it conflated Kant's ethics with his approach to justice and as a consequence did not focus on its alleged topic; 2) the same also occurred with Aristotle; 3) it had an asymmetry in the nature of the "specialists" appealed to; 4) it neglected the possibility of a position that combined the polarities in ethics whilst still including central elements of both and was not Aristotelian; 5) it failed to include any serious criticism of the Aristotelian view or to pose any "hard cases" in respect of it.
Despite all this it was certainly a worthwhile programme and if proper philosophical contestation could have more place on TV then this would be all to the good. Sandel's model of public engagement is definitely worth attention and it would be great if more philosophers of many different persuasions could be taken on board with such an enterprise.
So my initial response to the TV programmes and to Sandel's general activity is a positive one as was indicated also today over at Crooked Timber by Chris Bertram. However, Bertram's enthusiasm for the series covered particularly the episode I saw last night and in which Sandel provided a contrast between Jeremy Bentham, Kant and Aristotle. This contrast covered a number of topics amongst which was the decision in Germany not to allow the firing down of an aircraft that it was alleged would have saved other lives. Bertram follows the lead Sandel offers in the programme to regard the decision as crazy.
I'll return to the case in a moment but, prior to looking at such a particular, I have a general problem with the nature of Sandel's focus. In a programme on justice it was somewhat odd that Sandel focused exclusively on Kant's moral theory, citing the categorical imperative as an impressive contrast with the principle of utility. The point of this contrast was basically to subsequently present Aristotle as providing in some sense recognition of what was valuable in both the previous approaches and how to supersede the limits of each. However, whilst it is certainly the case that utilitarianism has a notorious problem with recognising justice as a specific subject and is constitutionally opposed to the notion of "rights" it is a distortion to think that a Kantian approach to the topic of justice is based primarily on the categorical imperative.
Kant's response to the topic of justice is laid out in the Doctrine of Right, not in the Groundwork and the formula that guides the latter work is the supreme principle of right. This principle concentrates on the conditions of external freedom and in the context of the elaboration of his account of justice Kant defends conceptions of public and private right that are grounded in the principle in question and not directly upon the categorical imperative. Since Habermas makes a similar error about Kant's view of justice in his otherwise seminal work Between Facts and Norms this is hardly an unusual error but it is an error none the less and distorts any serious contrast between Kant and Aristotle. Aristotle, like Kant, distinguishes the subject matter of politics from that of ethics and does not approach politics, as Sandel suggests, just from the standpoint of virtue.
In the light of these failings Sandel resorted in the programme to a fairly standard process of presentation that turns on hard cases, something common in elementary ethics classes and not to be despised in itself. It was in this context that he made Peter Singer admit that the utilitarian conception of the right thing to do does always come down to quantitative analysis. Oddly, when he turned to Kant, whilst he did approach a thinker from a Kantian philosophical background, it was not someone that has comparable standing to Singer, but instead went to Carolin Emcke who, despite her philosophical training, works primarily as a journalist. To Emcke he put the "hard case" of the shooting down of an airplane and she affirmed the unconditional nature of the dignity of the persons in the plane. The constitutional judgment makes clear further the commitment to the sense of such dignity.
The case in question is intended by Sandel to show the lack of attention to consequences in Kantian theory but what it in fact shows is that a certain type of interpretation of Kantian theory refuses to allow consideration of consequences. The point was to have a sharp division between Kant and utilitarians on the basis that Kant can give no basis for attending to consequences whereas the utilitarians can give no value to anything other than consequences. In this context, however, and as I will be focusing on in future postings, it leaves aside the growing debate over the question of whether Kantian ethics is so constrained that it can give no room for consequences. I have argued previously that this is not so and that Kantian ethics does have to be seen as consequence-sensitive. Others have increasingly been arguing for a version of Kantian consequentialism and it is has become less clear than Sandel's standard presentation would suggest that this is oxymoronic. Incidentally the case of the airline is, in any case, less obviously a knock-down argument against a view of Kantian ethics that refuses to incorporate concern for consequences than might be thought. It requires complete certainly that 1) the airline would definitely otherwise crash into a target full of civilians and there is no way at all that the hijackers could change their mind or be persuaded to act differently and 2) that there is further no possibility at all that the plane could not be retrieved from the hijackers. Such conditions are rarely met.
So in conclusion the basic problems with Sandel's presentation were the following: 1) it conflated Kant's ethics with his approach to justice and as a consequence did not focus on its alleged topic; 2) the same also occurred with Aristotle; 3) it had an asymmetry in the nature of the "specialists" appealed to; 4) it neglected the possibility of a position that combined the polarities in ethics whilst still including central elements of both and was not Aristotelian; 5) it failed to include any serious criticism of the Aristotelian view or to pose any "hard cases" in respect of it.
Despite all this it was certainly a worthwhile programme and if proper philosophical contestation could have more place on TV then this would be all to the good. Sandel's model of public engagement is definitely worth attention and it would be great if more philosophers of many different persuasions could be taken on board with such an enterprise.
Sunday, 23 January 2011
Sandel, Kant and Patriotism
Michael Sandel has recently given an interview to Prospect magazine in which, amongst other things, he raises an objection against Kantian views of ethics and politics. The basic point Sandel makes is that since Kantian approaches turn on an appeal to universality that there are some key particulars that they cannot account for. The particular in question that Sandel refers to in this interview is patriotism. Sandel uses two examples to show the importance of this topic. The first example is Germany and the responsibility felt by contemporary Germans for the actions of their grand-parents, a responsibility felt to be of importance in matters both internal to the German states' organisation and also to its external relations. The second example is America and the notion, instilled within citizens of the US, that they each have a relationship to the constitution of the country and to central figures (such as Washington and Lincoln) in its history. In this case there is a relation to a positive self-image that is meant to transcend the particular circumstances of given individuals whose forebears might have been citizens of quite different polities.
Sandel's two examples are interesting both in themselves and in terms of the way they inflect his general question about patriotism. About a decade ago Pauline Kleingeld published an article in Philosophy and Public Affairs which responded to the general challenge Sandel has put again in his recent interview and did so by invoking the notion of "Kantian patriotism".
Since Philosophy and Public Affairs operates a pay-wall it is probably worth giving a quick summary of Kleingeld's argument in order to test its use as a response to Sandel. In brief, Kleingeld points out that patriotism does not have only one sense. She distinguishes between three different senses of the term. The first is "civic patriotism" which has an intrinsically political nature being concerned with shared political freedom and the institutions that sustain it. Such a form of patriotism is not based on ethnic traits but can embrace a reference to national traditions if they are based on political ones. This view is contrasted by Kleingeld to "nationalist patriotism" which has a key reference to a national group incorporated in it although such a group does not have to be one of shared ancestry and, importantly, the boundaries of the nation need not coincide with those of a state. However, embodied in this second view is an important comparison between the nation and the family so the lack of choice about belonging to a nation is, somewhat paradoxically, part of what one values in it. Finally, there is trait-based patriotism, which is inspired by love of certain qualities. This latter view can inspire love of a people not one's own though in such cases it is not usually called patriotism.
After distinguishing these three types of patriotism Kleingeld goes on to argue that the structure of Kant's arguments in the Doctrine of Right and in Perpetual Peace for republicanism should lead Kantians to embrace an identity as active citizens who are concerned to uphold and enhance traditions of engagement with the polity. This effectively leads her to endorse civic patriotism due to its lack of exclusivity.
There are some useful lessons from Kleingeld's analysis. It is clear, from thinking through the differences between these three different kinds of patriotism, that it is often the case that a given commitment to patriotism often partakes of mixtures of them. So Sandel's reference to American patriotism and its embrace of the constitution and a political history, is not purely a civic patriotism but also embodies trait-based patriotism and can, for some at least, be also a form of nationalist patriotism. The German case is more difficult because it is here a special set of obligations that are said to lie on the people in question due to crimes of their ancestors. This embodies a sort of nationalist patriotism but not one of pride in one's ancestors but a kind of shame in them. It inverts the nationalist case and tries to use it to instil a civic patriotism.
The German case involves a kind of addition of an "incentive" in Kant's sense on top of the normative commitment to republicanism. There are obvious reasons why this case arose but it also entails that the relationship to the constitution in question is not purely one of a civic sort.
Other examples could also be used to complicate the discussion. The example of South Africa would be one given the "truth and reconciliation" notion as a way of attempting to deal with a political history of conflict in which the majority were subordinated. It is not obvious, in some respects, however, whether this project is really as viable as it first seems.
In any case, what does emerge from combining Kleingeld's analysis with Sandel's is that the Kantian commitment to republicanism does contain special duties of citizenship in it. These special duties are sufficient to mandate a patriotism of a sort but the relationship to the other forms of patriotism is more difficult. Kleingeld effectively rules out the view that a Kantian could endorse either nationalist or trait-based patriotism but she does not sufficiently discuss the question of how these latter two forms of patriotism incorporate within them reasons for supporting traditions that could be civic as well as reasons for supporting non-civic identities.
The basic problem with nationalist patriotism, it seems to me, of the sort implied by Sandel's reference to America, is that it can involve a selective sense of the moral history of the nation in question. Whilst it is true that there are morally inspiring elements of American history there are many elements of that history that are rather darker including the founding genocide of the indigenous inhabitants, slavery, and international conduct that has often involved domination of others for a purely national interest. This is not to indulge in anti-Americanism since much can be said that is far from complimentary about most states. It is, however, to indicate a problem with national stories since they invariably only present nations in a good light, leaving aside that which is questionable.
Similarly, trait-based patriotism is open to the same objection. This does not, however, forestall entirely the point of Sandel's comment. The question of relations that are particular in their import is a salient one. It is just that the basis of these relations being the ones taken particularly seriously should not primarily rest after all on the cases of nationalist or trait-based patriotism.
The German case suggests a problem with dismissal of considerations that arise from nationalist matters (even if they are here in an inverse form to usual). But what this case shows is that the commitment to the civic becomes part of the identity of a people and that, after all, is compatible with a general civic view of patriotism. Indeed, it indicates reasons for generalizing it.
Sandel's two examples are interesting both in themselves and in terms of the way they inflect his general question about patriotism. About a decade ago Pauline Kleingeld published an article in Philosophy and Public Affairs which responded to the general challenge Sandel has put again in his recent interview and did so by invoking the notion of "Kantian patriotism".
Since Philosophy and Public Affairs operates a pay-wall it is probably worth giving a quick summary of Kleingeld's argument in order to test its use as a response to Sandel. In brief, Kleingeld points out that patriotism does not have only one sense. She distinguishes between three different senses of the term. The first is "civic patriotism" which has an intrinsically political nature being concerned with shared political freedom and the institutions that sustain it. Such a form of patriotism is not based on ethnic traits but can embrace a reference to national traditions if they are based on political ones. This view is contrasted by Kleingeld to "nationalist patriotism" which has a key reference to a national group incorporated in it although such a group does not have to be one of shared ancestry and, importantly, the boundaries of the nation need not coincide with those of a state. However, embodied in this second view is an important comparison between the nation and the family so the lack of choice about belonging to a nation is, somewhat paradoxically, part of what one values in it. Finally, there is trait-based patriotism, which is inspired by love of certain qualities. This latter view can inspire love of a people not one's own though in such cases it is not usually called patriotism.
After distinguishing these three types of patriotism Kleingeld goes on to argue that the structure of Kant's arguments in the Doctrine of Right and in Perpetual Peace for republicanism should lead Kantians to embrace an identity as active citizens who are concerned to uphold and enhance traditions of engagement with the polity. This effectively leads her to endorse civic patriotism due to its lack of exclusivity.
There are some useful lessons from Kleingeld's analysis. It is clear, from thinking through the differences between these three different kinds of patriotism, that it is often the case that a given commitment to patriotism often partakes of mixtures of them. So Sandel's reference to American patriotism and its embrace of the constitution and a political history, is not purely a civic patriotism but also embodies trait-based patriotism and can, for some at least, be also a form of nationalist patriotism. The German case is more difficult because it is here a special set of obligations that are said to lie on the people in question due to crimes of their ancestors. This embodies a sort of nationalist patriotism but not one of pride in one's ancestors but a kind of shame in them. It inverts the nationalist case and tries to use it to instil a civic patriotism.
The German case involves a kind of addition of an "incentive" in Kant's sense on top of the normative commitment to republicanism. There are obvious reasons why this case arose but it also entails that the relationship to the constitution in question is not purely one of a civic sort.
Other examples could also be used to complicate the discussion. The example of South Africa would be one given the "truth and reconciliation" notion as a way of attempting to deal with a political history of conflict in which the majority were subordinated. It is not obvious, in some respects, however, whether this project is really as viable as it first seems.
In any case, what does emerge from combining Kleingeld's analysis with Sandel's is that the Kantian commitment to republicanism does contain special duties of citizenship in it. These special duties are sufficient to mandate a patriotism of a sort but the relationship to the other forms of patriotism is more difficult. Kleingeld effectively rules out the view that a Kantian could endorse either nationalist or trait-based patriotism but she does not sufficiently discuss the question of how these latter two forms of patriotism incorporate within them reasons for supporting traditions that could be civic as well as reasons for supporting non-civic identities.
The basic problem with nationalist patriotism, it seems to me, of the sort implied by Sandel's reference to America, is that it can involve a selective sense of the moral history of the nation in question. Whilst it is true that there are morally inspiring elements of American history there are many elements of that history that are rather darker including the founding genocide of the indigenous inhabitants, slavery, and international conduct that has often involved domination of others for a purely national interest. This is not to indulge in anti-Americanism since much can be said that is far from complimentary about most states. It is, however, to indicate a problem with national stories since they invariably only present nations in a good light, leaving aside that which is questionable.
Similarly, trait-based patriotism is open to the same objection. This does not, however, forestall entirely the point of Sandel's comment. The question of relations that are particular in their import is a salient one. It is just that the basis of these relations being the ones taken particularly seriously should not primarily rest after all on the cases of nationalist or trait-based patriotism.
The German case suggests a problem with dismissal of considerations that arise from nationalist matters (even if they are here in an inverse form to usual). But what this case shows is that the commitment to the civic becomes part of the identity of a people and that, after all, is compatible with a general civic view of patriotism. Indeed, it indicates reasons for generalizing it.
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