First Things

An Inquiry into the First Principles of Morals and Justice

Hadley Arkes

• Publisher: Princeton University Press
• Year: 2020
• ISBN:
  9780691213897
• Topic: Philosophy
• Subtopic: Political Philosophy

This book restores to us an understanding that was once settled in the "moral sciences": that there are propositions, in morals and law, which are not only true but which cannot be otherwise. It was understood in the past that, in morals or in mathematics, our knowledge begins with certain axioms that must hold true of necessity; that the principles drawn from these axioms hold true universally, unaffected by variations in local "cultures"; and that the presence of these axioms makes it possible to have, in the domain of morals, some right answers. Hadley Arkes restates the grounds of that older understanding and unfolds its implications for the most vexing political problems of our day.The author turns first to the classic debate between Abraham Lincoln and Stephen Douglas. After establishing the groundwork and properties of moral propositions, he traces their application in such issues as selective conscientious objection, justifications for war, the war in Vietnam, a nation's obligation to intervene abroad, the notion of supererogatory acts, the claims of "privacy, " and the problem of abortion.

PART ONE

THE GROUNDWORK OF MORAL JUDGMENT

II

ON THE CAPACITY FOR MORALS AND THE ORIGINS OF LAW

Aristotle assumed, without saying, what modern political science would raise to the point of a more explicit recognition: that it is the presence of “law” or authority which marks the character of a polity. In the modern vernacular, the “political system” is that association which has the authority to make and enforce decisions regarded as binding for a society.¹ It is the attribute of law, of course, that it binds; it states a rule that will be regarded as compulsory for all who come within its jurisdiction. Some commentators have suggested that the connection between law and “obligation” traces back to a common root in the Latin ligare (to bind). That is why the notion of “obligation” conveys the sense of the moral stakes—and the sources of bitter divisiveness—that are bound up with the nature of law. It is the peculiarity of law that it may bind, may create an obligation to obey, even on the part of people who had no agency in making the law and who may be hostile to its maxims. For that reason, the obligation to the law must have a different source from the obligation that arises, say, out of a promise tendered personally in a contract or agreement. As we shall see, the obligation to the law may properly arise only from a moral principle that underlies the law and that compels respect or obedience, quite apart from the feelings anyone may bear.

But the essential logic of law is widely understood, even if its moral properties and requirements are not commonly recognized. Almost everyone understands that when we pass a law which forbids discrimination on the basis of race in places of public accommodation, we are not saying, “This measure reflects the moral understandings held by a majority of people in this country, and everyone who is struck by its moral force ought to join us in obeying it.” We are saying, rather, that people are obliged to obey the law, even if it runs counter to what they may regard as their “moral” convictions. The logic of the law, then, is a logic of commitment, and as I hope to make clear in a moment, the law draws its properties here from the logic of morals. The law displaces private notions of good and bad in favor of moral understandings that are held to be universally valid—and therefore binding on everyone within the society. That connection was understood at the beginning by Aristotle: the defining feature of a polity was the presence of an authority that could lawfully govern the whole of society, and that state of affairs could be justified only if one could get clear on the necessary connection between the logic of law and the logic of morals.

Aristotle observed in the opening section of the Politics that the polity is a “natural” association for human beings (“it is evident,” he wrote, “that the polis [or polity] belongs to the class of things that exist by nature, and that man is by nature an animal intended to live in a polis”²). Like the family, the polity was an outgrowth or an emanation of human nature, and so the question was, From what part of our nature did the polity arise? Aristotle remarked that the polity was “prior in the order of nature to the family and the individual” and that, among all other associations, such as the family, the polis was the most “sovereign and inclusive association,” the “completion of associations existing by nature.”³ With that, Aristotle seemed to suggest that the polity was not only a reflection of human nature, but that it was a reflection of the highest parts of human nature, the parts that deserved to be “sovereign” over the rest.

Aristotle was also careful to mention that the condition of living in a polity was not possible or necessary for all kinds of beings. For animals it was not possible, and for gods it was not necessary. It was both possible and necessary for human beings—which meant that the polity was an emanation not only from the things that were highest in human nature, but from the things that were most distinctively human. Aristotle sought to mark off the things that were distinctively human by distinguishing human things from the things that were subhuman or superhuman. He began with the separation between the human and the subhuman—with the distinction between men and animals.

In drawing the distinction, Aristotle took as the decisive point that “man alone of the animals is furnished with the faculty of language.” But Aristotle’s meaning here may easily be deflected as “language” is taken to mean “speech,” and as speech is converted into “communication.” Very soon it will be suggested by an aspiring analyst that animals, too, are capable of “communicating”: they may indicate their likes or dislikes, their desire to be fed and comforted. In the same vein it has been suggested that inanimate things, such as clouds, may have “language”: when clouds darken, they may “communicate” their “intention” to rain.

And yet, as Aristotle made clear, this was not the kind of language or speech he had in mind, and it may even be argued that it is not really speech that is truly decisive here after all, but the capacity marked by the kind of language that is distinctively human. As Aristotle put it, animals may emit sounds to indicate pleasure or pain, but human beings may do far more than that. Humans can make use of their language “to declare what is advantageous and what is the reverse, and . . . to declare what is just and what is unjust.”⁴ What Aristotle had in mind, then, was not really language itself, but language as a necessary means of giving reasons over matters of right and wrong. The same point was made in a telling way by the redoubtable Thomas Reid, the eighteenth-century philosopher: “A fox is said to use stratagems, but he cannot lie; because he cannot give his testimony, or plight his veracity. A dog is said to be faithful to his master; but no more is meant but that he is affectionate, for he never came under any engagement. I see no evidence that any brute animal is capable of either giving testimony or making a promise.”⁵

It was argued to me recently by a sociobiologist that animals do indeed lie or deceive. A case was recalled in which a mother fox made sounds to simulate the noise of enemies; in that way, she managed to scare off her own offspring and keep them from grabbing away the food she had captured. But although the mother fox emitted sounds for the sake of deceiving, she did not “lie,” and the point may be made more precisely in this way: when animals deceive and they are confronted with their own acts of deception, we do not expect them to give excuses. It is inconceivable, in other words, that they could give reasons to justify what they have done, and that capacity to offer justifications is really at the heart of what Aristotle understood, in this case, by the faculty of “speech.” It will become evident later that, in any strict meaning, the notion of acting morally is bound up with the exercise of giving reasons. And by “giving reasons,” of course, we would not mean merely reporting on one’s motives (“I hit him because I felt the need for excitement”), but offering justifications. To say that human beings alone among animals have the capacity to give reasons over matters of right and wrong is virtually to say that human beings alone have the capacity for morals. Therefore, if the very nature of human beings makes it necessary and fitting that humans live in an association governed by law, this is not because we are the only creatures capable of generating lyrics or playful epigrams. The necessity of law and polity arise out of the unique capacity of human beings for moral judgment.

Aristotle was not fully explicit on the connection between the two—between the capacity for morals and the existence of polity—but his writing left little doubt that this connection was indeed established in his own understanding. “It is the peculiarity of man,” he wrote, “in comparison with the rest of the animal world, that he alone possesses a perception of good and evil, of the just and the unjust; . . . and it is association in [a common perception] of these things which makes a family and a polis.”⁶ Hence the classic understanding that the polity is, most essentially, an ethical association: it is an association of people who are joined together by a sense of common ends; who found their lives together on procedures they regard, by and large, as just; and whose highest end is to cultivate an understanding of justice and morals among their own members. The task of the polity is not strictly to prevent pain or encourage the accumulation of wealth, because the polity would default on its commitments here every time it would visit punishment on wrongdoers or frustrate the projects of criminals. The responsibility of the political order is to preserve people, as much as possible, from suffering harm unjustly—which is to say that the mission of the polity is to render justice. And as it does that, it teaches something to its members in a public way about the principles on which it acts, the principles that define what is right and wrong, just and unjust.

In the classic understanding, the polity engages in moral teaching through the law. Just why that kind of teaching should be implicit in law becomes clear only when we understand the way in which the logic of morals meshes with the logic of law. At that point it will become clear, also, that it is the existence of morals itself which virtually entails the existence of law or polity. But before we explain that connection between the logic of morals and the logic of law, it is worth lingering for a moment with Aristotle’s own elaboration of the problem. For one thing, it makes his own intention unmistakable; but it also manages to bring out, from a number of different angles, the implications that arise when the polity is understood, most essentially, as a moral association.

WHEN THE QUESTION is raised in our own time about the origins of polity, something absorbed from our current public philosophy manages to produce answers that are remarkably uniform. Whether the account is offered by the young or the old, by students or jurists, the reasons for having a political order are usually cast along two lines of justification: (1) to provide security against assaults on our lives or property, and (2) to establish the conditions that permit commerce to go forward and advance the material condition of our lives. This construction of the ends of political life would fit rather comfortably with the understanding held by Thomas Hobbes, and the coincidence is not accidental. These answers to the question are proffered by the “children” of a modern liberal political order, and Hobbes was one of the principal figures in the revolution in political philosophy that eventually shaped the modern political order. He was one of the leaders, that is, in the effort to scale down the ends of politics, to remove from political life those questions about the highest moral ends which proved so enduringly contentious, and which were so often productive of civil war. When the understanding of the age has been supplied by Hobbes, we may expect to have blocked from our view the understandings that came before Hobbes. And so it usually comes as a surprise to discover that Aristotle had anticipated, about two thousand years earlier, the kinds of arguments that would be made by Hobbes, and that he also managed to refute them.

Aristotle insisted that the polity could not be conceived merely as an “alliance” to provide for “mutual defense against all injury, or to ease exchange and promote economic intercourse.” If those ends were sufficient, then “the Etruscans and the Carthaginians [who are united by such bonds] would be in the position of belonging to a single state; and the same would be true of all peoples who have commercial treaties with one another.” That is to say, these rather modest ends could be achieved without the presence of law; they could be achieved quite often through the “treaties” that were contracted by two sovereign political orders, which made no pretense of sharing the same principles and subscribing to the same understandings of justice. In fact, these ends may be sought, in part, by enemies in a war. During the Second World War, the United States and Germany honored an informal agreement not to use poison gas on one another. More recently, the United States and the Soviet Union have entered into a series of treaties to reduce the risk of assault on one another (through the limitation of strategic arms), and for the purpose of encouraging commercial exchange. If the modern understanding were adequate, and those limited ends were sufficient to define the purposes of a polity, one would have to conclude that the United States and the Soviet Union had become, in effect, incorporated in the same polity. In that event, citizens of the United States would stand on no different plane, in relation to one another, from that on which they stand in relation to subjects of the Soviet Union. For if there are no other ends in politics apart from reducing the risk of assault and promoting commercial exchange, there would be no purpose contained in the political association of Americans that is not essentially contained in their association (through treaties) with the subjects of the Soviet state.

At the same time it would be evident that there would be no need for “law” in governing relations among individuals within the same society. The agreements fashioned between the United States and Germany (or between the United States and the Soviet Union) arose out of the self-interest of each party, and it was clear that the agreements would be preserved only so long as they were thought to serve the interests of the parties. In a similar way, the ends of providing “mutual defense against all injury” and promoting “economic intercourse” could be pursued within a society through the domestic equivalent of treaties: i.e., through a series of “contracts” that were entered into by individuals and corporations. People may be free, as they are now, to form mutual protective associations and hire their own police forces; they may be free to make contracts for the purpose of promoting trade. Neither of these purposes strictly requires the presence of law. The agreements arise out of self-interest, and like the treaties between sovereign states, their validity may be understood to rest on the enduring self-interest of the parties in preserving these relations of reciprocity.

The fact that contracts are enforced by law in our society does not mean that there is anything in the notion of a contract itself that requires the presence of law. If we have added the force of law to support contracts, that is because we recognize an “obligation” to respect certain promises even when that commitment no longer serves the self-interest of the person who made the original promise. In other words, the law enters for the sake of enforcing a rule of right and wrong whose validity no longer depends entirely on the self-interest of the parties. But to speak of rules of that kind is to recognize, again, the logic of “morals.” And if morals exist, then people may be committed on many other matters that run counter to their self-interest, even when they have not personally “contracted” for those commitments. But if the only purpose of the polity were to offer protection against assaults and to promote commercial exchange, there would be nothing in those ends that contained any necessary moral significance. An association committed solely to those ends may still not be disposed to recognize any rule of action that transcends self-interest. Therefore, it could never have any cause or justification for annexing to itself the authority of law. That is in fact the understanding that must govern the “association” of countries like the United States and the Soviet Union, which are divided in the most radical way in their understanding of the principles of justice. But the relations between citizens within the United States cannot be likened to the relations arising by treaty between the United States and the Soviet Union without removing from those relations the commitments which reflect the distinctly moral underst...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• I. Introduction
• Part One The Groundwork of Moral Judgment
• Part Two Cases and Applications
• Index