1 On Taking Precepts to Belong to Social Morality [Do Not Cite] Everyone must grant that a law, if it to hold morally, that is, as a ground of an obligation, must carry with it absolute necessity that, therefore, the ground of obligation here must not be sought in the nature of the human being or in the circumstances of the world in which he is placed, but a priori simply in the concepts of pure reason; and that any other precept, which is based on principles of mere experience even if it is universal in a certain respect insofar as it rests in the least part on empirical grounds can indeed be a called a practical rule but never a moral law. 1 Jerry s project concerns the justification of social morality. I am interested in what social morality is. More specifically, I m interested in what makes it social and what makes it morality. I hope by getting clearer about these matters in my own mind that I will be able to pin down how the problem of its justification arises. I ll then be able to suggest an alternative solution to that problem and say to what I think the alternative has to recommend it. The power of Jerry s extraordinarily interesting book is derived in part from the breadth of its range and from the intricacy of its argument. I cannot claim to have mastered the book, I am aware of how much I am passing over in silence and I almost certainly have many things wrong. I hope that those who know the book better than I will indulge me. On p. 2 of his book, Jerry says: SM: By social morality I mean the set of social-moral rules that require or prohibit action, and so ground moral imperatives that we direct to each other to engage in, or refrain from, certain lines of conduct. (p. 2) This description is a conjunction. What is the set of social moral rules with which the first conjunct identifies social morality? First, it is a set of social-moral rules, so it is a set of moral rules. These rules express moral rights and duties, moral prohibitions and permissions. They are rules the violation of which is, or is thought to be, morally wrong. Moreover, it is a set of social-moral rules rather than social-moral principles. Rules differ from first principles of morality by their specificity. (pp. 42, 180, 271) What makes the rules of social morality specific is that they refer to particular action-types. Some of Jerry s examples of rules which are included or putatively included in social morality concern truth-telling and lying (p. 302), marital fidelity (p. 44), privacy (p. 302), smoking behavior (p. 316) and voluntary euthanasia (p. 245) What is meant by saying that it is a set of social moral rules? What makes social morality social? Jerry s examples suggest one answer: that social morality concerns interpersonal conduct. I believe Jerry thinks that the rules of what he calls the true social morality (pp. 179, 425, 430, 434) will be social in that they concern only such conduct. But people sometimes take rules about selfregarding conduct to belong to social morality also. That they do brings me to the second conjunct of Jerry s description and to another sense in which social morality is social. 1 Immanuel Kant, Groundwork, 4:389 (trans. Gregor)
2 The second conjunct of SM refers to the fact that we direct moral imperatives to one another. The direction of imperatives to one another is, Jerry says in one passage, an actual practice (p. xvi), a practice in which we all actually engage. In that passage, Jerry identifies morality with this practice rather than with a set of rules. A terminological distinction will help us keep things straight. Let s use the phrase practice of social morality to refer to the practice of issuing imperatives which express the rules we take to belong to the set of rules with which social morality is identified in SM. One thing that makes the practice social is that we direct the imperatives to one another. The rules of social morality are then social in a second sense because they have a role in a social practice. When I said that Jerry s project concerns the justification of social morality, I meant that it concerns the justification of rules of social morality. Questions about justification might be thought to arise because, as I suggested a moment ago, people engaged in the practice of social morality are sometimes wrong, or can sometimes be wrong, about what rules really do belong to the true social morality. They mistakenly take some rules to belong to social morality which don t one of Jerry s examples is an anti-smoking rule (p. 320), but we might add lots of classic examples of rules about self-regarding actions -- and direct imperatives to others that are in fact ungrounded. The direction of ungrounded imperatives is a problem, for reasons to which I shall return. And this problem seems to motivate Jerry s project by raising the question of what rules of social morality are justified. 2 One way to address that question, and to dispel the motivational problem, would be to identify the rules that belong to the true social morality. But Jerry proceeds differently. He thinks that a rule belongs to the true social morality only if it can be verified more specifically, only if it can be verified from the requisite moral point of view. (p. 2) It can be verified from that point of view only if it can be publicly justified. (see pp. 360-61, for example) And so Jerry identifies and defends conditions on the public justification. These conditions enable us to test[] (p. 177) rules that we take to belong to social morality. They provide a constraint (pp. 19, 401) that rules must satisfy if they are part of true social morality, so that we can determine whether the imperatives we consider directing to one another are properly grounded. Note that the way I have discussed the motivation of Jerry s project so far suggests that our taking rules to belong to social morality is crucial. I m puzzled by and interested in what this means, and I want to spend some time thinking through it. 1. Three Additional Features of Social Morality A necessary condition of our taking rules to belong to social morality would seem to be that we who engage in the practice of social morality have the concepts of a rule and a practice of social morality, for only if we do can we take or mistake their applications. Only if we have these concepts can we take some rules to be part of social morality which in fact are not. One problem with supposing that we do have these concepts is that social morality has other important features besides those I have cited so far. 3 2 Jerry writes: [Kurt Baier s morality] is our real practice, which makes your activities your neighbor s business; he calls on morality to tell you what to do, and he will not simply shrug his shoulders and walk away if you ignore his demands. Confronting this actual practice in which imperfect compliance is a central feature we have to ask why do we need it? and when can its claims to authority be freely recognized by all? These are the questions I seek to answer in this work. (p. xvi) 3 See the features listed by Kevin Vallier on 1/17/11 at: http://publicreason.net/category/posts/reading-group/.
3 (1) Social morality understood as both rules and the practice -- is just a part of the ethical, and is distinct from that part which concerns ideals and perfectionist values. (p. 3) (2) The rules of social morality are moral rules applying to a large-scale moral order in which we often confront others as strangers what F.A. Hayek called The Great Society. the rules that govern our interactions when we know little about the other, except that she is a moral person. (p. 268) (3) The practice of social morality is said to be the foundation of social existence (p. 255) and to be necessary for cooperative social life. (p. 22, emphasis added) The necessity of the practice of directing imperatives has implications for what rules actually ground imperatives. (p. 22) I believe Jerry thinks that if a rule belongs to social morality, then the general adherence to the rule itself must be necessary for cooperative social life. (see pp. 22, 282) So to have the requisite concepts, and to be able to take some rule to belong to the rules of social morality, we must grasp a sophisticated distinction within the ethical. And we must grasp the conceptual connection between issuing an imperative which expresses the rule and the necessity of general adherence to that rule for social cooperation. But if this is required, then I am not sure that the notion of social morality will be in many people s vocabulary or conceptual repertoire. For I am not at all sure that when people take some rule to ground a moral imperative which they direct to others, they take that rule to be necessary for a social life that counts as cooperative. They may recognize that general adherence to the rule isn t necessary or essential for that. But they may blur the distinction within the ethical, believe that social life would just be better if people observed the rule, perhaps for perfectionist reasons, and direct an imperative that expresses it. This problem with the notion of morality stems from the third of the three additional features of social morality that I just listed. Jerry takes social morality to have that feature because of one of his most powerful animating ideas: that the contents of morality depend upon what human beings need morality for. 4 But though the insight is very illuminating, if we build the necessity claim into the concept of social morality by identifying social morality with rules that are needed for cooperation, we are forced to concede that many people lack the concept. In that case, it will be hard to see how people can take rules to belong to the rules of social morality and how the motivating problem of Jerry s project can properly be described. So perhaps it s better to think of things this way. The rules of social morality are social in part because they apply to social existence. Someone who takes a precept to belong to the rules of social morality takes it to apply to social existence. It seems clear enough that the concept of a rule which applies to social existence is widely shared, so there is no conceptual barrier to our motivating Jerry s project by saying that taking precepts to belong to social morality is something 4 For an especially clear and compelling statement, see p. 176. Jerry draws the epigraphs of this book from three thinkers who share the insight: Strawson, Hayek and Baier. As I read the book, I had the recurring thought that he could instead have chosen one of my own favorite pieces of moral philosophy, which also expresses that insight, a verse from the Gospel of Mark: The Sabbath was made for man and not man for the Sabbath. (2:27)
4 lots of people do. But the stronger claim that the rules of social morality are just those ethical precepts that are necessary to coordinate social existence is a very powerful conclusion that, if true, must follow from premises about public justification and about the nature of coordination and cooperation. It is not a claim that is built into or follows immediately from the meaning of social morality or that has to be grasped for people to have the concept. I said earlier that Jerry s project might seem to be motivated by the fact that participants in the practice of social morality are or can be mistaken about what precepts belong to the rules of social morality, and direct ungrounded imperatives to one another. I put off saying why their doing so is problematic and why their doing so raises questions of justification. I now want to return to those questions. To answer them, it will help to get a bit clearer on the parts of our social existence to which the rules of social morality taken to apply. According to the second of the three additional features of social morality, the rules of social morality are moral rules applying to a large-scale moral order in which we often confront others as strangers what F.A. Hayek called The Great Society. the rules that govern our interactions when we know little about the other, except that she is a moral person. (p. 268) If this feature is part of the concept of social morality, then someone who takes a precept to belong to social morality must take it to be such a rule. This may tempt us to read Jerry as saying that when someone takes a precept to belong to social morality, she takes it to be a rule which is social in this sense: it applies only to Hayek s Great Society, that it applies only to a large-scale moral order in which we often confront others as strangers, and that it govern[s] [only] our interactions when we know little about the other, except that she is a moral person. That is, it may tempt us to read Jerry as distinguishing social morality from the morality of marriage or friendship or special relationships and to suppose that we who engage in the practice of social morality take a different set of rules to ground the imperatives we address or the demands we make in those relationships. 5 But I do not think this is what Jerry wants to say. That he does not want to say it becomes clear, I think, when we return to the question of what motivates jerry s project. In an important passage in the preface, Jerry implies that someone involved in the practice of social morality: calls on morality to tell you what to do, and he will not simply shrug his shoulders and walk away if you ignore his demands. (p. xvi, emphasis added) Rather, he blames, punishes, is indignant, and so on at their refusal to comply. (p. xv) Jerry implies later that few of us have the strength of will to be un-phased by the prospect of incurring these sanctions. (pp. 383-84) Taken together, these passages suggest a way of describing the motivating problem of Jerry s project is and how the question of justification arises. The direction of imperatives that express rules we take to belong to social morality is often accompanied by acts or threats of coercion because penalties are often attached to violation of the imperatives. That, we might think, is the motivating problem. That this is the motivating problem seems to be confirmed by the fact that Jerry says [s]ocial morality raises problems similar to the traditional problems of liberal political philosophy. (p. 48) In both cases, we need to know under what conditions acts or threats 5 I think this is the way Kevin Vallier and Blain Neufeld read Jerry in their exchange of 1/28/11 at: http://publicreason.net/2011/01/17/opr-chi1-social-morality/#comments.
5 of coercion are justified. Jerry seems to address that question as it pertains to social morality by defending a constraint on rules which can be expressed to imperatives to coercion is attached. State coercion raises a problem for liberal political philosophy because such coercion is, for practical purposes, inescapable. Jerry would have the strongest case for his assertion of a similarity between that problem and the problems raised by the practice of social morality, and the strongest motivation for his project, if the sanctions attached to imperatives of social morality were similarly inescapable. One way he might argue that that they are inescapable is by arguing that they, or the imperatives to which they are attached, are pervasive. The argument that the imperatives and sanctions are pervasive will be much easier to make if participants in the practice of social morality generally take the rules of social morality to govern special relationships as well as relations with strangers and distant others. And that is just what Jerry seems to think. When he argues for the burdensomeness of sanctions attached to the imperatives which are addressed to us, he does not refer to the imperatives addressed to us by strangers (p. 268) and distant others. He says And if we thought that we would get a good talking to from our disapproving friends or employer, this would be a very significant deterrent to acting on our standards. (pp. 383-84, emphasis added) It may be that the true social morality consists of just those rules that have the second feature of social morality. That is, it may be that the true social morality consists of just those moral rules applying to a large-scale moral order in which we often confront others as strangers what F.A. Hayek called The Great Society. the rules that govern our interactions when we know little about the other, except that she is a moral person. (p. 268) And so it may be that the truth about social morality is that the first additional feature asserts just one of the important distinctions within the ethical. But as with the third additional feature so with the second, the claim that social morality has it must be a conclusion that follows from premises about public justification and cooperation, and not a feature that is built into the concept of social morality. Let me add parenthetically that I do not think Jerry s text forces us to impute this conclusion to him. For the passage which expresses the second additional feature of social morality does not say that the rules of social morality govern [only] our interactions when we know little about the other, except that she is a moral person. I have said that it is tempting to read it that way. But another way to read it is as intentionally leaving open the possibility that the rules of social morality apply and are taken to apply to large stretches of our social life, while drawing attention to the description of us under which the rules of social morality must be justified to us namely, as moral persons. 6 Our moral personality may be what enables us take part in Hayek s Great Society and in moral relations with strangers, but I think it is also engaged in special relationships. If that is right, then perhaps it is that in virtue of which the true rules of social morality apply to those relationships as well. 2. Still Another Feature of Social Morality The motivation of Jerry s project may now seem to be fairly clearly in view. We participate in an on-going practice of social morality. Our participation consists in this: As SM says, we direct imperatives to each other to engage in, or refrain from, certain lines of conduct. We may direct those imperatives to strangers or to distant others, but we also address them to our intimates and friends and employees. The direction of those imperatives comes with the implied threat of sanctions for their violation. Because of the large stretches of social life to which the rules of social morality are generally taken to apply, such threats and sanctions are inescapable. Because of the 6 See Gerald Gaus, The Moral Foundations of Liberal Neutrality, Contemporary Debates in Political Philosophy (Wiley-Blackwell, 2009), pp. 81-98, p. 87.
6 burdensomeness and inescapability of the threats and sanctions generally attached to imperatives, we need to see under what conditions we are justified in directing imperatives to one another. Jerry says much that suggest this way of thinking about his motivation, and I have drawn on passages that seem to support it. But Jerry says other things that suggest a different and, to my mind, a deeper and more interesting motivation. This motivation is connected not with what Jerry thinks makes social morality social, but with what he thinks makes it morality. Morality, Jerry writes, is about making demands on others. (p. 266) More precisely but less memorably, he says that [a]t the heart of social morality is a fundamental claim to authority over others. (p. 8) This latter remark adds still another feature to social morality. For SM says By social morality I mean the set of social-moral rules that require or prohibit action, and so ground moral imperatives that we direct to each other to engage in, or refrain from, certain lines of conduct. (p. 2) In light of his remark about the heart of social morality, I now think that what Jerry means by SM is not just, as I conjectured earlier and as the wording of SM suggests, that if I take some rule to belong to social morality, then I take it to ground a binding imperative which expresses it. I also take it to ground an authority of mine: I take myself to be authorized to direct that imperative to others and authorized to imply that they may justifiably be sanctioned for its violation. Jerry says this especially clearly in a recent paper. There he writes: If I decide that your action falls under the purview of social morality, I see it as my business that you refrain from -ing. I claim authority over you in the sense of claiming a standing to direct your action. 7 I read this passage as concerning, or as having implications for, what is involved in taking a rule that prohibits -ing to belong to social morality. So I take it as committing Jerry to: TC: If I take the rule that prohibits -ing to belong to social morality, then I see it as my business that you refrain from -ing. I claim authority over you in the sense of claiming a standing to direct your action. I shall refer to this claim again, and so it will be convenient to assign it a name. Let s name it after a passage that is much beloved of libertarians. Let s call it the Takings Clause. If Jerry does indeed accept the Takings Clause, then the motivating problem of his project is not that inescapable sanctions are generally attached to the imperatives we issue. Rather, it is agreed all around that we need some kind of rules to say how our life together should be carried on or how it would be good for our life to be carried on. According to the Takings Clause, the very act of taking a precept to be one of those rules entails that the taker claims authority to direct others to comply with the precept even, I think, in cases where the taker is not party to the transaction to which the precept is taken to apply. Authority claims always need to be justified. So the motivating problem of Jerry s project is that while people claim authority over others by the acts of taking rules to belong to social morality, they often are or can be wrong about when they are justified in claiming it. Jerry addresses this problem by identifying a constraint on rules that can justifiably be taken to belong to social morality, and so a constraint on justified authority claims. His project resembles 7 Gerald Gaus, Justification, Choice and Promise, p. 5.
7 then liberal political philosophy, not in assuming that threats of coercion have to be justified, but in assuming that authority claims have to be. But why do authority claims always need to be justified? To draw out the parallel with political theory, if someone on a radio-call in show claims to be the King of America, I don t ask if his authority-claim over me or his directives are justified. The question never crosses my mind. I simply ignore him. Similarly, if someone on a radio call-in show says that college professors and Rawlsian liberals are immoral, I don t ask if he has justified authority to direct my action. I simply ignore him. Grant for the moment that in taking a precept against being a college professor to belong to social morality, the caller is lodging an authority claim over me. I simply do not care about authority claims made over me by distant strangers. Jerry says early in the book that it is unacceptable to ignore moral demands. (p. 12) Such demands, he continues, cannot be blamelessly ignored. (p. 12) I am not sure why he says thinks I cannot blamelessly ignore the radio caller. It certainly seems to me that I can. But perhaps Jerry would say that I do not ignore him. What I really do when I think I ignore him is assume that his authority claim is unjustified. In doing so, Jerry might say, I simply assume that the precept against being a college professor is unjustified. I have therefore help myself to just the kind of constraint on public justification that Jerry is trying to identify and defend. If I have not ignored the radio caller then I do not know what kind of cases Jerry s claim about the unacceptability of ignoring moral demands is meant to prohibit. But let that pass. Though Jerry says that his book seek[s] to answer questions raised by our actual practice in which imperfect compliance is a central feature (p. xvi), I do not think we need cases of imperfect compliance like the radio caller to raise the questions and problems that really motivate Jerry s project. For even if the only authority claims that were ever made were justified, we would still want to understand what makes them so. If, as Jerry asserts, we need social morality to coordinate our social life and if, as the Takings Clause asserts, taking a precept to belong to social morality entails a claim of authority, then we would want to understand how authority is connected to our needs even if all such takings were justified. This points to another similarity between the problems of social morality and the traditional problems of liberal political philosophy (p. 48): in the analysis of social morality as in the analysis of social justice, perfect compliance theory is puzzling enough. 3. Is the Clause True? If I have read Jerry correctly, then the motivation of his project depends crucially upon the truth of the Takings Clause. But I am not altogether sure that the Clause is true. To see the reason for my doubts, let s consider a proposition that is equivalent to the Takings Clause, its contraposition: TC CP: If it s not the case that I see it as my business that you refrain from -ing if it s not the case that I claim authority over you in the sense of claiming a standing to direct your action then it s not the case that I take the rule that prohibits -ing to belong to social morality. I do not think TC CP is true. For suppose that the antecedent is true and that it s not the case that I claim authority over some person B with respect to his marital fidelity or claim standing to direct him in the conduct of his marriage. It doesn t seem to follow that I don t take rules prohibiting infidelity as belonging to social morality. Mightn t I take those rules to belong to social morality, but think that it falls to B s spouse H, or his friends, or his pastor, to direct his behavior and call
8 him to account for his infidelity? Mightn t I think that B wronged H by betraying her, but that it is not my business to tell him so? More generally: Most of us, I have supposed, have the concept of social morality. I suggested that we do not have the robust concept that Jerry introduces, but have granted that we have something of the concept even so. I am also supposing that for each of us, there are some precepts she takes to belong to social morality. Mightn t each of us also think that the practices of issuing imperatives to one another which express the precepts we take to belong to social morality, of directing one another s behavior and of calling one another to account for misbehavior, are governed by conventions which assign authority and responsibility to for doing these things to some people but not to others? If so, then the negation of the consequent of the Takings Clause can be true while the negation of the antecedent is false, and the Takings Clause itself is false. I think this line of reasoning also shows the falsity of the Takings Clause even if we grant Jerry the more robust concept of social morality and suppose that everyone has it. So suppose that for each person, there are precepts which he takes to belong to social morality because he thinks their general observance by distant others is necessary for social coordination. Suppose further that each person thinks social coordination is possible only if there are practices of directing others to observe those precepts and of calling them to account when they don t. Mightn t each person also think that society meets its need for these practices by devising conventions which apportion the labor of directing and calling to account, assigning that labor to intimates, friends and those in special social roles such as pastor and policeman? These considerations show that we need to amend the Takings Clause something Rawlsian liberals are accused of wanting to do anyway. 8 The Clause might be amended to read: TC : If I take the rule that prohibits -ing to belong to social morality, then I see it as someone s business that you refrain from -ing. I think someone can claim authority over you in the sense of claiming a standing to direct your action. The considerations that force this amendment raise a possibility that I want to pursue. Before I do so, let me just note that the plausibility of TC seems to me to turn on a deep question of what we might call moral phenomenology on which I believe philosophers are divided. I am sorry that I can only explain the division crudely, but it seems to me to be this. Jerry, I am supposing for the moment, regards the amendment to the Takings Clause as friendly and accepts the amended version. Other philosophers agree with him that we cannot take some precept to belong to social morality without at the same taking ourselves to be in the presence of authority, but they do not think that that authority is anybody s. Rather, they think, we cannot take a precept to belong to social morality without taking ourselves to be in the presence of the moral law. The authority we experience when we apprehend some precept as belonging to social morality is the authority of morality itself. Jerry puts aside inquiry into the sources of normativity, implying that it is too theoretical to bear on the questions that interest him. (p. 4) I conjecture that what Jerry really thinks is suggested by 8 See Leif Wenar, The Concept of Property and the Takings Clause, Columbia Law Review 97 (1997): 1923-46, p. 1934f.
9 another remark early in his book: Morality does not directly speak to us; it is other people who speak to us, asserting their view of morality as demands that we act as they see fit. (p. xvi) The problem with inquiry into the sources of normativity, he thinks, is that it is premised on denial of both versions of the Takings Clause and on the claim that morality does directly speak to us. Such inquiry begins with the thought that we cannot take ourselves to be subject to a moral precept without at the same time experiencing as Kant implied in the passage which stands at the head of my paper -- a kind of impersonal necessity, the source of which moral philosophy has to explain. If this is right, then Jerry s philosophical differences with, e.g. Chris Korsgaard, are not ultimately differences about the level of abstraction at which each thinks moral philosophy should operate. Rather, those differences can be traced to differences about the interpretation of primitive moral experience. I incline to the Korsgaardian interpretation. But I do not know how to settle these differences, or to determine whether the amended Takings Clause is right, except to see whose overall account of morality is most persuasive. To that end, let me return to the motivation of Jerry s project and the considerations that led to the amendment of the Takings Clause. 4, Second-Order Precepts The motivating problem of Jerry s project, I have argued, arises because people claim authority to direct the action of others and their directions express precepts that they take to belong to social morality. Jerry tries to identify the conditions under which such authority claims are justified. I have said that he does so by identifying a condition or constraint that precepts must satisfy if they are to belong to the true social morality. Then I am justified in issuing an imperative to someone not to smoke only if a precept prohibiting smoking under the circumstances satisfies the constraint. I am justified in issuing imperatives to others not to engage in certain kinds of sexual conduct only if a precept prohibiting such conduct satisfies the constraint. These precepts concerning smoking and sex, like the examples that occur throughout Jerry s book, are what we might call first-order precepts. They prescribe conduct, but not conduct constitutive of the practice of social morality itself. When I asked about the truth of the Takings Clause, I pointed out that the practice might be governed by conventions that govern that conduct by allocating responsibility for issuing imperatives and calling one another to account. Call these conventions second-order precepts. Let s consider the possibility of a system of second-order precepts that implements the amended version of the Takings Clause, a system that governs who can issue to directives to whom to do what. The possibility of such a system suggests another way to address the motivating problem of Jerry s project. Instead of looking into the justifiability of first-order precepts, we might argue that authority to direct another s conduct has to be conferred by a justified system of second-order precepts, and we can look into what system of second-order precepts is justified. If it turns out that I ought not issue directives to B about his smoking or his sexual behavior, that will be because publicly justified set of second-order precepts would not allow people in my position to do that. And if no one is to issue directives to anyone else about certain behaviors, that will be because publicly justified second-order precepts would not allow anyone to issue such imperatives. On the proposal I am now considering, nothing about the first-order content of morality is entailed by facts about what imperatives can and cannot be justifiably directed to others. We have conventions according to which there are some questions we do not direct to others. We do not, for example, inquire about the latest occupational successes of others ne er-do-well sons. Nothing follows about the morality of being a ne er-do-well. Perhaps justifiable conventions according to which there are imperatives we do not direct imperatives to others are similar. Perhaps pressing the imperatives, like pressing certain inquiries, is simply not done. It is in poor taste. If so, no
10 more would follow about the morality of the behavior about which we refrain from directing than follows about the morality of conduct we refrain from asking about. I shall not go so far as to draw that conclusion. But given the way Jerry understands public justification, I am drawn to the attempt to address Jerry s motivating problem by asking about the justifiability of second- rather than of first-order precepts. I am uncomfortable with the unqualified identification of morality, or some part of morality, with the set precepts that can be publicly justified in Jerry s sense. I shall try to make the nature and source of the discomfort clearer, and to show how it might be alleviated if Jerry s motivating problem is addressed in the way I have suggested. I shall do so by posing a question the phrasing of which is suggested by Jerry s assertion of a similarity between the problem posed by social morality and problems faced by liberal political philosophy. 5. Justification and Legitimacy Even in a just society, the law may permit what some citizens think justice forbids. To take one of Rawls s examples, a well-ordered society may adopt a liberal abortion regime. Some members of that society may believe that an abortion commits an injustice against the fetus, so they believe that abortion is a legally permissible injustice. This case raises a question about which I think liberal political philosophy should be deeply concerned, for reasons I shall not go into here: what conclusions are these people to draw about the moral permissibility of abortion from the fact that abortion is legally permissible? Are they to think that permissibility is on the side of the law, so they are to believe abortion is unjust by morally permissible? Are they to think that permissibility follows justice, so that the law permits something which is morally wrong? The first option strikes me as incoherent as it stands. Without further explanation, I do not see how an action could be unjust but permissible, for the unqualified claim that an action is unjust seems to me to entail that one is under at least a prima facie obligation to refrain from performing it. One way of removing the incoherence would be to distinguish two realms of morality. The idea would be something like this: Citizens of a pluralistic society will have diverse moralities which they use to govern their own lives, according to some of which abortion is unjust. Liberal political philosophy recognizes this. But it also holds that our common life must be governed by laws which are mutually justifiable. Since a blanket prohibition on abortion could not be mutually justified, the law must permit abortion. And since the must in the premise our common life must be governed by laws which are mutually justifiable is a moral must, the legal permissibility of abortion follows from moral imperative. So, the liberal political philosopher might be thought to conclude, there is a sense of morally permissible in which citizens have to recognize abortion as morally permissible after all. It is wrong according to one moral code but not wrong according to another. That liberals bifurcate morality in this way is suggested by the contrast which is sometimes drawn between political morality or public morality and private morality. I think this way of handling the case is a mistake, since the bifurcation of morality is a controversial philosophical move at odds with many citizens moral views. Many citizens may think that if moral prohibitions are valid, as they take those of their comprehensive views to be, then the
11 prohibited actions are unqualifiedly wrong and therefore unqualifiedly impermissible, at least prima facie. They therefore disagree with the claim that there are two senses of morally wrong and morally permissible. If liberals want to resist making such moves, they ought instead to handle the case in the second way. I assume they do want to avoid making so controversial a move, and I think can handle Rawls s example by exercising the second option. On the second option as on the first, our common life must be governed by laws which are mutually justifiable. A well-ordered society satisfies that condition. So the citizens of Rawls s example, who live in a well-ordered society, can believe that a liberal abortion law permits behavior which is morally wrong, perhaps gravely wrong, but they are to think that it the law -- is justifiable even so. The question is how this is possible. That question becomes more troubling if we assume that a law which permits grave injustices is an unjust law. For then the citizens in the example are to regard the law as justifiable even though it is unjust. How can that be? I take the Rawlsian liberal response to be that justice is not the only justificatory concept available and that just is not the only justificatory predicate that can be ascribed to a law. If a justificatory concept can be found that is less demanding than justice, then a law could be, and could be regarded as, justified even if it allows acts that unjust by some people s lights and even if they regard the law as, in that respect, an unjust law. I take it that legitimacy is such a concept. To show that a law is legitimate, or that its enactment was a legitimate exercise of political power, is to show that the law enjoys a kind of justification even if it is not just. Moreover, because of legitimacy s connections which I assume here with the government s right to command and with citizen s duties of obedience and non-resistance, the justification associated with legitimacy is moral justification. To show that a law is legitimate is therefore to show that it enjoys a kind of moral justification which is weaker than justice and which is compatible with its being unjust. So according to this second way of handling Rawls s example, the liberal does not say abortion is permitted by political morality because she bifurcates morality in a way that allows public and private senses of morally permissible to come apart. Rather, she says it because liberal political philosophy makes essential use of a moral concept, namely legitimate, which picks out one kind of moral justifiability that, it is hoped, even dissenters in the example think can be enjoyed by liberal abortion laws. So the concept of legitimacy enables the liberal political philosopher to salvage the claims that laws are mutually justifiable and have some moral claim on us without claiming that citizens are to regard the conduct they permit as morally permissible. Earlier, I quoted Jerry as saying [s]ocial morality raises problems similar to the traditional problems of liberal political philosophy. (p. 48) I have said that the liberal political philosopher faces a problem because mutually justifiable laws permit conduct that some citizens regard as morally impermissible. I have tried to show how the concept of legitimacy helps her address that problem. I believe that Jerry faces a similar problem, call it the permissibility problem. Rules of social morality which are publicly justified in his sense will permit behavior that some members of society may judge to be immoral. How are they to regard that behavior? Are they to think that permissibility is on the side of social morality, so they are to believe that conduct allowed by social morality is immoral but morally permissible? Are they to think that permissibility follows their private judgment, so that social morality permits conduct which is morally wrong? Here as before, I take the first option to be incoherent as it stands.
12 Jerry might argue that those who regard conduct as impermissible should change their view once they see that prohibitions on the conduct cannot be publicly justified in his sense. The difficulty with this response is that what prohibitions can and cannot be publicly justified depends upon the content of other people s evaluative sets. I may regard some of those people as deeply mistaken about morality. Suppose that I regard -ing as morally wrong and that I can produce reasons that I believe support the claim that it is. It is very hard to see why I should change my view about the truth-value of -ing is morally impermissible because other people even other reasonable people disagree with me on the basis of a comprehensive moral doctrine that I do not find convincing or even attractive. It is especially hard to see why I should do that if I am willing to abide by a set of justifiable conventions regarding my assertion of the sentences -ing is morally impermissible, You ought not and so on. Another way Jerry might handle the permissibility problem would be to adopt a variant of the bifurcation strategy. Jerry might assert another distinction within the ethical, perhaps congruent with the distinction drawn by what I called the first additional feature of social morality. He might say that each person is to regard social morality as one part of morality and her own standards for evaluating rightness, wrongness and permissibility of action as constituting another. He might then assert that moral permissibility has to be seen as part-dependent. We are to regard -ing as morally impermissible insofar as it is prohibited by our private morality and as morally permissible insofar as it is permitted by social morality. Jerry does not refer to private morality, but some of his turns of phrase suggest that the bifurcation, or better the n-furcation of morality into social and private moralities is not foreign to his thinking. He quotes with evident approval Kurt Baier s remark that a society s morality is the joint product of the morality of its individual members. (p. 389) And he speaks in his own voice of trying to adjudicate between rival views of morality[.] (p. 406) Perhaps with a little pushing, these remarks can be taken to suggest some sympathy for the thoughts that there are private and social moralities, and that the distinction can be pressed into service to handle the permissibility problem. But I do not think Jerry should rely on the n-furcation strategy. For one thing, the strategy would be highly controversial. Jerry may not have the political liberal s in-principle aversion to meta-ethical controversy as such, but he also may not want to fly in the face of our considered judgments. I think the part-dependence required by the n-furcation strategy would strike many people as mistaken or incoherent. In assessing my assertion, we should not be misled by the apparent relativism of many of our students. Their relativism consists in, or implies, that permissibility is agent-dependent: the same conduct can be permissible for others but not for me. Agent-dependence is not part-dependence. For part-dependence implies that the same conduct is impermissible for all agents by one part of morality and permissible for all agents according to another part. Once we see what part-dependence implies, we can see a puzzle that besets the n-furcation strategy. Suppose that social morality permits -ing while my private morality does not. Then if others, I may not reproach them because their conduct is permitted by social morality. So in the second- and third-person cases, the reasons social morality gives me not to reproach trump the reasons private morality gives me to reproach. But now suppose that I. Should I reproach myself? It would seem not, since social morality applies to me as well as to everyone else, and - ing is permitted by social morality. But -ing is also forbidden by my private morality and if I do
13 not reproach even myself for -ing, then I do not really hold my private morality at all. 9 So I should reproach myself because though -ing is permitted by social morality it is forbidden by private morality. In the first-person case, the reasons social morality provides me not to reproach are trumped by the reasons private morality gives me to reproach, even though social morality applies to me as it does to others. Because of the way social morality is publicly justified on Jerry s view, we might think that social morality is the source of what are often called agent-neutral reasons. But in fact there seems to be a kind of agent-relativity to the reasons provided by social morality. This is puzzling. I do not understand the reasons provided by social morality clearly enough to see why this is so. Jerry could address the permissibility problem by breaking the link between the moral permissibility of -ing and its being permitted by social morality. Taking social morality to include secondorder precepts can help him do that. For according to the proposal entertained earlier, to say that -ing is permitted by social morality is simply to say that the conventions or second-order precepts which govern our practices do not authorize anyone to call another to account for -ing. But as we saw earlier, is that this way of addressing the problem raises questions about social morality is a morality at all, or whether it is more like a code of etiquette. The similarities between liberal political philosophy and Jerry s project suggest a way of salvaging the claim that social morality is morality properly so called. I have said liberal political philosophy is able to accommodate talk of political morality, while eschewing the bifurcation strategy, because it makes essential use of a kind of moral justification that attaches to laws but is weaker than justice. Suppose either that we can find some justificatory concept which can do for Jerry s project what the concept of legitimacy does for liberal political philosophy, or that we can extend or transplant the concept of legitimacy from the political realm to the social. For simplicity s sake, I suppose the latter. Then Jerry could maintain that what regulates and is taken to regulate our social existence (p. 255) is set of first- and second-order precepts that enjoys legitimacy, perhaps because it solves coordination problems. As with legitimate laws so with precepts in the legitimate set, Jerry could maintain that everyone has a moral duty to go along with them. But he need not maintain that that is because the firstorder precepts themselves track what everyone takes or ought to take as the demands and permissions of morality. Because he need not maintain that the first-order precepts track in this way, the fact that the precepts of social morality permit some conduct does not raise the permissibility problem or commit Jerry to the conclusion that the permitted conduct should be taken to be morally permissible. It only shows that a set of precepts which enjoys the relevant sort of moral justification does not authorize anyone to issue imperatives prohibiting it. By extending the notion of legitimacy from the political, we can accommodate the claim that social morality is morality, in much the same way that the liberal political philosopher accommodates talk of political morality. Social morality is morality, not because it is an independent part of morality that provides reasons to reproach and refrain which are agent-relative in the puzzling way I spoke of a moment ago, but because it enjoys legitimacy and legitimacy is a kind of justification that is moral. 9 Morris Udall, the wit who represented part of Arizona in Congress for almost 30 years, once said of a prominent Catholic politician His religion is so private he won t even impose it on himself. If you get the joke, you get the point.
14 My suggestion that legitimacy be extended or transplanted from the political to the moral may not be viable. A lot of work would be required to see whether it is. And it may not be a suggestion that Jerry would welcome. The suggestion is, I believe, consistent with the amended version of the Takings Clause, though I shall not try to show that. But even if it is, that may not be enough. For Jerry implies in one passage that justified demands of social morality are to be acknowledged as moral demands. (p. 262, emphasis added) In another, he describes social morality as a moral code. (pp. 398ff.) The tenor of these remarks suggests that he might find my way of accommodating the description of social morality as a morality weak and unsatisfying. I think morality is an honorific. I want to guard it jealously and apply it sparingly. I do not want the precepts that specify moral duties and permissions to depend upon full information about the eligible sets of those who might be quite wrong, even if they are reasonable. Jerry may not regard morality as an honorific, but he too wants to apply the term sparingly. He does not want to attach it to sets of precepts that are inaccessible to some (p. 235) or that are backed only by reasons others cannot see. (pp. 16, 20, 322) Perhaps that is why he speaks of our evaluative standards (pp. 276ff.) and our private judgment about the demands of morality (p. 22) rather than of private morality or, as Baier does, of the moralit[ies] of [society s] individual members (p. 389). Claims about what reasons are and are not accessible, and about reasons the force of which others can and cannot see, have been at the heart of debates about public reasoning for a very long time. Despite their centrality, I believe that the conditions of accessibility, and the implications of inaccessibility, are not yet well understood. Those beliefs, and my differences with Jerry about them, are the ultimate sources of my questions about this terrific book. Paul Weithman Department of Philosophy University of Notre Dame