（转）《公正：该如何做是好？》哈佛大学公开课程

哈佛大学公开课程

《公正：该如何做是好？》
Justice: What's the Right Thing to Do?

This is a course about justice and we begin with a story.
Suppose you're the driver of a trolley car, and your trolley car is hurtling down the track at 60 miles an hour.
And at the end of the track you notice five workers working on the track.
You try to stop but you can't, your brakes don't work.
You feel desperate because you know that if you crash into these five workers, they will all die.
Let's assume you know that for sure.
And so you feel helpless until you notice that there is, off to the right, a side track and at the end of that track, there is one worker working on the track.
Your steering wheel works, so you can turn the trolley car, if you want to, onto the side track killing the one but sparing the five.
Here's our first question: what's the right thing to do?
What would you do? Let's take a poll.
How many would turn the trolley car onto the side track? Raise your hands.
How many wouldn't? How many would go straight ahead?
Keep your hands up those of you who would go straight ahead.
A handful of people would, the vast majority would turn.
Let's hear first, now we need to begin to investigate the reasons why you think it's the right thing to do.
Let's begin with those in the majority who would turn to go onto the side track. Why would you do it?
What would be your reason? Who's willing to volunteer a reason?
Go ahead. Stand up.
Because it can't be right to kill five people when you can only kill one person instead.
It wouldn't be right to kill five if you could kill one person instead.
That's a good reason.
That's a good reason. Who else?
Does everybody agree with that reason? Go ahead.
Well I was thinking it's the same reason on 9/11 with regard to the people who flew the plane into the Pennsylvania field as heroes because they chose to kill the people on the plane and not kill more people in big buildings.
So the principle there was the same on 9/11.
It's a tragic circumstance but better to kill one so that five can live, is that the reason most of you had, those of you who would turn? Yes?
Let's hear now from those in the minority, those who wouldn't turn. Yes.
Well, I think that's the same type of mentality that justifies genocide and totalitarianism.
In order to save one type of race, you wipe out the other.
So what would you do in this case?
You would, to avoid the horrors of genocide, you would crash into the five and kill them?
Presumably, yes.
You would? -Yeah.
Okay. Who else? That's a brave answer.
Thank you.
Let's consider another trolley car case and see whether those of you in the majority want to adhere to the principle "better that one should die so that five should live."
This time you're not the driver of the trolley car, you're an onlooker. You're standing on a bridge overlooking a trolley car track.
And down the track comes a trolley car, at the end of the track are five workers, the brakes don't work, the trolley car is about to careen into the five and kill them.
And now, you're not the driver, you really feel helpless until you notice standing next to you, leaning over the bridge is a very fat man.
And you could give him a shove.
He would fall over the bridge onto the track right in the way of the trolley car. He would die but he would spare the five.
Now, how many would push the fat man over the bridge?
Raise your hand. How many wouldn't?
Most people wouldn't. Here's the obvious question.
What became of the principle "better to save five lives even if it means sacrificing one?"
What became of the principle that almost everyone endorsed in the first case?
I need to hear from someone who was in the majority in both cases.
How do you explain the difference between the two? Yes.
The second one, I guess, involves an active choice of pushing a person down which I guess that person himself would otherwise not have been involved in the situation at all.
And so to choose on his behalf, I guess, to involve him in something that he otherwise would have escaped is, I guess, more than what you have in the first case where the three parties, the driver and the two sets of workers, are already, I guess, in the situation.
But the guy working, the one on the track off to the side, he didn't choose to sacrifice his life any more than the fat man did, did he?
That's true, but he was on the tracks and...
This guy was on the bridge.
Go ahead, you can come back if you want. All right.
It's a hard question. You did well. You did very well.
It's a hard question.
Who else can find a way of reconciling the reaction of the majority in these two cases? Yes.
Well, I guess in the first case where you have the one worker and the five, it's a choice between those two and you have to make a certain choice and people are going to die because of the trolley car, not necessarily because of your direct actions.
The trolley car is a runaway thing and you're making a split second choice.
Whereas pushing the fat man over is an actual act of murder on your part.
You have control over that whereas you may not have control over the trolley car.
So I think it's a slightly different situation.
All right, who has a reply?
That's good. Who has a way?
Who wants to reply?
Is that a way out of this?
I don't think that's a very good reason because you choose toeither way you have to choose who dies because you either choose to turn and kill the person, which is an act of conscious thought to turn, or you choose to push the fat man over which is also an active, conscious action.
So either way, you're making a choice.
Do you want to reply?
I'm not really sure that that's the case.
It just still seems kind of different.
The act of actually pushing someone over onto the tracks and killing him, you are actually killing him yourself.
You're pushing him with your own hands.
You're pushing him and that's different than steering something that is going to cause death into another.
You know, it doesn't really sound right saying it now.
No, no. It's good. It's good.
What's your name?
Andrew.
Andrew.
Let me ask you this question, Andrew.
Yes.
Suppose standing on the bridge next to the fat man, I didn't have to push him, suppose he was standing over a trap door that I could open by turning a steering wheel like that.
Would you turn?
For some reason, that still just seems more wrong.
Right?
I mean, maybe if you accidentally like leaned into the steering wheel or something like that.
But... Or say that the car is hurtling towards a switch that will drop the trap.
Then I could agree with that.
That's all right. Fair enough.
It still seems wrong in a way that it doesn't seem wrong in the first case to turn, you say.
And in another way, I mean, in the first situation you're involved directly with the situation.
In the second one, you're an onlooker as well.
All right. -So you have the choice of becoming involved or not by pushing the fat man.
All right. Let's forget for the moment about this case.
That's good.
Let's imagine a different case.
This time you're a doctor in an emergency room and six patients come to you.
They've been in a terrible trolley car wreck.
Five of them sustain moderate injuries, one is severely injured, you could spend all day caring for the one severely injured victim but in that time, the five would die.
Or you could look after the five, restore them to health but during that time, the one severely injured person would die.
How many would save the five?
Now as the doctor, how many would save the one?
Very few people, just a handful of people.
Same reason, I assume.
One life versus five?
Now consider another doctor case.
This time, you're a transplant surgeon and you have five patients, each in desperate need of an organ transplant in order to survive.
One needs a heart, one a lung, one a kidney, one a liver, and the fifth a pancreas.
And you have no organ donors.
You are about to see them die.
And then it occurs to you that in the next room there's a healthy guy who came in for a check-up.
And he's -- you like that -- and he's taking a nap, you could go in very quietly, yank out the five organs, that person would die, but you could save the five.
How many would do it?
Anyone? How many?
Put your hands up if you would do it.
Anyone in the balcony?
I would.
You would? Be careful, don't lean over too much.
How many wouldn't?
All right. What do you say?
Speak up in the balcony, you who would yank out the organs. Why?
I'd actually like to explore a slightly alternate possibility of just taking the one of the five who needs an organ who dies first and using their four healthy organs to save the other four.
That's a pretty good idea.
That's a great idea except for the fact that you just wrecked the philosophical point.
Let's step back from these stories and these arguments to notice a couple of things about the way the arguments have begun to unfold.
Certain moral principles have already begun to emerge from the discussions we've had.
And let's consider what those moral principles look like.
The first moral principle that emerged in the discussion said the right thing to do, the moral thing to do depends on the consequences that will result from your action.
At the end of the day, better that five should live even if one must die.
That's an example of consequentialist moral reasoning.
Consequentialist moral reasoning locates morality in the consequences of an act, in the state of the world that will result from the thing you do.
But then we went a little further, we considered those other cases and people weren't so sure about consequentialist moral reasoning.
When people hesitated to push the fat man over the bridge or to yank out the organs of the innocent patient, people gestured toward reasons having to do with the intrinsic quality of the act itself, consequences be what they may.
People were reluctant.
People thought it was just wrong, categorically wrong, to kill a person, an innocent person, even for the sake of saving five lives.
At least people thought that in the second version of each story we considered.
So this points to a second categorical way of thinking about moral reasoning.
Categorical moral reasoning locates morality in certain absolute moral requirements, certain categorical duties and rights, regardless of the consequences.
We're going to explore in the days and weeks to come the contrast between consequentialist and categorical moral principles.
The most influential example of consequential moral reasoning is utilitarianism, a doctrine invented by Jeremy Bentham, English political philosopher.
The most important philosopher of categorical moral reasoning German philosopher Immanuel Kant.
So we will look at those two different modes of moral reasoning, assess them, and also consider others.
If you look at the syllabus, you'll notice that we read a number of great and famous books, books by Aristotle, John Locke, Immanuel Kant, John Stewart Mill, and others.
You'll notice too from the syllabus that we don't only read these books; we also take up contemporary, political, and legal controversies that raise philosophical questions.
We will debate equality and inequality, affirmative action, free speech versus hate speech, same sex marriage, military conscription, a range of practical questions. Why?
Not just to enliven these abstract and distant books but to make clear, to bring out what's at stake in our everyday lives, including our political lives, for philosophy.
And so we will read these books and we will debate these issues, and we'll see how each informs and illuminates the other.
This may sound appealing enough, but here I have to issue a warning.
And the warning is this, to read these books in this way as an exercise in self knowledge, to read them in this way carries certain risks, risks that are both personal and political, risks that every student of political philosophy has known.
These risks spring from the fact that philosophy teaches us and unsettles us by confronting us with what we already know.
There's an irony.
The difficulty of this course consists in the fact that it teaches what you already know.
It works by taking what we know from familiar unquestioned settings and making it strange.
That's how those examples worked, the hypotheticals with which we began, with their mix of playfulness and sobriety.
It's also how these philosophical books work.
Philosophy estranges us from the familiar, not by supplying new information but by inviting and provoking a new way of seeing but, and here's the risk, once the familiar turns strange, it's never quite the same again.
Self knowledge is like lost innocence, however unsettling you find it; it can never be un-thought or un-known.
What makes this enterprise difficult but also riveting is that moral and political philosophy is a story and you don't know where the story will lead.
But what you do know is that the story is about you.
Those are the personal risks.
Now what of the political risks?
One way of introducing a course like this would be to promise you that by reading these books and debating these issues, you will become a better, more responsible citizen; you will examine the presuppositions of public policy, you will hone your political judgment, you will become a more effective participant in public affairs.
But this would be a partial and misleading promise.
Political philosophy, for the most part, hasn't worked that way.
You have to allow for the possibility that political philosophy may make you a worse citizen rather than a better one or at least a worse citizen before it makes you a better one, and that's because philosophy is a distancing, even debilitating, activity. And you see this, going back to Socrates, there's a dialogue, the Gorgias, in which one of Socrates' friends, Callicles, tries to talk him out of philosophizing.
Callicles tells Socrates "Philosophy is a pretty toy if one indulges in it with moderation at the right time of life. But if one pursues it further than one should, it is absolute ruin."
"Take my advice," Callicles says, "abandon argument. Learn the accomplishments of active life, take for your models not those people who spend their time on these petty quibbles but those who have a good livelihood and reputation and many other blessings."
So Callicles is really saying to Socrates "Quit philosophizing, get real, go to business school." And Callicles did have a point.
He had a point because philosophy distances us from conventions, from established assumptions, and from settled beliefs.
Those are the risks, personal and political.
And in the face of these risks, there is a characteristic evasion.
The name of the evasion is skepticism, it's the idea -- well, it goes something like this -- we didn't resolve once and for all either the cases or the principles we were arguing when we began and if Aristotle and Locke and Kant and Mill haven't solved these questions after all of these years, who are we to think that we, here in Sanders Theatre, over the course of a semester, can resolve them?
And so, maybe it's just a matter of each person having his or her own principles and there's nothing more to be said about it, no way of reasoning.
That's the evasion, the evasion of skepticism, to which I would offer the following reply.
It's true, these questions have been debated for a very long time but the very fact that they have recurred and persisted may suggest that though they're impossible in one sense, they're unavoidable in another.
And the reason they're unavoidable, the reason they're inescapable is that we live some answer to these questions every day.
So skepticism, just throwing up your hands and giving up on moral reflection is no solution.
Immanuel Kant described very well the problem with skepticism when he wrote "Skepticism is a resting place for human reason, where it can reflect upon its dogmatic wanderings, but it is no dwelling place for permanent settlement."
"Simply to acquiesce in skepticism," Kant wrote, "can never suffice to overcome the restlessness of reason."
I've tried to suggest through these stories and these arguments some sense of the risks and temptations, of the perils and the possibilities.
I would simply conclude by saying that the aim of this course is to awaken the restlessness of reason and to see where it might lead.
Thank you very much.
Like, in a situation that desperate, you have to do what you have to do to survive.
-You have to do what you have to do?
You got to do what you got to do, pretty much.
without any food, you know, someone just has to take the sacrifice.
Someone has to make the sacrifice and people can survive.
Alright, that's good.
What's your name?
Marcus.
-Marcus, what do you say to Marcus?
Last time, we started out last time with some stories, with some moral dilemmas about trolley cars and about doctors and healthy patients vulnerable to being victims of organ transplantation.
We noticed two things about the arguments we had, one had to do with the way we were arguing.
We began with our judgments in particular cases.
We tried to articulate the reasons or the principles lying behind our judgments.
And then confronted with a new case, we found ourselves reexamining those principles, revising each in the light of the other.
And we noticed the built in pressure to try to bring into alignment our judgments about particular cases and the principles we would endorse on reflection.
We also noticed something about the substance of the arguments that emerged from the discussion.
We noticed that sometimes we were tempted to locate the morality of an act in the consequences, in the results, in the state of the world that it brought about.
And we called this consequentialist moral reasoning.
But we also noticed that in some cases, we weren't swayed only by the result.
Sometimes, many of us felt, that not just consequences but also the intrinsic quality or character of the act matters morally.
Some people argued that there are certain things that are just categorically wrong even if they bring about a good result, even if they saved five people at the cost of one life.
So we contrasted consequentialist moral principles with categorical ones.
Today and in the next few days, we will begin to examine one of the most influential versions of consequentialist moral theory.
And that's the philosophy of utilitarianism.
Jeremy Bentham, English political philosopher gave first the first clear systematic expression to the utilitarian moral theory.
And Bentham's idea, his essential idea, is a very simple one.
With a lot of morally intuitive appeal, Bentham's idea is the following, the right thing to do; the just thing to do is to maximize utility.
What did he mean by utility?
He meant by utility the balance of pleasure over pain, happiness over suffering.
Here's how he arrived at the principle of maximizing utility.
He started out by observing that all of us, all human beings are governed by two sovereign masters: pain and pleasure.
We human beings like pleasure and dislike pain.
And so we should base morality, whether we're thinking about what to do in our own lives or whether as legislators or citizens, we're thinking about what the laws should be.
The right thing to do individually or collectively is to maximize, act in a way that maximizes the overall level of happiness.
Bentham's utilitarianism is sometimes summed up with the slogan "The greatest good for the greatest number." With this basic principle of utility on hand, let's begin to test it and to examine it by turning to another case, another story, but this time, not a hypothetical story, a real life story, the case of the Queen versus Dudley and Stevens.
British law case that's famous and much debated in law schools.
Here's what happened in the case.
I'll summarize the story then I want to hear how you would rule, imagining that you were the jury.
A newspaper account of the time described the background.
A sadder story of disaster at sea was never told than that of the survivors of the yacht, Mignonette.
The ship floundered in the South Atlantic, There were four in the crew, Dudley was the captain, Stevens was the first mate, Brooks was a sailor, all men of excellent character or so the newspaper account tells us.
The fourth crew member was the cabin boy, Richard Parker, He was an orphan, he had no family, and he was on his first long voyage at sea.
He went, the news account tells us, rather against the advice of his friends.
He went in the hopefulness of youthful ambition, thinking the journey would make a man of him.
Sadly, it was not to be.
The facts of the case were not in dispute.
A wave hit the ship and the Mignonette went down.
The four crew members escaped to a lifeboat.
The only food they had were two cans of preserved turnips, no fresh water.
For the first three days, they ate nothing.
On the fourth day, they opened one of the cans of turnips and ate it.
The next day they caught a turtle.
Together with the other can of turnips, the turtle enabled them to subsist for the next few days.
And then for eight days, they had nothing.
No food. No water.
Imagine yourself in a situation like that, what would you do?
Here's what they did.
By now the cabin boy, Parker, is lying at the bottom of the lifeboat in the corner because he had drunk seawater against the advice of the others and he had become ill and he appeared to be dying.
Dudley, the captain, suggested that they should all have a lottery, that they should draw lots to see who would die to save the rest.
Brooks refused.
He didn't like the lottery idea.
We don't know whether this was because he didn't want to take the chance or because he believed in categorical moral principles.
But in any case, no lots were drawn.
The next day there was still no ship in sight so Dudley told Brooks to avert his gaze and he motioned to Stevens that the boy, Parker, had better be killed.
Dudley offered a prayer, he told the boy his time had come, and he killed him with a pen knife, stabbing him in the jugular vein.
Brooks emerged from his conscientious objection to share in the gruesome bounty.
For four days, the three of them fed on the body and blood of the cabin boy.
True story.
And then they were rescued.
Dudley describes their rescue in his diary with staggering euphemism.
as we were having our breakfast, a ship appeared at last.
The three survivors were picked up by a German ship.
They were taken back to Falmouth in England where they were arrested and tried.
Brooks turned state's witness.
Dudley and Stevens went to trial.
They didn't dispute the facts.
They claimed they had acted out of necessity; that was their defense.
They argued in effect better that one should die so that three could survive.
The prosecutor wasn't swayed by that argument.
He said murder is murder, and so the case went to trial.
Now imagine you are the jury.
And just to simplify the discussion, put aside the question of law, let's assume that you as the jury are charged with deciding whether what they did was morally permissible or not.
How many would vote 'not guilty', that what they did was morally permissible?
And how many would vote 'guilty', what they did was morally wrong?
A pretty sizeable majority.
Now let's see what people's reasons are and let me begin with those who are in the minority.
Let's hear first from the defense of Dudley and Stevens.
Why would you morally exonerate them?
What are your reasons?
Yes.
I think it is morally reprehensible but I think that there is a distinction between what's morally reprehensible and what makes someone legally accountable.
In other words, as the judge said, what's always moral isn't necessarily against the law and while I don't think that necessity justifies theft or murder or any illegal act, at some point your degree of necessity does, in fact, exonerate you from any guilt.
Okay. Good. Other defenders.
Other voices for the defense.
Moral justifications for what they did. Yes.
Thank you.
I just feel like in the situation that desperate, you have to do what you have to do to survive.
You have to do what you have to do.
Yeah, you've got to do what you've got to do.
Pretty much.
If you've been going someone just has to take the sacrifice, someone has to make the sacrifice and people can survive.
And furthermore from that, let's say they survive and then they become productive members of society who go home and start like a million charity organizations and this and that I mean they benefited everybody in the end. -Yeah.
So, I mean I don't know what they did afterwards, they might have gone and like, I don't know, killed more people, I don't know.
Whatever but. -What?
Maybe they were assassins.
What if they went home and they turned out to be assassins?
What if they'd gone home and turned out to be assassins? Well!
You'd want to know who they assassinated.
That's true too. That's fair.
That's fair. I would want to know who they assassinated.
All right. That's good.
What's your name?
Marcus.
Marcus. All right.
We've heard a defense, a couple of voices for the defense.
Now we need to hear from the prosecution.
Most people think what they did was wrong. Why?
Yes. -One of the first things that I was thinking was they haven't been eating for a really long time maybe they're mentally like affected and so then that could be used as a defense, a possible argument that they weren't in the proper state of mind, they weren't making decisions they might otherwise be making.
And if that's an appealing argument that you have to be in an altered mindset to do something like that, it suggests that people who find that argument convincing do think that they were acting immorally.
But what do you- I want to know what you think. You defend them.
I'm sorry, you vote to convict, right?
Yeah, I don't think that they acted in a morally appropriate way.
And why not?
What do you say, here's Marcus, he just defended them.
He said -- you heard what he said.
Yes.
That you've got to do what you've got to do in a case like that. -Yeah.
-What do you say to Marcus?
That there's no situation that would allow human beings to take the idea of fate or the other people's lives in their own hands, that we don't have that kind of power.
Good. Okay.
Thank you.
And what's your name?
Britt.
Britt. Okay. Who else?
What do you say? Stand up.
I'm wondering if Dudley and Steven had asked for Richard Parker's consent in you know, dying, if that would exonerate them from an act of murder and if so, is that still morally justifiable?
That's interesting.
All right. Consent.
Wait wait, hang on.
What's your name?
Kathleen.
Kathleen says suppose they had that, what would that scenario look like?
So in the story Dudley is there, pen knife in hand, but instead of the prayer or before the prayer, he says "Parker, would you mind?"
"We're desperately hungry", as Marcus empathizes with, "we're desperately hungry.
You're not going to last long anyhow."
-Yeah. You can be a martyr.
"Would you be a martyr?
How about it Parker?"
Then what do you think?
Would it be morally justified then?
Suppose Parker in his semi-stupor says "Okay."
I don't think it would be morally justifiable but I'm wondering if -- Even then, even then it wouldn't be?
-No.
You don't think that even with consent it would be morally justified?
Are there people who think who want to take up Kathleen's consent idea and who think that that would make it morally justified?
Raise your hand if it would, if you think it would.
That's very interesting.
Why would consent make a moral difference?
Why would it? Yes.
Well, I just think that if he was making his own original idea and it was his idea to start with, then that would be the only situation in which I would see it being appropriate in any way because that way you couldn't make the argument that he was pressured, you know it's three-to-one or whatever the ratio was.
Right. -And I think that if he was making a decision to give his life and he took on the agency to sacrifice himself which some people might see as admirable and other people might disagree with that decision.
So if he came up with the idea, that's the only kind of consent we could have confidence in morally then it would be okay.
Otherwise, it would be kind of coerced consent under the circumstances, you think.
Is there anyone who thinks that even the consent of Parker would not justify their killing him?
Who thinks that? Yes.
Tell us why. Stand up.
I think that Parker would be killed with the hope that the other crew members would be rescued so there's no definite reason that he should be killed because you don't know when they're going to get rescued so if you kill him, it's killing him in vain, do you keep killing a crew member until you're rescued and then you're left with no one because someone's going to die eventually?
Well, the moral logic of the situation seems to be that, that they would keep on picking off the weakest maybe, one by one, until they were rescued.
And in this case, luckily, they were rescued when three at least were still alive.
Now, if Parker did give his consent, would it be all right, do you think or not?
No, it still wouldn't be right.
-And tell us why it wouldn't be all right.
First of all, cannibalism, I believe, is morally incorrect so you shouldn't be eating human anyway.
So cannibalism is morally objectionable as such so then, even on the scenario of waiting until someone died, still it would be objectionable.
Yes, to me personally, I feel like it all depends on one's personal morals and like we can't sit here and just, like this is just my opinion, of course other people are going to disagree, but -- Well we'll see, let's see what their disagreements are and then we'll see if they have reasons that can persuade you or not.
Let's try that. All right.
Now, is there someone who can explain, those of you who are tempted by consent, can you explain why consent makes such a moral difference?
What about the lottery idea?
Does that count as consent?
Remember at the beginning,
Dudley proposed a lottery,
suppose that they had agreed to a lottery, then how many would then say it was all right?
Suppose there were a lottery, cabin boy lost, and the rest of the story unfolded, then how many people would say it was morally permissible?
So the numbers are rising if we had a lottery.
Let's hear from one of you for whom the lottery would make a moral difference.
Why would it?
I think the essential element, in my mind, that makes it a crime is the idea that they decided at some point that their lives were more important than his, and that, I mean, that's kind of the basis for really any crime.
Right? It's like my needs, my desires are more important than yours and mine take precedent.
And if they had done a lottery where everyone consented that someone should die and it's sort of like they're all sacrificing themselves to save the rest.
Then it would be all right?
A little grotesque but --.
-But morally permissible?
Yes.
-And what's your name?
Matt.
-So Matt, for you,
what bothers you is not the cannibalism but the lack of due process.
I guess you could say that.
Right? And can someone who agrees with Matt say a little bit more about why a lottery would make it, in your view, morally permissible.
Go ahead.
The way I understood it originally was that that was the whole issue is that the cabin boy was never consulted about whether or not something was going to happen to him, even with the original lottery whether or not he would be a part of that, it was just decided that he was the one that was going to die.
Right, that's what happened in the actual case.
Right.
But if there were a lottery and they'd all agreed to the procedure, you think that would be okay?
Right, because then everyone knows that there's going to be a death, whereas the cabin boy didn't know that this discussion was even happening, there was no forewarning for him to know that "Hey, I may be the one that's dying."
All right.
Now, suppose everyone agrees to the lottery, they have the lottery, the cabin boy loses, and he changes his mind.
You've already decided, it's like a verbal contract.
You can't go back on that, you've decided, the decision was made.
If you know that you're dying for the reason of others to live.
If someone else had died, you know that you would consume them so -- Right. But then you could say, "I know, but I lost".
I just think that that's the whole moral issue is that there was no consulting of the cabin boy and that's what makes it the most horrible is that he had no idea what was even going on.
That had he known what was going on, it would be a bit more understandable.
All right. Good. Now I want to hear -- so there are some who think it's morally permissible led by Marcus.
Then there are some who say the real problem here is the lack of consent, whether the lack of consent to a lottery, to a fair procedure or, Kathleen's idea, lack of consent at the moment of death.
And if we add consent, then more people are willing to consider the sacrifice morally justified.
I want to hear now, finally, from those of you who think even with consent, even with a lottery, even with a final murmur of consent by Parker, at the very last moment, it would still be wrong.
And why would it be wrong?
That's what I want to hear. Yes.
Well, the whole time I've been leaning off towards the categorical moral reasoning and I think that there's a possibility I'd be okay with the idea of a lottery and then the loser taking into their own hands to kill themselves so there wouldn't be an act of murder, but I still think that even that way, it's coerced.
Also, I don't think that there is any remorse, like in Dudley's diary, "We're eating our breakfast,' it seems as though he's just sort of like, you know, the whole idea of not valuing someone else's life.
So that makes me feel like I have to take the --
You want to throw the book at him when he lacks remorse or a sense of having done anything wrong.
Right.
So, all right. Good.
Are there any other defenders who say it's just categorically wrong, with or without consent?
Yes. Stand up. Why?
I think undoubtedly
the way our society is shaped murder is murder.
Murder is murder in every way and our society looks at murder down on the same light and I don't think it's any different in any case.
Good. Let me ask you a question.
There were three lives at stake versus one.
Okay.
The one, the cabin boy, he had no family, he had no dependents, these other three had families back home in England; they had dependents; they had wives and children.
Think back to Bentham.
Bentham says we have to consider the welfare, the utility, the happiness of everybody.
We have to add it all up so it's not just numbers, three against one; it's also all of those people at home.
In fact, the London newspaper at that time and popular opinion sympathized with them, Dudley and Stevens, and the paper said if they weren't motivated by affection and concern for their loved ones at home and their dependents, surely they wouldn't have done this.
Yeah and how is that any different from people on a corner trying, with the same desire to feed their family.
I don't think it's any different.
I think in any case, if I'm murdering you to advance my status, that's murder, and I think that we should look at all that in the same light instead of criminalizing certain activities and making certain things seem more violently savage when in the same case, it's all the same, it's all the same act and mentality that goes into murder, necessity to feed your family so -- Suppose it weren't three, Suppose the stakes are even bigger.
Suppose the stakes are even bigger?
I think it's still the same deal.
You think Bentham is wrong to say the right thing to do is to add up the collective happiness?
You think he's wrong about that?
I don't think he's wrong but I think murder is murder in any case.
Well, then Bentham has to be wrong.
If you're right, he's wrong.
Okay, then he's wrong. I'm right.
All right. Thank you.
Well done. All right.
Let's step back from this discussion and notice how many objections have we heard to what they did?
We heard some defenses of what they did.
The defenses had to do with necessity, their dire circumstance and, implicitly at least, the idea that numbers matter.
And not only numbers matter but the wider effects matter; their families back home, their dependents.
Parker was an orphan, no one would miss him.
So if you add up, if you try to calculate the balance of happiness and suffering, you might have a case for saying what they did was the right thing.
Then we heard at least three different types of objections.
We heard an objection that said what they did was categorically wrong, like here at the end, categorically wrong, murder is murder, it's always wrong even if it increases the overall happiness of society, a categorical objection.
But we still need to investigate why murder is categorically wrong.
Is it because even cabin boys have certain fundamental rights?
And if that's the reason, where do those rights come from if not from some idea of the larger welfare or utility or happiness?
Question number one.
Others said a lottery would make a difference, a fair procedure Matt said, and some people were swayed by that.
That's not a categorical objection exactly.
It's saying everybody has to be counted as an equal even though at the end of the day, one can be sacrificed for the general welfare.
That leaves us with another question to investigate.
Why does agreement to a certain procedure, even a fair procedure, justify whatever result flows from the operation of that procedure?
Question number two.
And question number three, the basic idea of consent.
Kathleen got us on to this.
If the cabin boy had agreed himself, and not under duress, as was added, then it would be all right to take his life to save the rest and even more people signed on to that idea.
But that raises a third philosophical question: What is the moral work that consent does?
Why does an act of consent make such a moral difference, that an act that would be wrong, taking a life without consent, is morally permissible with consent?
To investigate those three questions, we're going to have to read some philosophers.
And starting next time, we're going to read Bentham and John Stuart Mill, utilitarian philosophers.
Don't miss the chance to interact online with other viewers of Justice. Join the conversation, take a pop quiz, watch lectures you've missed and learn a lot more.
Justice 02
Putting a Price Tag on Life / How to Measure Pleasure
Last time, we argued about the case of The Queen v. Dudley & Stephens, the lifeboat case, the case of cannibalism at sea.
And with the arguments about the lifeboat in mind, the arguments for and against what Dudley and Stephens did in mind, let's turn back to the philosophy, the utilitarian philosophy of Jeremy Bentham.
Bentham was born in England in 1748.
At the age of 12, he went to Oxford.
At 15, he went to law school.
He was admitted to the Bar at age 19 but he never practiced law.
Instead, he devoted his life to jurisprudence and moral philosophy.
Last time, we began to consider Bentham's version of utilitarianism.
The main idea is simply stated and it's this: The highest principle of morality, whether personal or political morality, is to maximize the general welfare, or the collective happiness, or the overall balance of pleasure over pain; in a phrase, maximize utility.
Bentham arrives at this principle by the following line of reasoning: We're all governed by pain and pleasure, they are our sovereign masters, and so any moral system has to take account of them.
How best to take account?
By maximizing.
And this leads to the principle of the greatest good for the greatest number.
What exactly should we maximize?
Bentham tells us happiness, or more precisely, utility - maximizing utility as a principle not only for individuals but also for communities and for legislators."What, after all, is a community?" Bentham asks.
It's the sum of the individuals who comprise it.
And that's why in deciding the best policy, in deciding what the law should be, in deciding what's just, citizens and legislators should ask themselves the question if we add up all of the benefits of this policy and subtract all of the costs, the right thing to do is the one that maximizes the balance of happiness over suffering.
That's what it means to maximize utility.
Now, today, I want to see whether you agree or disagree with it, and it often goes, this utilitarian logic, under the name of cost-benefit analysis, which is used by companies and by governments all the time.
And what it involves is placing a value, usually a dollar value, to stand for utility on the costs and the benefits of various proposals.
Recently, in the Czech Republic, there was a proposal to increase the excise tax on smoking.
Philip Morris, the tobacco company, does huge business in the Czech Republic.
They commissioned a study, a cost-benefit analysis of smoking in the Czech Republic, and what their cost-benefit analysis found was the government gains by having Czech citizens smoke.
Now, how do they gain?
It's true that there are negative effects to the public finance of the Czech government because there are increased health care costs for people who develop smoking-related diseases.
On the other hand, there were positive effects and those were added up on the other side of the ledger.
The positive effects included, for the most part, various tax revenues that the government derives from the sale of cigarette products, but it also included health care savings to the government when people die early, pension savings -- you don't have to pay pensions for as long - and also, savings in housing costs for the elderly.
And when all of the costs and benefits were added up, the Philip Morris study found that there is a net public finance gain in the Czech Republic of $147,000,000, and given the savings in housing, in health care, and pension costs, the government enjoys savings of over $1,200 for each person who dies prematurely due to smoking.
Cost-benefit analysis.
Now, those among you who are defenders of utilitarianism may think that this is an unfair test.
Philip Morris was pilloried in the press and they issued an apology for this heartless calculation.
You may say that what's missing here is something that the utilitarian can easily incorporate, namely the value to the person and to the families of those who die from lung cancer.
What about the value of life?
Some cost-benefit analyses incorporate a measure for the value of life.
One of the most famous of these involved the Ford Pinto case.
Did any of you read about that?
This was back in the 1970s.
Do you remember what the Ford Pinto was, a kind of car?
Anybody?
It was a small car, subcompact car, very popular, but it had one problem, which is the fuel tank was at the back of the car and in rear collisions, the fuel tank exploded and some people were killed and some severely injured.
Victims of these injuries took Ford to court to sue.
And in the court case, it turned out that Ford had long since known about the vulnerable fuel tank and had done a cost-benefit analysis to determine whether it would be worth it to put in a special shield that would protect the fuel tank and prevent it from exploding.
They did a cost-benefit analysis.
The cost per part to increase the safety of the Pinto, they calculated at $11.00 per part.
And here's -- this was the cost-benefit analysis that emerged in the trial.
Eleven dollars per part at 12.5 million cars and trucks came to a total cost of $137 million to improve the safety.
But then they calculated the benefits of spending all this money on a safer car and they counted 180 deaths and they assigned a dollar value, $200,000 per death, and then the costs to repair, 105 the replacement cost for 2,000 vehicles, it would be destroyed without the safety device $700 per vehicle.
So the benefits turned out to be only $49.5 million and so they didn't install the device.
Needless to say, when this memo of the Ford Motor Company's cost-benefit analysis came out in the trial, it appalled the jurors, who awarded a huge settlement.
Is this a counterexample to the utilitarian idea of calculating?
Because Ford included a measure of the value of life.
Now, who here wants to defend cost-benefit analysis from this apparent counterexample?
Who has a defense?
Or do you think this completely destroys the whole utilitarian calculus?
Yes?
Well, I think that once again, they've made the same mistake the previous case did, that they assigned a dollar value to human life, and once again, they failed to take account things like suffering and emotional losses by the families.
I mean, families lost earnings but they also lost a loved one and that is more valued than $200,000.
Right and -- wait, wait, wait, that's good. What's your name?
Julie Roteau .
So if $200,000, Julie, is too low a figure because it doesn't include the loss of a loved one and the loss of those years of life, what would be - what do you think would be a more accurate number?
I don't believe I could give a number.
I think that this sort of analysis shouldn't be applied to issues of human life.
I think it can't be used monetarily.
So they didn't just put too low a number, Julie says.
They were wrong to try to put any number at all.
All right, let's hear someone who - You have to adjust for inflation.
You have to adjust for inflation.
All right, fair enough.
So what would the number be now?
This was 35 years ago.
Two million dollars.
Two million dollars?
You would put two million?
And what's your name?
Voytek Voytek says we have to allow for inflation.
We should be more generous.
Then would you be satisfied that this is the right way of thinking about the question?
I guess, unfortunately, it is for - there needs to be a number put somewhere, like, I'm not sure what that number would be, but I do agree that there could possibly be a number put on the human life.
All right, so Voytek says, and here, he disagrees with Julie.
Julie says we can't put a number on human life for the purpose of a cost-benefit analysis.
Voytek says we have to because we have to make decisions somehow.
What do other people think about this?
Is there anyone prepared to defend cost-benefit analysis here as accurate as desirable?
Yes? Go ahead.
I think that if Ford and other car companies didn't use cost-benefit analysis, they'd eventually go out of business because they wouldn't be able to be profitable and millions of people wouldn't be able to use their cars to get to jobs, to put food on the table, to feed their children.
So I think that if cost-benefit analysis isn't employed, the greater good is sacrificed, in this case.
All right, let me add.
What's your name?
Raul.
Raul, there was recently a study done about cell phone use by a driver when people are driving a car, and there was a debate whether that should be banned.
Yeah.
And the figure was that some 2,000 people die as a result of accidents each year using cell phones.
And yet, the cost-benefit analysis which was done by the Center for Risk Analysis at Harvard found that if you look at the benefits of the cell phone use and you put some value on the life, it comes out about the same because of the enormous economic benefit of enabling people to take advantage of their time, not waste time, be able to make deals and talk to friends and so on while they're driving.
Doesn't that suggest that it's a mistake to try to put monetary figures on questions of human life?
Well, I think that if the great majority of people try to derive maximum utility out of a service, like using cell phones and the convenience that cell phones provide, that sacrifice is necessary for satisfaction to occur.
You're an outright utilitarian.
Yes. Okay.
All right then, one last question, Raul.- Okay.
And I put this to Voytek, what dollar figure should be put on human life to decide whether to ban the use of cell phones?
Well, I don't want to arbitrarily calculate a figure, I mean, right now.
I think that - You want to take it under advisement?
Yeah, I'll take it under advisement.
But what, roughly speaking, would it be?
You got 2,300 deaths. - Okay.
You got to assign a dollar value to know whether you want to prevent those deaths by banning the use of cell phones in cars. - Okay.
So what would your hunch be?
How much? A million?
Two million?
Two million was Voytek's figure. - Yeah.
Is that about right?- Maybe a million.
A million?- Yeah.
You know, that's good.
Thank you. -Okay.
So, these are some of the controversies that arise these days from cost-benefit analysis, especially those that involve placing a dollar value on everything to be added up.
Well, now I want to turn to your objections, to your objections not necessarily to cost-benefit analysis specifically, because that's just one version of the utilitarian logic in practice today, but to the theory as a whole, to the idea that the right thing to do, the just basis for policy and law is to maximize utility.
How many disagree with the utilitarian approach to law and to the common good?
How many agree with it?
So more agree than disagree.
So let's hear from the critics.
Yes?
My main issue with it is that I feel like you can't say that just because someone's in the minority, what they want and need is less valuable than someone who is in the majority.
So I guess I have an issue with the idea that the greatest good for the greatest number is okay because there are still - what about people who are in the lesser number?
Like, it's not fair to them.
They didn't have any say in where they wanted to be.
All right.
That's an interesting objection.
You're worried about the effect on the minority.
Yes.
What's your name, by the way?
Anna.
Who has an answer to Anna's worry about the effect on the minority?
What do you say to Anna?
Um, she said that the minority is valued less.
I don't think that's the case because individually, the minority's value is just the same as the individual of the majority.
It's just that the numbers outweigh the minority.
And I mean, at a certain point, you have to make a decision and I'm sorry for the minority but sometimes, it's for the general, for the greater good.
For the greater good.
Anna, what do you say?
What's your name?
Yang-Da.
What do you say to Yang-Da?
Yang-Da says you just have to add up people's preferences and those in the minority do have their preferences weighed.
Can you give an example of the kind of thing you're worried about when you say you're worried about utilitarianism violating the concern or respect due the minority?
And give an example.
Okay. So, well, with any of the cases that we've talked about, like for the shipwreck one, I think the boy who was eaten still had as much of a right to live as the other people and just because he was the minority in that case, the one who maybe had less of a chance to keep living, that doesn't mean that the others automatically have a right to eat him just because it would give a greater amount of people a chance to live.
So there may be certain rights that the minority members have, that the individual has that shouldn't be traded off for the sake of utility?
Yes.
Yes, Anna? You know, this would be a test for you.
Back in Ancient Rome, they threw Christians to the lions in the Colosseum for sport.
If you think how the utilitarian calculus would go, yes, the Christian thrown to the lions suffers enormous excruciating pain.
But look at the collective ecstasy of the Romans!
Yang-Da.
Well, in that time, I don't -- if -- in modern day of time, to value the -- to give a number to the happiness given to the people watching, I don't think any, like, policymaker would say the pain of one person, of the suffering of one person is much, much -- is, I mean, in comparison to the happiness gained, it's - No, but you have to admit that if there were enough Romans delirious enough with happiness, it would outweigh even the most excruciating pain of a handful of Christians thrown to the lion.
So we really have here two different objections to utilitarianism.
One has to do with whether utilitarianism adequately respects individual rights or minority rights, and the other has to do with the whole idea of aggregating utility or preferences or values.
Is it possible to aggregate all values to translate them into dollar terms?
There was, in the 1930s, a psychologist who tried to address this second question.
He tried to prove what utilitarianism assumes, that it is possible to translate all goods, all values, all human concerns into a single uniform measure, and he did this by conducting a survey of young recipients of relief, this was in the 1930s, and he asked them, he gave them a list of unpleasant experiences and he asked them, "How much would you have to be paid to undergo the following experiences?" and he kept track.
For example, how much would you have to be paid to have one upper front tooth pulled out?
Or how much would you have to be paid to have one little toe cut off?
Or to eat a live earthworm six inches long?
Or to live the rest of your life on a farm in Kansas?
Or to choke a stray cat to death with your bare hands?
Now, what do you suppose was the most expensive item on that list? - Kansas!
Kansas?
You're right, it was Kansas.
For Kansas, people said they'd have to pay them - they have to be paid $300,000.
What do you think was the next most expensive?
Not the cat.
Not the tooth.
Not the toe.
The worm!
People said you'd have to pay them $100,000 to eat the worm.
What do you think was the least expensive item?
Not the cat.
The tooth.
During the Depression, people were willing to have their tooth pulled for only $4,500.
What?
Now, here's what Thorndike concluded from his study.
Any want or a satisfaction which exists exists in some amount and is therefore measurable.
The life of a dog or a cat or a chicken consists of appetites, cravings, desires, and their gratifications.
So does the life of human beings, though the appetites and desires are more complicated.
But what about Thorndike's study?
Does it support Bentham's idea that all goods, all values can be captured according to a single uniform measure of value?
Or does the preposterous character of those different items on the list suggest the opposite conclusion that maybe, whether we're talking about life or Kansas or the worm, maybe the things we value and cherish can't be captured according to a single uniform measure of value?
And if they can't, what are the consequences for the utilitarian theory of morality?
That's a question we'll continue with next time.
All right, now, let's take the other part of the poll, which is the highest experience or pleasure.
How many say Shakespeare?
How many say Fear Factor?
No, you can't be serious.
Really?
Last time, we began to consider some objections to Jeremy Bentham's version of utilitarianism.
People raised two objections in the discussion we had.
The first was the objection, the claim that utilitarianism, by concerning itself with the greatest good for the greatest number, fails adequately to respect individual rights.
Today, we have debates about torture and terrorism.
Suppose a suspected terrorist was apprehended on September 10th and you had reason to believe that the suspect had crucial information about an impending terrorist attack that would kill over 3,000 people and you couldn't extract the information.
Would it be just to torture the suspect to get the information or do you say no, there is a categorical moral duty of respect for individual rights?
In a way, we're back to the questions we started with about Charlie Carson organ transplant.
So that's the first issue.
And you remember, we considered some examples of cost-benefit analysis, but a lot of people were unhappy with cost-benefit analysis when it came to placing a dollar value on human life.
And so that led us to the second objection.
It questioned whether it's possible to translate all values into a single uniform measure of value.
It asks, in other words, whether all values are commensurable.
Let me give you one other example of an experience.
This actually is a true story.
It comes from personal experience that raises a question at least about whether all values can be translated without loss into utilitarian terms.
Some years ago, when I was a graduate student, I was at Oxford in England and they had men's and women's colleges.
They weren't yet mixed and the women's colleges had rules against overnight male guests.
By the 1970s, these rules were rarely enforced and easily violated, or so I was told.
By the late 1970s, when I was there, pressure grew to relax these rules and it became the subject of debate among the faculty at St. Anne's College, which was one of these all-women's colleges.
The older women on the faculty were traditionalists.
They were opposed to change unconventional moral grounds.
But times have changed and they were embarrassed to give the true grounds for their objection and so they translated their arguments into utilitarian terms."If men stay overnight", they argued, "the costs to the college will increase." "How?" you might wonder."Well, they'll want to take baths and that'll use up hot water," they said.
Furthermore, they argued, "We'll have to replace the mattresses more often." The reformers met these arguments by adopting the following compromise.
Each woman could have a maximum of three overnight male guests each week.
They didn't say whether it had to be the same one or three different provided, and this was the compromise, provided the guest paid 50 pence to defray the cost to the college.
The next day, the national headline in the national newspaper read, "St. Anne's Girls, 50 Pence A Night." Another illustration of the difficulty of translating all values, in this case, a certain idea of virtue, into utilitarian terms.
So, that's all to illustrate the second objection to utilitarianism, at least the part of that objection, that questions whether utilitarianism is right to assume that we can assume the uniformity of value, the commensurability of all values and translate all moral considerations into dollars or money.
But there is a second aspect to this worry about aggregating values and preferences.
Why should we weigh all preferences that people have without assessing whether they're good preferences or bad preferences?
Shouldn't we distinguish between higher pleasures and lower pleasures?
Now, part of the appeal of not making any qualitative distinctions about the worth of people's preferences, part of the appeal is that it is nonjudgmental and egalitarian.
The Benthamite utilitarian says everybody's preferences count and they count regardless of what people want, regardless of what makes different people happy.
For Bentham, all that matters, you'll remember, are the intensity and the duration of a pleasure or pain.
The so-called "higher pleasures or nobler virtues" are simply those, according to Bentham, that produce stronger, longer pleasure.
Yet a famous phrase to express this idea, the quantity of pleasure being equal, pushpin is as good as poetry.
What was pushpin?
It was some kind of a child's game, like tiddlywinks."Pushpin is as good as poetry", Bentham says.
And lying behind this idea, I think, is the claim, the intuition, that it's a presumption to judge whose pleasures are intrinsically higher or worthier or better.
And there is something attractive in this refusal to judge.
After all, some people like Mozart, others Madonna.
Some people like ballet, others bowling.
Who's to say, a Benthamite might argue, who is to say which of these pleasures, whose pleasures are higher, worthier, nobler than others?
But is that right, this refusal to make qualitative distinctions?
Can we altogether dispense with the idea that certain things we take pleasure in are better or worthier than others?
Think back to the case of the Romans in the Colosseum.
One thing that troubled people about that practice is that it seemed to violate the rights of the Christian.
Another way of objection to what's going on there is that the pleasure that the Romans take in this bloody spectacle, should that pleasure, which is abased, kind of corrupt, degrading pleasure, should that even be valorized or weighed in deciding what the general welfare is?
So here are the objections to Bentham's utilitarianism and now, we turn to someone who tried to respond to those objections, a latter-day utilitarian, John Stuart Mill.
So what we need to examine now is whether John Stuart Mill had a convincing reply to these objections to utilitarianism.
John Stuart Mill was born in 1806.
His father, James Mill, was a disciple of Bentham's, and James Mill set about giving his son, John Stuart Mill, a model education.
He was a child prot??g??, John Stuart Mill.
He knew Greek at the age of three, Latin at eight, and age 10, he wrote "A History of Roman Law." At age 20, he had a nervous breakdown.
This left him in a depression for five years, but at age 25, what helped lift him out of this depression is that he met Harriet Taylor.
She and Mill got married, they lived happily ever after, and it was under her influence that John Stuart Mill tried to humanize utilitarianism.
What Mill tried to do was to see whether the utilitarian calculus could be enlarged and modified to accommodate humanitarian concerns, like the concern to respect individual rights, and also to address the distinction between higher and lower pleasures.
In 1859, Mill wrote a famous book on liberty, the main point of which was the importance of defending individual rights and minority rights, and in 1861, toward the end of his life, he wrote the book we read as part of this course, "Utilitarianism." He makes it clear that utility is the only standard of morality, in his view, so he's not challenging Bentham's premise.
He's affirming it.
He says very explicitly, "The sole evidence it is possible to produce that anything is desirable is that people actually do desire it." So he stays with the idea that our de facto actual empirical desires are the only basis for moral judgment.
But then, page eight, also in chapter two, he argues that it is possible for a utilitarian to distinguish higher from lower pleasures.
Now, for those of you who have read Mill already, how, according to him, is it possible to draw that distinction?
How can a utilitarian distinguish qualitatively higher pleasures from lesser ones, base ones, unworthy ones? Yes?
If you've tried both of them and you prefer the higher one, naturally, always.
That's great.
That's right.
What's your name?- John.
So as John points out, Mill says here's the test.
Since we can't step outside actual desires, actual preferences that would violate utilitarian premises, the only test of whether a pleasure is higher or lower is whether someone who has experienced both would prefer it.
And here, in chapter two, we see the passage where Mill makes the point that John just described."Of two pleasures, if there be one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it -- in other words, no outside, no independent standard -- then, that is the more desirable pleasure." What do people think about that argument?
Does it succeed?
How many think that it does succeed of arguing within utilitarian terms for a distinction between higher and lower pleasures?
How many think it doesn't succeed?
I want to hear your reasons.
But before we give the reasons let's do an experiment of Mill's claim.
In order to do this experiment, we're going to look at three short excerpts of popular entertainment.
The first one is a Hamlet soliloquy.
It'll be followed by two other experiences.
See what you think.
What a piece of work is a man, how noble in reason, how infinite in faculties, in form and moving how express and admirable, in action how like an angel, in apprehension how like a god!
The beauty of the world, the paragon of animals - and yet, to me, what is this quintessence of dust?
Man delights not me.
Imagine a world where your greatest fears become reality.
Ahh! They're biting me!
Each show, six contestants from around the country battle each other in three extreme stunts.
Ow!
These stunts are designed to challenge the contestants both physically and mentally.
Six contestants, three stunts, one winner.
Yes! Whooo!
Fear Factor.
Hi-diddily-ho, pedal-to-the-metal-o-philes.
Flanders, since when do you like anything cool?
Well, I don't care for the speed but I can't get enough of that safety gear.
Helmets, roll bars, caution flags...
I like the fresh air...and looking at the poor people in the infield.
Dang, Cletus, why'd you have to park by my parents?
Now, Honey, they's my parents too.
I don't even have to ask which one you liked most.
The Simpsons, how many liked The Simpsons most?
How many Shakespeare?
What about Fear Factor?
How many preferred Fear Factor?
Really?
People overwhelmingly like The Simpsons better than Shakespeare.
All right, now, let's take the other part of the poll, which is the highest experience or pleasure.
How many say Shakespeare?
How many say Fear Factor?
No, you can't be serious.
Really? What?
All right, go ahead.
You can say it.
I found that one the most entertaining.
I know, but which do you think was the worthiest, the noblest experience?
I know you found it the most entertaining.
If something is good just because it is pleasurable, what does it matter whether you have sort of an abstract idea of whether it is good by someone else's sense or not?
All right, so you come down in the straight Benthamite side.
Who is to judge and why should we judge, apart from just registering and aggregating de facto preference?
All right, that's fair enough.
And what's your name?
Nate, okay, fair enough.
All right, so how many think The Simpsons is actually, apart from liking it, is actually the higher experience?
Higher than Shakespeare?
All right, let's see the vote for Shakespeare again.
How many think Shakespeare is higher?
All right.
So why is it -- ideally, I'd like to hear from someone, is there someone who thinks Shakespeare is highest but who preferred watching The Simpsons?
Yes?
Like, I guess just sitting and watching The Simpsons, it's entertaining because they make jokes and they make us laugh.
But like, someone has to tell us that Shakespeare was this great writer.
We had to be taught how to read him, how to understand him.
We had to be taught how to kind of take in Rembrandt, how to analyze a painting.
But let me -- what's your name?
Anisha.
Anisha, when you say someone told you that Shakespeare is better -- Right.
Are you accepting it on blind faith?
You voted that Shakespeare is higher only because the culture tells you that or teachers tell you that or do you actually agree with that yourself?
Well, in the sense that Shakespeare no, but earlier you made an example of Rembrandt.
I feel like I would enjoy reading a comic book more than I would enjoy kind of analyzing Rembrandt because someone told me it was great, you know. - Right.
So some of this seems to be, you're suggesting, a kind of a cultural convention and pressure.
We're told what books, what works of art are great. - Right.
Who else?
Yes?
Although I enjoyed watching The Simpsons more in this particular moment, in justice, if I were to spend the rest of my life considering the three different video clips shown, I would not want to spend that remainder of my life considering the latter two clips.
I think I would derive more pleasure from being able to branch out in my own mind sort of considering more deep pleasures, more deep thoughts.
And tell me your name.
Joe.
Joe, so if you had to spend the rest of your life on a farm in Kansas with only Shakespeare or the collected episodes of The Simpsons, you would prefer Shakespeare?
What do you conclude from that about John Stuart Mill's test that the test of a higher pleasure is whether people who have experienced both prefer it?
Can I cite another example briefly?
Yeah.
In Neurobiology last year, we were told of a rat who was tested a particular center in the brain where the rat was able to stimulate his brain and caused itself intense pleasure repeatedly.
The rat did not eat or drink until it died.
So the rat was clearly experiencing intense pleasure.
Now, if you ask me right now if I would rather experience intense pleasure or have a full lifetime of higher pleasure, I would consider intense pleasure to be low pleasure.
I would right now enjoy intense pleasure but -- yes, I would.
I certainly would.
But over a lifetime, I would think that a majority here would agree that they would rather be a human with higher pleasure than be that rat with intense pleasure for a momentary period of time.
Now, in answer to your question, I think this proves that - or I won't say "proves." I think the conclusion is that Mill's theory that when a majority of people are asked what they would rather do, they will answer that they would rather engage in a higher pleasure.
So you think that this support Mill's you think Mill is onto something here?
I do.
All right, Is there anyone who disagrees with Joe and who thinks that our experiment disproves Mill's test, shows that that's not an adequate way, that you can't distinguish higher pleasures within the utilitarian framework?
Yes?
If whatever is good is truly just whatever people prefer, it's truly relative and there's no objective definition, then there will be some society where people prefer Simpsons more.
Anyone can appreciate The Simpsons but I think it does take education to appreciate Shakespeare as much.
All right, you're saying it takes education to appreciate higher true things.
Mill's point is that the higher pleasures do require cultivation and appreciation and education.
He doesn't dispute that.
But once having been cultivated and educated, people will see, not only see the difference between higher and lower pleasures, but will actually prefer the higher to the lower.
You find this famous passage from John Stuart Mill."It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied.
And if the fool, or the pig, are of a different opinion, it is because they only know their side of the question." So here, you have an attempt to distinguish higher from lower pleasures.
So going to an art museum or being a couch potato and swilling beer, watching television at home.
Sometimes, Mill agrees, we might succumb to the temptation to do the latter, to be couch potatoes.
But even when we do that out of indolence and sloth, we know that the pleasure we get gazing at Rembrandts in the museum is actually higher because we've experienced both, and it is a higher pleasure gazing at Rembrandts because it engages our higher human faculties.
What about Mill's attempt to reply to the objection about individual rights?
In a way, he uses the same kind of argument, and this comes out in chapter five.
He says, "I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility." But still, he considers justice grounded on utility to be what he calls "the chief part and incomparably, the most sacred and binding part of all morality." So justice is higher, individual rights are privileged, but not for reasons that depart from utilitarian assumptions.
Justice is a name, for certain moral requirements, which, regarded collectively, stand higher in the scale of social utility and are, therefore, of more paramount obligation than any others.
So justice, it is sacred.
It's prior.
It's privileged.
It isn't something that can easily be traded off against lesser things.
But the reason is ultimately, Mill claims, a utilitarian reason once you consider the long-run interests of humankind, of all of us as progressive beings.
If we do justice and if we respect rights, society as a whole will be better off in the long run.
Well, is that convincing or is Mill actually, without admitting it, stepping outside utilitarian considerations in arguing for qualitatively higher pleasures and for sacred or especially important individual rights?
We haven't fully answered that question because to answer that question, in the case of rights and justice, will require that we explore other ways, non-utilitarian ways of accounting for the basis of rights and then asking whether they succeed.
As for Jeremy Bentham, who launched utilitarianism as a doctrine in moral and legal philosophy, Bentham died in 1832 at the age of 85.
But if you go to London, you can visit him today literally.
He provided in his will that his body be preserved, embalmed, and displayed in the University of London, where he still presides in a glass case with a wax head, dressed in his actual clothing.
You see, before he died, Bentham addressed himself to a question consistent with his philosophy.
Of what use could a dead man be to the living?
One use, he said, would be to make one's corpse available to the study of anatomy.
In the case of great philosophers, however, better yet to preserve one's physical presence in order to inspire future generations of thinkers.
You want to see what Bentham looks like stuffed?
Here is what he looks like.
There he is.
Now, if you look closely, you will notice that the embalming of his actual head was not a success, so they substituted a waxed head and at the bottom, for verisimilitude, you can actually see his actual head on a plate.
You see it?
Right there.
So, what's the moral of the story?
The moral of the story - and by the way, they bring him out during meetings of the board at University College London and the minutes record him as present but not voting.
Here is a philosopher in life and in death who adhered to the principles of his philosophy.
We'll continue with rights next time.
Don't miss the chance to interact online with other viewers of Justice.
Join the conversation, take a pop quiz, watch lectures you've missed, and learn a lot more.
It's at justiceharvard.org.
Justice 03
Free to Choose / Who Owns Me?
When we finished last time, we were looking at John Stuart Mill's attempt to reply to the critics of Bentham's Utilitarianism.
In his book Utilitarianism Mill tries to show that critics to the contrary it is possible within the utilitarian framework to distinguish between higher and lower pleasures.
It is possible to make qualitative distinctions of worth and we tested that idea with the Simpsons and the Shakespeare excerpts.
And the results of our experiment seem to call into question Mill's distinction because a great many of you reported that you prefer the Simpsons but that you still consider Shakespeare to be the higher or the worthier pleasure.
That's the dilemma with which our experiment confronts Mill.
What about Mill's attempt to account for the especially weighty character of individual rights and justice in chapter five of Utilitarianism.
He wants to say that individual rights are worthy of special respect.
In fact, he goes so far as to say that justice is the most sacred part and the most incomparably binding part of morality.
But the same challenge could be put to this part of Mill's defense.
Why is justice the chief part and the most binding part of our morality?
Well, he says because in the long run, if we do justice and if we respect rights, society as a whole will be better off in the long run.
Well, what about that?
What if we have a case where making an exception and violating individual rights actually will make people better off in the long run?
Is it all right then to use people?
And there is a further objection that could be raised against Mill's case for justice and rights.
Suppose the utilitarian calculus in the long run works out as he says it will such that respecting people's rights is a way of making everybody better off in the long run.
Is that the right reason?
Is that the only reason to respect people?
If the doctor goes in and yanks the organs from the healthy patient who came in for a checkup to save five lives, there would be adverse effects in the long run.
Eventually, people would learn about this and would stop going in for checkups.
Is it the right reason?
Is the only reason that you as a doctor won't yank the organs out of the healthy patient that you think, well, if I use him in this way, in the long run more lives would be lost?
Or is there another reason having to do with intrinsic respect for the person as an individual?
And if that reason matters and it's not so clear that even Mill's utilitarianism can take account of it, fully to examine these two worries or objections, to Mill's defense we need to push further.
And we need to ask in the case of higher or worthier pleasures are there theories of the good life that can provide independent moral standards for the worth of pleasure?
If so, what do they look like?
That's one question.
In the case of justice and rights, if we suspect that Mill is implicitly leaning on notions of human dignity or respect for person that are not strictly speaking utilitarian, we need to look to see whether there are some stronger theories of rights that can explain the intuition which even Mill shares, the intuition that the reason for respecting individuals and not using them goes beyond even utility in the long run.
Today, we turn to one of those strong theories of rights.
Strong theories of right say individuals matter not just as instruments to be used for a larger social purpose or for the sake of maximizing utility, individuals are separate beings with separate lives worthy of respect.
And so it's a mistake, according to strong theories or rights, it's a mistake to think about justice or law by just adding up preferences and values.
The strong rights theory we turn to today is libertarianism.
Libertarianism takes individual rights seriously.
It's called libertarianism because it says the fundamental individual right is the right to liberty precisely because we are separate individual beings.
We're not available to any use that the society might desire or devise precisely because we are individual separate human beings.
We have a fundamental right to liberty, and that means a right to choose freely, to live our lives as we please provided we respect other people's rights to do the same.
That's the fundamental idea.
Robert Nozick, one of the libertarian philosophers we read for this course, puts it this way: Individuals have rights.
So strong and far reaching are these rights that they raise the question of what, if anything, the state may do.
So what does libertarianism say about the role of government or of the state?
Well, there are three things that most modern states do that on the libertarian theory of rights are illegitimate or unjust.
One of them is paternalist legislation.
That's passing laws that protect people from themselves, seatbelt laws, for example, or motorcycle helmet laws.
The libertarian says it may be a good thing if people wear seatbelts but that should be up to them and the state, the government, has no business coercing them, us, to wear seatbelts by law.
It's coercion, so no paternalist legislation, number one.
Number two, no morals legislation.
Many laws try to promote the virtue of citizens or try to give expression to the moral values of the society as a whole.
Libertarian say that's also a violation of the right to liberty.
Take the example of, well, a classic example of legislation authored in the name of promoting morality traditionally have been laws that prevent sexual intimacy between gays and lesbians.
The libertarian says nobody else is harmed, nobody else's rights are violated, so the state should get out of the business entirely of trying to promote virtue or to enact morals legislation.
And the third kind of law or policy that is ruled out on the libertarian philosophy is any taxation or other policy that serves the purpose of redistributing income or wealth from the rich to the poor.
Redistribution is a ?C if you think about it, says the libertarian is a kind of coercion.
What it amounts to is theft by the state or by the majority, if we're talking about a democracy, from people who happen to do very well and earn a lot of money.
Now, Nozick and other libertarians allow that there can be a minimal state that taxes people for the sake of what everybody needs, the national defense, police force, judicial system to enforce contracts and property rights, but that's it.
Now, I want to get your reactions to this third feature of the libertarian view.
I want to see who among you agree with that idea and who disagree and why.
But just to make it concrete and to see what's at stake, consider the distribution of wealth in the United States.
United States is among the most inegalitarian society as far as the distribution of wealth of all the advanced democracies.
Now, is this just or unjust?
Well, what does the libertarian say?
Libertarian says you can't know just from the facts I've just given you.
You can't know whether that distribution is just or unjust.
You can't know just by looking at a pattern or a distribution or result whether it's just or unjust.
You have to know how it came to be.
You can't just look at the end stage or the result.
You have to look at two principles.
The first he calls justice in acquisition or in initial holdings.
And what that means simply is did people get the things they used to make their money fairly?
So we need to know was there justice in the initial holdings?
Did they steal the land or the factory or the goods that enabled them to make all that money?
If not, if they were entitled to whatever it was that enabled them to gather the wealth, the first principle is matched.
The second principle is did the distribution arise from the operation of free consent, people buying and trading on the market?
As you can see, the libertarian idea of justice corresponds to a free market conception of justice provided people got what they used fairly, didn't steal it, and provided the distribution results from the free choice of individual's buying and selling things, the distribution is just.
And if not, it's unjust.
So let's, in order to fix ideas for this discussion, take an actual example.
Who's the wealthiest person in the United States ?C wealthiest person in the world?
Bill Gates.
It is. That's right.
Here he is.
You'd be happy, too.
Now, what's his net worth?
Anybody have any idea?
That's a big number.
During the Clinton years, remember there was a controversy donors?
Big campaign contributors were invited to stay overnight in the Lincoln bedroom at the White House?
I think if you've contributed twenty five thousand dollars or above, someone figured out at the median contribution that got you invited to stay a night in the Lincoln bedroom, Bill Gates could afford to stay in the Lincoln bedroom every night for the next sixty six thousand years.
Somebody else figured out, how much does he get paid on an hourly basis?
And so they figured out, since he began Microsoft, I suppose he worked, what 14 hours per day, reasonable guess, and you calculate this net wealth, it turns out that his rate of pay is over 150 dollars, not per hour, not per minute 150 dollars per second 187 which means that if on his way to the office, Gates noticed a hundred dollar bill on the street, it wouldn't be worth his time to stop and pick it up.
Now, most of you will say someone that wealthy surely we can tax them to meet the pressing needs of people who lack in education or lack enough to eat or lack decent housing.
They need it more than he does.
And if you were a utilitarian, what would you do?
What tax policy would you have?
You'd redistribute in a flash, wouldn't you?
Because you would know being a good utilitarian that taking some, a small amount, he'd scarcely going to notice it, but it will make a huge improvement in the lives and in the welfare of those at the bottom.
But remember, the libertarian theory says we can't just add up an aggregate preferences and satisfactions that way.
We have to respect persons and if he earned that money fairly without violating anybody else's rights in accordance with the two principles of justice in acquisition and in justice in transfer, then it would be wrong, it would be a form of coercion to take it away Michael Jordan is not as wealthy as Bill Gates but he did pretty well for himself.
You wanna see Michael Jordan.
There he is.
His income alone in one year was 211 he made another 47 million dollars in endorsements for a Nike and other companies.
So his income was, in one year, $78 million.
To require him to pay, let's say, a third of his earnings to the government to support good causes like food and health care and housing and education for the poor, that's coercion, that's unjust.
That violates his rights.
And that's why redistribution is wrong.
Now, how many agree with that argument, agree with the libertarian argument that redistribution for the sake of trying to help the poor is wrong?
And how many disagree with that argument?
All right, let's begin with those who disagree.
What's wrong with the libertarian case against redistribution?
Yes.
I think these people like Michael Jordan have received we're talking about working within a society and they receive a larger gift from the society and they have a larger obligation in return to give that through redistribution, you know, you can say that Michael Jordan may work just as hard as some who works, you know, doing laundry 12 hours, 231 I don't think it's fair to say that, you know, it's all on him, on his, you know, inherent, you know, hard work.
All right, let's hear from defenders of libertarianism.
Why would it be wrong in principle to tax the rich to help the poor?
Go ahead.
My name is Joe and I collect skateboards.
I've since bought a hundred skateboards.
I live in a society of a hundred people.
I'm the only one with skateboards.
Suddenly, everyone decides they want a skateboard.
They come to my house, they take my they take 99 of my skateboards.
I think that is unjust.
Now, I think in certain circumstances it becomes necessary to overlook that unjustness, perhaps condone that injustice as in the case of the cabin boy being killed for food.
If people are on the verge of dying, perhaps it is necessary to overlook that injustice, but I think it's important to keep in mind that we're still committing injustice by taking people's belongings or assets.
Are you saying that taxing Michael Jordan, say, at a 33 percent tax rate for good causes to feed the hungry is theft?
I think it's unjust.
Yes, I do believe it's theft but perhaps it is necessary to condone that theft.
But it's theft.
Yes.
Why is it theft, Joe?
Because -- Why is it like your collection of skateboards?
It's theft because, or at least, in my opinion and by the libertarian opinion he earned that money fairly and it belongs to him.
So to take it from him is by definition theft.
All right, let's hear if there is°≠ Who wants to reply to Joe?
Yes, go ahead.
I don't think this is necessarily a case in which you have 99 skateboards and the government°≠ or you have a hundred skateboards and the government is taking 99 of them.
It's like you have more skateboards than there are days in a year.
You have more skateboards that you're going to be able to use in your entire lifetime and the government is taking part of those.
And I think that if you are operating in a society in which the government's not ?C in which the government doesn't redistribute wealth, then that allows for people to amass so much wealth that people who haven't started from this very the equal footing in our hypothetical situation, that doesn't exist in our real society get undercut for the rest of their lives.
So you're worried that if there isn't some degree of redistribution of some or left at the bottom, there will be no genuine equality of opportunity.
All right, the idea that taxation is theft, Nozick takes that point one step further.
He agrees that it's theft.
He's more demanding than Joe.
Joe says it is theft, maybe in an extreme case it's justified, maybe a parent is justified in stealing a loaf of bread to feed his or her hungry family.
So Joe I would say, what would you call yourself, a compassionate quasi-libertarian?
Nozick says, if you think about it, taxation amounts to the taking of earnings.
In other words, it means taking the fruits of my labor.
But if the state has the right to take my earning or the fruits of my labor, isn't that morally the same as according to the state the right to claim a portion of my labor?
So taxation actually is morally equivalent to forced labor because forced labor involves the taking of my leisure, my time, my efforts, just as taxation takes the earnings that I make with my labor.
And so, for Nozick and for the libertarians, taxation for redistribution is theft, as Joe says, but not only theft is morally equivalent to laying claim to certain hours of a person's life and labor, so it's morally equivalent to forced labor.
If the state has a right to claim the fruits of my labor, that implies that it really has an entitlement to my labor itself.
And what is forced labor?
Forced labor, Nozick points out, is what, is slavery, because if I don't have the right, the sole right to my own labor, then that's really to say that the government or the political community is a part owner in me.
And what does it mean for the state to be a part owner in me?
If you think about it, it means that I'm a slave, that I don't own myself.
So what this line of reasoning brings us to is the fundamental principle that underlies the libertarian case for rights.
What is that principle?
It's the idea that I own myself.
It's the idea of self possession if you want to take right seriously.
If you don't want to just regard people as collections of preferences, the fundamental moral idea to which you will be lead is the idea that we are the owners or the propietors of our own person, and that's why utilitarianism goes wrong.
And that's why it's wrong to yank the organs from that healthy patient.
You're acting as if that patient belongs to you or to the community.
But we belong to ourselves.
And that's the same reason that it's wrong to make laws to protect us from ourselves or to tell us how to live, to tell us what virtues we should be governed by, and that's also why it's wrong to tax the rich to help the poor even for good causes, even to help those who are displaced by the Hurricane Katrina.
Ask them to give charity.
But if you tax them, it's like forcing them to labor.
Could you tell Michael Jordan he has to skip the next week's games and go down to help the people displaced by Hurricane Katrina?
Morally, it's the same.
So the stakes are very high.
So far we've heard some objections to the libertarian argument.
But if you want to reject it, you have to break in to this chain of reasoning which goes, taking my earnings is like taking my labor, but taking my labor is making me a slave.
And if you disagree with that, you must believe in the principle of self possession.
Those who disagree, gather your objections and we'll begin with them next time.
Anyone like to take up that point? Yes.
I feel like when you live in a society, you'd give up that right.
I mean, technically, if I want to personally go out and kill someone because they offend me, that is self possession.
Because I live in a society, I cannot do that.
Victoria, are you questioning the fundamental premise of self possession?
Yes. I think that you don't really have self possession if you choose to live in a society because you cannot just discount the people around you.
We were talking last time about libertarianism.
I want to go back to the arguments for and against the redistribution of income.
But before we do that, just one word about the minimal state, Milton Friedman, the libertarian economist, he points out that many of the functions that we take for granted as properly belonging to government don't.
They are paternalist.
One example he gives is social security.
He says it's a good idea for people to save for their retirement during their earning years but it's wrong.
It's a violation of people's liberty for the government to force everyone whether they want to or not to put aside some earnings today for the sake of their retirement.
If people want to take the chance or if people want to live big today and live a poor retirement, that should be their choice.
They should be free to make those judgments and take those risks.
So even social security would still be at odds with the minimal state that Milton Friedman argued for.
It sometimes thought that collective goods like police protection and fire protection will inevitably create the problem of free riders unless they're publicly provided.
But there are ways to prevent free riders.
There are ways to restrict even seemingly collective goods like fire protection.
I read an article a while back about a private fire company, the Salem Fire Corporation, in Arkansas.
You can sign up with the Salem Fire Corporation, pay a yearly subscription fee, and if your house catches on fire, they will come and put out the fire.
But they won't put out everybody's fire.
They will only put it out if it's a fire in the home of a subscriber or if it starts to spread and to threaten the home of a subscriber.
The newspaper article just told the story of a home owner who had subscribed to this company in the past but failed to renew his subscription.
His house caught on fire.
The Salem Fire Corporation showed up with its trucks and watched the house burn, just making sure that it didn't spread.
The fire chief was asked, well, he wasn't exactly the fire chief.
I guess he was the CEO.
He was asked how can you stand by with fire equipment and allow a person's home to burn?
He replied, once we verified there was no danger to a member's property, we had no choice but to back off according to our rules.
If we responded to all fires, he said, there would be no incentive to subscribe.
The homeowner in this case tried to renew his subscription at the scene of the fire.
But the head of the company refused.
You can't wreck your car, he said, and then buy insurance for it later.
So even public goods that we take for granted that's being within the proper province of government can many of them in principle be isolated, made exclusive to those who pay.
That's all to do with the question of collective goods and the libertarians injunction against paternalism.
But let's go back now to the arguments about redistribution.
Now, underlying the libertarian's case for the minimal state is a worry about coercion, but what's wrong with coercion?
The libertarian offers this answer: To coerce someone, to use some person for the sake of the general welfare is wrong because it calls into question the fundamental fact that we own ourselves the fundamental moral fact of self possession or self ownership.
The libertarian's argument against redistribution begins with this fundamental idea that we own ourselves.
Nozick says that if the society as a whole can go to Bill Gates or go to Michael Jordan and tax away a portion of their wealth, what the society is really asserting is a collective property right in Bill Gates or in Michael Jordan.
But that violates the fundamental principle that we belong to ourselves.
Now, we've already heard a number of objections to the libertarian argument.
What I would like to do today is to give the libertarians among us a chance to answer the objections that have been raised and some have been some have already identified themselves and have agreed to come and make the case for libertarianism to reply to the objections that have been raised.
So raise your hand if you are among the libertarians who's prepared to stand up for the theory and respond to the objections.
You are?
Alex Harris.
Alex Harris, who's been a star on the web blog.
All right, Alex, come here.
Stand up.
Come.
We'll create a libertarian corner over here.
And who else?
Other libertarians who will join.
What's your name?
John.
John?
Sheffield.
John Sheffield.
Who else wants to join?
Other brave libertarians who are prepared to take on Yes, what's your name?
Julia Rotto.
Julia Rotto.
Julia, come join us over there.
Now, while the ?C while team libertarian Julie, John, Alex.
While team libertarian is gathering over there, let me just summarize the main objections that I've heard in class and on the website.
Objection number one?C and here I'll come down to- I wanna talk to team libertarian over here.
So objection number one is that the poor need the money more.
That's an obvious objection, a lot more than -- thanks ?C than do Bill Gates and Michael Jordan.
Objection number two, it's not really slavery to tax because at least in a democratic society it's not a slave holder.
It's congress.
It's a democratic°? you're smiling, Alex, already.
You're confident you can reply to all of these?
So taxation by consent of the governed is not coercive.
Third, some people have said don't the successful like Gates owe a debt to society for their success that they repay by paying taxes.
Who wants to respond to the first one, the poor need the money more?
All right, and you're?
John.
John. All right, John, what's the, here I'll hold it.
All right.
The poor need the money more.
That's quite obvious.
I could use the money.
You know, I certainly wouldn't mind if Bill Gates give me a million dollars.
I mean, I'd take a thousand.
But at some point you have to understand that the benefits of redistribution of wealth don't justify the initial violation of the property right.
If you look at the argument the poor need the money more, at no point in that argument do you contradict the fact that we've extrapolated from, agreed upon principles that people own themselves.
We've extrapolated that people have property rights and so whether or not it would be a good thing or a nice thing or even a necessary thing for the survival of some people, we don't see that that justifies the violation of the right that we've logically extrapolated.
Good. Okay.
And so that also, I mean, there still exist this institution of like individual philanthropy.
Milton Friedman makes this argument- All right, so Bill Gates can give to charity if he wants to.
Right.
But it would still be wrong to coerce him.
Exactly.
To meet the needs of the poor.
Exactly.
Are the two of you happy with that reply?
Anything to add?
All right, go ahead. Julie?
Julia, yes.
I think I can also add, it's okay.
I guess I could add that there's a difference between needing something and deserving something.
I mean, in an ideal society everyone's needs would be met but here we're arguing what do we deserve as a society and, yeah.
And the poor don't deserve don't deserve the benefits that would flow from taxing Michael Jordan to help them.
Based on what we've covered here I don't think you deserve something like that.
All right, let me push you a little bit on that, Julia.
The victims of Hurricane Katrina are in desperate need of help.
Would you say that they don't deserve help that would come from the federal government through taxation?
Okay, that's a difficult question.
I think this is a case where they need help, not deserve it, but I think, again, if you had a certain level of requirements to meet sustenance, you're gonna need help, like, if you don't have food or a place to live, that's a case of need.
So need is one thing and deserve is another.
Exactly.
All right.
Who would like to reply?
Yes.
Going back to the first point that you made about the property rights of individual.
The property rights are established and enforced by the government, which is a democratic government, and we have representatives to enforce those rights.
If you live in a society that operates under those rules, then it should be up to the government to decide how those resources[inaudible]taxation are distributed because it is through the consent of the government.
If you disagree with it, you don't have to live in that society where that operates.
All right, good, so, and tell me your name.
Raul.
Raul is pointing out, actually, Raul is invoking point number two.
If the taxation is by the consent of the governed, it's not coerced.
It's legitimate.
Bill Gates and Michael Jordan are citizens of the United States.
They get to vote for congress.
They get to vote their policy convictions just like everybody else.
Who would like to take that one on? John?
Basically, what the libertarians are objecting to in this case is the middle 80 percent deciding what the top ten percent are doing for the bottom ten percent.
Wait, wait, wait, John.
Majority.
Don't you believe in democracy?
Well, right, but at some point -- Don't you believe in, I mean, you say 80 percent, Majority rule is what?549 The majority.
Exactly, but -- In a democracy.
Aren't you for democracy?
Yes, I'm for democracy, but Hang on, hang on, hang on.
Democracy and mob rule aren't the same thing.
Mob rule?
Mob rule, exactly.
In an open society you have a recourse to address that through your representatives.
And if the majority of the consent of those who are governed doesn't agree with you, then you know, you're choosing to live in a society and you have to operate under what the majority the society concludes.
All right, Alex, on democracy.
What about that?
The fact that I have one, you know, five hundred thousandth of the vote for one representative in congress is not the same thing as my having the ability to decide for myself how to use my property rights.
I'm a drop in the bucket and, you know, well -- You might lose the vote.
Exactly.
And they might take -- And I will.
I mean, I don't have the decision right now of whether or not to pay taxes.
If I don't, I get locked in jail or they tell me to get out of the country.
But, Alex, Alex, let me make a small case for democracy.
And see what you would say.
Why can't you, we live in a democratic society with freedom of speech.
Why can't you take to the Hustings, persuade your fellow citizens that taxation is unjust and try to get a majority?
I don't think that people should be, should have to convince 280 million others simply in order to exercise their own rights, in order to not have their self ownership violated.
I think people should be able to do that without having to convince 280 million people.
Does that mean you are against democracy as a whole?
I -- no.
I just believe in a very limited form of democracy whereby we have a constitution that severely limits the scope of what decisions can be made democratically.
All right, so you're saying that democracy is fine except where fundamental rights are involved.
Yes.
And I think you could win.
If you're going on the Hustings, let me add one element to the argument you might make.
You can say put aside the economic debates, taxation.
Suppose the individual right to religious liberty were at stake, then, Alex, you could say, on the Hustings.
Surely, you would all agree that we shouldn't put the right to individual liberty up to a vote.
Yeah, that's exactly right, and that's why we have a constitutional amendments.and why do we make it so hard to amend our constitution.
So you would say that the right to private property, the right of Michael Jordan to keep all the money he makes at least to protect it from redistribution is the same kind of right with the same kind of weight as the right to freedom of speech, the right to religious liberty, rights that should trump what the majority wants.
Absolutely.
The reason why we have a right to free speech is because we have a right to own ourselves, to exercise our voice in any way that we choose.
All right, good.
All right, so there we°? All right, who would like to respond to that argument about democracy being- Okay, up there. Stand up.
I think comparing religion economics it's not the same thing.
The reason why Bill Gates is able to make so much money is because we live in an economically and socially stable society.
And if the government didn't provide for the poor as ten percent as you say through taxation, then we would need more money for police to prevent crime and so, either way, there would be more taxes taken away to provide what you guys call the necessary things that the government provides.
What's your name?
Anna.
Anna, let me ask you this.
Why is the fundamental right to religious liberty different from the right Alex asserts as a fundamental right to private property and to keep what I earn?
What's the difference between the two?
Because you wouldn't have- You wouldn't be able to make money, you wouldn't be able to own property if there wasn't that socially, like, if society wasn't stable, and that's completely different from religion.
That's like something personal, something that you can practice on your own in your own home or like me practicing my religion is not going to affect the next person.
But if I'm poor and I'm desperate, like I might commit a crime to feed my family and that can affect others.
Okay, good, thank you.
Would it be wrong for someone to steal a loaf of bread to feed his starving family?
Is that wrong?
I believe that it is.
This is -- Let's take a quick poll of the three of you.
You say, yes, it is wrong.
Yes.
John?
It violates property rights.
It's wrong.
Even to save a starving family?
I mean there are definitely other ways around that and by justifying, no, hang on, hang on, before you laugh at me.
Before justifying the act of stealing, you have to look at violating the right that we've already agreed exists, the right of self possession and the possession of, I mean, your own things.
We agree on property rights.
All right, we agree at stealing.
Yeah, we agree at stealing.
So property rights is not the issue.
All right, but -- So why is it wrong to steal even to feed your starving family?
Sort of the original argument that I made in the very first question you asked.
The benefits of an action don't justify, don't make the action just.
Do what, what would you say, Julia?
Is it all right to steal a loaf of bread to feed a starving family or to steal a drug that your child needs to survive?
I think, I'm okay with that, honestly.
Even from the libertarian standpoint, I think that, okay, saying that you can just take money arbitrarily from people who have a lot to go to this pool of people who need it, but you have an individual who's acting on their own behalf to kind of save themselves and then I think you said they, for any idea like self possession, they are also in charge of protecting themselves and keeping themselves alive so, therefore, even for a libertarian standpoint, that might be okay.
All right, that's good, that's good.
All right, what about number three up here?
Isn't it the case that the successful, the wealthy, owe a debt.
They didn't do that all by themselves.
They had to cooperate with other people that they owe a debt to society and that that's expressed in taxation.
You wanna take that on, Julia?
Okay, this one, I believe that there is not a debt to society in the sense that how did these people become wealthy?
They did something that society valued highly.
I think that society has already been giving, been providing for them if anything, I think it's°≠ everything is cancelled out.
They provided a service to society and society responded by somehow they got their wealth, so I think that -- So be concrete.
In the case of Michael Jordan, some°≠ I mean, to illustrate your point.
There were people who helped him make the money, the teammates, the coach, people who taught him how to play.
But they've, you're saying, but they've all been paid for their services.
Exactly, and society derived a lot of benefit and pleasure from watching Michael Jordan play.
I think that that's how he paid his debt to society.
All right, good.
Who would, anyone likes to take up that point? Yes.
I think that there's a problem here with that we're assuming that a person has self possession when they live in a society.
I feel like when you live in a society, you give up that right.
I mean, technically, if I want to personally go out and kill someone because they offend me, that is self possession.
Because I live in a society I cannot do that.
I think it's kind of equivalent to say because I have more money, I have resources that can save people's lives, is it not okay for the government to take that from me?
Self possession only to a certain extent because I'm living in a society where I have to take account of the people around me.
So are you question, what's your name?
Victoria.
Victoria, are you questioning the fundamental premise of self possession?
Yes.
I think that you don't really have self possession if you choose to live in a society because you cannot just discount the people around you.
All right, I want to quickly get the response of the libertarian team to the last point.
The last point builds on, well, maybe it builds on Victoria's suggestion that we don't own ourselves because it says that Bill Gates is wealthy, that Michael Jordan makes a huge income, isn't wholly their own doing.
It's the product of a lot of luck and so we can't claim that they morally deserve all the money they make.
Who wants to reply to that?
Alex?
You certainly could make the case that it is not°≠ their wealth is not appropriate to the goodness in their hearts, but that's not really the morally relevant issue.
The point is that they have received what they have through the free exchange of people who have given them their holdings, usually in exchange for providing some other service Good enough.
I want to try to sum up what we've learned from this discussion, but, first, let's thank John, Alex, and Julia for a really wonderful job.
Toward the end of the discussion just now Victoria challenged the premise of this line of reasoning that's libertarian logic.
Maybe, she suggested, we don't own ourselves after all.
If you reject the libertarian case against redistribution, there would seem to be an incentive to break in to the libertarian line of reasoning at the earliest, at the most modest level, which is why a lot of people disputed that taxation is morally equivalent to forced labor.
But what about the big claim, the premise, the big idea underlying the libertarian argument?
Is it true that we own ourselves or can we do without that idea and still avoid what libertarians want to avoid creating a society in an account of justice where some people can be just used for the sake of other people's welfare or even for the sake of the general good?
Libertarians combat the utilitarian idea of using people as means for the collective happiness by saying the way to put a stop to that utilitarian logic of using persons is to resort to the intuitively powerful idea that we are the proprietors of our own person.
That's Alex and Julia and John and Robert Nozick.
What are the consequences for a theory of justice and in account of rights of calling into question the idea of self possession?
Does it mean that we're back to utilitarianism and using people and aggregating preferences and pushing the fat man off the bridge?
Nozick doesn't himself fully develop the idea of self possession.
He borrows it from an earlier philosopher, John Locke.
John Locke accounted for the rise of private property from the state of nature by a chain of reasoning very similar to the one that Nozick and the libertarians use.
John Locke said private property arises because when we mix our labor with things, unowned things, we come to aquire a property right in those things.
And the reason?
The reason is that we own our own labor, and the reason for that?
We are the proprietors, the owners of our own person.

Justice 04
This Land is my Land / Consenting Adults
Today, we turn to John Locke.
On the face of it, Locke is a powerful ally of the libertarian.
First, he believes, as libertarians today maintain, that there are certain fundamental individual rights that are so important that no government, even a representative government, even a democratically elected government, can override them.
Not only that, he believes that those fundamental rights include a natural right to life, liberty, and property, and furthermore he argues that the right to property is not just the creation of government or of law.
The right to property is a natural right in the sense that it is prepolitical.
It is a right that attaches to individuals as human beings, even before government comes on the scene, even before parliaments and legislatures enact laws to define rights and to enforce them.
Locke says in order to think about what it means to have a natural right, we have to imagine the way things are before government, before law, and that's what Locke means by the state of nature.
He says the state of nature is a state of liberty.
Human beings are free and equal beings.
There is no natural hierarchy.
It's not the case that some people are born to be kings and others are born to be serfs.
We are free and equal in the state of nature and yet, he makes the point that there is a difference between a state of liberty and a state of license.
And the reason is that even in the state of nature, there is a kind of law.
It's not the kind of law that legislatures enact.
It's a law of nature.
And this law of nature constrains what we can do even though we are free, even though we are in the state of nature.
Well what are the constraints?
The only constraint given by the law of nature is that the rights we have, the natural rights we have we can't give up nor can we take them from somebody else.
Under the law of nature, I'm not free to take somebody else's life or liberty or property, nor am I free to take my own life or liberty or property.
Even though I am free, I'm not free to violate the law of nature.
I'm not free to take my own life or to sell my self into slavery or to give to somebody else arbitrary absolute power over me.
So where does this constraint, you may think it's a fairly minimal constraint, but where does it come from?
Well, Locke tells us where it comes from and he gives two answers.
Here is the first answer."For men, being all the workmanship of one omnipotent, and infinitely wise maker," namely God, "they are His property, whose workmanship they are, made to last during His, not one another's pleasure." So one answer to the question is why can't I give up my natural rights to life, liberty, and property is well, they're not, strictly speaking, yours.
After all, you are the creature of God.
God has a bigger property right in us, a prior property right.
Now, you might say that's an unsatisfying, unconvincing answer, at least for those who don't believe in God.
What did Locke have to say to them?
Well, here is where Locke appeals to the idea of reason and this is the idea, that if we properly reflect on what it means to be free, we will be led to the conclusion that freedom can't just be a matter of doing whatever we want.
I think this is what Locke means when he says, "The state of nature has a law of nature to govern it which obliges everyone: and reason, which is that law, teaches mankind who will but consult it that all being equal and independent, no one ought to harm another in his life, health, liberty, or possessions." This leads to a puzzling paradoxical feature of Locke's account of rights.
Familiar in one sense but strange in another.
It's the idea that our natural rights are unalienable.
What does "unalienable" mean?
It's not for us to alienate them or to give them up, to give them away, to trade them away, to sell them.
Consider an airline ticket.
Airline tickets are nontransferable.
Or tickets to the Patriots or to the Red Sox.
Nontransferable tickets are unalienable.
I own them in the limited sense that I can use them for myself, but I can't trade them away.
So in one sense, an unalienable right, a nontransferable right makes something I own less fully mine.
But in another sense of unalienable rights, especially where we're thinking about life, liberty, and property, or a right to be unalienable makes it more deeply, more profoundly mine, and that's Locke's sense of unalienable.
We see it in the American Declaration of Independence.
Thomas Jefferson drew on this idea of Locke.
Unalienable rights to life, liberty, and as Jefferson amended Locke, to the pursuit of happiness.
Unalienable rights.
Rights that are so essentially mine that even I can't trade them away or give them up.
So these are the rights we have in the state of nature before there is any government.
In the case of life and liberty, I can't take my own life.
I can't sell myself into slavery any more than I can take somebody else's life or take someone else as a slave by force.
But how does that work in the case of property?
Because it's essential to Locke's case that private property can arise even before there is any government.
How can there be a right to private property even before there is any government?
Locke's famous answer comes in Section 27."Every man has a property in his own person.
This nobody has any right to but himself." "The labor of his body and the work of his hands, we may say, are properly his." So he moves, as the libertarians later would move, from the idea that we own ourselves, that we have property in our persons to the closely connected idea that we own our own labor.
And from that to the further claim that whatever we mix our labor with that is un-owned becomes our property."Whatever he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined it to something that is his own, and thereby makes it his property." Why? Because the labor is the unquestionable property of the laborer and therefore, no one but the laborer can have a right to what is joined to or mixed with his labor.
And then he adds this important provision, "at least where there is enough, and as good left in common for others." But we not only acquire our property in the fruits of the earth, in the deer that we hunt, in the fish that we catch but also if we till and plow and enclose the land and grow potatoes, we own not only the potatoes but the land, the earth."As much land as a man tills, plants, improves, cultivates and can use the product of, so much is his property.
He by his labor encloses it from the commons.
So the idea that rights are unalienable seems to distance Locke from the libertarian.
Libertarian wants to say we have an absolute property right in ourselves and therefore, we can do with ourselves whatever we want.
Locke is not a sturdy ally for that view.
In fact, he says if you take natural rights seriously, you'll be led to the idea that there are certain constraints on what we can do with our natural rights, constraints given either by God or by reason reflecting on what it means really to be free, and really to be free means recognizing that our rights are unalienable.
So here is the difference between Locke and the libertarians.
But when it comes to Locke's account of private property, he begins to look again like a pretty good ally because his argument for private property begins with the idea that we are the proprietors of our own person and therefore, of our labor, and therefore, of the fruits of our labor, including not only the things we gather and hunt in the state of nature but also we acquire our property right in the land that we enclose and cultivate and improve.
There are some examples that can bring out the moral intuition that our labor can take something that is unowned and make it ours, though sometimes, there are disputes about this.
There is a debate among rich countries and developing countries about trade-related intellectual property rights.
It came to a head recently over drug patent laws.
Western countries, and especially the United States say, "We have a big pharmaceutical industry that develops new drugs.
We want all countries in the world to agree to respect the patents." Then, there came along the AIDS crisis in South Africa, and the American AIDS drugs were hugely expensive, far more than could be afforded by most Africans.
So the South African government said, "We are going to begin to buy a generic version of the AIDS antiretroviral drug at a tiny fraction of the cost because we can find an Indian manufacturing company that figures out how the thing is made and produces it, and for a tiny fraction of the cost, we can save lives if we don't respect that patent." And then the American government said, "No, here is a company that invested research and created this drug.
You can't just start mass producing these drugs without paying a licensing fee." And so there was a dispute and the pharmaceutical company sued the South African government to try to prevent their buying the cheap generic, as they saw it, pirated version of an AIDS drug.
And eventually, the pharmaceutical industry gave in and said, "All right, you can do that." But this dispute about what the rules of property should be, of intellectual property of drug patenting, in a way, is the last frontier of the state of nature because among nations where there is no uniform law of patent rights and property rights, it's up for grabs until, by some act of consent, some international agreement, people enter into some settled rules.
What about Locke's account of private property and how it can arise before government and before law comes on the scene?
Is it successful?
How many think it's pretty persuasive?
Raise your hand.
How many don't find it persuasive?
All right, let's hear from some critics.
What is wrong with Locke's account of how private property can arise without consent? Yes?
Yes, I think it justifies European cultural norms as far as when you look at how Native Americans may not have cultivated American land, but by their arrival in the Americas, that contributed to the development of America, which wouldn't have otherwise necessarily happened then or by that specific group.
So you think that this is a defense, this defense of private property in land...
Yes, because it complicates original acquisition if you only cite the arrival of foreigners that cultivated the land.
I see. And what's your name?- Rochelle.
Rochelle?- Yes.
Rochelle says this account of how property arises would fit what was going on in North America during the time of the European settlement.
Do you think, Rochelle, that it's a way of defending the appropriation of the land?
Indeed, because I mean, he is also justifying the glorious revolutions.
I don't think it's inconceivable that he is also justifying colonization as well.
Well, that's an interesting historical suggestion and I think there is a lot to be said for it.
What do you think of the validity of his argument though?
Because if you are right that this would justify the taking of land in North America from Native Americans who didn't enclose it, if it's a good argument, then Locke's given us a justification for that.
If it's a bad argument, then Locke's given us a mere rationalization that isn't morally defensible.
I'm leaning to the second one...- You're leaning toward the second one.
But that's my opinion as well.
All right, well, then, let's hear if there is a defender of Locke's account of private property, and it would be interesting if they could address Rochelle's worry that this is just a way of defending the appropriation of land by the American colonists from the Native Americans who didn't enclose it.
Is there someone who will defend Locke on that point?
Are you going to defend Locke?
Like, you're accusing him of justifying the European basically massacre of the Native Americans.
But who says he is defending it?
Maybe the European colonization isn't right.
You know, maybe it's the state of war that he talked about in his Second Treatise, you know.
So the wars between the Native Americans and the colonists, the settlers, that might have been a state of war that we can only emerge from by an agreement or an act of consent and that's what would have been required fairly to resolve...
Yes, and both sides would have had to agree to it and carry it out and everything.
But what about when, what's your name?- Dan.
But Dan, what about Rochelle says this argument in Section 27 and then in 32 about appropriating land, that argument, if it's valid, would justify the settlers' appropriating that land and excluding others from it, you think that argument is a good argument?
Well, doesn't it kind of imply that the Native Americans hadn't already done that?
Well, the Native Americans, as hunter-gatherers, didn't actually enclose land.
So I think Rochelle is onto something there.
What I want to -- go ahead, Dan.
At the same time, he is saying that just by picking an acorn or taking an apple or maybe killing a buffalo on a certain amount of land, that makes it yours because it's your labor and your labor would enclose that land.
So by that definition, maybe they didn't have fences around little plots of land but didn't...
They were using it.
Yes. By Locke's definition, you can say...
So maybe by Locke's definition, the Native Americans could have claimed a property right in the land itself.
Right, but they just didn't have Locke on their side, as she points out.
All right, good. Okay, that's good.
One more defender of Locke. Go ahead.
Well, I mean, just to defend Locke, he does say that there are some times in which you can't take another person's land.
For example, you can't acquire a land that is common property so people, in terms of the American Indians, I feel like they already have civilizations themselves and they were using land in common.
So it's kind of like what an analogy to what he was talking about with like the common English property.
You can't take land that everybody is sharing in common.
Oh, that's interesting. That's interesting.
And also, you can't take land unless you make sure that there is as much land as possible left for other people to take as well.
So if you're taking common, so you have to make sure that whenever you take land that there is enough left for other people to use...- Right....that's just as good as the land that you took, so...
That's true.
Locke says there has to be this right to private property in the earth is subject to the provision that there be as much and as good left for others. What's your name?
Right. I'm Feng.
So Feng, in a way, agrees with Dan that maybe there is a claim within Locke's framework that could be developed on behalf of the Native Americans.
Here is the further question.
If the right to private property is natural, not conventional, if it's something that we acquire even before we agree to government, how does that right constrain what a legitimate government can do?
In order, finally, to see whether Locke is an ally or potentially a critic of the libertarian idea of the state, we have to ask what becomes of our natural rights once we enter into society.
We know that the way we enter into society is by consent, by agreement to leave the state of nature and to be governed by the majority and by a system of laws, human laws.
But those human laws are only legitimate if they respect our natural rights, if they respect our unalienable rights to life, liberty, and property.
No parliament, no legislature, however democratic its credentials, can legitimately violate our natural rights.
This idea that no law can violate our right to life, liberty, and property would seem to support the idea of a government so limited that it would gladden the heart of the libertarian after all.
But those hearts should not be so quickly gladdened because even though for Locke, the law of nature persists once government arrives, even though Locke insists on limited government, government limited by the end for which it was created, namely the preservation of property, even so, there is an important sense in which what counts as my property, what counts as respecting my life and liberty are for the government to define.
That there be property, that there be respect for life and liberty is what limits government.
But what counts as respecting my life and respecting my property, that is for governments to decide and to define.
How can that be?
Is Locke contradicting himself or is there an important distinction here?
In order to answer that question, which will decide Locke's fit with the libertarian view, we need to look closely at what legitimate government looks like for Locke, and we turn to that next time.
Nicola, if you didn't think you'd get caught, would you pay your taxes?
I don't think so.
I would rather have a system personally that I could give money to exactly those sections of the government that I support and not just blanket support of it.
You'd rather be in the state of nature, at least on April 15th.
Last time, we began to discuss Locke's state of nature, his account of private property, his theory of legitimate government, which is government based on consent and also limited government.
Locke believes in certain fundamental rights that constrain what government can do, and he believes that those rights are natural rights, not rights that flow from law or from government.
And so Locke's great philosophical experiment is to see if he can give an account of how there could be a right to private property without consent before government and legislators arrive on the scene to define property.
That's his question. That's his claim.
There is a way Locke argues to create property, not just in the things we gather and hunt, but in the land itself, provided there is enough and as good left for others.
Today, I want to turn to the question of consent, which is Locke's second big idea.
Private property is one; consent is the other.
What is the work of consent?
People here have been invoking the idea of consent since we began since the first week.
Do you remember when we were talking about pushing the fat man off the bridge, someone said, "But he didn't agree to sacrifice himself.
It would be different if he consented." Or when we were talking about the cabin boy, killing and eating the cabin boy.
Some people said, "Well, if they had consented to a lottery, it would be different.
Then it would be all right." So consent has come up a lot and here in John Locke, we have one of the great philosophers of consent.
Consent is an obvious familiar idea in moral and political philosophy.
Locke says that legitimate government is government founded on consent and who, nowadays, would disagree with him?
Sometimes, when the ideas of political philosophers are as familiar as Locke's ideas about consent, it's hard to make sense of them or at least to find them very interesting.
But there are some puzzles, some strange features of Locke's account of consent as the basis of legitimate government and that's what I'd like to take up today.
One way of testing the plausibility of Locke's idea of consent and also of probing some of its perplexities is to ask just what a legitimate government founded on consent can do, what are its powers according to Locke.
Well, in order to answer that question, it helps to remember what the state of nature is like.
Remember, the state of nature is the condition that we decide to leave, and that's what gives rise to consent.
Why not stay there?
Why bother with government at all?
Well, what is Locke's answer to that question?
He says there are some inconveniences in the state of nature but what are those inconveniences?
The main inconvenience is that everyone can enforce the law of nature.
Everyone is an enforcer, or what Locke calls "the executor" of the state of nature, and he means executor literally.
If someone violates the law of nature, he is an aggressor.
He is beyond reason and you can punish him.
And you don't have to be too careful or fine about gradations of punishment in the state of nature.
You can kill him.
You can certainly kill someone who comes after you, who tries to murder you.
That's self defense.
But the enforcement power, the right to punish, everyone can do the punishing in the state of nature.
And not only can you punish with death people who come after you seeking to take your life, you can also punish a thief who tries to steal your goods because that also counts as aggression against the law of nature.
If someone has stolen from a third party, you can go after him. Why is this?
Well, violations of the law of nature are an act of aggression.
There is no police force.
There are no judges, no juries, so everyone is the judge in his or her own case.
And Locke observes that when people are the judges of their own cases, they tend to get carried away, and this gives rise to the inconvenience in the state of nature.
People overshoot the mark.
There is aggression.
There is punishment and before you know it, everybody is insecure in the enjoyment of his or her unalienable rights to life, liberty, and property.
Now, he describes in pretty harsh and even grim terms what you can do to people who violate the law of nature."One may destroy a man who makes war upon him ...for the same reason that he may kill a wolf or a lion.
Such men have no other rule, but that of force and violence," listen to this, "and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy to you if you fall into their power", so kill them first.
So, what starts out as a seemingly benign state of nature where everyone is free and yet where there is a law and the law respects people's rights, and those rights are so powerful that they're unalienable.
What starts out looking very benign, once you look closer, is pretty fierce and filled with violence, and that's why people want to leave.
How do they leave?
Well, here is where consent comes in.
The only way to escape from the state of nature is to undertake an act of consent where you agree to give up the enforcement power and to create a government or a community where there will be a legislature to make law and where everyone agrees in advance, everyone who enters, agrees in advance to abide by whatever the majority decides.
But then the question, and this is our question and here is where I want to get your views, then the question is what powers, what can the majority decide?
Now, here, it gets tricky for Locke because you remember, alongside the whole story about consent and majority rule, there are these natural rights, the law of nature, these unalienable rights, and you remember, they don't disappear when people join together to create a civil society.
So even once the majority is in charge, the majority can't violate your inalienable rights, can't violate your fundamental right to life, liberty, and property.
So here is the puzzle.
How much power does the majority have?
How limited is the government created by consent?
It's limited by the obligation on the part of the majority to respect and to enforce the fundamental natural rights of the citizens.
They don't give those up.
We don't give those up when we enter government.
That's this powerful idea taken over from Locke by Jefferson in the Declaration.
Unalienable rights.
So, let's go to our two cases.
Remember Michael Jordan, Bill Gates, the libertarian objection to taxation for redistribution?
Well, what about Locke's limited government?
Is there anyone who thinks that Locke does give grounds for opposing taxation for redistribution?
Anybody? Go ahead.
If the majority rules that there should be taxation, even if the minority should still not have to be taxed because that's taking away property, which is one of the rights of nature.
All right so, and what's your name?- Ben.
Ben. So if the majority taxes the minority without the consent of the minority to that particular tax law, it does amount to a taking of their property without their consent and it would seem that Locke should object to that.
You want some textual support for your view, for your reading of Locke, Ben?
Sure.
All right. I brought some along just in case you raised it.
If you have your texts, look at 138, passage 138."The supreme power," by which Locke means the legislature, "cannot take from any man any part of his property without his own consent, for the preservation of property being the end of government and that for which men enter into society, it necessarily supposes and requires that people should have property." That was the whole reason for entering society in the first place, to protect the right to property.
And when Locke speaks about the right to property, he often uses that as a kind of global term for the whole category, the right to life, liberty, and property.
So that part of Locke, that beginning of 138, seems to support Ben's reading.
But what about the part of 138, if you keep reading, "Men, therefore, in society having property, they have such a right to the goods, which by the law of the community are theirs." Look at this."And that no one can take from them without their consent." And then at the end of this passage, he says, "So it's a mistake to think that the legislative power can do what it will and dispose of the estates of the subject arbitrarily or take any part of them at pleasure." Here's what's elusive.
On the one hand, he says the government can't take your property without your consent.
He is clear about that.
But then he goes on to say, and that's the natural right to property.
But then, it seems that property, what counts as property is not natural but conventional defined by the government."The goods of which by the law of the community are theirs." And the plot thickens if you look ahead to Section 140.
In 140, he says, "Governments can't be supported without great charge.
Government is expensive and it's fit that everyone who enjoys his share of the protection should pay out of his estate." And then here is the crucial line."But still, it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or through their representatives." So what is Locke actually saying?
Property is natural in one sense but conventional in another.
It's natural in the sense that we have a fundamental unalienable right that there be property, that the institution of property exist and be respected by the government.
So an arbitrary taking of property would be a violation of the law of nature and would be illegitimate.
But it's a further question, here is the conventional aspect of property, it's a further question what counts as property, how it's defined and what counts as taking property, and that's up to the government.
So the consent, here, we're coming back to our question, what is the work of consent?
What it takes for taxation to be legitimate is that it be by consent, not the consent of Bill Gates himself if he is the one who has to pay the tax, but by the consent that he and we, all of us within the society, gave when we emerged from the state of nature and created the government in the first place.
It's the collective consent.
And by that reading, it looks like consent is doing a whole lot and the limited government consent creates isn't all that limited.
Does anyone want to respond to that or have a question about that?
Go ahead. Stand up.
Well, I'm just wondering what Locke's view is on once you have a government that's already in place, whether it is possible for people who are born into that government to then leave and return to the state of nature?
I mean, I don't think that Locke mentioned that at all in the...
What do you think?
Well, I think, as the convention, it would be very difficult to leave the government because you are no longer, because nobody else is just living in the state of nature.
Everybody else is now governed by this legislature.
What would it mean today, you're asking.
And what's your name?- Nicola.
Nicola, to leave the state.
Supposed you wanted to leave civil society today.
You want to withdraw your consent and return to the state of nature.
Well, because you didn't actually consent to it.
You were just born into it.
It was your ancestors who joined.
Right. You didn't sign the social contract. I didn't sign it.
Exactly.
All right, so what does Locke say there? Yes?
I don't think Locke says you have to sign anything.
I think that he says that it's kind of implied consent.
Implied?
Taking government's services, you are implying that you are consenting to the government taking things from you.
All right, so implied consent.
That's a partial answer to this challenge.
Now, you may not think that implied consent is as good as the real thing.
Is that what you're shaking your head about, Nicola?
Speak up. Stand up and speak up.
I don't think that necessarily just by utilizing the government's various resources that we are necessarily implying that we agree with the way that this government was formed or that we have consented to actually join into the social contract.
So you don't think the idea of implied consent is strong enough to generate any obligation at all to obey the government?
Not necessarily, no.
Nicola, if you didn't think you'd get caught, would you pay your taxes?
I don't think so. I would rather have a system, personally, that I could give money to exactly those sections of the government that I support and not just blanket support of it.
You'd rather be in the state of nature, at least on April 15th.
But what I'm trying to get at is do you consider that you are under no obligation, since you haven't actually entered into any act of consent, but for prudential reasons, you do what you're supposed o do according to the law?
Exactly.
If you look at it that way, then you're violating another one of Locke's treatises, which is that you can't take anything from anyone else.
Like, you can't take the government's services and then not give them anything in return.
If you want to go live in the state of nature, that's fine, but you can't take anything from the government because by the government's terms, which are the only terms under which you can enter the agreement, say that you have to pay taxes to take those things.
So you are saying that Nicola can go back into the state of nature if she wants to but she can't drive on Mass. Ave.?
Exactly.
I want to raise the stakes beyond using Mass. Ave.and even beyond taxation.
What about life?
What about military conscription?
Yes, what do you say? Stand up.
First of all, we have to remember that sending people to war is not necessarily implying that they'll die.
I mean, obviously, you're not raising their chances here but it's not a death penalty.
So if you're going to discuss whether or not military conscription is equivalent to suppressing people's right to life, you shouldn't approach it that way.
Secondly, the real problem here is Locke has this view about consent and natural rights.
But you're not allowed to give up your natural rights either.
So the real question is how does he himself figure it out between "I agree to give up my life, give up my property" when he talks about taxes or military conscription for the fact.
But I guess Locke would be against suicide, and that's still my own consent.
I agree by taking my life.
All right, good. All right, what's your name?- Eric.
So Eric brings us back to the puzzle we've been wrestling with since we started reading Locke.
On the one hand, we have these unalienable rights to life, liberty, and property, which means that even we don't have the power to give them up, and that's what creates the limits on legitimate government.
It's not what we consent to that limits government.
It's what we lack the power to give away when we consent that limits government.
That's the point at the heart of Locke's whole account of legitimate government.
But now, you say, "well, if we can't give up our own life, if we can't commit suicide, if we can't give up our right to property, how can we then agree to be bound by a majority that will force us to sacrifice our lives or give up our property"?
Does Locke have a way out of this or is he basically sanctioning an all-powerful government, despite everything he says about unalienable rights?
Does he have a way out of it?
Who would speak here in defense of Locke or make sense, find a way out of this predicament?
Yes.- All right, go ahead.
I feel like there is a general distinction we made between the right to life that individuals possess and the fact that the government cannot take away a single individual's right to life.
I think if you look at conscription as the government picking out certain individuals to go fight in war, then that would be a violation of their natural right to life.
On the other hand, if you have conscription, let's say a lottery for example, then in that case I would view that as the population picking their representatives to defend them in the case of war, the idea being that since the whole population cannot go out there to defend its own right to property, it picks its own representatives through a process that's essentially random and then these sort of elected representatives go out and fight for the rights of the people.
It works very similar, it works just like an elected government, in my opinion.
All right, so an elected government can conscript citizens to go out and defend the way of life, the community that makes the enjoyment of rights possible?
I think it can because to me, it seems that it's very similar to the process of electing representatives for legislature.
Although here, it's as if the government is electing by conscription certain citizens to go die for the sake of the whole.
Is that consistent with respect for a natural right to liberty?
Well, what I would say there is there is a distinction between picking out individuals and having a random choice of individuals. Like ...
Between picking out...let me make sure, between picking out individuals, let me... what's your name?
Gokul.
Gokul says there's a difference between picking out individuals to lay down their lives and having a general law.
I think this is the answer Locke would give, actually, Gokul.
Locke is against arbitrary government.
He is against the arbitrary taking, the singling out of Bill Gates to finance the war in Iraq.
He is against singling out a particular citizen or group of people to go off and fight.
But if there is a general law such that the government's choice, the majority's action is non-arbitrary, it doesn't really amount to a violation of people's basic rights.
What does count as a violation is an arbitrary taking because that would essentially say, not only to Bill Gates, but to everyone, there is no rule of law.
There is no institution of property.
Because at the whim of the king, or for that matter, of the parliament, we can name you or you to give up your property or to give up your life.
But so long as there is a non-arbitrary rule of law, then it's permissible.
Now, you may say this doesn't amount to a very limited government, and the libertarian may complain that Locke is not such a terrific ally after all.
The libertarian has two grounds for disappointment in Locke.
First, that the rights are unalienable and therefore, I don't really own myself after all.
I can't dispose of my life or my liberty or my property in a way that violates my rights.
That's disappointment number one.
Disappointment number two, once there is a legitimate government based on consent, the only limits for Locke are limits on arbitrary takings of life or of liberty or of property.
But if the majority decides, if the majority promulgates a generally applicable law and if it votes duly according to fair procedures, then there is no violation, whether it's a system of taxation or a system of conscription.
So it's clear that Locke is worried about the absolute arbitrary power of kings, but it's also true, and here is the darker side of Locke, that this great theorist of consent came up with a theory of private property that didn't require consent that may, and this goes back to the point Rochelle made last time, may have had something to do with Locke's second concern, which was America.
You remember, when he talks about the state of nature, he is not talking about an imaginary place."In the beginning," he says, "All the world was America." And what was going on in America?
The settlers were enclosing land and engaged in wars with the Native Americans.
Locke, who was an administrator of one of the colonies, may have been as interested in providing a justification for private property through enclosure without consent through enclosure and cultivation, as he was with developing a theory of government based on consent that would rein in kings and arbitrary rulers.
The question we're left with, the fundamental question we still haven't answered is what then becomes of consent?
What work can it do?What is its moral force?What are the limits of consent?
Consent matters not only for governments, but also for markets.
And beginning next time, we're going to take up questions of the limits of consent in the buying and selling of goods.
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Justice 05
Hired Guns? / For Sale: Motherhood
When we ended last time, we were discussing Locke's idea of government by consent and the question arose, "What are the limits on government that even the agreement of the majority can't override?" That was the question we ended with.
We saw in the case of property rights that on Locke's view a democratically elected government has the right to tax people.
It has to be taxation with consent because it does involve the taking of people's property for the common good but it doesn't require the consent of each individual at the time the tax is enacted or collected.
What it does require is a prior act of consent to join the society, to take on the political obligation but once you take on that obligation, you agree to be bound by the majority.
So much for taxation.
But what you may ask, about the right to life?
Can the government conscript people and send them into battle?
And what about the idea that we own ourselves?
Isn't the idea of self-possession violated if the government can, through coercive legislation and enforcement powers, say "You must go risk your life to fight in Iraq." What would Locke say?
Does the government have the right to do that?
Yes. In fact he says in 139, he says, "What matters is that the political authority or the military authority not be arbitrary, that's what matters." And he gives a wonderful example.
He says "A sergeant, even a sergeant, let alone a general, a sergeant can command a soldier to go right up to a face of a cannon where he is almost sure to die, that the sergeant can do.
The general can condemn the soldier to death for deserting his post or for not obeying even a desperate order.
But with all their power over life and death, what these officers can't do is take a penny of that soldier's money because that has nothing to do with the rightful authority, that would be arbitrary and it would be corrupt." So consent winds up being very powerful in Locke, not consent of the individual to the particular tax or military order, but consent to join the government and to be bound by the majority in the first place.
That's the consent that matters and it matters so powerfully that even the limited government created by the fact that we have an unalienable right to life, liberty, and property, even that limited government is only limited in the sense that it has to govern by generally applicable laws, the rule of law, it can't be arbitrary.
That's Locke.
Well this raises a question about consent.
Why is consent such a powerful moral instrument in creating political authority and the obligation to obey?
Today we begin to investigate the question of consent by looking at a concrete case, the case of military conscription.
Now some people say if we have a fundamental right that arises from the idea that we own ourselves, it's a violation of that right for government to conscript citizens to go fight in wars.
Others disagree.
Others say that's a legitimate power of government, of democratically elected governments, anyhow, and that we have an obligation to obey.
Let's take the case of the United States fighting a war in Iraq.
News accounts tells us that the military is having great difficulty meeting its recruitment targets.
Consider three policies that the U.S. government might undertake to deal with the fact that it's not achieving its recruiting targets.
Solution number one: increase the pay and benefits to attract a sufficient number of soldiers.
Option number two: shift to a system of military conscription, have a lottery, and whose ever numbers are drawn, go to fight in Iraq.
System number three: outsource, hire what traditionally have been called mercenaries, people around the world who are qualified, able to do the work, able to fight well, and who are willing to do it for the existing wage.
So let's take a quick poll here.
How many favor increasing the pay?
A huge majority.
How many favor going to conscription?
Maybe a dozen people in the room favor conscription.
What about the outsourcing solution?
Okay, so there may be two, three dozen.
During the Civil War, the Union used a combination of conscription and the market system to fill the ranks of the military to fight in the Civil War.
It was a system that began with conscription but if you were drafted and didn't want to serve, you could hire a substitute to take your place and many people did.
You could pay whatever the market required in order to find a substitute, people ran ads in newspapers, in the classified ads offering 93 for a substitute who would go fight the Civil War in their place.
In fact, it's reported that Andrew Carnegie was drafted and hired a substitute to take his place for an amount that was a little less than the amount he spent in the year on fancy cigars.
Now I want to get your views about this Civil War system, call it the hybrid system, conscription but with a buyout provision.
How many think it was a just system?
How many would defend the Civil War system?
Anybody?
Anybody else?
How many think it was unjust?
Most of you don't like the Civil War system, you think it's unjust.
Let's hear an objection.
Why don't you like it?
What's wrong with it? Yes.
Well by paying $300 to be exempt one time around, you're really putting a price on valuing human life and we established earlier, that's really hard to do so they're trying to accomplish something that really isn't feasible.
Good. So paying someone $300 or $500 or $1,000 - You're basically saying that's what their life is worth to you.
That's what their life is worth, it's putting a dollar value on life.
That's good. What's your name?-Liz.
Liz.
Well, who has an answer for Liz.
You defended the Civil War system, what do you say?
If you don't like the price then you have the freedom to not be sold or hired so it's completely up to you.
I don't think it's necessarily putting a specific price on you and if it's done by himself, I don't think there's anything that's really morally wrong with that.
So the person who takes the $500, let's say, he's putting his own price on his life or on the risk of his life and he should have the freedom to choose to do that.
Exactly.
What's your name?- Jason.
Jason. Thank you.
Now we need to hear from another critic of the civil war system. Yes.
It's a kind or coercion almost, people who have lower incomes, for Carnegie he can totally ignore the draft, $300 is an irrelevant in terms of his income but someone of a lower income, they're essentially being coerced to draft, to be drafted, it's probably they're not able to find a replacement.
Tell me your name.
Sam.
Sam. All right so you say, Sam, that when a poor laborer accepts $300 to fight in the Civil War, he is in effect being coerced by that money given his economic circumstances whereas Carnegie can go off, pay the money, and not serve.
Alright. I want to hear someone who has a reply to Sam's argument, that what looks like a free exchange is actually coercive.
Who has an answer to Sam?
Go ahead.
I'd actually agree with him in saying that - You agree with Sam.
I agree with him in saying that it is coercion in the sense that it robs individual of his ability to reason.
Okay, and what's your name?
Raul.
All right. So Raul and Sam agree that what looks like a free exchange, free choice, voluntary act actually involves coercion.
It's profound coercion of the worst kind because it falls so disproportionately upon one segment of the society.
Good. Alright. So Raul and Sam have made a powerful point.
Who would like to reply?
Who has an answer for Sam and Raul?
Go ahead.
I don't think that these drafting systems are really terribly different from all volunteer army sort of recruiting strategies.
The whole idea of having benefits and pay for joining the army is sort of a coercive strategy to get people to join.
It is true that military volunteers come from disproportionately lower economic status and also from certain regions of the country where you can use like patriotism to try and coerce people to feel like it's the right thing to do to volunteer and go over to Iraq.
And tell me your name.
Emily.
Alright, Emily says, and Raul you're going to have to reply to this so get ready.
Emily says fair enough, there is a coercive element to the Civil War system when a laborer takes the place of Andrew Carnegie for $500.
Emily concedes that but she says if that troubles you about the Civil War system shouldn't that also trouble you about the volunteer army today?
Before you answer, how did you vote in the first poll?
Did you defend the volunteer army?
I didn't vote.
You didn't vote.
By the way, you didn't vote but did you sell your vote to the person sitting next to you?
No. Alright.
So what would you say to that argument.
I think that the circumstances are different in that there was conscription in the Civil War.
There is no draft today and I think that volunteers for the army today have a more profound sense of patriotism that is of an individual choice than those who were forced into the military in the Civil War.
Somehow less coerced?
Less coerced.
Even though there is still inequality in American Society?
Even though, as Emily points out, the makeup of the American military is not reflective of the population as a whole?
Let's just do an experiment here.
How many here have either served in the military or have a family member who has served in the military in this generation, not parents?
Family members. In this generation.
And how many have neither served nor have any brothers or sisters who have served?
Does that bear out your point Emily?
Yes.
Alright. Now we need to hear from - most of you defended the idea of the all volunteer military overwhelmingly and yet overwhelmingly, people considered the Civil War system unjust.
Sam and Raul articulated reasons for objecting to the Civil War system, it took place against a background of inequality and therefore the choices people made to buy their way in to military service were not truly free but at least partly coerced.
Then Emily extends that argument in the form of a challenge.
Alright, everyone here who voted in favor of the all volunteer army should be able - should have to explain what's the difference in principle.
Doesn't the all volunteer army simply universalize the feature that almost everyone found objectionable in the Civil War buyout provision?
Did I state the challenge fairly Emily?
Yes.
Okay. So we need to hear from a defender of the all volunteer military who can address Emily's challenge.
Who can do that?
Go ahead.
The difference between the Civil War system and the all volunteer army system is that in the Civil War, you're being hired not by the government, but by an individual and as a result, different people who get hired by different individuals get paid different amounts.
In the case of the all volunteer army, everyone who gets hired is hired by the government and gets paid the same amount.
It's precisely the universalization of essentially paying your way to the army that makes the all volunteer army just.
Emily?
I guess I'd frame the principle slightly differently.
On the all volunteer army, it's possible for somebody to just step aside and not really think about the war at all.
It's possible to say, "I don't need the money, I don't need to have an opinion about this, I don't need to feel obligated to take my part and defend my country.
With the coercive system, or sorry, with an explicit draft then there's the threat at least that every individual will have to make some sort of decision regarding military conscription and perhaps in that way, it's more equitable.
It's true that Andrew Carnegie might not serve in any case but in one, he can completely step aside from it, and the other there's some level of responsibility.
While you're there, Emily, so what system do you favor, conscription?
I would be hard pressed to say but I think so because it makes the whole country feel a sense of responsibility for the conflict instead of having a war that's maybe ideologically supported by a few but only if there's no real responsibility.
Good. Who wants to reply?
Go ahead.
So I was going to say that the fundamental difference between the all volunteer army and then the army in the Civil War is that in the all volunteer army, if you want to volunteer that comes first and then the pay comes after whereas in the Civil War system, the people who are accepting the pay aren't necessarily doing it because they want to, they're just doing it for the money first.
What motivation beyond the pay do you think is operating in the case of the all volunteer army?
Like patriotism for the country.
Patriotism. Well what about - And a desire to defend the country.
There is some motivation in pay but the fact that it's first and foremost an all volunteer army will motivate first I think, personally.
Do you think it's better?
And tell me your name.
Jackie.
Jackie do you think it's better if people serve in the military out of a sense of patriotism than just for the money?
Yes, definitely because the people who - that was one of the main problems in the Civil War is that the people that you're getting to go in it to go to war aren't necessarily people who want to fight and so they won't be as good soldiers as they will be had they been there because they wanted to be.
Alright, what about Jackie's having raised the question of patriotism, that patriotism is a better or a higher motivation than money for military service.
Who would like to address that question?
Go ahead.
Patriotism absolutely is not necessary in order to be a good soldier because mercenaries can do just as good of a job as anyone who waves the American flag around and wants to defend what the government believes that we should do.
Did you favor the outsourcing solution?
Yes sir.
Alright, so let Jackie respond.
What's your name?
Philip.
What about that Jackie?
So much for patriotism.
If you've got someone whose heart is in it more than another person, they're going to do a better job.
When it comes down to the wire and there's like a situation in which someone has to put their life on the line, someone who's doing it because they love this country will be more willing to go into danger than someone who's just getting paid, they don't care, they've got the technical skills but they don't care what happens because they really have - they have nothing like nothing invested in this country.
There's another aspect though once we get on to the issue of patriotism.
If you believe patriotism, as Jackie does, should be the foremost consideration and not money, does that argue for or against the paid army we have now?
We call it the volunteer army though if you think about it, that's a kind of misnomer.
A volunteer army as we use the term, is a paid army.
So what about the suggestion that patriotism should be the primary motivation for military service not money?
Does that argue in favor of the paid military that we have or does it argue for conscription?
And just to sharpen that point building on Phil's case for outsourcing, if you think that the all volunteer army, the paid army, is best because it lets the market allocate positions according to people's preferences and willingness to serve for a certain wage, doesn't the logic that takes you from a system of conscription to the hybrid Civil War system to the all volunteer army, doesn't the idea of expanding freedom of choice in the market, doesn't that lead you all the way if you followed that principle consistently to a mercenary army?
And then if you say no, Jackie says no, patriotism should count for something, doesn't that argue for going back to conscription if by patriotism, you mean a sense of civic obligation?
Let's see if we can step back from the discussion that we've had and see what we've learned about consent as it applies to market exchange.
We've really heard two arguments, two arguments against the use of markets and exchange in the allocation of military service.
One was the argument raised by Sam and Raul, the argument about coercion, the objection that letting the market allocate military service may be unfair and may not even be free if there's severe inequality in the society so that people who buy their way into military service are doing so not because they really want to but because they have so few economic opportunities that that's their best choice and Sam and Raul say there's an element of coercion in that, that's one argument.
Then there is a second objection to using the market to allocate military service, that's the idea that military service shouldn't be treated as just another job for pay because it's bound up with patriotism and civic obligation.
This is a different argument from the argument about unfairness and inequality and coercion, it's an argument that suggests that maybe where civic obligations are concerned, we shouldn't allocate duties and rights by the market.
Now we've identified two broad objections.
What do we need to know to assess those objections?
To assess the first, the argument from coercion, inequality, and unfairness, Sam, we need to ask what inequalities in the background conditions of society undermine the freedom of choices people make to buy and sell their labor, question number one.
Question number two: to assess the civic obligation patriotism.
Argument: we have to ask what are the obligations of citizenship?
Is military service one of them or not?
What obligates us as citizens?
What is the source of political obligation?
Is it consent or are there some civic obligations we have, even without consent, for living and sharing in a certain kind of society?
We haven't answered either of those questions but our debate today about the Civil War system and the all volunteer army has at least raised them and those are questions we're going to return to in the coming weeks.
Today I'd like to turn our attention and get your views about an argument over the role of markets in the realm of human reproduction and procreation.
Now with infertility clinics, people advertise for egg donors and from time to time, in the Harvard Crimson ads appear for egg donors.
Have you seen them?
There was one that ran a few years ago that wasn't looking for just any egg donor, it was an ad that offered a large financial incentive for an egg donor from a woman who was intelligent, athletic, at least 5'10", and with at least 1400 or above on her SATs.
How much do you think the person looking for this egg donor was willing to pay for an egg from a woman of that description?
What would you guess?
A thousand dollars?
Fifteen thousand? Ten?
I'll show you the ad.
Fifty thousand dollars for an egg but only a premium egg.
What do you think about that?
Well there are also sometimes ads in the Harvard Crimson and the other college newspapers for sperm donors.
So the market in reproductive capacities is an equal opportunity market.
Well not exactly equal opportunity, they're not offering $50,000 for sperm but there is a company, a large commercial sperm bank that markets sperm, it's called California Cryobank, it's a for-profit company, it imposes exacting standards on the sperm it recruits, and it has offices in Cambridge, between Harvard and MIT, and in Palo Alto near Stanford.
Cryobank's marketing materials play up the prestigious source of its sperm.
Here is, from the website of Cryobank, the information.
Here they talk about the compensation although compensation should not be the only reason for becoming a sperm donor, we are aware of the considerable time and expense involved in being a donor.
So do you know what they offer?
Donors will be reimbursed $75 per specimen, up to $900 a month if you donate three times a week, and then they add "We periodically offer incentives such as movie tickets or gift certificates for the extra time and effort expended by participating donors." It's not easy to be a sperm donor.
They accept fewer than five percent of the donors who apply.
Their admission criteria are more demanding than Harvard's.
The head of the sperm bank said the ideal sperm donor is 6 feet tall, with a college degree, brown eyes, blond hair, and dimples for the simple reason that these are the traits that the market has shown that customers want.
Quoting the head of the sperm bank, "If our customers wanted high school dropouts, we would give them high school dropouts." So here are two instances, the market in eggs for donation and the market in sperm, that raise a question, a question about whether eggs and sperm should or should not be bought and sold for money.
As you ponder that, I want you to consider another case involving market and in fact a contract in the human reproductive capacity and this is the case of commercial surrogate motherhood, and it's a case that wound up in court some years ago.
It's the story of Baby M.
It began with William and Elizabeth Stern, a professional couple wanting a baby but they couldn't have one on their own, at least not without medical risk to Mrs. Stern.
They went to an infertility clinic where they met Mary Beth Whitehead, a 29-year-old mother of two, the wife of a sanitation worker.
She had replied to an ad that The Standard had placed seeking the service of a surrogate mother.
They made a deal.
They signed a contract in which William Stern agreed to pay Mary Beth Whitehead a $10,000 fee plus all expenses in exchange for which Mary Beth Whitehead agreed to be artificially inseminated with William Stern's sperm, to bear the child, and then to give the baby to the Sterns.
Well, you probably know how the story unfolded.
Mary Beth gave birth and changed her mind, she decided she wanted to keep the baby.
The case wound up in court in New Jersey.
So let's take, put aside any legal questions, and focus on this issue as a moral question.
How many believe that the right thing to do in the Baby M case, would have been to uphold the contract, to enforce the contract?
And how many think the right thing to do would have been not to enforce that contract?
The majority say enforce so let's now hear the reasons that people had, either for enforcing or refusing to enforce this contract.
First I want to hear from someone in the majority.
Why do you uphold the contract?
Why do you enforce it?
Who can offer a reason?
Yes. Stand up.
It's a binding contract, all the parties involved knew the terms of the contract before any action was taken, it's a voluntary agreement, the mother knew what she was getting into, all four intelligent adults, regardless of formal education, whatever.
So it makes sense that if you know that you're getting into beforehand and you make a promise, you should uphold that promise in the end.
Okay, a deal is a deal in other words.
Exactly.- And what's your name?
Patrick.
Is Patrick's reason the reason that most of you in the majority favored upholding the contract?
Yes. Alright, let's hear now someone who would not enforce the contract.
What do you say to Patrick?
Why not? Yes.
Well, I mean, I agree, I think contracts should be upheld when all the parties know all the information but in this case, I don't think there's a way a mother, before the child exists, could actually know how she's going to feel about that child so I don't think the mother actually had all the information.
She didn't know the person that was going to be born and didn't know how much she would love that person so that's my argument.
So you would not, and what's your name?
Evan Wilson.
Evan says he would not uphold the contract because when it was entered into the surrogate mother couldn't be expected to know in advance how she would feel so she didn't really have the relevant information when she made that contract.
Who else?
Who else would not uphold the contract? Yes.
I also think that a contract should generally be upheld but I think that the child has an inalienable right to its actual mother and I think that if that mother wants it then that child should have the right to that mother.
You mean the biological mother not the adoptive mother?
Right.
And why is that?
First of all, tell me your name.
Anna.
Anna. Why is that Anna?
Because I think that that bond is created by nature is stronger than any bond that is created by a contract.
Good. Thank you.
Who else? Yes.
I disagree. I don't think that a child has an inalienable right to her biological mother.
I think that adoption and surrogacy are both legitimate tradeoffs and I agree with the point made that it's a voluntary agreement, the individual who made it, it's a voluntary agreement and you can't apply coercion to this argument.
You can't apply the objection from coercion to this argument?
Correct.
What's your name?- Kathleen.
Kathleen, what do you say to Evan that though there may not have been - Evan claimed that the consent was tainted not by coercion but by lack of adequate information.
She couldn't have known the relevant information namely how she would feel about the child.
What do you say to that?
I don't think the emotional content of her feelings plays into this.
I think in a case of law, in the justice of this scenario, her change of feelings are not relevant.
If I give up my child for adoption and then I decide later on that I really want that child back, too bad, it's a tradeoff, it's a tradeoff that the mother has made.
So a deal is a deal, you agree with Patrick?
I agree with Patrick, a deal's a deal.
A deal is a deal.
Yes.- Good. Yes.
I would say that though I'm not really sure if I agree with the idea that the child has a right to their mother.
I think the mother definitely has a right to her child and I also think that there's some areas where market forces shouldn't necessarily penetrate.
I think that the whole surrogate mother area smacks a little bit of dealing in human beings seems dehumanizing.
It doesn't really seem right so that's my main reason.
And what is - could you tell us your name.
I'm Andrew.
Andrew, what is dehumanizing about buying and selling the right to a child, for money, what is dehumanizing about it?
Well because you're buying someone's biological right.
I mean you can't - in the law as it stated, you can't sell your own child were you to have a child, I'd believe that the law prohibits you selling it to another person or - So this like baby selling?
Right. To a certain extent.
Though there's a contract with another person, you've made agreements and what not, there is an undeniable emotional bond that takes place between the mother and the child and it's wrong to simply ignore this because you've written out something contractually.
Right. You want to reply to Andrew?
Stay there.
You point out there's an undeniable emotional bond, I feel like in this situation, we're not necessarily arguing against adoption or surrogacy in itself, we're just sort of pointing out the emotional differences.
But wait, I mean, it's easy to break everything down to numbers and say "Oh, we have contracts," like you're buying or selling a car but there are underlying emotions, I mean, you're dealing with people, these are not objects to be bought and sold.
Alright. What about Andrew's claim that this is like baby selling.
I believe that adoption and surrogacy should be permitted, whether or not I actually will partake in it is not really relevant but I think that the government should, the government should give its citizens the rights to allow for adoption and surrogacy.
But adoption is not - according to - Is adoption baby selling?
Well, do you think you should be able to bid for a baby that's up for adoption?
That's Andrew's challenge.
Do I think I should be able to bid for a baby?
I'm not - sure! It's a market, I feel the extent to which it's been applied and I'm not sure if the government should be able to permit it and I have to think about it more but - Alright. Fair enough.
Are you satisfied Andrew?
Well, yeah, I mean, I think surrogacy should be permitted.
I think that people can do it but I don't think that it should be forced upon people that once a contract is signed, it's absolutely the end all.
I think that it's unenforceable.
So people should be free Andrew to enter into these contracts but it should not be enforceable in the court.
Not in the court, no.
Who would like to turn on one side or the other? Yes.
I think I have an interesting perspective on this because my brother was actually one of the people who donated to a sperm bank and he was paid a very large amount of money, he was six feet tall but not blond, he had dimples though.
So he actually has, I'm an aunt now, he has a daughter, he donated his sperm to a lesbian couple in Oklahoma and he has been contacted by them and he has seen pictures of his daughter but he still does not feel an emotional bond to his daughter, he just has a sense of curiosity about what she looks like and what she's doing and how she is.
He doesn't feel love for his child so from this experience, I think the bond between a mother and a child cannot be compared to the bond between the father and the child.
That's really interesting.
What's your name?
Vivian.
Vivian. So we've got the case of surrogacy, commercial surrogacy, and it's been compared to baby selling and we've been exploring whether that analogy is apt and it can also be compared, as you point out, to sperm selling.
But you're saying that sperm selling and baby selling or even surrogacy are very different because - Yes, they're unequal services.
They're unequal services and that's because Vivian, you say that the tie, the bond - Yes, and also the time investment that's given by a mother, nine months, cannot be compared to a man going into a sperm bank, looking at pornography, depositing into a cup.
I don't think those are equal.
Good. Alright.
Because that's what happens in a sperm bank.
Alright. So this is really interesting, we have - notice the arguments that have come out so far.
The objections to surrogacy, the objections to enforcing that contract are of at least two kinds.
There was the objection about tainted consent, this time not because of coercion or implicit coercion but because of imperfect or flawed information.
So tainted or flawed consent can arise either because of coercion or because of a lack of relevant information, at least according to one argument that we've heard and then a second objection to enforcing the surrogacy contract was that it was somehow dehumanizing.
Now when this case was decided by the courts, what did they say about these arguments?
The lower court ruled that the contract was enforceable, neither party had a superior bargaining position.
A price for the service was struck and a bargain was reached.
One side didn't force the other neither had disproportionate bargaining power.
Then it went to the New Jersey Supreme Court.
And what did they do?
They said this contract is not enforceable.
They did grant custody to Mr. Stern as the father because they thought that would be in the best interest of the child but they restored the rights of Mary Beth Whitehead and left it to lower courts to decide exactly what the visitation rights should be.
They invoked two different kinds of reasons, along the lines that Andrew proposed.
First, there was not sufficiently informed consent, the court argued."Under the contract the natural mother is irrevocably committed before she knows the strength of her bond with her child, she never makes a truly voluntary informed decision for any decision prior to the baby's birth is in the most important sense, uninformed," that was the court.
Then the court also made a version of the second argument against commodification in this kind of case "this is the sale of a child," the court said, "or at the very least, the sale of a mother's right to her child.
Whatever idealism may motivate the participants, the profit motive predominates permeates, and ultimately governs the transaction." And so regardless, the court said, regardless of any argument about consent or flawed consent or full information, there are some things in a civilized society that money can't buy, that's what the court said in voiding this contract.
Well, what about these two arguments against the extension of markets to procreation and to reproduction?
How persuasive are they?
There was - it's true, a voluntary agreement, a contract struck between William Stern and Mary Beth Whitehead.
But there are at least two ways that consent can be other than truly free.
First, if people are pressured or coerced to give their agreement and second, if their consent is not truly informed and in the case of surrogacy, the court said a mother can't know, even one who already has kids of her own, what it would be like to bear a child and give it up for pay.
So in order to assess criticism, objection number one, we have to figure out just how free does a voluntary exchange have to be with respect to the bargaining power and equal information Question number one: how do we assess the second objection?
The second objection is more elusive, it's more difficult.
Andrew acknowledged this, right?
What does it mean to say there is something dehumanizing to make childbearing a market transaction?
Well, one of the philosophers we read on this subject, Elizabeth Anderson, tries to brings some philosophical clarity to the unease that Andrew articulated.
She said "by requiring the surrogate mother to repress whatever parental love she feels for the child, surrogacy contracts convert women's labor into a form of alienated labor.
The surrogate's labor is alienated because she must divert it from the end which the social practices of pregnancy rightly promote, namely an emotional bond with her child." So what Anderson is suggesting is that certain goods should not be treated as open to use or to profit.
Certain goods are properly valued in ways other than use.
What are other ways of valuing and treating goods that should not be open to use?
Anderson says there are many: respect, appreciation, love, honor, awe, sanctity.
There are many modes of valuation beyond use and certain goods are not properly valued if they're treated simply as objects of use.
How do we go about evaluating that argument of Anderson?
In a way, it takes us back to the debate we had with utilitarianism.
Is utility - is use the only proper way of treating goods, including life, military service, procreation, childbearing?
And if not, how do we figure out?
How can we determine what modes of valuation are fitting or appropriate to those goods?
Several years ago there was a scandal surrounding a doctor, an infertility specialist in Virginia named Cecil Jacobson.
He didn't have a donor catalogue because unknown to his patients, all of the sperm he used to inseminate his patients came from one donor, Dr. Jacobson himself.
At least one woman who testified in court was unnerved at how much her newborn daughter looked just like him.
Now it's possible to condemn Dr. Jacobson for failing to inform the women in advance that would be the argument about consent.
The columnist, Ellen Goodman, described the bizarre scenario as follows, "Dr. Jacobson," she wrote "gave his infertility business the personal touch but now the rest of us," she wrote "are in for a round of second thoughts about sperm donation." Goodman concluded that fatherhood should be something you do, not something you donate.
And I think what she was doing and what the philosopher Elizabeth Anderson is doing and what Andrew was suggesting with his argument about dehumanization is pondering whether there are certain goods that money shouldn't buy, not just because of tainted consent but also perhaps because certain goods are properly valued in a way higher than mere use.

Justice 06
Mind Your Motive / The Supreme Principle of Morality
Today we turn to Immanuel Kant who offers a different account of why we have a categorical duty to respect the dignity of persons and not to use people as means merely even for good ends.
Kant excelled at the University of Konigsberg at the age of 16.
At age of 31, he got his first job as an unsalaried lecturer paid on commission based on the number of students who showed up at his lectures.
This is a sensible system that Harvard would do well to consider.
Luckily for Kant, he was a popular lecturer and also an industrious one and so he eked out a meager living.
It wasn't until he was 57 that he published his first major work.
But, it was worth the wait, the book was the "Critique of Pure Reason" perhaps the most important work in all of modern philosophy.
And a few years later, Kant wrote the groundwork for "Metaphysics of Morals" which we read in this course.
I want to acknowledge even before we start that Kant is a difficult thinker but it's important to try to figure what he's saying because what this book is about is what the supreme principle of morality is, number one, and it also gives us an account ?C one of the most powerful accounts we have ?C of what freedom really is.
So, let me start today, Kant rejects utilitarianism.
He thinks that the individual person, all human beings, have a certain dignity that commands our respect.
The reason the individual is sacred or the bearer of rights, according to Kant, doesn't stem from the idea that we own ourselves but instead from the idea that we are all rational beings.
We're all rational beings, which simply means that we are beings who are capable of reason.
We are also autonomous beings, which is to say that we are beings capable of acting and choosing freely.
Now, this capacity for reason and freedom isn't the only capacity we have.
We also have the capacity for pain and pleasure, for suffering and satisfaction.
Kant admits the utilitarians were half right.
Of course, we seek to avoid pain and we like pleasure, Kant doesn't deny this.
What he does deny is Bentham's claim that pain and pleasure are our sovereign masters.
He thinks that's wrong.
Kant thinks that it's our rational capacity that makes us distinctive, that makes us special, that sets us apart from and above mere animal existence.
It makes us something more than just physical creatures with appetites.
We often think of freedom as simply consisting in doing what we want or in the absence of obstacles to getting what we want, that's one way of thinking about freedom.
But this isn't Kant's idea of freedom.
Kant has a more stringent demanding notion of what it means to be free.
And though it's stringent and demanding, if you think it through, it's actually pretty persuasive.
Kant reasons as follows: when we, like animals, seek after pleasure or the satisfaction of our desires or the avoidance of pain, when we do that we aren't really acting freely.
Why not?
We're really acting as the slaves of those appetites and impulses.
I didn't choose this particular hunger or that particular appetite and so when I act to satisfy it, I'm just acting according to natural necessity.
And for Kant, freedom is the opposite of necessity.
There was an advertising slogan for the soft drink Sprite a few years ago.
The slogan was, "Obey your thirst." There's a Kantian insight buried in that Sprite advertising slogan that in a way is Kant's point.
When you go for Sprite or Pepsi, you're really ?C you might think that you're choosing freely, Sprite versus Pepsi, but you're actually obeying something, a thirst or maybe a desire manufactured or massaged by advertising, you're obeying a prompting that you yourself haven't chosen or created.
And here it is worth noticing Kant's specially demanding idea of freedom.
What way of acting ?C how can my will be determined if not by the promptings of nature or my hunger or my appetite or my desires?
Kant's answer?
To act freely is to act autonomously, and to act autonomously is to act according to a law that I give myself not according to the physical laws of nature or the laws of cause and effect which include my desire to eat or to drink or to choose this food in a restaurant over that.
Now, what is the opposite of autonomy for Kant?
He invents a special term to describe the opposite of autonomy.
Heteronomy is the opposite of autonomy.
When I act heteronomously, I'm acting according to an inclination, or a desire, that I haven't chosen for myself.
So, freedom as autonomy is an especially stringent idea that Kant insists on.
Now, why is autonomy the opposite of acting heteronomously or according to the dictates of nature?
Kant's point is that nature is governed by laws, laws of cause and effect for example.
Suppose you drop a billiard ball, it falls to the ground; we wouldn't say the billiard ball is acting freely.
Why not?
It's acting according to the law of nature, according to the laws of cause of effect, the law of gravity.
And just as he has an unusually demanding and stringent conception of freedom, freedom as autonomy, he also has a demanding conception of morality.
To act freely is not to choose the best means to a given end; it's to choose the end itself for its own sake.
And that's something that human beings can do and that billiard balls can't.
In so far as we act on inclination or pursue pleasure, we act as means to the realization of ends given outside us.
We are instruments rather than authors of the purposes we pursue, that's the heteronymous determination of the will.
On the other hand, in so far as we act autonomously, according to a law we give ourselves, we do something for its own sake as an end in itself.
When we act autonomously, we seize to be instruments to purposes given outside us, we become, or we can come to think of ourselves as ends in ourselves.
This capacity to act freely, Kant tells us, is what gives human life its special dignity.
Respecting human dignity means regarding persons not just as means but also as ends in themselves.
And this is why it's wrong to use people for the sake of other peoples' well-being or happiness.
This is the real reason, Kant says, that utilitarianism goes wrong.
This is the reason it's important to respect the dignity of persons and to uphold their rights.
So, even if there are cases, remember John Stewart Mill said, "Well, in the long run, if we uphold justice and respect the dignity of persons, we will maximize human happiness." What would Kant's answer be to that?
What would his answer be?
Even if that were true, even if the calculus worked out that way, even if you shouldn't throw the Christian's to the lions because in the long run fear will spread, the overall utility will decline.
The utilitarian would be upholding justice and right and respect for persons for the wrong reason, for a purely a contingent reason, for an instrumental reason.
It would still be using people, even where the calculus works out for the best in the long run, it would still be using people as means rather than respecting them as ends in themselves.
So, that's Kant's idea of freedom as autonomy and you can begin to see how it's connected to his idea of morality.
But we still have to answer one more question, what gives an act its moral worth in the first place?
If it can't be directed, that utility or satisfying wants and desires, what gives an action its moral worth?
This leads us from Kant's demanding idea of freedom to his demanding idea of morality.
What does Kant say?
What makes an action morally worthy consists not in the consequences or in the results that flow from it, what makes an action morally worthy has to do with the motive, with the quality of the will, with the intention for which the act is done.
What matters is the motive and the motive must be of a certain kind.
So, the moral worth of an action depends on the motive for which it's done and the important thing is that the person do the right thing for the right reason."A good will isn't good because of what it affects or accomplishes," Kant writes, "it's good in itself.
Even if by its utmost effort, the goodwill accomplishes nothing, it would still shine like a jewel for its own sake as something which has its full value in itself." And so, for any action to be morally good, it's not enough that it should conform to the moral law, it must also be done for the sake of the moral law.
The idea is that the motive confers the moral worth on an action and the only kind of motive that can confer moral worth on an action is the motive of duty.
Well, what's the opposite of doing something out of a sense of duty because it's right?
Well for Kant, the opposite would be all of those motives having to do with our inclinations.
And inclinations refer to all of our desires, all of our contingently given wants, preferences, impulses, and the like.
Only actions done for the sake of the moral law, for the sake of duty, only these actions have moral worth.
Now, I want to see what you think about this idea but first let's consider a few examples.
Kant begins with an example of a shopkeeper.
He wants to bring out the intuition and make plausible the idea that what confers moral worth on an action is that it be done because it's right.
He says suppose there's a shopkeeper and an inexperienced customer comes in.
The shopkeeper knows that he could give the customer the wrong change, could shortchange the customer and get away with it; at least that customer wouldn't know.
But the shopkeeper nonetheless says, "Well, if I shortchange this customer, word may get out, my reputation would be damaged, and I would lose business, so I won't shortchange this customer." The shopkeeper does nothing wrong, he gives the correct change, but does his action have moral worth?
Kant says no, it doesn't have moral worth because the shopkeeper only did the right thing for the wrong reason, out of self-interest.
That's a pretty straightforward case.
Then he takes another case, the case of suicide.
He says we have a duty to preserve ourselves.
Now, for most people who love life, we have multiple reasons for not taking our own lives.
So, the only way we can really tell, the only way we can isolate the operative motive for someone who doesn't take his or her life is to think ?C to imagine someone who's miserable and who despite having an absolutely miserable life nonetheless recognizes the duty to preserve one's self and so does not commit suicide.
The force of the example is to bring out the motive that matters and the motive that matters for morality is doing the right thing for the sake of duty.
Let me just give you a couple of other examples.
The Better Business Bureau, what's their slogan?
The slogan of the Better Business Bureau: "Honesty is the best policy.
It's also the most profitable." This is the Better Business Bureau's full page ad in the New York Times, "Honesty, it's as important as any other asset because a business that deals in truth, openness, and fair value cannot help but do well.
Come join us and profit from it." What would Kant say about the moral worth of the honest dealings of members of the Better Business Bureau?
What would he say?
That here's a perfect example that if this is the reason that these companies deal honestly with their customers, their action lacks moral worth, this is Kant's point.
A couple of years ago, at the University of Maryland, there was a problem with cheating and so they initiated an honor system and they created a program with local merchants that if you signed the honor pledge, a pledge not to cheat, you would get discounts of 276 Well what would you think of someone motivated to uphold an honor code with the hope of discounts?
It's the same as Kant's shopkeeper.
The point is, what matters is the quality of the will, the character of the motive and the relative motive to morality can only be the motive of duty, not the motive of inclination.
And when I act out of duty, when I resist as my motive for acting inclinations or self-interest, even sympathy and altruism, only then am I acting freely, only then am I acting autonomously, only then is my will not determined or governed by external considerations, that's the link between Kant's idea of freedom and of morality.
Now, I want to pause here to see if all of this is clear or if you have some questions or puzzles.
They can be questions of clarification or they can be challenges.
If you want to challenge this idea that only the motive of duty confers moral worth on the action.
What do you think?
Yes.
Yeah, I actually have two questions of clarification.
The first is, there seems to be an aspect of this that makes it sort of self-defeating in that once you're conscious of what morality is you can sort of alter your motive to achieve that end of morality.
Give me an example of what you have in mind.
The shopkeeper example.
If he decides that he wants to give the person the money to do the right thing and he decides that it's his motive to do so because he wants to be moral then isn't that sort of defeating trying to ?C isn't that sort of defeating the purity of his action if morality is determined by his motive?
His motive is then to act morally.
I see.
So, you're imagining a case not of the purely selfish calculating shopkeeper but of one who says, well, he may consider shortchanging the customer.
But then he says, "Not, or my reputation might suffer if word gets out." But instead he says, "Actually, I would like to be the kind of honest person who gives the right change to customers simply because it's the right thing to do." Or simply, "Because I want to be moral." "Because I want to be moral, I want to be a good person, and so I'm going to conform all of my actions to what morality requires." It's a subtle point, it's a good question.
Kant does acknowledge, you're pressing Kant on an important point here, Kant does say there has to be some incentive to obey the moral law, it can't be a self-interested incentive that would defeat it by definition.
So, he speaks of a different kind of incentive from that inclination, he speaks of reverence for the moral law.
So, if that shopkeeper says, "I want to develop a reverence for the moral law and so I'm going to do the right thing" then I think he's there, he's there as far as Kant's concerned because he's formed his motive, his will is conforming to the moral law once he sees the importance of it.
So, it would count, it would count.
All right, then, secondly, very quickly, what stops morality from becoming completely objective in this point?
What stops morality from becoming subjective?
Yeah, like how can ?C if morality is completely determined by your morals then how can you apply this or how can it be enforced?
All right, that's also a great question.-- What's your name?-- My name is Amady.-- Amady?-- Yes.
All right, if acting morally means acting according to a moral law out of duty and if it's also to act freely in the sense of autonomously, it must mean that I'm acting according to a law that I give myself, that's what it means to act autonomously, Amady is right about that, but that does raise a really interesting question.
If acting autonomously means acting according to a law I give myself, that's how I escape the chain of cause and effect and the laws of nature.
What's the guarantee that the law I give myself when I'm acting out of duty is the same as the law that Amady is giving himself and that each of you gives yourselves?
Well, here's the question, how many moral laws, from Kant's point of view, are there in this room?
Are there a thousand or is there one?
He thinks there's one, which in a way does go back to this question: all right, what is the moral law?
What does it tell us?
So, what guarantees ?C it sounds like to act autonomously is to act according to one's conscience, according to a law one gives oneself, but what guarantees that we ?C if we all exercise our reason, we will come up with one and the same moral law?
That's what Amady wants to know.
Here's Kant's answer: the reason that leads us to the law we give ourselves as autonomous beings is a reason, it's a kind of practical reason that we share as human beings.
It's not idiosyncratic.
The reason we need to respect the dignity of persons is that we're all rational beings, we all have the capacity for reason and it's the exercise of that capacity for reason which exists undifferentiated in all of us that makes us worthy of dignity, all of us, and since it's the same capacity for reason, unqualified by particular autobiographies and life circumstance, it's the same universal capacity for reason that delivers the moral law, it turns out that to act autonomously is to act according to a law we give ourselves exercising our reason, but it's the reason we share with everyone as rational beings, not the particular reasons we have given our upbringings, our particular values, our particular interests.
It's pure practical reason, in Kant's terms, which legislates a priori regardless of any particular contingent or empirical ends.
Well, what moral law would that kind of reason deliver?
What is its content?
To answer that question, you have to read the groundwork and we'll continue with that question next time.
For Kant, morally speaking, suicide is on a par with murder.
It's on a par with murder because what we violate when we take a life, when we take someone's life, ours or somebody else's, we use that person, we use a rational being, be use humanity as a means and so we fail to respect humanity as an end.
Today we turn back to Kant.
Before we do, remember this is the week by the end of which all of you will basically get Kant, figure out what he's up to.
You're laughing.
No, it will happen.
Kant's groundwork is about two big questions.
First, what is the supreme principle of morality?
Second, how is freedom possible?
Two big questions.
Now, one way of making your way through this dense philosophical book is to bear in mind a set of oppositions or contrasts or dualisms that are related.
Today I'd like to talk about them.
Today we're going to answer the question, what, according to Kant, is the supreme principle of morality?
And in answering that question, in working our way up to Kant's answer to that question it will help to bear in mind three contrasts, or dualisms, that Kant sets out.
The first, you'll remember, had to do with the motive according to which we act.
And according to Kant, only one kind of motive is consistent with morality, the motive of duty, doing the right thing for the right reason.
What other kind of motives are there?
Kant sums them up in the category of inclination.
Every time the motive for what we do is to satisfy a desire or a preference that we may have, to pursue some interest, we're acting out of inclination.
Now, let me pause to see if in thinking about the question of the motive of duty, the goodwill, see if any of you has a question about that much of Kant's claim.
Or is everybody happy with this distinction?
What do you think?
Go ahead.
When you make that distinction between duty and inclination is there ever any moral action ever?
I mean you could always, kind of, probably find some selfish motive, can't you?
Maybe, very often people do have self-interested motives when they act.
Kant wouldn't dispute that but what Kant is saying is that in so far as we act morally, that is in so far as our actions have moral worth, what confers moral worth is precisely our capacity to rise above self-interest and prudence and inclination and to act out of duty.
Some years ago I read about a spelling bee and there was a young man who was declared the winner of the spelling bee, a kid named Andrew, 467 The winning word, the word that he was able to spell, was "echolalia." Does anyone know what echolalia is?
What?
Some type of flower?
It's not some type of flower.
No.
It means the tendency to repeat as in echo, to repeat what you've heard.
Anyhow, he misspelled it actually but the judges misheard him, they thought he had spelled it correctly and awarded him the championship of the National Spelling Bee and he went to the judges afterward and said, "Actually, I misspelled it, I don't deserve the prize." And he was regarded as a moral hero and he was written up in the New York Times, "Misspeller is Spelling Bee Hero." There's Andrew with his proud mother and when he was interviewed afterwards, listen to this, when he was interviewed afterwards, he said, "The judges said I had a lot of integrity," but then he added that part of his motive was, "I didn't want to feel like a slime." All right.
What would Kant say?
Go ahead.
I guess it would depend on whether or not that was a marginal reason or the predominant reason and whether or not ?C and why he decided to confess that he didn't actually spell the word correctly.
Good.
And what's your name?
Bosco.
That's very interesting.
Is there anyone else who has a view about this?
Does this show that Kant's principle is too stringent, too demanding?
What would Kant say about this?
Yes.
I think that Kant actually says that it is the pure motivation that comes out of duty which gives the action moral worth.
So, it's like, for example in this case, he might have more than one motive, he might have the motive of not feeling like a slime and he might have the motive of doing the right thing itself out of duty and so, while there's more than one motivation going on there doesn't mean that the action is devoid of moral worth just because he has one other motive because the motive which involves duty is what gives it the moral worth.
Good.
And what's your name: Judith.
Well Judith, I think that your account actually is true to Kant.
It's fine to have sentiments and feelings that support doing the right thing provided they don't provide the reason for acting.
So, I think Judith actually has mounted a pretty good defense of Kant on this question of the motive of duty.
Thank you.
Now, let's go back to the three contrasts.
It's clear at least what Kant means when he says that for an action to have moral worth, it must be done for the sake of duty, not out of inclination.
But as we began to see last time, there's a connection between Kant's stringent notion of morality and his specially demanding understanding of freedom.
And that leads us to the second contrast, the link between morality and freedom The second contrast describes two different ways that my will can be determined; autonomously and heteronomously.
According to Kant, I'm only free when my will is determined autonomously.
Which means what?
According to a law that I give myself.
We must be capable, if we're capable of freedom as autonomy, we must be capable of acting according not to a law that's given or imposed on us but according to a law we give ourselves.
But where could such a law come from?
A law that we give ourselves.
Reason.
If reason determines my will then the will becomes a power to choose independent of the dictates of nature or inclination or circumstance.
So, connected with Kant's demanding notions of morality and freedom is a specially demanding notion of reason.
Well, how can reason determine the will?
There are two ways and this leads to the third contrast.
Kant says there are two different commands of reason and a command of reason Kant calls an imperative an imperative is simply an ought.
One kind of imperative, perhaps the most familiar kind, is a hypothetical imperative.
Hypothetical imperatives use instrumental reason.
If you want x then do y.
It's means-ends reasoning.
If you want a good business reputation then don't shortchange your customers, word may get out.
That's a hypothetical imperative."If the action would be good solely as a means to something else," Kant writes, "the imperative is hypothetical.
If the action is represented as good in itself and therefore is necessary for a will which of itself accords with reason, then the imperative is categorical." That's the difference between a categorical imperative and a hypothetical one.
A categorical imperative commands categorically, which just means without reference to or dependence on any further purpose and so you see the connection among these three parallel contrasts.
To be free, in the sense of autonomous, requires that I act not out of a hypothetical imperative but out of a categorical imperative.
And so you see by these three contrasts Kant reasons his way, brings us up to his derivation of the categorical imperative.
Well, this leaves us one big question: what is the categorical imperative?
What is the supreme principle of morality?
What does it command of us?
Kant gives three versions, three formulations, of the categorical imperative.
I want to mention two and then see what you think of them.
The first version, the first formula, he calls the formula of the universal law; "Act only on that maxim whereby you can at the same time will that it should become a universal law." And by maxim, what does Kant mean?
He means a rule that explains the reason for what you're doing, a principle.
For example, promise keeping.
Suppose I need money, I need $100 desperately and I know I can't pay it back anytime soon.
I come to you and make you a promise, a false promise, one I know I can't keep, "Please give me $100 today, lend me the money, I will repay you next week." Is that consistent with the categorical imperative, that false promise?
Kant says no.
And the test, the way we can determine that the false promise is at odds with the categorical imperative is try to universalize it, universalize the maxim upon which you're about to act.
If everybody made false promises when they needed money then nobody would believe those promises, there would be no such thing as a promise, and so there would be a contradiction.
The maxim universalized would undermine itself.
That's the test.
That's how we can know that the false promise is wrong.
Well what about the formula of the universal law?
You find it persuasive?
What do you think?
Go ahead.
I have a question about the difference between categoricalism and a hypothesis that if you're going to act . . .
Between categorical and hypothetical.
Hypothetical, yeah.
Imperatives.
Right. If you're going to act with a categorical imperative so that the maxim doesn't undermine itself, it sounds like I am going to do x because I want y, I'm going to not lie in dire need because I want the world to function in such a way that promises are kept.
I don't want to liquidate the practice of promises.
Right, it sounds like justifying a means by an ends.
It seems like an instance of consequentialist reasoning, you're saying.-- Right.-- And what's your name?-- Tim.
Well Tim, John Stewart Mill agreed with you.
He made this criticism of Kant.
He said, "If I universalize the maxim and find that the whole practice of promise keeping would be destroyed if universalized, I must be appealing somehow to consequences if that's the reason not to tell a false promise." So, John Stewart Mill agreed with that criticism against Kant but John Stewart Mill was wrong.
You're in good company though.
You're in good company, Tim.
Kant has often read, as Tim just read him, as appealing to consequences.
The world would be worse off if everybody lied because then no one could rely on anybody else's word therefore you shouldn't lie.
That's not what Kant is saying exactly.
Although, it's easy to interpret him as saying that.
I think what he's saying is that this is the test, this is the test of whether the maxim corresponds with the categorical imperative.
It isn't exactly the reason, it's not the reason, the reason you should universalize to test your maxim is to see whether you are privileging your particular needs and desires over everybody else's.
It's a way of pointing to this feature, this demand of the categorical imperative that the reasons for your action shouldn't depend for their justification on your interests, your needs, your special circumstances being more important than somebody else's.
That, I think, is the moral intuition lying behind the universalization test.
So, let me spell out the second, Kant's second version of the categorical imperative, perhaps in a way that's more intuitively accessible than the formula of universal law.
It's the formula of humanity as an end.
Kant introduces the second version of the categorical imperative with the following line of argument: "We can't base the categorical imperative on any particular interests, purposes, or ends because then it would be only relative to the person whose ends they were.
But suppose, however, there was something whose existence has in itself an absolute value . . .an end in itself . . .then in it, and in it alone, would there be the ground of a possible categorical imperative." Well, what is there that we can think of as having its end in itself?
Kant's answer is this, "I say that man, and in general every rational being, exists as and end in himself, not merely as a means for arbitrary use by this or that will." And here Kant distinguishes between persons on the one hand and things on the other.
Rational beings are persons, they don't just have a relative value for us but if anything has they have an absolute value, an intrinsic value, that is rational beings have dignity.
They're worthy of reverence or respect.
This line of reasoning leads Kant to the second formulation of the categorical imperative which is this: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time, as an end." So, that's the formula of humanity as an end, the idea that human beings as rational beings are ends in themselves, not open to use merely as a means.
When I make a false promise to you, I'm using you as a means to my ends, to my desire for the $100, and so I'm failing to respect you, I'm failing to respect your dignity, I'm manipulating you.
Now, consider the example of the duty against suicide.
Murder and suicide are at odds with the categorical imperative.
Why?
If I murder someone, I'm taking their life for some purpose, either because I'm a hired killer or I'm in the throes of some great anger passion, I have some interest, some purpose, that's particular for the sake which I'm using them as a means.
Murder violates the categorical imperative.
For Kant, morally speaking, suicide is on a par with murder.
It's on a par with murder because what we violate when we take a life, when we take someone's life, ours or somebody else's, we use that person, we use a rational being, we use humanity as a means and so we fail to respect humanity as an end.
And that capacity for reason, that humanity that commands respect, that is the ground of dignity, that humanity, that capacity for reason resides undifferentiated in all of us and so I violate that dignity in my own person, if I commit suicide, and in murder if I take somebody else's life.
From a moral point of view they're the same and the reason they're the same has to do with the universal character and ground of the moral law.
The reason that we have to respect the dignity of other people has not to do with anything in particular about them and so respect, Kantian respect, unlike love in this way.
It's unlike sympathy.
It's unlike solidarity or fellow feeling or altruism because love and those other particular virtues or reasons for caring about other people have to do with who they are in particular.
But respect, for Kant, respect is respect for humanity which is universal, for a rational capacity which is universal, and that's why violating it, in my own case, is as objectionable as violating it in the case of any other.
Questions or objections?
Go ahead.
I guess I'm somewhat worried about Kant's statement that you cannot use a person as a means because every person is an end of themselves, because it seems that everyday, in order to get something accomplished for that day, I must use myself as a means to some end and I must use the people around me as a means to some end as well.
For instance, suppose that I want to do well in a class and I have to write a paper.
I have to use myself as a means to write the paper.
Suppose I want to buy something, food, I must go to the store and use the person working behind the counter as a means for me to purchase my food.
Right.
That's true, you do.
What's your name?
Patrick.
Patrick, you're not doing anything wrong.
You're not violating the categorical imperative when you use other people as means, that's not objectionable provided when we deal with other people for the sake of advancing our projects and purposes and interests, which we all do, provided we treat them in a way that is consistent with respect for their dignity and what it means to respect them is given by the categorical imperative.
Are you persuaded?
Do you think that Kant has given a compelling account, a persuasive account, of the supreme principle of morality?

Justice 07
A Lesson in Lying / A Deal is a Deal
Funding for this program is provided by Additional funding provided by Last time we began trying to we began by trying to navigate our way through Kant's moral theory.
Now, fully to make sense of Kant moral theory in the groundwork requires that we be able to answer three questions.
How can duty and autonomy go together?
What's the great dignity in answering to duty?
It would seem that these two ideas are opposed duty and autonomy.
What's Kant's answer to that?
Need someone here to speak up on Kant's behalf.
Does he have an answer?
Yes, go ahead, stand up.
Kant believes you the only act autonomously when you are pursuing something only the name of duty and not because of your own circumstances such as ?C like you're only doing something good and moral if you're doing it because of duty and not because something of your own personal gain.
Now why is that acting°≠ what's your name?
My name is Matt.
Matt, why is that acting on a freedom?
I hear what you're saying about duty?
Because you choose to accept those moral laws in yourself and not brought on from outside upon onto you.
Okay, good.
Because acting out of duty ?C Yeah.- is following a moral law That you impose on yourself.
That you impose on yourself.
That's what makes duty compatible with freedom.- Yeah.
Okay, that's good Matt.
That is Kant's answer. That's great.
Thank you. So, Kant's answer is it is not in so far as I am subject to the law that I have dignity but rather in so far as with regard to that very same law, I'm the author and I am subordinated to that law on that ground that I took it as much as at I took it upon myself.
I willed that law.
So that's why for Kant acting according to duty and acting freely in the sense of autonomously are one and the same.
But that raises the question, how many moral laws are there?
Because if dignity consists and be governed by a law that I give myself, what's to guarantee that my conscience will be the same as your conscience?
Who has Kant's answer to that? Yes?
Because a moral law trend is not contingent upon seductive conditions.
It would transcend all particular differences between people and so would be a universal law and in this respect there'd only be one moral law because it would be supreme.
Right. That's exactly right.
What's your name?
Kelly.
Kelly. So Kelly, Kant believes that if we choose freely out of our own consciences, the moral law we're guarantee to come up with one and the same moral law. -Yes.
And that's because when I choose it's not me, Michael Sandel choosing.
It's not you, Kelly choosing for yourself?
What is it exactly?
Who is doing the choosing?
Who's the subject? Who is the agent?
Who is doing the choosing?
Reason? - Well reason°≠ Pure reason.
Pure reason and what you mean by pure reason is what exactly?
Well pure reason is like we were saying before not subject to any external conditions that may be imposed on that side.
Good that's' great.
So, the reason that does the willing, the reason that governs my will when I will the moral law is the same reason that operates when you choose the moral law for yourself and that's why it's possible to act autonomously to choose for myself, for each of us to choose for ourselves as autonomous beings and for all of us to wind up willing the same moral law, the categorical imperative.
But then there is one big and very difficult question left even if you accept everything that Matt and Kelly had said so far.
How is a categorical imperative possible?
How is morality possible?
To answer that question, Kant said we need to make a distinction.
We need to make a distinction between two standpoints, two standpoints from which we can make sense of our experience.
Let me try to explain what he means by these two standpoints.
As an object of experience, I belong to the sensible world.
There my actions are determined by the laws of nature and by the regularities of cause and effect.
But as a subject of experience, I inhabit an intelligible world here being independent of the laws of nature I am capable of autonomy, capable of acting according to a law I give myself.
Now Kant says that, "Only from this second standpoint can I regard myself as free for to be independent of determination by causes in the sensible world is to be free." If I were holy and empirical being as the utilitarian assume, if I were a being holy and only subject to the deliverances of my senses, to pain and pleasure and hunger and thirst and appetite, if that's all there were to humanity, we wouldn't be capable of freedom, Kant reasons because in that case every exercise of will would be conditioned by the desire for some object.
In that case all choice would be heteronomous choice governed by the pursued of some external end."When we think of ourselves as free," Kant writes, "we transfer ourselves into the intelligible world as members and recognize the autonomy of the will." That's the idea of the two standpoints.
So how are categorical imperatives possible?
Only because the idea of freedom makes me a member of an intelligible world?
Now Kant admits we aren't only rational beings.
We don't only inhabit the intelligible world, the realm of freedom.
If we did -- if we did, then all of our actions would invariably accord with the autonomy of the will.
But precisely because we inhabit simultaneously the two standpoints, the two realms, the realm of freedom and the realm of necessity precisely because we inhabit both realms there is always potentially a gap between what we do and what we ought to do between is and ought.
Another way of putting this point and this is the point with which Kant concludes the groundwork, morality is not empirical.
Whatever you see in the world, whatever you discover through science can't decide moral questions.
Morality stands at a certain distance from the world, from the empirical world.
And that's why no science could deliver moral truth.
Now I want to test Kant's moral theory with the hardest possible case, a case that he raises, the case of the murderer at the door.
Kant says that lying is wrong.
We all know that.
We've discussed why. Lying is at odds with the categorical imperative.
A French Philosopher, Benjamin Constant wrote an article responding to the groundwork where he said, "This absolute probation online What if a murderer came to your door looking for your friend who was hiding in your house?
And the murderer asked you point blank, "Is your friend in your house?" Constant says, "It would be crazy to say that the moral thing to do in that case is to tell the truth." Constant says the murderer certainly doesn't deserve the truth and Kant wrote to reply.
And Kant stuck by his principle that lying even to the murderer at the door is wrong.
And the reason it's wrong, he said is once you start taking consequences into account to carve out exceptions to the categorical imperative, you've given up the whole moral framework.
You've become a consequentialist or maybe a rule utilitarian.
But most of you and most to our Kant's readers think there's something odd and impossible about this answer.
I would like to try to defend Kant on this point and then I want to see whether you think that my defense is plausible, and I would want to defend him within the spirit of his own account of morality.
Imagine that someone comes to your door.
You were asked that question by this murder.
You are hiding your friend.
Is there a way that you could avoid telling a lie without selling out your friend?
Does anyone have an idea of how you might be able to do that?
Yes? Stand up.
I was just going to say if I were to let my friend in my house to hide in the first place, I'd probably make a plan with them so I'd be like, "Hey I'll tell the murderer you're here, but escape," and that's one of the options mentioned.
But I'm not sure that's a Kantian option.
You're still lying though.
No because he's in the house but he won't be.
Oh I see. All right, good enough.
One more try.
If you just say you don't know where he is because he might not be locked in the closet.
He might have left the closet.
You have no clue where he could be.
So you would say, I don't know which wouldn't actually be a lie because you weren't at that very moment looking in the closet.
Exactly.-So it would be strictly speaking true.
Yes.
And yet possibly deceiving, misleading.-But still true.
What's your name?-John.
John. All right, John has...now John may be on to something.
John you're really offering us the option of a clever evasion that is strictly speaking true.
This raises the question whether there is a moral difference between an outright lie and a misleading truth.
From Kant's point of view there actually is a world of difference between a lie and a misleading truth.
Why is that even though both might have the same consequences?
But then remember Kant doesn't base morality on consequences.
He bases it on formal adherence to the moral law.
Now, sometimes in ordinary life we make exceptions for the general rule against lying with the white lie.
What is a white lie?
It's a lie to make...you're well to avoid hurting someone's feelings for example.
It's a lie that we think of as justified by the consequences.
Now Kant could not endorse a white lie but perhaps he could endorse a misleading truth.
Supposed someone gives you a tie, as a gift, and you open the box and it's just awful.
What do you say? Thank you.
You could say thank you.
But they're waiting to see what you think of it or they ask you what do you think of it?
You could tell a white lie and say it's beautiful.
But that wouldn't be permissible from Kant's point of view.
Could you say not a white lie but a misleading truth, you open the box and you say, "I've never seen a tie like that before.
Thank you." You shouldn't have.
That's good.
Can you think of a contemporary political leader who engaged...you can?
Who are you thinking of?
You remember the whole carefully worded denials in the Monica Lewinsky affair of Bill Clinton.
Now, those denials actually became the subject of very explicit debate in argument during the impeachment hearings.
Take a look at the following excerpts from Bill Clinton.
Is there something do you think morally at stake in the distinction between a lie and a misleading carefully couched truth?
I want to say one thing to the American people.
I want you to listen to me.
I'm going to say this again.
I did not have sexual relations with that woman Miss Lewinsky.
I never told anybody to lie not a single time, never. These allegations are false.
Did he lie to the American people when he said I never had sex with that woman?
You know, he doesn't believe he did and because of the °≠ Well he didn't explain it.
He did explain that, explain congressman.
What he said was to the American people that he did not have sexual relations and I understand you're not going to like this congressman because you will see it as a hair-splitting evasive answer.
But in his own mind his definition was not...
Okay, I understand that argument.-Okay.
All right, so there you have the exchange.
Now at the time, you may have thought this was just a legalistic hair-splitting exchange between a Republican who wanted to impeach Clinton and a lawyer who is trying to defend him.
But now in the light of Kant, do you think there is something morally at stake in the distinction between a lie and an evasion, a true but misleading statement?
I'd like to hear from defenders of Kant.
People who think there is a distinction.
Are you ready to defend Kant?
Well I think when you try to say that lying and misleading truths are the same thing; you're basing it on consequentialist argument which is that they achieve the same thing.
But the fact to the fact to the matter is you told the truth and you intended that people would believe what you are saying which was the truth which means it is not morally the same as telling a lie and intending that they believe it is the truth even though it is not true.
Good. What's your name?-Diana.
So Diana says that Kant has a point here and it's a point that might even come to the aid of Bill Clinton and that is °≠ well what about that?
There's someone over here.
For Kant motivation is key, so if you give to someone because primarily you want to feel good about yourself Kant would say that has no moral worth.
Well with this, the motivation is the same.
It's to sort of mislead someone, it's to lie, it's to sort of throw them off the track and the motivation is the same.
So there should be no difference.
Okay, good. So here isn't the motive the same Diana?
What do you say to this argument that well the motive is the same in both cases there is the attempt or at least the hope that one's pursuer will be misled?
Well that ?C you could look it that way but I think that the fact is that your immediate motive is that they should believe you.
The ultimate consequence of that is t hat they might be deceived and not find out what was going on.
But that your immediate motive is that they should believe you because you're telling the truth.
May I help a little?-Sure.
You and Kant. Why don't you say...and what's your name, I'm sorry?
Wesley.
Why don't you say to Wesley it's not exactly the case that the motive in both cases is to mislead?
They're hoping, they're hoping that the person will be misled by the statement "I don't know where they are" or "I never had sexual relations." You're hoping that they will be misled but in the case where you're telling the truth, you're motive is to mislead while at the same time telling the truth and honoring the moral law and staying within the bounds of the categorical imperative.
I think Kant's answer would be Diana, yes?-Yes.
You like that?-I do.
Okay. So I think Kant's answer would be unlike a falsehood, unlike a lie, a misleading truth pays a certain homage to duty.
And the homage it pays to duty is what justifies that the work of even the work of the evasion.
Diana, yes you like? Okay.
And so there is something, some element of respect for the dignity of the moral law in the careful evasion because Clinton could have told an outright lie but he didn't.
And so I think Kant's insight here is in the carefully couched but true evasion.
There is a kind of homage to the dignity of the moral law that is not present in the outright lie and that, Wesley, is part of the motive.
It's part of the motive.
Yes, I hope he will be misled.
I hope the murderer will run down the road or go to the mall looking for my friend instead at the closet.
I hope that will be the effect.
I can't control that.
I can't control the consequences.
But what I can control is standing by and honoring however I pursue the ends, I hope will unfold to do so in a way that is consistent with respect for the moral law.
Wesley, I don't think, is entirely persuaded but at least this brings out, this discussion brings out some of what it's at stake, what's morally at stake in Kant's notion of the categorical imperative.
As long as any effort this involved I would say that the contract is valid then.
It should take effect.
But why? What was...what morally can you point to?
For example two people agreed to be married and one suddenly called the other in two minutes say I changed my mind.
Does the contract have obligation on both sides?
Well I am tempted to say no.
Fine.
Last time we talked about Kant's categorical imperative and we considered the way he applied the idea of the categorical imperative to the case of lying.
I want to turn briefly to one other application of Kant's moral theory and that's his political theory.
Now Kant says that just laws arise from a certain kind of social contract.
But this contract he tells us is of an exceptional nature.
What makes the contract exceptional is that it is not an actual contract that happens when people come together and try to figure out what the constitution should be.
Kant points out that the contract that generates justice is what he calls an idea of reason.
It's not an actual contract among actual men and women gathered in a constitutional convention.
Why not?
I think Kant's reason is that actual men and women gathered in real constitutional convention would have different interests, values, aims, and it would also be differences of bargaining power and differences of knowledge among them.
And so the laws that would result from their deliberations wouldn't necessarily be just, wouldn't necessarily conform to principles of right but would simply reflect the differences a bargaining power, the special interests the fact that some might know more than others about law or about politics.
So Kant says, "A contract that generates principles of right is merely an idea of reason but it has undoubted practical reality because it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of the whole nation." So Kant is a contractarian, but he doesn't trace the origin or the rightness of law to any actual social contract.
This contrives to an obvious question.
What is the moral force of a hypothetical contract, a contract that never happened?
That's the question we take up today but in order to investigate it, we need to turn to a modern philosopher, John Rawls, who worked out in his book, A Theory of Justice, in great detail and account of a hypothetical agreement as the basis for justice.
Rawls' theory of justice in broad outline is parallel to Kant's in two important respects.
Like Kant, Rawls was a critic of utilitarianism."Each person possesses an inviolability founded on justice," Rawls' writes, "that even the welfare of society as a whole cannot override.
The rights secured by justice are not subject to political bargaining or to the calculus social interests." The second respect in which Rawls' theory follows Kant's is on the idea that principles of justice properly understood can be derived from a hypothetical social contract.
Not an actual one.
And Rawls works this out in fascinating detail with the device of what he calls the "veil of ignorance".
The way to arrive at the rights...the basic rights that we must respect, the basic framework of rights and duties is to imagine that we were gathered together trying to choose the principles to govern our collective lives without knowing certain important particular fact about ourselves.
That's the idea of the veil of ignorance.
Now what would happen if we gather together just as we are here and try to come up with principles of justice to govern our collective life?
There would be a cacophony of proposals of suggestions reflecting people's different interests, some are strong, some are weak, some are rich, some are poor.
So Rawls says, imagine instead that we are gathered in an original position of equality and what assures the equality is the veil of ignorance.
Imagine that we are all behind a veil of ignorance which temporarily abstracts from or brackets, hides from us who in particular we are.
Our race, our class, our place in society, our strengths, our weaknesses, whether we're healthy or unhealthy, then and only then Rawls says, the principles we would agree to would be principles of justice.
That's how the hypothetical contract works.
What is the moral force of this kind of hypothetical agreement?
Is it stronger or weaker than a real agreement, an actual social contract?
In order to answer that question, we have to look hard at the moral force of actual contracts.
There are really two questions here.
One of them is how do actual contracts bind me or obligate me?
Question number one.
And question number two, how do actual real life contracts justify the terms that they produce?
If you think about it and this is in line with Rawls and Kant, the answer to the second question, how do actual contracts justify the terms that they produce, the answer is they don't.
At least not on their own.
Actual contracts are not self-sufficient moral instruments of any actual contract or agreement.
It can always be asked, is it fair what they agreed to?
The fact of the agreement never guarantees the fairness of the agreement and we know this by looking at our own constitutional convention.
It produced a constitution that permitted slavery to persist.
It was agreed to.
It was an actual contract but that doesn't establish that the laws agreed to all of them were just.
Well then what is the moral force of actual contracts?
To the extent that they bind us, they obligate in two ways.
Suppose, maybe here it would help to take an example.
We make an agreement, a commercial agreement.
I promise to pay you $100 if you will go harvest and bring to me 100 lobsters.
We make a deal.
You go out and harvest them and bring them to me.
I eat the lobsters, served them to my friends, and then I don't pay.
And you say, "But you're obligated." And I say, "Why?" What do you say? "Well we had a deal." And you benefited.
You ate all those lobsters.
Well that's a pretty strong argument.
It's an argument that depends though and the fact that I benefited from your labor So, contracts sometimes bind us in so far as they are instruments of mutual benefit.
I ate the lobsters. I owe you the $100 for having gathered them.
But suppose, now take a second case.
We make this deal, I'll pay you $100 for 380 before you've gone to any work I call you back and say I've changed my mind.
Now, there's no benefit.
There's no work on your part so there's no element of reciprocal exchange.
What about in that case, do I still owe you merely in virtue of the fact that we had an agreement?
Who says those of you who say, yes, I still owe you? Why? Okay, stand up.
Why do I owe you?
I called you back after two minutes.
You haven't done any work.
I think I spent the time and effort in drafting this contract with you and also have emotional expectation that I go through the work.
So you took time to draft the contract but we did it very quickly.
We just chatted on the phone.
That wouldn't be a formal form of contract though.
Well I faxed at you.
It only took a minute.
As long as any effort is involved, I would say that the contract is valid then.
It should take effect.
But why? What was...what morally can you point to that obligates me?
I admit that I agreed but you didn't go to any work. I didn't enjoy any benefit.
Because one might mentally go through all the work of harvesting the lobsters.
You mentally went through the work of harvesting the lobsters.
That's nothing is it?
It's not much.
Is it worth $100 that you were imagining yourself going and collecting lobsters?
It may not worth $100, but it may worth something to some people.
All right, I'll give you a buck for that.
But what I ?C so you're still pointing...what's interesting you're still pointing to the reciprocal dimension of contracts.
You did or imagined that you did or looked forward to doing something that might be had.
For example two people agreed to be married and one suddenly calls the other in two minutes say, I've changed my mind, does the contract have obligation on both sides?
Nobody has done any work or nobody has benefited yet.
Well I'm tempted to say no.
Fine.
All, right. What's your name?-Julian.
Thank you Julian.
All right, that was good.
Now is there anyone who has who agrees with Julian that I still owe the money?
For any other reason now I have °≠ go ahead, stand up.
I think if you back out it sort of cheapens the institution of contracts.
Good but why? Why does it?
Well I think is kind of Kantian, but there's in almost there's a certain intrinsic value in being able to make contracts and having, you know, knowing people will expect that you'll go through with that.
Good, there is some...it would cheapen the whole idea of contracts which has to do with taking in obligation on myself. Is that the idea?
Yeah, I think so.
What's your name?-Adam.
So Adam points instead not to any reciprocal benefit or mutual exchange but to the mere fact of the agreement itself.
We see here there are really two different ways in which actual contracts generate obligations.
One has to do with the active consent as a voluntary act and it points...
Adam said this was a Kantian idea and I think he is right because it points to the ideal of autonomy.
When I make a contract, the obligation is one that is self-imposed and that carries a certain moral weight, independent of other considerations.
And then there's a second element of the moral force of contract arguments which has to do with the sense in which actual contracts are instruments of mutual benefit and this points toward the ideal of reciprocity that obligation can arise, I can have an obligation to you in so far as you do something for me.
Now, when investigating the moral force and also the moral limits of actual contracts and here I would like to advance an argument about the moral limits of actual contracts now that we know what moral ingredients do the work when people come together and say, "I will do this if you do that." I would like to argue first that the fact that two people agreed to some exchange does not mean that the terms of their agreement are fair.
When my two sons were young they collected baseball cards and traded them.
And one was...there was a two-year aged...there is a two-year aged difference between them and so I had to institute a rule about the trades that no trade was complete until I had approved it and the reason is obvious.
The older one knew more about the value of these cards and so would take advantage of the younger one.
So that's why I had to review it to make sure that the agreements were fair.
Now you may say, "Well this is paternalism." Of course it was. That's what paternalism is for that kind of thing.
So what does this show?
What is the baseball cards example show?
The fact of an agreement is not sufficient to establish the fairness of the terms.
I read some years ago of a case in Chicago there was an elderly widow, an 84-year-old widow named Rose who had a problem in her apartment with a leaky toilet and she signed a contract with an unscrupulous contractor, who offered to repair her leaky toilet in exchange for $50,000.
But she had agreed she was of sound mind, maybe terribly naive and unfamiliar with the price of plumbing, she had made this agreement.
Luckily, it was discovered.
She went to the bank and asked to withdraw $25,000.
And the teller said, "Why do you need all of that money for?" And she said, "Well, I have a leaky toilet." And the teller called authorities and they discovered this unscrupulous contractor.
Now, I suspect that even the most ardent contract carryings in the room will agree that the fact of this woman's agreement is not a sufficient condition of the agreement being fair.
Is there anyone who will dispute that?
No one. Am I missing anyone?
Alex, where are you?
Where are you?
So, maybe there's no dispute then to my first claim that an actual agreement is not necessary to their..is not a sufficient condition of there being an obligation.
I want to now make us stronger, maybe more controversial claim about the moral limits of actual contracts that a contract or an active consent is not only not sufficient but it's not even a necessary condition of there being an obligation.
And the idea here is that if there is reciprocity, if there is an exchange, then a receipt of benefits, there can be an obligation even without an act of consent.
One great example of this involves the 18th century philosopher, the Scottish moral philosopher David Hume.
When he was young, Hume wrote a book arguing against Locke's idea of an original social contract.
Hume heaps scorn on his contractarian idea.
He said it was a philosophical fiction.
One of the most mysterious and incomprehensible operations that can possibly be imagined this idea of the social contract.
Many years later when he was 62 years old, Hume had an experience that put to the test his rejection of consent us the basis of obligation.
Hume had a house in Edinboro.
He rented to his friend James Boswell who in turn sublet it to a subtenant.
The subtenant decided that the house needed some repairs and a paint job.
He hired a contractor to do the work.
The painter did the work and sent the bill to Hume.
Hume refused to pay on the grounds that he hadn't consented.
He hadn't hired the painter.
The case went to court.
The contractor said, "It's true, Hume didn't agree but the house needed the painting and I gave it a very good one." Hume thought this was a bad argument.
The only argument this painter makes is that the work was necessary to be done but this is no good answer because by the same rule, this painter may go through every house in Edinboro and do what he thinks proper to be done without the landlord's consent and give the same reason that the work was necessary and that the house was the better for it.
So Hume didn't like the theory that there could be obligation to repay a benefit without consent. But the defense failed and he had to pay.
Let met give you one other example of the distinction between the consent-based aspect of obligations and the benefit-based aspect and how they're sometimes run together.
This is based on a personal experience.
Some years ago, I was driving across the country with some friends and we found ourselves in the middle of nowhere in Hammond, Indiana.
We stopped in a rest stop and got out of the car and when we came back our car wouldn't start.
None of us knew much about cars.
We didn't really know what to do until we noticed that in the parking lot driving up next to us was a van and on the side it said, "Sam's mobile repair van." And out of the van came a man, presumably Sam and he came up to us and he said, "Can I help you?
Here's how I work.
I work by the hour for $50 an hour.
If I fix your car in five minutes, you owe me the $50 and if I work on your car for an hour and can't fix it, you'll still owe me the $50." So I said, "But what is the likelihood that you'll be able to fix the car" and he didn't answer.
But he did start looking under the poking around the steering column.
Short time passed, he emerged from under the steering column and said, "There's nothing wrong with the ignition system but you still have 45 minutes left.
Should I look under the hood?" I said, "Wait a minute. I haven't hired you.
We haven't made any agreement." And then he became very angry and he said, "Do you mean to say that if I had fixed your car while I was working under the steering column that you wouldn't have paid me?" And I said, "That's a different question." I didn't go into the distinction between consent based and benefit based applications.
But I think he had the intuition that if he had fixed it while he was poking around that I would have owed him the $50.
I shared that intuition. I would have.
But he inferred from that.
This was the fallacy and the reasoning that I think lay behind his anger.
He inferred from that fact that therefore implicitly we had an agreement.
But that it seems to me as a mistake.
It's a mistake that fails to recognize the distinction between these two different aspects of contract arguments.
Yes, I agree. I would have owed him $50 if he had repaired my car during that time not because we had made any agreement.
We hadn't.
But simply because if he had fixed my car, he would have conferred on me a benefit for which I would have owed him in the name of reciprocity and fairness.
So here's another example of the distinction between these two different kinds of arguments, these two different aspects of the morality of contract.
Now I want to hear how many think I was in the right in that case?
That's reassuring. Is there anyone who thinks I was in the wrong?
Anyone? You do?
Why? Go ahead.
Isn't the problem with this is that any benefit is inherently subjectively defined?
I mean what if you wanted your car broken and he had fixed it? I mean...
No, I didn't want it broken.
Yeah in this case. I mean...
But who would?
Who would?
I don't know, someone.
I mean what if Hume, you know, what if the painter that painted his house blue but he hated the color blue, I mean you have to sort of define what your benefit is before the person does it.
Well all right, so what would you conclude for that though for the larger issue here, would you conclude that therefore consent is a necessary condition of their being an obligation?
Absolutely.-You would. What's your name?
Nate.
Because otherwise how can we know, Nate says, whether there has been an exchange of equivalent or fair benefits unless we have the subjective evaluation which may vary one person to the next of the situation.
All right, that's a fair challenge.
Let me put to you one other example in order to test the relation between these two aspects of the morality of contract.
Suppose I get married and suppose I discover that after 20 years of faithfulness on my part, every year on our trip across the country my wife has been seeing another man, a man with a van on the Indiana toll road.
This part is completely made up by the way.
Wouldn't I have two different reasons for moral outrage?
One reason could be we had an agreement.
She broke her promise referring to the fact of her consent.
But I would also have a second ground for moral outrage having nothing to do with the contract as such but I've been so faithful for my part.
Surely I deserve better than this.
Is this what I'm doing in return and so on?
So that would point to the element of reciprocity.
Each reason has an independent moral force.
That's the general point and you can see this if you imagine a slight variation on the marriage case.
Suppose we haven't been married for 20 years.
Suppose we were just married and that the betrayal occurred on the way to our honeymoon in Hammond, Indiana.
After the contract has been made, but before there is any history of performance on my part, performance of the contract I mean, I would still with Julian, I'd be able to say but you promised, you promised.
That would isolate the pure element of consent, right where there were no benefits, never mind. You get the idea.
Here's the main idea, actual contracts have their moral force in virtue of two distinguishable ideals: autonomy and reciprocity, but in real life every actual contract may fall short, may fail to realize the ideals that give contracts their moral force in the first place.
The ideal of autonomy may not be realized because there may be a difference in the bargaining power of the parties.
The ideal of reciprocity may not be realized because there may be a difference of knowledge between the parties and so they may misidentify what really counts as having equivalent value.
Now suppose you were to imagine a contract where the ideals of autonomy and of reciprocity were not subject to contingency but were guaranteed to be realized, what kind of contract would that have to be?
Imagine a contract among parties who were equal in power and knowledge rather than unequal who are identically situated rather than differently situated?
That is the idea behind Rawls' claim that the way to think about justice is from the standpoint of a hypothetical contract, behind a veil of ignorance that creates the condition of equality by ruling out or enabling us to forget for the moment the differences in power and knowledge that could even in principle lead to unfair results.
This is why for Kant and for Rawls a hypothetical contract among equals is the only way to think about principles of justice.
What will those principles be?
That's the question we'll turn to next time.
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Justice 08
What’s a Fair Start? / What Do We Deserve?
Today, we turn to the question of distributive justice.
How should income in wealth and power and opportunities be distributed?
According to what principles?
John Rawls offers a detailed answer to that question.
And we're going to examine and assess his answer to that question, today.
We put ourselves in a position to do so last time.
By trying to make sense of why he thinks that principles of justice are best derived from a hypothetical contract.
And what matters is that the hypothetical contract be carried out in an original position of equality, behind, what Rawls calls, the veil of ignorance.
So that much is clear?
Alright, then let's turn to the principles that Rawls says would be chosen behind the veil of ignorance.
First, he considered some of the major alternatives.
What about utilitarianism?
Would the people in the original position choose to govern their collective lives utilitarian principles, the greatest good for the greatest number?
No, they wouldn't, Rawls says.
And the reason is, that behind the veil of ignorance, everyone knows that once the veil goes up, and real life begins, we will each want to be respected with dignity.
Even if we turn out to be a member of a minority.
We don't want to be oppressed.
And so we would agree to reject utilitarianism, and instead to adopt as our first principle, equal basic liberties.
Fundamental rights to freedom of speech, freedom of assembly, religious liberty, freedom of conscience and the like.
We wouldn't want to take the chance that we would wind up as members of an oppressed or a despised minority with the majority tyrannizing over us.
And so Rawls says utilitarianism would be rejected."Utilitarianism makes the mistake", Rawls writes, "of forgetting, or at least not taking seriously, the distinction between persons." And in the original position behind the veil of ignorance, we would recognize that and reject utilitarianism.
We wouldn't trade off our fundamental rights and liberties for any economic advantages.
That's the first principle.
Second principle has to do with social and economic inequalities.
What would we agree to?
Remember, we don't know whether we're going to wind up rich or poor.
Healthy or unhealthy.
We don't know what kind of family we're going to come from.
Whether we're going to inherit millions or whether we will come from an impoverished family.
So we might, at first thought, say, "Well let's require an equal distribution of income and wealth." Just to be on the safe side.
But then we would realize, that we could do better than that.
Even if we're unlucky and wind up at the bottom.
We could do better if we agree to a qualified principle of equality.
Rawls calls it "the Difference Principle".
A principle that says, only those social and economic inequalities will be permitted that work to the benefit of the least well off.
So we wouldn't reject all inequality of income and wealth.
We would allow some.
But the test would be, do they work to the benefit of everyone including those, or as he specifies, the principle, especially those at the bottom.
Only those inequalities would be accepted behind the veil of ignorance.
And so Rawls argues, only those inequalities that work to the benefit of the least well off, are just.
We talked about the examples of Michael Jordan making 81 Of Bill Gates having a fortune in the tens of billions.
Would those inequalities be permitted under the difference principle?
Only if they were part of a system, those wage differentials, that actually work to the advantage of least well off.
Well, what would that system be?
Maybe it turns out that as a practical matter you have to provide incentives to attract the right people to certain jobs.
And when you do, having those people in those jobs will actually help those at the bottom.
Strictly speaking, Rawls's argument for the difference principle is that it would be chosen behind the veil of ignorance.
Let me hear what you think about Rawls's claim that these two principles would be chosen behind the veil of ignorance.
Is there anyone who disagrees that they would be chosen?
Alright, let's start up in the balcony, if that's alright.
Go ahead.
OK, your argument depends upon us believing that we would argue in said policy, or justice from a bottom.
For the disadvantaged.
And I just don't see from a proof standpoint, where we've proven that.
Why not the top?
Right, and what's your name?- Mike.
Mike, alright, good question.
Put yourself behind the veil of ignorance.
Enter into the thought experiment.
What principles would you choose?
How would you think it through?
Well, I would say things like, even Harvard's existence is an example of preaching toward the top.
Because Harvard takes the top academics.
And I didn't know when I was born how smart I would be.
But I worked my life to get to a place of this caliber.
Now, if you had said Harvard's going to randomly take 1600 people of absolutely no qualification, we'd all be saying, "There's not much to work for." And so what principle would you choose?
In that situation I would say a merit based one.
One where I don't necessarily know, but I would rather have a system that rewards me based on my efforts.
So you, Mike, behind the veil of ignorance, would choose a merit-based system, where people are rewarded according to their efforts?
Alright, fair enough.
What would you say?
Go ahead.
My question is, if the merit-based argument is based on when everyone is at a level of equality?
Where from that position, you're rewarded to where you get, or is it regardless of what advantages you may have when you began your education to get where you are here?
I think what the question you're asking is saying that if we want to look at, whatever, utilitarianism, policy, do you want to maximize world wealth.
And I think a system that rewards merit is the one that we've pretty much all established, is what is best for all of us.
Despite the fact that some of us may be in the second percentile and some may be in the 98th percentile.
At the end of the day it lifts that lowest based level, a community that rewards effort as opposed to an differences.
But, I don't understand how you're rewards someone's efforts who clearly has had, not you, but maybe myself, advantages throughout, to get where I am here.
I mean, I can't say that somebody else who maybe worked as hard as I did would have had the same opportunity to come to a school like this.
Alright, let's look at that point.
What's your name?
Kate. -Kate, you suspect that the ability to get into top schools may largely depend on coming from an affluent family.
Having a favorable family background, social, cultural, economic advantages and so on?
I mean, economic, but yes, social, cultural.
All of those advantages, for sure.
Someone did a study, of the 146 selective colleges and universities in the United States.
And they looked at the students in those colleges and universities to try to find out what their background was, their economic background.
What percentage do you think, come from the bottom quarter of the income scale?
You know what the figure is?
Only three percent of students, at the most selective colleges and universities come from poor backgrounds.
Over 70 percent come from affluent families.
Let's go one step further then, and try to address Mike's challenge.
Rawls actually has two arguments, not one, in favor of his principles of justice.
And in particular, of the difference principle.
One argument is the official argument, what would be chosen behind the veil of ignorance.
Some people challenge that argument, saying, "Maybe people would want to take their chances.
Maybe people would be gamblers behind the veil of ignorance.
Hoping that they would wind up on top." That's one challenge that has been put to Rawls.
But backing up the argument from the original position is the second argument.
And that is the straightforwardly moral argument.
And it goes like this, it says, the distribution of income and wealth and opportunities should not be based on factors for which people can claim no credit.
It shouldn't be based on factors that are arbitrary from a moral point of view.
Rawls illustrates this by considering several rival theories of justice.
He begins with the theory of justice that most everyone these days would reject.
A feudal aristocracy.
What's wrong with the allocation of life prospects in a feudal aristocracy?
Rawls says, well the thing that's obviously wrong about it is that people's life prospects are determined by the accident of birth.
Are you born to a noble family or to a family of peasants and serfs?
And that's it.
You can't rise.
It's not your doing where you wind up or what opportunities you have.
But that's arbitrary from a moral point of view.
And so that objection to feudal aristocracy leads, and historically has lead, people to say, careers should be open to talents.
There should be formal equality of opportunity regardless of the accident of birth.
Every person should be free to strive, to work, to apply for any job in the society.
And then, if you open up jobs, and you allow people to apply, and to work as hard as they can, then the results are just.
So it's more or less the libertarian system that we've discussed in earlier weeks.
What does Rawls think about this?
He says it's an improvement.
It's an improvement because it doesn't take as fixed the accident of birth.
But even with formal equality of opportunity the libertarian conception doesn't extend that, doesn't extend its insight far enough.
Because if you let everybody run the race, everybody can enter the race, but some people start at different starting points, that race isn't going to be fair.
Intuitively, he says, the most obvious injustice of this system is that it permits distributive shares to be improperly influenced by factors arbitrary from a moral point of view.
Such as, whether you got a good education or not.
Whether you grew up in a family that support you and developed in you a work ethic and gave you the opportunities.
So that suggests moving to a system of fair equality of opportunity.
And that's really the system that Mike was advocating earlier on.
What we might call a merit-based system.
A meritocratic system.
In a fair meritocracy the society sets up institutions to bring everyone to the same starting point before the race begins.
Equal educational opportunities.
Head start programs, for example.
Support for schools in impoverished neighborhoods.
So that everyone, regardless of their family background, has a genuinely fair opportunity.
Everyone starts from the same starting line.
Well, what does Rawls think about the meritocratic system?
Even that, he says, doesn't go far enough in remedying, or addressing, the moral arbitrariness of the natural lottery.
Because if you bring everyone to the same starting point and begin the race, who's going to win the race?
Who would win?
To use the runners example.
The fastest runners would win.
But is it their doing that they happen to be blessed with athletic prowess to run fast?
So Rawls says, "Even the principle of meritocracy, where you bring everyone to the same starting point, may eliminate the influence of social contingencies and upbringing, ...but it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents." And so he thinks that the principle of eliminating morally arbitrary influences in the distribution of income and wealth requires going beyond what Mike favors, the meritocratic system.
Now, how do you go beyond?
Do you bring everyone to the same starting point and you're still bothered by the fact that some are fast runners and some are not fast runners, what can you do?
Well, some critics of a more egalitarian conception say the only thing you can do is handicap the fast runners.
Make them wear lead shoes.
But who wants to do that?
That would defeat the whole point of running the race.
But Rawls says, you don't have to have a kind of leveling equality, if you want to go beyond a meritocratic conception.
You permit, you even encourage, those who may be gifted, to exercise their talents.
But what you do, is you change the terms on which people are entitled to the fruits of the exercise of those talents.
And that really is what the difference principle is.
You establish a principle that says, people may benefit from their good fortune, from their luck in the genetic lottery, but only on terms that work to the advantage of the least well off.
And so, for example, Michael Jordan can make 290 only under a system that taxes away a chunk of that to help those who lack the basketball skills that he's blessed with.
Likewise, Bill Gates.
He can make his billions.
But he can't think that he somehow morally deserves those billions."Those who have been favored by nature, may gain from their good fortune but only on terms that improve the situation of those who have lost out." That's the difference principle.
And it's an argument from moral arbitrarianists.
Rawls claims, that if you're bothered by basing distributive shares on factors arbitrary from a moral point of view, you don't just reject a feudal aristocracy for a free market.
You don't even rest content with a meritocratic system that brings everyone to the same starting point.
You set up a system, where everyone, including those at the bottom, benefit from the exercise of the talents held by those who happen to be lucky.
What do you think?
Is that persuasive?
Who finds that argument unpersuasive?
The argument for moral arbitrarianists.
Yes.
I think that in the egalitarian proposition the more talented people, I think it's very optimistic to think that they would still work really hard, even if they knew that part of what they made would be given away.
So I think that the only way for the more talented people to exercise their talents to the best of their ability is in the meritocracy.
And in a meritocracy, what's your name?
Kate.
Kate, does it bother you, and Mike, does it bother you, that in a meritocratic system, that even with fair equality of opportunity, people get ahead, people get rewards that they don't deserve simply because they happen to be naturally gifted.
What about that?
I think that it is arbitrary.
Obviously it's arbitrary.
But I think that correcting for it would be detrimental.
Because it would reduce incentives, is that why?
It would reduce incentives, yeah.
Mike, what do you say?
We're all sitting in this room and we have undeserved, we have undeserved glory of some sort.
So you should not be satisfied with the process of your life.
Because you have not created any of this.
And I think, from a standpoint of, not just this room, us being upset, but from a societal standpoint we should have some kind of a gut reaction to that feeling.
The guy who runs the race, he doesn't...
He actually harms us as opposed to maybe makes me run that last ten yards faster.
And that makes the guy behind me run ten yards faster and the guy behind him ten yards faster.
Alright, so Mike, let me ask you.
You talked about effort before.
Effort.
Do you think when people work hard to get ahead, and succeed, that they deserve the rewards that go with effort?
Isn't that the idea behind your defense?
I mean, of course, bring Michael Jordan here, I'm sure you can get him, and have him come and defend himself about he makes 31 million dollars.
And I think what you're going to realize is his life was a very, very tough one to get to the top.
And that we are basically being the majority oppressing the minority in a different light.
It's very easy to pick on him.
Very easy.
Alright, effort.
You've got...
I've got a few. I've got a few.
But that's about it.
Effort, you know what Rawls's answer to that is?
Even the effort that some people expend, conscientious driving, the work ethic, even effort depends a lot on fortunate family circumstances.
For which you, we, can claim no credit.
Let's do the test.
Let's do a test here.
Never mind economic class, those differences are very significant.
Put those aside.
Psychologists say that birth order makes a lot of difference in work ethic, striving, effort.
How many here, raise your hand, those of you here, who are first in birth order.
I am too by the way.
Mike, I noticed you raised your hand.
If the case for the meritocratic conception is that effort should be rewarded, doesn't Rawls have a point that even effort striving, work ethic is largely shaped even by birth order?
Is it your doing?
Mike, is it your doing that you were first in birth order?
Then why, Rawls says, of course not.
So why should income and wealth and opportunities in life be based on factors arbitrary from a moral point of view?
That's the challenge that he puts to market societies, but also to those of us at places like this.
A question to think about for next time.
A justice of the United States Supreme Court, what do they make?
It's just under $200,000.
But there's another judge who makes a lot more than Sandra Day O'Connor.
Do you know who it is?- Judge Judy?
Judge Judy.
How did you know that?
Judge Judy, you know how much she makes?$25 million.
Now, is that just?
Is it fair?
We ended last time with that remarkable poll, do you remember?
The poll about birth order.
What percentage of people in this room raised their hands, was it, to say that they were the first born?403 And what was the significance of that?
If you're thinking about these theories of distributive justice.
Remember, we were discussing three different theories of distributive justice.
Three different ways of answering the question, "How should income and wealth and opportunities and the good things in life, be distributed?" And so far we've looked at the libertarian answer.
That says, the just system of distribution is a system of free exchange, a free market economy.
Against a background of formal equality.
Which simply means, that jobs and careers are open to anyone.
Rawls says that this represents an improvement over aristocratic and caste systems, because everyone can compete for every job.
Careers open to talents.
And beyond that, the just distribution is the one that results from free exchange.
Voluntary transactions.
No more, no less.
Then Rawls argues, if all you have is formal equality, jobs open to everyone, the result is not going to be fair.
It will be biased in favor of those who happen to be born to affluent families, who happen to have the benefit of good educational opportunities.
And that accident of birth is not a just basis for distributing life chances.
And so, many people who notice this unfairness, Rawls argues, are lead to embrace a system of fair equality of opportunity.
That leads to the meritocratic system.
Fair equality of opportunity.
But Rawls says, even if you bring everyone to the same starting point in the race, what's going to happen?
Who's going to win?
The fastest runners.
So once you're troubled by basing distributive shares on morally arbitrary contingencies, you should, if you reason it through, be carried all the way to what Rawls calls, "the democratic conception".
A more egalitarian conception of distributive justice that he defines by the difference principle.
Now, he doesn't say that the only way to remedy or to compensate for differences in natural talents and abilities is to have a kind of, leveling equality.
A guaranteed equality of outcome.
But he does say there's another way to deal with these contingencies.
People may gain, may benefit from their good fortune, but only on terms that work to the advantage of the least well off.
And so, we can test how this theory actually works by thinking about some paid differentials that arise in our society.
What does the average school teacher make in the United States, do you suppose?
Roughly.-$35,000.
It's a little more, 40, $42,000.
What about David Letterman?
How much do you think David Letterman makes?
More than a school teacher?$31 million.
David Letterman.
Is that fair?
That David Letterman makes that much more than a school teacher?
Well, Rawls's answer would be, it depends whether the basic structure of society is designed in such a way that Letterman's $31 million is subject to taxation so that some of those earnings are taken to work for the advantage of the least well off.
One other example of a paid differential.
A justice of the United States Supreme Court.
What do they make?
It's just under $200,000.
Here's Sandra Day O'Connor, for example. There she is.
But there's another judge who makes a lot more than Sandra Day O'Connor.
Do you know who it is?- Judge Judy.
Judge Judy.
How did you know that?
You watch?
You're right.
Judge Judy, you know how much she makes?
There she is.$25 million.
Now, is that just?
Is it fair?
Well, the answer is, it depends on whether this is against a background system in line with the difference principle.
Where those who come out on top, in terms of income and wealth are taxed in a way that benefits the least well off members of society.
Now, we're going to come back to these wage differentials, pay differentials, between a real judge and a TV judge.
The one Marcus watches all the time.
What I want to do now, is return to these theories and to examine the objections to Rawls's more egalitarian theory.
The difference principle.
There are at least three objections to Rawls's difference principle.
One of them came up last time in the discussion and a number of you raised this worry.
What about incentives?
Isn't there the risk, if taxes reach 506 that Michael Jordan won't play basketball?
That David Letterman won't do late night comedy?
Or that CEOs will go into some other line of work?
Now, who among those who are defenders of Rawls who has an answer to this objection about the need for incentives?
Yes. Go ahead, stand up.
Rawls's idea is that there should only be so much difference that it helps the least well off the most.
So if there's too much equality, then the least well off might not be able to watch late night TV, or might not have a job because their CEO doesn't want to work.
So you need to find the correct balance where taxation still leaves enough incentive to least well off to benefit from the talents.- Good.
And what's your name?- Tim.
Tim. Alright, so Tim is saying, in effect, that Rawls is taking count of incentives.
And could allow for pay differentials and for some adjustment in the tax rate to take account of incentives.
But, Tim points out, the standpoint from which the question of incentives needs to be considered is not the effect on the total size of the economic pie.
But instead from the standpoint of the effect of incentives, or disincentives, on the well-being of those on the bottom.
Right?
Good. Thank you.
I think that is what Rawls would say.
In fact, if you look in section 17, where he describes the difference principle, he allows for incentives."The naturally advantaged are not gain merely because they are more gifted, but only to cover the costs of training and education and for using their endowments in ways that help less fortunate as well." So you can have incentives.
You can adjust the tax rate.
If taking too much from David Letterman or from Michael Jordan, or from Bill Gates, winds up actually hurting those at the bottom.
That's the test.
So incentives, that's not a decisive objections against Rawls's difference principle.
But there are two weightier, more difficult objections.
One of them comes from defenders of a meritocratic conception.
The argument that says, what about effort?
What about people working hard having a right to what they earn because they've deserved it.
They've worked hard for it.
That's the objection from effort and moral desert.
Then there's another objection.
That comes from libertarians.
And this objection has to do with reasserting the idea of self-ownership.
Doesn't the difference principle, by treating our natural talents and endowments as common assets, doesn't that violate the idea that we own ourselves?
Now, let me deal first, with the objection that comes from the libertarian direction.
Milton Friedman writes, in his book, "Free to Choose," "Life is not fair.
And it's tempting to believe that government can rectify what nature has spawned." But his answer is, "The only way to try to rectify that is to have a leveling equality of outcome." Everyone finishing the race at the same point.
And that would be a disaster.
This is an easy argument to answer.
And Rawls addresses it.
In one of the most powerful passages, I think, of the theory of justice.
It's in Section 17."The natural distribution", and here he's talking about the natural distribution talents and endowments."...is neither just nor unjust."Nor is it unjust that persons are born into society at some particular position.
These are simply natural facts.
What is just and unjust is the way that institutions deal with these facts." That's his answer to libertarian laissez faire economists like Milton Friedman who say, "Life is unfair but get over it." Get over it and let's see if we can, at least, maximize the benefits that flow from it.
But the more powerful libertarian objection to Rawls is not libertarian from the libertarian economists like Milton Friedman.
It's from the argument about self-ownership.
Developed as we saw, in Nozick.
And from that point of view, yes, it might be a good thing, to create head start programs and public schools so that everyone can go to a decent school and start the race at the same starting line.
That might be good.
But if you tax people to create public schools, if you tax people against their will, you coerce them.
It's a form of theft.
If you take some of Letterman's $31 million, tax it away to support public schools, against his will, the state is really doing no better than stealing from him.
It's coercion.
And the reason is, we have to think of ourselves as owning our talents and endowments.
Because otherwise we're back to just using people and coercing people.
That's the libertarian reply.
What's Rawls's answer to that objection?
He doesn't address the idea of self-ownership directly.
But the effect, the moral weight of his argument for the difference principle is, maybe we don't own ourselves in that thoroughgoing sense after all.
Now, he says, this doesn't mean that the state is an owner in me, in the sense that it can simply commandeer my life.
Because remember, the first principle we would agree to behind the veil of ignorance, is the principle of equal basic liberties.
Freedom of speech, religious liberty, freedom of conscience and the like.
So the only respect in which the idea of self-ownership must give way, comes when we're thinking about whether I own myself in the sense that I have a privileged claim on the benefits that come from the exercise of my talents in a market economy.
And Rawls says, on reflection, we don't.
We can defend rights.
We can respect the individual.
We can uphold human dignity.
Without embracing the idea of self-possession.
That, in effect, is his reply to the libertarian.
I want to turn now, to his reply to the defender of a meritocratic conception.
Who invokes effort as the basis of moral desert.
People who work hard to develop their talents deserve the benefits that come from the exercise of their talents.
Well, we've already seen the beginning of Rawls's answer to that question.
And it goes back to that poll we took about birth order.
His first answer is even the work ethic, even the willingness to strive conscientiously, depends on all sorts of family circumstances and social and cultural contingencies for which we can claim no credit.
You can't claim credit for the fact that you, most of you, most of us, happen to be first in birth order.
And that for some complex psychological and social reasons that seems to be associated with striving, with achieving, with effort.
That's one answer.
There's a second answer.
Those of you who invoke effort, you don't really believe that moral desert attaches to effort.
Take two construction workers.
One is strong and can raise four walls in an hour without even breaking a sweat.
And another construction worker is small and scrawny.
And has to spend three days to do the same amount of work.
No defender of meritocracy is going to look at the effort of that weak an scrawny construction worker and say "Therefore he deserves to make more".
So it isn't really effort.
This is the second reply to the meritocratic claim.
It isn't really effort that the defender of meritocracy believes is the moral basis of distributive shares.
It's contribution.
How much do you contribute?
But contribution takes us right back to our natural talents and abilities.
Not just effort.
And it's not our doing, how we came into the possession of those talents in the first place.
Alright, suppose you accepted these arguments, that effort isn't everything, that contribution matters, from the standpoint of the meritocratic conception.
That effort, even, isn't our own doing.
Does that mean, the objection continues, does that mean that according to Rawls, moral desert has nothing to do with distributive justice?
Well, yes.
Distributive justice is not about moral desert.
Now, here, Rawls introduces an important and a tricky distinction.
It's between moral desert, on the one hand, and entitlements to legitimate expectations, on the other.
What is the difference between moral deserts and entitlements?
Consider two different games.
A game of chance and a game of skill.
Take a game of pure chance.
Say, I play the Massachusetts state lottery.
And my number comes up.
I'm entitled to my winnings.
But even though I'm entitled to my winnings, there's no sense in which, because it's just a game of luck, no sense in which, I morally deserve to win in the first place.
That's an entitlement.
Now contrast the lottery with a different kind of game.
A game of skill.
Now, imagine the Boston Red Sox winning the World Series.
When they win, they're entitled to the trophy.
But it can be always asked of a game of skill did they deserve to win?
It's always possible, in principle, to distinguish what someone's entitled to, under the rules, and whether they deserve to win in the first place.
That's an antecedent standard.
Moral desert.
Now, Rawls says distributive justice is not a matter of moral desert though it is a matter of entitlements to legitimate expectations.
Here's where he explains it."A just scheme answers to what men are entitles to.
It satisfies their legitimate expectations as founded upon social institutions.
But what they are entitled to is not proportional to nor dependent upon their intrinsic worth." "The principles of justice that regulate the basic structure do not mention moral desert and there is no tendency for distributive shares to correspond to it." Why does Rawls make this distinction?
What, morally, is at stake?
One thing morally at stake is the whole question of effort that we've already discussed.
But there's a second contingency, a second source of moral arbitrariness that goes beyond the question of whether it's to my credit that I have the talents that enable me to get ahead.
And that has to do with the contingency that I live in an society that happens to prize my talents.
The fact that David Letterman lives in a society that puts a great premium, puts a great value, on a certain type of smirky joke, that's not his doing.
He's lucky that he happens to live in such a society.
But this is a second contingency.
This isn't something that we can claim credit for.
Even if I had sole, unproblematic, claim to my talents and to my effort.
It would still be the case, that the benefits I get from exercising those talents, depend on factors that are arbitrary from a moral point of view.
What my talents will reap in a market economy.
What does that depend on?
What other people happen to want or like in this society.
It depends on the law of supply and demand.
That's not my doing.
It's certainly not the basis for moral desert.
What counts as contributing depends on the qualities that this or that society happens to prize.
Most of us are fortunate to possess, in large measure, for whatever reason, the qualities that our society happens to prize.
The qualities that enable us to provide what society wants.
In a capitalist society it helps to have entrepreneurial drive.
In bureaucratic society it helps to get on easily and smoothly with superiors.
In a mass democratic society it helps to look good on television and to speak in short, superficial sound bites.
In a litigious society, it helps to go to law school and have the talents to do well on LSATs.
But none of this is our doing.
Suppose that we, with our talents, inhabited not our society, technologically advanced, highly litigious, but a hunting society, or a warrior society.
What would become of our talents then?
They wouldn't get us very far.
No doubt some of us would develop others.
But would we be less worthy?
Would we be less virtuous?
Would we be less meritorious if we lived in that kind of society rather than in ours.
Rawls's answer is, no.
We might make less money and properly so.
But while we would be entitled to less, we would be no less worthy.
No less deserving than we are now.
And here's the point.
The same could be said of those in our society who happen to hold less prestigious positions, who happen to have fewer of the talents that our society happens to reward.
So here's the moral import of the distinction between moral desert and entitlements to legitimate expectations.
We are entitled to the benefits that the rules of the game promise for the exercise of our talents.
But it's a mistake and a conceit to suppose that we deserve, in the first place, a society that values the qualities we happen to have in abundance.
Now we've been talking here about income and wealth, what about opportunities and honors?
What about the distribution of access of seats in elite colleges and universities?
It's true, all of you most of you first born, worked hard, strived, developed your talents, to get here.
But Rawls asks, in effect, what is the moral status of your claim to the benefits that attach to the opportunities that you have?
Are seats in colleges and universities a matter, a kind of reward, an honor for those who deserve them, because they've worked so hard?
Or, are those seats, those opportunities and honors entitlements to legitimate expectations that depend for their justification on those of us who enjoy them doing so in a way that works to the benefit of those at the bottom of society?
That's the question that Rawls's difference principle poses.
It's a question that can be asked of the earnings of Michael Jordan and David Letterman and Judge Judy.
But it's also a question that can be asked of opportunities to go to the top colleges and universities.

Justice 09
Arguing Affirmative Action / What's the Purpose?
Last time, we were discussing the distinction, that Rawls draws between two different types of claims.
Claims of moral desert on the one hand, and of entitlement to legitimate expectations on the other.
Rawls argued that it's a mistake to think that distributive justice is a matter of moral desert.
A matter of rewarding people according to their virtue.
Today we're going to explore that question of moral desert and its relation to distributive justice.
Not in connection with incoming wealth, but in its connection with opportunities.
With hiring decisions and admission standards.
And so we turn to the case, of affirmative action.
You read about the case of Cheryl Hopwood.
She applied for admission to the University of Texas Law School.
Cheryl Hopwood had worked her way through high school, she didn't come from an affluent family, she put herself through community college, and California State University at Sacramento.
She achieved a 3.8 grade point average there, later moved to Texas, became a resident, took the law school admissions test, did pretty well on that, and she applied to the University of Texas Law School.
She was turned down.
She was turned down at a time when the University of Texas, was using an affirmative action admissions policy.
A policy that took into account, race and ethnic background.
The University of Texas said, "40 percent of the population of Texas is made up of African Americans and Mexican Americans.
It's important that we, as a law school, have a diverse student body.
And so we are going to take into account, not only grades and test scores, but also the demographic makeup of our class including, its race and ethnic profile." The result, and this is what Hopwood complained about, the result of that policy, is that some applicants to the University of Texas Law School, with a lower academic index, which includes grades and test scores, than hers, were admitted.
And she was turned down.
She said, she argued, "I'm just being turned down because I'm white.
If I weren't, if I were a member of a minority group, with my grades and test scores I would had been admitted." And the statistics, the admissions statistics that came out in the trial, confirmed that African American and Mexican American applicants that year, who had, her grades and test scores, were admitted.
It went to Federal Court.
Now, put aside the law, let's consider it from the standpoint of justice and morality.
Is it fair, or it unfair?
Does Cheryl Hopwood have a case?
A legitimate complaint?
Were her rights violated, by the admissions policy of the law school?
How many say, how many would rule for the law school, and say that it was just to consider race and ethnicity as a factor in admissions?
How many would rule for Cheryl Hopwood and say "her rights were violated?" So here we have a pretty even split.
Alright, now I want to hear from a defender of Cheryl Hopwood. Yes?
You're basing something that's an arbitrary factor, you know, Cheryl couldn't control the fact that she was white, or not in a minority.
And therefore, you know, it's not as if it was like a test score that she worked hard to try and show that she could, you know, put that out there, you know, that she had no control over her race.
Good. And what're your name?- Bree.
Okay. Bree, stay right there.
Now let's find someone who has an answer for Bree.
Yes? - There are discrepancies in the educational system.
And the majority of the time, I know this in New York City, the schools that minorities go to, are not as well-funded, are not as well-supplied, as white schools.
And so there is going to be a discrepancy, naturally, between minorities and between whites.
If they go to better schools.
And they will not do as well on exams because they haven't had as much help.
Because of the worst school systems.
Let me just interrupt you to, tell me your name?
Aneesha.- Aneesha. Aneesha, you're pointing out that minority kids may have gone in some cases to schools that didn't give them the same educational opportunity as kids from affluent families.- Yes.
And so the test scores they got, may actually not represent their true potential.
Because they didn't receive the same kind of help that they might have received had they gone to a school with better funding.
Good, alright. Aneesha has raised the point that colleges still should choose for the greatest academic scholarly promise but in reading the test scores and grades, they should take into account the different meaning those tests and grades have, in the light of educational disadvantage in the background.
So that's one argument in defense of affirmative action, Aneesha's argument.
Correcting for the effects of unequal preparation.
Educational disadvantage.
Now, there are other arguments.
Suppose, just to identify whether there is a competing principle here.
Suppose there are two candidates, who did equally well on the tests and grades.
Both of whom went to first rate schools.
Two candidates, among those candidates, would it be unfair for the college or university, for Harvard, to say, "we still want diversity along racial and ethnic dimensions, even where we are not correcting for the effects on test scores of educational disadvantage." What about in that case, Bree?
If it's that's one thing that puts, you know someone over the edge, then it's, I guess that would be, you know, justifiable.
If everything else about the individual first, though, everything to consider about that person's you know, talents, and where they come from, and who they are without these arbitrary factors, is the same.
Without these 'arbitrary factors', you call them.
But before you were suggesting, Bree, that race and ethnicity are arbitrary factors outside the control of the applicants.- True, I would agree with that.
And your general principle is that admissions shouldn't reward arbitrary factors, over which people have no control.- Right.
Alright. Who else, who else would like to, thank you both.
Who else would like to get into this, what do you say?
Well, first of all, I'm for affirmative action temporarily, but, for two reasons.
First of all, you have to look at the university's purpose.
It is to educate their students.
And I feel that different races, people coming from different races have different backgrounds and they contribute differently to the education.
And second of all, when you say that they have equal backgrounds, that's not true when you look at the broader picture, and you look at slavery and this is kind of a reparation.
I think affirmative action is a temporary solution to alleviate history, and the wrongs done to African Americans in particular.
And what's your name?
David.- David. You say that affirmative action is justified at least for now as a way of compensating for past injustice.
The legacy of slavery and segregation.- Right.
Who wants to take on that argument?
We need now a critic of affirmative action.
Yes, go ahead.
I think that what happened in the past has no bearing on what happens today.
I think that discriminating based on race should always be wrong.
Whether you're discriminating against one group or another.
Just because our ancestors did something, doesn't mean that that should have any effect on what happens with us today.
Alright, good. I'm sorry, your name is?- Kate.
Kate. Alright, who has an answer for Kate?
Yes.- I just wanted to comment and say that, - Tell us your name.
My name is Mansur. Because of slavery, because of past injustices today, we have a higher proportion of African Americans who are in poverty, who face less opportunities than white people.
So because of slavery 200 years ago, and because of Jim Crow, and because of segregation, today we have injustice based on race.
Kate?- I think that there are differences, obviously, but the way to fix those differences is not by some artificial fixing of the result.
You need to fix the problem.
So we need to address differences in education, and differences in upbringing with programs like Head Start, and giving more funding to lower income schools rather than just trying to fix the result, so it makes it look like it's equal when it's really it isn't.
Yes.
Well, with regard to affirmative action based on race, I just want to say that white people have had their own affirmative action in this country for more than 400 years.
It's called 'nepotism' and 'quid pro quo'.
So there's nothing wrong with correcting the injustice and discrimination that's been done to black people for 400 years.
Good. Tell us your name.- Hannah.
Hannah. Alright who has an answer for Hannah?
And just to add to Hannah's point, because we need now someone to respond, Hannah, you could have also mentioned legacy admissions.
Exactly.
I was going to say, if you disagree with affirmative action, you should disagree with legacy admission because it's obvious from looking around here that there are more white legacies than black legacies in the history of Harvard University.
And explain what legacy admissions are.
Well, legacy admissions is giving an advantage to someone who has an arbitrary privilege of their parent having attended the university to which they're applying.
Alright, so a reply for Hannah.
Yes, in the balcony, go ahead.
First of all, if affirmative action is making up for past injustice, how do you explain minorities that were not historically discriminated against in the United States who get these advantages?
In addition, you could argue that affirmative action perpetuates divisions between the races rather than achieve the ultimate goal of race being an irrelevant factor in our society.
And what, tell us your name.
Danielle.- Hannah.
I disagree with that because I think that by promoting diversity in an institution like this, you further educate all of the students, especially the white students who grew up in predominately white areas.
It's certainly a form of education to be exposed to people from different backgrounds.
And you put white students at an inherent disadvantage when you surround them only with their own kind.
Why should race necessarily be equated with diversity?
There are so many other forms, why should we assume that race makes people different?
Again, that's perpetuating the idea of racial division within our universities and our society.- Hannah?
With regard to African American people being given a special advantage, it's obvious that they bring something special to the table, because they have a unique perspective just as someone from a different religion or socio-economic background would, as well.
As you say, there are many different types of diversity.
There's no reason that racial diversity should be eliminated from that criteria.
Yes, go ahead.
Racial discrimination is illegal in this country, and I believe that it was African American leaders themselves, when Martin Luther King said he wanted to be judged not on the color of skin, but by the content of his character, his merit, his achievements.
And I just think that, to decide solely based on someone's race is just inherently unfair.
I mean, if you want to correct based on disadvantaged backgrounds, that's fine, but there are also disadvantaged white people as well.
It shouldn't matter if you're white or black.- Tell us your name.
Ted. - Ted, - Yes.- Think of Hopwood.
It's unfair to count race or, I assume you would also say, ethnicity or religion?
Yes. - Do you think she has a right to be considered according to her grades and test scores alone?
No. There is more to it than that.
Universities need to promote diversity.
So you agree with the goal of promoting diversity?
There's ways to promote diversity besides discriminating against people solely based on a factor they cannot control.
Alright, so what makes it wrong, is that she can't control her race.
She can't control the fact that she's white.
That's the heart of the unfairness to her.
Bree made a similar point.
That basing admissions on factors that people can't control, is fundamentally unfair.
What do you say?
There's a lot of things you can't control, and if you don't for it based on merit, like just based on your test scores, a lot of what you can achieve has to do with family background, that you were raised in.
If both of your parents were scholarly, then you have more of chance of actually of being more scholarly yourself and getting those grades.
And you can't control what kind of family you were born into.
Alright good, that's a great rejoinder, what's your name?
Da.- Da.
Ted, are you against advantages that come from the family you were born into?
What about legacy admissions?
I do believe that in terms of a legacy admission you shouldn't have a special preference, I mean there is a legacy admission you could argue is another part, versus you could day it's important to have a small percentage of people that have a several generation family attendance at a place like Harvard.
However that should not be an advantage factor like race, it should just be another part promoting diversity.
Should it count at all?
I think that, - Alumni status, should it count at all, Ted?
Yes. It should count.
Alright, I want to step back for a moment from these arguments.
Thank you all for these contributions.
We're going to come back to you.
If you've listened carefully I think you will have noticed three different arguments emerge from this discussion.
In defense of considering race and ethnicity as a factor in admissions.
One argument has to do with correcting for the effects, for the effects of educational disadvantage.
That was Aneesha's argument.
This is what we might call the corrective argument.
Correcting for differences in educational background, the kind of school people went to.
The opportunities they had and so on.
That's one argument.
What's worth noticing though, is that argument is consistent in principle with the idea that only academic promise and scholarly potential should count in admissions.
We just need to go beyond test scores and grades alone, to get a true estimate of academic promise and scholarly ability.
That's the first argument.
Then we heard a second argument that said affirmative action is justified even where there may not be the need to correct for educational disadvantage in a particular applicant's case.
It's justified as a way of compensating for past wrongs, for historic injustices.
So that's a compensatory argument.
Compensating for past wrongs.
Then we heard, a third, a different argument, for affirmative action, from Hannah and others, that argued in the name of diversity.
Now, the diversity argument is different from the compensatory argument, because it makes a certain appeal to the social purpose or the social mission of the college or university.
There are really two aspects to the diversity argument.
One says it's important to have a diverse student body for the sake of the educational experience for everyone.
Hannah made that point.
And the other talks about the wider society.
This was the argument made by the University of Texas in the Hopwood case.
We need to train lawyers and judges and leaders, public officials who will contribute to the strength, the civic strength of the state of Texas, and the country as a whole.
So there are two different aspects to the diversity argument.
But both are arguments in the name of the social purpose, or the social mission or the common good, served by the institution.
Well, what about the force of these arguments?
We've also heard objections to these arguments.
The most powerful objection to the compensatory argument is, is it fair to ask Cheryl Hopwood today, to make the sacrifice, to pay the compensation for an injustice that was admittedly committed and egregious, in the past, but in which she was not implicated.
Is that fair?
So that's an important objection to the compensatory argument.
And in order to meet that objection, we would have to investigate whether there is such a thing as group rights or collective responsibility that reaches over time.
So having identified that issue, let's set it aside to turn to the diversity argument.
The diversity argument doesn't have to worry about that question.
About collective responsibility for past wrongs.
Because it says, for reasons Hannah and others pointed out, that the common good is served, is advanced if there is a racially and ethnically diverse student body.
Everyone benefits.
This indeed was the argument that Harvard made when it filed a friend of the court brief to the Supreme Court in the 1978 case, the affirmative action case, the Bakke case.
In the Harvard brief, the Harvard rationale, was cited by Justice Powell, who was the swing vote in the case upholding affirmative action, he cited that as providing the rationale that he thought was constitutionally acceptable.
Harvard's argument in its brief, was this: "We care about diversity.
Scholarly excellence alone, has never been the criterion of admission, the sole criterion of admission to Harvard College.
Fifteen years ago diversity meant students from California and New York, and Massachusetts.
City dwellers, and farm boys.
Violinists, painters and football players.
Biologists, historians and classicists.
The only difference now, Harvard argued, is that we're adding racial and ethnic status to this long list of diversity considerations.
When reviewing the large number of candidates able to do well in our classes," Harvard wrote, "Race may count as a plus, just as coming from Iowa may count or being a good middle linebacker or pianist.
A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.
Similarly, a black student can usually bring something a white student cannot offer.
The quality of the educational experience of all students depends in part on these differences in the background and outlook that students bring with them." That was Harvard's argument.
Now what about the diversity argument?
Is it persuasive?
If it's to be persuasive, it has to meet one very powerful objection.
That we've heard voiced here.
By Ted, by Bree.
Unless you're a utilitarian, you believe that individual rights can't be violated.
And so the question is, is there an individual right that is violated?
Is Cheryl Hopwood's right violated?
If she is used, so to speak, denied admission, for the sake of the common good and the social mission that the University of Texas Law School has defined for itself, does she have a right?
Don't we deserve to be considered according to our excellences, our achievements, our accomplishments, our hard work?
Isn't that the right at stake?
Now we've already heard an answer to that argument.
No, she doesn't have the right.
Nobody deserves to be admitted.
Notice how this gets us back to the issue of desert versus entitlement.
They're arguing there is no individual right that Hopwood has.
She doesn't deserve to be admitted according to any particular set of criteria that she believes to be important.
Including criteria that have only to do with her efforts and achievements.
Why not?
I think implicit, in this argument, is something like Rawls' rejection of moral desert as the basis of distributive justice.
Yes, once Harvard defines its mission and designs its admission policy in the light of its mission, people are entitled, who fit those criteria, they are entitled to be admitted.
But according to this argument, no one deserves that Harvard college define its mission and design its admission criteria in the first place, in a way that prizes the qualities they happen to have in abundance.
Whether those qualities are test scores or grades or the ability to play the piano, or to be a good middle linebacker, or to come from Iowa, or to come from a certain minority group.
So you see how this debate about affirmative action, especially the diversity argument, takes us back to the question of rights, which in turn takes us back to the question of whether moral desert is or is not the basis for distributive justice.
Think about that over the weekend and we'll continue this discussion next time.
Suppose we're distributing flutes.
Who should get the best ones?
What's Aristotle's answer?
Anyone?
His answer is, the best flutes should go to the best flute players, because that's what flutes are for.
When we ended last time, we were considering arguments for and against affirmative action.
Counting race as a factor in admissions.
And, in the course of the discussion, three arguments emerged, three arguments for affirmative action.
One of them was the idea that race and ethnic background should count as a way of correcting for the true meaning of test scores and grades.
Getting a more accurate measure of the academic potential those scores, those numbers represent.
Second, was what we called "the compensatory argument".
The idea of righting past wrongs, past injustice.
And the third was the diversity argument.
And when Cheryl Hopwood in the 1990s challenged the University of Texas Law School's affirmative action program, in the federal courts, the University of Texas made another version of the diversity argument.
Saying that the broader social purpose, the social mission of the University of Texas Law School, is to produce leaders, in the legal community, in the political community, among judges, lawyers, legislators, and therefore it's important that we produce leaders, who reflect the background, and the experience, and the ethnic and the racial composition of the state of Texas.
It's important for serving our wider social mission.
That was the University of Texas Law School's argument.
And then we considered an objection to the diversity argument which after all is an argument in the name of the social mission, the common good.
We saw that Rawls does not simply believe that arguments of the common good or the general welfare should prevail if individual rights must be violated in the course of promoting the common good.
You remember that was the question, the challenge, to the diversity rationale that we were considering when we finished last time.
And we began to discuss the question "Well, what right might be at stake"?
Maybe the right to be considered according to factors within one's control.
Maybe this is the argument that Cheryl Hopwood implicitly was making.
She can't help the fact that she is white.
Why should her chance at getting into law school depend on a factor she can't control?
And then Hannah who is advancing an argument last time said Harvard has the right to define its mission any way it wants to, it's a private institution.
And it's only once Harvard defines its mission that we can identify the qualities that count.
So no rights are being violated.
Now, what about that argument?
What I would like to do is to hear objections to that reply.
And then, see whether others have an answer.
Yes?
And tell us your name.
Da.- Da, right you spoke up last time.
How do you answer that argument?
Well, I think there was two things in there.
One of them was that a private institution could define its mission however it wants.
But that doesn't make however it defines it, right, like I could define my personal mission as I want to collect all the money in the world.
But does that make it even a good mission?
So you can't like, you can't say that just because a college is a private institution it can just define it as whatever it wants, you still have to thing about, what are the way it's defining it, it's right.
And the case of affirmative action a lot of people have said that since there's a lot of other factors involved, why not race?
Like if we already know that, - Let's I want to stick with your first point, Da.- Okay.
Here's Da's objection.
Can a college or university define its social purpose any way it wants to and define admissions criteria accordingly?
What about the University of Texas Law School not today, but in the 1950s?
Then, there was another Supreme Court case, against the admissions policy of the University of Texas Law School because it was segregated.
It only admitted whites.
And when the case went to court back in the '50s, the University of Texas Law School also invoked its mission."Our mission as a law school, is to educate lawyers for the Texas bar, the Texas law firms.
And no Texas law firm hires African Americans.
So to fulfill our mission, we only admit whites." Or consider Harvard, in the 1930s when it had anti-Jewish quotas.
President Lowell, the president of Harvard in the 1930s said, that he had nothing personally against Jews, but he invoked the mission, the social purpose of Harvard he said, "which is not only to train intellectuals, part of the mission at Harvard," he said, "is to train stockbrokers for Wall Street, presidents and senators and there are very few Jews who go into those professions." Now, here's the challenge.
Is there a principle distinction between the invocation of the social purpose of the college or university today, in the diversity rationale and the invocation of the social purpose or mission of the university by Texas in the 1950s or Harvard in the 1930s?
Is there a difference in principle?
What's the reply?
Hannah?- Well, I think that the principle that's different here, is, basically the distinction between inclusion versus exclusion.
I think that it's morally wrong of the university to say "We're going to exclude you on the basis of your religion or your race." That's denial on the basis of arbitrary factors.
What Harvard is trying to do today with its diversity initiatives, is to include groups that were excluded in the past.
Good, let's see if, stay there, let's see if someone would like to reply.
Go ahead. - Actually this is kind of in support of Hannah, rather than a reply but, - That's alright.
I was going to say another principle difference can be based on malice being the motivation for the historical segregation act, so it's saying that we're not going to let blacks or Jews in because they're worse as people or as a group.
Good, so the element of malice isn't present.
And what's your name?- Stevie.
Stevie says that in the historic segregation as racist, anti-Semitic quotas or prohibitions.
There was built into them, a certain kind of malice, a certain kind of judgment that African Americans or Jews were somehow less worthy than everybody else.
Whereas present day affirmative action programs don't involve or imply any such judgment.
What it amounts to saying is, so long as the policy, just uses people in a way as valuable to the social purpose of the institution, it's okay provided it doesn't judge them, maliciously, as Stevie might add, as intrinsically less worthy.
I'd like to raise a question.
Doesn't that concede that all of us when we compete for positions or for seats in colleges and universities in a way are being used, not judged, but used, in a way that has nothing to do with moral desert.
Remember we got into this whole discussion of affirmative action when we were trying to figure out whether distributive justice should be tied to moral desert or not.
And we were launched on that question by Rawls and his denial, his rejection of the idea that distributive justice whether its positions or places in the class or income and wealth is a matter of moral desert.
Suppose that were the moral basis of Harvard's admissions policy, what letters would they have to write to people they rejected or accepted for that matter?
Wouldn't they have to write something like this: "Dear unsuccessful applicant, we regret to inform you that your application for admission has been rejected.
It's not your fault that when you came along society happened not to need the qualities you had to offer.
Those admitted instead of you are not themselves deserving of a place nor worthy of a praise for the factors that led their admission.
We are in any case only using them and you as instruments of a wider social purpose.
Better luck next time." What was the letter you actually got when you were admitted?
Perhaps it should have read something like this: "Dear successful applicant, we are pleased to inform you that your application for admission has been accepted.
It turns out, lucky for you, that you have the traits that society needs at the moment, so we propose to exploit your assets for society's advantage.
You are to be congratulated.
Not in the sense that you deserve credit for having the qualities that led to your admission, but only in a sense that the winner of a lottery is to be congratulated.
And if you choose to accept our offer, you will ultimately be entitled to the benefits that attach to being used in this way.
We look forward to seeing you in the fall." Now, there is something a little odd, morally odd, if it's true that those letters do reflect the theory, the philosophy underlying the policy.
So here's the question they pose.
And it's a question that takes us back to a big issue in political philosophy.
Is it possible, and is it desirable, to detach questions of distributive justice from questions of moral desert and questions of virtue?
In many ways, this is an issue that separates modern political philosophy from ancient political thought.
What's at stake in the question of whether we can put desert, moral desert aside?
It seemed when we were reading Rawls, that the incentive, the reason he had, for detaching distributive justice from moral desert was an egalitarian one.
That if we set desert to one side, there's greater scope for the exercise of egalitarian considerations.
The veil of ignorance.
The two principles, the difference principle, helping the least well off, redistribution and all that.
But what's interesting, is if you look, at a range of thinkers we've been considering, there does seem to be a reason they want to detach justice from desert that goes well beyond any concern for equality.
Libertarian rights oriented theorists, the kind we've been studying, as well as egalitarian rights oriented theorists, including Rawls, and for that matter, also including Kant, all agree, despite their disagreements over distributive justice, and the welfare state and all of that, they all agree that justice is not a matter of rewarding or honoring virtue or moral desert.
Now why do they all think that?
It can't just be for egalitarian reasons not all of them are egalitarians.
This gets us to the big philosophical question we have to try to sort out.
Somehow they think tying justice to moral merit or virtue is going to lead away from freedom, from respect for persons as free beings.
Well, in order to see what they consider to be at stake, and in order to assess their shared assumption, we need to turn to a thinker, to a philosopher, who disagrees with them.
Who explicitly ties justice to honor, honoring virtue, and merit and moral desert.
And that thinker is Aristotle.
Now, in many ways Aristotle's idea of justice is intuitively very powerful.
In some ways it's strange.
I want to bring out both its power, its plausibility and its strangeness, so that we can see what's at stake in this whole debate about justice and whether it's tied to desert and virtue.
So, what is Aristotle's answer to the question about justice?
For Aristotle, justice is a matter of giving people what they deserve, giving people their due.
It's a matter of figuring out the proper fit between persons, with their virtues, and their appropriate social roles.
Well, what does this picture of justice look like, and how does it differ from the conception that seems to be shared among libertarian and egalitarian rights oriented theorists alike?
Justice means giving each person his or her due, giving people what they deserve.
But what is a person's due?
What are the relevant grounds of merit or desert?
Aristotle says that depends on the sort of things being distributed."Justice involves two factors: Things and the persons to whom the things are assigned.
In general we say," Aristotle writes, "That persons who are equal should have equal things assigned to them." But here there arises a hard question.
Equals in what respects?
Aristotle says that depends on the sort of thing we're distributing.
Suppose we're distributing flutes.
What is the relevant merit or basis of desert for flutes?
Who should get the best ones?
What's Aristotle's answer?
Anyone?
The best flute players, right.
Those who are best in the relevant sense, the best flute players.
Is it just to discriminate in allocating flutes? Yes.
All justice involves discrimination, Aristotle says.
What matters is that the discrimination be according to the relevant excellence, according to the virtue appropriate to having flutes.
He says it would be unjust to discriminate on some other basis.
In giving out the flutes, to, say, wealth.
Just giving the best flutes to the people who can pay the highest price, or nobility of birth, just giving flutes to aristocrats, or physical beauty, giving the best flutes to the most handsome, or chance, having a lottery.
Aristotle says birth and beauty may be greater goods than the ability to play the flute, and those who possess them may surpass the flute player more in these qualities than he surpasses them in his flute playing.
But the fact remains that he is the person who ought to get the best flute.
It's a strange idea this comparison, by the way, that could you say, "Am I more handsome than she is a good lacrosse player?" That's a strange kind of comparison.
But putting that aside, Aristotle says, we're not looking for the best overall whatever that might mean.
We're looking for the best musician.
Now, why this is important to see.
Why, should the best flutes go to the best flute players?
Well, why do you think?
Anybody?
What?
They'll produce the best music.
Well, and everybody will enjoy it more.
That's not Aristotle's answer.
Aristotle is not a utilitarian.
He's not just saying, that way there'll be better music and everyone will enjoy it, everyone will be better off.
His answer is the best flutes should go to the best flute players because that's what flutes are for.
To be played well.
The purpose of flute playing, the purpose, is to produce excellent music.
And those who can best perfect that purpose, ought properly to have the best ones.
Now, it may also be true, as a welcome side effect.
That everyone will enjoy listening to that music.
So that answer is true enough as far as it goes, but it's important to see that Aristotle's reason is not a utilitarian reason.
It's a reason that looks, here's where you might think it's a little bit strange, it looks to the purpose, the point, the goal, of flute playing.
Another way of describing this, looking to the goal to determine the just allocation, the Greek for goal or end, was 'telos'.
So Aristotle says, you have to consider the point, the end, the goal, the telos of the thing in this case of flute playing.
And that's how you define a just allocation.
A just discrimination.
So this idea of reasoning from the goal, from the telos, is called "teleological reasoning".
Teleological moral reasoning.
And that's Aristotle's way.
Reasoning from the goal, from the end.
Now, this may seem, as I said a strange idea, that we're supposed to reason from the purpose, but it is, does have a certain intuitive plausibility.
Consider the allocation, let's say, at Harvard, of the best tennis courts or squash courts.
How should they be allocated?
Who should have priority in playing on the best courts?
Well, you might say, "Those who can best afford them." Set up a fee system, charge money for them.
Aristotle would say "No".
You might say, "Well, Harvard big shots, the most influential people at Harvard, who would they be"?
The senior faculty should have priority in playing on the best tennis courts.
No, Aristotle would reject that.
Some scientist may be a greater scientist than some Varsity tennis player is a tennis player, but still the tennis player is the one who should have priority for playing in the best tennis court.
There is a certain intuitive plausibility to this idea.
Now, one of the things that makes it strange is that in Aristotle's world, in the ancient world, it wasn't only social practices that were governed, in Aristotle's view, by teleological reasoning and teleological explanation.
All of nature was understood to be a meaningful order and what it meant to understand nature, to grasp nature, to find our place in nature, was to inquire into and read out the purposes or the telos, of nature.
And with the advent of modern science, it's been difficult to think of the world that way and so it makes it harder perhaps to think of justice in a teleological way, but there is a certain naturalness to thinking about even the natural world, as teleologically ordered as a purpose of whole.
In fact, children have to be educated out of this way of looking at the world.
I realized this when my kids were very young and I was reading them a book, Winnie the Poo.
And Winnie the Poo gives you a great idea of how there is a certain, natural, childlike way of looking at the world in a teleological way.
You may remember a story of Winnie-the-Poo walking in the forest one day, "He came to a place in the forest, and from the top of the tree there came a loud buzzing-noise.
Winnie-the-Poo sat at the foot of a tree, put his head between his paws, and began to think." Here's what he said to himself, " 'That buzzing-noise means something.
You don't get a buzzing-noise like that just buzzing and buzzing without its meaning something.
If there's a buzzing-noise, somebody's making a buzzing-noise.
And the only reason for making a buzzing-noise that I know of, is because you're a bee.' Then he thought for another long time and said, 'And the only reason for being a bee that I know of, is making honey.' And then he got up, and he said, 'And the only reason for making honey, is so I can eat it.' So he began to climb the tree." This is an example of teleological reasoning.
It isn't so implausible after all.
Now, we grew up, and we're talked out of this way of thinking about the world.
But here's the question, even if teleological explanations don't fit with modern science, even if we've outgrown them in understanding nature, isn't there something still intuitively, and morally plausible, even powerful, about Aristotle's idea that the only way to think about justice is to reason from the purpose, the goal, the telos, of the social practice?
And isn't that precisely what we were doing when we were disagreeing about affirmative action?
You can almost recast that disagreement as one about what the proper appropriate purpose, or end of a university education consists in.
Reasoning from the purpose or from the telos.
Or from the end.
Aristotle says that's indispensable to thinking about justice.
Is he right?
Think about that question as you turn to Aristotle's politics.
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Justice 10
The Good Citizen / Freedom vs. Fit
We turn to Aristotle after examining theories, modern theories, of justice that try to detach considerations of justice and rights from questions of moral desert and virtue.
Aristotle disagrees with Kant and Rawls.
Aristotle argues that justice is a matter of giving people what they deserve.
And the central idea of Aristotle's theory of justice is that in reasoning about justice and rights we have, unavoidably, to reason about the purpose, or the end, or the telos, of social practices in institutions.
Yes, justice requires giving equal things to equal persons, but the question immediately arises, in any debate about justice, equal in what respect?
And Aristotle says we need to fill in the answer to that question by looking to the characteristic end, or the essential nature, or the purpose, of the thing we're distributing.
And so we discussed Aristotle's example of flutes; who should get the best flutes.
And Aristotle's answer was the best flute-players.
The best flute-player should get the best flute because that's the way of honoring the excellence of flute playing.
It's a way of rewarding the virtue of the great flute-player.
What's interesting though, and this is what we are going to explore today, is that it's not quite so easy to dispense with teleological reasoning when we're thinking about social institutions and political practices.
In general it's hard to do without teleology when we're thinking about ethics, justice, and moral argument.
At least that is Aristotle's claim.
And I would like to bring out the force in Aristotle's claim by considering two examples.
One is an example that Aristotle spends quite a bit of time discussing; the case of politics.
How should political offices and honors, how should political rule be distributed?
The second example is a contemporary debate about golf and whether the Professional Golfers Association should be required to allow Casey Martin, a golfer with a disability, to ride in a golf cart.
Both cases bring out a further feature of Aristotle's teleological way of thinking about justice.
And that is that when we attend to the telos, or the purpose, sometimes we disagree and argue about what the purpose of a social practice really consists in.
And when we have those disagreements part of what's at stake in those disagreements is not just who will get what, not just a distributive question, but also an honorific question.
What qualities, what excellences, of persons will be honored?
Debates about purpose and telos are often, simultaneously, debates about honor.
Now, let's see how that works in the case of Aristotle's account of politics.
When we discuss distributive justice these days we're mainly concerned with the distribution of income and wealth and opportunity.
Aristotle took distributive justice to be mainly not about income and wealth but about offices and honors.
Who should have the right to rule?
Who should be a citizen?
How should political authority be distributed?
Those were his questions.
How did he go about answering those questions?
Well, in line with his teleological account of justice, Aristotle argues that to know how political authority should be distributed we have, first, to inquire into the purpose, the point, the telos, of politics.
So, what is politics about?
And, how does this help us decide who should rule?
Well, for Aristotle the answer to that question is, politics is about forming character, forming good character.
It's about cultivating the virtue of citizens.
It's about the good life.
The end of the State, the end of the political community, he tells us in Book Three of the Politics, is not mere life, it's not economic exchange only, it's not security only, it's realizing the good life.
That's what politics is for according to Aristotle.
Now, you might worry about this.
You might say, "Well, maybe this shows us why those modern theorists of justice, and of politics, are right".
Because remember, for Kant and for Rawls, the point of politics is not to shape the moral character of citizens.
It's not to make us good.
It's to respect our freedom to choose our goods, our values, our ends, consistent with a similar liberty for others.
Aristotle disagrees."Any polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness.
Otherwise political association sinks into a mere alliance.
Law becomes a mere covenant, a guarantor of man's rights against one another, instead of being - as it should be - a way of life such as will make the members of a polis good and just." That's Aristotle's view."A polis is not an association for residents on a common site, or for the sake of preventing mutual injustice and easing exchange." Aristotle writes."The end and purpose of a polis is the good life, and the institutions of social life are means to that end." Now, if that's the purpose of politics, of the polis, then, Aristotle says, we can derive from that the principles of distributive justice; the principles that tell us who should have the greatest say, who should have the greatest measure of political authority.
And what's his answer to that question?
Well, those who contribute the most to an association of this character, namely an association that aims at the good, should have a greater share in political rule and in the honors of the polis.
And the reasoning is, they are in a position to contribute most to what political community is essentially about.
Well, so you can see the link that he draws between the principle of distribution for citizenship and political authority and the purpose of politics."But why," you'll quickly ask, "Why does he claim that political life, participation in politics, is somehow essential to living a good life?" "Why isn't it possible for people to live perfectly good lives, decent lives, moral lives, without participating in politics?" Well, he gives two answers to that question.
He gives a partial answer, a preliminary answer, in Book One of the Politics where he tells us that only by living in a polis, and participating in politics, do we fully realize our nature as human beings.
Human beings are, by nature, meant to live in a polis.
Why?
It's only in political life that we can actually exercise our distinctly human capacity for language, which Aristotle understands is this capacity to deliberate about right and wrong, the just and the unjust.
And so, Aristotle writes in Book One of the Politics, that the polis, the political community, exists by nature and is prior to the individual.
Not prior in time, but prior in its purpose.
Human beings are not self-sufficient, living by themselves, outside a political community."Man who is isolated, who is unable to share in the benefits of political association, or who has no need to share, because he's already self-sufficient, such a person must be either a beast or a god." So we only fully realize our nature, we only fully unfold our human capacities, when we exercise our faculty of language, which means when we deliberate with our fellow citizens about good and evil, right and wrong, just and the unjust."But why can we only exercise our capacity for language in political community?" you might ask.
Aristotle gives a second part, a fuller part, of his answer in the Nichomachean Ethics; an excerpt of which we have among the readings.
And there he explains that political deliberation, living the life of a citizen, ruling and being ruled in turn, sharing in rule, all of this is necessary to virtue.
Aristotle defines happiness not as maximizing the balance of pleasure over pain but as an activity, an activity of the soul in accordance with virtue.
And he says that every student of politics must study the soul because shaping the soul is one of the objects of legislation in a good city.
But why is it necessary to live in a good city in order to live a virtuous life?
Why can't we just learn good moral principles at home or in a philosophy class or from a book, live according to those principles, those rules, those precepts, and leave it at that?
Aristotle says virtue isn't acquired that way.
Virtue is only something we can acquire by practicing, by exercising the virtues.
It's the kind of thing we can only learn by doing.
It doesn't come from book learning.
In this respect, it's like flute playing; you couldn't learn how to play a musical instrument well just by reading a book about it.
You have to practice, and you have to listen to other accomplished flute-players.
There are other practices and skills of this type.
Cooking; there are cookbooks but no great chef ever learns how to cook by reading a cookbook only.
It's the kind of thing you only learn by doing.
Joke-telling is probably another example of this kind.
No great comedian learns to be a comedian just by reading a book on the principles of comedy.
It wouldn't work.
Now, why not?
What do joke-telling and cooking and playing a musical instrument have in common such that we can't learn them just by grasping a precept or a rule that we might learn from a book or a lecture?
What they have in common is that they are all concerned with getting the hang of it.
But also what is it we get the hang of when we learn how to cook, or play a musical instrument, or tell jokes well?
Discerning particulars, particular features of a situation.
And no rule, no precept, could tell the comedian or the cook or the great musician how to get in the habit of, the practice of, discerning the particular features of a situation.
Aristotle says virtue is that way too.
Now, how does this connect to politics?
The only way we can acquire the virtues that constitute the good life is to exercise the virtues, to have certain habits inculcated in us, and then to engage in the practice of deliberating with citizens about the nature of the good.
That's what politics is ultimately about.
The acquisition of civic virtue, of this capacity to deliberate among equals, that's something we couldn't get living a life alone outside of politics.
And so, that's why, in order to realize our nature, we have to engage in politics.
And that's why those who are greatest in civic virtue, like Pericles, are the ones who properly have the greatest measure of offices and honors.
So, the argument about the distribution of offices and honors has this teleological character, but also an honorific dimension.
Because part of the point of politics is to honor people like Pericles.
It isn't just that Pericles should have the dominant say because he has the best judgment, and that will lead to the best outcomes, to the best consequences for the citizens.
That's true, and that's important.
But a further reason people like Pericles should have the greatest measure of offices, and honors, and political authority, and sway in the polis, is that part of the point of politics is to single out and honor those who posses the relevant virtue, in this case civic virtue, civic excellence, practical wisdom, to the fullest extent.
That's the honorific dimension bound up with Aristotle's account of politics.
Here's an example that shows the link in a contemporary controversy; the link to which Aristotle draws our attention between arguments about justice and rights on the one hand and figuring out the telos or the purpose of a social practice on the other.
Not only that, the case of Casey Martin and his golf cart also brings out the link between debates about what the purpose of a social practice or a game is, on the one hand and the question of what qualities should be honored on the other; the link between teleology and honor-based principles of distributive justice.
Who was Casey Martin?
Well, Casey Martin is a very good golfer.
Able to compete at the highest levels of golf but for one thing; he has a rare circulatory problem in his leg that makes it very difficult for him to walk; not only difficult but dangerous.
And so he asked the PGA, which governs the pro tour in golf, to be able to use a golf cart when he competed in professional tournaments.
PGA said no, and he sued under the Americans for Disabilities Act; he sued in a case that went all the way to the United States Supreme Court.
The question the Supreme Court had to answer was, does Casey Martin have a right that the PGA provide him, allow him, to use a golf cart on the tour, or not?
How many here think that, from a moral point of view, Casey Martin should have a right to use a golf cart?
And how many think that he should not have a right to a golf cart, in the tournaments?
So the majority are sympathetic to Casey Martin's right, though a substantial minority disagree.
Let's first hear from those of you who would rule against Casey Martin.
Why would you not say that the PGA must give him a golf cart?
Yes.
Since the inception of golf, because it has been part of the sport it is now intrinsically part of golf; walking the course.
And thus, because it's intrinsic to golf, I'd argue that not being able to walk the course is just not being able to perform an aspect of the sport, which is necessary to performing at a professional level.
Good.
Stay there for a minute.
What's your name?
Tommy.
Are you a golfer, by the way, Tom?
Not so much but, yeah, a little bit.
Are there any golfers here, I mean, real golfers?
Thank you, professor, that was...
No, no.
I'm just taking your word for it.
Is there someone here on the golf team?
Yes?
Tell us your name, and tell us what you think.
My name is Michael and I usually take a cart.
So . . .
I'm probably the wrong person to ask.
Is that why your hand went up slowly when I asked?
Yes.
Alright, but Tom is saying, Tom said a minute ago that at least at the professional level walking the course is essential to the game.
Do you agree?
I would, yes.
You do?
Then why do you take a cart?
And you call yourself a golfer?
No, no, no.
I'm kidding, I'm kidding.
What do you say to that?
When I have walked the course it does add tremendously to the game.
It makes it a lot harder.
It really does.
Yeah?
Alright let's hear, Michael and Tom stay there, let's hear from people who say that he should have a right to a golf cart.
Why? Who is prepared to defend that position?
Yes.
Well, I think the PGA should definitely be required to give him a golf cart because they argue in the decision that it's not just a matter of, he's not experiencing fatigue.
For him he's still walking about a mile, the cart can't go everywhere with him, and in that mile he is still experiencing more fatigue and pain than a healthy player would.
So, it's not as if you're removing the disadvantage.
What's your name?
Riva.
Riva, what do you say to Tom's point that walking the course is essential to the game?
It would be as if a disabled player could play in the NBA but not have to run up and down the court.
Well, I think there are two responses to that.
First, I don't think it's essential to the game, because most golfers who play, particularly recreationally, play with a cart.-- Like Michael.
And on several of the tours you can play with a cart; on the Senior PGA Tour, on the Nike Tour, in a lot of the college events.
And those events are just as competitive and just as high level as the PGA Tour.
So, really it's just a matter of selective reasoning if you argue it as an important part of the sport.
But, even if it is he still does have to walk, he still plays golf standing up, it's not as if he's playing golf from a wheelchair.
Alright.
Who else?
Go ahead.
I think the whole point of a competition is that it calls out the best, you know, from the second best or from the third best.
And when we're talking about the national level, we're talking about the highest of the highest.
I think what they're arguing about here is the purpose of competition.
And I think in the sake of competition you can't change the rules.
So, the purpose of the competition includes walking?
That's an essential, you agree with Tom.
And what's your name?
David.
The Supreme Court ruled that the PGA did have to accommodate Casey Martin and they did it on grounds that Riva mentioned, that walking isn't really part of, an essential part of the game.
They cited testimony saying that walking the court consumes no more calories than you get eating a Big Mac.
That's what walking is in golf, according to the majority.
Scalia was in dissent.
Justice Scalia agreed with David.
He said there is no purpose, and it's certainly not your course to try to figure out the essential purpose of golf.
Golf is like any game, it's strictly for amusement.
And if there's a group that wants to have one version of the game they can have that version of the game.
And the market can decide whether people are amused and like and show up for that and watch the television broadcasts.
Scalia's dissent was an anti-Aristotelian dissent, because notice two things about the argument; first we're thrust into a discussion about what the essential nature, or purpose, or telos of golf really is.
Does it include walking?
And, here's something I think is rumbling beneath the surface of this debate, whether walking partly determines whether golf is really an athletic competition.
After all, the ball sits still.
You have to put it in a hole.
Is it more like basketball, baseball, and football?
Golf, an athletic competition?
Or is it more like billiards?
The ball sits still there too.
You can be out of shape and succeed.
It involves skill but not athletic skill.
Could it be that those professional golfers, who excel at golf, have a stake in golf being honored and recognized as an athletic event, not just a game of skill like billiards?
And if that's what's at stake, then we have a debate about the purpose, the teleological dimension, and also a debate about honor.
What virtues, really, does the game of golf honor and recognize?
Two questions to which Aristotle directs our attention.
We'll continue on this case next time.
What's strange and seems paradoxical to me about Aristotle's view point is that if you walk like a pirate and you talk like a pirate you shouldn't be an investment banker, because that's not what you're inherently supposed to do.
If you have a peg leg and an eye patch and a disgruntled disposition, you know, you should be on a pirate ship on the high seas.
So he doesn't . . .
Some would say that the distinction between the two vocations is not as clear as you suggest.
When we ended last time we were talking about whether Casey Martin has a right to ride in a golf cart in the PGA Tournament.
And it's worth remembering how we got into this debate and what's at stake for an understanding of political philosophy.
Remember, we were looking at Aristotle's theory of justice and one way of describing his approach to justice, we've called it 'teleological'.
Teleological, because he says to allocate rights we first have to figure out the purpose, or the end, of the social practice in question.
Another way of describing Aristotle's account of Justice is that justice is, for him, a matter of fit; it's a matter of fitting persons with their virtues and excellences to the appropriate roles.
Now, I want to finish our discussion about Casey Martin and his claim for a golf cart, and then go back to one more consequential application in Aristotle, namely, the question of slavery.
What do you think about Casey Martin's request?
Should there be an accommodation or not, given the nature of the game and of the tournament and its purposes?"Isn't it discrimination if he's not provided the golf cart as an accommodation", say some.
Others reply, "No, if he got a cart it would be unfair to the other golfers because they exert themselves, become winded, fatigued, walking the course".
That's where we left it.
What about the fairness argument?
OK, Jenny.
My question was why doesn't the PGA just make the option of a cart available to all golfers?
From our readings I learned that there are many golf tournaments, other than the PGA, where using a cart is not prohibited.
For instance, the Seniors Tournament it's even allowed and encouraged.
So why doesn't the PGA just do that?
Let everybody use a cart?
Give everyone the option of using a cart and let them pick.
So then the traditionalists can then still say, "Well, I still choose to walk the course but I do that knowing that I will be more tired at the end than the people who took the cart." Good.
Alright, so what about Jenny's solution?
For the sake of fairness, don't give Casey Martin an advantage, if indeed there is an advantage to riding in a cart.
Let everyone who wants to use a cart.
Is everyone happy with that solution?
Does it put to rest this whole dilemma?
Who has an answer for Jenny?
Yes.
As was brought up last time, if you do that you kind of ruin some of the spirit of golf as a lot of people like to see it.
If you let everybody take a cart.
Even though it gives everybody the same playing field now, it sort of makes golf less of an athletic game, like people pointed out last class.
It's just like if someone decides to go into another sport and they want an advantage.
Like, if you have swimming and then you say, "OK, he wants flippers so why don't we just allow everyone to have flippers when they're swimming?" And what would that do to the Olympic Swimming Competition, if people were free to use, Jenny, we better let Jenny reply to this.
Da says it would sort of spoil the spirit of the athletic competition as if in Olympic swimming you let anyone who wanted to swim with flippers.
Alright, Jenny, what do you say to Da?
It would spoil the spirit of it.
You're also ruining the spirit of golf by not letting people who are really passionate about the game, and very good at it, compete simply because of an aspect of golf which is not, the main point of golf is you use the club to make strokes and hit it into a hole.
I'm sorry, I'm not a golfer but that's basically the gist of the game from what I see it.
And I was reading the PGA versus Casey Martin decision that was one of the sentences that they said is because walking the course is not an inherent part of golf, only swinging the club is.
Good. So, Jenny replies to Da, well, it isn't really essential anyhow to walk the course.
So, we're back to the purpose.
I mean, I'm sure there are, like wheelchair basketball, there are certain different competitions that can be made for people who may only be able to use their arms.
Right. Yes.
Michael what do you think?
Jenny just said that there is stuff like wheelchair basketball where if you can't play basketball there is another option.
I think there are other options in the PGA Tour.
But the PGA Tour is the best, is the pinnacle, and you have to have certain requirements fulfilled to perform.
Alright, Michael, you want to say to Casey Martin there is such a thing as a Special Olympics for those who are disabled.
Go play in the golfing version of the Special Olympics.
That's what you would say Michael?-- Yeah.
I think that walking is part of the sport of golf.
And Casey Martin, you know if he can't walk the course then I don't think he should be able to play in the PGA.
Alright, well thank you very much for that exchange.
What comes out of this exchange that goes back to Aristotle's theory of justice?
Well, one thing is the question, is walking an essential part of golf?
And the very fact that deciding whether there is a right for Casey Martin that the PGA must respect, seems to depend, as Aristotle suggests it must, on debating and resolving the question, is walking essential to the game of golf?
That's one moral of the story.
But there's a second moral to the story from an Aristotelian point of view.
What's at stake here, this is the second Aristotelian stake in this debate, is honor.
Casey Martin wants the accommodation so that he can compete for the honor of winning the best tournaments.
Now, why is it that the professional golfers, the great golfers, testified in this case - Jack Nicklaus, Tom Kite - in the readings, against letting him use a cart and they, I would suspect, would be equally vehement, Jenny, in opposing your suggestion of letting everyone ride in a cart, and this goes back, in a way, to Da's point.
How to put this gently?
Professional golfers are sensitive about whether their sport is really a sport.
Because if everyone rode around in a cart, or could, then it would become clear, or clearer, depending on your point of view, that golf is not really an athletic competition but rather a game; a game of skill but not a sport.
And so not only the question of debating the purpose, the teleological feature, but also from the standpoint of viewing debates about the purpose of golf.
What's essential to golf?
Those debates, Aristotle suggests, inevitably are also debates about the allocation of honor.
Because part of the purpose of golf is not just to amuse spectators; Scalia's wrong about that, from Aristotle's point of view.
It's not just to provide entertainment, it's not just to make people happy.
It's not a mere amusement.
It's honoring, it's rewarding, it's recognizing a certain kind of athletic excellence, at least those who have achieved the highest honors have a powerful stake in maintaining that view.
Now, some of you took the position the Scalia position."This is an incredibly difficult and silly question", Scalia said."What is the essential nature of golf?" It's not the kind of thing that the United States Supreme Court is equipped to decide, or should decide.
That's Scalia.
But he only he says that because he takes a very strong, and as it happens, anti-Aristotelian position on what a game is."It is the very nature of a game to have no object," no point, "except amusement" says Scalia, "That is what distinguishes games" he says, "From productive activity." You can just imagine what kind of sports fan Scalia must be."And so", he says, "It's impossible to say that any of the game's arbitrary rules is essential." And then he quotes Mark Twain's disparaging remark about golf.
He says, "Many consider walking to be the central feature of golf.
Hence, Mark Twain's classic criticism of the sport 'a good walk spoiled'." But Scalia misses an important feature of games and the arguments about rights and fairness that arise from games, when he casts games, sports, athletic competitions, as solely for the sake of amusement; as solely an utilitarian activity.
But an Aristotelian view of sports says, no it's not just about amusement, real sports, real athletic events, are also about appreciation, not just amusement.
And people who follow sports and care about sports and play sports know this.
Which is another way of saying, there's a difference between a sport and a mere spectacle.
And the difference is that a sport is a practice that calls forth and honors and prizes certain excellences, certain virtues.
And the people who appreciate those virtues are the true fans, the informed fans, and for them watching the sport is not mere amusement.
But that means that it's always possible to make sense of the debate about what feature of a sport is essential to it.
We can make sense of these arguments.
Never mind the question whether the court should decide.
The PGA in its own internal deliberations can make sense of that debate, which is why they cared very much about their view, insisting on their view, that walking, an exertion, and fatigue are essential, not peripheral, parts of sport.
Well, this is all to illustrate the teleological and the honorific feature of debates about rights, which Aristotle says we need to take account of in thinking about justice.
Now, I want to begin for us to consider whether Aristotle's theory of justice is right or wrong; whether it's persuasive or unpersuasive.
I want to get your thoughts about that.
But I want to anticipate one obvious and important objection.
If justice is about fit, fitting persons to roles, matching virtues to the appropriate honors and recognition.
If that's what justice is, does it leave room for freedom?
And this is one of the main objections to Aristotle's teleological account of justice.
If certain roles, social roles, are fitting, or appropriate, to me where does that leave my right to choose my social roles, my life purposes, for myself?
What room does teleology leave for freedom?
And in fact, you may remember, Rawls rejects teleological accounts of justice because he says that teleological theories of justice threaten the equal basic rights of citizens.
So, let's begin to examine whether Aristotle is right, and in particular, whether his teleological way of thinking about justice is at odds with freedom.
Now, one obvious reason to worry is Aristotle's defense of slavery.
He defends slavery, which existed as an institution in the Athens of his day.
Well, what is his defense of slavery?
Two things, two conditions, have to be met for slavery to be just.
First, it has to be necessary.and Aristotle says, at least in our society, slavery is necessary.
Why is it necessary?
If there are to be citizens who are freed from manual and menial and household chores to go to the assembly, to deliberate about politics, there have to be some who look after those menial tasks; the mere necessities of life.
He says, unless you could invent in some science-fiction a technological fix then there are going to be those who have to do the hard and difficult and menial labor if there are going to be citizens deliberating about the good and realizing their nature.
So slavery is necessary for the life of the polis for there to be open to citizens.
The life of deliberation, of argument, of practical wisdom.
But there's a further condition that has to be met.
Slavery has not only to be necessary for the community as a whole to function, but it also has to be the case, remember the criterion of fit?
It also has to be the case that there are some people for whom being a slave is the just, or the fitting, or the appropriate condition.
Now, Aristotle agrees that by his own standards, both of those conditions must be met, must be true, if slavery is to be just.
And then, in a deplorable passage, he says, well, it is true that there are some people who are fit by nature who are cut out to be slaves.
These are people who differ from ordinary people in the same way that the body differs from the soul.
These are people who are meant to be ruled, and for them their nature is best realized if they're slaves.
They can recognize reason in others but they can't partake of it, they can't exercise it.
And somehow we can know this.
Now, Aristotle must have known that there was something dodgy, something strained about this claim, because he quickly acknowledges that those who disagree may have a point.
And what those who disagree point out is that there are a lot of people in Athens who are slaves not because they were born to be slaves, or fit to be slaves, but because they were captured, they were losers in a war.
And so, Aristotle admits that as practiced in ancient Athens, slavery didn't necessarily line up with who actually is fit or born to be a slave, because some actual slaves just were slaves by bad luck, by being captured in a war.
And on Aristotle's own account even if it's necessary to have slavery for the sake of citizenship it's unjust if people who aren't properly slaves are cast in that role.
There is a misfit.
Aristotle recognizes that slavery for those who aren't fit for the task is a kind of coercion.
The reason slavery is wrong is not because it's coerced.
Coercion is an indicator that it's wrong, because it's not natural.
If you have to coerce someone into a role that's a pretty good indication that they don't belong there, that that role isn't fitting for them.
And Aristotle recognized this.
So, all of this is to say the example of slavery, Aristotle's defense of it, doesn't show that there isn't anything wrong in principle with teleological argument, with the idea of justice as fit between persons and roles, because it's perfectly possible within Aristotle's own terms, to explain what's wrong with this application, this practical application that he made of his theory.
I want to turn to the larger challenge to Aristotle in the name of freedom.
But before I do that I want to see what people think of Aristotle's account of justice as fit, his teleological way of reasoning about justice and the honorific dimension of rights and of distributive justice that immerged in our discussion of flutes and politics and golf.
Questions of clarification about Aristotle or objections to his overall account.
Yes.
My objection to Aristotle is that he wants to match a person to a role.
And, you know, if you walk like a pirate and you talk like a pirate, you know, you should be a pirate.
And that is what is right.
And so what's strange and seems paradoxical to me about Aristotle's view point is that if you walk like a pirate and you talk like a pirate you shouldn't be an investment banker, because that's not what you're inherently supposed to do.
If you have a peg leg and an eye patch and a disgruntled disposition, you know, you should be on a pirate ship on the high seas.
So he doesn't...
Some would say that the distinction between the two vocations is not as clear as you suggest.
Alright, but that's good.
I take your point.
Yes, go ahead.
It just seems to ignore individual rights.
So, I might be the perfect janitor in the whole world and I can do that job the most efficiently out of anybody that exists right now, but I might not want to do that.
I might want to do any other number of pursuits and it seems to say that that isn't really a good option for me.
Alright, and what's your name?-- Mary-Kate.-- Good.
Alright, let's take a couple more.
Yes.
I think that the golf cart exchange sort of brought up what I see as my main objection to this teleological mode of reasoning.
I mean, Michael, I think that's your name, right?
Believes that walking is an inherent part of golf.
Myself, I believe that walking is not an inherent part of golf.
And I feel that no matter how long we debate this particular point of contention we're never going to reach an accord.
The teleological framework of reasoning, I believe, doesn't really allow us to come to any sort of agreement.
Alright, and what's your name?-- Patrick.-- Patrick.
Alright, let me try to address this set of objections to Aristotle.
Let me start with Patrick's; it's an important objection.
We had a debate about whether walking is essential to golf, and even in so seemingly trivial, or at least contained, a case as that, we couldn't agree.
How can we possibly hope to agree?
When the stakes are higher and when we're debating the fundamental purposes, or ends, of political community.
And so, if we can't agree in what the ends or the goods of our shared public life consist in, how can we base justice and rights on some notion of what the end, or the purpose, or the good consists in?
That's an important objection.
So much so that much modern political theory takes that worry about disagreement over the good as its starting point, and concludes that justice and rights and constitutions should not be based on any particular conception of the good or the purposes of political life, but should, instead, provide a framework of rights that leaves people free to choose their conceptions of the good, their own conceptions of the purposes of life.
Now, Mary-Kate said, "What if a person is very well suited to having a certain role, like the role of being a janitor, but wants something else, wants to reach higher, wants to choose another way of life?" So, that goes back to this question about freedom.
If we take our bearing as persons from roles that are said to fit our nature, shouldn't it at least be up to us to decide what those roles are?
In fact, shouldn't it be up to us to define what roles are suitable to us?
And that's going to take us back to the confrontation between Aristotle on the one hand and Kant and Rawls on the other.
Kant and Rawls think Patrick has a point.
They say precisely because people disagree in pluralist societies about the nature of the good life, we shouldn't try to base justice on any particular answer to that question.
So they reject teleology, they reject the idea of tying justice to some conception of the good.
What's at stake in the debate about teleology, say Rawlsian and Kantian liberals, is this; if you tie justice to a particular conception of the good, if you see justice as a matter of fit between a person and his or her roles, you don't leave room for freedom, and to be free is to be independent of any particular roles, or traditions, or conventions that may be handed down by my parents or my society.
So, in order to decide as between these two broad traditions, whether Aristotle is right, or whether Kant and Rawls are right, we need to investigate whether the right is prior to the good, question one, and we need to investigate what it means to be a free person, a free moral agent.
Does freedom require that I stand for toward my roles, my ends, and my purposes as an agent of choice?
Or as someone trying to discover what my nature really is?

Justice 11
The Claims of Community / Where Our Loyalty Lies
Today we turn to Kant's reply to Aristotle.
Kant thinks that Aristotle just made a mistake.
It's one thing, Kant says, to support a fair framework of rights within which people can pursue their own conceptions of the good life.
It's something else and something that runs the risk of coercion to base law or principles of justice on any particular conception of the good life.
You remember Aristotle says in order to investigate the ideal constitution we have first to figure out the best way to live.
Kant would reject that idea.
He says that constitutions and laws and rights rights should not embody or affirm or promote any particular way of life.
That's at odds with freedom.
For Aristotle the whole point of law, the purpose of polis is to shape character, to cultivate the virtue of citizens, to inculcate civic excellence, to make possible a good way of life.
That's what he tells us in the politics.
For Kant, on the other hand, the purpose of law, the point of a constitution is not to inculcate or to promote virtue.
It's to set up a fair framework of rights within which citizens may be free to pursue their own conceptions of the good for themselves.
So we see the difference in their theories of justice.
We see the difference in their account of law or the role of a constitution, the point of politics, and underlying these differences are two different accounts of what it means to be a free person.
For Aristotle we are free insofar as we have the capacity to realize our potential.
And that leads us to the question of fit.
Fit between persons and the roles that are appropriate to them.
Figuring out what I'm cut out for.
That's what it means to lead a free life, to live up to my potential.
Kant rejects that idea and instead substitutes his famously demanding notion of freedom as the capacity to act autonomously.
Freedom means acting according to a law I give myself.
Freedom is autonomy.
Part of the appeal, part of the moral force of the view of Kant and of Rawls consists in the conception of the person as a free and independent self capable of choosing his or her own ends.
The image of the self is free and independent offers a, if you think about it, a powerful liberating vision because what it says is that as free moral persons we are not bound by any ties of history or of tradition or of inherited status that we haven't chosen for ourselves, and so we're unbound by any moral ties prior to our choosing them.
And that means that we are free and independent sovereign selves.
We're the authors of the only obligations that constrain us.
The communitarian critics of Kantian and Rawlsian liberalism acknowledge that there is something powerful and inspiring in that account of freedom, the free independent choosing self, but they argue it misses something.
It misses a whole dimension of moral life and even political life.
It can't make sense of our moral experience because it can't account for certain moral and political obligations that we commonly recognize and even prize.
And these include obligations of membership, loyalty, solidarity, and other moral ties that may claim us for reasons that we can't trace to an act of consent.
Alistair McIntyre gives an account what he calls a narrative conception of the self.
It's a different account of the self.
Human beings are essentially storytelling creatures, McIntyre argues.
That means I can only answer the question 'what am I to do?' if I can answer the prior question of what story or stories do I find myself a part?
That's what he means by the narrative conception of the self.
What does this have to do with the idea of community and belonging?
McIntyre says this, Once you accept this narrative aspect of moral reflection you will notice that we can never seek for the good or exercise of the virtues only as individuals.
We all approach our circumstance as bearers of particular social identities.
I am someone's son or daughter, a citizen of this or that city, I belonged to this plan, that tribe, this nation.
Hence, McIntyre argues, what is good for me has to be the good for someone who inhabits these roles.
I inherit from the past of my family, my city, my tribe, my nation a variety of debts, inheritances, expectations, and obligations.
These constitute the given of my life, my moral starting point.
This is in part what gives my life its moral particularity.
That's the narrative conception of the self.
And it's a conception that sees the self as claimed or encumbered, at least to some extent, by the history, the tradition, the communities, of which it's a part.
We can't make sense of our lives, not only as a psychological matter, but also as a moral matter in thinking what we are to do without attending to these features about us.
Now, McIntyre recognizes that this narrative account, this picture of the encumbered self, puts his account at odds with contemporary liberalism and individualism.
From the standpoint of individualism I am what I myself choose to be.
I may biologically be my father's son but I can't be held responsible for what he did unless I choose to assume such responsibility.
I can't be held responsible for what my country does, or has done, unless I choose to assume such responsibility.
But McIntyre says this reflects a certain kind of moral shallowness even blindness.
It's a blindness at odds with the full measure of responsibility which sometimes, he says, involves collective responsibility or responsibilities that may flow from historic memories.
And he gives some examples.
Such individualism is expressed by those contemporary Americans who deny any responsibility for the effects of slavery upon black Americans saying "I never owned any slaves." Or the young German who believes that having been born after 1945 means that what Nazis did to Jews has no moral relevance to his relationship to his Jewish contemporaries.
McIntyre says all of these attitudes of historical amnesia amount to a kind of moral abdication.
Once you see that who we are and what it means to sort out our obligations can't be separated, shouldn't be separated from the life histories that define us.
The contrast, he says, with a narrative account, is clear, For the story of my life is always embedded in the story of those communities from which I derived my identity.
I am born with the past and to try to cut myself off from that past is to deform my present relationships.
So there you have in McIntyre, a strong statement of the idea that the self can't be detached, shouldn't be detached, from its particular ties of membership history, story narrative.
Now, I want to get your reactions to the communitarian critique of the individualist or the voluntarist, the unencumbered self.
But let's make it concrete so that you can react to more than just the theory of it by looking at the two different accounts of moral and political obligation that arise depending on which of these conceptions of the person one accepts.
On the liberal conception, moral and political obligations arise in one of two ways.
There are natural duties that we owe human beings as such.duties of respect for persons qua persons.
These obligations are universal.
Then, as Rawls points out, there are also voluntary obligations.
Obligations that we owe to particular others insofar as we have agreed whether through a promise or a deal or a contract.
Now, the issue between the liberal and communitarian accounts of the self, is there another category of obligation or not?
The communitarian says there is.
There is a third category that might be called obligations of solidarity or loyalty or membership.
The communitarian argues that construing all obligations as either natural duties or voluntary obligations fails to capture obligations of membership or solidarity.
Loyalties whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are.
What would be some examples?
And then I want to see how you would react to them.
Examples of obligations of membership that are particular but don't necessarily flow from consent but rather from membership narrative community, one situation.
The most common examples are ones to do with the family.
The relation between parents and children, for example.
Suppose there were two children drowning.
You could save only one of them.
One was your child, the other was a stranger's child.
Would you have an obligation to flip a coin or would there be something morally obtuse if you didn't rush to save your child?
Now, you may say, well, parents have agreed to have their children.
So take the other case, the case of children's obligation for their parents.
Now, we don't choose our parents.
We don't even choose to have parents.
There is that asymmetry.
And yet consider two aging parents, one of them yours, the other a stranger's.
Doesn't it make moral sense to think that you have a greater obligation to look after your aged parent than to flip a coin or to help the stranger's?
Now, is this traceable to consent?
Not likely Or take a couple of political examples.
During World War II, French resistance pilots flew bombing raids over occupied France.
One day, one of the pilots received his target and noticed that the village he was being asked to bomb was his home village.
He refused, not disputing that it was as necessary as the target he bombed yesterday.
He refused on the ground that he couldn't bring himself.
It would be a special moral crime for him to bomb his people even in a cause that he supported, the cause of liberating France.
Now, do we admire that?
If we do, the communitarian argues, it's because we do recognize obligations of solidarity.
Take another example.
Some years ago there was a famine in Ethiopia.
Hundreds of thousands of people were starving.
The Israeli government organized an airlift to rescue Ethiopian Jews.
They didn't have the capacity to rescue everyone in Ethiopia.
They rescued several hundred Ethiopian Jews.
Now, what's your moral assessment?
Is that a kind of morally troubling partiality, a kind of prejudice?
Or as the Israeli government thought, is there a special obligation of solidarity that this airlift properly responded to?
Well, that takes us to the broader question of patriotism.
What, morally speaking, is to be said for patriotism?
There are two towns named Franklin.
One is Franklin, Texas, and the other is just across the Rio Grande River, Franklin, Mexico.
What is the moral significance of national boundaries?
Why is it, or is it the case that we as Americans have a greater responsibility for the health and the education and the welfare and public provision for people who live in Franklin, Texas, than equally needy people just across the river, living in Franklin, Mexico?
According to the communitarian account, membership does matter.
And the reason patriotism is at least potentially a virtue is that it is an expression of the obligations of citizenship.
How many are sympathetic to the idea that there is this third category of obligation?
The obligations of solidarity or membership.
How many are sympathetic to that idea?
And how many are critical of that idea?
How many think all obligations can be accounted for in the first two ways?
All right, let's hear from the critics of the communitarian idea first.
Yes.
My biggest concern with the idea of having obligations because you're a member of something or because of solidarity is that it seems that if you accept those obligations as being sort of morally binding, then there is a greater occurrence of overlapping obligations a greater occurrence of good versus good.
And I don't know if this sort of framework allows us to choose between them.
Good, and what's your name?- Patrick.
So you worry that if we recognize obligations of membership or solidarity, since we inhabit different communities, their claims might conflict, and what would we do if we have competing obligations?
Yes.
Well, one solution is that we could view ourselves as ultimately, members of the human community and that then within that we have all these smaller spheres, of that, you know, I am American or I am a student at Harvard.and so the most important community to be obligated to is the community of human beings.
And then from there you can sort of, evaluate, which other ones are most important to you.
So the most, and what's your name?- Nichola.
So, Nichola, you say the most universal community we inhabit, the community of human kind, always takes precedence?- Yes.
Patrick, are you satisfied?
No.- Why not?
It seems rather arbitrary that we should choose the universal obligation over the more specific obligation.
I might also say that I should be obligated first to the most specific of my obligations.
For instance, take my family as a small unit of solidarity.
Perhaps I should be first obligated to that unit and then perhaps to the unit of my town, and then my country, and then the human race.
Good, thank you.
I want to hear from another critic of the communitarian view.
We have the objection, well, what if goods collide?
Who objects to the whole idea of it?
Who sees patriotism as just the kind of prejudice that ideally we should overcome?
Yes.
Patriotism reflects a community membership.
That's a, like, a given.
I think the problem is that where some memberships are natural narratives, the narrative of citizenship is a constructed one.
And I think a false one because, as the river is just a historical accident, it makes no sense that because the lottery of birth threw me into the United States as opposed to Mexico that that's the membership that I should be a part of.
Good. And what's your name?- Elizabeth.
Elizabeth.
Who has a reply?
Yes.
I think in general, we have to ask where do our moral obligations arise from anyway.
And I think, basically, there'd be two places from which they could arise.
One would be kin and the other one would be reciprocity.
And isn't the closer you are associated to other people, there's a natural reciprocity there in terms of having interactions with those people.
You interact with the neighbors on your street, with the other people in your country through economic arrangements- But I don't know and you don't know those people in Franklin, Texas, any more than you know the people in Franklin, Mexico, do you?
Presumably you're naturally more connected with the people in your own country in terms of interaction and trade than you are with people in other countries.
Good. Who else?
Go ahead.
Yeah, I think that a lot of the basis for patriotism can be compared to like school spirit or even house spirit that we see here where freshmen are sorted into houses and then within a day they have developed some sort of attachment or a pride associated with that house.
And so I think that we can probably draw a distinction between a moral obligation for communitarian beliefs and sort of just a sentimental, emotional attachment.
Good. Wait, stay there.
What's your name?
Rina.
What about... Go back to my example about the obligation of the child to the parent.
Would you say the same thing there?
It just may or may not be a sentimental type and it has no moral weight?
Well, I mean, I'm not entirely certain that accident, in the initial stages, something that will preclude moral obligations later.
Just because we are randomly sorted into a house or just because we don't choose who our parents are or what country we're born into doesn't necessarily mean that we won't develop an obligation based on some type of benefit, I guess, to sort of...
So your obligation to your aged parent that's greater than to aged parents around the world, is only because and insofar as you're repaying a benefit that your parent gave you when you were growing up?
Yeah, I mean, I would say that if you look at cases of adoption where, you have a biological parent somewhere else that you don't interact with, and then you have a parent who adopted you, most people would say that if you had to pick between them in the case of aging parents, that your obligation would lie more with the person who raised you and who had exchanges with you meaningfully.
May I ask you one more question about the parent?
Sure.
Do you think that a person with a bad parent owes them less?
I don't know because I've never had a bad parent.
I think that's a good place to end.- Thank you.
We'll continue with this next time. Thank you.
If I were working on an [economics] problem set, for example, and I saw that my roommate was cheating, that might be a bad thing for him to do but I wouldn't turn him in.
You would not turn him in.
I wouldn't turn him in and I think that I would argue that's the right thing to do because of my obligation to him.
You don't have a duty to tell the truth, to report someone who cheated?
Today I'd like to take, I'd like to consider the strongest objections to the idea that there are obligations of solidarity or membership.
Then I want to see if those objections can be met successfully.
One objection emerged in the discussion last time.
Patrick said, if obligations flow from community membership and identity, we inhabit multiple communities, doesn't that mean that our obligations will sometimes conflict?
So that's one possible objection.
And then Rina said these examples meant to bring out the moral force of solidarity and membership, examples about parents and children, about the French resistant fighter asked to bomb his own village and withdrawing back.
About the airlift by Israel of the Ethiopian Jews.
These examples, they maybe intuitively evocative, Rina said.
But really they're pointing to matters of emotion, matters of sentiment.
Not true moral obligations.
And then there were a number of objections, not necessarily to patriotism as such.
But to patriotism understood as an obligation of solidarity and membership beyond consent.
This objection allowed that there can be obligations to the communities we inhabit including obligations to patriotism.
But this objection argued that all of the obligations of patriotism, or of community or membership, are actually based on liberal ideas and perfectly compatible with them.
Consent, either implicit or explicit or reciprocity.
Julia Ratthel for example on the web site said that liberalism can endorse patriotism as a voluntary moral obligation.
Patriotism and familial love both fall into this category because after all, Julia points out, the Kantian framework allows people free reign to choose to express virtues such as these if they want to.
So you don't need the idea of a non-voluntary particular moral obligation to capture the moral force of community values.
Where is Julia?
Okay, so did I summarize that fairly?
Julia actually is in line with what Rawls says about this very topic.
You weren't aware of that?
You came up it within your own.
That's pretty good.
Rawls says, when he's discussing political obligation, he says it's one thing if someone runs for office or enlists in the military, they are making a voluntary choice.
But Rawls says there is, I believe, no political obligations, strictly speaking, for a citizens generally.
Because it's not clear what is the requisite binding action and who has performed it.
So Rawls acknowledges that for ordinary citizens there is no political obligation except in so far as some particular citizen willingly, through an act of consent, undertakes or chooses such an obligation.
That's in line with Julia's point.
It's related to another objection that people have raised which is it's perfectly possible to recognize particular obligations to ones family or to ones country, provided honoring those obligations doesn't require you to violate any of the natural duties or requirements of the universal respect for persons-qua-persons.
So that's consistent with the idea that we can choose if we want to, to express our loyalty to our country or to our people or to our family provided we don't do any injustice within the framework acknowledging the priority that is of the universal duties.
The one objection that I didn't mention is the view of those who say that obligations of membership really are kind of collective selfishness, why should we honor them?
Isn't it just the kind of prejudice?
So what I'd like to do, perhaps of those of you who have agreed, who wrote and who have agreed to press these objections, perhaps if you could gather down all together, we'll form a team as we did once before.
And we'll see if you can respond to those who want to defend patriotism conceived as a communal obligation.
Now there were a number of people who argued in defense of patriotism as the communitarian view conceives it.
So let me go down now and join the critics, the critics of communitarianism.
If there's a microphone that we could use somewhere.
Okay, thanks Kate.
Who as the critics of patriotism, communal patriotism gather their forces here?
Patrick if you want to you can join as well or Rina.
Others who have spoken or addressed this question are free to join in.
But I would like to hear now, from those you who defend patriotism and defend it as a moral obligation that can't be translated back into purely consent based terms.
Can't be translated into the liberal terms.
Where is AJ Kumar?
AJ, everybody seems to know you.
All right, let's hear from AJ.
You said, in the same way I feel I owe more to my family than to the general community, I owe more to my country than to humanity in general.
Because my country holds a great stake in my identity.
It is not prejudice for me to love my country unless it is prejudice for me to love my parents more than somebody else's.
So AJ what would you say to this group?
Stand up.
I think that there is some fundamental, a moral obligation that comes from a communitarian responsibility to people in groups that form their identity.
I mean even, like I'll give the example that, there are a lot of things about our government, right now, that I'm not in favor of but part of my identity is that America values a free society where we can object to certain things and I think that's an expression of patriotism as well.
And, I go back to the parent example, even at Harvard, I think, I owe more to my roommates because they make up my identity, than I do it to the Harvard community as a whole.
And I think that applies to our country because there's certain things that growing up here, yes, we can't choose it, we can't choose our parents, things like that.
But it makes up part of our identity.
Okay, who would like to take that on? Mike?
Yeah about the obligation to the others simply by virtue of being in their, being influenced by them.
I'm a German citizen and if I've been born 80 years earlier then I would have been a citizen of Nazi Germany.
And for some reason I just don't think that I would have to feel obligated towards Germany because I had benefited from actions of Nazis.
I mean I guess my response to that would be you have hundreds of thousands of protesters in the United States right now who hold up signs that say, "Peace is patriotic." And I'm sure there are people in this room who don't agree with that.
I personally do and I would say that they are strongly objecting to basically everything the Bush administration is doing right now but they still consider themselves loving their country because they're furthering the cause of what they see is best for the country.
And I tend to agree with that as a patriotic movement.
Well but how's that then, how do you still favor your country?
How's that still patriotic?
I mean isn't that more sentimental attachment?
Where is the obligation there?
Rina?
Yeah not to bring this back to John Locke, but I would like to bring this back to John Locke.
So, I mean in his conception of, when people join society, there's still some outlet.
If you're not satisfied with your society, you do have a means of exit even though we had a lot of concerns about how you're born and it's not very feasible, he still provides that option.
If we want to say that your obligation to society is a moral one, that means that prior to knowing exactly what that society is going to be like or what your position is going to be in that society, that means that you have a binding obligation to a complete unknown body that could be, completely foreign to all of your personal beliefs Or what you would hold to be correct.
Do you think that that kind of communal obligation or patriotism means writing the community a blank moral check?
Basically, yeah.
I think it's reasonable to say that as you grow and as you develop within the community that you acquire some type of obligation based on reciprocity but to say that you have a moral obligation I think requires a stronger justification.
Who else?
Anyone else who would like to address that?
I guess we could say you could argue that you are morally obliged to society by the fact that there is that reciprocity.
I think it's the idea that, you know, we participate in society, we pay our taxes, we vote, this is why we could say that we owe something to society.
But beyond that I don't think there's anything inherent in the fact that we are members of the society itself that we owe at anything.
I think it's in so far as we, as the society give us something, gives us protection, safety, security, then we owe the society something but nothing beyond what we give the society.
Who want to take that on?
Raul?
I don't think we give the community a blank moral check in that sense.
I think we only give it a blank moral check when we abdicate our sense of civic responsibility and when we say that the debate does matter because patriotism is a vice.
I think that patriotism is important because it gives us a sense of community, a sense of common civic virtue that we can engage in the issues.
Even if you don't agree with the way the government is acting, you can still love your country and hate the way it's acting.
And I think because out of that love of county, you can debate with other people and have respect for their views but still engage them in debate.
If you just say that, patriotism is a vice, you drop out of that debate and you cede the ground to people who are more fundamentalist, who have a stronger view and who may coerce the community.
Instead we should engage the other members of the community on that same moral ground.
Now this, what we hear from AJ and Raul that's very pluralistic argumentative critically minded patriotism.
Whereas what we hear from, Ike and the critics of patriotism here is the worry that to take patriotic obligation in a communal way, seriously, involves the kind of loyalty that doesn't let us just pick and choose among the beliefs or actions or practices of our country.what's left of loyalty if we're all talking about, AJ and Raul, if all we're talking about is loyalty to principles of justice that may happen to be embodied in our community or not as the case may be.
And if not then we can reject its course.
I don't know, I sort of given a reply.
I got carried away. I'm sorry.
Who would like...?
Go ahead Julia.
Yeah I think that patriotism you need to define what that is.
It sounds like, you would normally think that we are given a more weak definition here of patriotism amongst us but almost sounds like your definition is merely to have some sort civic involvement in debating within your society.and I think that that kind of undermines maybe some of the moral worth of patriotism as a virtue as well.
I think if you can consent to a stronger form of patriotism if you want that's a stronger, I guess, moral obligation than even what you're suggesting.
What we really need to sharpen the issue is an example from the defenders of communitarianism of a case where loyalty can actually compete with and possibly outway universal principles of justice.
That's the test they really need to meet isn't it?
All right. So that's the test you need to meet.
Or, any among you who would like to defend obligations of membership or solidarity independent of ones that happened to embody just principles.
Who has an example of a kind of loyalty that can and should compete with universal moral claim respect for persons?
Go ahead.
Yeah, if I were working on an [economics] problem set, for example and I saw that my roommate was cheating, that might be a bad thing for him to do I wouldn't turn him in.- You would not turn him in?
I wouldn't turn him in and I think that I would argue that's the right thing to do because of my obligation to him.
It may be wrong but that's what I would do and, I think that's what most people would do as well.
All right, that's...
Now there's a fair test.
He's not slipping out by saying he's invoking, in the name of community, some universal principles of justice.
What's your name?
Stay there.
What's your name?
It's Dan.
Dan. So what do people think about Dan's case?
That's a harder case for the ethic of loyalty, isn't it?
But a truer test.
How many agree with Dan?
So loyalty... Dan loyalty has its part, if that's it.
How many disagree with Dan?
Peggy.
Oh well I agree with Dan but I agree that it's a choice that we make but it's not necessarily right or wrong.
I'm agreeing that I'm going to make the wrong choice because I'm going to choose my roommate.
But I also recognize that that choice isn't morally right.
So you're still translating, even Dan's loyalty, you're saying well that's a matter of choice, but what's the right thing to do?
Most people put up their hands saying Dan would be right to stand by his roommate and not turn him in.
Yes, go ahead.
Also I think as a roommate you have insider information and that might not be something you want to use.
That might be something unfair to hold against.
You're spending that much time with the roommate, obviously you're going to learn things about him and I don't think it's fair to reveal that to a greater community.
But it's loyalty, Vojtech.
You agree with Dan that loyalty is the ethic at stake here?
Absolutely.
You don't have a duty to tell the truth, to report someone who cheated?
Not if you've been advantage into getting that kind of information.
Before our critics of patriotism leave, I want to give you another version, a more public example of what, I guess we should call it Dan's dilemma.
Dan's dilemma of loyalty and I want to get the reaction of people to this.
This came up a few years ago in Massachusetts.
Does anyone know who this man is?
Billy Bulger that's right.
Who is Billy Bulger?
He was president of the Massachusetts State Senate for many years.
One of the most powerful politicians in Massachusetts and then he became president of the Univeristy of Massachusetts.
Now Billy Bulger, did you hear the story about him that bears on Dan's dilemma?
Billy Bulger has a brother named Whitey Bulger and this is Whitey Bulger.
His brother Whitey is on the FBI's most wanted list alleged to be a notorious gang leader in Boston, responsible for many murders and now a fugitive from justice.
But when the US attorney...
They called Billy Bulger, then the president of the Univeristy of Massachusetts, before the grand jury and wanted information on the whereabouts of his brother, this fugitive, and he refused to give it.
US attorney said, "Just to be clear Mr. Bulger, you feel more loyalty to your brother than to the people of the commonwealth of Massachusetts?" And here's what Billy Bulger said, "I never thought of it that way but I do have a loyalty to my brother, I care about him.
I hope that I'm never helpful to anyone against him.
I don't have an obligation to help anyone catch my brother." Dan you would agree.
How many would agree with the position of Billy Bulger?
Let me give one other example and then we'll let the critics reply, the critics of loyalty as we'll describe it.
Here's an even more fateful example from a figure in American history, Robert E. Lee.
Now Robert E. Lee on the eve of the civil war, was an officer of the Union Army.
He opposed secession, in fact, regarded as treason.
When war loomed, Lincoln offered Lee to be the commanding general of the Union Army, and Lee refused.
And he described in a letter to his sons why he refused.
With all my devotion to the Union, he wrote, I have not been able to make up my mind to raise my hand against my relatives, my children, my home.
By which he meant Virginia.
If the union is dissolved I shall return to my native state and share the miseries of my people.
Save in her defense, I will draw my sword no more.
Now here's a real test, Dan, for your principle of loyalty.
Because here is the cause of the war against, not only to save the union but against slavery.
And Lee is going to fight for Virginia even though he doesn't share the desire of the southern states to secede.
Now the communitarian would say there is something admirable in that.
Whether or not the decision was ultimately right, there's something admirable.
And the communitarian would say we can't even make sense, Rina, we can't make sense of Lee's dilemma as a moral dilemma unless we acknowledge that the claim of loyalty arising from his sense of narrative of who he is is a moral, not just sentimental, emotional tug.
All right, who would like to respond to Dan's loyalty, to Billy Bulger's loyalty or to Robert E. Lee's loyalty to Virginia?
What do you say Julia?
Okay, well I think that these are some classic examples of multiple spheres of influence.
And that you have conflicting communities that your family and your country.
I think that's one reason why the idea of choice in your obligation is so important because how else can you resolve this?
If you're morally obligated and there's no way out of this need for loyalty to the both communities, you're trapped, there's nothing you can do.
You have to make a choice.
And I think that being able to choose based on other characteristics, than merely the arbitrary fact that you're a member of this community is important, otherwise it's left to, I guess, randomness.
Well, Julia, the issue isn't whether Dan makes a choice, or Billy Bulger or Robert E. Lee, of course they make a choice.
The question is on what grounds, on what principle should they choose?
The communitarian doesn't deny that there is choice to be made.
The question is which choice, on what grounds and should loyalty, as such, weigh.
Andre now you want to, all right, go ahead. What do you say?
Well one of the things we've noticed in the three examples is that the people of all chosen the most immediate community of which they're a part.
The more local one.
And I think there's something to be said for that.
It's not just random.
I mean, there doesn't seem to be a conflict because they know which one is more important.
And it's their family over the Ec10 Class.
Their state over their country, and their family over the Commonwealth on Massachusetts.
So I think that's the answer to which is more important.
Do you think that the local, the more particular, is always the weightier morally, Andre?
Well I mean there's seems to be a trend in the three cases.
I would agree with that.
And I think most of us would agree that your family takes precedence over the United States perhaps.
Which is why you go with Dan?
Loyalty to the roommate over Ec10 and the truth?
Yeah, exactly.
I would because it...
I mean truth telling, not the truth of Ec10.
Yes.- Alright, so we understand.
Yes.
But on the same example in terms of family, you had cases in the civil war where brother was pitted against brother on both sides of the war, where they chose country instead of family.
So I think the exact same, more shows, that different people have different means of making these choices and that there is no one set of values, or one set of morality that communitarians can stick to.
And personally, I think that's the biggest problem with communitarians, that we don't have one set of standard moral obligations.
And tell me your name.- Samantha.
So Samantha, you agree with Patrick.
Patrick's point the other day that there may be...
If we allow obligations to be defined by community, identification or membership, they may conflict, they may overlap, they may compete.
And there is no clear principle.
Andre says here's a clear principle, the most particular.
The other day, Nichola who was sitting over here, where's Nichola?
Said that most universal.
You're saying, Samantha, the scale of the community as such can't be the decisive moral factor.
So there has to be some other moral judgment.
All right, let's first...
Let's let our defe...our critics of communal patriotism, let's express our appreciation and thank them for their having stood up and responded to these arguments.
Let's turn to the implications for justice of the positions that we've heard discussed here.
One of the worries underlying these multiple objections to the idea of loyalty or membership as having independent moral weight is that it seems to argue that there is no way of finding principles of justice that are detached from conceptions of the good life as they may be lived in any particular community.
Supposed the communitarian argument is right.
Suppose the priority of the right over the good can't be sustained.
Suppose instead, that justice and rights unavoidably are bound up with conceptions of the good.
Does that mean that justice is simply a creature of convention, of the values that happen to prevail in any given community at any given time?
One of the writings we have among the communitarian critics is by Michael Walzer.
He draws the implications of justice this way.
Justice is relative to social meanings.
A given society is just if its substantive life is lived in a certain way, in a way that is faithful to the shared understandings of the members.
So Walzer's account seems to bear out the worry that if we can't find independent principles of justice, independent that is, from conceptions of the good that prevail in any given community, that we're simply left with justice being a matter of fidelity or faithfulness to the shared understandings or values or conventions that prevail in any given society at any given time.
But is that an adequate way of thinking about justice?
Well, let's take a look at a short clip from the documentary "Eyes on the Prize." It goes back in the 784 Here are some situated American Southerners who believed in the tradition and the shared understandings of segregation.
Listen to the arguments they make about loyalty and tradition And see if they don't make you uneasy about tying arguments about justice to the shared understandings or traditions that prevail in any given society at the moment. Let's run the clip.'This land is composed of two different appearances.
A white culture and a colored culture.
And I've lived close to them all my life.
But I'm told now that we've mistreated them and that we must change.
And these changes are coming faster than I expected.
And I'm required to make decisions on the basis of a new way of thinking and it's difficult.
It's difficult for me, it's difficult for all southerners.' Well there you have it, narrative selves, situated selves invoking tradition.
Doesn't that show us that justice can't be tied to the shared understandings of goods that prevail in any given community at any given time?
Or is there a way of rescuing that claim from this example?

Justice 12
Debating Same-sex Marriage / The Good Life
We ended last time talking about the narrative conception of the self.
We were testing the narrative conception of the self and the idea of obligations of solidarity or membership that did not flow from consent, that claimed us for reasons unrelated to a contract or an agreement or a choice we may have made.
And we were debating among ourselves whether there are any obligations of this kind or whether all apparent obligations of solidarity and membership can be translated into consent or reciprocity or universal duty that we owe persons qua persons.
And then there were those who defended the idea of loyalty and of patriotism.
So the idea of loyalty and of solidarity and of membership gathered a certain kind of intuitive moral force in our discussion.
And then, as we concluded, we considered what seems to be a pretty powerful counter example to that idea.
Namely, the film of those southern segregationists in the 1950s.
And they talked all about their traditions, their history, the way in which their identities were bound up with their life history.
Do you remember that?
And what flowed from that history, from that narrative sense of identity for those southern segregationists?
They said we have to defend our way of life.
Is this a fatal or a decisive objection to the idea of the narrative conception of the self?
That's the question we were left with.
What I would like to do today is to advance an argument and see what you make of it.
And let me tell you what that argument is.
I would like to defend the narrative conception of the person as against the voluntarist conception.
I would like to defend the idea that there are obligations of solidarity or membership.
Then, I want to suggest that there being such obligations lends force to the idea, when we turn to justice, that arguments about justice can't be detached, cannot be detached after all, from questions of the good.
But I wanted to distinguish two different ways in which justice might be tied to the good and argue for one of them.
Now, the voluntarist conception of the person of Kant and Rawls we saw was powerful and liberating.
A further appeal is its universal aspiration.
The idea of treating persons as persons without prejudice, without discrimination, and I think that's what led some among us to argue that, okay, maybe there are obligations of membership but they are always subordinate.
They must always be subordinate to the duties that we have to human beings as such, the universal duties.
But is that right?
If our encompassing loyalty should always take precedence over more particular ones, then the distinction between friends and strangers should ideally be overcome.
A special concern for the welfare of friends would be a kind of prejudice, a measure of our distance from universal human concern But if you look closely at that idea, what kind of a moral universe, what kind of moral imagination, would that lead you to?
The enlightenment flows from Montesquieu gives perhaps the most powerful, and I think, the ultimately, the most honest account of where this relentless universalizing tendency leads the moral imagination.
Here's how Montesquieu put it.
He said, "A truly virtuous man would come to the aid of the most distant stranger as quickly as to his own friend." And then he adds, listen to this, "If men were perfectly virtuous, they wouldn't have friends." But it's difficult to imagine a world in which persons were so virtuous that they had no friends, only a universal disposition to friendliness.
The problem isn't simply that such a world would be difficult to bring about, that it's unrealistic.
The deeper problem is that such a world would be difficult to recognize as a human world.
The love of humanity is a noble sentiment but most of the time we live our lives by smaller solidarities.
This may reflect certain limits to the bounds of moral sympathy, but more important, it reflects the fact that we learn to love humanity, not in general, but through its particular expressions.
So these are some considerations.
They're not knock-down arguments, but moral philosophy can't offer knock-down arguments, but considerations, of the kinds that we've been discussing and arguing about all along.
Well, suppose that's right.
One way of assessing whether this picture of the person and of obligation is right, is to see what are its consequences for justice.
And here is where is confronts a serious problem, and here we go back to our southern segregationists.
They felt the weight of history.
Do we admire their character, these segregationists, who wanted to preserve their way of life?
Are we committed to saying, if we accept the idea of solidarity and membership, are we committed to saying that justice is tied to good in the sense that justice means whatever a particular community or tradition says it means, including those southern segregationists.
Here it's important to distinguish two different ways in which justice can be tied to the good.
One is a relativist way.
That's the way that says, to think about rights, to think about justice, look to the values that happened to prevail in any given community at any given time.
Don't judge them by some outside standard, but instead conceive justice as a matter of being faithful to the shared understandings of a particular tradition.
But there's a problem with this way of tying justice to the good.
The problem is that it makes justice wholly conventional.
A product of circumstance, and this deprives justice of its critical character.
But there is a second way in which justice can be tied with or bound up with the good.
On a second non-relativist way of linking justice with conceptions of the good, principles of justice depend for their justification not on the values that happened to prevail at any given moment in a certain place, but instead on the moral worth or the intrinsic good of the ends rights serve.
On this non-relativist view the case for recognizing a right depends on showing that it honors or advances some important human good.
The second way of tying justice to the good is not strictly speaking, communitarian, if by communitarian you mean, just giving over to a particular community the definition of justice.
Now, what I would like to suggest that of these two different ways of linking justice to the good, the first is insufficient.
Because the first leaves justice the creature of convention.
It doesn't give us enough moral resources to respond to those southern segregationists who invoke their way of life, their traditions, their way of doing things.
But if justice is bound up with the good in a non-relativist way, there is a big challenge, a big question to answer.
How can we reason about the good?
What about the fact that people hold different conceptions of the good?
Different ideas about the purposes of key social institutions.
Different ideas about what social goods and human goods are worthy of honor and recognition.
We live in a pluralist society, people disagree about the good.
That's one of the incentives to try to find principles of justice and rights that don't depend on any particular ends or purposes or goods.
So is there a way to reason about the good?
Before addressing that question, I want to address a slightly easier question.
Is it necessary, is it unavoidable, when arguing about justice to argue about the good?
And my answer to that question is yes, it's unavoidable.
It's necessary.
So for the remainder of today, I want to take up...
I want to try to advance that claim, that reasoning about the good, about purposes, and ends, is an unavoidable feature of arguing about justice, it's necessary.
Let me see if I can establish that.
And for that I'd like for us to begin a discussion of same sex marriage.
Now, same sex marriage draws on, implicateds, deeply contested and controversial ideas, morally and religiously.
And so there's a powerful incentive to embrace a conception of justice or of rights that doesn't require the society as a whole to pass judgment, one way or another, on those hotly contested moral and religious questions.
About the moral permissibility of homosexuality.
About the proper ends of marriage as a social institution.
So, clearly, if there's an incentive to resolve this question, to define people's rights in a way that doesn't require the society as a whole to sort out those moral and religious disputes that would be very attractive.
So what I would like to do now is to see, using the same sex marriage case, whether it's possible to detach one's use about the moral permissibility of homosexuality and about the purpose, the end of marriage, detach those questions from the question of whether the state should recognize same sex marriage or not.
So let's begin.
I would like to begin by hearing the arguments of those who believe that there should be no same sex marriage but that the state should only recognize marriage between a man and a woman.
Do I have volunteers?
I had two.
There were two people I asked, people who had voiced their views already on the justice blog.
Mark Loff and Ryan McCaffrey where are you?
Okay, Mark.
And where is Ryan?
Alright, let's go first to Mark.
I have sort of a theological understanding of the purpose of sex and the purpose of marriage.
And I think that for people like myself, who are a a Christian and also a Catholic, the purpose of sex is, one, for its procreative uses, and two, for a unifying purpose between a man and a woman within the institution of marriage.
You have a certain conception of the purpose or the telos... - Yeah....of human sexuality, which is bound up with procreation.
Right.
As well as union.- Yeah.
And the essence of marriage, the purpose of marriage as a social institution is to give expression to that telos and to honor that purpose, namely, the procreative purpose of marriage.
Is that a fair summary of your view?- Yeah.
Where is Ryan?
Go ahead.
Do you agree more or less with Mark's reasons?
Yes, I agree.
I think that the ideal of marriage involves procreation.
And it's fine that, homosexuals would go off and cohabitate with each other but the government doesn't have a responsibility to encourage that.
All right, so the government should not encourage homosexual behavior by conferring the recognition of marriage.
Yeah, it would be wrong to outlaw it but encouraging it is not necessary.
Who has a reply?
Yes.
Hannah?
I just like to ask a question to Mark.
Let's say you got married to a woman, you did not have sex with her before marriage, and then when you became married it became evident that you're an infertile couple.
Do you think that it should illegal for you to engage in sex if children will not result from that act?
Yeah, I think that it is moral and that's why I gave the two-fold purpose.
So like a woman, say...
I think older couples can get married, someone... a woman who's beyond...she has already had menopause and who can't have a child, because I think that sex has these...
It has purposes beyond procreation.
I hate to be uncouth but have you ever engaged in masturbation?
You don't have to answer that.
Right, make your...
I'd like to respond to that.
Wait. We've done pretty well over a whole semester and we're doing pretty well now dealing with questions that most people think can't even be discussed to any university settting and, Hannah, you've got, you have a powerful point.
Make that point as a general argument rather than, Rather than as an interrogative.
Okay.- But make the point.
What's the principle that you're appealing?
What's the argument you have in mind?
Alrightt. Well, biblically...- Put it in the third person.
Yeah, okay.- Rather than......Rather than in a second person.
Make the argument.
Okay. Biblically, masturbation or onanism, is not permissible because it's spilling your seed on the earth when it's not going to result in the birth of a child.
But what I'm saying is, you're saying that sex, there's something wrong with sex if it doesn't produce children or reinforce the marriage bond.- Right.
But then how can you say that there's something wrong, that masturbation is permissible, if masturbation, obviously, is not going to create a child?
I think marriage is society's way to create a separate institution where they say this is what we hold as a virtue.
Yes, every day we fall short and people fall short in so many different other ways, but I think that if you personally fall short, and some morals fear, as we all do, that doesn't take the right of you to argue.
All right, I want you, to stay there.
I want to bring in some other voices and we'll continue.
Stay there if you would.
Go ahead.
I think that the response to the masturbation- Wait, tell us your name.- My name's Steve.
Steve, go ahead.
The response to the masturbation issue is, it's not something that's permissible.
I don't think anyone will argue that homosexual sex is impermissible.
It's just that society has no place in letting you marry yourself if masturbation is something that you do.
Well, all right, Hannah.
Alright, Steve has drawn...
Alright, that's a good argument.
Steve has drawn our attention to the fact that there are two issues here.
One of them is the moral permissibility of various practices.
The other is the fit between certain practices, whatever their moral permissibility, with the honor or recognition that the state should accord in allowing marriage.
So Steve has a pretty good counter argument.
What do you say to Steve?
Well, I think that it's clear that human sexuality is something that is inherent in, I believe, most people and it's not something you can avoid.
And masturbation, I mean, yeah, you can't marry yourself but I don't think that takes away from the fact that homosexuals are people too.
And I can't understand why they wouldn't be able to marry each other.
If you want to marry yourself, I mean, I don't know if you can legally do that.
That's fine but I don't think- - Wait, wait, wait, wait, wait!
Now, here we're deciding, here we're deliberating as if legislators, what the law should be.
So you said, Steve, that's fine.
Does that mean as a legislator you would vote for a law of marriage that would be so broad that it would let people marry themselves?
Well, I mean, that's really beyond the pale of anything that would really happen but I don't think that- - But in principle.
Yeah, in principle?- Yes.
Yeah, sure, I mean if Steve wants to marry himself I'm not going to stop him.
And you would confer state recognition on that solo marriage?
Sure.
And while we're at it, what about consensual polygamous marriages?
I actually think that if the male and the female, or that if the wives and the man, of the husbands and the wife are consenting, it should be permissible.
Who else? I know there are a lot of people who...
Yes, okay, down here.
Stand up and tell us your name.
Victoria.- Victoria.
So we're talking about the theological reasoning here for marriage but I think the problem is that we're talking about it within the Catholic viewpoint.
Whereas, the theological, and the point to marriage for another religion or someone who's an atheist could be completely different.
And the government doesn't have a right to impose the theological reasoning for Catholicism on everyone in the state.
Which is what my problem is with not allowing same sex marriage.
Because, I mean, you're beliefs are your beliefs, and that's fine, but civil union is not marriage within the Catholic Church.
And the state has a right to recognize a civil union between whoever it wants, but does not have a right to impose the beliefs of a certain minority or majority of whoever it is based on religion within our state.
Alright, Victoria, good.
A question.
Do you think the state should recognize same sex marriage or just same sex civil unions as something short of marriage?
Well, I think that the state doesn't have a right to recognize it as marriage within a church, because that is not their place.
But whereas civil union, I see civil union as essentially the same thing except not under a religion and that state has a right to recognize a civil union.
Alright, so, Victoria's argument is that the state should not try to decide the question of what the telos of marriage is.
That's only something that religious communities can decide.
Who else?
My point is I don't see why you feel like the state should recognize marriages at all.
I'm like one of the 70 people who voted that the state should not recognize any marriages because I believe it is a union between male and a female or two males or two females.
But there's no reason to ask the state to give permission to me to unite myself.
And some might say that, if the state recognizes these marriages, it will help children, it will have a binding effect.
But in reality, I don't think it actually has a binding effect.
Alright, tell us your name.- Cezanne.
So, Victoria and Cezanne's comments differ from earlier parts of the conversation.
They say the state shouldn't be in the business of honoring or recognizing or affirming any particular telos, or purpose of marriage, or of human sexuality.
And Cezanne is among those who says, therefore, maybe the state should get out of the business of recognizing marriage at all.
Here's the question.
Unless, you adopt Cezanne's position, no state recognition of any kind of marriage, is it possible to choose between......to decide the question of same sex marriage without taking a stand on the moral and religious controversy over the proper telos of marriage.
Thank you very much to all of you who have participated.
We'll pick this up next time.
You did a great job.
When we first came together some 13 weeks ago I tried to warn you that once the familiar turns strange once we begin to reflect on our circumstance, it's never quite the same again.
I hope you have by now experienced at least a little of this unease because this is the tension that animates critical reflection and political improvement and maybe even the moral life as well.
We have two remaining questions to answer.
First, is it necessary, is it unavoidable to take up questions of the good life in thinking about justice? Yes.
And is it possible to reason about justice?
Yes, I think so.
Let me try to develop those answers to those two questions.
Now, as a way of addressing those questions, we began last time to discuss the question of same sex marriage.
And we heard from those who argued against same sex marriage on the grounds that the purpose, or telos, or marriage is at least in part, procreation, the bearing and raising of children.
And then there were those who defended same sex marriage and they contested that account of the purpose, or telos, of marriage arguing we don't require as a condition of heterosexual marriage that couples be able or willing to procreate.
We allow infertile couples to marry.
This was Hannah's point in the exchange with Mark.
Then there was another position expressed at the end our discussion by Victoria, who argued we shouldn't try to decide this question.
We shouldn't, at least at the level of the state, at the level of law, try to come to any agreement on those questions about the good because we live in a pluralist society where people had different moral and religious convictions.
And so we should try to make law in the framework of rights, neutral with respect to these competing moral and religious views.
Now, it's interesting that others, some others, who favor the idea of neutrality argued, not in favor of restricting marriage to a man and a woman, nor in favor of permitting same sex marriage, they argued in the name of neutrality, for a third possibility.
Which is that government get out of the business of recognizing any kind of marriage.
That was the third possibility.
Now, Andrea Mayrose had an interesting contribution to this debate.
She had a rejoinder to people who argue for neutrality.
Where is Andrea?
Alright, Andrea, would you be willing...
Share with us the view.
If we can get you a microphone.
Share with us your view.
Why do you think that it's a mistake for the state to try to be neutral moral and even religious questions like same sex marriage?
I don't know that it is possible because people's lives are completely embedded in how they view the world.
And maybe I just agree with Aristotle that the role of the government is helping people live in a sort of...
Having a collective understanding what is wrong and what is right.
Is it possible, and one could ask the same question of abortion, that we've been asking of same sex marriage.
Do you think it's possible to decide whether abortion should be permitted or prohibited without taking a stand or making a judgment about the moral permissibility of abortion?
No, I don't think it is and I think that's why it's such a controversy because people are so deeply committed to, their fundamental beliefs about whether a fetus is a life or if it isn't.
If I believe that, a fetus is a living being and has rights and has fundamentally the right to live, then it's very hard for me to say, "But I can put that aside and let you do what you want," because that's like me saying, "well, despite my beliefs, I'm going to let you commit what to me is murder." So, I mean, that's just one...
Alright, and the analogy in the same sex marriage case is, you said, you're a defender of same sex marriage. - Yes.
But you only came to that view once you were persuaded on the underlying moral question.
Right, well, I think particularly, in the US so many people's beliefs are driven by their religious beliefs and like Mark the other day, I'm a Christian, I'm Catholic, and I had to decide for myself on a lot of thought, a lot of prayer, a lot of conversations with other people that I disagreed with the Catholic standpoint that homosexuality itself isn't a sin.
And once I came to that, sort of conclusion, in my personal relationship with god, I mean, that's sounds hokey, right?
That's like, oh, religious!
But a lot of people are religious and that's where they draw theif beliefs and their views from.
That's when I could say, yeah, I'm down with the state saying, "Go same sex marriage!" because I'm okay with that and I think that's morally okay.
Good, thank you.
Now, who would like to reply?
If you can, perhaps, hang on there for a moment.
Who would like to reply to Andrea's idea that in order to decide the question of same sex marriage, it's necessary to sort out the question about the moral status of homosexuality and figuring out the purpose, the telos, the proper end, of marriage?
Who disagrees with Andrea on that point?
Yes.
Well, I think you absolutely can separate your moral opinion and what you think the law should be.
For example, I think abortion is unequivocally morally wrong.
But I do not believe that illegalizing abortion makes it go away.
I don't believe illegalizing abortion stops it.
And, therefore, I am pro choice and I do believe the woman should have the choice as it gives it more safety just as, maybe, morally, I don't want to get married to a man, but I'm not going try to, impede someone else's freedom to do what they wish to do in terms of the law.
Andrea?
Whether the law makes something legal or illegal, it's implicitly approving or disapproving something.
So if you say, by making abortion legal, we're saying it's okay.
As a society, collectively, we're saying it's okay with us in our society to abort a fetus.
If we make it illegal, then we're saying collectively as a society it's not okay, and that's why societies have different beliefs.
Tell us your name before you...- My name is Daniel.
Daniel, what do you say?
Are we saying collectively that it's okay?
Or are we saying that collectively we don't want women who are going to have an aboration anyway to go to clinics in the side alleys and have unsafe conditions?
Alright, bring it to the same sex marriage case.
Why don't you have to decide that which position you're in favor of same sex marriage, Daniel, being legally permitted?
I think it absolutely should be legally permitted because it's not something telling me that I need to have...
I need to marry a man.
I absolutely don't, I don't see, if two men are consenting adults and want to get married, I don't see how I could even object to that.
Alright, there's no harm.
There's no harm done.
There's no harm done either way, even if it is morally wrong according to me.
Alright, let me turn to the way the Massachusetts court, who made this landmark ruling in the same sex marriage case, grappled with the very issue that Andrea and Dan had been discussing here.
Thanks to both of you very much.
What did the court say?
This was in the Goodridge case which required the state of Massachusetts to extend marriage to same sex couples.
The court started out, well, the court was conflicted.
If you read that opinion carefully, the court was conflicted as between the two positions we've just been hearing, defended by Andrea and by Dan.
The court begins, and this is Chief Justice Margaret Marshall's opinion, it begins with an attempt at liberal neutrality.
Many people hold deep-seated religious, moral and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral.
Many hold equally strong religous, moral, and ehtical convictions that same sex souples are entitled to be married, that homosexual persons should be treated no differently than their heterosexual neighbors.
This is the court.
Neither view answers the question before us.
What is at stake is "respect for individual autonomy and equality under law." At stake is an individual freely choosing the person with whom to share an exclusive commitment.
In other words, the issue is not the moral worth of the choice but the right of the individual to make it.
So this is the liberal neutral strand in the court opinion, voluntarist strand, the one that emphasizes autonomy, choice, consent.
But the court seemed to realize that the liberal case, the neutral case, for recognizing same sex marriage doesn't succeed, doesn't get you all the way to that position, because if it were only a matter of respect for individual autonomy, if government were truly neutral on the moral worth of voluntary intimate relationships, then it should adopt a different policy.
Which is to remove government and the state all together from according recognition to certain associations, certain kinds of unions, rather than others.
If government really must be neutral, then the consistent position is what we here have been describing as the third position, the one defended in the article by Michael Kinsley, who argues for the abolition of marriage, at least as a state function.
Perhaps a better term for this is the disestablishment of religion.
This is Kinsley's proposal.
He points out that the reason for the opposition to same sex marriage is that it would go beyond neutral toleration and give same sex marriage a government stamp of approval.
That's at the heart of the dispute.
In Aristotle's terms, at issue here is the proper distribution of offices and honors, a matter of social recognition.
Same sex marriage can't be justified on the basis of liberal neutrality or non-discrimination or autonomy rights alone because the question at stake in the public debate is whether same sex unions have moral worth, whether they're worthy of honor and recognition, and whether they fit the purpose of the social institution of marriage.
So Kinsley says, you want to be neutral?
Then, let churches and other religous institutions offer marriage ceremonies.
Let department stores and casinos get into the act if they want to.
This is Kinsley.
Let couples celebrate their union in any way they choose and consider themselves married whenever they want.
And if three people want to get married, or if one person wants to marry himself or herself, and someone else wants to conduct a ceremony for them and declare them married, let them.
If you and your government aren't implicated, what do you care?
This is Kinsley.
But this is not the position that the Supreme Judicial Court of Massachusetts wanted.
They didn't call for the abolition or for the disestablishment of marriage.
The court did not question government's role in conferring social recognition on some intimate associations rather than others.
To the contrary, the court waxes eloquent about marriage as, "one of our community's most rewarding and cherished institutions." And then it goes on to expand the definition of marriage to include partners of the same sex.
And in doing so it acknowledges that marriage is more than a matter of tolerating choices that individuals make.
It's also a matter of social recognition and honor.
As Justice Marshall wrote.
In a real sense there are three partners to every civil marriage: two willing spouses and an approving state.
Marriage is at once a deeply personal cimmitment, but also a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.
This is the court.
Now, this is reaching well beyond liberal neutrality.
This is celebrating and affirming marriage as an honorific, as a form of public recognition.
And, therefore, the court found that it couldn't avoid the debate about the telos of marriage.
Justice Marshall's opinion considers and rejects the notion that the primary purpose of marriage is procreation.
She points out that there is no requirement that applicants for marriage license, who are heterosexuals, attest to their ability or their intention to conceive children.
Fertility is not a condition of marriage.
People who cannot stir from their deathbed, they marry.
So she advances all kinds of arguments, along the lines that we began last time, about the proper and the essential nature, the telos of marriage, is.
And she concludes, not procreation but the exclusive and permanent commitment of the partners to one another is the essential point and purpose of marriage.
Now, nothing I've said about this court opinion is an argument for or against same sex marriage.
But it is an argument against the claim that you can favor or oppose same sex marriage while remaining neutral on the underlying moral and religious questions.
So all of this is to suggest that at least in some of the hotly contested debates about justice and rights that we have in our society, the attempt to be neutral, the attempt to say, it's just a matter of consent and choice and autonomy, we take no stand.
That doesn't succeed.
Even the court, which wants to be neutral on these moral and religious disputes, finds that it can't.
What then about our second question?
If reasoning about the good is unavoidable in debates about justice and rights, is it possible?
If reasoning about the good means that you must have a single principle or rule or maxim or criterion for the good life, that you simply plug in every time you have a disagreement about morality, then the answer is, no.
But having a single principle or rule is not the only way, not the best way of reasoning either about the good life or about justice.
Think back, think back to the arguments that we've been having here about justice and about rights and sometimes about the good life.
How have those arguments proceeded?
They've proceeded very much in the way that Aristotle suggests moving back and forth between our judgments about particulars, particular cases, events, stories, questions, back and forth between our judgments about particular cases and more general principles that make sense of our reasons for the positions we take on the particular cases.
This dialectical way of doing moral reasoning goes back to the ancients, to Plato and Aristotle, but it doesn't stop with them, because there is a version of Socratic or dialectical moral reasoning that is defended with great clarity and force by John Rawls in giving an account of his method of justifying a theory of justice.
You remember it's not only the veil of ignorance and the principles that Rawls argues for.
It's also a method of moral reasoning, reasoning about justice that he calls reflective equilibrium.
What is the method of reflective equilibrium?
It's moving back and forth between our considered judgments about particular cases and the general principles we would articulate to make sense of those judgments.
And not just stopping there, because we might be wrong in our initial intuitions.
Not stopping there but then sometimes revising our particular judgments in the light of the principles once we work them out.
So sometimes we revise the principles, sometimes we revise our judgments and intuitions in the particular cases.
The general point is this, and here I quote Rawls.
A conception of justice can't be deduced from self evicdent premises.
Its justification is a matter of the mustual support of many considerations, of everything fitting together into one coherent view.
And later in the theory of justice, he writes, moral philosophy is Socratic.
We may want to change our present considered judgments once their regulative principles are brought to light.
Well, if Rawls accepts that idea and advances that notion of reflective equilibrium, the question we're left with is, he applies that to questions of justice, not to questions of morality and the good life.
And that's why he remains committed to the priority of the right over the good.
He thinks the method of reflective equilibrium can generate shared judgments about justice in the right but he doesn't think they can generate shared judgments about the good life, about what he calls comprehensive moral and religious question.
And the reason he thinks that is that he says that in modern societies there is a fact or reasonable pluralism about the good.
Even conscientious people who reason well, will find that they disagree about questions of the good life, about morality and religion.
And Rawls is likely right about that.
He's not talking about the fact of disagreement in pluralist societies.
He's also suggesting that there may be persisting disagreements about the good life and about moral and religious questions.
But if that's true, then is he warranted in his further claim that the same can't be said about justice?
Isn't it also true, not only that we, as a matter of fact, disagree about justice in pluralist societies, but that at least some of those disagreements are reasonable disagreements?
In the same way, some people favor a libertarian theory of justice, others are more egalitarian theory of justice and they argue.
And there is pluralism in our society as between free market laissez faire, libertarian theories of justice and more egalitarian ones.
Is there any difference in principle between the kind of moral reasoning and the kind of disagreements that arise when we debate about justice and the meaning of free speech and the nature of religious liberty?
Look at the debates we have over appointees to the Supreme Court.
These are all disagreements about justice and rights.
Is there any difference between the fact of reasonable pluralism in the case of justice and rights and in the case of morality and religion?
In principle I don't think that there is.
In both cases what we do when we disagree is we engage with our interlocutor, as we've been doing here for an entire semester.
We consider the arguments that are provoked by particular cases.
We try to develop the reasons that lead us to go one way rather than another.
And then we listen to the reasons of other people.
And sometimes we're persuaded to revise our view.
Other times we're challenged at least to shore up and strengthen our view.
But this is how moral argument proceeds, with justice, and so it seems to me, also with questions of the good life.
Now, there remains a further worry and it's a liberal worry, what about if we are going to think of our disagreements about morality and religion as bound up with our disagreements about justice, how are we ever going to find our way to a society that accords respect to fellow citizens with whom we disagree?
It depends I think on which conception of respect one accepts.
On the liberal conception, to respect our fellow citizens' moral and religious convictions, is, so to speak, to ignore them, for political purposes.
To rise above or to abstract from or to set aside those moral and religious convictions.
To leave them undisturbed, to carry on our political debate without reference to them.
But that isn't the only way, or perhaps even the most plausible way of understanding the mutual respect on which democratic life depends.
There is a different conception of respect according to which we respect our fellow citizens' moral and religious convictions, not by ignoring, but by engaging them.
By attending to them.
Sometimes by challenging and contesting them.
Sometimes by listening and learning from them.
Now, there's no guarantee that a politics of moral and religious attention and engagement will lead in any given case to agreement.
There is no guarantee it will lead even to appreciation for the moral and religious convictions of others.
It's always possible, after all, that learning more about a religious or a moral doctrine will lead us to like it less.
But the respect of deliberation and engagement seems to me a more adequate, more suitable ideal for a pluralist society.
And to the extent that our moral and religious disagreements reflect some ultimate plurality of human goods.
A politics of moral engagement will better enable us, so it seems to me, to appreciate the distinctive goods our different lives expressed.
When we first came together some 13 weeks ago, I spoke of the exhilaration of political philosophy and also of its dangers.
About how philosophy works and has always worked by estranging us from the familiar by unsettling our settled assumptions.
And I tried to warn you that once the familiar turns strange, once we begin to reflect on our circumstance, it's never quite the same again.
I hope you have by now experienced at least a little of this unease because this is the tension that animates critical reflection and political improvement and maybe even the moral life as well.
And so our argument comes to an end, in a sense, but in another sense goes on.
Why, we asked at the outset, why did these arguments keep going even if they raise questions that are impossible ever, finally, to resolve?
The reason is that we live some answer to these questions all the time.
In our public life, and in our personal lives, philosophy is inescapable even if it sometimes seems impossible.
We began with the thought of Kant, that skepticism is a resting place for human reason.
Where it can reflect upon its dogmatic wanderings, but it is no dwelling place for permanent settlement.
To allow ourselves simply to acquiescence in skepticism or in complacence, Kant wrote, can never suffice to overcome the restlessness of reason.
The aim of this course has been to awaken the restlessness of reason and to see where it might lead.
And if we had done at least that, and if the restlessness continues to afflict you in the days and years to come, then we together have achieved no small thing.