Moral Universalism and Pluralism

NOMOS XLIX

Melissa S. Williams, Henry S. Richardson

• Publisher: NYU Press
• Year: 2008
• ISBN:
  9780814777206
• Topic: Philosophy
• Subtopic: Political Philosophy

Moral universalism, or the idea that some system of ethics applies to all people regardless of race, color, nationality, religion, or culture, must have a plurality over which to range — a plurality of diverse persons, nations, jurisdictions, or localities over which morality asserts a universal authority. The contributors to Moral Universalism and Pluralism, the latest volume in the NOMOS series, investigate the idea that, far from denying the existence of such pluralities, moral universalism presupposes it. At the same time, the search for universally valid principles of morality is deeply challenged by diversity. The fact of pluralism presses us to explore how universalist principles interact with ethical, political, and social particularisms. These important essays refuse the answer that particularisms should simply be made to conform to universal principles, as if morality were a mold into which the diverse matter of human society and culture could be pressed. Rather, the authors bring philosophical, legal and political perspectives to bear on the core questions: Which forms of pluralism are conceptually compatible with moral universalism, and which ones can be accommodated in a politically stable way? Can pluralism generate innovations in understandings of moral duty? How is convergence on the validity of legal and moral authority possible in circumstances of pluralism? As the contributors to the book demonstrate in a wide variety of ways, these normative, conceptual, and political questions deeply intertwine.

Contributors: Kenneth Baynes, William A. Galston, Barbara Herman, F. M. Kamm, Benedict Kingsbury, Frank I. Michelman, William E. Scheuerman, Gopal Sreenivasan, Daniel Weinstock, and Robin West.

1
CONTINGENCY IN OBLIGATION

BARBARA HERMAN

This paper begins with an exploration of a set of tensions that arise between some ambitions of moral theory and the role of morality in the regulation and construction of ordinary life. It ends with a conjecture about moral justification in a moment of radical social and constitutional transition, and a challenge to the view that when such moments are politically necessary they may be normatively discontinuous with morality. The route from beginning to end is by way of an account of various kinds of contingent obligations. The idea is that in coming to terms with contingency in obligation within morality we acquire resources to extend the reach of moral justification across the putative gap between morality and political necessity.

An important strand of modern moral theory aspires to capture the connected standards of universality of rule or principle and the unconditional nature of obligation. This can come to be regarded as the source of an ideal of sorts: that there be universality in the content of obligation as well.¹ Our moral lives, by contrast, are run through with obligations that are contingent, in form as well as content, specific to here and now. We are answerable to moral demands that arise from evolving institutions as well from the vagaries of human life. One response from the side of theory might find our moral lives to that degree imperfect. I doubt that could be right. A different response would take the measure of the contingency as a challenge to the ambitions of moral theory.² Once we appreciate the many different ways in which obligations are contingent, where things genuinely could have been otherwise, it might be wondered how we could support the claim of objectivity thought necessary for the unconditionality of obligation. In some cases the answer is easy, but not in all. My plan is to approach the topic of contingency in obligation in the spirit of this challenge, examining contested claims from the bottom up. I regard the ways we engage with morality in both ordinary and unusual circumstances as providing data, and adopt the working hypothesis that some of the difficulties we encounter may have their source in the ambitions of moral theory, or in the way we interpret them, rather than in the facts of moral life. Reversing the angle of inquiry can often reveal occluded aspects of things; in this case, one hoped-for effect of the shift is some increased insight into the conditions that can give rise to moral obligations.

Some of the questions I will consider may appear more empirical than philosophical. This oddity of method is appropriate to the subject: ethics is a boundary discipline, beholden both to its internal standards (of correctness in judgment and action) as well as to the conditions of the practical world it orders. This can leave it open, in particular cases, to contest which sort of question we ought to be asking.

Consider, in this light, an initial piece of data and the consequences that flow from it for moral theory. Knowing in advance where our obligations lie, what claims of duty we may encounter, is not just practically useful for planning, but essential—arguably necessary—for living a coherent life.³ If compelling moral demands, personal or impersonal, may be lying in wait for us around any corner, we would have to set ourselves to anticipate and manage them; and if we cannot know in advance what they are, it is reasonable to think even the best of us would be rendered less able to invest ourselves, our energy, and attention in the projects and relationships that make life worthwhile. A great deal of practical uncertainty of any sort tends to be bad for us; moral uncertainty is especially problematic because moral demands, when they do show up, can override other concerns. This fact, on its own, pushes moral life to be conservative, resistant to change. And because most of us live locally, embedded in complex social and institutional networks, the conservative content of morality that we encounter will also often be local: promises are to be made this way, help to be offered like that.

These features of moral life—that it resists change and has a local face—have other sources as well. Morality is important in and to our lives: it is to be maintained against strong passions, and it can require the sacrifice of valued interests. Such importance would be belied if morality were inconstant or readily changed.⁴ And since it is part of morality’s work to mold and direct institutions and relationships, it must appear in a form that fits with what they are locally like, else it would not be able to provide the constancy of direction that is among the conditions of flourishing for both institutions and individuals.

But the story of what we want from morality—the kind of thing we want it to be—contains elements that suggest the constancy or stability of morality and its local face may not be in total harmony. We might want the stability of morality to arise not from its pragmatic encounter with local mores or our psychological needs, but to reflect the fact that it tracks or expresses some objective truth about the way things ought to be. The local aspect of lived morality suggests, if not full-blown relativism, something other than the universality of moral principle that is often regarded as the telltale of objectivity.

There is also the matter of moral correction and moral change (they are not the same). One might think that the more local the shape of our moral understanding, the more likely it is to be wrong, in large ways and small. This would create problems at different levels. There is the potential challenge the occurrence of local error sets for moral stability (assuming errors discovered are things to be corrected). But also, the very unavoidability of local error might make one think that the project of looking at “lived morality” cannot belong to philosophical inquiry. At best, perhaps, it belongs to its less-formal department of engineering or office of pragmatics—applied ethics in a literal sense. But is this right? Inquiry directed at determining correct moral principles and standards is certainly sharply different from a project of understanding the conditions needed for agents in actual social settings to absorb morality and negotiate moral requirements. But why think it follows that the latter kind of inquiry is normatively, and so philosophically, limited?

Suppose that the Doctrine of the Double Effect is a true principle of permissibility (harms that arise as unintended but foreseen effects of overall beneficial action count less than they would if intended). The lesson of double effect would be lost in a moral space that was dependent on strict performance standards (imagine a society in which traditional forms of action play a central and extensive role in social life). Where trust depends on external signs, claiming that one’s intention was not directly engaged with a harm caused may not be a credible way to mark a moral difference.⁵ But even if this were a social or psychological fact, it would not challenge the correctness of the doctrine’s standard. What is left to ask is whether it is necessarily a good thing to have (or bad to lack) the doctrine playing a significant role in moral practice. How could that be a philosophical question? One might equally ask: How could it be anything else? It is certainly not an empirical or sociological question (“a good thing” in what sense?). It is a question about the contingency of moral content and its significance for claims of obligation. I don’t see how we can understand what morality is about without answering it.

If one of the projects of morality is to make the world different, more habitable, more ordered, shaped by our understanding of what is right and good, then the situated agent, living in some specific social space, has to be in the forefront of philosophical reflection. Against an assumed background of objective moral principle, we will ask agent-centered epistemological questions: How should we decide what to do, how to be, given where we now find ourselves? There is precedent for asking the question this way in Kant: morality as a philosophical subject must have its pure or rational part, where we investigate the nature of its authority and the objective principles that lie at its foundation, and it must have an empirical part, where we come to grasp what we are to be like and what we are to do—here and now, and toward the future.⁶ But then we do need to make philosophical (as well as practical) space for thinking about moral correction and change, and so find a way to manage the contingency in obligation that results.

As we shall see, not all contingency in obligation raises problems. Sometimes the contingency is in secondary principles or meta-rules of response to moral failure, but there is unconditional obligation at the ground level for agents acting. Less easy to accommodate would be ground-level obligations that impose significant burdens but that arise in ways that cannot be anticipated: where the kind of thing we may be required to do is not in or implied by our lexicon of duties.⁷

I think there are difficult obligations of this kind, and that they come about chiefly in conditions where creative solutions to moral difficulties are needed or attempted, often in the space between individual morality and politics. At the limit, there are occasions where the morally innovative or improvisatory acts of some can obligate all. Such a class of obligations would raise questions at many levels: about the closure of moral theory, about the stability conditions for coherent moral action and character, about the conditions of legitimacy for the creation of new obligations, and about their justification.

In what follows, I start out by describing some of the relevant data about our moral lives and circumstances that include the easier to tolerate aspects of contingency in obligation. After canvassing a range of harder cases and the resources morality requires to manage them, I take up the more radical idea of allowing for moral improvisation in moral theory and deliberative reflection. This will in turn provide a framework for examining the very different kind of contingency where political necessity can seem to override or supplant the authority of moral justification. I approach this topic by way of a real case: the obligations that arose with the creation of the South African Truth and Reconciliation Commission. Although the context is political—the establishment of a new constitutional community in post-apartheid South Africa—and with the creation of the Commission came abrogations of fundamental rights and the imposition of new obligations, I aim to show that justifying what was done by appeal to “political necessity” is not necessary, and that using resources drawn from other forms of contingent obligations, the contested actions can be located within the extended scope of morality, and that the new obligations, though radically contingent, are morally justified.

I

Resistance to contingency in obligation, or to any moral novelty, runs deep and has its source in the way morality figures in our everyday life. The normal moral agent—someone well brought up, with no errant psychological spikes or troughs—will have integrated determinate moral concerns and moral limits into the content and structure of her projects, even into the possible objects of her desires.⁸ In ordinary circumstances, she will move seamlessly in the space of pragmatic and moral reasons. For the most part, moral questions will not and need not arise because her actions and choices are already responsive to the moral norms that apply. Politeness, offering a helping hand, queuing, honesty, respect, and the like, are not separate from what a decent person wants to do.

Some of this just belongs to practical competence. We make judgments and valid inferences without overtly thinking about them, either because we just “see” connections, or because we have acquired some appropriate habits of response—the way an experienced driver responds to a skid, or a competent chess player engages a defense. Although we might say that someone who responds in this way does so “without thinking,” we also take her reasons to be accessible, or reconstructable: we know a lot about what we are doing, and why we do this rather than that. There is nothing peculiar to morality in this, though morality may require that we be able to look at things in a finer grain, or with more focused attention, depending, for example, on the kinds of responsibility we have for things going wrong.⁹ A little lack of attention to what we are doing in wandering through a market is of negligible significance, a benign absentmindedness or fugue; we can’t be so easy on ourselves where what is at stake is important to what we care about, or where our attention is under moral direction.

A different source of moral seamlessness, one most intimately related to our agency, runs even more quietly in the way we approach choice and decision. There are reasons not to careen into people as one passes through a crowded lobby, and there are reasons to express gratitude for a favor done. If you ask me why I said “thanks,” or avoided collision with someone in my path, the reason I retrieve does not explain why I did “this rather than that,” for there was no that for me in the space of possibilities. This restriction of the space of possibilities (of actions as well as objects of action) partly constitutes our moral character and is a necessary condition of virtue. Decision in such cases is not a result of choice or calculation. In accounting for this, we are drawn less to analogies with skills and more to field features of perception. From where I stand, there is no path through the space now occupied by someone else, just as there is no question about whether to express gratitude—though some, to be sure, about how best to do it. However we account for this field feature, the plain fact is that the world of the normal moral agent has a moral shape.

Though morality aims to shape the world of human action, parts of it are made to order. Whatever the account of fundamental principles, morality is responsive in certain obvious ways to the basic needs of human existence. But while it is neither arbitrary nor contingent that pain and suffering figure centrally in moral thought, how they count, and whose pain and suffering counts, may be, to some extent, an open question. I do not mean that we just decide these matters—that there are no standards here—but rather that there may be some indeterminacy, something we must fill out. Between the blue blood’s hangnail and the loss of a species of toad there is a lot of space for working out costs and harms and responsibility. But even if the standard of obligation we arrive at is in some sense negotiable, because we are in better (or worse) circumstances, or understand and are able to do more, it is a standard nonetheless—not an arbitrary rule—as there is justification for the lines being drawn where they are. The fact that even core morality has to be filled out in these ways does not render it less objective, nor less fixed from the point of view of the acting agent.¹⁰ Another locus of moral contingency has a different explanation. When land, or the means of production, are owned privately, we are in a specific space of rights and permissions that shapes much of what the world looks like to us. But while property must be stably organized in some way to establish rightful possession, there is no unique way of doing this: things could have been—and still can be—otherwise. This kind of contingency of obligation is well accommodated by a two-level theory: abstract principles reflecting fundamental needs, interests, and values, which offer direction for the construction of more determinate rules and practices. Although which rule or standard adopted is contingent, again, for the normal agent acting, the obligations and duties are set.

However, the same features that morality must have if we are to be able to live in its terms—that it can figure in the acquisition of basic practical skills, organize perception, and set the background conditions for everyday life—are, when internalized for these purposes, sources of tension and resistance if the content of our duties ought to change, or if we are presented with a region of moral concern with which we have little experience. Our practical skills, our sense of salience and confident response are most at home in set practices. Yet, somewhat paradoxically, it is just these abilities that must be called on if we are to be appropriately responsive to new reasons in unfamiliar circumstances: to absorb significant change without harm we require the stability of character and moral self-confidence that normal moral life provides. So there is something a bit perplexing here in the terms of fit between good or normal moral character and developing demands of obligation.

It strikes me as doubtful that there is an ideal type of character fit both for negotiating normal action and conditions demanding change. Indeed, there are as likely to be many ideal types as there are to be any. We require certain abilities, but neither the route to them nor the psychological configuration in which they reside need be of one kind. one reason for this is that nor...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Contributors
• Introduction
• 1 Contingency in Obligation
• 2 Moral Improvisation, Moral Change, and Political Institutions: Comment on Barbara Herman
• 3 Moral improvisation and new obligations
• 4 Contingency at Ground Level: A Reply
• 5 The Idea of Political Pluralism
• 6 Value Pluralism, Autonomy, and Toleration
• 7 The Limits of Liberal Pluralism: A Comment on William Galston
• 8 International Law as Inter-Public Law
• 9 “The Center Cannot Hold”: A Response to Benedict Kingsbury
• 10 Cosmopolitanism and International Law
• 11 Democracy and International Law: A Peril from the “Public”?
• Index