Rawls on Natural Duty and Fairness

My last posting on Rawls looked at the concluding part of Chapter V of A Theory of Justice. In this posting I am going to begin reading Chapter VI of Theory, a chapter that is focused on the twin topics of duty and obligation. The first two sections of this chapter return to a topic that was previously raised in sections 18 and 19 of Chapter I, namely the question of principles for individuals, a topic that I treated in relation to the earlier discussion in Chapter I, here.


The opening section of Chapter VI immediately refers back to Rawls' earlier discussion in Chapter I where principles of fairness and natural duty were outlined but differentiates the treatment now being offered by stating that the purpose of the present discussion is to show the basis of the claim that these principles would be chosen by individuals in the original position. Rawls begins with the question of natural duty (reversing the order of exposition adopted in Chapter I). The key "natural duty" from the standpoint of the theory of justice is supporting and furthering just institutions. There are two parts to this duty. The first part is showing that we comply with and do our share "within" just institutions assuming they exist and have reference to us. The second part is to establish such institutions where they do not exist though Rawls adds the rider "at least when this can be done with little cost to ourselves" which appears to be a kind of prudential limitation on the second part of the duty, one that Rawls does not assume requires justification.


The alternative to this principle of natural duty that Rawls considers is the principle of utility but adoption of this by individuals after the basic structure has been regulated by the two principles of justice is assumed by him to lead to an "incoherent" conception of right. The actions that would be mandated by the principle of utility would not cohere with that demanded by the two principles of justice and should there be an accidental convergence it would lack stability. Hence given that the two principles of justice are regulative of the basic structure it appears that principles for individuals should be congruent with them. This is the reason why Rawls describes natural duty in the way he does. There is still the question of whether the natural duty could not be sensibly qualified by individuals in accord with some general idea of costs and benefits but Rawls rules this out on the basis that the full complement of equal liberties have been guaranteed by the two principles so that there could be nothing further for individuals to bargain for.


In the previous chapter Rawls stressed the importance of public knowledge that an effective sense of justice applied across a well-ordered society. Such a public knowledge produces greater stability and undermines the temptation of free-riding. At this point Rawls differentiates between two kinds of threats to the stability of a system of justice. On the one hand there are self-interested reasons for free-riding that accrue from taking the share of general social goods to be available without requisite effort being needed for all agents. However, in addition to the self-interested way in which free-riding can be articulated, there is also a second type of threat to the stability of systems of justice. This second threat is what arises when people have reason to believe that others will not do their part in relation to the obligations that the system generates. This second kind of instability has a particular urgency when there appear dangers with complying with the demands of institutions. It is a general problem of assurance and is analytically distinct from the tendencies of self-interest as it can create problems even for those committed to principles of a just sort.


How does the assurance problem get responded to in a just system thus enabling it to substantially generate stability of the second sort? There has to be something voluntary about adherence to the institutions in question and this is best achieved by the propagation of natural duty as the key principle for individuals. One of the advantages of such a principle, by comparison with the principle of utility, is that it is simple and clear. However natural duty is not exhausted by the general commitment to just institutions as there are other natural duties in addition. For example, there is the duty to show a person the respect which is due to them as moral beings. In developing this natural duty we need to understand the aims and interests of others in relation to the standpoint of these others and, separately but related, we need to develop a general willingness of persons to do each other small favours and courtesies. The development of mutual respect has mutually beneficial consequences though Rawls neglects here an obvious chance to develop a more extensive account of respect such as appears in Kant due to this discussion (a discussion that really belongs to his theory of "rightness as fairness") being only of a very general character.


Other natural duties include the duty of beneficence that Kant, again, develops a more extended account of and which Rawls does here refer to. What is built in to Rawls' discussion of beneficence, however, is the general public quality of it as a natural duty that is required of us in terms of the assurance it gives us of the character of our fellow citizens. This reference to publicity is part of the general case Rawls makes that whilst the natural duties are not taken by him to be individual cases of a general principle that they are nonetheless all adopted for similar reasons.


Having made these remarks about natural duty, however, Rawls returns to what, following the remarks of section 8 of Chapter I, we can term the "priority problem" with regard to the relationship between distinct principles of natural duty. Rawls shows no evident path through this problem referring only to "certain procedures of aggregation" that are meant to enable us to take a larger view but only illustrating this (and not in this section) by reference to the problems of civil disobedience and conscientious refusal to which I will return in a later posting.


The remaining parts of section 51 are concerned with the relationship between a duty other things being equal (taken by  Rawls to be equivalent to W.D. Ross' notion of prima facie duties) and a duty all things considered. A principle does not express a universal statement which always suffices to establish how we should act on Rawls' account but, rather, singles out relevant features of moral situations such that these features lend support to a certain ethical judgment. By contrast, when prima facie duties are invoked, we are, according to Rawls, deliberately restricting our range to only a certain part of a larger scheme of reasons. These general remarks are, to say the least, hardly helpful in resolving the questions raised by Ross and whilst Rawls concludes section 51 with an agreement with Ross that the Kantian distinction between perfect and imperfect duties is inadequate, this agreement on Rawls' part is not based on any kind of careful assessment of the Kantian distinction and nor is it obviously related to the overall question of the connection between prima facie duties and duties all things considered. This concluding part of section 51 is a disappointing discussion, particularly after the general account of natural duties.


Section 52 turns to an examination of the principle of fairness and Rawls opens the section with the bold claim that "all obligations arise" from this principle. Fairness is what mandates that cooperative ventures should involve similar acquiescences with regard to restrictions on conduct. Hence obligations arise only given that the right background conditions are secured. By contrast, unjust arrangements are a form of extortion so that consent to them is not of a form that can be said to really be binding on conduct.


However, it might be argued that assuming that the natural duties hold then it follows that there is no requirement for an additional principle of fairness. Whilst this has some merit with regard to the basic structure, however, it has none in regard to voluntary conduct of citizens in relation to each other. Rawls also distinguishes between obligations and duties on the grounds that they arise in different ways. So the better-placed members of societies are more likely to emerge as its rulers and this binds them more tightly than others to the scheme of justice. This form of being bound is what we can view as the imposition of "obligations" upon these citizens whilst "duties" refer to the more general and varied considerations that were adduced in section 51. Viewed this way it is in relation to the general principle of fairness that obligations are best understood as generated and regulated whilst duties are preferably understood as governed by the reference to natural duty.


Rawls fills out this distinction by describing promising as a form of conduct that is governed by the principle of fairness. Promising expresses a general intent to perform an action as an obligation voluntarily undertaken on the basis that when others give one promises there is a similar expectation that they will be fulfilled. This assumes certain general conditions of "normal" promising are met. When the practice of promising is just it assumes voluntary and stable conditions apply and these conditions are what make the practice a just one. But the rule of promising is not itself expressive of a commitment to fidelity since it simply, on Rawls' view, states a convention whereas the moral principle in question is that of fidelity, a principle that is based upon the principle of fairness.


Promising is, however, something that is done with a public intention of incurring an obligation and this is integral to it being governed by the principle of fidelity. We both want the practice that expresses such an obligation to exist and we expect others to be aware of our willingness to be governed by the obligation in question. So the practice requires mutual confidence to make sense. Such confidence and trust allow for mutually advantageous schemes of cooperation to develop. This is why the principle of fairness can be seen to be one that would be agreed to in the original position.


However it is interesting to bring out that it is an important consequence of Rawls' view of fairness that institutions do not, in themselves, mandate moral requirements. We have seen this in the case of promising as the rules of it are not equivalent for Rawls to the principle of fidelity. It is only by assumption of the principle of fairness that the latter arises, it cannot be assumed simply on the basis of the rules of promises alone but is rather what regulates these rules and gives them moral sense. So moral reasons are those which enable a judgment to be made that refers us to generic principles as governing our practices.

Allison and Kant on Universal Law

Due to being away traveling in the earlier part of this month it is a little while since I last blogged. My last posting on Allison's book on the Groundwork was about a month previous to this one and concerned chapter 6 where Allison discussed rational agency and the general notion of imperatives. In this posting I will comment on the seventh chapter where Allison gives his account of the two formulas of universal law as they appear in the second part of the Groundwork, and which includes an account of the examples Kant gives there.


The first issue Allison raises in this chapter concerns the claim Kant makes at Ak. 4: 421 that all "imperatives of his duty" can be "derived" from the "single imperative" of universal law that Kant unequivocally identifies with the categorical imperative formula of universal law. The word translated as "derived" is abgeleitet and Allison asks whether Kant here means that the test of the categorical imperative concerns whether all generally recognised duties can be derived from it or whether he has something weaker in mind. Allison also raises a second immediate question concerning Kant's use of the notion of "nature" in the formula of the law of nature and asks what function this reference serves for Kant. 


In addressing this second question Allison turns, unsurprisingly, to the account in the Critique of Practical Reason, of the "typic" of pure practical judgment where Kant gives a general discussion of the notion of practical schematism. Here the notion of natural law is described as serving as a "type" or schema of the general notion of law in the process of formulating imperatives. In the second Critique this leads to the formulation: "Ask yourself whether, if the action you propose were to take place by a law of nature of which you were yourself a part, you could indeed regard it as possible through your will" (Ak. 5: 69). This is indicated to be substantially the same as the formula of the law of nature in the Groundwork by Allison though he does little to use the "typic" to make clear the means by which the formula of the law of nature is justified.


The point that comes out by use of the typic is that actions that cannot meet it are, by virtue of this, morally impossible. However, rather than focus on this point, Allison chooses instead to return to the question of what is meant by the claim that imperatives of duty are "derived" from the reference to the law of nature. This question leads Allison to think of the reference to the law of nature as one that is intended to be "fertile" in the sense that it enables a discussion of how lists of duty are supposedly meant to arise. Despite formulating the alleged task of the reference to the law of nature in this way, however, Allison reaches the conclusion that the most that it can do is indicate the impermissibility of a course of action under a given maxim. In other words, it provides a test of moral permissibility rather than providing for specific determination of duties. 


Allison also defends this reading of what can be accomplished by the reference to the law of nature against other views, principally against the claim of Stephen Engstrom that fundamental duties of justice and beneficence can be directly derived from this reference. Essentially the reason why Allison disagrees with Engstrom appears to be that Allison does not think that the reference to universal laws of nature is sufficient to arrive at a generally acceptable conception of what is rationally universally required. 


In turning to Kant's use of examples, which appear after the formulation of the reference to universal laws of nature, Allison notes some points about Kant's procedure. Amongst other things, it is important on Allison's view to see that the examples include courses of action that run against generally accepted duties. Also the examples are meant to bring out a form of contradiction that will arise in willing the course of action in question. 


The first example is that of suicide but important in considering it is the understanding that the maxim here is one of taking shortening one's life to be acceptable if its longer duration promises more ill than agreeableness. So the maxim is one that rests upon an appeal to inclinations. However Allison takes it that the contradiction that arises from this maxim is a teleological one but also views Kant's argument here as unsuccessful. One of the points that Allison makes here is that there is no way of formulating the argument concerning suicide in terms of a simple reference to universal law simplicter. This seems to entail that Allison views the incorporation of reference to universal laws of nature as requiring some sense of teleology though it is far from clear why this should be so. Indeed, Allison himself accepts that taking a strongly teleological view of nature seems a rather large step in order to show a problem with reference to inclinations in a maxim concerning suicide and yet still thinks that Kant requires this. It appears to me that Allison's treatment of this example is marred in failing to justify the necessity of seeing Kant's treatment of it as having to involve assumptions that are far from evidently required.


Moving on to the example of false promises Kant invokes specific circumstances to make this example a strong one. In the case in question there is a reason why the false promise has a real attraction for the agent which is that they are in clear difficulties. Given these difficulties there is a need for something like the appeal to the device of the typic to test the maxim in question. The maxim then emerges as one in which a promise is to be made that I do not intend to fulfil. It is only within the device of the thought experiment that the problem that such a maxim involves can be clearly stated. It is within the device that a contradiction emerges, not within the maxim simply as such. 


Allison considers the type of contradiction that is meant to emerge from the false promising case, discussing whether it is a strict logical contradiction or, as Christine Korsgaard has suggested, a "practical" contradiction. Whilst the former is suggested to show that the contradiction would render the institution of promising impossible, the latter is rather supposed to show that there is a problem with the end of the agent. Allison favours the latter view though he does not think there is a single form of contradiction underlying all of Kant's examples. In this case, however, Allison's reading leads to the view that it is the "intention qua universal law" that generates a contradiction.


The third example concerning the development of talents is treated by Allison as including two different lines of argument, one that concerns a teleological contradiction and the other a practical contradiction. The former, however, if it is involved at all, is one that runs into difficulties of the same sort that would apply to reading the suicide example in this way. The latter, by contrast, has the difficulty that it could simply amount to a case concerning prudential rather than moral reasoning. The way that Allison avoids the latter is by reference to a conception of "true needs" that are essential to finite rational agency and that would be compromised if talents were not developed. However this leads Allison to reading the third example in a way that is weaker than is standard since it produces the outcome not that we are required to cultivate our talents but only that we not adopt a maxim of completely neglecting them. The fourth example concerning non-beneficence is ruled out by Kant in terms of universal laws of nature but this is again viewed by Allison in terms of "true needs" of finite rational agents. This is again thought to produce a form of practical contradiction in the maxim in question.


After treating Kant's four examples Allison moves on to the decidedly tricky ground of the counter-examples that have been stated in the literature to Kant's account. There are two types of such counter-examples: false positives and false negatives. False positives come in two versions, those based on attributing to an agent a highly specific maxim, on the basis of which a proposed course of action could pass the universalisability test and a second set that don't involve such specific reference. The first type of examples are used in particular by Allen Wood. In these cases the high specificity of the examples is meant to evade the reference to universality. In response to these examples Allison stresses the point that increasing the specificity of the maxim has the consequence of narrowing the scope of universalization without evading the universalizability requirement. The more general problem that such a procedure of false positives is meant to reveal is, however, that actions can be presented under a variety of descriptions and not all of such descriptions exclude universalisation. In response Allison stresses the point that use of such false positives depends on a very specific conception of what "maxims" are, namely, identifying them with intentions or actions rather than general determinations of the basis of conduct.


The second type of false positives, by contrast to the ones based on very specific formulations of maxims, tend to concern what Korsgaard has termed "natural" as opposed to "conventional" actions. Such "natural" actions don't require reference to institutions (such as "promising") and, in not requiring this, are allegedly more open to response by invocation of false positives. So the example of killing babies who disturb one's sleep does not appear to run into an immediate contradiction of either logical or practical type once universalised. The strategies of dealing with these types of example that Allison mentions are not entirely successful as responses. Korsgaard, for example, responds to them by stating that they involve reference to some further end than that immediately suggested by the maxim and that this further end is one that cannot be secured consistently with willing the maxim itself (a kind of "practical" contradiction suggestion). However that requires clear assumptions concerning these further ends and is thus open to the kinds of objections that Allison has mentioned when treating the example of cultivation of talents.


The second strategy in responding to these types of false positives is to invoke the contradiction in the will test rather than the contradiction in conception test. Barbara Herman, for example, favours this response. However, this has the peculiar consequence that the maxim concerning the killing of babies appears now to only violate an imperfect rather than a perfect duty, which is surely false. The third strategy, promoted by Onora O'Neill, is to say that the examples in question presuppose practices that would undercut the agency of those they victimise (which appears to imply some kind of reference to humanity and/or autonomy). Allison takes this strategy to be the best on offer but to be implausible as a reading of the requirements of reference to universal law alone. In making this point Allison argues that the formulas of universal law are only intra-subjective and not inter-subjective. What is meant by this is that the formulas of universal law, on Allison's reading, test only the compatibility of an agent's maxim with the same maxim considered as a universal law whilst an inter-subjective test relates the maxim to its possibility of endorsement by other rational agents. Since Allison views the reference to universal law to only involve the former and not the latter form of universalizability he is correct to see the strategy of O'Neill as not persuasive though the case for seeing the formulas of universal law in this restrictive way is not seriously made in this chapter.


After treating false positives, Allison moves on to false negatives that are used against Kant. These are cases of maxims that would be generally agreed not to be morally objectionable but which, it is argued, would fail Kant's test. They include what Herman terms "timing" problems where we state maxims that include references to doing things at given times (such as playing tennis on occasions when the courts aren't widely used). Again, Allen Wood has invoked many of these cases. As with the false positives the real question being raised by these examples concerns the nature of the description of the maxims that is appropriate. Again, Allison responds by distinguishing maxims from intentions. In the Critique of Practical Reason Kant describes maxims as "propositions that contain a general determination of the will having under it several practical rules" though Allison indicates that the nature of the claim that practical rules fall under a maxim is ambiguous. It is ambiguous as the rules could be seen as deduced from the maxim or that the maxim could be seen as providing the normative criterion for the rules but Allison sees the second as correct.


On this ground Allison revisits the alleged problem with the tennis example and points out that the real question concerns the end for the sake of which the agent is engaging in the activity in question. This accords with his point that we should be focusing not on specific intentions when we consider maxims but instead on general determinations of the will. Maxims are thus viewed as containing grounds that are found in agent's practical interests not in their specific intentions.


However, even on Allison's account there are still some problems left unaccounted for. Assuming with him that maxims are best tested by practical contradiction tests and that universal law formulas are seen in terms of intra-subjective validity, it follows that the example of the killing of the baby that disturbs one's sleep, appears not to be ruled out by reference to universal law. Since this is so it follows that Allison will need a stronger account of Kant's other formulas than he gives for the formulas of universal law if Kant's procedure is to be robust enough to rule out maxims that it would appear clearly counter-intuitive to leave undisturbed.

International Right and Promising

After discussing the question of the "right" to rebellion in the context of the right of a state Kant turns next in Perpetual Peace to examples that concern the right of nations. In order to discuss this area at all it is necessary to work in accord with a "presupposition" of a rightful condition and the nature of this confirms the reading given in the previous posting of Kant's account of the problems with a "right" of rebellion. Here Kant points out that public right contains "in its very concept the publication of a general will". Since this is the claim that Kant makes here it surely follows that an implied appeal to this concept was made in the earlier discussion of rebellion.

The juridical state is based for Kant on a pact but the difference between the one that establishes a state and that which would hold between states is demarcated as being that the former is based on coercive laws whilst the latter may be only a condition of continuing free association. It is the need for some kind of pact that takes us beyond the condition of the state of nature. The criterion of the doctrine of right is appealed to as a general basis of morals that politics should be governed by and the nature of this is taken to follow from the principle of publicity in some general sense.

After making these points in order to set out the notion of a right of nations Kant next discusses three examples, which we will treat to a posting each. The first example treats of promising in regard to the right of nations. One state has promised the other something and the promisor now wishes to be freed from this promise due to the assumption that fulfilling the promise will compromise the welfare of the promisor. The attempt to be released from the promise is predicated on a distinction alleged to exist between two elements of the personality of the state. On the one hand, there is the sovereign who is accountable to no further power within the state. On the other hand, there is the supreme official of the state, whose decisions are open to inspection within the state. The suggestion then would be that the latter can be released from the promise due to pressure from within the state so to do. Such a distinction, which would allow for promise-breaking, is then put to the test of publicity and the maxim is shown to fall foul of the counter-productivity test on the grounds that if it were to be made public as the basis of actions no other state would ever ally with the promise-breaking one.

The basic counter-productivity test here is clearly revealed in this case to be one that tests the purposes of adoption of a maxim. This can be seen if we compare the treatment of promising in international right to that given in general moral philosophy in the Groundwork. The examples in the Groundwork are given in the second part of the work and are iterated twice. The first set of examples occurs shortly after the categorical imperative is introduced for the first time in Groundwork II and after which it has been refined to refer to universal laws of nature. In the example of promising that follows this refinement Kant mentions the promising example as one that arises in relation to personal welfare as someone needs to borrow money and has to promise to pay it back. The difficulty in this case is that paying the money back at the time required is not within the promisor's means. So it follows that the maxim would have to be one of making a promise you know you can't keep and that, when universalized as a law of nature, turns out to be inconsistent with itself as it contradicts itself. The point of the contradiction is one of self-frustration or counter-productivity since the generalization of the maxim would abolish the very practice of promising. So the first treatment of the maxim in Groundwork II indicates the problem to be one that concerns the institution of promising. The acts of promising are not isolated but belong to a general practice and it is this practice that is endangered when a false promise is made.

The second set of examples in Groundwork II is in regard to the formula of humanity. This formula explicitly highlights the relationship between means and ends that was only implied in the universal law of nature formula. In bringing this distinction in Kant here connects it to using others as ends-in-themselves rather than only as means for ourselves. The discussion of false promising at this point hence picks out an immediate problem with adoption of a maxim permitting it since it would involve treating those who one makes a false promise to as only a means. The reason why it involves treating the other in this way is that the other could not agree to being responded to in the way that the false promising maxim would allow. 

The treatment of false promising in regard to the humanity formula requires us to look at the situation from the other's perspective and to see that if we saw things from their side we would not act as we are thinking of acting. The discussion of false promising in regard to the right of nations involves an appeal to the view of other nations in the same way but, unlike the formula of humanity discussion, it is an appeal to all others that is here made. So the discussion of false promising in the context of international right does not merely consider the parties involved but rather, like the discussion in the universal law of nature, considers a general effect, a practice. It is the practice that would lead to a counter-productive effect since the false promisor acts in such a way that the generalization of their maxim would render the adoption of the maxim itself impossible as the practice that he is operating within would cease to be operable. So counter-productivity is part of the discussion in the case of international right precisely in view of the fact that international right is treated as part of a general practice of right. The false promisor would be acting in a way that would put them beyond the minimal agreement that creates a federation and would thus be acting as an "outlaw state".